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.
R v Cranston [2023] NSWSC 139 | Case summary | Zoe
The Crown further applied for an order pursuant to s 53C(1)(b) of the Jury Act to continue the trial with the remaining eleven jurors. Counsel for each of the accused opposed the Crown's application.
Before ruling on the Crown's application, I proposed that I write a letter to Juror K's treating doctor, enquiring about whether, given the state of her pregnancy and health, it was likely that she would be able to continue to participate in jury deliberations in the next several weeks. I provided the parties with a draft letter which I marked MFI 147. Counsel for the Crown and each of the accused agreed to this proposed course and suggested various changes to the letter. The final version of that letter, which I marked MFI 148, was emailed to Juror K by the Court Officer later that day.
On 15 February 2023, I received the following note from the jury:
RE: Juror K pregnancy and health
Please note the following appointment times:
- Monday 27 Feb, 12:20pm - no earlier appts available. It takes the juror approx 1hr 15mins to travel from Court to the hospital, and the juror feels it is too difficult and stressful to attend Court around this appointment.
- This will be the juror's 36-week appointment. She had been advised that from 36 weeks she must go on maternity leave and not attend Court or work from this time. Juror K will request a letter from her doctor detailing this, and will provide the letter to the Court by Friday this week
Following the receipt of this note, the Crown agreed that it would not move on its earlier application for Juror K's discharge until just before the end of the last sitting day before 27 February 2023.
Counsel for Mr Cranston, Mr Stratton SC, agreed that, provided no verdicts were delivered beforehand, Juror K should be discharged at the end of the last sitting day before 27 February 2023, and that I should exercise my discretion for the trial to continue with the remaining eleven jurors. He submitted that I should inform the jury that there is no rush or deadline in their reaching their verdicts, and that I have the power to discharge a juror and power to continue the trial with eleven jurors. Counsel for Ms Cranston, Mr Menon and Mr Willmott agreed with these submissions. I gave the jury directions in accordance with Mr Stratton's suggestions.
On 21 February 2023, Juror K provided the Court with a medical certificate which confirmed that the due date for the birth of her child was 29 March 2023. I marked this medical certificate MFI 149. On 22 February 2023, I received a note from another juror, Juror B, requesting that they be excused from attending the trial on 24 February 2023 in order to attend a family funeral. Counsel for the Crown and each of the accused agreed that I should allow this adjournment. As such, the last sitting day before 27 February 2023 became 23 February 2023. The Crown agreed that it would not move on its application for Juror K's discharge until immediately prior to the end of the sitting day on 23 February 2023.
The Crown moved on its application to discharge Juror K at 3:45pm on 23 February 2023. I read the proposed orders I was intending to make (set out below) and it was agreed by counsel for the Crown and each of the accused that I should make those orders.
[2]
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.
[3]
Conclusion
For the above reasons I made the following orders on 23 February 2023:
1. That individual Juror 02942175 is discharged pursuant to s 53B(a) and 53B(d) of the Jury Act 1977 (NSW);
2. Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), the trial is to continue with the remaining eleven jurors.
[4]
Amendments
27 February 2023 - Cover Page: Representation for Jason Onley amended to "Kingston Fox Lawyers"
21 March 2023 - Publication restriction lifted.
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Decision last updated: 21 March 2023