R v Macdonald; R v Maitland (No 6) [2017] NSWSC 724

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald; R v Maitland (No 6) [2017] NSWSC 724 Hearing dates: 20 March 2017 Date of orders: 20 March 2017 Decision date: 20 March 2017 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: 1. Order pursuant to s 53B of the Jury Act 1977 (NSW) that the juror, who is the subject of the medical certificate, MFI 91, is discharged.

2. Order pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) that the trial continue with a reduced number of jurors, being 11. Catchwords: CRIMINAL PROCEDURE – discharge of single juror on grounds of illness – trial ordered to continue with balance of jurors Legislation Cited: Jury Act 1977 (NSW), ss 22, 53B, 53C Category: Procedural rulings Parties: Regina Ian Michael Macdonald (Accused) John William Maitland (Accused) Representation: Counsel: M McHugh SC/ P English (Crown) M Johnston SC (Accused Macdonald) D Jordan SC/E Kerkyasharian (Accused Maitland)

Solicitors: Solicitor for Director of Public Prosecutions Horton Rhodes Lawyers (Accused Macdonald) Bob Whyburn Solicitor (Accused Maitland) File Number(s): 2015/59940; 2015/59990;

Judgment 1. This trial by a jury was adjourned for the afternoon on Wednesday 15 March, 2017, to permit a juror to attend a funeral. On that day, unbeknown to the court, another juror became indisposed with what has been diagnosed as "community acquired pneumonia" and was admitted to St Vincent's Hospital. 2. Certificates were submitted, which have been marked for identification. The most recent of these was received on Friday, 17 March, at 12.48 pm and certified that the juror, whose name has obviously been obliterated from the medical certificate, has been an inpatient at St Vincent's Hospital from 15 March, 2017, to 17 March, 2017. The medical certificate certifies that the juror will be unfit for usual activities from 15 March until 23 March, 2017. The comments indicate that the author appreciates that the "usual activities", which are relevant for present purposes, are jury duty. The document reads, "Cannot attend jury duty for," I cannot decipher what follows although it may say: "one week Post DC", which I take to be post discharge. 3. The trial has reached a point where Mr Johnston, SC who appears on behalf of the accused Macdonald, is part way through his address. It is the seventh week of the trial and all that remains is: the remainder of Mr Johnston's address; Mr Jordan's address, on behalf of the accused Maitland; and the summing-up before the jury is sent out to deliberate. 4. Having consulted the parties, I note that the Crown accepts the proposal that the juror should be discharged and an order should be made to continue with the trial with the balance of eleven jurors. Mr Johnston and Mr Jordan have accepted that this course is, although not ideal, perhaps the best solution available, having regard to the estimated length of the trial, being six to eight weeks, and the fact that it is now the seventh week. 5. I am concerned that if I were not to discharge the juror and continue with the remaining jurors, there would be a risk that one or more of the remaining jurors would become unavailable or they would feel stressed in coming to a deliberation if there is too much delay. 6. Accordingly, I consider that under s 53B(a) of the Jury Act, that it is appropriate to discharge that individual juror since he has been certified not to be fit until Thursday and there is no guarantee that he will be fit thereafter. It is a matter of common knowledge that pneumonia is a debilitating illness and the demands on jurors require that they have a certain physical and mental fitness for the task. 7. Accordingly, I order under s 53B of the Jury Act that the juror, who is the subject of the medical certificate, MFI 91, is discharged. 8. In these circumstances, and having regard to the stage the trial has reached, I consider it to be appropriate to continue the trial with the balance of the jurors, they numbering 11. Under s 22 of the Jury Act a jury of 11 is sufficient. 9. I am satisfied that to continue the trial with the remaining jurors would not give rise to the risk of a substantial miscarriage of justice and I, accordingly, order that the trial continue with a reduced number of jurors, being 11, pursuant to s 53C(1)(b).