A finding of misconduct against a discharged juror is not inherently inconsistent with a determination that no risk of substantial miscarriage of justice arises from continuing with the remaining jurors, as s 53C(1) is predicated upon the prior discharge of the offending juror. CCTV footage inviting jury comparison with the accused's appearance is not strictly identification evidence within s 165 of the Evidence Act 1995 (NSW), and where the difficulties of visibility are self-evident, no special warning or instruction is required. A Shepherd direction regarding an indispensable intermediate fact is not required where the jury could be satisfied of guilt on some counts based on some but not all CCTV segments together with other evidence.
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