Eric v The State of Western Australia - [2019] WASCA 101

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ERIC -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 101
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   14 FEBRUARY 2019
DELIVERED          :   15 JULY 2019
FILE NO/S:   CACR 4 of 2018
BETWEEN:   ZELJKO ERIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   DERRICK DCJ
File Number            :   IND 1601 of 2016

Catchwords:

Criminal law - Appeal against conviction of six counts of possession of a prohibited drug with intent to sell or supply - Whether trial judge erred in discharging juror during deliberations - Juror refused to return to jury room - Whether trial judge made adequate enquiries about internal issue concerning the jury - Whether trial judge should have discharged entire jury - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Procedure Act 2004 (WA), s 114, s 115, s 116

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

BG v The Queen [2012] NSWCCA 139; (2012) 221 A Crim R 215
Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278
Cheatle v The Queen (1993) 177 CLR 541
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
GL v The Queen [2014] NSWCCA 68
Haruna v The Queen [2013] WASCA 170; (2013) 233 A Crim R 354
Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601
Phan v The Queen [2018] NSWCCA 225
R v Blackmore [2016] QCA 181
R v Hambery [1977] QB 924
R v Roberts [2004] QCA 366; [2005] 1 Qd R 408
Reid v The Queen [1980] AC 343
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Tabalbag v The Queen [2016] NSWCCA 48; (2016) 258 A Crim R 240
Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99

BUSS P & MAZZA JA:

This is an appeal against conviction.
The appellant was charged on indictment with 11 counts. Each of counts 1, 2, 3, 4, 5 and 6 alleged that the appellant had been in possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the drugs charges). Each of counts 7, 8, 9, 10 and 11 alleged that the appellant had been in possession of a firearm or ammunition without being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so (the firearms charges).
On 3 November 2017, after a trial in the District Court before Derrick DCJ and a jury, the appellant was convicted of all of the drugs charges and acquitted of all of the firearms charges.
On 15 December 2017, the trial judge imposed a total effective sentence of 4 years 6 months' immediate imprisonment. A parole eligibility order was made.
We agree with Mitchell JA that the appeal should be dismissed. Our reasons are as follows.

The grounds of appeal

The appellant relies upon three grounds of appeal.
Ground 1, as amended, alleges in effect that the trial judge made an error of law, alternatively there was a miscarriage of justice, when his Honour determined to discharge a juror (Juror 145) after the jury had commenced their deliberations.
The particulars of ground 1 allege that:
(a)his Honour's power under s 115 of the Criminal Procedure Act 2004 (WA) had not been enlivened;
(b)the circumstances militated in favour of Juror 145 remaining part of the jury; and
(c)his Honour should have directed the jury as a whole that each juror was obliged to listen respectfully to the views of every other juror and that inducements must not be offered to any juror, even as a joke, to influence his or her views about the verdict on any of the charged offences.
Ground 2 alleges in effect that a miscarriage of justice occurred when his Honour failed to make adequate enquiries about 'an internal issue concerning the jury'.
The particulars of ground 2 allege that:
(a)his Honour failed to make enquiries about 'the matter raised by Juror 145 with the other 11 jury members';
(b)his Honour failed to make adequate enquiries about the circumstances in which 'a member of the final jury panel made an offer in the jury room of money to Juror 145 regarding their decision'; and
(c)his Honour failed, adequately or at all, to enquire of Juror 145 why he held the view that the offer of money made to him was a joke.
Ground 3 alleges in effect that a miscarriage of justice occurred when his Honour failed to discharge the jury as a whole once he had determined that Juror 145 should be discharged.
On 23 August 2018, this court ordered that leave to appeal be granted on ground 3 and that the application for leave to appeal on grounds 1 and 2 be referred to the hearing of the appeal.

The State's case and the appellant's case at trial

The State's case and the appellant's case at trial are set out in Mitchell JA's reasons. We will not repeat them except to the extent necessary to explain our reasons.

Grounds 1 and 2

We agree with Mitchell JA, generally for the reasons he gives, that grounds 1 and 2 have not been made out. Leave to appeal should be granted on ground 1 and refused on ground 2.

Ground 3: the interchange between the trial judge and Juror 145 and his Honour's rulings and orders in relation to Juror 145

The trial began on 30 October 2017 and ended on 3 November 2017.
On 3 November 2017 at 11.20 am his Honour completed his summing up. At 11.21 am the jury retired to consider its verdicts.
On 3 November 2017 at 3.23 pm the trial judge informed the prosecutor and defence counsel that he had received a note from the jury requesting clarification of the second element of count 7 (being one of the firearms charges). The jury returned at 3.25 pm and his Honour gave the jury the clarification it had sought. At 3.27 pm all members of the jury, except Juror 145, retired again to consider their verdicts.
When asked by his Honour to return to the jury room, Juror 145 said he was feeling 'quite dizzy', 'claustrophobic' and 'uncomfortable in there'.[1] When asked by his Honour whether he felt that he could go back into the jury room, Juror 145 said 'no' and added 'it's quite hostile'.[2]
[1] Trial ts 455.
[2] Trial ts 455 - 456.
After hearing submissions from the prosecutor and defence counsel, in the absence of Juror 145, the trial judge asked Juror 145 what made him feel that the environment in the jury room was hostile. The following exchanged occurred:[3]
JUROR 145: Well, I have my own opinion.
DERRICK DCJ: Yes.
JUROR 145: I feel as though people are promoting their own views. I'm not sure that I can explain it.
DERRICK DCJ: No, you don't need to tell me what your opinion is, but, all right, so you're expressing your opinion, other people are expressing their opinions.
JUROR 145: The majority.
DERRICK DCJ: All right.
JUROR 145: I'm just on my own.
[3] Trial ts 457.
Juror 145 then referred to being offered money as a joke to vote a particular way:[4]
DERRICK DCJ: I see, and do I understand from what you're saying that some of the opinions being expressed in the jury room are being expressed forcefully?
JUROR 145: Correct. I was offered money to vote a particular way, maybe as a joke, but I still feel uncomfortable.
DERRICK DCJ: All right. So somebody offered you money to vote in a particular way, is that what you just said?
JUROR 145: As a joke.
DERRICK DCJ: As a joke?
JUROR 145: But still it adds to my uncomfortableness.
[4] Trial ts 457 - 458.
Next, Juror 145 indicated that there was no point in him returning to the jury room 'because we're not going to reach an agreement, not from this point, I think'.[5]
[5] Trial ts 458.
The Sheriff's officer then informed his Honour that the jury had been instructed not to engage in any deliberations at that time, and his Honour asked Juror 145 to leave the courtroom again.[6]
[6] Trial ts 458 - 459.
During discourse with the prosecutor and defence counsel, in the absence of Juror 145, the trial judge made the observation, with which defence counsel agreed, that Juror 145's reference to feeling 'claustrophobic' was 'really' to 'feeling that way because he feels as though he's under pressure because he's in the minority'.[7] When Juror 145 returned to the courtroom, his Honour told Juror 145 that he was minded to ask him to return to the jury room, and asked what his response would be. Juror 145 responded:[8]
JUROR 145: I just don't think there's a point. We're not - - -
DERRICK DCJ: All right.
JUROR 145: - - - going to - we've been talking about one thing for the last four - four hours.
DERRICK DCJ: All right.
JUROR 145: (Indistinct) agree on anything.
[7] Trial ts 461.
[8] Trial ts 464.
His Honour then asked Juror 145 to return to the jury room, to which the juror repeatedly responded that he felt 'uncomfortable doing that'.[9] After hearing from the prosecutor and defence counsel, in the absence of Juror 145, the following exchange occurred:[10]
[9] Trial ts 464 - 465.
[10] Trial ts 466.
DERRICK DCJ: You can just remain standing, thank you, Juror 145. I've listened carefully to what you've had to say, I accept you're uncomfortable, but what I said previously still holds. I'm not satisfied there's any proper basis to not require you to continue with your deliberations. I require you to return to the jury room and to continue deliberating with the rest of the jury. Thank you. Thank you, Madam Jury Officer.
JUROR 145: Your Honour?
DERRICK DCJ: Yes, thank you.
JUROR 145: I'm going to have a panic attack.
DERRICK DCJ: Why do you say that?
JUROR 145: I just feel uncomfortable.
DERRICK DCJ: I know you've told me you feel uncomfortable but there's a difference between feeling uncomfortable, Juror number 145, and not being able to actually continue with the jury and deliberate.
JUROR 145: It's a very small confined space stuck in there with 11 other people. We have a different view of things, we don't agree on anything. The majority (indistinct).
DERRICK DCJ: Don't - I don't need to - I know you're in the minority and I understand that. All right.
After asking Juror 145 to leave the courtroom again, the trial judge said:[11]
It's a combination of things, it seems to me. He's clearly feeling uncomfortable holding a minority view. That in itself is not a basis for discharging him, I accept that.
But now when I am effectively saying I want him to continue deliberating, he's now telling me that it's a small room. He's going to have a panic attack if he's required to go back into the room. It seems to me he's now got to the point where he is telling me that physically he does not feel capable of returning to that room.
[11] Trial ts 467.
Defence counsel, who until that stage had been opposing the discharge of Juror 145, acknowledged his Honour's observations and said that he had no further submissions.[12] After defence counsel took further instructions, he indicated that the appellant did not oppose the discharge of Juror 145.[13] The prosecutor indicated his agreement with the juror being discharged.[14]
[12] Trial ts 467.
[13] Trial ts 468.
[14] Trial ts 467.
The trial judge then discharged Juror 145.[15] The balance of the jury returned to the courtroom and his Honour informed them:[16]
Members of the jury, I'm sorry to disturb you in your deliberations. I just wanted to bring you back into court to tell you that I have, for reasons that I do not need to go into, exercised a power I have to discharge Juror 145 from serving further as a member of the jury. The law does permit a trial to proceed with 11 jurors, so I have discharged him. So now the verdict will be returned by the 11 of you. So you should now continue your deliberations.
[15] Trial ts 468.
[16] Trial ts 469.
At 4.00 pm the jury of 11 retired again to consider its verdicts, and at 4.17 pm returned with its unanimous verdicts.

Ground 3: the consequence at common law if a trial judge discharged a juror

At common law, no person could be convicted of a serious crime without the unanimous verdict of 12 jurors. If one juror had to be discharged, the remainder of the jury also had to be discharged. The trial had to recommence with a new jury of 12. See R v Hambery;[17] Wu v The Queen.[18]
[17] R v Hambery [1977] QB 924, 928 (Lawton LJ, MacKenna & Gibson JJ).
[18] Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 [27] (McHugh J).
The common law principle that no person could be convicted of a serious crime without the unanimous verdict of 12 jurors has been modified by legislation in numerous jurisdictions, including in Western Australia.

Ground 3: the relevant provisions of the Criminal Procedure Act

By s 114 of the Criminal Procedure Act, a jury's verdict must, subject to some exceptions, be unanimous. Section 114 provides:
(1)Subject to this section, the verdict of a jury must be the unanimous verdict of its members.
(2)If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, has not arrived at a unanimous verdict, the decision of 10 or more of the jurors shall be taken as the verdict on the charge.
(3)If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, 10 or more of the jurors have not agreed on a verdict, the judge may discharge the jury from giving its verdict on the charge.
(4)Subsections (2) and (3) do not apply to a charge of murder.
(5)Subsections (2) and (3) do not prevent a judge from requiring a jury to deliberate for more than 3 hours.
By s 115 of the Criminal Procedure Act, a trial judge is empowered, in certain circumstances, to discharge a juror. Section 115 provides:
(1)The powers in this section may be exercised at any time before a jury gives its verdict.
(2)The judge may discharge a juror from a jury if satisfied that the juror should not be required or allowed to continue in the jury and if the discharge will leave at least 10 jurors remaining.
(3)If a juror is discharged under subsection (2) the verdict of the remaining 10 or more jurors has the same effect as if the whole jury had continued to be present.
(4)The discharge of a juror from a jury does not affect any duty of the juror to attend under the Juries Act 1957.
By s 116 of the Criminal Procedure Act, a trial judge is empowered, in certain circumstances, to discharge a jury. Section 116 provides:
(1)The powers in this section may be exercised at any time before a jury gives its verdict.
(2)The judge may discharge the jury from giving its verdict on a charge if the judge is satisfied it is in the interests of justice to do so.
(3)If under subsection (2) or another enactment a jury is discharged from giving its verdict in a trial of a charge, the trial is discontinued.
(4)If under subsection (2) or another enactment, a judge discharges a jury from giving its verdict on a charge and another trial of the charge is or may be required, the judge -
(a)may order the other trial to begin immediately or at a later time or date set by the judge; or
(b) may adjourn the prosecution of the charge.
(5)Subsection (4) does not affect a judge's powers under section 93 or 108 or to determine the charge in accordance with this Act.
(6)The discharge of a jury from giving its verdict in a trial does not affect any duty of the jurors to attend under the Juries Act 1957.

Ground 3: the proper construction of s 114(2) of the Criminal Procedure Act

Section 114(1) of the Criminal Procedure Act provides that, subject to s 114, the verdict of a jury must be the unanimous verdict of its members. By s 114(2), if a jury trying a charge has retired to consider its verdict and, having deliberated for at least three hours, has not arrived at a unanimous verdict, 'the decision of 10 or more of the jurors shall be taken as the verdict on the charge'. Section 114(5) provides, relevantly, that s 114(2) '[does] not prevent a judge from requiring a jury to deliberate for more than 3 hours'.
The effect of s 114(2), read with s 114(1) and s 114(5), is that if:
(a)a jury trying a charge has retired to consider its verdict;
(b)the jury has deliberated for at least three hours; and
(c)the jury has not arrived at a unanimous verdict,
then, subject to s 114(5), the decision of 10 or more of the jurors 'shall be taken' (that is, must be taken) as the verdict on the charge.
The stipulation in s 114(2) that, in the circumstances referred to in that provision, the decision of 10 or more jurors 'shall be taken' (that is, must be taken) as the verdict is qualified by s 114(5), which acknowledges that the trial judge has a discretionary power to require the jury to deliberate for more than three hours.
The apparent object or purpose of s 114(5) is to enable a trial judge, having regard to the facts and circumstances of the particular case (for example, the nature and extent of the evidence and the complexity of the issues), to require the jury to deliberate for more than three hours with a view to the jury arriving at a unanimous verdict.

Ground 3: the proper construction of s 116 of the Criminal Procedure Act

Section 116(1) of the Criminal Procedure Act provides that the powers in s 116 may be exercised at any time before a jury gives its verdict. A judge's power to discharge a jury may therefore be exercised after the jury has retired to deliberate.
Section 116(2) empowers a judge to discharge a jury from giving its verdict on a charge if the judge is satisfied 'it is in the interests of justice' to do so.
The phrase 'in the interests of justice' is not defined in s 116 or elsewhere in the Criminal Procedure Act. Those words have a broad connotation. In Herron v Attorney-General for New South Wales,[19] Kirby P said, in construing a provision of the Coroners Act 1980 (NSW), that the words 'in the interests of justice' are 'plainly words of the widest possible reference' and, indeed, 'there could scarcely be a wider judicial remit'. The phrase 'in the interests of justice' in s 116 takes colour from the context in which it is used.
[19] Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601, 613.
The concept of 'in the interests of justice', in s 116, includes not only the interests of the accused but also the public interest. The public interest in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered in the trial of an accused before a judge and jury.
It is in the interests of the accused, and also in the public interest, that the accused receive a fair trial according to law. That is the fundamental (but not the only) issue with which s 116 is concerned. For example, it will be 'in the interests of justice', within s 116(2), for a judge to discharge a jury from giving its verdict on a charge if the judge is satisfied that there is a real and substantial (as distinct from a remote) risk that in the proceedings the accused will not receive a fair trial, according to law, in respect of the charge.
The power which s 116(2) confers upon a judge is discretionary in character. It will be necessary for a judge, who is considering whether to exercise the power, to take into account and balance all relevant factors by reference to the facts and circumstances of the particular case. The relevant factors may point in different directions. Some may favour the discharge of the jury and others may not. See, in the context of a power to order a new trial of an appellant whose conviction has been quashed, Reid v The Queen.[20] The facts and circumstances of the particular case are of central importance in applying the phrase 'in the interests of justice' within s 116(2). See, generally, Dietrich v The Queen.[21] By a process of evaluation a judge will determine whether he or she is satisfied that 'it is in the interests of justice' to discharge the jury from giving its verdict on a charge.
[20] Reid v The Queen [1980] AC 343, 346 (Lord Diplock, Lord Hailsham of St Marylebone, Lord Salmon, Lord Edmund-Davies & Lord Keith of Kinkel).
[21] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 349 (Dawson J), 360 - 361 (Toohey J).

Subject to the rules of procedural fairness, a judge may exercise, on his or her own initiative, the discretionary power conferred by s 116(2); alternatively, the judge may exercise that power upon an application made by the prosecutor or defence counsel.

Ground 3: counsel for the appellant's submissions

Counsel for the appellant submitted that a miscarriage of justice occurred at the appellant's trial as a result of the trial judge's failure to discharge the remainder of the jury upon his Honour deciding to discharge Juror 145. Counsel argued that the continuation of the trial with the 11 remaining jurors created 'the perception of, in effect, streamlining a way to a guilty verdict'.[22] Juror 145 was 'effectively … holding out; [he was] not going to convict' and his discharge removed 'a dissenter [who was] an obstacle to a verdict'.[23] The appellant was deprived of a 'dissenting voice' on the jury. According to counsel, the discharge of Juror 145 involved the removal of an 'obstacle' and the appellant being deprived of a 'dissenting voice', even though the three‑hour period referred to in s 114(2) of the Criminal Procedure Act had elapsed.[24] Counsel for the appellant relied upon a number of New South Wales and Queensland cases, namely BG v The Queen,[25] GL v The Queen,[26] R v Roberts,[27] R v Blackmore[28] and Phan v The Queen.[29]
[22] Appeal ts 27.
[23] Appeal ts 27, 29.
[24] Appeal ts 29.
[25] BG v The Queen [2012] NSWCCA 139; (2012) 221 A Crim R 215.
[26] GL v The Queen [2014] NSWCCA 68.
[27] R v Roberts [2004] QCA 366; [2005] 1 Qd R 408.
[28] R v Blackmore [2016] QCA 181.
[29] Phan v The Queen [2018] NSWCCA 225.

Ground 3: its merits

Section 30(3) of the Criminal Appeals Act 2004 (WA) provides, relevantly, that this court must allow an appeal against conviction if, in its opinion, the conviction should be set aside because of a wrong decision on a question of law by the trial judge (s 30(3)(b)) or because there was a miscarriage of justice (s 30(3)(c)). By s 30(4), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
In the present case, the trial judge did not raise with the prosecutor or defence counsel whether he should exercise the discretionary power conferred by s 116(2) of the Criminal Procedure Act to discharge the remainder of the jury, and neither the prosecutor nor defence counsel made an application to his Honour for its discharge.
In the circumstances, the trial judge did not make a wrong decision on a question of law. Accordingly, this court cannot intervene and allow the appeal on the basis of ground 3 unless there was a miscarriage of justice arising from the continuation and completion of the appellant's trial with the remainder of the jury.
The merits of ground 3 (that is whether a miscarriage of justice occurred, as alleged) are to be determined by reference to s 116(2), properly construed, and the application of that provision to the facts and circumstances of the case.
We are satisfied that no miscarriage of justice arose from the continuation and completion of the appellant's trial with the remainder of the jury. In particular, the trial judge did not create a miscarriage of justice by failing to rule that, upon Juror 145 being discharged, it was in the interests of justice, within s 116(2), for the remainder of the jury to be discharged from giving its verdict on the charges in the indictment. Our reasons are as follows.
First, we agree with Mitchell JA, generally for the reasons he gives, that Juror 145 was properly discharged by the trial judge in the exercise of the discretionary power conferred by s 115(2) of the Criminal Procedure Act.
Secondly, the trial record does not give rise to a reasonable ground for suspicion that any other juror or jurors had:
(a)bullied, intimidated or unlawfully coerced or attempted to bully, intimidate or unlawfully coerce Juror 145 in his deliberations, views or decision-making concerning any of the counts in the indictment; or
(b)attempted improperly or corruptly to influence Juror 145 in his deliberations, views or decision-making concerning any of those charges by seriously (as distinct from jokingly) offering him money or some other inducement.
Thirdly, we accept that the proper inference from the trial record is that, immediately prior to Juror 145 being discharged, Juror 145 was the only juror who was of the view that a verdict of 'not guilty' should be returned on the drugs charges. That inference is properly drawn on the basis of Juror 145's statement to the trial judge that he was 'just on [his] own' and the very short interval (about 17 minutes) between the remainder of the jury retiring to consider its verdicts after Juror 145 had been discharged and the remainder returning with its unanimous verdicts. We also accept that the proper inference from the trial record is that if Juror 145 had not been discharged and had been willing to return to the jury room, he was likely to have voted for the acquittal of the appellant on each of the drugs charges. That inference is properly drawn on the basis of the whole of the interchange between his Honour and Juror 145.
However, those inferences do not, either alone or in combination, indicate that a miscarriage of justice arose from the continuation and completion of the appellant's trial with the remainder of the jury.
As at 3.23 pm on 3 November 2017, when the trial judge informed the prosecutor and defence counsel that he had received the note from the jury requesting clarification of the second element of count 7 (being one of the firearms charges), the jury had retired to consider its verdict, had deliberated for more than three hours and had not arrived at a unanimous verdict. In those circumstances, s 114(2) of the Criminal Procedure Act was engaged. By s 114(2), 'the decision of 10 or more of the jurors shall be taken' (that is, must be taken) as the verdict on the charges unless the trial judge exercises the discretionary power acknowledged by s 114(5) to require the jury to continue deliberating. Juror 145 refused, in effect, to return to the jury room. He said that he was 'going to have a panic attack'. His Honour's unchallenged finding was that Juror 145 had indicated that he did not feel 'physically … capable of returning to [the jury room]'. As we have mentioned, his Honour properly discharged Juror 145.
The continuation and completion of the appellant's trial with the remainder of the jury did not, in the context of the statutory framework embodied in s 116 of the Criminal Procedure Act and having regard to the facts and circumstances of the case, involve 'streamlining a way to a guilty verdict' or removing 'an obstacle to a verdict' or depriving the appellant of a 'dissenting voice' on the jury, as asserted by counsel for the appellant. A reasonable apprehension or suspicion to that effect would not have been entertained by a fair-minded and informed member of the public. The hypothetical fair-minded and informed member of the public must be taken to know the essence of the statutory framework embodied in s 116 and to be aware of the facts and circumstances of the case, including that Juror 145 had refused, in effect, to return to the jury room and defence counsel had accepted that Juror 145 should be discharged.
Fourthly, neither defence counsel nor the prosecutor, who saw and heard Juror 145's interchange with the trial judge and who were absorbed in the atmosphere of the proceedings, ultimately opposed the discharge of Juror 145. Nor did either of them make an application to his Honour for the discharge of the remainder of the jury pursuant to s 116(2).
Fifthly, the New South Wales and Queensland cases relied upon by counsel for the appellant do not advance the appellant's case. The decisions in BG, GL, Roberts and Blackmore were concerned with legislation that is materially different from s 116 of the Criminal Procedure Act. The decision in Phan was concerned with Commonwealth drug trafficking offences in respect of which s 80 of the Commonwealth Constitution required a unanimous verdict.
Section 19(1) of the Jury Act 1977 (NSW) relevantly provides that, except as provided by s 22 of that Act, in any criminal proceedings in the Supreme Court or the District Court of New South Wales that are to be tried by a jury, the jury is to consist of 12 persons. Section 22 relevantly provides that where, in the course of any trial, any member of the jury is discharged by the court under pt 7A, the jury shall be considered as remaining for all the purposes of that trial properly constituted if, relevantly, the number of its members is not reduced below 10. Part 7A comprises s 53A to s 53C. By s 53C(1)(a), relevantly, if the court discharges a juror in the course of a trial, the court must discharge the jury if the court is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. By s 53C(1)(b), if the court is of the opinion that there is no such risk, the court must order that the trial continue with a reduced number of jurors (subject to s 22).
The legislation on which the decisions in BG and GL were based is materially different from s 116 of the Criminal Procedure Act in that if a New South Wales court discharges a juror in the course of a trial, the trial may only continue with the reduced number of jurors if, relevantly, the court is of the opinion that to continue the trial with the remaining jurors would not give rise to the risk of a substantial miscarriage of justice.
Section 57(1) of the Jury Act 1995 (Qld) relevantly provides that if a juror is discharged after a trial begins, and there is no reserve juror available to take the juror's place, 'the judge may direct that the trial continue with the remaining jurors'. By s 57(3), the verdict of the remaining jurors has the same effect as if all the jurors had continued to be present. Section 60(1) provides that if a jury cannot agree on a verdict, or 'the judge considers there are other proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict'. Section 60(3) provides that a decision of a judge under s 60 is not subject to appeal.
The legislation on which the decisions in Roberts and Blackmore were based is materially different from s 116 of the Criminal Procedure Act in that if a Queensland court discharges a juror in the course of a trial, the trial may only continue with the reduced number of jurors if, relevantly, the court makes a direction to that effect.
The discretionary power conferred by s 116(2) is to be exercised by reference to the text of the provision, properly construed, and the application of that text to the facts and circumstances of the case. The power is not to be exercised by reference to precepts or reasoning in cases decided in other jurisdictions upon legislation that is materially different from s 116.

Sixthly, the appellant was not, in the context of the statutory framework embodied in s 114, s 115 and s 116 and having regard to the facts and circumstances of the case, deprived of a fair chance of an acquittal on the drugs charges. His trial on those charges was not unfair.

Conclusion

Leave to appeal should be granted on ground 1 and refused on ground 2. The appeal must be dismissed.

MITCHELL JA:

Introduction

The appellant was charged with 6 counts of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (drugs charges). He was also charged with 5 counts of unlicensed possession of a firearm or ammunition (firearms charges).
The charges arose out of the execution of a search warrant at the appellant's Landsdale residence by police on 27 October 2015. Counts 1 - 3 on the indictment respectively concerned the following drugs located in the appellant's garage:
(1)MDMA (or ecstasy) powder (0.37 g);
(2)cocaine (2.54 g); and
(3)methylamphetamine (1.03 g).
Counts 4 - 6 on the indictment respectively concerned the following drugs located in a plastic box in a sports bag in the boot of a Holden Acclaim vehicle parked on the verge outside the residence:
(4)MDMA powder and tablets (11.39 g);
(5)methylamphetamine (11.18 g); and
(6)DMT (0.17 g).

Two handguns, an air pistol, a rifle and 540 rounds of ammunition were also located in the sports bag, and were the subject of counts 7 - 11 on the indictment.
At trial, the State relied on the location of the above items and the following additional facts in support of its case that the appellant was in possession of the items:
(1)The appellant had been a user of methylamphetamine and ecstasy.
(2)The appellant was the only person living at the Landsdale house.
(3)The appellant was found in possession of eight glass smoking implements, three alleged 'tick lists' (two found in the garage and one being found on a hallway mirror), four clipseal bags (found in the garage) and four sets of digital scales (found in the garage, and on which the appellant's DNA was located).
(4)The appellant was in possession of a number of plastic containers found in the garage which were identical to the plastic containers in which the drugs were located. Those containers were, by the appellant's own admission, his containers.
(5)The appellant was in possession of a police baton (found in the garage), two crossbows, three Tasers, a set of knuckledusters and a can of pepper spray (found in the house).
(6)The appellant's DNA profile was found on plastic containers found in the sports bag, three of the sets of digital scales as well as on a handle of the bag and tags that were on the zips.
(7)The keys to the Holden Acclaim were found on a bench of the kitchen area of the Landsdale house.
The appellant gave evidence at trial and denied possessing any of the items which were the subject of the charges. He denied that the Holden Acclaim was his, and denied possessing a number of the items (such as tick lists, scales and clipseal bags located in the garage) relied on by the State to support the inference that he was in possession of the drugs, firearms and ammunition.
The jury retired to consider its verdict at 11.21 am on the fifth day of trial. At 3.25 pm on the same day, the jury returned with a question related to the possession element of the firearms offences. After the trial judge answered that question, the jury was asked, at 3.27 pm, to return to the jury room. All but one of the jurors (Juror 145) complied with that request. Juror 145 refused to return to the jury room in circumstances described below. The trial judge eventually discharged Juror 145. At 3.59 pm, the trial judge advised the remaining 11 members of the jury that he had discharged Juror 145 'for reasons that I do not need to go into'.[30] After returning to the jury room at 4.00 pm, the jury returned unanimous verdicts at 4.17 pm.
[30] Trial ts 469.
The appellant was convicted of the drugs charges and acquitted of the firearms charges. He was sentenced to a total effective sentence of 4 years 6 months' immediate imprisonment, taken to have commenced on 21 September 2017.
The appellant now appeals against his conviction of the drugs charges, on three grounds.
Ground 1 alleges an error of law and/or miscarriage of justice when the trial judge determined to discharge Juror 145 after the jury had commenced their deliberations. Ground 2 alleges that there was a miscarriage of justice when the trial judge failed to make adequate enquires about an internal issue concerning the jury. Ground 3 alleges that there was a miscarriage of justice when the trial judge failed to discharge the jury as a whole once he determined that Juror 145 was to be discharged. Leave to appeal has been granted on ground 3. The application for leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal.[31]
[31] Order of Buss P, Mazza JA and Beech JA, 23 August 2018.
For the following reasons, none of the grounds are established. While I would grant leave to appeal on ground 1, leave to appeal on ground 2 should be refused and the appeal should be dismissed.

The discharge of Juror 145

As noted above, Juror 145 remained in the jury box after the other members of the jury returned to the jury room. When asked by the trial judge to go back into the jury room, Juror 145 complained that he was 'feeling quite dizzy', 'claustrophobic' and 'uncomfortable in there'.[32] When asked if he felt as though he could go back into the jury room, Juror 145 indicated that he could not and that 'it's quite hostile'.[33]
[32] Trial ts 455.
[33] Trial ts 455 - 456.
After asking Juror 145 to step out of the courtroom while he heard from counsel, the trial judge asked Juror 145 what was making him feel as if the environment in the jury room was hostile. The following exchange then occurred:[34]
JUROR 145: Well, I have my own opinion.
DERRICK DCJ: Yes.
JUROR 145: I feel as though people are promoting their own views. I'm not sure that I can explain it.
DERRICK DCJ: No, you don't need to tell me what your opinion is, but, all right, so you're expressing your opinion, other people are expressing their opinions.
JUROR 145: The majority.
DERRICK DCJ: All right.
JUROR 145: I'm just on my own.
[34] Trial ts 457.
In the following exchange, Juror 145 then referred to being offered money as a joke:[35]
DERRICK DCJ: I see, and do I understand from what you're saying that some of the opinions being expressed in the jury room are being expressed forcefully?
JUROR 145: Correct. I was offered money to vote a particular way, maybe as a joke, but I still feel uncomfortable.
DERRICK DCJ: All right. So somebody offered you money to vote in a particular way, is that what you just said?
JUROR 145: As a joke.
DERRICK DCJ: As a joke?
JUROR 145: But still it adds to my uncomfortableness.
[35] Trial ts 457 - 458.
Juror 145 then indicated that he felt there was no point in him going back to the jury room 'because we're not going to reach an agreement, not from this point, I think'.[36] At this point, the trial judge was told by the Sheriff's officer that the jury had been instructed not to engage in any deliberations at that time, and his Honour asked Juror 145 to step out of the courtroom again.[37]
[36] Trial ts 458.
[37] Trial ts 458 - 459.
In the course of hearing from counsel, his Honour made the observation, with which the appellant's trial counsel agreed, that Juror 145's reference to claustrophobia was 'really' to feeling as though he was under pressure.[38] Following Juror 145's return, the trial judge told him that he was minded to ask Juror 145 to return to the jury room, and asked what his response would be. Juror 145 indicated that:[39]
JUROR 145: I just don't think there's a point. We're not - - -
DERRICK DCJ: All right.
JUROR 145: - - - going to - we've been talking about one thing for the last four - four hours.
DERRICK DCJ: All right.
JUROR 145: (Indistinct) agree on anything.
[38] Trial ts 461.
[39] Trial ts 464.
The trial judge then asked Juror 145 to return to the jury room, to which the juror repeatedly responded that he felt uncomfortable doing that.[40] After hearing further submissions from counsel in the absence of Juror 145, the following exchange occurred:[41]
[40] Trial ts 464 - 465.
[41] Trial ts 466.
DERRICK DCJ: You can just remain standing, thank you, Juror 145. I've listened carefully to what you've had to say, I accept you're uncomfortable, but what I said previously still holds. I'm not satisfied there's any proper basis to not require you to continue with your deliberations. I require you to return to the jury room and to continue deliberating with the rest of the jury. Thank you. Thank you, Madam Jury Officer.
JUROR 145: Your Honour?
DERRICK DCJ: Yes, thank you.
JUROR 145: I'm going to have a panic attack.
DERRICK DCJ: Why do you say that?
JUROR 145: I just feel uncomfortable.
DERRICK DCJ: I know you've told me you feel uncomfortable but there's a difference between feeling uncomfortable, Juror number 145, and not being able to actually continue with the jury and deliberate.
JUROR 145: It's a very small confined space stuck in there with 11 other people. We have a different view of things, we don't agree on anything. The majority (indistinct).
DERRICK DCJ: Don't - I don't need to - I know you're in the minority and I understand that. All right.

After asking Juror 145 to step outside again, the trial judge made the following observations:[42]
DERRICK DCJ: Yes. It's a combination of things, it seems to me. He's clearly feeling uncomfortable holding a minority view. That in itself is not a basis for discharging him, I accept that.
But now when I am effectively saying I want him to continue deliberating, he's now telling me that it's a small room. He's going to have a panic attack if he's required to go back into the room. It seems to me he's now got to the point where he is telling me that physically he does not feel capable of returning to that room.
[42] Trial ts 467.
The appellant's trial counsel, who up to that point had been opposing the discharge of Juror 145, acknowledged the trial judge's observations and said that he had no further submissions in the circumstances. After the appellant's trial counsel took further instructions, he indicated that the appellant did not oppose the discharge of Juror 145.[43] The prosecutor indicated his agreement with the juror being discharged.[44]
[43] Trial ts 468.
[44] Trial ts 467.
Juror 145 was then discharged by the trial judge.[45] The balance of the jury were returned and the trial judge advised:[46]
Members of the jury, I'm sorry to disturb you in your deliberations. I just wanted to bring you back into court to tell you that I have, for reasons that I do not need to go into, exercised a power I have to discharge Juror 145 from serving further as a member of the jury. The law does permit a trial to proceed with 11 jurors, so I have discharged him. So now the verdict will be returned by the 11 of you. So you should now continue your deliberations.
[45] Trial ts 468.
[46] Trial ts 469.
The jury of 11 returned to consider its verdict at 4.00 pm, and returned with its unanimous verdicts at 4.17 pm.

Statutory provisions

The following provisions of the Criminal Procedure Act 2004 (WA) (CP Act) are relevant to the determination of this appeal:
114. Jury's verdict to be unanimous except in some cases
(1)Subject to this section, the verdict of a jury must be the unanimous verdict of its members.
(2)If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, has not arrived at a unanimous verdict, the decision of 10 or more of the jurors shall be taken as the verdict on the charge.
(3)If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, 10 or more of the jurors have not agreed on a verdict, the judge may discharge the jury from giving its verdict on the charge.
…
(5)Subsections (2) and (3) do not prevent a judge from requiring a jury to deliberate for more than 3 hours.
115. Discharging juror
(1)The powers in this section may be exercised at any time before a jury gives its verdict.
(2)The judge may discharge a juror from a jury if satisfied that the juror should not be required or allowed to continue in the jury and if the discharge will leave at least 10 jurors remaining.
(3)If a juror is discharged under subsection (2) the verdict of the remaining 10 or more jurors has the same effect as if the whole jury had continued to be present.
…
116. Discharging jury
(1)The powers in this section may be exercised at any time before a jury gives its verdict.
(2)The judge may discharge the jury from giving its verdict on a charge if the judge is satisfied it is in the interests of justice to do so.
(3)If under subsection (2) or another enactment a jury is discharged from giving its verdict in a trial of a charge, the trial is discontinued.
…

Disposition of grounds 1 and 2

Grounds 1 and 2 in effect challenge the trial judge's decision to discharge Juror 145 without making further enquiries.
The trial judge's power to discharge the juror was conferred by s 115 of the CP Act. There were two conditions to the existence of that power. One condition was that the discharge of Juror 145 would leave at least 10 jurors remaining. That condition was clearly satisfied, as 11 jurors remained after the discharge of Juror 145. The other condition for the existence of the power was the trial judge's satisfaction that Juror 145 'should not be required or allowed to continue in the jury'.
In my view, the trial judge was properly satisfied that Juror 145 should not be required or allowed to continue in the jury for the appellant's trial. The juror had been directed to return to the jury room to continue deliberations multiple times and had effectively refused to do so. Although not verbalising an outright refusal, the juror did not go back into the jury room when requested but rather explained his difficulties in doing so. On reading the transcript and listening to the recording of the proceedings, in my view it was open to the trial judge to form the view that Juror 145 did not feel emotionally capable of returning to the jury room. Further, the trial judge had the advantage of observing Juror 145's physical state and demeanour, an advantage that must be kept in mind by this court in making its assessment as to the proper exercise of the power to discharge the juror. There was little more that the trial judge could have done. It would have been plainly inappropriate for a juror to be physically forced back into the jury room, much less a juror who says that he is going to have a panic attack. In my view, the trial judge's power under s 115 of the CP Act to discharge Juror 145 had been enlivened, and in the circumstances the power was appropriately exercised by discharging the juror.
The appellant also contends that:[47]
His Honour should have directed the jury as a whole that each juror was obliged to listen respectfully to the views of every other juror and that inducements must not be offered to any juror, even as a joke, to influence his or her views about the verdict on any of the charged offences.
[47] Leave to amend ground 1 to add this particular was granted at the hearing of the appeal.
The appellant submits that the trial judge failed to make any enquiries about the matters raised by Juror 145 with the other 11 jurors, in particular as to the offer of money to Juror 145. The appellant points[48] to s 123 of the Criminal Code, which prohibits attempting to influence a juror by corrupt means. The appellant also contends that the trial judge failed to enquire of Juror 145 why he regarded the offer of money to him as a joke.
[48] Appellant's submissions, par 67.
I do not accept that the matters referred to in the previous two paragraphs provide any basis for impugning the trial judge's decision to discharge Juror 145 without making further enquiries.
Juror 145 had not described any criminal or other misconduct by other members of the jury, or anything which gave rise to a reasonable suspicion that other members of the jury had engaged in such misconduct.[49] While it may have added to Juror 145's 'uncomfortableness', [50] he understood the offer of money to change his vote as a joke. There is nothing to suggest that the statement was anything else, or was apprehended by trial counsel or the trial judge to have been made other than in jest.
[49] Compare Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473.
[50] Trial ts 458.
Otherwise, what Juror 145 described was his own psychological reaction to being in the position of holding a view different to that of other jurors. Other than the reference to the joke, there was no contention that other jurors were expressing their views in an inappropriate manner. The hostility to which Juror 145 initially referred was subsequently explained as the forceful expression by other members of the jury of views with which Juror 145 did not agree. The appellant's submission that it can be distilled that '[t]he conversation in the jury room went beyond being merely robust'[51] should be rejected. There was no basis in these circumstances for the trial judge to have made further enquiries as to the content of confidential discussions in the jury room. Juror 145's refusal to participate in further deliberations can be seen to flow from his reaction to being in a position where all other members of the jury were forcefully expressing views contrary to his own, rather than from those contrary views being expressed in an inappropriate manner.
[51] Appellant's submissions, par 36(v).
It would certainly have been open to the trial judge to have given a direction in the terms referred to in the passage quoted at [91] above. However, the material before this court does not support a conclusion that such a direction would have resulted in Juror 145 returning to the jury room. In any event, the important point is that the proper exercise of the trial judge's power to discharge Juror 145 did not depend on the giving of such a direction. I do not regard the failure to give such a direction before the discharge of Juror 145 to be an irregularity in the trial.
In my view, Juror 145 was regularly discharged in the proper exercise of the trial judge's power under s 115 of the CP Act. There was no error of law involved in the trial judge's decision, nor any irregularity in the trial which constituted a miscarriage of justice.
While I would grant leave to appeal on ground 1, the ground is not established. I would refuse leave to appeal on ground 2.

Disposition of ground 3

Power to discharge the whole jury from giving its verdict

The trial judge did not expressly consider whether he should discharge the whole jury under s 116 of the CP Act. Neither counsel at trial requested his Honour to do so. It is implicit in his Honour's approach that he saw no reason to discharge the jury as a whole.
In Wu v The Queen,[52] the decision to discharge a juror and the decision to proceed with a jury of less than 12 were described as distinct steps which will often be affected by different considerations. Those comments were made in a statutory context where s 22 of the Jury Act 1977 (NSW) provided for a jury to remain properly constituted following the discharge of any member of the jury 'if the court … so orders'. That is, the continuation of a trial by a jury of less than 12 required the making of an order by the court.[53]
[52] Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 [6], [26], [63] - [66], [103].
[53] Similarly s 57 of the Jury Act 1995 (Qld), considered in R v Blackmore [2016] QCA 181, required a direction by the judge before a trial could continue with the remaining jurors after the death or discharge of a juror.
By contrast, the CP Act does not require an order before a jury of at least 10 can continue to deliberate after the discharge of an individual juror. Rather, it is the discharge of the jury which requires the exercise of the separate power under s 116 of the CP Act. The power to discharge the whole jury is only available for exercise if the judge 'is satisfied it is in the interests of justice to do so'. The appellant's contention that the trial judge erred in failing to exercise the power necessarily involves the contention that, on the material before the trial judge, he could not properly fail to be satisfied that it was in the interests of justice to discharge the whole jury from giving its verdict.

Authorities

There is no authority to which we were referred, or which I have been able to locate, which addresses the manner in which the power conferred by s 116 of the CP Act should be exercised in circumstances of the present kind.[54] However, the issue has been considered, albeit in different statutory contexts, by other Australian intermediate appellate courts.
[54] As to how the power should be exercised where there is a reasonable apprehension that a member of the jury has demonstrated partiality see Haruna v The Queen [2013] WASCA 170; (2013) 233 A Crim R 354 [65] - [78].
A convenient starting point is the decision of the Queensland Court of Appeal in R v Roberts.[55] In that case, a complaint had been made to the trial judge that an individual juror, who was the only juror holding a view as to a matter, was not prepared to discuss the matter and was acting aggressively towards other jurors. The court held that the trial judge erred, on various grounds, in discharging the juror about whom the complaint was made. One of the matters referred to by Cullinane J, with whom other members of the court agreed, was that:[56]
To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict, something which the law of this State does not permit.
The public perception includes as well as the general perception of the public that of the accused and the jurors concerned.
[55] R v Roberts [2004] QCA 366; [2005] 1 Qd R 408.
[56] Roberts [46] ‑ [47].
While this passage concerned the discharge of an individual juror, it has since been applied in considering whether the jury as a whole should be discharged.[57]
[57] BG v The Queen [2012] NSWCCA 139; (2012) 221 A Crim R 215 [121]; Blackmore [56].
In BG, the NSW Court of Criminal Appeal considered a case where a juror had been discharged during deliberations after sending a note referring to a personal commitment. The appellant in that case was subsequently convicted of all counts on the indictment by a majority of 10:1 of the remaining jurors. On appeal, he contended that there had been a miscarriage of justice by the trial judge discharging the juror and allowing the trial to continue with 11 jurors. Adamson J, with whom the other members of the court agreed, made the following observations as to the general approach to be adopted:[58]
[58] BG [103] - [105].
On my analysis of the cases, there are three categories of case in which the question arises whether the trial should continue with the remaining jurors when one juror has been discharged. These are:
(1) Where there is no indication how the discharged juror would have voted;
(2) Where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and
(3) Where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal.
By and large, the effect of the authorities is that is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors if the case falls into either the second or the third categories. In such cases, there is a risk of a substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.
What occurs in a jury room is beyond the province of the Court. Such an inquiry has long been held to be impermissible … What distinguishes categories 2 and 3 from category 1 is that in those categories, something is known or can be inferred about what has transpired in the jury room such as to give rise to a substantial miscarriage of justice if the trial continues with the remaining jurors.
BG was held to fall into category 1, where the power to continue with 11 jurors was properly exercised.
BG was applied by the NSW Court of Criminal Appeal in GL v The Queen,[59] which was also a case in the first category identified by Adamson J in BG.
[59] GL v The Queen [2014] NSWCCA 68 [107] - [108].
BG was also applied by the Queensland Court of Appeal in Blackmore. In that case, a juror who reported feeing unwell and pressured was discharged while the jury were deliberating, after the trial judge had indicated that she would accept a majority verdict of 11 out of the 12 jurors. The discharge meant that a majority verdict of 10 out of 11 jurors would be accepted. The remaining 11 jurors delivered a unanimous verdict on one count and a majority verdict of 10 jurors on two other counts. Margaret McMurdo P, with whom the other members of the court agreed, determined that there was no miscarriage of justice because the case fell within the first category identified by Adamson J in BG. On that basis, the circumstances did not preclude the trial continuing with 11 jurors. In reaching that conclusion, Margaret McMurdo P observed:[60]
[T]he starting point in exercising that discretion is that the appellant was entitled to be judged by 12 jurors and every juror is a potential forensic advantage. Roberts and BG make clear that if there is evidence that the discharged juror is a dissenting juror, the trial should not continue with the remaining jurors.
In Blackmore, it was held that there was no reason for a fair minded, informed member of the public to perceive, even with hindsight, that allowing the trial to continue with 11 jurors had caused a substantial miscarriage of justice because the discharged juror was a dissenting juror.[61]
[60] Blackmore [54].
[61] Blackmore [56].
The approach in BG was also referred to with approval by the NSW Court of Criminal Appeal in Phan v The Queen.[62] That case concerned Commonwealth drug offences, for which a unanimous verdict was required by s 80 of the Constitution.[63] After a long trial, the jury had deliberated for a total of 46 days between 12 October 2015 and 5 January 2016. Three jurors had been discharged during the course of deliberations, reducing the jury panel to 9 members. Price J, with whom the other members of the court agreed, observed:[64]
The views of Juror's 2 and 3 were not known at the time of the juror's discharge. Nevertheless, the timing of the verdict such a short time after the nine jurors resumed their deliberations leads to the reasonable inference that to continue with the remaining jurors gave rise to the risk of a substantial miscarriage of justice. With the benefit of hindsight, a fair-minded informed observer could conclude that either Juror 2 or Juror 3 (or both of them) was holding out as a dissenting juror for an acquittal of the appellant, or at least was unwilling to convict. A fair‑minded informed observer could also conclude that the reason Juror 3 was unwell and lying on the jury room floor on 24 December and suffered from a recurrence of a severe anxiety disorder was that he was in the minority. This is more than mere speculation. In my opinion, the case falls within the third category of Adamson J's analysis in BG.
[62] Phan v The Queen [2018] NSWCCA 225.
[63] Cheatle v The Queen (1993) 177 CLR 541.
[64] Phan [190].
Price J went on to conclude that, in any event, the trial judge had erred by not considering whether it could be inferred that the ability of the nine remaining jurors to carry out their function had been compromised, and in not reconsidering whether continuation of the trial gave rise to a risk of a substantial miscarriage of justice.[65]

Miscarriage in a case where a unanimous verdict is required

[65] Phan [191] - [193].

I have no difficulty accepting the proposition that there may be a miscarriage of justice where a unanimous verdict is required and it can be inferred, even if only with the benefit of hindsight, that a discharged juror was a sole dissentient in favour of acquittal.
As McHugh J noted in Wu,[66] for hundreds of years the common law insisted that no person be convicted of serious crime without the unanimous verdict of 12 jurors. The requirement for unanimity, which has been held to be an essential feature of the constitutional concept of a trial by jury, reflects the fundamental thesis of the criminal law that a person accused of a crime should be given the benefit of any reasonable doubt. Assuming all jurors are acting reasonably, the return of a verdict of a majority of jurors over the dissent of others suggests the existence of a reasonable doubt and carries a greater risk of conviction of the innocent than does a unanimous verdict.[67] The concept of a trial by jury also involves fact‑finding by a randomly selected group of laypersons which is large enough to promote group deliberations, free from outside attempts at intimidation, and to provide a fair possibility of obtaining a representative cross-section of the community.[68]
[66] Wu [27].
[67] Cheatle (553, 561).
[68] Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278 [21] - [22], [67] - [68].

Where there has been no legislative encroachment upon the above common law principles, the discharge during the jury's deliberations of a juror who can be inferred, even if only with the benefit of hindsight, to be a dissenting voice in favour of acquittal can be seen to conflict with the above principles in a manner which gives rise to a miscarriage of justice. That discharge has the consequence of depriving the accused person of a chance of avoiding conviction. The accused may be found guilty even though the randomly selected panel of 12 jurors has not unanimously been satisfied beyond reasonable doubt of his or her guilt. The discharge of an individual juror in those circumstances may readily give rise to a perception that an obstacle to a verdict has been removed. This was the situation which arose in Phan.
The same position arises where the law provides for a majority verdict and it can be inferred, even if only with the benefit of hindsight, that the removal of a dissenting voice was necessary for the achievement of the required majority. That would have been the position in BG if there had been a basis for inferring that the discharged juror was a dissentient. As noted above, BG was eventually convicted by a majority of 10:1 of the remaining jurors. Section 55F of the Jury Act 1977 (NSW) only provided for a majority verdict of 11 out of 12, or 10 out of 11, jurors. If the discharged juror was a dissentient, then that juror's vote in favour of acquittal would have prevented a majority verdict from being achieved.
That would also have been the position in Blackmore if there had been a basis for inferring that the discharged juror was a dissentient. The Queensland legislation considered in Blackmore allowed for a majority to prevail only over a single dissenting juror. In that case the jury delivered majority verdicts on two counts after the discharge of one juror. It could be seen that there was one juror, other than the discharged juror, who dissented in favour of acquittal on those counts. If the discharged juror was also a dissenting juror, then the discharged juror's vote would have prevented a majority verdict being reached on those counts.

Was there a miscarriage of justice in the present case?

However, in my view different considerations arise where the applicable legislation provides for a majority verdict and it cannot be inferred that the discharged dissentient juror could have prevented a verdict of guilty on the charge. Account must be taken of the valid legislative modification, by sections 114 - 116 of the CP Act, of the common law requirements referred to at [111] above.
The present case falls within the third category of cases identified by Adamson J in BG. It could be inferred from the statements made by Juror 145 that his was the sole dissenting voice in the jury room. The statements made by Juror 145 to the trial judge did not indicate whether his view was in favour of conviction or acquittal. However, the reasonable inference to be drawn by this court from Juror 145's statements to the effect that 'we don't agree on anything', combined with the return of unanimous verdicts 17 minutes after the discharge of Juror 145, was that Juror 145 was the only juror of the view that the verdict on the drugs charges should be 'not guilty'. The State concedes that this inference should be drawn.[69] Therefore with the benefit of hindsight (ie in light of the verdicts delivered and the time at which they were delivered) it can be inferred that Juror 145 would, if not discharged, have voted for an acquittal of the drugs charges.
[69] Appeal ts 49 - 50.
However, there was no miscarriage of justice in allowing the balance of the jury to continue deliberations after the discharge of Juror 145. The provisions of s 114 of the CP Act enabled a majority verdict of 10 or more jurors to be delivered after more than 3 hours' deliberation. Given those provisions, Juror 145 was not an obstacle to the appellant's conviction of the drugs charges. It is not to the point that the jury had not yet been informed of their capacity to deliver a majority verdict. Nor does my view turn on whether or not the 3 hour time period referred to in s 114 of the CP Act had passed. The point is that the provision for the jury to be able to deliver a majority verdict meant that Juror 145 could not, as sole dissentient, ultimately prevent the jury returning verdicts of guilty on the drugs charges. The discharge of Juror 145 did not result in the appellant losing any chance of avoiding conviction of those charges.
Further, the manner in which Juror 145 was discharged does not give rise to any reasonable perception that he was discharged to remove an obstacle to a verdict. He did not actually present an obstacle to a verdict. In identifying what perceptions can reasonably arise, it may be relevant to consider whether knowledge of the provision in the CP Act for majority verdicts can be attributed to the reasonable observer. I would favour taking account of the provision as that reflects the actual legal position. But even without that knowledge, the circumstances of the present case do not give rise to an inference that Juror 145 was discharged to remove an obstacle to a verdict. The trial judge repeatedly exhorted Jury 145 to return to the jury room to continue deliberations with other members of the jury. Juror 145 was discharged because he refused to do so, not because he was a dissenting voice. This would have been clear to a reasonable observer.
Nor can it be said that the discharge of Juror 145 had the effect of depriving the appellant of a voice in the jury room favouring his acquittal on the drugs charges. The jury had been deliberating for 4 hours before Juror 145 refused to return to the jury room. It is implicit in Juror 145's statements to the trial judge that he had been making his views known during that time.
None of the authorities to which I have referred have found, in the context of provision for majority verdicts, that a miscarriage of justice has actually arisen in a case falling within the third category identified by Adamson J in BG:
(1)Roberts and Phan were decided in the context where unanimous verdicts were required, and in each case there were other reasons for concluding that there had been a miscarriage of justice. In Roberts it was held that the power to discharge the juror did not arise, and had been exercised having regard to irrelevant considerations. In Phan the trial judge erred by failing to consider the reasonableness and well-being of the remaining jurors after an extraordinarily long period of deliberations.
(2)Blackmore was held to be a case in the first category identified by Adamson J in BG and, as explained at [114] above, a vote by the discharged juror in favour of acquittal would have prevented a majority verdict of guilty on two counts.
(3)BG and GL were both decided in a context where there was provision for majority verdicts, but both fell within the first category of cases identified by Adamson J in BG. BG was also a case where a vote by the discharged juror in favour of acquittal would have prevented the majority verdicts of guilty, as explained at [113] above. It may also be noted that 55F of the Jury Act 1977 (NSW) is more restrictive than s 114 of the CP Act. A majority verdict is only allowed in New South Wales if the judge is satisfied of certain matters, after examination on oath of one or more jurors.[70]
[70] See Tabalbag v The Queen [2016] NSWCCA 48; (2016) 258 A Crim R 240.
BG and GL decided that a miscarriage of justice did not arise where a juror was discharged during deliberations and there was no indication as to how the discharged juror would have voted. Those cases do not, in my view, establish that a miscarriage of justice will inevitably arise in all circumstances when it can be inferred that the discharged juror would have voted for acquittal. Adamson J identified what her Honour analysed to be the effect of the authorities '[b]y and large'.[71] I do not read what her Honour said as necessarily denying the possibility that there may be some circumstances in which continuing without a discharged juror whose vote can be inferred does not give rise to a miscarriage of justice.
[71] BG [104].
In the particular circumstances of the present case, there was no injustice to the appellant in proceeding with the remaining 11 jurors once Juror 145 was discharged. It may be inferred, with the benefit of hindsight, that Juror 145 was the sole dissentient in favour of acquittal on the drugs charges. However, in light of the provision for majority verdicts, that fact did not mean that the discharge of Juror 145 deprived the appellant of any chance to avoid conviction on those charges. The manner in which Juror 145 was discharged did not provide any reasonable basis for perceiving that he was being discharged to remove an obstacle to a verdict. Juror 145 had been a voice in the jury room in favour of acquittal over an extended period of deliberations.
In these circumstances, the trial judge could properly fail to be satisfied that it was in the interests of justice to discharge the whole jury from giving its verdict following the discharge of Juror 145. There was no error in the failure of the trial judge to exercise his power under s 116 of the CP Act. No miscarriage of justice otherwise arises in the circumstances described above.
In my view, ground 3 is not established.

Orders

For the above reasons, I would grant leave to appeal on ground 1, refuse leave to appeal on ground 2, and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell
15 JULY 2019