A direction under s 44 of the Juries Act 2000 (Vic) to continue a criminal trial with a reduced jury does not require the application of the common law 'high degree of need' test for discharging the whole jury. The proper approach is to apply the words of the statute, requiring at minimum a 'positive' or 'good' reason for departing from the norm of 12 jurors, with consideration of all the circumstances. The authorities on this question remain in a state of some uncertainty and the issue has not been squarely addressed.
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