Part 7A Discharge of jurors

53A   Mandatory discharge of individual juror

(1)  The court or coroner must discharge a juror if, in the course of any trial or coronial inquest:

(a)  it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was disqualified or ineligible to serve as a juror or was otherwise not returned and selected in accordance with this Act, or

(b)  the juror becomes disqualified from serving, or ineligible to serve, as a juror, or

(c)  the juror has engaged in misconduct in relation to the trial or coronial inquest.

(2)  In this section:

misconduct, in relation to a trial or coronial inquest, means:

(a)  conduct that constitutes an offence against this Act, or

Note. For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.

(b)  any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.

53B   Discretionary discharge of individual juror

The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if:

(a)  the juror (though able to discharge the duties of a juror) has, in the judge’s or coroner’s opinion, become so ill or infirm as to be likely to become ineligible 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, or

Note. Under clause 12 of Schedule 2, a juror who because of sickness or infirmity is unable to discharge the duties of a juror is ineligible to serve as a juror.

(b)  it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or

(c)  a juror refuses to take part in the jury’s deliberations, or

(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.

Note. Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.

53C   Discretion to continue trial or coronial inquest or discharge whole jury

(1)  If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must:

(a)  discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or

(b)  if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.

(2)  A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912.

(3)  Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order.