Supreme Court New South Wales Medium Neutral Citation: R v Sharpe (No 3) [2021] NSWSC 33 Hearing dates: 2 February 2021 Date of orders: 2 February 2021 Decision date: 02 February 2021 Jurisdiction: Common Law Before: Bellew J Decision: (1) Pursuant to s 53B(d) of the Jury Act 1977 (NSW) Juror No 11 from panel 218 is discharged. (2) I direct the Sheriff to notify the juror in question of that order forthwith. (3) Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) I order that the trial continue with a jury of 11. Catchwords: PRACTICE AND PROCEDURE – Juries – Where juror raised issues about her capacity to serve following empanelment – Consensus between parties that order should be made discharging the juror in question – Where court not satisfied that there would be a risk of a substantial miscarriage of justice if the trial proceeded with 11 jurors – Orders made accordingly Legislation Cited: Jury Act 1977 (NSW) Cases Cited: Phan v R [2018] NSWCCA 225 R v WE (No 6) [2019] NSWSC 930 Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 Category: Procedural rulings Parties: Daniel James Sharpe – Accused Regina – Crown Representation: Counsel: K Ratcliffe – Crown T D Anderson – Accused Solicitors: Director of Public Prosecutions (NSW) – Crown Jennifer Chalker Lawyer – Accused File Number(s): 2019/215856 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. The accused in this matter has pleaded not guilty to an indictment alleging an offence of murder. His trial commenced on 1 February 2021 at which time a jury of 12 persons was empanelled. 2. In the course of the empanelment process I reiterated, on more than one occasion, that in the event that any member of the jury panel foresaw a difficulty, for any reason, in being able to serve as a member of the jury, he or she should approach me to raise the matter. In so doing, I made reference, on more than one occasion, to the necessity to err on the side of caution in that regard. I thereafter heard and determined a number of applications from members of the panel to be excused. 3. After my opening remarks following empanelment, the members of the jury were allowed to depart for the day. Following the Court's adjournment, I was informed by the Sheriff of an issue which had arisen in respect of one member of the jury. In order to put that issue in context, it is necessary for me to provide some short background. 4. Last week the Sheriff oversaw a process by which all members of the jury panel were brought to the Court in defined groups. Part of the purpose of that process was to attend to matters that would normally be addressed on the first day of a trial, but which are impeded to some extent by the current pandemic. Those matters included the members of the panel viewing an introductory video. At that time, the members of the panel were informed that the trial had an estimated length of five weeks, although after consulting with counsel, I informed the panel yesterday that the revised estimate was four weeks. The Sheriff advised me that when told of the five week estimate, one member of the panel indicated that she may have a difficulty in light of her hours of work. She was given the option to make an application to the Sheriff, there and then, to be excused. She responded by telling the Sheriff that she wanted to "get [jury service] over and done with." The Sheriff reiterated that in the event that she had a change of mind, it was open to her to raise the matter again prior to the trial. She was also informed that I would be likely to give the same indication on the first day of the trial. As set out above, I did so. As events transpired, this member of the panel was selected as a member of the jury. She did not make an application to me to be excused prior to being selected. 5. Following the adjournment of the proceedings yesterday, the Sheriff advised me that the member of the jury in question had become emotional in the jury room and had said that she could not commit to jury service in the present trial. She said that in order to fulfil her employment commitments she would be required to work until the early hours of the morning. She also told the Sheriff, somewhat remarkably, that one of her friends had told her that if any issue arose, she simply had to tell the Sheriff that "she wasn't doing it". 6. When that information was provided to me, I directed the Sheriff to have the member of the jury reduce what she had said to a note. I received that note this morning. [1] It is in the following terms: I work as an insurance fraud investigator. I have a current caseload of four files and was recently issued with one more case on Friday, and another one today. I am the only ACT investigator for my company and these files are the current investigations running in my area of operation. The hours of work are varied depending on the complexity of each investigation issued. The two current ones I had been recently issued, it is hard to say the extent of work or hours required for each investigation as I have not had a chance to speak with the insured to work out the breath [sic] of the investigation or what witnesses or primary persons of interest will be required to interview. I did mention a number of times on my first visit to the Court and empanelment process my current work commitment and that I work casually but am only paid for the hours that I work. I mentioned that I am paid as if I am self‑employed. I was told to complete the empanelment process and this is what I did. 1. In light of the latter part of that note, I need only say that no member of the jury panel could possibly have been under any misapprehension about the fact that it was open to make an application to me to be excused. To the extent that this member of the jury has attempted to assert that she is blameless for the situation which has now arisen, that is an assertion which I do not accept. In fact, I reject it. 2. After I received that note this morning, I was further informed by the Sheriff that at about 5.30pm yesterday she was telephoned by a person who identified herself as the mother of another member of the jury. The Sheriff informed me that the person who telephoned was abusive, and was critical of the fact that her daughter had been empanelled as a member of the jury, in circumstances where she had a young child who would now have to be cared for by someone else for the duration of the trial. Nothing further has eventuated from that conversation. Specifically, no member of the jury has made an application to be excused, nor has the issue been raised with the Sheriff. It follows that whatever complaint has been made in that regard has been made by someone other than the member of the jury herself. Neither the Crown nor counsel for the accused has suggested that I take should that issue any further, other than in the limited way I have set out below. 3. In light of the contents of MFI 1, counsel for the accused made application that the entire jury be discharged. Having made that application, counsel appeared to accept that properly articulated, his first application was one pursuant to s 53B(d) of the Jury Act 1977 (NSW) (the Act) that I exercise my discretion to discharge the individual member of the jury who had provided the note. The Crown did not oppose that application and in my view, it should be granted. The circumstances which have given rise to it are, of course, entirely unsatisfactory. They could, and should, have been avoided. Why, in the circumstances, the member of the jury did not make an application to be excused prior to being selected is frankly beyond belief. However, on the evidence before me she is clearly preoccupied with her employment which she does not wish to relinquish for any period of time. There is also some indication that she will be working until the early hours of the morning in order to fulfil her contractual commitments, following which she would be required, perhaps after limited sleep, to attend Court and concentrate for several hours on the evidence which is being given in the accused's trial for the offence of murder. Those circumstances may be productive of unfairness to both the Crown and the accused. 4. Section 53B of the Act confers a wide discretion. In particular s 53B(d) confers a discretion to discharge a juror in the event that it appears to the Court that for any reason affecting the juror's ability to perform the functions of a juror the juror should not continue to act as a juror. For the reasons that I have canvassed I am satisfied that the discretion conferred by that section should be exercised and that the member of the jury should be discharged. I propose to make a formal order doing so in a moment. 5. On the assumption that I was prepared to make that order, counsel for the accused made a second application, namely that the entire jury be discharged. That involves a separate determination pursuant to s 53C of the Act which (in part) provides as follows: 53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If a juror dies or the Court or coroner discharges a juror in the course of a trial or a coronial inquest the Court or coroner must‑ (a) discharge the jury if the Court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice; or (b) if of the opinion that there is no such risk and subject to s 22 order that the trial or coronial inquest continue with a reduced number of jurors. 1. Although the heading to s 53C makes reference to a discretion, ss 53C(1)(a) provides that I must discharge the jury if I am of the opinion that to continue the trial with the remaining 11 jurors would give rise to the risk of a substantial miscarriage of justice. If I am of the opinion that there is no such risk, I must order that the trial continue with a reduced number of jurors. 2. In support of his application that the entire jury be discharged, counsel for the accused expressed a number of what he described as "concerns". He pointed out that the estimated length of the trial was four weeks. He expressed concern that if the jury was not discharged, and in circumstances where the Crown had not yet opened her case, the trial would effectively be commencing with a jury of 11 and not 12. He expressed concern that these circumstances could give rise to a risk of a further reduction in numbers. Counsel referred specifically to the issue arising from the phone call received by the Sheriff yesterday afternoon from the mother of one of the members of the jury. Whilst he did not suggest that I should pursue that matter per se, he submitted that there were obviously issues impacting upon that individual member of the jury which had the potential to give rise to problems in the course of the trial. Counsel relied upon all of these matters in support of a conclusion that to continue the trial would give rise to the risk of a substantial miscarriage of justice. However, he accepted that all of those matters were necessarily speculative at this stage. 3. The Crown supported the application. When I asked the Crown to articulate how it was suggested that the matters upon which counsel for the accused had relied would allow me to form the opinion referred to in s 53C(1)(a), the Crown was not able to take the issue any further. However, the Crown did make reference to what was submitted to be the desirability of having, and the prima facie right of an accused to be tried by, a jury of 12. In this regard, the Crown made reference to the decision of the High Court in Wu v The Queen [2] to which I referred in R v WE (No 6). [3] 4. In Phan v R [4] Price J (with whom Hoeben CJ at CL and Fullerton J agreed) made the following observations regarding the power in s 53C: Section 53C(1)(a) of the Jury Act imposes an obligation on a trial judge who discharges a juror in the course of a trial, to discharge the jury if the judge is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. However, if the trial judge is of the opinion that there is no such risk, the trial judge is required to order the trial continue with a reduced number of jurors as long as the numbers do not fall below the statutory minimum in s 22 of the Jury Act. The opinion is to be formed on all of the material then available to the Court. 1. The determination I have to make is obviously one to be made now, on the basis of the evidence before me. Insofar as any concern stems from the fact of the phone call to the Sheriff to which I earlier referred, the juror in question has not raised any issue whatsoever. This is in circumstances where it is now 11 am and where the jurors assembled at Court about an hour and a half ago. Nothing has been brought to my attention which suggests to me, in any way, that any issue arises from the point of view of that particular member of the jury. There is no other evidence which conveys that slightest suggestion that there are likely to be issues impacting on the jury which might result in the number being further reduced to 11. Whilst I acknowledge the observations made in Wu, these were made prior to the inclusion of s 53C of the Act in its present form. 2. It follows that on the evidence before me I am of the opinion that there is no risk of a substantial miscarriage of justice if the trial continues with a reduced number of jurors and I propose to make an order accordingly. I will obviously inform the remaining members of the jury of the orders that I have made, and in doing so I will reiterate that they must not speculate on the reason(s) which led me to make them. 3. For all of those reasons I make the following orders: 1. Pursuant to s 53B(d) of the Jury Act 1977 (NSW) Juror No 11 from panel 218 is discharged. 2. I direct the Sheriff to notify the juror in question of that order forthwith 3. Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) I order that the trial continue with a jury of 11. ********** Endnotes 1. MFI 2. 2. (1999) 199 CLR 99;[1999] HCA 52. 3. [2019] NSWSC 930. 4. [2018] NSWCCA 225 at [122]. 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