The power to discharge individual jurors under s 53B(d) of the Jury Act 1977 (NSW) requires a reason pertaining to the individual juror personally; a reason affecting all jurors equally and indiscriminately (such as inadequate jury room facilities) does not enliven the power (per majority). However, where the jury was otherwise representative, randomly selected, and each member was eligible and properly summoned, such an error does not preclude the application of the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW). The question of whether Kirk JA's broader construction of s 53B(d) is correct remains open for determination by a higher court.
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