Phan v R

Case [2018] NSWCCA 225 12 October 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Phan v R [2018] NSWCCA 225
Hearing dates: 14 February 2018; 20 August 2018; Written Submissions 3 October 2018
Date of orders: 12 October 2018
Decision date: 12 October 2018
Before: Hoeben CJ at CL at [1];
Price J at [2];
Fullerton J at [200]
Decision:
(1) Appeal upheld.

(2) The appellant’s conviction and sentence are quashed.
(3) List the case for mention at the Sydney District Court on 26 October 2018 at 9.30am
Catchwords:
CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of co-accused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter
CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of co-accused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Criminal Code (Cth), ss 11.1, 11.5, 307.5
Judiciary Act 1903 (Cth), s 68
Juries Act 2003 (TAS), s 43
Jury Act 1977 (NSW), ss 22, 53B, 53C, 55F, 56
The Commonwealth Constitution, s 80
Cases Cited: BG v R [2012] NSWCCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phan v R

Details

AGLC: Phan v The Queen [2018] NSWCCA 225
Case: [2018] NSWCCA 225
Decision Date: 12 October 2018

CaseChat Overview and Summary

Phan was convicted for attempting to possess a commercial quantity of an unlawfully imported border controlled substance. The appeal against the conviction was heard in the High Court of Australia. The appellant argued that the trial judge had erred in allowing the trial to proceed after the discharge of three jurors. This decision led to the jury delivering a guilty verdict against Phan but not against his co-accused. The jury had been deliberating for an unprecedented length of time, and the discharge of the jurors occurred after the trial had already extended beyond two months.

The court considered whether the trial judge erred in ordering the trial to continue with nine jurors after two jurors were discharged. The trial judge had declined to discharge the jury after a note from a juror was examined. The court found that the trial judge should have considered whether the jury's ability to function properly had been compromised. The discharge of the jurors and the subsequent continuation of the trial led to a substantial miscarriage of justice. The High Court held that the trial judge erred in not considering whether the ability of the remaining jurors to carry out their function had been compromised, akin to the error in House v The King. The appellant's conviction was quashed due to this error.

The High Court found that the trial judge's decision to continue the trial with fewer than 12 jurors, despite the lengthy deliberations and the discharge of three jurors, was flawed. The court emphasised the importance of maintaining a fair trial and the secrecy of jury deliberations. The trial judge's failure to consider whether the remaining jurors could effectively perform their duties led to the appellant's conviction being quashed. This decision highlights the critical need for judges to carefully assess the well-being and effectiveness of jurors, especially in trials that extend over a significant period.

The final orders of the court were to quash Phan's conviction due to the errors in the trial judge's handling of the jury's discharge. The court did not remit the matter for a new trial, given the substantial miscarriage of justice that had occurred. This decision serves as an important reminder of the importance of ensuring the integrity and fairness of jury deliberations in criminal trials.

Orders