This morning it was brought to my attention by the Sheriff that one of the twelve jurors currently hearing evidence in the trial of Shane Nancarrow had tested positive, using a rapid antigen test, for the COVID-19 virus. The Sheriff, for caution, had a second rapid antigen test conducted and the result was the same, that is to say, the juror tested positive.
The juror in question had by chance arrived late this morning and had not been in contact with the remaining eleven jurors, even at the safe social distance that is being enforced in the courtroom and by the Sheriff in accordance with the Supreme Court protocols for the conduct of jury trials. I understand he had not been in contact with remaining eleven at all. He remained separated from the balance of the jury and the other eleven jurors were brought to the jury room whilst I disclosed the information to the parties and received their submissions.
In the course of the morning there have been various discussions about the benefits or otherwise of having further (PCR) testing arranged and also discussion of information contained on the NSW Government website which, as I understand from the learned Prosecutor reading parts of it to me, seemed to be somewhat in conflict with the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), which is dated 2 March of this year. In my view the public health order must take precedence over anything published on the website, as inconvenient as that may be.
The Order defines a "diagnosed person" as a person who:
"(b) has become aware the person has tested positive to COVID-19 as a result of a rapid antigen test".
That means the juror in question is a diagnosed person for the purpose of the public health order. The provisions of the order in cl 6 include mandatory self-isolation and as I understand it the juror would be required to self-isolate at home for a period of at least seven days and then until he both tests negative and is asymptomatic. As far as I am aware he is currently asymptomatic.
The question then becomes what to do with the trial. The trial has already been disrupted as a result of the pandemic because at the commencement of the trial my associate became both very sick and also tested positive and had to self-isolate and was ultimately able to be transported to Sydney where she remains, and I am pleased to say from a text message I received about ten minutes ago is finally starting to feel a little bit better. In any event the only relevance of that is an assessment of where the interests of justice and balance of convenience lie.
This is a very short murder trial. After some COVID-19 related delays, we were able to empanel a jury on Wednesday 2 March 2022. The jury were then benefitted with the opening addresses of both the Prosecutor and Mr Neild, who appears for Mr Nancarrow, and the evidence commenced on Thursday. I am told that the evidence in the prosecution case is likely to conclude on Monday whether we sit today or not and we have already lost the best part of the morning as a result of working out what to do given the events as I have described them.
The point of all of that is that it raises an issue as to whether the appropriate course is to adjourn the trial for a period of seven days in the hope that the juror who is now a diagnosed person under the Health Order is able to attend, which is to say he tests negative and he is asymptomatic, and that no other participant in the trial in the meantime acquires the virus, or whether the better course is to exercise a discretionary power to discharge the individual juror and then make a decision about whether to continue the trial with eleven.
As some of the judgments in the High Court emphasised in the case of Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, whilst there is no particular "magic" in the number 12, for centuries "the common law has insisted that no person be convicted of serious crime without the unanimous verdict of 12 jurors." [1] Kirby J, in dissent, said (citations omitted):
"There was then, 'magic' in the relevant sense, in a jury comprised of twelve persons. This was not because of the significance of twelve in many other contexts as the appellant's counsel suggested. Nor was it relevant that the common law first hit upon twelve as an 'historical accident' which scholars severally contend may be traced to Roman, Saxon, Frankish or Norman origins. Twelve it has long been by the common law. And twelve it now ordinarily is by the Act and by its equivalents in every Australian jurisdiction. The Act established that number as the norm. It strictly controlled derogations. It was because long history and the common law reaffirmed that approach as relevant to a judicial decision to discharge a juror. And it was because the discharge in question involved forensic disadvantages to the accused in the charge of the jury, which the accused was entitled to have properly taken into account by the judge called upon to exercise the power of discharge. The consideration ought not to have been given the short shrift that it received." [2]
Callinan J, writing separately but in the majority, also traced the history and considered the significance of the number 12, noting "a range of interesting historical, superstitious, commercial and religious usages of the number twelve" while ultimately supporting the conclusion of Grove J in R v Brownlee (1997) 41 NSWLR 139 at 145 that there was:
"no historical or legal warrant for concluding that trial by jury inheres a concept that the body must consist of an immutable number of twelve persons."
Even so, as the majority in Wu v The Queen noted, the Jury Act 1997 (NSW) in New South Wales has allowed for the reduction in that number. [3] The High Court was predominately concerned with the failure of the trial Judge (and the intermediate appellate court) to give effect to the "two stage process" established by the Jury Act and to separately consider (and make an order) whether the trial should continue once an individual juror had been discharged. However, the observations are also relevant to the decision to discharge an individual juror.
Considering the matters discussed by the High Court in Wu v The Queen, I do not take lightly, a decision to discharge a juror, or continuing the trial with 11 jurors. Nevertheless, I have to apply the provisions of s 53B of the Jury Act 1977 (NSW). The section allows for the discretionary discharge of an individual juror in particular circumstances. Turning then to that section, it seems to me that the only paragraph of (a) through to (d) which is applicable here is that:
"it appears to the Court … 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". [4]
The provision relating to ill health, infirmity and incapacity (paragraph (a) is not engaged as I see the situation because, whilst he is a diagnosed person for the purpose of the public health order, there is no evidence that he is sick or has symptoms and hopefully he will not develop them.
However, given the length of the trial and the statistical risk and probability that someone is going to come down with the disease if we adjourn for any period of time, I am of the view that the fact that he is a diagnosed person required to self-isolate means that he is unable to perform the functions of a juror, at least for that period. In the context of this trial, I am satisfied that the juror should not continue to act as a juror.
That engages then the discretion in s 53B, and in particular para (d), and I am satisfied that I ought to discharge him in the exercise of discretion. In other words, I am positively satisfied that the juror should not continue to act as a juror.
The result of that is that there are two possibilities. One is that the whole jury should be discharged, and the second is that the trial continues with eleven jurors. That decision is governed by the provisions of s 53C of the Jury Act 1997 (NSW) and requires me to come to an opinion whether continuing the trial with the remaining jurors "would give rise to the risk of a substantial miscarriage of justice". [5] If I form that opinion, I should discharge the whole jury. Conversely, if I form the opinion there is so such risk, I should order the trial to continue.
Neither party suggests that there is a risk of a substantial miscarriage of justice by continuing with a jury of eleven and I agree with the joint position of the parties. I have already referred in passing to what the High Court said in Wu v The Queen, but I am satisfied that there is no risk of a substantial miscarriage of justice to continue the trial with the remaining 11 jurors
Both parties submit that it is appropriate to adjourn the trial until Monday, 7 March 2022, in order to ensure that the remaining eleven jurors remain COVID free and, with a little hesitation, I have come around to their point of view. I have some information of a confidential nature concerning the individual juror who has just been discharged. That information suggests that the source of his infection is unrelated to his attendance at court. It has to do with something in his family or personal life of which he became aware only this morning, but it is inappropriate that I say more about that given the confidentiality that jurors are entitled to expect.
Even so, I think it is appropriate for the jury's - that is the remaining eleven jurors' - comfort to know that they are unlikely to have come into contact with the virus. I propose to advise them generally as to what has happened, tell them the trial will continue on Monday and that there will be further rapid antigen tests conducted on each of them on Monday and then the trial will continue. They will also have the comforting news that it is expected that the prosecution case will end on Monday and that the likelihood is that the jury will be considering its verdict later next week.
Accordingly, I make the following orders:
1. The individual juror 578-8 02937677 is discharged pursuant to s 53B of the Jury Act 1977 (NSW).
2. Pursuant to s 53C(1)(b) of the Jury Act, the trial is to continue with the remaining eleven jurors
3. The trial will be adjourned until Monday 7 March 2022.
[2]
Endnotes
Wu v The Queen (1999) 199 CLR 99 at 107; [1999] HCA 52 at [27] (McHugh J). See also R v Martin (No 2) [2017] NSWSC 1250 at [11]-[12], at [79]-[84] and R v Qaumi & Ors (No 36) [2016] NSWSC 718.
Wu v The Queen (1999) 199 CLR 99 at 128; [1999] HCA 52 at [81].
The case concerned a predecessor to the current sections of the Jury Act but, in practical terms, the provisions are the same.
Jury Act 1977 (NSW), s 53B(d).
Jury Act 1977 (NSW), s 53C(1)(a).
[3]
Amendments
16 March 2022 - Publication restriction amended.
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Decision last updated: 16 March 2022