R v Williams (No. 10)

The jury were told that an expectant approach would be taken, and that commitments would be accommodated to the extent possible, and that this matter would be returned to when we have a better overview of the remaining length of the trial.

By 20 November 2025 some further discussion between counsel and the Court occurred. It was thought to be prudent to inquire with the jurors whether there was any prospect at all of their holidays being postponed. Discussion was had as to whether that should take the form of a questioning of the individual jurors in court, or whether it would be more appropriate, which was ultimately the view taken by the Court, that the jurors retain their anonymity, and the questions be posed to them privately.

Following the latter course, a handwritten note went in to the individual jurors posing two questions as follows: “Without any obligation or pressure: 1. Is there any flexibility to postpone the departure date of your overseas holiday? 2. If yes, are you willing to do so?” That note became MFI 331.

Responses were received later that morning, as follows; one juror, MFI 327, responded that there was no flexibility, that the holiday had been booked for a long time, that it involved connection with particular other overseas family members, and that the holiday was of seven weeks' duration, leaving on 30 November 2025. The other juror, MFI 328, responded that the departure date was 30 November 2025, there was no flexibility to change the holiday, multiple family members were involved, the holiday had been booked since early in the year, and that there was no flexibility to change any of the holiday booking.

I should add that both jurors had, in their first note, indicated that they had raised with the Sheriff's staff, when they were first gathered to be potentially empanelled, that they had these holidays booked and were reassured by staff that as the trial was estimated to take eight weeks they did not have to worry about a holiday as late as 30 November 2025 as being a concern.

Neither juror raised that matter with the Court after empanelling (on Wednesday 3 September 2025), and it was first raised in the notes I have already referred to on 12 November 2025.

Of course the Court wishes to maintain, until the end of the summing-up, the maximum potential jurors so that the chances of having a 12-person jury are high. In this case, it was debated on a number of occasions how best to manage this situation.

By the time of receipt of the jury notes, the Court had just that morning discharged two other jurors for health reasons, and so the jury, at that point, was already down to 13 from 15.

One option would have been to conduct a jury ballot at the close of the summing-up, which would have automatically reduced the jury from 13 to 12, with the prospect of the other two jurors, with their holiday obligations, then reducing the jury to 10, should discretionary discharge be given.

The Crown Prosecutor submitted that the best way to maintain the maximum number of jurors would be to release the two jurors, given the contents of their notes of 20 November 2025, guaranteeing 11 jurors to proceed with.

Counsel for the accused, Ms Carroll, wanted the Court to always take an expectant approach and was not prepared to accede to the discharge of the two overseas holidaying jurors any earlier, and even seemed to be maintaining that resistance today, although when the matter was last raised for debate, it was conceded after a short adjournment that the best way forward for the Court was to discharge the two overseas holidaying jurors. That leaves us with 11 jurors, after a now 13-week trial.

The very reason for empanelling 15 jurors to begin with is so that the odds of the accused being tried by a jury of 12 of his peers is protected to the extent possible.

It is unfortunate that the discharge of these two jurors have left us now with only 11, but the only other way this problem could have been approached, was to either insist the jurors cancel their family holiday, or to adjourn the proceedings for either four weeks, or seven weeks, to enable those jurors to continue to serve.

In the circumstances of a trial where the evidence finished the week before last and there have been delays due to other jurors' obligations and emergencies, I considered that to be utterly out of the question.

I chose to exercise my discretion under s 53B(d) of the Jury Act 1977 (NSW) to discharge each of those overseas holidaying jurors individually. I have done so on the basis that the family obligations, bookings and associated difficulties, meant that each individual juror's ability to perform the functions of a juror, would be so affected that each of them could not continue to act as a juror, even if they were ordered to persevere with jury service and be removed from their family holiday.

I considered that that would create disgruntled and upset jurors and that, in turn, would affect the functioning jury.

Separately, I concluded that the discharge of those two jurors does not give rise to a substantial miscarriage of justice now proceeding, in all the circumstances, with a reduced jury of 11.