Kawana v The King
[2024] VSCA 219
•26 September 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0147 |
| MICHAEL KAWANA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL, WALKER and MACAULAY JJA |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 29 August 2024 |
| DATE OF JUDGMENT: | 26 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 219 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1085 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Conviction – Sexual offending against former intimate partner – Trial by jury – Judge discharged two jurors and continued trial with jury of 10 – Judge considered whether high degree of need to discharge whole jury but not whether positive or good reason existed to continue trial with only 10 jurors – Judge erred in failing to consider if positive or good reason to continue trial with reduced jury – Substantial miscarriage of justice – Application for leave to appeal granted – Appeal allowed – Convictions set aside and new trial ordered.
Juries Act 2000, ss 43, 44; Criminal Procedure Act 2009, s 276.
Wu v The Queen (1999) 199 CLR 99; Baini v The Queen (2012) 246 CLR 469; Kennedy v The King [2023] VSCA 86 applied.
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| Counsel | |||
| Applicant: | Mr PJ Smallwood with Mr JD Cleveland | ||
| Respondent: | Mr RL Gibson KC | ||
Solicitors | |||
| Applicant: | Adrian Paull Criminal Lawyers Pty Ltd | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
Introduction and summary
Background
The offending
Trial process
Relevant legal principles
Ground 1
Submissions
Did the judge fail to apply the correct test?
Was there a substantial miscarriage of justice?
Conclusion
NIALL JA
WALKER JA
MACAULAY JA:
Introduction and summary
On 5 April 2023, the applicant was convicted by a jury of seven indictable offences. He had also pleaded guilty to three related summary offences. On 28 June 2023, he was sentenced to a total effective sentence of 7 years and 7 months’ imprisonment, not to be eligible for parole for 5 years. He now seeks leave to appeal his convictions,[1] alleging deficiencies in the trial judge’s decision to discharge two jurors and continue his trial with 10 jurors.
[1]The submissions on the application for leave to appeal did not distinguish between the convictions that resulted from the jury’s verdict (on the indictable offences), and those that resulted from the applicant’s guilty plea (the summary offences). As stated below, we will not grant leave to appeal against convictions resulting from a plea of guilty, hence these reasons focus on the convictions for the indictable offences.
More particularly, the applicant proposes two grounds of appeal, namely that:
(a)a substantial miscarriage of justice occurred as a result of the learned trial judge’s failure to consider whether there was a ‘positive’ or ‘good’ reason to continue with 10 jurors (proposed ground 1); and
(b)further, and in the alternative, a substantial miscarriage of justice occurred as a result of the learned trial judge’s failure to discharge the jury in circumstances where a juror had engaged in bullying and otherwise acting inconsistent with their oath (proposed ground 2).
For the reasons that follow, we would grant leave to appeal on proposed ground 1 in relation to the indictable offences, allow the appeal and set aside the convictions for the indictable offences, and direct that there be a new trial. It is unnecessary to consider proposed ground 2.[2]
[2]For convenience, the proposed grounds of appeal will hereafter be referred to as ‘grounds’.
Background
The offending
The seven indictable offences consisted of two counts of rape,[3] four counts of sexual assault,[4] and one count of sexual assault by compelling sexual touching.[5] The three summary offences were each of contravening a family violence intervention order.[6] These three matters were uplifted by consent to be dealt with at the same time as the indictable offences.
[3]Contrary to s 38(1) of the Crimes Act 1958.
[4]Contrary to s 40 of the Crimes Act 1958.
[5]Contrary to s 41 of the Crimes Act 1958.
[6]Contrary to s 123(2) of the Family Violence Protection Act 2008.
Each alleged offence occurred between November 2018 and February 2020. They were committed against a single complainant, RT,[7] with whom the applicant had previously been in an intimate relationship. The applicant and RT had a child together, and RT had a child from a previous relationship. The applicant’s intimate relationship with RT ended around November 2016.
[7]A pseudonym.
Around the middle of November 2018, the applicant went to RT’s home to see the children. The prosecution case at trial was that the applicant hugged RT, pressed her against the wall, tried to kiss her and, against her rejections, placed his hands beneath her pyjamas and penetrated her vagina with his fingers: Rape (charge 1). Soon after, RT spoke to police and sought an intervention order. An interim family violence intervention order was granted, which permitted the applicant only to contact RT by email or text message to negotiate child arrangements.
Following the grant of the interim family violence intervention order, there was a break in contact for some time between RT and the applicant. After a few months, however, RT permitted the applicant to come to her house to see the children, and he occasionally provided them with money. The remaining six indictable offences were alleged to have occurred over three separate occasions between April 2019 and February 2020 during the applicant’s visits to RT’s house.
On the first occasion, the applicant forced RT to touch his erect penis: Sexual assault by compelling touching (charge 2). He also penetrated her vagina with his fingers: Rape (charge 3). On the second occasion, the applicant rubbed his hand over RT’s groin, and over her clothing: Sexual assault (charge 4). After she pushed the applicant’s hands away, he moved his face into her groin: Sexual assault (charge 5). On the third occasion at the house, the applicant reached around RT and touched her breasts from behind: Sexual assault (charge 6). He then moved his hands from her pants and started cupping her backside, and then moved his hands towards her vagina: Sexual assault (charge 7).
On each of these occasions, the touching and penetration was alleged to have occurred without RT’s consent and against her active resistance.
At trial, the applicant did not deny the various sexual acts, but denied that they were non-consensual. At trial, RT gave evidence, as did her oldest daughter, who gave evidence of certain alleged sexual misconduct by the applicant towards RT, although not in relation to the charged acts. The third witness was the informant. The prosecution relied upon some text messages and the recording of a pretext call which were tendered as admissions on the part of the applicant. The applicant gave a ‘no comment’ interview to police and did not call or give evidence.
In short, the issues at trial were whether or not RT consented to the sexual acts and whether the applicant did not reasonably believe that she did consent. Apart from the evidence of RT’s daughter about some uncharged acts, and the contents of the text messages and pretext call, the prosecution case against the applicant depended upon the jury accepting RT’s account.
Trial process
The issues raised by the grounds of appeal require that the history of the trial process be set out in some detail.
On 16 March 2023, a jury was empanelled in the applicant’s trial. However, this jury was discharged five days later, after one juror tested positive for COVID-19 and another juror unintentionally interacted with the applicant outside of court.
On Thursday 23 March 2023, a new jury was empanelled and a second trial began. Much of the evidence in the first trial had been recorded, and so was simply played to the second jury. Three witnesses were called by the prosecution:
(a)RT, whose recorded evidence was played to the jury over the course of Friday 24 March and Monday 27 March;
(b)RT’s daughter, whose evidence was played to the jury on Tuesday 28 March; and
(c)the informant (that is, the investigating police officer), whose evidence was also played to the jury on Tuesday 28 March.
The applicant did not give evidence and did not call any witnesses. In total, approximately six and a half hours of recorded evidence was played to the jury. Over the following days, both parties addressed the jury, and the judge charged the jury. The jury began deliberating shortly before lunch on Friday 31 March. After approximately one and a half hours, the judge sent the jury home for the weekend to return the following Monday noon to resume their deliberations.
On the afternoon of Monday 3 April, by which point deliberations had been ongoing for approximately four hours in total, the jury sent a note to the judge that stated:
[W]e are at an impasse. We have quite opposing views and are unable to move forward. We would like some direction on where to go from here.
After conferring with the parties, the judge gave the jury a direction to persevere. Following further deliberation that afternoon, the members of the jury were sent home for the evening.
The jury resumed their deliberations on Tuesday 4 April, and were still doing so late into the afternoon. During this time, they had not asked the Court any questions or indicated any further difficulty. Citing this lack of communication with the Court, the applicant applied to discharge the jury. His counsel submitted that, in light of the jury’s ‘impasse’ the previous day and their continued deliberations without reaching a verdict since, there was a risk of a ‘compromised verdict’. He argued that there was a ‘strong degree of need or necessity’ for the judge to discharge the jury.
The prosecution opposed the application. The judge rejected it, finding that there was no high degree of need to discharge the jury, and, again, sent the jury home for the evening.
On Wednesday 5 April, upon the resumption of the proceeding, the judge informed the parties that she had been provided with a further note from one of the jurors. The note read:
On 4 April, 2023, during our deliberations, one of the jurors known as Zac who sits second from the judge’s left in the middle row when we are in the jury box, addressed all jurors and said: “I may be prepared to negotiate with you. I may be prepared to do a deal” – ‘you’ meaning all the jurors. It was said in a firm, loud voice and as though the rest of jurors are beholden or answerable to him. He then referred to some of the charges and said along the lines of: “I may be prepared to say guilty to some charges if you say not guilty to others” as he shuffled through the charges sheet. Another juror said something like, “No, we’re not doing that”. I believe another said, “No, that’s not how it is done”. There were similar comments from others. [Zac’s] response in a loud, intimidating and dismissive voice was, “Fine. I say no to all then”. He then angrily crossed his arms. Apart from this not being anywhere near what we have been asked to do, I saw it as an attempt to intimidate, bribe and coerce us into a decision. It was like he was holding us to ransom.
In the absence of the jury, the judge read the note to the parties and invited submissions on how the matter should be dealt with, expressing her ‘strong preliminary view’ that the juror identified as ‘Zac’ should be discharged pursuant to ss 43(a) and (d) of the Juries Act 2000 (the ‘Act’). The applicant sought to reagitate the previous day’s application to discharge the jury in its entirety. The judge once again rejected that application as having ‘no basis’. The applicant otherwise made no further submissions. The juror in question, Zac, was then discharged.
The remaining 11 jurors were brought into the courtroom and the judge repeated her previous directions to the jury about their role and obligations as jurors in the trial. The judge then asked the jurors to retire to the jury room and to each, confidentially, write on a piece of paper ‘yes’ or ‘no’ in answer to the question whether they could abide by their oath or affirmation to fairly and impartially try the issues in the case.
10 members of the jury wrote that they could abide by their oath or affirmation. One juror wrote that she could not. In response, the judge proposed that that juror be discharged, and the remaining 10 jurors continue to deliberate.
The applicant strongly opposed that course, and applied to discharge the jury on the basis that it was ‘tainted’ by the conduct of the juror identified as Zac. His counsel submitted:
In my submission, the jury is tainted. These events have obviously – be significant in their minds and may lead to an unfair bias and certainly a compromised verdict. The discharge of a further juror leaving a bare minimum of 10 jurors, in my submission, particularly in the context of this jury, are a strong ground of a high need, the necessity to discharge the jury, and I make that strong application, Your Honour.
The judge queried why ‘the fact of having 10 jurors … establishes a strong need’ to discharge the jury. In response, the applicant referred to a combination of factors: having only the bare minimum of 10 jurors; the ‘unsatisfactory’ history of the jury; and the possibility of an ‘unsafe verdict’.
The prosecutor disagreed, submitting that there was a ‘high degree of need to continue’ the trial. The prosecutor identified a public interest in continuing the trial, given that the jury was the second to hear the matter, and that its members (or, more accurately, the remaining 10) had indicated that they ‘weren’t affected by the goings-on of the previous juror who was discharged’.
Having heard the parties’ submissions, the judge determined that the trial would proceed with a jury of 10. The judge stated:
The legislature of Victoria has clearly contemplated a situation whereby a jury of 10 people may continue to try a case.
I do not see a high degree of need to discharge this jury, particularly in the light of the fact that I have specifically asked the 10 jurors who would remain, to make the decision on the charges against Mr Kawana, have indicated specifically today, this morning, just a few minutes ago, that they are capable of abiding by the oath or affirmation that they took to fairly try this case.
It is appropriate that the intimidation and the lack of adherence to the promise to fairly try the case by the first juror I have discharged, should have been brought to the attention of the court.
The fact that another juror has said that they cannot fairly try the case is a clear indication that they must be discharged.
In all the circumstances, I propose to discharge that juror and I do not agree that somehow there has been an unsatisfactory history which will likely or possibly lead to an unsafe verdict when you have 10 jurors who have specifically indicated, just this morning, that they propose to abide by their oath or affirmation taken to fairly try the case.
The judge discharged the juror who had indicated that she could not continue, and then ordered ‘pursuant to the provisions of the Juries Act that [the] trial continue with a jury of 10 persons’. At 11:10 am, the jury resumed deliberating. At 1:50 pm, they delivered a verdict of guilty on all charges.
In summary, after the jurors began deliberating, the following events occurred:
(a)After approximately four hours of deliberating the jurors sent the judge a note saying that they were at an ‘impasse’, and the judge, with the agreement of the parties, directed the jury to persevere in their deliberations;
(b)After the jurors had been deliberating for two days, the applicant’s counsel applied for a discharge of the whole jury, which the prosecution opposed and the judge refused;
(c)At the beginning of the third full day of deliberations, a juror sent the judge a second note complaining about the conduct of another juror, the applicant’s counsel briefly re-agitated his application to discharge the whole jury and the judge again rejected that application;
(d)The judge discharged the juror about whom the complaint was made and asked the remaining 11 jurors whether they were able to abide by their oath or affirmation, 10 of whom said that they could but one said she could not;
(e)In response to the judge’s proposal to discharge that particular juror and continue the trial with the 10 remaining jurors, the applicant’s counsel applied again for the judge to discharge the jury, the prosecutor opposed that course, and the judge refused to do so;
(f)The judge determined that the trial would proceed with a jury of 10 and, after two and a half hours of further deliberation, those jurors brought in a verdict of guilty on all 7 charges.
Relevant legal principles
A criminal trial is ordinarily to be tried before a jury of 12,[8] but may, in particular circumstances, start with as many as 15,[9] and end with as few as 10.[10]
[8]Juries Act 2000, s 22 (the ‘Act’).
[9]Ibid s 23.
[10]Ibid s 44.
If some incident occurs during the trial which may adversely affect its fairness, a judge’s power to discharge the jury is to be exercised in accordance with the principle of necessity. It must be evident that there is a ‘high degree of need for such [a] discharge’.[11] This common law principle applies when a judge is considering discharging an entire jury.
[11]R v Boland [1974] VR 849, 866–7 (Adam, Little and McInerney JJ).
The power to discharge a single juror, and the consequences that follow such a discharge, however, are governed by statute. Section 43 of the Act provides as follows:
43 Judge may discharge juror
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.
Once a judge discharges a juror pursuant to s 43, the question then arises whether the trial should continue with the reduced jury. Section 44 of the Act sets out what should occur if a juror dies or is discharged during a trial:
44 Continuation of trial with reduced jury
(1)Subject to subsections (2) and (3), if a juror dies or is discharged during a trial, the judge may direct that the trial shall continue with the remaining jurors.
(2)A civil trial cannot continue with less than 5 jurors.
(3)A criminal trial cannot continue with less than 10 jurors.
(4)The verdict of the remaining jurors is a sufficient verdict.
In Kennedy v The King,[12] a question arose as to whether the trial judge had erred in deciding to proceed with 10 jurors after two had been discharged. In contrast to the present case, it was the joint position of both the prosecutor and defence counsel that, having discharged two jurors, the judge should not direct pursuant to s 44(1) of the Act that the trial continue with the remaining jurors. The judge disagreed, and directed that the trial continue.
[12][2023] VSCA 86 (‘Kennedy’).
On appeal, McLeish and Kennedy JJA, in one judgment, and Priest JA in another, considered the power to ‘direct that a trial shall continue’ in s 44(1).
McLeish and Kennedy JJA noted the longstanding common law principle that a jury should only be discharged when it has been established that there is a high degree of need to do so.[13] They then turned to the statutory powers in ss 43 and 44 to discharge a single juror and to direct that the trial continue with a reduced jury. Their Honours noted that there had been cases in this Court that might be taken to say that the ‘high degree of need’ concept supplies the test for deciding under s 44 whether a trial should continue with a reduced jury.[14] Their Honours went on:
The ‘high degree of need’ test is applicable in the situation, outside the scope of ss 43 and 44, where the question is whether the whole jury should be discharged other than following the discharge or death of a single juror.[15] Even after a juror has been discharged, it is axiomatic that if there is, in that circumstance, a high degree of need to discharge the jury, then no direction would be made under s 44 for the trial to continue with the existing jury. The issue that arises, however, is whether a direction may be refused in circumstances where it has not been shown that there is a high degree of need to discharge the whole jury.[16]
[13]Ibid [49] (McLeish and Kennedy JJA).
[14]Ibid [50] (McLeish and Kennedy JJA).
[15]Crofts v The Queen (1996) 186 CLR 427, 432 (Dawson J); [1996] HCA 22; Najibi v The Queen (2016) 260 A Crim R 491, 531 [250] (Ashley, Weinberg and McLeish JJA); [2016] VSCA 177.
[16]Kennedy [2023] VSCA 86, [51] (McLeish and Kennedy JJA).
After considering relevant authorities, McLeish and Kennedy JJA concluded that there was no basis to assume that a decision under s 44 as to whether to proceed with a trial after a juror had died or been discharged necessarily was to be made according to the ‘high degree of need’ test. They noted that it may be appropriate to decline to direct that a trial continue, even though there was not a high degree of need to discharge the jury.[17]
[17]Ibid [62] (McLeish and Kennedy JJA).
Having referred to remarks of McHugh J in Wu v The Queen,[18] their Honours endorsed the position of the parties before them that ‘the power in s 44 is not constrained by the requirement to demonstrate a high degree of need to discharge the jury’.[19] Reflecting the longstanding common law right to be tried for serious crime before a jury of 12, they continued, there should be some ‘positive’ or ‘good’ reason to justify continuing to hold a trial with a reduced number of jurors (at least when the number is less than 12).[20] In their view, the requirement for a positive or good reason was not itself a ‘test’ governing the exercise of power in s 44 but, rather, a ‘minimum requirement’.[21] We take their Honours to mean, by making that statement, that finding a positive or good reason to continue with a reduced jury need not determine the question whether to continue; but, without such a positive or good reason, a judge ought not to direct that the trial continue.
[18](1999) 199 CLR 99, 108 [28] (McHugh J); [1999] HCA 52.
[19]Kennedy [2023] VSCA 86, [63] (McLeish and Kennedy JJA).
[20]Ibid [63]–[64] (McLeish and Kennedy JJA).
[21]Ibid [65] (McLeish and Kennedy JJA).
Justice Priest essentially agreed with these principles.[22] Noting that the nature and content of any positive reason for giving a direction under s 44(1) was not spelt out in the Act, and that any finding as to the existence or absence of positive reasons would be informed by the individual circumstances of the particular case, Priest JA ventured some potential relevant considerations, as follows:
… the nature and seriousness of the charge or charges; the time that the trial had proceeded prior to the juror’s discharge; the associated court time and resources wasted, public expense incurred and inconvenience caused, if the trial does not continue; the effect on court backlogs if the trial does not continue; the possible inconvenience to witnesses; and the stress and inconvenience caused to the accused and alleged victims by delay.[23]
[22]Ibid [6]–[9] (Priest JA).
[23]Ibid [10] (Priest JA).
We agree with the analysis in Kennedy. As McLeish and Kennedy JJA observed, a finding that there is a high degree of need to discharge a jury (that is, not to continue the trial with that jury) after discharging a juror or jurors will necessarily answer the question (in the negative) whether to direct that the trial continue with the reduced number of jurors. The opposite does not apply. A finding that there is not a high degree of need to discharge the jury does not, of itself, supply a good or positive reason for continuing the trial with the reduced number of jurors. The questions are not the same. Reduced to their simplest terms, one is an enquiry (with a high threshold) as to whether a trial should not continue at all with that jury, and the other is an enquiry (with a different threshold) as to whether it should continue with less than the original complement.
Part 6.3 of the Criminal Procedure Act 2009 provides for the right of an appeal against conviction and how such an appeal is to be determined. The right is provided by s 274, and s 276 sets out how such an appeal should be determined:
276 Determination of appeal against conviction
(1)On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 274.
In Baini v The Queen,[24] the High Court explained that sub-ss (1)(b) and (c) describe categories of substantial miscarriage of justice that occur even if it might have been open to the jury to find the accused guilty beyond reasonable doubt.[25] Therefore:
[A] “substantial miscarriage of justice” encompasses not only cases identified by reference to inaccuracy of result [a reference to sub-s (1)(a)] but also cases identified by reference to departure from process even if it can be shown that the verdict was open or it is not possible to conclude whether the verdict was open.[26]
[24](2012) 246 CLR 469; [2012] HCA 59.
[25]Ibid [27] (French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ).
[26]Ibid.
The Court also explained that the type of substantial miscarriage of justice set out in sub-s (1)(b) describes a case ‘where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’.[27]
[27]Ibid [26] (French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ).
Ground 1
As set out earlier, by the first proposed ground the applicant contends that a substantial miscarriage of justice resulted from the judge’s failure to consider whether there was a ‘positive’ or ‘good’ reason to continue with 10 jurors.
Two questions arise from the way in which this ground was argued before us: first, whether, in fact, the judge did fail to consider if there was a positive or good reason to continue with 10 jurors and, secondly, whether that failure resulted in a substantial miscarriage of justice.
Submissions
The applicant submitted that the judge only considered whether there was a high degree of need to discharge the jury and failed to consider and identify any good or positive reason to continue with the trial with only 10 jurors. In substance, the applicant argued, the judge approached the question on the footing that the trial should proceed unless it was established that there was a high degree of need to discharge the whole jury. At no point, he submitted, did the judge identify a positive reason for continuing with less than 12, indeed only 10, jurors. This, he submitted, amounted to an error in or in relation to the trial.
Because, but for that error, the judge might have concluded that it was not appropriate to continue the trial with only 10 jurors and that a subsequent trial before a different jury might have made a difference to the outcome, a substantial miscarriage of justice therefore resulted from the error.
The respondent submitted that the judge did not apply a wrong legal test, and did in fact find a positive reason to continue the trial with only 10 jurors. Moreover, the existence of a positive or good reason to continue the trial was only the minimum requirement for taking that course and did not constitute a legal test, as McLeish and Kennedy JJA said in Kennedy. Further, it was not wrong to consider whether there was a high degree of need to discharge the jury as part of the reasoning process for deciding, under s 44(1), to direct that the trial continue with a reduced number of jurors.
In this case, the respondent submitted, the judge can be assumed to have known, and to have taken into account, the fact that:
(a)the trial was a second trial;
(b)all the evidence had been tendered, addresses made and charge given, and the jury had been deliberating for a number of days;
(c)despite two jurors having been discharged, the remaining 10 jurors had confirmed that they could try the issues fairly and impartially notwithstanding the conduct of Zac; and
(d)there were, as the prosecutor had submitted to the judge, ‘public policy’ reasons why the trial should continue, which, implicitly, was a reference to the saving of public expense and the avoidance of further vexation of witnesses and parties.
By referring, as she did when proposing to continue with a jury of 10, to ‘all the circumstances’, it should be inferred that the judge decided to continue the trial because she was satisfied that there was good reason to do so.
In the alternative, the respondent argued that even if the judge applied the wrong test or analysis, she nevertheless reached the correct conclusion. Therefore, there could be no substantial miscarriage of justice.
Did the judge fail to apply the correct test?
Two jurors having been discharged, s 44(1) of the Act was engaged. In those circumstances, applying principles derived from Wu and expressed in Kennedy, the judge was required to turn her mind to the question of whether to direct that the trial continue with a reduced number of jurors. Indeed, that question arose each time the judge discharged a juror, and it should have been addressed once Zac was discharged. Nevertheless, no point was made by either party about any failure to consider whether to give such a direction when Zac was discharged.
Given that the note, the re-agitation of the application to discharge the whole jury, the discharge of Zac and the enquiry made of the remaining jurors all occurred in a short space of time, it is, perhaps, understandable that the question of the continuation of the trial with a reduced number of jurors was addressed once it was ascertained how many jurors were prepared to continue in the task. We do not wish, however, to be taken as generally condoning a rolled-up approach to a sequence of individual juror discharges under s 43 without, in each case, first considering under s 44 whether to continue the trial with a reduced jury before considering the discharge of another juror. In an appropriate case, a poll of jurors might assist in the s 44 process.
Unfortunately, neither the prosecutor nor defence counsel raised ss 43 or 44 of the Act. The applicant’s submissions at trial were directed to the question of the discharge of the remaining jury under the common law test, not to the continuation of the trial with a reduced number of jurors pursuant to s 44. No doubt, these two inquiries are close to being two sides of the same coin, but contradicting the first does not necessarily establish the second. As recognised in Kennedy, it is possible for there not to be a ‘high degree of need’ to discharge the whole jury but, also, for there not to be a positive or good reason for continuing the trial with less than 12 jurors.
In express terms, the rival arguments before the judge were, from defence counsel, that there was a high degree of need to discharge the jury and, from the prosecutor, that there was a high degree of need to continue. Even though the prosecutor put the argument too highly, it was directed to the existence of positive reasons to continue. Had the judge come to the view that there were positive reasons to continue with a trial with less than 12 jurors, the applicant’s argument before us would have faced real problems. But the judge did not expressly address herself to positive reasons to continue; rather she explained why she rejected the suggested reasons to discharge.
The judge gave several reasons for continuing the trial with 10 jurors. They were that:
(a)the legislature contemplated a situation whereby a jury of 10 may continue to try the case;
(b)there was no high degree of need to discharge the jury;
(c)10 jurors had indicated that they were capable of abiding by their oath to fairly try the case;
(d)it was appropriate to discharge the two jurors who had been discharged; and
(e)because the remaining jurors had specifically affirmed their ability to abide by their oath or affirmation notwithstanding what had taken place, it was not possible or likely that the alleged ‘unsatisfactory history’ of the jury would lead to an unsafe verdict.
The judge did not make an error in considering whether there was a high degree of need to discharge the jury. As McLeish and Kennedy JJA observed in Kennedy, had there been such a need, plainly it would not have been appropriate to continue the trial with the reduced jury. But determining that there was no high degree of need to discharge the jury did not resolve the s 44(1) issue. As we have explained, the judge was required to identify a positive or good reason for continuing a criminal trial with only 10 jurors and, having established that minimum requirement, to consider whether to direct that the trial continue in the light of that reason and all the other circumstances.
We are unable to discern that the judge engaged in this process and looked for or identified a positive or good reason to give the required direction. We are not suggesting, of course, that the judge had to use those particular words in her reasoning. But there needed to be some sign that the judge was affirmatively persuaded of a positive reason to continue a trial with only 10 jurors.
Instead, the list of reasons we have identified go no further than negating the argument for discharging the whole jury and establishing that the legal requirements to permit the remaining jurors to undertake their task as a jury subsisted. Had less than 10 jurors indicated that they could abide by their oath or affirmation to try the case fairly, or had the judge considered that, because of what had occurred, it was possible or likely that the remaining jurors would deliver an unsafe verdict, there would have been an almost irresistible argument in favour of discharging the whole jury. But the absence of those features did not supply a positive reason to continue with less than 12 jurors, and indeed only 10.
As noted, the respondent submitted that, implicitly, the judge did find a positive or good reason to continue the trial with 10 jurors. That reason, it was submitted, can be inferred from the judge’s use of the phrase ‘[i]n all the circumstances’ shortly preceding her final conclusion. That expression, so the argument went, picked up the prosecutor’s reference to a ‘public interest in continuing’ in the context of the known facts about the stage of the trial and that it was a second trial.
The problem with this submission is that the judge only chose to refer to and meet defence counsel’s arguments as to why the jury should be discharged and the perceived problems of continuing with those 10 jurors. It is not apparent that the judge weighed the value of avoiding the potential cost and inconvenience of holding a further trial, or any other beneficial circumstance, and then found positively in favour of continuing. In that regard, it is to be kept in mind that the entirety of the evidence was recorded and could be played to a jury in the space of little more than six hours. No actual witness was likely to be recalled. Any new trial would be short. Measured against the loss to an accused of the expected full complement of 12 jurors to try his case, and the unquantifiable risk that Zac’s behaviour and the consequential loss of two jurors might have had some distracting effect on the remaining jurors, the benefit of avoiding the cost and inconvenience of a further trial may not have been seen as a net positive if that analysis had been consciously undertaken.
In summary, we do not accept that the judge considered whether, still less found that, there was a positive or good reason to continue the trial with only 10 jurors. It does not avail the respondent to point out that the existence of such a reason is not a test but only a minimum requirement. The judge did not address herself to the minimum requirement; that was an error.
In our view, although the judge did not err by considering whether there was a high degree of need to discharge the jury, her Honour did err by failing to consider if there was a positive or good reason to continue the trial pursuant to s 44(1) of the Act.
We hasten to repeat that the judge did not have the benefit of submissions about the statutory task which she was required to undertake. That is perhaps unsurprising given that neither the judge nor counsel had the benefit of the clarification set out in Kennedy, which was published after the jury’s verdict in this matter.
Was there a substantial miscarriage of justice?
Having found error, we cannot be satisfied that the error did not make a difference to the outcome of the trial.
First, if the judge had properly exercised her discretion to make a direction under s 44(1), there might have been a different outcome to the trial.[28] Had the judge not made the error that she made, it is at least possible that her Honour would not have directed that the trial continue with only 10 jurors. In that case, the applicant would have been tried by a new jury, in a new trial. Because the prosecution substantially turns on the jury’s view of the credibility of RT, it is at least possible that a different jury hearing the evidence might reach a different verdict.
[28]No party submitted that only one decision was reasonably open.
Secondly, this is not a case in which a finding of guilt was inevitable. Although, in oral argument to this Court, the respondent faintly argued that it was such a case, the argument was more directed to whether the judge’s decision to continue with the jury of only 10 might have affected the verdict. It was not submitted that the prosecution case was so strong that a verdict of guilt was inevitable.
For these reasons we are satisfied that, as a result of an error in the trial, there has been a substantial miscarriage of justice. We must allow the appeal.
Conclusion
In light of our conclusion on ground 1 it is unnecessary to consider ground 2.
We will order that the convictions on the seven indictable charges be set aside and that there be a new trial. Because the applicant pleaded guilty to the three summary offences, we will refuse leave to appeal against the convictions for those offences. We will hear from the parties as to what should be done about the sentences imposed for the summary offences.
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