A trial judge considering an application to discharge a jury must not apply the 'substantial miscarriage of justice' test, which is the appellate standard under the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW); there is no rigid test and the judge must exercise a flexible discretion considering fairness, seriousness, stage, deliberateness, and the likely effectiveness of directions. Case management considerations, including logistical pressures from COVID-19 arrangements, must not prevail over the parties' rights to present their cases, particularly where both parties consent to an adjournment. It is for the Prosecutor to determine how the prosecution case is to be presented, and a trial judge should not substitute their own assessment of the strength of the prosecution case.
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