R v Gatt (No 2)

On 6 April 2018, having discharged one of the jurors under s 53B of the Jury Act 1977 (NSW), the question of whether the trial should continue with 11 jurors arose to be determined.

Neither party sought the discharge of the entire jury, or opposed the trial continuing with 11 jurors, as s 22 of the Jury Act permits. Under s 53C there was a discretion to continue the trial with 11 jurors after one was discharged, unless I formed the opinion that to continue the trial "would give rise to the risk of a substantial miscarriage of justice".

Neither party suggested that such a risk had arisen in the circumstances in which the juror came to be discharged. They are dealt with in R v Gatt (No 1) [2018] NSWSC 425, which should be read together with these reasons.

I was satisfied that those circumstances did not affect the other members of the jury. Nor did they have the result that they could not perform their task satisfactorily.

For those reasons, I was not of the opinion that a risk existed that there would be a substantial miscarriage of justice, if the trial proceeded with only 11 jurors. Accordingly, the other members of the jury were not discharged and the trial then continued with 11 jurors, as I then formally ordered.