Supreme Court New South Wales Medium Neutral Citation: R v Krivosic [2021] NSWSC 583 Hearing dates: 24 May 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: The Crown's application that the absent juror be discharged is refused. Catchwords: CRIMINAL LAW – jury trial – sick juror – application to discharge juror – lost days – whether further delays would occur – application refused Legislation Cited: Jury Act 1977 (NSW), ss 22, 53B(d) Cases Cited: Mei Qin Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 Category: Procedural rulings Parties: Regina (Crown) Marko Krivosic (Accused) Representation: Counsel: M England with B Page (Crown) N Steel (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Jamieson Criminal Law (Accused) File Number(s): 2018/228553 Publication restriction: Nil Judgment 1. HIS HONOUR: Today is Monday of the fifth week of a criminal trial originally scheduled to last three weeks. There has been a significant loss of hearing days so far as the result of juror absences caused by illness. I have referred to this in an earlier judgment concerned with an application to discharge a juror: see R v Krivosic [2021] NSWSC 535. 2. The sheriff informed me this morning that another juror has called in sick. This juror has previously been absent as the result of illness. I have not so far been provided with a medical certificate that describes either the nature of the illness or whether the juror will be fit for jury service tomorrow. I have been informed that such a certificate will be available this afternoon. I consider that situation to be unsatisfactory. 3. The Crown has applied in these circumstances that this particular juror be discharged pursuant to s 53B(d) of the Jury Act 1977. That application is opposed by the accused. 4. Last Friday, I gave the jury a majority verdict direction. If I were to discharge the jury in question, it would be necessary to give the remaining 11 jurors a further majority verdict direction. I note in this context that there has been no indication of any sort from the jury about their progress since the majority verdict direction was given. The jury were, however, permitted at their request to leave after lunch last Friday in order that they might return this morning with what was described in a jury note as "clear minds". It follows that they have not so far, having regard to the absence of one of their number, been able to resume deliberations with that clarity of thought. 5. The Crown has submitted that the inconvenience to the 11 jurors here today is a significant factor to be considered and that I should determine the present dispute with that in mind. Mr Steel for Mr Krivosic has emphasised on the contrary that the fact that a discharge of this juror would reduce the number to only 11 jurors means that the s 22 consideration would have to take account of not merely the loss of a right to be tried by 12 jurors but the potential loss of a depleted right to be tried by 11, as the result of the associated possibility of a majority decision of only 10. 6. A concern about the loss of a right to be tried by a jury of 12 was given recognition by McHugh J in Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [28] as follows: "But no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than 12 is a denial of a long-standing right of those tried for serious crime under the common law system. Given the mandatory terms of s 19 of the Jury Act, some positive reason, beyond the death or discharge of a juror, must exist for the judge to make the order that the trial continue with less than 12 jurors." 1. Although I am not presently considering the exercise of a discretion pursuant to s 22 of the Jury Act, it is inevitable that any decision to discharge a juror will be informed by the prospect that Mr Krivosic will be confronted with the denial of the long-standing right to which McHugh J was referring if a discharge were ordered. I note in this respect that neither the Crown nor Mr Krivosic has indicated any enthusiasm for a discharge of the jury as whole at the present stage of the proceedings. The jury has been deliberating since 2.30pm seven days ago and have obviously, or at least apparently, proceeded upon the basis that they should strive to reach a majority verdict if at all possible. 2. Mr Steel has also emphasised that the evidence is complete, counsel have given their closing addresses and I have summed up. For the sake of what is hopefully the loss of only one more day, his preference is that the jury as presently constituted should not be deprived of the opportunity to reach a majority verdict of 11, especially after my recent directions about this, following which they continued to deliberate. Put another way, even though the jury's original note concerning their inability to reach a unanimous decision had a distinctly pessimistic flavour suggesting that they would never agree, they did not respond to my direction with an immediate communication to say that a majority verdict of 11 of them was a similarly forlorn prospect. 3. It is therefore preferable to proceed with all 12 jurors. In my view, the Crown's application to discharge the absent juror should be rejected. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2021