Ms G Wright SC (Crown)
Mr GA Brady SCMr A Williams (Accused)
Judgment (2 paragraphs)
[1]
Judgment
JOHNSON J: On 21 February 2022, a jury was empanelled for a trial of the Accused, Sevag Chalabian, upon a charge of money laundering under s.400.3(1) Criminal Code (Cth). As the estimate for the trial was about five weeks until the jury retired to consider a verdict, a jury of 15 was empanelled.
On the third day of the trial, two members of the jury were discharged for reasons explained in R v Chalabian (No 5) [2022] NSWSC 174. One of the jurors discharged on that day had tested positive for COVID-19 on rapid antigen testing. The Court determined to proceed with the trial with a jury of 13.
This morning, the Sheriff informed the Court that a household member of a juror had tested positive for COVID-19. That juror has not attended Court. The information available to the Court is that the juror has not tested positive him or herself and has no symptoms. The juror, however, is a member of a household of someone who has tested positive with that person being a "diagnosed person".
Under the Public Health (COVID-19 Self-Isolation) Order 2022 ("the Self-Isolation Order") (MFI29) issued by the Minister for Health on 2 March 2022, the absent juror is required to isolate for seven days in these circumstances. So much is made clear by a reading of Clauses 7, 8 and 9 of the Self-Isolation Order.
Allowance has been made for a "critical worker" exemption from that obligation.
On 15 March 2022, the Minister for Health issued the "Critical Worker Exemption from the Public Health (COVID-19 Self-Isolation) Order 2022 (No 1)" ("Critical Worker Exemption") (MFI30). The purpose of the Critical Worker Exemption was to ameliorate the requirement for seven days' isolation for certain persons who fell within the term "critical worker". A critical worker is exempt from Clauses 8 and 9 of the Self-Isolation Order for the purpose of attending work subject to certain conditions as specified in Clause 1 of the Critical Worker Exemption.
R v Chalabian [2022] NSWSC 316 | Case summary | Zoe
Clause 2 of the Critical Worker Exemption defines "critical worker" as meaning:
"2) In this instrument, critical worker means a person listed in the table below:
a) whose absence from the workplace poses a high risk of disruption to the delivery of critical services or activities; and
b) who is unable to work from home,
as determined by or on behalf of the person's employer."
The table of "critical workers" is broken up into various sectors. For present purposes, the Public Administration and Safety sector is relevant. The exempted activities or persons for this sector are defined by reference to a series of organisations or Departments or services in which a person may be employed. The list includes:
"• a person who is a judicial officer as defined in s 3 of the Judicial Officers Act 1986, a registrar of the Supreme Court, District Court or Local Court of NSW (including assistant registrars), an industrial registrar or deputy industrial registrar, a registrar of the Land and Environment Court, a coroner (including assistant coroners), or a Commissioner of the Land and Environment Court
• a person who is a member of the NSW Civil and Administrative Tribunal."
The list of exempted activities or persons does not include persons who are serving on juries in criminal trials.
Both the Crown and Senior Counsel for the Accused submit that a member of a jury does not fall within the definition of "critical worker" and I agree with that submission.
Even if a member of a jury was capable of falling within the term "critical worker", a question would arise as to whether there were difficulties or concerns about a person who was a household contact serving in close proximity with other members of a jury during the seven-day period when the person would otherwise be required to isolate. That question, however, is academic because members of a jury do not fall within the definition of "critical worker".
The "critical worker" category includes a wide variety of exempted activities or persons who are deemed to be important to the functioning of society during the COVID-19 pandemic, including police officers, correctional officers, persons employed by Resilience NSW, persons involved in work, health and safety functions and a variety of others.
The impact of the COVID-19 pandemic on criminal jury trials in this State has been significant. This will continue to be the case for a lengthy period of time. Each juror, of course, is exercising a form of judicial function. Whether there is a proper basis for considering amendment to the list of critical workers to include jurors is a matter for the New South Wales Government and not the Court.
It would be clear, however, to those who are giving attention to the functioning of the criminal courts that the COVID-19 pandemic is striking regularly at a variety of persons involved in trials, including jurors, legal practitioners and others.
So much has already been made clear in this trial, where the Accused tested positive and was required to self-isolate for seven days and appeared, during the period of self-isolation, by audio-visual link: R v Chalabian (No 7) [2022] NSWSC 227. Since 4 March 2022, when that judgment was delivered, one counsel on each side of the Bar table has tested positive and been required to be absent from the trial.
The juror absent today is the second member of the original jury affected by the COVID-19 pandemic. The trial is about to embark upon its 19th day. The best estimate is that the jury will not be going out, most likely, until some time in the week of 11 April 2022.
There is a reasonable argument that members of the jury ought be considered "critical workers" in fulfilling the very important function which they do in criminal trials. I will ensure that this judgment, when revised, is provided to the authorities within the Court for consideration of reform in this area, in circumstances where COVID-19 is going to be a companion of criminal trials for many months to come. (I recognise that a countervailing argument is that the impact of the COVID-19 pandemic on juries is met by empanelling additional jurors, where that step can now be taken if the trial is likely to exceed two weeks: Jury Amendment (Additional Jurors) Regulation 2022).
The unhappy position in the present trial, however, is that we have a juror who is, on the face of it, perfectly well, but who cannot leave the juror's home for a period of seven days. There is no facility for that juror to participate by audio-visual link or to observe the proceedings remotely in the way that the counsel who were self-isolating were able to do. Each juror is required to be physically present in Court each day, observing the trial and being part of the group of jurors considering the evidence as it proceeds from day-to-day. In the case of the absent juror, that cannot happen.
Both the Crown and Senior Counsel for the Accused submit that the appropriate course is to discharge the absent juror and to proceed with a jury of 12.
As the absent juror is not ill, s.53B(a) Jury Act 1977 does not apply. However, s.53B(d) permits the Court to discharge a juror if it appears to the Court that, for any other reason affecting the juror's ability to perform the functions of a juror, the person should not continue to act as a juror.
Both the Crown and the defence submit that this power should be exercised to discharge the absent juror. I am satisfied that is the appropriate course to take and an order to that effect will be made shortly.
The remaining question is the continuation of the trial with 12 jurors. The Court is required to consider this question by s.53C Jury Act 1977. As it happens, the discharge of the absent juror will see the trial proceeding with a jury of 12, the ordinary starting point for a jury in a trial without additional jurors.
The parties submit, and the Court accepts, that it is entirely appropriate at this stage in the trial to proceed with a jury of 12. The jury are particularly attentive and the trial is well advanced. It is appropriate for the trial to proceed with a jury of 12.
The risk, of course, is that between now and the end of the trial there may be further erosion of the number of jurors. There is no insurance policy that can be applied in that respect. It is hoped that this does not happen and that the Court is left with a jury of 12 when the time comes for the jury to retire to consider a verdict.
I am satisfied that the following order should be made:
1. Juror G is discharged under s.53B(d) Jury Act 1977.
2. The trial of the Accused is to continue with a jury of 12.
[2]
Amendments
21 March 2023 - Publication restriction lifted - judgment published.
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Decision last updated: 21 March 2023