Wu v The Queen [1999] HCA 52

High Court of Australia Gleeson CJ McHugh, Kirby, Hayne and Callinan JJ Wu v The Queen (S22/1999) [1999] HCA 52

Summary Criminal law - Practice and procedure - Jury - Failure of juror to attend due to reported illness - Juror discharged by trial judge - Trial continued without juror - Whether trial judge erred in discharging juror - Whether judge's power or discretion miscarried in the terms in which he exercised it - Whether juror incapable of continuing to act - Whether the decision to discharge a juror and the decision to continue with fewer than 12 jurors involve separate considerations. Jury - Criminal trial - Juror discharged for reported illness - Whether the decision to discharge a juror and the decision to continue with fewer than 12 jurors involve separate considerations. Words and phrases - "incapable of continuing to act". Jury Act 1977 (NSW), ss 19, 22. ORDER Appeal dismissed

Cur adv vult

The following written judgments were delivered: —

30 September 1999 Gleeson CJ and Hayne J.

1. The appellant, Mei Qin Wu, was indicted in the District Court of New South Wales on counts of kidnapping and attempted murder and two counts charged in the alternative to the counts of kidnapping and attempted murder. A jury was empanelled and the trial commenced.

2. On the tenth day of the hearing the trial judge discharged one of the jurors and the trial thereafter proceeded to verdict of the jury constituted by the remaining eleven jurors. The appellant contends that the trial miscarried because of these events. It is as well, therefore, to describe the course of events that preceded the juror's discharge. On the morning of the tenth day of hearing the trial judge said to counsel (in the absence of the jury):

You have heard the news I suppose. You two might not agree with this, or one of you might not, but I am tempted to discharge her. I will hear you both fully on this.