R (Cth) v Petroulias (No. 32)

[2007] NSWSC 1302

Reported Decision: 179 A Crim R 1

New South Wales

Supreme Court

CITATION:	R (Cth) v Petroulias (No. 32) [2007] NSWSC 1302
HEARING DATE(S):	12 November 2007
JUDGMENT DATE :	14 November 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	The Court noted that the jury had chosen a new foreperson.
CATCHWORDS:	CRIMINAL LAW - trial by jury - jury decides to change foreperson in course of trial - not necessary for good reason for change to be demonstrated - not necessary that original foreperson consent to replacement - jury may choose new foreperson if it sees fit
LEGISLATION CITED:	Jury Act 1977 Jury Amendment Act 2007
CASES CITED:	R v Lonsdale (1915) VLR 269 R v Fowler [2000] NSWCCA 352 Ng v The Queen [2003] 217 CLR 521
PARTIES:	Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr P Hastings QC (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JOHNSON J

14 November 2007

2002/93 Regina (Cth) v Nikytas Nicholas Petroulias (No. 32)

JUDGMENT (On jury decision to change foreperson)

1 JOHNSON J: On 12 November 2007, a note was received from the jury indicating that the jury had chosen a new foreperson (MFI132; T4423).

2 The context in which the jury moved to replace its foreperson appears to arise from some personal tensions in the jury room to which reference has been made in open court (T4402-4403) leading to my addressing comments to the jury (T4404-4406).

3 When the jury returned to Court, I confirmed receipt of the jury note indicating the change of foreperson and noted that the new foreperson was sitting in the jury box in the position traditionally occupied by the foreperson (T4428).

4 Mr Sutherland SC, for the Accused, drew to my attention the decision of Madden CJ in R v Lonsdale (1915) VLR 269 which, according to the headnote, is authority for the proposition that a criminal trial jury may, with the consent of the judge, choose a new foreman where there is good cause and the foreman assents. Mr Sutherland SC felt bound to bring the authority to the Court’s attention but did not contend that these were prerequisites for the replacement of a foreperson of a jury in a criminal trial in this State in 2007. The Crown did not submit that R v Lonsdale laid down principles which were applicable where a jury determines to replace the foreperson.

5 Having considered the relevant authorities, I expressed my satisfaction that the jury may change foreperson if it sees fit and that it is not necessary for the trial judge to be satisfied that there is good reason before this is done nor is it necessary that the former foreperson agree to his or her replacement (T4431). I indicated that I would give short reasons for this conclusion at a later time, in particular having regard to the decision in R v Lonsdale.

6 The position of foreperson of a jury has no statutory foundation in New South Wales under the Jury Act 1977. The foreperson of the jury is a spokesperson, but otherwise wields no authority greater than any other member of the jury: R v Fowler [2000] NSWCCA 352 at [47].

7 In R v Lonsdale, a jury had retired to consider its verdict in a murder trial. According to the report (at 269), the jury returned to Court soon after and the trial judge enquired as to whether the jury desired to ask a question. The foreman did not reply, but another juror said that it was the wish of the whole jury, including the foreman, that another foreman should be chosen since the foreman was somewhat hard of hearing and had an awkward way of expressing himself and the views of the jury. The trial judge asked the foreman if he assented to his being replaced by one of his fellow jurors and he replied that he did. The Crown Prosecutor submitted that there could be no objection to a jury, for good cause shown, in open court and with the consent of the original foreman, substituting another of their number in his place. The Crown Prosecutor stated that he knew of no authority on the point. The complete judgment attributed to the trial judge, Madden CJ, appears as follows at 269-270:

“MADDEN CJ: I know of no authority which prevents me from allowing the jury to act in the way desired, and there can be no objection to the course proposed.
[Another foreman was then chosen by the jury, who again retired, and returned into Court with a verdict of guilty, with a recommendation to mercy].”

8 As is apparent, although the Crown Prosecutor submitted that there could be no objection to a jury for good cause shown, in open Court and with the consent of the original foreman, substituting another in his place and the trial judge allowed this to occur, the case is not authority for the proposition that these are prerequisites before a foreperson may be replaced by the jury.

9 In Ng v The Queen [2003] 217 CLR 521 at 528 [17] (a decision to which I was also referred by Mr Sutherland SC), McHugh J said with respect to replacement of a jury foreperson in a criminal trial:

“Ordinarily, the foreperson does no more than pronounce the jury’s verdict and regularise the jury’s discussion of the issues. There is nothing to stop the jurors changing their foreperson as often as they like.”

10 Kirby J observed in Ng v The Queen at 542-543 [74]-[75]:

“From ancient times a jury has been expected to make corporate decisions for which all participating jurors are told they must accept responsibility [Turner, "Polling the Jurors" , (1979) New Zealand Law Journal 155 at 156; cf R v Cefia (1979) 21 SASR 171 at 173-175] . To communicate with the judge and, at the end of the deliberation, to announce the verdict, it is necessary to have a chosen foreperson who, otherwise, has no higher status or function different from that of the other jurors [ R v Fowler [2000] NSWCCA 352 at [47]].

Under the Victorian legislation the foreperson may be changed by the jury. They may decide to select a replacement during the course of a trial [ R v Lonsdale [1915] VLR 269] . The process of selection and change being private to the jury, the reasons behind it are unknown to the judge, the parties and the community.”

11 The remaining judges of the High Court in Ng v The Queen (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) did not refer to the replacement of a foreperson. However, nothing in the joint judgment is inconsistent with the observations of McHugh and Kirby JJ, who joined in the unanimous dismissal of the application for special leave to appeal.

12 It will be observed that Kirby J referred to R v Lonsdale simply as authority for the proposition that a jury may decide to select a replacement foreperson during the course of a trial.

13 I am satisfied that it is open to a jury in a criminal trial to replace the foreperson at any time. It is not necessary that good cause be demonstrated to the trial judge for this course nor is it necessary that the consent of the former foreperson be sought. The statements of McHugh and Kirby JJ in Ng v The Queen are authority for the proposition that the jury may replace the foreperson during the trial without providing reasons for doing so. This is understandable given the limited function of the foreperson as a spokesperson for the jury. In the same way as it is entirely a matter for the jury to determine who the foreperson should be at the commencement of the trial, it remains a matter for the jury alone to determine who the foreperson should be for the balance of the trial.

14 In my view, the only step which the trial judge should take is to note that there has been a change in the foreperson. No other inquiry or order is required. Accordingly, the course adopted by me on 12 November 2007 was sufficient.

15 Before concluding these reasons, and as an aside, I should observe that the position of foreperson will take on a statutory form upon the commencement of the Jury Amendment Act 2007, which has passed through both Houses of the New South Wales Parliament, but is yet to commence. That Act will allow additional jurors to be selected for juries in long criminal trials. Section 55G Jury Act 1977 will provide for preservation of the foreperson where a ballot is required to reduce an “expanded jury” to a “verdict jury” of 12 members. Victorian legislation of this type was considered in Ng v The Queen. McHugh J at 528 [17] observed that the policy behind this immunity of the foreperson from being balloted out was “not clear”. Kirby J at 543 [75] observed with respect to the Victorian equivalent to s.55G that the “obvious reason for retaining the foreperson on the jury was that this would obviate the necessity of making a fresh choice at a very late stage in the trial”. In my view, the word “foreperson” in s.55G Jury Act 1977 ought be taken to mean the foreperson at the time when the relevant ballot takes place. That person may or may not be the foreperson selected by the jury at the commencement of the trial.

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