R v Lupton (No 4)

[2022] NSWSC 37

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lupton (No 4) [2022] NSWSC 37

Hearing dates:

25 January 2022

Date of orders:

25 January 2022

Decision date:

25 January 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Juror number 2812801 is discharged

(2) Trial to continue with a reduced number of jurors

Catchwords:

CRIMINAL LAW - trial conducted during pandemic - whether individual juror should be discharged - where juror “close contact” with person positive for COVID - required to isolate for 7 days - absence from trial - requirement of evidence or proof – sub-sections of provision requiring different modes of proof – discretionary considerations - juror discharged - whether continuing trial with 14 jurors likely to cause substantial miscarriage - trial to continue with reduced number of jurors

Legislation Cited:

Jury Act 1977 ss 53A, 53B and 53C

Category:

Procedural rulings

Parties:

Regina
Jay Lupton

Representation:

Counsel:
G Harrison (Regina)
A Webb (Lupton)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Regina)
Legal Aid (NSW) (Lupton)

File Number(s):

2020/73934

EX TEMPORE JUDGMENT (REVISED)

1. This morning, the Court Officer made me aware that juror number 2812801 (to whom I will refer to as “the juror”) had advised the Jury Services Branch that his mother had tested positive for COVID-19. It was understood that the juror lived with his mother and was therefore a “close contact” as defined both in current health orders and under the protocols established by the Chief Justice for the safe conduct of jury trials during the COVID-19 pandemic. At that stage, the information I had was third hand and a little vague.

2. I advised the parties and sought their views as to the appropriate course to take. I also advised the jury of the situation in general terms and allowed its members to separate for around an hour while I obtained further information.

3. After adjourning the Court, I made direct telephone contact with the officer of the Jury Services Branch (whose identity is suppressed and to whom I will refer as “WC”). WC provided the following information:

1. WC spoke to the juror by telephone this morning.

2. The juror told her that his mother advised him this morning that she had tested positive to COVID-19.

3. The juror resides with his mother.

4. WC advised the juror not to come to court and to arrange a PCR test.

5. It is unlikely that the result of PCR test will be available in less than 48 hours.

6. The juror will be required, as a person having “close contact” with a COVID-19 positive relative, to isolate at home for a period of seven days.

4. Since speaking with me and following up on some questions I raised, WC sent a text message to my Associate providing the following further information:

1. The juror’s mother had a PCR test yesterday and received the result this morning.

2. The juror has now had a PCR test and is isolating at home awaiting the result which he was advised would be 1-2 days.

5. Under the Court’s protocols, and with the consent of the jurors, each member of the jury – including the juror - was subject to a Rapid Antigen Screening test (RAS test) yesterday morning and each member tested negative. Even though the risk of infection seemed to be low, but for the re-assurance of the fourteen remaining jurors, my staff arranged further RAS testing for the remaining jurors and others in the courtroom who chose to have a further test. Everybody received a negative result.

6. The issue that must be determined at this stage is whether the juror should be discharged.

7. Section 53A of the Jury Act 1977 (NSW) is concerned with the mandatory discharge of an individual juror. The prerequisites of that section are not engaged.

8. Section 53B provides for the discretionary discharge of an individual juror. Sub-section (2), concerned with the discharge of a juror who may not be able to act impartially, requires the factual findings underpinning its engagement to be established by “evidence” or by “the juror’s own statements”. Sub-sections (1) and (4) do not have such requirements of proof. Those provisions are in the following terms:

(a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest,

(d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.

(My emphasis)

9. The juror is a “close contact” and must isolate for seven days. If they test positive, I would be satisfied that sub-s (a) is engaged. However, this will not be known for a day or so. I cannot, at this stage, form the “opinion” that the juror is so sick that they are unable to perform the role of a juror or that they pose a health risk to other jurors.

10. However, it “appears to [me]” that there is “another reason” that affects the juror’s ability to perform the function of a juror and that they should not continue to act as a juror. That reason is the requirement that the juror must be absent from the Court for seven days as a result of being required to self-isolate for at least that period. Obviously, a person who is not present at the trial is unable to perform the functions of a juror, at least for that period.

11. The discharge remains a discretionary matter. Matters that militate in favour of discharging the juror as a matter of discretion include:

1. The length of the trial (4 weeks) compared with the length of the isolation period (at least 7 days),

2. The fact that we struck a jury of fifteen.

3. The inconvenience to the other jurors, and to the parties and the witnesses, of delaying the trial for at least a week.

4. The statistical likelihood that during that period another person involved in the trial may test positive for the virus.

12. Against that, the trial is in only its second full day before the jury and it would be desirable, if possible, to continue with 15 jurors.

13. Taking all relevant matters into account, I have concluded that juror 2812801 should be discharged.

14. Having reached that conclusion, I must decide whether the trial should continue with 14 jurors or whether the whole of the jury should be discharged. I am satisfied that continuing with 14 jurors does not give rise to the risk of a substantial miscarriage of justice: cf Jury Act 1977, s 53C.

15. Accordingly, I make the following orders:

1. Juror 2812801 is discharged.

2. The trial is to continue with a reduced number of jurors.

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Amendments

21 February 2024 - Publication restriction removed

Decision last updated: 21 February 2024