Supreme Court New South Wales Medium Neutral Citation: R v Kilincer (No. 5) [2022] NSWSC 1732 Hearing dates: 22 August 2022 Date of orders: 22 August 2022 Decision date: 22 August 2022 Jurisdiction: Common Law Before: Wilson J Decision: 1. Order discharging juror S pursuant to s 53B(a) of the Jury Act. Catchwords: CRIME – trial – murder – juror infected by COVID-19 – whether juror should be discharged – whether trial should be adjourned pending recovery of juror Legislation Cited: Jury Act 1977 (NSW) Category: Procedural rulings Parties: Regina (Crown) Kubilay Kilincer (Accused) Representation: Counsel: B Hatfield (Crown) E Ozen SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Abbas Jacobs Lawyers File Number(s): 2020/30002 Publication restriction: Nil Ex TEmpore JUDGMENT (revised) 1. HER HONOUR: This morning, on what is the 14th day of the trial of the accused on a charge of murder, the Court has received information that one of the 12 jurors, Juror S, yesterday returned a positive result on a rapid antigen test for the COVID‑19 virus, and is thus required now to isolate for seven days. On a best-case scenario, if the juror recovers within the period of mandatory isolation, juror S would be able to return to the court to continue work as a juror next Monday, 29 August 2022. 2. The position of the Crown is that the COVID positive juror should be discharged and that, having made that decision, the Court will then turn to s 22 of the Jury Act and determine that the trial should proceed with the 11 jurors who are currently fit and well and able to attend their duties. 3. The accused takes a contrary position and submits that, to give him the best chance of a jury of 12 jurors, the Court should adjourn the trial for the period of one week to permit the unwell juror to return to health and presumably be well enough to return to jury duties on 29 August 2022. It is the accused's submission that if the Court were to delay the trial by one week little would be lost in terms of the overall estimate of the trial, the trial having proceeded at the outset with an estimated duration given to the jury panel of about eight weeks, and an expectation that it would finish in six weeks. The trial having proceeded rapidly would still complete well within that timeframe, assuming there were no further unforeseen delays, and there would be no real risk of other jurors becoming unavailable due to commitments falling outside the estimated period of the trial. 4. It is the accused's submission that his position is best preserved if he has the benefit of the views of 12 jurors as opposed to what would be, at present, 11. Mr Ozen of senior counsel points out that it is impossible to know what could happen in this forthcoming week; whether, for example, if the Court were to proceed today, further jurors could become infected with the virus, or for some other reason become unavailable to attend their duties, and thus, it may be that the Court would be reduced to serving with a jury of even fewer than the 11 that would be available with the discharge of juror S. 5. The question, then, for the Court is whether the trial should be delayed by one week to permit juror S to return to duties, on the assumption that that person's health improved sufficiently to permit that course; or, whether the juror should be discharged because of his or her infection with a transmissible virus, with the Court then considering the position under s 22 of the Jury Act. 6. It is, as is submitted for the accused, something of a crystal ball gazing exercise to try to determine what is the best course to follow. It cannot be known, as is submitted, whether, if the trial proceeds, some other juror or jurors may not be affected by illness or some other misadventure such as to make them unavailable for jury duty. Equally, it cannot be known, if the Court adjourns for the period of a week to permit juror S to return to duties, whether in that week other jurors might be exposed to the virus going about their ordinary day to day business in the community, and the Court still be in a position of having the prospect of a jury of less than 12. These are simply unknowable considerations. 7. Given that they are considerations which can only be guessed, I have considered the issue of the accused's position, whether he is better served by a jury of 12 in the overall context of the ordinary position that justice should not be delayed if possible and that, where there is delay, there is, of course, cost. 8. There is no longer an entitlement to a jury of 12. The enactment by the Parliament of a provision to permit a court to continue to hear a trial with less than 12 jurors is evidence of that. I accept that the more votes, as it were, that an accused person has, the greater is the prospect that, at the very least, there might be disagreement amongst 12 jurors, and thus, with a number reduced below 12, the prospect of at least disagreement amongst the jurors as opposed to the return of an adverse verdict of guilty is perhaps more likely. That is a benefit to an accused person. 9. However, in the context of a continuing pandemic, that benefit has to be weighed in light of the Parliament's clear intention that juries will continue to hear trials even though the number of jurors falls below 12; with the need for the course of justice to proceed as quickly and expeditiously as it can; and, although it is a much lesser consideration, with the issues of the costs to the justice system and the community of delay. 10. Ultimately, in that weighing exercise, I have concluded that the interests of justice are best served by the trial proceeding expeditiously, acknowledging that we simply cannot know what will happen in the next week or two and whether further jurors will become unavailable for duty. 11. Having reached that view, it is the decision of the Court that juror S will be discharged. The Jury Act provides for this exact position where a juror has become ill so as to be a health risk to other jurors or persons present in the courtroom at the trial. Section 53B(a) is the appropriate provision, and I propose to discharge juror S pursuant to s 53B(a). ********** 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: 15 December 2022