Ken Tan v Regina
[2007] NSWCCA 223
•19 July 2007
New South Wales
Court of Criminal Appeal
CITATION: Ken TAN v REGINA [2007] NSWCCA 223 HEARING DATE(S): 19 July 2007 JUDGMENT OF: Spigelman CJ at 1, 10; Kirby J at 8; Latham J at 9 EX TEMPORE JUDGMENT DATE: 19 July 2007 DECISION: 1 Conviction quashed; 2 A new trial be held. CATCHWORDS: CRIMINAL LAW – Jurisdiction, practice and procedure – Juries – attendance of court on the wrong day – irregularity invalidates the verdict LEGISLATION CITED: Jury Act 1977 CASES CITED: R v Brown (2004) 148 A Crim R 268 PARTIES: Regina (Appellant)
Ken Tan (Respondent)
FILE NUMBER(S): CCA 2007/955 COUNSEL: D Patch (Appellant)
J A Girdham (Respondent)SOLICITORS: B W Galloway, Galloways Solicitors & Associates (Appellant)
D Kelly, Department of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/1172 LOWER COURT JUDICIAL OFFICER: Geraghty DCJ LOWER COURT DATE OF DECISION: 5 October 2006
2007/955
Thursday 19 July 2007SPIGELMAN CJ
KIRBY J
LATHAM J
1 SPIGELMAN CJ: This is an appeal from a conviction for possessing firearms and possessing prohibited weapons. There is only one ground of appeal: that the trial was a nullity because a juror became part of the jury contrary to the provisions of the Jury Act 1977 (NSW). The ground of appeal relies on a basic error in the constitution of the jury of the trial.
2 A juror who was meant to attend court for jury duty in October 2006 attended in September by mistake. This mistake was compounded by an exceptional coincidence that the juror who attended by mistake had the last three numbers of the call number shared with another juror who was called up for September, but did not in fact attend. This coincidence caused a series of events that led to the juror, who was not meant to attend for court duty on that day, to be selected on the panel which convicted the Appellant.
3 This is a fundamental error of the same character as that which led this Court in an earlier decision to conclude that the trial had been a nullity and that a new trial should be ordered. In written submissions filed before the hearing of this appeal, the Crown conceded that this was an error and that the decision of R v Brown (2004) 148 A Crim R 268 is not distinguishable.
4 The principle involved here is a basic one. Our criminal justice system depends on the complete randomness of selections of jurors. The system is based on a quite simple set of rules, of a character which are in substance self-executing. No one has to make a decision as to whether or not a particular error was of any significance in the particular circumstance or whether a person who attends, as occurred in this case, should be accepted if they give evidence about the nature of their mistake. Our jury system depends on the confidence of the public in the complete impartiality of the jurors. That impartiality is assured by having a simple set of rules that make it certain that individuals are selected at random to serve on juries.
5 It is regrettable when a technical error of this character has the consequence of rendering a trial invalid. However, on the previous authorities in this Court, that is the inevitable consequence of this error.
6 Accordingly, the orders sought by the Appellant, and to which the Crown accedes, ought to be made.
7 In my opinion, the orders of the Court should be conviction quashed and a new trial be held.
8 KIRBY J: I agree.
9 LATHAM J: I also agree.
10 SPIGELMAN CJ: The orders of the Court are as I have indicated.