Supreme Court New South Wales Medium Neutral Citation: R v Lupton (No 2) [2022] NSWSC 34 Hearing dates: 19 January 2022 Date of orders: 19 January 2022 Decision date: 19 January 2022 Jurisdiction: Common Law Before: Hamill J Decision: Order pursuant to s 19(2) of the Jury Act 1977 (NSW) that three additional jurors should be selected for the jury in this trial. Catchwords: CRIMINAL LAW - practice and procedure - empanelment of additional jurors - relevant considerations - difficulties in estimating length of trial - complications arising from health orders and pandemic - adequacy of facilities to accommodate jurors Legislation Cited: Jury Act 1977 (NSW) s 19(2) Jury Amendment (Additional Jurors) Regulation 2020 (NSW) Jury Act Regulations 2015 (NSW) Category: Procedural rulings Parties: Jay Lupton Regina Representation: Counsel: G Harrison (Regina) A Webb (Lupton) Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Lupton) File Number(s): 2020/73934 Judgment 1. On Friday 21 January 2022, 15 jurors were empanelled in the trial of Mr Lupton. 2. Section 19(2) of the Jury Act 1977 (NSW) provided that the Court may order that up to three additional jurors be selected if satisfied that: (a) The trial of the proceedings is of a kind prescribed by the regulations for the purpose of this subsection; (b) 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; (c) Appropriate facilities to accommodate the additional jurors are available. 1. The Jury Amendment (Additional Jurors) Regulation 2020 (NSW) came into effect on 3 July 2020, and amended the existing Jury Act Regulations 2015 (NSW). The amended regulation inserted the following clause: 4A Additional jurors in criminal proceedings For the purposes of section 19(2) of the Act, a trial of proceedings the duration of which is likely to be 4 or more weeks is prescribed. 1. The amendment changed the requirement that the trial have a minimum 3 month estimate before additional jurors could be empanelled. The change was calculated to address the disruption to jury trials, and the difficulty in bringing such trials all the way to verdict, resulting from the COVID-19 pandemic and the possibility that individual jurors might be discharged if they became unwell or may need to be absent from the trial due to health orders and court protocols requiring them to isolate. The amendment guards against the risk that that there will not be sufficient jurors at the conclusion of a trial to lawfully return a verdict. 2. Estimating the length of a criminal trial is always difficult. The unpredictable nature of the COVID-19 pandemic, and the current surge of cases of the Omicron and Delta variants within the community from which the jury pool was selected, increases that difficulty. When the case was before the list Judge, counsel for the accused (who is a vastly experienced Public Defender) was asked to confirm the three week estimate previously provided and he responded that he would allow four weeks. When I was considering whether to empanel additional jurors, both parties agreed that the true estimate for the trial was 4 weeks. By that time, there had already been an unexpected delay in the pre-trial argument because two of the lawyers had tested positive for COVID-19 and were required to isolate. 3. Despite taking all necessary precautions, current case numbers suggest it is likely that there will be positive cases in the people participating in the trial. The parties also agreed there will be delays because a number of witnesses will give evidence by audio visual link (AVL), in many cases because they have declined to undergo rapid antigen testing or have not been vaccinated. At the time I made the decision to empanel additional jurors, it was expected that nine witnesses would give evidence by AVL from a police station. 4. Based on all the foregoing factors, I came to the view - with the concurrence of the parties - that the duration of the trial would be four weeks or more. Accordingly, the trial was of a kind prescribed by the regulations: s 19(2)(a) of the Jury Act 1977. 5. I was also satisfied that selecting additional jurors was "an appropriate means of ensuring that there will be sufficient jurors remaining on the jury when the jury is required to consider its verdict": s 19(2)(b) of the Jury Act 1977. 6. The court in which the trial will proceed is one that has been reconfigured to accommodate additional jurors. The jury are adequately distanced across the jury box and in the public gallery situated behind the bar table. The jury have been allocated courtroom 2 in the King Street/St James court complex so any deliberation may also occur with adequate spacing and in accordance with other health and safety requirements. Accordingly, I concluded that there are appropriate facilities to accommodate the additional jurors, even allowing for safe social distancing: s 19(2)(c) of the Jury Act 1977. 7. For those reasons I was satisfied that an order pursuant to s 19(2) of the Jury Act 1977 should be made and the empanelment proceeded accordingly. ********** Amendments 21 February 2024 - Publication restriction removed 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: 21 February 2024