R v Cranston (No 14)

1. [1]

   This is a trial which is set down for an estimate of 6 months, which commenced on 26 April 2022. Yesterday morning I was informed by the court officer that a member of the jury, Juror 485-18 02831676, could not attend that day due to illness. I recommended that the juror take a PCR test that morning to confirm the diagnosis. That same afternoon, I was informed that the juror had returned a positive result to COVID-19 on the PCR test.

2. [2]

   In response to that information, the Crown made an application pursuant to s 53B of the Jury Act 1977 (NSW) (the Act) for the discharge of the juror, and an order pursuant to s 53C of the Act that the trial continue with the remaining fourteen jurors.

Background

1. [3]

   This trial was originally listed to commence on 10 August 2020. However, the trial commencement was vacated on more than one occasion throughout 2020 and 2021 due to COVID-induced disruptions.

2. [4]

   The trial was eventually listed to commence on 4 April 2022. However, due to court room unavailability and delays in the related prosecution of a Mr Chalabian, the commencement of the trial was delayed until 26 April 2022.

3. [5]

   The trial eventually commenced that day with an estimated duration of 6 months. In accordance with s 19 of the Act, a jury of fifteen was empanelled.

4. [6]

   Since the commencement of the trial, a large number of sitting days have been lost, the most important of which were 6 to 10 June, due to my testing positive to COVID-19 and having to isolate; 16 and 17 June, due to a member of the jury feeling unwell and later testing positive to COVID-19; 20 to 24 June, due to a second member of the jury also testing positive to COVID-19; and yesterday 27 June, due to the present juror feeling unwell and now testing positive to COVID-19.

5. [7]

   The present witness who is giving evidence, [redacted], commenced giving that evidence on 11 May 2022. He has been under cross-examination since 30 May 2022. His current cross-examination by Mr Bruckner, counsel for Mr Menon, commenced on 31 May 2022.

6. [8]

   The Crown’s application relates to the jury member who was absent due to illness yesterday, and who received a positive result from a COVID-19 PCR test on that same day. Under the Public Health (COVID-19 Self-Isolation) Order (No 2) 2022 (NSW), that juror is required to self-isolate for 7 days. It is also recommended by the NSW Department of Health that if an individual is still symptomatic after 7 days, they isolate until 24 hours after symptoms have resolved.

The Jury Act 1977 (NSW)

1. [9]

   Section 53B of the Jury Act is in the following terms:

2. [10]

   The question of whether or not the trial should continue with the remaining jurors is a separate question involving the exercise of a separate discretion. That is made clear by s 53C of the Act which provides as follows:

Section 53B – discharge of the individual juror

1. [11]

   The Crown’s application to discharge the individual juror is brought under s 53B(a) or s 53B(d). All parties accepted that I have jurisdiction to consider the application and, if satisfied of the matters raised in those sections, to discharge the juror.

2. [12]

   Each of the accused submitted that I should not discharge the juror. It was submitted that there are only two days of hearing remaining this week and that there is a risk to the integrity of the hearing if the juror was discharged. That is, it would be far preferable to have all fifteen jurors as we approach final submissions. Each of the accused submitted that the risk of jury disengagement would not be adequately addressed by proceeding this week in circumstances where the jury would only hear evidence today and on Friday morning.

3. [13]

   The timing of the juror’s illness is relevant. It comes shortly after the loss of a week due to my testing positive to COVID-19, and then a second week plus two days due to two other members of the jury testing positive. If this juror is not discharged, it will result in only four days during the whole of June being devoted to evidence.

4. [14]

   In the exercise of my discretion, the matter of the greatest concern to me is that, by reason of the very substantial COVID-related adjournments I have described affecting nearly the whole of June, the jury is at risk of becoming distanced from the evidence, particularly the evidence of [redacted], and the issues in the trial. If Juror 485-18 02831676 is not now discharged, the jury will have heard virtually no evidence in June 2022.

5. [15]

   I do not take lightly a decision to discharge a juror. However, the statistics relied upon by Mr Johnson, counsel for Mr Menon, only go so far. The discretionary power to discharge an individual juror must be exercised on the best evidence available at the time any application is made. Any future application will be judged on the circumstances that exist at that time. I also acknowledge that only two sitting days remain this week, with Friday being a half day only, and that the evidence of [redacted] will not be concluded this week regardless of the decision I come to on this application. Those are all matters I take into account.

6. [16]

   For the reasons given by the High Court in Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, I regard fairness to the jury and its engagement in the evidence and issues as a paramount consideration. As Gleeson CJ and Heydon J explained at [19]:

7. [17]

   Balancing all of the considerations I have identified, I have decided that Juror 485-18 02831676 should be discharged under s 53B of the Jury Act. Shortly put, the risk to the integrity of the trial, with the jury becoming so distanced from the evidence and the issues in this case, outweighs the desirability of retaining fifteen jurors for as long as possible. Even though only two days of evidence will be heard this week, in my view it is important that the jury hear evidence at this time lest a gap emerge between days of hearing evidence that is so long as to give rise to the disengagement I have described.

Section 53C – continuation of trial with reduced number of jurors

1. [18]

   In relation to the second discretion to order that the trial continue with the remaining fourteen jurors following the discharge of the individual juror, s 53C of the Act requires me to come to an opinion whether continuing the trial with the remaining jurors “would give rise to the risk of a substantial miscarriage of justice”.

2. [19]

   No party suggested that there is a risk of substantial miscarriage of justice by continuing with a jury of fourteen. I agree with the position of the parties. I am satisfied that there is no risk of a substantial miscarriage of justice to continue with the trial with the remaining fourteen jurors and I propose to so order.

3. [20]

   Accordingly, I make the following orders:

   1. (1)

      The individual Juror 485-18 02831676 is discharged pursuant to s 53B of the Jury Act 1977 (NSW);

   2. (2)

      Pursuant to s 53C(1)(b) of the Jury Act, the trial is to continue with the remaining fourteen jurors.