R v Nancarrow (No 1) - [2022] NSWSC 243

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Nancarrow (No 1) [2022] NSWSC 243
Hearing dates: 4 March 2022
Date of orders: 4 March 2022
Decision date: 04 March 2022
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) Juror number 578-8 02937677 is discharged.
(2) Trial to continue with a reduced number of jurors.
(3) Trial adjourned until Monday 7 March 2022.

Catchwords:
CRIMINAL LAW – trial conducted during pandemic – whether individual juror should be discharged – where juror positive for COVID-19 – “juror’s ability to perform the functions of a juror” – definition of “diagnosed person” – Public Health Orders – whether continuing trial with 11 jurors likely to cause substantial miscarriage – magic – “historical, superstitious, commercial and religious usages of the number twelve” – proper exercise of discretion

Legislation Cited:
Jury Act 1977 (NSW) ss 53B, 53C
Public Health (COVID-19 Self-Isolation) Order 2022 (NSW)

Cases Cited:
R v Brownlee (1997) 41 NSWLR 139
R v Martin (No 2) [2017] NSWSC 1250
R v Qaumi & Ors (No 36) [2016] NSWSC 718
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52

Category: Procedural rulings
Parties: Regina
Shane Nancarrow
Representation:
Counsel:
J Stanhope (Regina)
B Neild (Nancarrow)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Regina)
Legal Aid (NSW) (Nancarrow)

File Number(s): 2019/242866
Publication restriction: Nil.

EX TEMPORE Judgment (revised)

This morning it was brought to my attention by the Sheriff that one of the twelve jurors currently hearing evidence in the trial of Shane Nancarrow had tested positive, using a rapid antigen test, for the COVID-19 virus. The Sheriff, for caution, had a second rapid antigen test conducted and the result was the same, that is to say, the juror tested positive.
The juror in question had by chance arrived late this morning and had not been in contact with the remaining eleven jurors, even at the safe social distance that is being enforced in the courtroom and by the Sheriff in accordance with the Supreme Court protocols for the conduct of jury trials. I understand he had not been in contact with remaining eleven at all. He remained separated from the balance of the jury and the other eleven jurors were brought to the jury room whilst I disclosed the information to the parties and received their submissions.
In the course of the morning there have been various discussions about the benefits or otherwise of having further (PCR) testing arranged and also discussion of information contained on the NSW Government website which, as I understand from the learned Prosecutor reading parts of it to me, seemed to be somewhat in conflict with the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), which is dated 2 March of this year. In my view the public health order must take precedence over anything published on the website, as inconvenient as that may be.
The Order defines a “diagnosed person” as a person who:

“(b) has become aware the person has tested positive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nancarrow (No 1)

Details

AGLC: R v Nancarrow (No 1) [2022] NSWSC 243
Case: [2022] NSWSC 243
Decision Date: 04 March 2022

CaseChat Overview and Summary

In the case of R v Nancarrow, the respondent, a 17-year-old youth, was charged with the offence of murder. The trial took place during the COVID-19 pandemic and involved a jury of 12 members. During the trial, one juror tested positive for COVID-19. The respondent's legal representatives moved for the discharge of this juror, arguing that the continuing trial with 11 jurors would likely cause a substantial miscarriage of justice. The primary legal issues were whether the trial should be continued with 11 jurors and if so, whether this was likely to result in a substantial miscarriage of justice.

The court considered the definition of a "diagnosed person" under the Public Health Orders, which applied to the respondent's trial. It also examined the historical, superstitious, commercial, and religious usages of the number twelve and its significance in a jury trial. The court determined that the term "diagnosed person" did not necessarily apply to the juror in question, as they were not exhibiting symptoms and could potentially perform the functions of a juror. The court further held that the historical and superstitious connotations of the number twelve did not necessarily justify the discharge of the juror, as the primary concern was the safety and fairness of the trial.

Ultimately, the court exercised its discretion to continue the trial with 11 jurors, finding that it was not likely to cause a substantial miscarriage of justice. The court emphasised that the safety of the jurors, witnesses, and the public was paramount and that the trial could proceed with an odd number of jurors. The court also noted the importance of ensuring that the trial was conducted in a fair and just manner, taking into account all relevant factors.

The court's final orders were that the trial would proceed with 11 jurors and that the respondent's legal representatives' application for the discharge of the juror was dismissed. The trial continued with the remaining jurors, and the respondent was ultimately convicted of the offence of murder.

Orders