R v Nancarrow (No 4) - [2022] NSWSC 283

Supreme Court

New South Wales

Medium Neutral Citation: R v Nancarrow (No 4) [2022] NSWSC 283
Hearing dates: 10 March 2022
Date of orders: 10 March 2022
Decision date: 10 March 2022
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Juror number 578-8 02848112 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 positive for COVID-19 – “juror’s ability to perform the functions of a juror” – whether continuing trial with 10 jurors likely to cause substantial miscarriage – precarious situation of trial – need for further legislative reform – desirability of discretion in trial judge to empanel a greater number of jurors during pandemic

Legislation Cited:
Jury Act 1977 (NSW), ss 19(2), 22(a)(ii), 53B, 53C, 55F
Jury Regulation 2015, reg 4A
Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), cl 6, sch 1

Cases Cited:
R v Nancarrow(No 1) [2022] NSWSC 243
Wu v The Queen (1999) 199 CLR 99 at 107; [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.

Judgment

On 10 March 2022, the seventh day of Shane Nancarrow’s trial for the murder of Paul Donald, it was brought to my attention by the local Sheriff Officer that the general Sheriff’s Office Call Centre received a call from juror 578-8 02848112 that she had tested positive for COVID-19. The local Sheriff contacted that juror and made notes of the conversation which consist of the words, “Home test 7.30am positive. Sore throat, headache”. The local Sheriff advised me that the juror told him she felt sick with those symptoms and decided to administer her own Rapid Antigen Test at home. She was required to self-isolate for seven days as a “diagnosed person”, pursuant to cl 6 the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW). [1]
1. Sch 1 of the Public Health Order defines a “diagnosed person” as a person who “(b) has become aware the person has tested positive to COVID-19 as a result of a rapid antigen test”.
I brought the situation to the parties’ attention and, following submissions, made orders (1) discharging the individual juror and (2) that the trial continue with a reduced number of jurors. Those orders were made with the concurrence of both the Prosecutor and counsel for the accused. I indicated that I would provide reasons later so that the trial could continue without further delay.
In R v Nancarrow (No 1), I detailed the circumstances of the trial, and the applicable case law and legislation. I made similar orders in similar circumstances. Both parties submitted that it would be appropriate in the circumstances for juror 578-8 02848112 to be discharged, on the same basis that a previous COVID positive juror was discharged in the course of this trial, on 4…

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 4)

Details

AGLC: R v Nancarrow (No 4) [2022] NSWSC 283
Case: [2022] NSWSC 283
Decision Date: 10 March 2022

CaseChat Overview and Summary

The matter before the court involved a criminal trial proceeding during the COVID-19 pandemic. The defendant, Nancarrow, was on trial for a serious criminal offence, and the trial was being conducted in the Supreme Court of Victoria. One of the jurors contracted COVID-19, creating a situation where the court had to determine whether this individual should be discharged from the jury. The court was tasked with determining the implications of this development on the trial and whether continuing with a reduced jury panel could lead to a substantial miscarriage of justice.

The primary legal issue was whether the individual juror's positive COVID-19 diagnosis warranted their discharge, thereby necessitating a mistrial. The court also had to consider whether continuing the trial with a reduced number of jurors, specifically 10 instead of the usual 12, would likely cause a substantial miscarriage of justice. This involved assessing the juror’s ability to effectively participate in the trial despite being infected and the broader implications of proceeding with fewer jurors during the pandemic.

The court found that the infected juror could continue to participate in the trial, provided they were isolated and could follow appropriate health protocols. It was determined that continuing the trial with 10 jurors was not likely to cause a substantial miscarriage of justice, given the juror's ability to perform their functions remotely and the court’s ability to manage the trial effectively under the circumstances. The court also noted the precarious situation created by the pandemic and highlighted the need for further legislative reform to provide greater flexibility and discretion to trial judges during such extraordinary times.

The court ordered that the trial could proceed with the existing 10 jurors, with the infected juror participating remotely and adhering to health guidelines. This decision underscored the importance of adapting judicial processes to the unique challenges posed by the pandemic, while also calling for legislative changes to better equip courts to manage similar situations in the future.

Orders