R v Cranston

Judgment (4 paragraphs)

[1]

JUDGMENT

This trial commenced on 26 April 2022, and a jury of fifteen was empanelled. Since that time, I have made orders on 28 June 2022, 20 July 2022 and 30 August 2022 on each occasion discharging one individual member of the jury, respectively: R v Cranston (No 14) [2022] NSWSC 860; R v Cranston (No 15) [2022] NSWSC 977 and R v Cranston (No 16) [2022] NSWSC 1166. On each occasion, I also determined that the trial should continue with the remaining jurors.
Since 30 August 2022, the trial has proceeded with twelve jurors. I completed my summing up to the jury on 18 January 2023 and invited the jury to retire to consider their verdicts that morning. The jury have deliberated since that time, albeit with some substantial breaks (see R v Cranston (No 25) [2023] NSWSC 15).
On 25 August 2022, Juror 02942175 (known as Juror K) informed the Court that she was unwell and would be unable to attend on that day. She provided the Sheriff with a medical certificate from her treating doctor which was anonymised by the Sheriff and provided to me. That medical certificate, which I marked MFI 43, stated that the juror was suffering from a pregnancy-related illness.
Since that time, there have been a number of urgent medical appointments and pregnancy related absences directly attributable to Juror K. On the morning of 14 February 2023, Juror K informed the Court that she was unwell while travelling to the Court and that she would return home.
Later that morning, the Crown applied for a discharge of Juror K pursuant to s 53B(a) and (d) of the Jury Act 1977 (NSW). Section 53B provides: 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if - (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.

Consideration

I am satisfied that my jurisdiction to discharge Juror K is enlivened in these circumstances. It may be that the medical advice about Juror K's pregnancy means that she has "become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict" within the meaning of s 53B(a) of the Jury Act. A juror who is absent because of illness is unable to perform their duties "through illness" regardless of whether the juror will recover from the illness and regardless of the speed of that recovery: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [14] (Gleeson CJ and Hayne J). In any event, I am satisfied that the medical advice not to attend for jury service is a matter "affecting the juror's ability to perform the functions of a juror" within the meaning of s 53B(d) and provides sufficient reason to conclude that Juror K should not continue to act as a juror.
Accordingly, on 23 February 2023 I ordered that Juror K be discharged. I expressed my gratitude for her lengthy period of service and acknowledged the dedication and attention to the proceedings which she had displayed.
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 with the remaining eleven jurors. I found that there was no risk of a miscarriage of justice in proceeding with the remaining eleven jurors, as per s 53C(1)(a) of the Jury Act. It is permissible for the number of jurors in Commonwealth prosecutions to fall below twelve: Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36 at [20]-[24] (Gleeson CJ and McHugh J), [68]-[78] (Gaudron, Gummow and Hayne JJ), [139]-[149] (Kirby J), [172]-[186] (Callinan J). In these circumstances, I determined that pursuant to s 53C(1)(b) of the Jury Act the trial should continue with the remaining eleven jurors.

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Judgment (4 paragraphs)

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