Section 53A(1)(c) of the Jury Act 1977 (NSW) requires a positive finding on the balance of probabilities that a juror has engaged in misconduct; a mere possibility, reasonable apprehension, or risk that misconduct has occurred is insufficient to engage the mandatory discharge provision. The Briginshaw observations apply to such findings given the serious consequences of discharging a juror. The word 'risk' in s 53A(2)(b) relates to the second stage of the inquiry (whether established conduct gives rise to the risk of a substantial miscarriage of justice) and does not dilute the standard of proof required at the first stage (establishing the conduct itself).
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