Supreme Court New South Wales Medium Neutral Citation: R v Godfrey (No 3) [2023] NSWSC 1314 Hearing dates: 21 March 2023 Date of orders: 21 March 2023 Decision date: 21 March 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: The jury is discharged in accordance with s 53C(1)(a) of the Jury Act 1977 (NSW). Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury – where accused submits he is entitled to a jury of twelve – COVID-19 considerations – where sensitive imagery in evidence creates risk of loss of jurors – whether risk of substantial miscarriage of justice Legislation Cited: Jury Act 1977 (NSW), s 53C(1)(a) Category: Procedural rulings Parties: Rex Connor Norman Godfrey Representation: Counsel: M Hay (Rex) M W Smith (Accused) Solicitors: Office of the Director of Public Prosecutions (Rex) Grover Law (Accused) File Number(s): 2021/93122 Publication restriction: None REVISED EX TEMPORE Judgment 1. Over lunch on the first day of the trial, after the jury had been empanelled and after I had made introductory remarks to them, I was informed by the court officer that one of the jurors wished to be discharged because he realised that he wished to attend university on Thursdays. I asked the court officer to obtain a note from the juror. I received a detailed note from the juror as to why he had come to that view and the reasons why he had not put his hand up when given ample opportunity to do so before the jury was empanelled. 2. Whilst ordinarily I would not discharge a juror simply because they decided, after the opening of the trial, that he or she wanted to go to work or university or something similar, having regard to the terms of the note, I have a real concern that, if I do not discharge the juror, he may not give his full attention to the task and may become somewhat aggrieved by being forced to be here. I do have difficulty accepting the explanation by the juror as to the reasons why he has now decided he wants to be excused, and that informs my decision that I must discharge that juror. 3. The Crown submits that, in circumstances in which there were 14 jurors empanelled, the trial could proceed with 13 jurors. Of course, only 12 will enter the jury room to deliberate at the conclusion of the hearing. 4. Mr Smith, on behalf of the accused, submits that, unfortunate as it is, it will be necessary to discharge the whole jury because there is now a real risk brought about by: 1. the continuation of COVID-19 factors; and 2. the need for the jurors in this matter to view very distressing imagery, meaning that at some stage during the trial, one or more jurors might find it difficult to continue with their role as jurors, that the number of jurors in the jury will, at some stage, drop below 12. 1. Before I discharge the whole jury, it is necessary that I be satisfied that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, as set out in s 53C(1)(a) of the Jury Act 1977 (NSW) ("Jury Act") 2. Mr Smith submits that the accused is entitled to be tried by a jury of 12 and if there is a substantial risk that by the end of the trial there will not be a jury of 12, as I understand it, that could result in a substantial miscarriage of justice. 3. Again, ordinarily, I would not be inclined to discharge the whole jury because at the commencement of the trial one of the jurors asks to be discharged. There are still 13 jurors. However, in this particular case, it is clear that the jurors will be asked to review not once but, as Mr Smith said, perhaps four times, closed-circuit television ("CCTV") footage which the Crown alleges shows the accused committing murder. In other words, the jury will be asked to look closely at not just photographs or reconstructions, but the actual event which is said by the Crown to give rise to the charge against the accused. 4. The Jury Act was changed, of course, as a result of COVID-19. Whilst COVID-19 is not the same societal factor that it was two years ago, it remains a concern in jury trials such as this. One of the things which I was about to inform the jury of was that we have 14 jurors in this matter, instead of the usual 12, to deal with the risk posed by COVID-19. 5. That is, it is necessary for me to instruct the jury members that if they feel sick or have symptoms they should not attend because, whilst performing an important civic function, other jury members are entitled to be protected from the risk of COVID-19. That remains a factor. In the end, it is the reason that we now empanel more jurors than ultimately will be necessary. 6. In my view, the COVID-19 risk, coupled with the particular risk in this case of jurors finding the imagery too distressing to continue to participate, creates a substantial risk that we may not make it to the end of the trial with 12 jurors. In these circumstances, I am satisfied, having regard to s 53C(1)(a) of the Jury Act, that the jury should be discharged. It is, of course, a most unfortunate situation, and I will need to say something when discharging the jury about that but, in my view, it is necessary to ensure a fair trial and ensure there is no substantial miscarriage of justice. I have in mind, of course, that we can empanel a new jury tomorrow, so there is only a short delay. 7. In those circumstances, I intend to discharge the whole 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: 03 November 2023