Supreme Court New South Wales Medium Neutral Citation: R v Nancarrow (No 4) [2022] NSWSC 283 Hearing dates: 10 March 2022 Date of orders: 10 March 2022 Decision date: 10 March 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) Juror number 578-8 02848112 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 positive for COVID-19 – "juror's ability to perform the functions of a juror" – whether continuing trial with 10 jurors likely to cause substantial miscarriage – precarious situation of trial – need for further legislative reform – desirability of discretion in trial judge to empanel a greater number of jurors during pandemic Legislation Cited: Jury Act 1977 (NSW), ss 19(2), 22(a)(ii), 53B, 53C, 55F Jury Regulation 2015, reg 4A Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), cl 6, sch 1 Cases Cited: R v Nancarrow (No 1) [2022] NSWSC 243 Wu v The Queen (1999) 199 CLR 99 at 107; [1999] HCA 52 Category: Procedural rulings Parties: Regina Shane Nancarrow Representation: Counsel: J Stanhope (Regina) B Neild (Nancarrow) Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Nancarrow) File Number(s): 2019/242866 Publication restriction: Nil. Judgment 1. On 10 March 2022, the seventh day of Shane Nancarrow's trial for the murder of Paul Donald, it was brought to my attention by the local Sheriff Officer that the general Sheriff's Office Call Centre received a call from juror 578-8 02848112 that she had tested positive for COVID-19. The local Sheriff contacted that juror and made notes of the conversation which consist of the words, "Home test 7.30am positive. Sore throat, headache". The local Sheriff advised me that the juror told him she felt sick with those symptoms and decided to administer her own Rapid Antigen Test at home. She was required to self-isolate for seven days as a "diagnosed person", pursuant to cl 6 the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW). [1] 2. I brought the situation to the parties' attention and, following submissions, made orders (1) discharging the individual juror and (2) that the trial continue with a reduced number of jurors. Those orders were made with the concurrence of both the Prosecutor and counsel for the accused. I indicated that I would provide reasons later so that the trial could continue without further delay. 3. In R v Nancarrow (No 1), I detailed the circumstances of the trial, and the applicable case law and legislation. I made similar orders in similar circumstances. Both parties submitted that it would be appropriate in the circumstances for juror 578-8 02848112 to be discharged, on the same basis that a previous COVID positive juror was discharged in the course of this trial, on 4 March 2022. [2] 4. There were three differences in the factual circumstances. The first was that the juror discharged following the judgment in R v Nancarrow (No 1) was asymptomatic whereas the current juror is suffering from symptoms consistent with COVID-19 or one of its variants. The second was that the trial is now reaching its final days. The third is that, by the time of the discharge of the second juror, the trial was already proceeding with a reduced number of jurors. 5. The first matter referred to in [4] meant that the provision in s 53B(a) of the Jury Act 1977 (NSW) may be engaged, as well as the provision in s 53B(d). This was not the situation in R v Nancarrow (No 1). The fact that the current juror is actually sick makes it more appropriate to exercise the discretionary power to discharge the individual juror. 6. The third mater referred to in [4] means that the concerns about reducing the number of jurors from the traditional – "magic" or otherwise – number 12, explained in cases such as Wu v The Queen (1999) 199 CLR 99 at 107; [1999] HCA 52, are more potent. 7. Even so, I was of the view that the discretion to discharge the individual juror should be exercised. 8. The decision then to continue the trial with a jury of 10 was more difficult, but the position taken by both parties fortified me in my view that this was the correct exercise of the discretion under s 53C. I was satisfied that there was no risk of a substantial miscarriage of justice. 9. The fact that the jury has been reduced to 10 jurors has two other ramifications arising from the provisions of the Jury Act 1977 (NSW). The first is that the jury cannot be reduced further unless both parties to provide "approval in writing". [3] The second is that there can be no occasion for a "majority verdict" under s 55F. A majority verdict is defined in that section as: (a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or (b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned. 1. While the Parliament has made various legislative amendments to assist the courts in coping with the COVID-19 pandemic, the current situation is that the Judges are only permitted to empanel extra jurors under s 19(2) and the relevant regulations where the estimate of the trial is four weeks or more. [4] As I understand it, that period was reduced from three months to increase the number of trials to which s 19 could apply. In my view, consideration should be given to providing trial Judges with a broader discretion to empanel a greater number of jurors, especially while the numbers of COVID-19 cases in the community appears to be extremely high and unpredictable. The situation in the present trial is not atypical. With the jury reduced to ten members after only 7 sitting days (10 calendar days), the situation is precarious. 2. By the time of making the decisions to which this judgment relates, the parties had commenced their closing addresses. All being well, it was anticipated the jury would retire to consider its verdict on or by Monday, 14 March 2022. [5] This has been a relatively short murder trial, which has already been subject to COVID-19 related delays. The trial is approaching its conclusion. While neither decision was taken lightly, as I saw it at the time, all relevant considerations pointed in favour of exercising the discretions under ss 53B and 53C to discharge the individual juror and to continue the trial with a reduced number. ********** Endnotes 1. Sch 1 of the Public Health Order defines a "diagnosed person" as a person who "(b) has become aware the person has tested positive to COVID-19 as a result of a rapid antigen test". 2. See R v Nancarrow (No 1) [2022] NSWSC 243. 3. Jury Act 1977 (NSW), s 22(a)(ii). 4. Jury Regulation 2015, reg 4A provides: "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." 5. It did. 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