Supreme Court New South Wales Medium Neutral Citation: R v A (No 4) [2015] NSWSC 95 Hearing dates: 19 February 2015 Date of orders: 19 February 2015 Decision date: 19 February 2015 Jurisdiction: Common Law Before: Bellew J Decision: The application for discharge of the juror is refused. Catchwords: CRIMINAL LAW – practice and procedure – juror absent for two days due to illness – whether juror should be discharged Category: Procedural and other rulings Parties: Regina - Crown Representation: Counsel: Mr C Maxwell QC - Crown Mr W Terracini SC and Mr P Stitz - Accused Solicitors: File Number(s): 2013/194634 Publication restriction: Nil Judgment (EX TEMPORE – REVISED) 1. The trial of the accused has reached the stage where both the Crown and the defence cases closed on the 17 February, 2015. 2. On the morning of the 18 February 2015, when final addresses were to commence, I was advised by the Sheriff that one of the members of the jury had telephoned to say that he was ill and could not attend. In accordance with a direction from me, the Sheriff asked the member of the jury to provide a medical certificate setting out the condition from which he was suffering, and the likely period of his incapacity. 3. On the afternoon of 18 February 2015 I was informed by the Sheriff that a medical certificate had been received indicating that the juror in question would not be able to attend on the 18th February. The obvious inference from that certificate was that he was likely to be able to attend today, 19th February. Counsel were informed accordingly. 4. At that point I had not actually viewed the medical certificate in question. I had an opportunity to do so when I arrived at court this morning. The certificate (which has been marked MFI 20) states that the juror was suffering from "migraine" and would be "unfit for work from 18.2.2015 to 18.2.2015 inclusive". 5. I pause to observe two things: Firstly, the juror in question is the foreperson of the jury. Secondly, he was also absent due to illness on 11 February, 2015. The medical certificate pertaining to that absence, issued by a doctor within the same Medical Centre as that from which the most recent certificate was issued, indicated that he was suffering from viral gastritis, a condition obviously different to that which has caused his absence today. 6. Earlier this morning I was informed that notwithstanding the contents of MFI 20, the juror telephoned the Sheriff at about 9.30am and indicated that he remained unwell, and was not able to attend. He has been directed to attend upon his doctor to obtain a further medical certificate so as to provide some indication of when he will be fit to return. He apparently informed the Sheriff that he was confident that he would be able to attend tomorrow. All of these matters were communicated to counsel in the presence of the accused when the Court was convened this morning. 7. Seized of that information, the Crown sought a discharge of the juror. In support of that application, the Crown submitted that there was "no magic" in the figure of 12 and that it was important, in order to preserve the fairness and integrity of the trial, that there be not too great a gap between the closure of the evidence and the addresses. The Crown submitted that any greater gap than that which had already occurred would impact upon the jury's ability to properly analyse the evidence, and to properly have regard to such submissions as might be put to them. 8. The Crown also placed some emphasis on the nature of the condition from which the juror is presently suffering. It was submitted, in particular, that it is a condition which necessarily has a bearing upon a person's ability to (inter alia) concentrate. 9. Senior counsel for the accused submitted that at this stage I should decline the application, and should resume the trial tomorrow on the understanding that all 12 jurors would be present. In making that submission however, he made it clear that if the present situation prevailed tomorrow he would join in an application that the juror be discharged. 10. Senior counsel for the accused submitted that there was "magic" in the number 12, both historically and stemming from the provisions of the relevant legislation. In terms of the increasing gap in time between the conclusion of the evidence and the commencement of addresses, senior counsel pointed out that on the assumption that the member of the jury is fit to resume tomorrow, the gap (being two days) is equivalent to a weekend. He also pointed to the fact that occasions invariably arise in trials where far longer breaks are taken to accommodate occasions such Easter and Christmas. 11. Finally, he submitted that it is of some significance that the juror in question is the foreperson. He pointed out if he was discharged, the jury would necessarily have to elect a new foreperson. 12. The events which have arisen are obviously unfortunate. The prognosis in terms of the foreperson's condition seems somewhat speculative. The certificate (MFI 20) had indicated that he would be fit today. Clearly, on the information I have available, he is not. He has expressed (it seems with some degree of optimism) that he will be fit tomorrow. Whether or not that optimism is soundly based is not something I can determine with any certainty. 13. However at this stage I regard it as premature to accede to an application that he be discharged. It is preferable in my view, to continue with a jury of 12 if it is possible to do so. The situation has not, in my view, reached the point where the gap between the conclusion of the evidence and the commencement of addresses is likely to be prejudicial, in any way, to either party. 14. If it transpires that despite the foreperson's optimism he remains unfit tomorrow, I may be inclined at that point to accede to the Crown's submission. Senior counsel for the accused made it clear that he would support the Crown's application in that event. However at this stage I propose to allow the foreperson a further 24 hours to try and regain his health. I therefore refuse the application that he be discharged. 15. I will permit the remaining 11 members of the jury to leave today, on the understanding that we will resume tomorrow morning. Needless to say I will not communicate my views as to the possibility of the foreperson being discharged to the 11 members of the jury who remain. ********** 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 February 2015