R v Bentley; R v Davies; R v Thomas; R v Tilley

HIS HONOUR: I was informed by the Sheriff at 9.30 this morning that one of the jurors in these trials had not arrived, but had telephoned the Sheriff to indicate that he would not be here today. The preliminary indications were that he was suffering from anxiety and felt unable to continue.

In these circumstances, I assembled the remaining jurors and explained that in the absence of one of their number they should not continue with their deliberations until they heard further from me. I approached the matter in this way because on four previous occasions when a juror had called in sick I had sent them home until the particular juror had recovered and was able to continue.

I then called Zahid Martin, the Acting Officer in Charge of the Sheriff’s Office at the Darlinghurst Court complex. Mr Martin confirmed that the juror to whom he had spoken this morning had informed him that he was suffering from anxiety and did not feel that he could continue as a juror in this case. The juror indicated that he was having difficulties being in a room with what he described as eleven strangers Mr Martin was told by the juror that he would not be able to produce a medical certificate until Monday, with which he would then attend. Mr Martin was given to understand that the juror would seek on Monday to be excused from any further responsibilities as a juror in these trials. Mr Martin’s evidence was relevantly as follows:

I sought an indication from counsel about my preliminary view that the juror should be discharged in the circumstances. All counsel took instructions and were unanimously of the view that the juror should be discharged.

Section 53B of the Jury Act 1977 provides as follows:

Upon the basis of the available material, I consider that the juror in question should be discharged. In my opinion, the juror has become so ill or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdicts. It is clear that the juror is suffering from anxiety about the need even to gather with his fellow jurors in the jury room. I note that I have so far not received any medical evidence about his psychiatric or psychological state and that any references to anxiety are limited to the juror’s own use of that term. However, the very distinct impression that I have been given by Mr Martin’s evidence is that the juror has now disengaged from the process and wants nothing further to do with it. There is in such circumstances the very real risk that the juror, if required to continue, might come to a decision based not upon a studied and calm consideration of the evidence but upon his desire to see the process ended as quickly as possible. That would be inimical to the interests of justice if it were even remotely likely.

I should also note that the juror in question has been ill and unable to attend on two previous occasions. He has produced medical certificates on each occasion. On neither of these occasions was there any suggestion that his illness was related to anxiety. It is however not possible to be confident that his current condition may not in some way have been an underlying cause for his previous non-attendance.

It should also be recorded that the juror in question has been evidently unable to concentrate during the course of these trials. To my observation, and to the observation of counsel as well, the juror has appeared to be asleep or dozing from time to time. I observed him to be reclining in his seat on one occasion with his jacket pulled up to his chin, much like a blanket. I have refrained either from commenting upon this or from taking any step concerning it in the absence of any indication from counsel that it was troubling them, or any indication from the foreperson that anything similar was creating difficulties in the jury room.

Section 53C of the Act provides relevantly as follows:

I then proceeded to give consideration in accordance with this section to whether these trials should continue with the remaining eleven jurors or whether the jury should be discharged. In forming my opinion about that issue I drew upon the assistance of all counsel who indicated that these trials should continue.

In my opinion, there is no risk of any miscarriage of justice, let alone a substantial miscarriage of justice, in continuing with these trials with a reduced number of jurors. As far as one is able to tell, the jurors have so far proceeded diligently with their task, seeking answers to questions that appear to indicate that they are considering all issues with a commendable attention to detail. There has also been no indication of dissent or disharmony among them. There has been no indication that they are potentially deadlocked or are otherwise having difficulty reaching a decision. Importantly, there is nothing to indicate that the discharge of the juror in question would have, or was likely to have, any disrupting effect upon the jury’s continuing deliberations.

In the absence of any such risk, I consider that these trials should continue with eleven jurors. Section 22 of the Act is therefore not engaged.