R v Cranston (No 15)

1. [1]

   This trial commenced on 26 April 2022 and fifteen jurors were empanelled. On 28 June 2022, I made orders discharging an individual member of the jury and determined that the trial should continue with the remaining fourteen jurors: R v Cranston (No 14) [2022] NSWSC 860.

2. [2]

   The trial subsequently proceeded until yesterday, 20 July 2022, the 48th day of the trial. On the morning of 20 July 2022, I received a note from Juror 02960699 in the following terms:

3. [3]

   In addition to my opening remarks, I had previously addressed the jury about the importance of informing me if they were having difficulty concentrating or staying awake during the evidence: T555.25-32. This was because of my observations of this juror at about that time. On 6 May 2022, the ninth day of trial, I received the following note from Juror 02960699:

4. [4]

   Senior Counsel for the Crown had noted in the days preceding 20 July, correctly as it turned out, that he had observed this juror sleeping during the evidence. The Crown also recorded observations that other members of the jury were apparently aware of the juror’s inability to stay awake during the proceedings.

Consideration

1. [5]

   Although the power to discharge an individual juror provided by s 53A or s 53B(a) of the Jury Act 1977 (NSW) may have been enlivened here, the parties submitted, and I agreed, that it was unnecessary to consider those provisions as the jurisdiction in s 53B(d) of the Jury Act was plainly enlivened. That section provides in full:

2. [6]

   The Crown and counsel for each of the accused jointly submitted that in the present circumstances I should exercise the discretionary power in s 53B(d) to discharge the individual juror. In the light of the circumstances described in the juror’s note, I formed the view that the juror’s ability to perform the functions of a juror was seriously compromised and that the juror should not continue to act as a juror. Accordingly, I made an order under s 53B(d) discharging individual Juror 02960699.

3. [7]

   As to the separate discretion in s 53C of the Jury Act, it was the unanimous submission of the parties that the trial should continue. There remains thirteen apparently healthy and attentive members of the jury. After three months, the evidence is now substantially advanced and the jury have already heard a good deal of the total evidence in the case. Accordingly, pursuant to s 53C(1)(b) of the Jury Act, I determined that the trial should continue with the remaining thirteen jurors.

Orders made

1. [8]

   For the above reasons, on 20 July 2022 I made the following orders:

   1. (1)

      The individual Juror 02960699 is discharged pursuant to s 53B(d) 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 thirteen jurors.