Director of Public Prosecutions v Frost
[2019] VSC 236
•11 APRIL 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S CR 2018 0230
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| CODY FROST | Accused |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 11 APRIL 2019 |
DATE OF RULING: | 11 APRIL 2019 |
CASE MAY BE CITED AS: | DPP v FROST |
MEDIUM NEUTRAL CITATION: | [2019] VSC 236 |
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CRIMINAL PROCEDURE – Request from juror to attend funeral – Possible delay between closing addresses and deliberations – Possible pressure to complete deliberations – Whether “any other reason” exists justifying discharge – Juror to be discharged on proviso that 13 jurors still remain at time deliberations to commence – Juries Act 2000 (Vic), ss 43, 44, 48
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson QC with Ms M Brown | Director of Public Prosecutions |
| For the Accused | Mr A Halphen | Ann Valos Criminal Law |
HIS HONOUR:
A. Introduction
Today is day 7 of a trial that commenced on 3 April 2019. The accused, Cody Frost, is charged with murder. A jury of 13 was empanelled and, presently, the jury continues to consist of 13 members. Section 48 of the Juries Act 2000 (Vic) requires that 1 of these jurors (other than the foreperson) be removed by way of ballot before the jury retires to consider its verdict.
The evidence in the trial was completed yesterday. Counsel expect that their closing addresses will be completed today and that I will commence my charge this afternoon. Further, on this basis, it is likely that the members of the jury will be asked to commence their deliberations sometime tomorrow morning.
B. The issue
Immediately after lunch on Monday, 8 April 2019, my associate was handed a note by a member of the jury. That note read:
A very close friend died over the weekend. His funeral will be next Monday, 15 April, at 1 pm in Geelong. I would very much appreciate the opportunity to attend.
C. The position of the parties
At the end of the evidence on Monday, this note was drawn to the attention of counsel. Both senior counsel for the prosecution and defence counsel agreed that it was important to convey to that juror that he will be able to go to the funeral, so that no anxiety would arise as to his ability to attend. Further, although referring to the possibility of discharging the juror, senior counsel stated his preferred course would be to indicate to the jury that the court would not be sitting on Monday, 15 April 2019. It was appreciated that, given the timing and location of the upcoming funeral, it would not be possible for the juror to be available at all next Monday.
Ultimately, it was decided that nothing would be said to the jury that afternoon, other than the juror in question would be able to attend the funeral as requested.
Yesterday morning, the issue was again raised with the parties. On this occasion, senior counsel for the prosecution stated that when he commented on the position earlier in the week, he did not have the upcoming Easter period and the non-sitting days in mind. He suggested that there was some advantage in the jury not feeling pressured to return a verdict before Good Friday on 19 April 2019 and that, in the circumstances, it would be desirous to discharge the relevant juror after the charge had been completed. Senior counsel for the prosecution stated that, if it had not been for the Easter period, he would have maintained his position that the juror ought not be discharged. Defence counsel agreed with the revised position adopted by the prosecution. The parties were asked to further reflect on the matter and provide their position in writing to the court this morning.
Before the commencement of today’s hearing, written submissions were filed by the Crown. The court was informed that the joint position as stated yesterday remained unchanged. In addition to the reasons already stated, it was submitted that there was significant utility in maximising the time for the jury to deliberate prior to the Easter break.
D. The power to discharge
Whether or not a judge may, during a trial, discharge a juror is governed by s 43 of the Juries Act. That section provides:
A judge may, during a trial, discharge a juror without discharging the whole jury if -
(a) it appears to the judge that the juror is not impartial; or
(b) the juror becomes incapable of continuing to act as a juror; or
(c) the juror becomes ill; or
(d)it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
It is paragraph (d) of this section that is relevant to the present situation.
In Najibi v The Queen,[1] the Court of Appeal considered the proper construction of s 43. The court noted that, unless a judge finds that some circumstance fitting within paragraphs (a) to (d) is present, there is no occasion to discharge a juror under this provision.[2] It was stated that a judge should require considerable persuasion before being satisfied that any circumstance fitting within those paragraphs exists. Further, with respect to paragraph (d), the court considered that the paragraph should be narrowly construed. In addition, it was observed that the “circumstances alleged to fit within that paragraph should be rigorously examined before a judge is satisfied that the circumstances relied upon do fall within the paragraph”.[3] Ultimately, the exercise involves a value judgment based on the particular circumstances of the case.[4]
[1](2016) 260 A Crim R 491 (Ashley, Weinberg and McLeish JJA).
[2]At 529 [240].
[3]At 530 [241].
[4]At 529-530 [241].
D. The ruling
Some of the relevant circumstances have already been referred to. In addition to the Easter period, in the week following Easter there will also be the interruption of Anzac Day on Thursday, 25 April 2019. Accordingly, if all the members of the jury were not asked to consider their verdict until next Tuesday, 16 April 2019, there is a real prospect, and more significant than would otherwise be, that their deliberations will be interrupted not only by the Easter break, but also Anzac Day. This is self-evidently less than ideal.
Further, if the course of maintaining 13 jury members is adopted and then having a member removed by way of a ballot on Tuesday next week, then there will also be some not insignificant delay of 4 days between the closing addresses and the commencement of the jury’s deliberations.
In my view, on the assumption that the 13 members of the jury remain until the completion of the charge to the jury, the circumstances of this case provide an “other reason” for the purposes of s 43 (d) of the Act. If the start of the deliberations of the jury are deferred until next Tuesday, there will be a more significant delay between closing addresses and deliberations commencing. Once deliberations commence, there may be a prospect that some jury members will feel a need to complete their deliberations within the time constraints imposed by Easter. It is also possible that the deliberations may be interrupted by Anzac Day. As this potentially unsatisfactory scenario can be avoided by the discharge of the juror in question, and a jury of 12 members would remain, it is appropriate that that course is adopted. Indeed, once “any other reason” within s 43(d) is found to exist, a judge “must” discharge that juror.[5]
[5]At 530–531 [248].
Of course, if, between now and the completion of my charge, a member of the jury other than the member of the jury in question is unable to continue as a juror, it will be necessary to revisit this ruling.
Proceeding on the premise that the juror in question will be discharged in due course, I will then direct that the trial shall continue with the remaining jurors.[6]
[6]Juries Act, s 44 (1).
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