Supreme Court New South Wales Medium Neutral Citation: R v Lupton (No 7) [2022] NSWSC 157 Hearing dates: 17 February 2022 Date of orders: 17 February 2022 Decision date: 17 February 2022 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) Juror number 01441009 is discharged (2) Trial to continue with a reduced number of jurors Catchwords: CRIMINAL LAW – trial conducted during pandemic – whether individual juror should be discharged – where juror "household contact" with person tests positive for COVID by PCR test – further delay of trial not in the interests of justice – whether continuing trial with 13 jurors likely to cause substantial miscarriage of justice Legislation Cited: Jury Act 1977 (NSW) ss 53B, 53C and 55G Cases Cited: R v Lupton (No 4) [2022] NSWSC 37 Category: Procedural rulings Parties: Regina Jay Lupton Representation: Counsel: G Harrison (Regina) A Webb (Lupton) Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Lupton) File Number(s): 2020/73934 EX TEMPORE Judgment (reVISED) 1. This morning it was brought to my Associate's attention that one of the jurors in the trial of Mr Lupton called in to say that their partner has tested positive via a PCR test and that the juror is self-isolating as a household contact under the New South Wales Health Regulations requiring seven days of isolation. That information is contained in an email dated 17 February 2022 at 8.54am. 2. A similar situation arose on 25 January 2022, at a much earlier stage of the trial. In that case I published a judgment, subject to publication restrictions at the time of this judgment, because the trial continues. [1] 3. The question in this case is whether the juror should be discharged pursuant to the provisions of the Jury Act 1977 (NSW). 4. As I did in Lupton (No 4), I take the view that the juror, for "any other reason" not mentioned in s 53B, is unable to perform the functions of a juror at this stage and that the juror should not continue to act as a juror. [2] I propose, with the consent of both parties, to exercise my discretion under that section to discharge the individual juror. 5. It is unnecessary, given the concurrence of the parties, to articulate the reasons to any great extent, but the reality is we are approaching the end of the fourth week of the trial. The jury yesterday heard the address of the Prosecutor and the commencement of the address of the learned counsel for Mr Lupton. Counsel for Mr Lupton will continue his address today. The expectation is that the jury will retire to consider its verdict tomorrow. Delaying the trial further would be not in the interests of justice. The reality is that we empanelled a jury of 15 in order, amongst other things, to safeguard against the possibility of getting the numbers so low that we would have to discharge the entire jury. As noted, a juror has already been discharged for similar reasons. Given the stage the trial has reached, I think the exercise of the discretion to discharge what would be the fourteenth juror is inevitable and appropriate, so I propose to discharge the juror who has the number 01441009. 6. The parties also agree that there will be no substantial miscarriage of justice to continue the trial with a lesser number, that is thirteen jurors. I propose, pursuant to s 53C, to continue the trial with the reduced number. It is likely that tomorrow, at the very end of my summing-up, a ballot will be held to reduce the number to twelve, that twelve comprising what the Jury Act describes as the "verdict jury". [3] No substantial miscarriage of justice will be occasioned either to the prosecution or to Mr Lupton in continuing the trial with thirteen on the second last day of the trial proper, subject to deliberations. 7. The orders I make are: 1. The juror 01441009 is discharged. 2. The trial is to continue with a reduced number of jurors, namely 13. ********** Endnotes 1. R v Lupton (No 4) [2022] NSWSC 37. 2. See Jury Act s 53B(d). 3. See Jury Act s 55G(1). 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