R v Walmsley-Hume; R v Walmsley (No 4)

[2024] NSWSC 1693

Supreme Court

New South Wales

Medium Neutral Citation:

R v Walmsley-Hume; R v Walmsley (No 4) [2024] NSWSC 1693

Hearing dates:

22 July 2024

Date of orders:

22 July 2024

Decision date:

22 July 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

Juror 458-12 is discharged and the trial is to continue with 13 jurors.

Catchwords:

CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise

CRIMINAL PROCEDURE – trial – jury – discharge of individual juror – juror discharged

Legislation Cited:

Jury Act 1977 (NSW), ss 22, 53B(a), 53C(1)(a)

Category:

Procedural rulings

Parties:

Rex (Crown)
Jayden Walmsley-Hume (JWH) (Accused)
Katie Walmsley (KW) (Accused)

Representation:

Counsel:
K Ratcliffe /J Diggins (Solicitor Advocate) (Crown)
S Hall SC (Accused JWH)
E Anderson (Accused KW)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Murphy’s Lawyers (Accused JWH)
Blaxland Law (Accused KW)

File Number(s):

202200100346 (JWH); 202200100355 (KW)

Judgment

1. The Court has been put on notice that juror 458-12 has informed the Sheriff’s Office by telephone that the juror was sick with gastro and would be unlikely to be able to return to the trial this week. The juror did not attend court today.

Relevant circumstances

2. Accepting the information provided by juror 458-12 to the Sheriff’s Office, it appears that the juror is so ill or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict and so as to be a health risk especially to other jurors. In those circumstances, the discretion whether to discharge the juror arises under s 53B(a) of the Jury Act1977 (NSW).

3. Given the nature of the juror’s condition, it is appropriate to discharge the juror at this stage, and no party made any submission to the contrary.

4. The question then becomes whether the jury as a whole should be discharged. Section 53C(1)(a) of the Jury Act requires me to discharge the jury if I am of the view that the continuation of the trial with the remaining jurors would give rise to a risk of a substantial miscarriage of justice. No party has submitted that this would be the case and I can see no basis to be satisfied that continuation of the trial with the remaining jurors would give rise to any risk of a miscarriage of justice, let alone a substantial miscarriage.

5. Turning then to s 22 of the Jury Act, in the present case, if the trial continues, there will be a jury of 13. Thus, the jury will not be reduced below 10. As a result, the condition in s 22(a)(i) is met. Further, no party has submitted, and I am not of the view, that the whole jury should be discharged given the number remaining.

Conclusion on juror discharge

6. Accordingly, it is ordered that juror 458-12 is discharged and the trial is to continue with 13 jurors.

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Decision last updated: 21 August 2025