R v Diallo & Ors (No 9)

On 13 August 2024 a juror with a designated number 5J and panel number 03448909 (“the juror”) sent a note in the following terms:

Following discussions with counsel, I spoke with the jury as a whole and in the presence of the parties. [2] I indicated there was insufficient information to make a decision about the progress of the trial and asked whether further information could be obtained concerning the likely recovery time, whether any medication may impact on the juror’s ability to concentrate, and whether transport to and from the Court could be arranged. I also indicated I would make inquiries as to what assistance the Court or the Sheriff could offer.

After I made those inquiries, I indicated that parking could be offered to the juror in the court complex or, alternatively, they could be dropped off in the immediate proximity of the Court. [3]

Over the following days, I mentioned the issue a few more times, stressing that we needed as much information as possible, within the limits of the juror’s privacy, so that a decision could be made. On 16 August 2024 I received a second note which provided additional information:

I interpolate that this trial has, or commenced with, an estimate of three months and an expanded jury of 15 was empanelled on Wednesday 31 July 2024. That followed a four-week pre-trial hearing for which the Court had an estimate of one to two weeks. The day after the empanelment, a juror was discharged because they were suffering from an episode of anxiety. I determined to continue with a reduced jury of 14. We are now in the fourth week of the trial proper and, as of two days ago, I was told that the prosecution case may close in about two and a half weeks. [5]

On Monday 19 August 2024 – that is, the eve of the juror’s ACL procedure – I heard submissions as to whether the power to discharge an individual juror (s 53B of the Jury Act 1977 (NSW)) should be exercised. [6] The parties essentially presented a joint position, although the focus of the submissions was different in some respects. The joint position was that the only paragraphs of s 53B that might be engaged were:

Based on the information then at hand, I was not of the opinion that the juror was so incapacitated that it was likely they would become unable to serve as a juror before the jury delivered its verdicts. Further, at that stage, it did not appear to me that the juror should not continue to act as a juror based on anything affecting the juror’s ability to perform the functions of a juror: cf Sun v R (2023) 112 NSWLR 52; [2023] NSWCCA 147. I formed the view that the better course was to adjourn the trial for two days and obtain an update as to the juror’s capacity and well-being after the procedure.

This morning, Wednesday 21 August 2024, the court officer spoke to the juror’s mother. In an email to my staff (MFI 46), he advised as follows:

I invited the court officer to provide a further update later in the day.

Meanwhile two seemingly disconnected things happened this morning. First, one of the witnesses for whom an arrest warrant was issued was brought to court. He sought and was granted bail pursuant to the provisions in ss 311 and 312 of the Criminal Procedure Act 1986 (NSW) and the Bail Act 2013 (NSW). Second, another witness for whom an arrest warrant was issued but ordered to lie in the Registry until this morning, came to court under his own steam, presumably having been advised of the existence of the warrant. He promised to appear at court tomorrow and the order that the warrant lie in the Registry was extended for another day, that is until tomorrow.

Both of those witnesses were told – and I should say, they were told by me – that their evidence would be taken tomorrow, that is Thursday, and possibly drifting into Friday. Accordingly, it is imperative that the Court will sit with the jury on Thursday and Friday, and it will do so. Those are matters unrelated to the juror’s capacity to do the job of a juror. However, they are matters that make it imperative that the Court continues to sit and, in particular, to sit tomorrow and Friday. If it be the case that the juror is unable to attend, that circumstance would be a reason impacting on their capacity to act as a juror.

After dealing with those two reluctant witnesses, I received a further email from the court officer: MFI 47. It said:

The juror’s inability to attend court tomorrow and, possibly, for the remainder of the trial is a reason affecting their ability to perform the function of a juror and it appears to me that they should not continue to serve: s 53B(d). Further, while they are otherwise able to perform the functions of a juror, they appear to be so incapacitated as to be unable to serve until the jury returns its verdicts: s 53B(a). No counsel took a contrary view.

I am satisfied the discretion under s 53B(a) and (d) should be exercised and I make a formal order that juror 5J (03448909) is discharged from further service on the jury.

I have separately considered the discretion to continue with a jury of 13 jurors. It remains more than 12 although the situation has become a little uncomfortable, not to say precarious. Each of the remaining 13 jurors was randomly selected and each was validly and lawfully able to serve on the jury.

I am unable to perceive any risk of a substantial miscarriage of justice occurring if we continued with a reduced number of jurors.

Accordingly, pursuant to s 53C(1)(b) of the Jury Act, I order the trial is to continue with a reduced number – which is to say 13 – jurors.