Supreme Court New South Wales Medium Neutral Citation: R v Weaver (No 12) [2022] NSWSC 623 Hearing dates: 12; 13; 14; 19; 20; 21; 22; 26; 27; 28 April; 2; 3; 4 May 2022 Date of orders: 4 May 2022 Decision date: 04 May 2022 Jurisdiction: Common Law Before: Campbell J Decision: The juror referred to as juror 15 is discharged from further service on this jury. Catchwords: CRIMINAL PROCEDURE – trial – jury – discharge of individual juror Legislation Cited: Jury Act 1977 (NSW), ss 22, 53B, 53C Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Regina (Crown) Scott David Weaver (Accused) Representation: Counsel: B. Costello (Crown) A. Evers (Counsel for the accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2019/406492 Publication restriction: Publication restriction lifted at the end of the trial extempore Judgment (revised) 1. I will just give some short reasons because the discussion from the transcript will be obvious enough. But this is effectively the fourth week of the trial of Mr Weaver for the murder of Mr White. There have been short weeks because the trial commenced with legal issues in the week leading up to Easter, and there have been three public holidays since. There has been some other loss of time in terms of parts of days here and there because of the lateness or non-attendance of witnesses of were expected. But essentially the trial has proceeded smoothly, and we are now in the shadow of the close of the Crown case. 2. Yesterday, a juror, who has been referred to as juror 15, rang in sick. That juror informed the sheriff that he had undertaken a rapid antigen test which returned a negative result. I interpolate that all the jurors were tested as a matter of routine on Monday and each, of course, returned a negative test. After consultation with counsel and in the hope that the ailment would be temporary, I adjourned the trial yesterday in the hope that the juror would be well enough today. 3. The sheriff received a message from the juror this morning to the effect that although he had not yet undertaken another RAT, he was certainly too unwell to travel to court and to serve on the jury today. I have no medical evidence of the nature of the juror's condition, and I have no prognosis. In a long trial like this, it may be that if there could be confidence that the juror would return to service tomorrow, another adjournment would be appropriate. But I have no reliable information about that. I also observe that I have an expanded jury of 15 which remained intact until this juror's illness. If the juror is to be discharged, there will remain 14 which, in any event, will have to be reduced to 12 for the verdict jury before the jury retires to consider its verdict. The situation is governed by the provisions of s 53B of the Jury Act 1977 (NSW), and in particular para (a). 4. I do not have evidence or reliable information before me which enables me to form the opinion that the juror has become so ill as to be likely to become unable to serve as a juror before the jury delivers their verdict. However, given the age in which we live and the continuing circulation of the coronavirus in our community, and having regard to the juror's own description of his symptoms this morning, I am of the opinion that the juror has become so ill as to be a health risk to other jurors with whom he is serving. 5. The jury here in Newcastle are sitting in the jury box and, therefore, in close proximity to one another. They wear masks all day in accordance with the Court's protocol, but their close proximity in court and in the jury room, masks notwithstanding, persuade me that there is a health risk to other jurors and I should, in those circumstances, exercise the power I have under s 53B to discharge the juror. I order under s 53B of the Jury Act that the juror referred to as juror 15 is discharged from further service on this jury. 6. During the course of the discussion with counsel, I raised the question about whether the occasion had arisen for the discharge of the whole jury under s 53C given the discharge of juror 15. It is not submitted either by the Crown or by Mr Evers for the defence that continuing the trial with the remaining expanded jury of 14 gives rise to any risk of a substantial miscarriage of justice, and it is obvious that s 22 of the Jury Act is not infringed. 7. I agree that there is no risk of substantial miscarriage of justice. A substantial reason for the liberalising of the circumstances in which a court was empowered to empanel an expanded jury of 15 was the realisation in the current climate that there was likely to be a higher attrition rate of jurors than historically was the case given the public health risk. It seems that an uplift in the need to discharge a juror on the grounds of ill health was considered when the regulation was amended to facilitate the smooth operation of the administration of criminal justice, and I repeat I am not satisfied that either of the conditions which must arise before the whole jury can be discharged under s 53C has arisen, and therefore I direct that the trial continue with the reduced expanded jury. ********** 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: 19 May 2022