Director of Public Prosecutions v Thomas

[2006] VSC 61

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No.1458 of 2004

Director of Public Prosecutions
(Commonwealth)

V

Joseph Terrence Thomas

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Ruling No. 10

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2006
DATE OF RULING:	15 February 2006
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2006] VSC 61

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Criminal law and procedure – terrorism offences – Commonwealth Criminal Code s.102.6(1) and s.102.7(1) – Passports Act 1938 s.9A(1)(e) – jury trial – jury of more than twelve jurors – s.23 and s.4D Juries Act 2000 – s.23 power not exercised – considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. T. Robinson with Ms L. Taylor	Commonwealth Director of Public Prosecutions
For the Accused	Mr L. Lasry QC with Mr M. Taft	Robert Stary and Associates
For the Commonwealth Attorney-General (by leave)	Mr R.Tracey QC with Dr S. Donahue	Australian Government Solicitor

HIS HONOUR:

1. I have an application before me by the prosecution that, pursuant to section 23 Juries Act 2000, I ought order in this trial that there be 13 jurors empanelled; with the excess juror, assuming there are still 13 jurors at the time of retirement for deliberation, balloted off pursuant to section 48 of the Act. Plainly there is power in the Court as provided by section 23 for the empanelment of an additional one, two or three jurors. The discretion is unfettered in the Act. However, experience shows that in certain circumstances it is desirable to exercise the power. The usual circumstances are where there is an extremely lengthy trial and it is statistically not remote that there will be one or more persons who will be unable to continue to serve as jurors, for example through illness or other unfortunate circumstance, over a lengthy period.

1. This is not such a case.  This case is a three week case at the outside.  It is not suggested that there is anything inherent in the case, either in the nature of the charges, the nature of the evidence, the persons to be called as witnesses or otherwise which would warrant the exercise of the power.  Indeed, yesterday when I had to discharge the jury empanelled, the person who was unable to serve by reason of medical circumstances was so unable for reasons personal to herself and nothing to do with the trial or its nature.

1. Essentially the ground upon which the prosecution relies is that there is a critical video link arrangement this Friday morning at 8 am, and there has been significant difficulty to the Crown to have the video link arranged, more particularly in relation to the uncertain preparedness of the witness to give evidence, such person being out of the control of the Court because he is not in the Court's jurisdiction.

1. I have every sympathy for Mr Robinson's submission that it is critical to the prosecution not to lose that link, not only because of the link but more relevantly because of the uncertain continued co-operation of the witness, if the link had to be vacated by reason of a member of the jury not being present.  I am unpersuaded that

that circumstance, important though it is and sensitive as I am to it, justifies the creation of an unusual panel that is above 12 persons.  If the circumstance does arise on Friday morning, it will simply have to be dealt with one way or another.  But I do not consider that the remote chance of it occurring, albeit with serious consequences potentially, justifies the unusual course which is sought.

1. Although the power is there in section 23, there are a number of undesirable incidents of it being invoked except where necessary. One is, as Mr Lasry has adverted to, the exercise of the section 48 power to the hapless 13th person who has loyally served over time. And there are other unfortunate incidents as well, including issues as to jury concentration, individually speaking.

1. In all the circumstances, I am not persuaded to exercise the power which is sought to be exercised by the prosecution.

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