R v Sun

The Legislation

1. The Public Health (COVID‑19 Restrictions on Gathering and Movement) Order 2021 is subordinate and under the Public Health Act 2010. I have not gone back to the empowering legislation. The order includes in Part 2 restriction on gatherings and use of premises, which presently confines the number of persons in premises to one person per two square metres or 25 persons, which is the upper limit. This has been modified to 1.5 metres, I think, but in any event, when the order in its original form was extant, the Court had access to premises over the road from this complex so that use could be made of larger rooms, which meant that 15 people could occupy a space they might otherwise not have been able to occupy in these jury rooms. After the decision was made to reduce the separating distance to 1.5 metres there was no need to hold those rooms, but whoever had granted that accommodation to the Court has since taken it back leaving only juries of 12 to occupy the jury rooms in this complex.
2. My reading of the order was that we, as the Court, are exempt under Sch 2. Exempt gatherings include, in item 7, "A gathering at a Court or tribunal". Thus, I went forth at 4 o'clock yesterday with both of my guns blazing, anticipating that I could put the executive back in its place. I was soon put to rest in that regard, because there is an agreement or arrangement entered between the heads of jurisdictions, including the Chief Justice and the heads of the various divisions of the Supreme Court and of the other New South Wales Courts, including this Court, to abide by the restrictions regardless of the exemption that is available under the legislation.
3. I am administratively I am bound by that determination.
4. There was consultation yesterday afternoon with various individuals to identify precisely the extent of the restriction; however, at the conclusion of those consultations and further discussion with the list judge here who was communicating at the same time with the Chief Judge it seemed to me that I would have no option but to discharge the entire jury. I asked my Associate, because it was well after 4 o'clock, to communicate with the parties via email to advise of that proposal. In the meantime there was some further review of legislation and authority undertaken. Counsel for the accused responded in the following terms: "1. We do not see how the Court's administrations compliance/non‑compliance with any government regulations which it is not required to comply with in any event has any relevance or bearing on the deliberations of this jury in this matter or potentially prejudicial, such as ‑ potentially prejudices such deliberations in any way. The Court is not required to abide by such a regulation, as you acknowledge in your email. A new jury is, therefore, not required to abide by such regulations. There is no practical utility or legal necessity to have a new jury comply with such requirement. There is also no evidence that noncompliance with such a requirement that is not required has prejudiced this jury in this matter in any way. This, therefore, cannot be a sufficient basis to discharge the jury. We do not object to placing the present jurors in a room in which the government's social distancing requirements, which the Court is not obliged to observe, may be observed. A new jury will, in any event, have to be placed in one of the other rooms that are available to this Court. There is, therefore, no added utility achieving for the safety of jurors or the community from empanelling a new jury who will be placed in the same rooms available to the Court for these jurors."
5. The Crown responded, noting the email at this stage.
6. In court the Crown said their response was an acknowledgement before the email from the accused's counsel in response my Associate's email, upon the expectation was I would discharge the jury, with a further jury to be empanelled the following Monday. The Crown commented that one could not simply discharge three of the 15 jurors empanelled.
7. I indicated that I was sympathetic to what was written by Mr Mando in the email as presently informed. This was a qualified view, because I had not gone back to the source legislation. It might have been that there is a strong argument for the Jury Act 1977 to be not overridden by the subordinate legislation under the Public Health Act 2010, but I did not know the answer to that question. It would seem to me, bearing in mind what has been said about the accused being entitled to a trial according to law, regardless of what the administrative arrangements were from the executive to provide facilities. If they do not provide the facilities, that could not burden the accused and it could not burden the Crown, given the responsibility of bringing these matters to Court. The Court has an obligation to provide through the administration, I would expect, facilities for the conduct of the proceedings. The fact that they have not done so and are unable to do so raises difficult questions.
8. That said, there is required an analysis of what power I have to discharge in the absence of an application to do so. The Jury Act in s 42 provides for pre‑emptory challenges. Section 19(2) of the Act provides that, "Before a jury is selected in criminal proceedings in the Supreme Court or the District Court, the Court may order that up to 3 additional jurors be selected," and there are three paragraphs in subs (2) specifying matters of which the Court should be satisfied before allowing three additional jurors to be empanelled.
9. First is, "That the trial of the proceedings is of a kind prescribed by the regulations." This trial is, because the estimate was at least four weeks.
10. The next is that the selection of the additional jurors is an appropriate means of ensuring that there will be sufficient jurors remaining on the jury when the jury is required to consider its verdict, and appropriate facilities to accommodate the additional jurors are available. Because of the way the conduct of the matter has evolved, particularly in recent times, I was concerned that there might be an overrun of such magnitude that there would be jurors concerned about being retained longer than they ought or than they anticipated. The estimate of the trial was initially somewhere around about three weeks with the issues confined. This increased to about six weeks once 38 witnesses were required to be present to give evidence. This was ameliorated with the further advice that there was only something like 19 witnesses required. Even then, 19 witnesses in the trial could have at least the risk of the trial running over a four‑week estimate, depending upon the pursuit of the issues undertaken in cross‑examination.
11. As to the appropriate facilities to accommodate the additional jurors being available, emails were sent to the jury management people and we were told, by implication at least, that 15 jurors will be suitable and they took steps to facilitate a panel that would be available for that number to be selected, allowing for four peremptory challenges for each party, with the jurors advised that the estimate was four weeks.
12. We are at this situation at the moment where we have a conflict between two legislative schemes. I can imagine that those responsible for administration are very concerned about the risk that somebody could be infected in this process.
13. This brings me now to s 53B, discretionary discharge of an individual juror. "The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if - 1. 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 2. 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 3. a juror refuses to take part in the jury's deliberations, or 4. 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.
14. Although it speaks in singular terms with regard to "a juror", at least three of these jurors in the circumstances that I have before me are, on present arrangements, unable to continue as a juror.
15. I consider that the width of the discretion that is included in this section in paragraph (d) is such that I could exclude three members of the jury under this provision, with an appropriate formula to adopt for that process. There is already one provided in s 55G which could be employed for the purpose of reducing this jury to 12. If that is not a view that is favoured or accepted by the parties, and if the parties are not willing to consent to that process, though it is one that is available to me, it follows in my view that I shall have no choice but to discharge the whole jury. I would then need to stay the proceedings to allow, if it was intended, an appeal to be lodged pursuant to s 5G Criminal Appeal Act 1912, which provides for an appeal against the discharge of the whole jury. This would then require the Court of Criminal Appeal either to affirm or vacate the decision, and if it vacates the decision, to make some other decision instead of the decision appealed against. That would include, I expect, a decision to return the matter for trial before a jury of 12 because of the circumstances that prevail here, or to be continued at some location where there is a larger venue. It seems to me, though, that is an inefficient course to take in the circumstances.
16. The other point that I need to bring to attention is the decision of Barber v The Queen; Zraika v The Queen [2016] NSWCCA 125, which was a decision from R S Hulme AJ. At para [49]: "[I]n all but exceptional cases, a judge who is minded to discharge a juror or a jury, over the opposition of one party, should stay his or her decision to allow an application to be made to this Court, if so requested."
17. That was the subject of consideration in R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135, which approved the decision of the trial judge to adjourn the proceedings for a short time to allow the decision to be tested in the Court of Criminal Appeal, applying what was said in Barber v The Queen; Zraika v The Queen (ibid).
18. So it would seem to me, having analysed that as I have done, which is an imperfect and incomplete analysis I would confess at this stage, that the option that is most attractive is the course I have suggested, with a ballot to extract three of the jurors from the present jury and excuse them from further service.

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