When a juror is discharged under s 43 of the Juries Act 2000 (Vic), the trial judge must separately and affirmatively identify a positive or good reason to continue the trial with a reduced jury under s 44(1), and cannot simply rely on the absence of a high degree of need to discharge the whole jury. The two inquiries are distinct: one asks whether the trial should not continue at all with that jury (high threshold), and the other asks whether it should continue with fewer than the original complement (different threshold requiring affirmative justification). Failure to address the s 44(1) question is an error capable of founding a substantial miscarriage of justice.
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