R v Kaivelota [2021] NSWDC 46

R v Kaivelota [2021] NSWDC 46

The juror's personal circumstances and repeated requests showed a real risk that he was not focused on the task and would not give, or be able to give, the necessary close attention to the evidence, particularly in a short child sexual assault trial depending on the credibility and accuracy of child complainants whose evidence should not be disrupted by delay. It was therefore appropriate to discharge the juror under s 53B(d) Jury Act 1977 and continue with 11 jurors under s 22 Jury Act 1977, with no evidence of a risk of a substantial miscarriage of justice.

Jurisdiction
Australia
Judgment Date
04 March 2021
Procedural Posture
Criminal Trial on Indictment Alleging Sexual Assaults Upon Two Children / Crown Application During Trial for Discharge of an Individual Juror
Outcome
Juror discharged; trial to proceed with a jury of 11.
Legal Topics
['jury' 'discharge of Individual Juror' 'continuation of Trial With Reduced Jury']
['criminal Procedure'] ['jury' 'discharge of Individual Juror' 'continuation of Trial With Reduced Jury']

Case Brief

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Procedural Posture

Criminal Trial on Indictment Alleging Sexual Assaults Upon Two Children / Crown Application During Trial for Discharge of an Individual Juror

Legal Issues

  1. 1 ["Whether an individual juror should be discharged under s 53B Jury Act 1977 because circumstances affecting the juror's ability to perform the functions of a juror meant the juror should not continue to act." 'Whether the trial should continue with 11 jurors under s 22 Jury Act 1977 without discharging the remainder of the jury.']

Ratio Decidendi

The juror's personal circumstances and repeated requests showed a real risk that he was not focused on the task and would not give, or be able to give, the necessary close attention to the evidence, particularly in a short child sexual assault trial depending on the credibility and accuracy of child complainants whose evidence should not be disrupted by delay. It was therefore appropriate to discharge the juror under s 53B(d) Jury Act 1977 and continue with 11 jurors under s 22 Jury Act 1977, with no evidence of a risk of a substantial miscarriage of justice.

Court Disposition

Juror discharged; trial to proceed with a jury of 11.

Orders

  • ['The individual juror is discharged from further service in the trial.' 'The Sheriff, represented by the court officers, is directed to remove the juror from the jury and notify him forthwith that he is discharged from further service in the jury.' 'The trial shall proceed with a jury of 11.']