[2022] NSWSC 37

R v Lupton (No 4)

(1) Juror number 2812801 is discharged (2) Trial to continue with a reduced number of jurors

Catchwords

CRIMINAL LAW - trial conducted during pandemic - whether individual juror should be discharged - where juror “close contact” with person positive for COVID - required to isolate for 7 days - absence from trial - requirement of evidence or proof – sub-sections of provision requiring different modes of proof – discretionary considerations - juror discharged - whether continuing trial with 14 jurors likely to cause substantial miscarriage - trial to continue with reduced number of jurors

Legislation cited

Jury Act 1977 § 53A, 53B and 53C

Judgment

[1]
This morning, the Court Officer made me aware that juror number 2812801 (to whom I will refer to as “the juror”) had advised the Jury Services Branch that his mother had tested positive for COVID-19. It was understood that the juror lived with his mother and was therefore a “close contact” as defined both in current health orders and under the protocols established by the Chief Justice for the safe conduct of jury trials during the COVID-19 pandemic. At that stage, the information I had was third hand and a little vague.
[2]
I advised the parties and sought their views as to the appropriate course to take. I also advised the jury of the situation in general terms and allowed its members to separate for around an hour while I obtained further information.
[3]
After adjourning the Court, I made direct telephone contact with the officer of the Jury Services Branch (whose identity is suppressed and to whom I will refer as “WC”). WC provided the following information:
1. (1)
  WC spoke to the juror by telephone this morning.
2. (2)
  The juror told her that his mother advised him this morning that she had tested positive to COVID-19.
3. (3)
  The juror resides with his mother.
4. (4)
  WC advised the juror not to come to court and to arrange a PCR test.
5. (5)
  It is unlikely that the result of PCR test will be available in less than 48 hours.
6. (6)
  The juror will be required, as a person having “close contact” with a COVID-19 positive relative, to isolate at home for a period of seven days.
[4]
Since speaking with me and following up on some questions I raised, WC sent a text message to my Associate providing the following further information:
1. (1)
  The juror’s mother had a PCR test yesterday and received the result this morning.
2. (2)
  The juror has now had a PCR test and is isolating at home awaiting the result which he was advised would be 1-2 days.
[5]
Under the Court’s protocols, and with the consent of the jurors, each member of the jury – including the juror - was subject to a Rapid Antigen Screening test (RAS test) yesterday morning and each member tested negative. Even though the risk of infection seemed to be low, but for the re-assurance of the fourteen remaining jurors, my staff arranged further RAS testing for the remaining jurors and others in the courtroom who chose to have a further test. Everybody received a negative result.
[6]
The issue that must be determined at this stage is whether the juror should be discharged.
[7]
Section 53A of the Jury Act 1977 (NSW) is concerned with the mandatory discharge of an individual juror. The prerequisites of that section are not engaged.
[8]
Section 53B provides for the discretionary discharge of an individual juror. Sub-section (2), concerned with the discharge of a juror who may not be able to act impartially, requires the factual findings underpinning its engagement to be established by “evidence” or by “the juror’s own statements”. Sub-sections (1) and (4) do not have such requirements of proof. Those provisions are in the following terms:
[9]
The juror is a “close contact” and must isolate for seven days. If they test positive, I would be satisfied that sub-s (a) is engaged. However, this will not be known for a day or so. I cannot, at this stage, form the “opinion” that the juror is so sick that they are unable to perform the role of a juror or that they pose a health risk to other jurors.
[10]
However, it “appears to [me]” that there is “another reason” that affects the juror’s ability to perform the function of a juror and that they should not continue to act as a juror. That reason is the requirement that the juror must be absent from the Court for seven days as a result of being required to self-isolate for at least that period. Obviously, a person who is not present at the trial is unable to perform the functions of a juror, at least for that period.
[11]
The discharge remains a discretionary matter. Matters that militate in favour of discharging the juror as a matter of discretion include:
1. (1)
  The length of the trial (4 weeks) compared with the length of the isolation period (at least 7 days),
2. (2)
  The fact that we struck a jury of fifteen.
3. (3)
  The inconvenience to the other jurors, and to the parties and the witnesses, of delaying the trial for at least a week.
4. (4)
  The statistical likelihood that during that period another person involved in the trial may test positive for the virus.
[12]
Against that, the trial is in only its second full day before the jury and it would be desirable, if possible, to continue with 15 jurors.
[13]
Taking all relevant matters into account, I have concluded that juror 2812801 should be discharged.
[14]
Having reached that conclusion, I must decide whether the trial should continue with 14 jurors or whether the whole of the jury should be discharged. I am satisfied that continuing with 14 jurors does not give rise to the risk of a substantial miscarriage of justice: cf Jury Act 1977, s 53C.
[15]
Accordingly, I make the following orders:
1. (1)
  Juror 2812801 is discharged.
2. (2)
  The trial is to continue with a reduced number of jurors.