Supreme Court New South Wales Medium Neutral Citation: R v Patterson (No 1) [2024] NSWSC 394 Hearing dates: 10 April 2024 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Juror A is discharged. Trial is to continue. Catchwords: CRIMINAL LAW – trial – murder – jury – 13 jurors – juror note indicating their child is unwell – juror discharged – trial to continue Legislation Cited: Jury Act 1977 (NSW0 Category: Procedural rulings Parties: Rex (Crown) Jason Patterson (Accused) Representation: Counsel: K Ratcliffe (Crown) MP King (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2021/327813 Publication restriction: Nil EXTEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: The trial of Jason Patterson commenced before me on Monday of this week when the jury was empanelled. It was determined on empanelment that a jury of 13 would be empanelled. The power to empanel more than 12 jurors arose as a result of the estimate of the trial which was in excess of two weeks. 2. Today is the third day of the trial and a note was received from Juror A in the trial which became MFI 19. That note indicated that the juror's four year old son had been sent home from day care, having been diagnosed with what was described as mouth and foot disease, which I take to be hand, foot and mouth disease. Enquiries indicate that that is a highly infectious disease, particularly amongst children. The isolation period is ordinarily in the order of 7-10 days. 3. The juror's son is today being cared for by the juror's husband. The juror has indicated that her husband is able to perform that task today but not beyond as a result of his work commitments. The result is that the juror will be required to stay at home and care for her sick child. 4. The trial is at a point where there is shortly to be something of a hiatus. It is expected that the evidence of various civilian witnesses and the officer-in-charge will be completed a short time into tomorrow. There will then be a break until Tuesday of next week due to the unavailability of the Crown's next witness, an expert witness, Professor Greenberg, who will give evidence in relation to the issues of mental health impairment and substantial impairment. 5. The result of that is that if the juror was able to resume her duties by Tuesday of next week, there would be some merit in not discharging her at this time but, rather, waiting. However, it seems to me to be optimistic to think that she will be available on Tuesday of next week, given what I have said as to the usual isolation periods. 6. Further, even if she were to be available, given the infectious nature of the disease there may be some concerns amongst fellow jurors as to her presence on the jury, having been exposed to the virus. 7. In the circumstances, it appears to me that the juror's need to care for her sick child is a reason within s 53B(d) of the Jury Act 1977 (NSW) which affects the juror's ability to perform the functions of a juror, such that she cannot continue to act, and accordingly, I have determined that the juror should be discharged. 8. The question arises as to the continuation of the trial. Section 53C provides a discretion to a discharge the whole jury or to continue on with the trial. At this stage, even with the discharge of Juror A, we have 12 jurors. The trial itself will be completed sometime in the next two to three weeks. Given the relatively short-estimated duration of the trial, and the current number of jurors, I am of the view that the trial should continue. ********** 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: 26 April 2024