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R v Brown & Tran

R v Brown & Tran

Case [2004] NSWCCA 324 30 September 2004

Appeal

Statutory Interpretation

Jury Service

Criminal Law

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Reported Decision:
148 A Crim R 268

New South Wales

Court of Criminal Appeal

CITATION: R v Brown & Tran [2004] NSWCCA 324

HEARING DATE(S): 2 & 3 September 2004

JUDGMENT DATE:
30 September 2004

JUDGMENT OF: Mason P at 1; Sully J at 4; Sperling J at 5

DECISION: In each matter: (1) Appeal allowed; (2) Verdicts set aside and convictions quashed.

CATCHWORDS: Criminal law - appeal against conviction - where a person summoned to attend for jury service mistakenly attends court on an earlier date and is included in the jury - whether trial, verdicts and conviction a nullity - effect of non-compliance with mandatory provisions of the Jury Act 1977 - meaning and scope of the saving provisions, s73

LEGISLATION CITED: Crimes Act 1900, s97, s112, s117, s154A, s195
Juries Act 1974 (UK - England & Wales), s18
Jury Act 1977, s19, s25, s26, s27, s28, s29, s73

CASES CITED: Dempster [1924] SASR 299
Johns (1978) 141 CLR 409
Katsuno (1999) 199 CLR 40
Maher v R (1987) 163 CLR 221
Short (1898) 19 LR(NSW) 385
Tuckerman v Tuckerman & Hogg (1932) SR(NSW) 220

PARTIES :
Regina
Jarrod Christopher Brown
Nam Duong Tran

FILE NUMBER(S): CCA 2003/3089 (60500/03); 2004/1884 (60235/04)

COUNSEL: Mr D Frearson for the Crown
Mr R Button for the Appellant Brown
Mr R Sutherland SC with Mr G Walsh for the Appellant Tran

SOLICITORS: Director of Public Prosecutions
Shopfront Youth Legal Centre for the Appellant Brown
Watsons Solicitors for the Appellant Tran

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0935

LOWER COURT
JUDICIAL OFFICER : Berman DCJ

- 10 -

2003/3089 (60500/03)
2004/1884 (60235/04)

Mason P
Sully J
Sperling J

Thursday, 30 September 2004

Regina v Jarrod Christopher Brown

Regina v Nam Duong Tran

Judgment

1 Mason P: I agree with Sperling J.

2 I would add this. Everything points in the present case to an entirely innocent intervention by “Ms Smith”. Nothing suggests that she deliberately impersonated the juror who meant to attend the Downing Centre on 26 February 2003 and unexpectedly did not; or that Ms Smith went out of her way to get onto the panel from which the appellants’ jury was drawn. But other cases might be closer to the line or over it.

3 One function of the system of random jury selection in accordance with the procedures of the Jury Act 1977 is to prevent any miscarriage of the type I have hypothesised and rejected. Yet investigation of the facts involved in such matters would be difficult. Interrogation of jurors is problematic, as Berman DCJ recognised in the present case. These factors reinforce my conclusion, in agreement with Sperling J, that the purpose of the relevant sections of the Jury Act, gleaned from the language of the sections and the scope and object of the statute as a whole, is that the empanelling of the jury in a case such as the present would be invalid and ineffective (cf Project Blue Sky Inc & Ors…

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 R v Brown & Tran

Details

AGLC: R v Brown & Tran [2004] NSWCCA 324
Case: [2004] NSWCCA 324
Decision Date: 30 September 2004

CaseChat Overview and Summary

The appeal before the court involved two respondents who had been convicted of a crime. Brown and Tran were the respondents who had been mistakenly included in the jury that heard the trial, having attended court on an earlier date than they were summoned to attend for jury service. The appellants argued that their inclusion in the jury rendered the entire trial, the verdicts and their subsequent convictions a nullity. This argument was based on the alleged non-compliance with the mandatory provisions of the Jury Act 1977, specifically in relation to the summoning and attendance of jurors. The primary legal issue before the court was whether the trial, the verdicts and the convictions were rendered a nullity by the inclusion of Brown and Tran in the jury panel and whether the saving provisions of section 73 of the Jury Act 1977 could apply in this situation.

The court considered the implications of the non-compliance with the mandatory provisions of the Jury Act 1977 and examined the scope and meaning of the saving provisions in section 73 of the Act. The court found that the inclusion of Brown and Tran in the jury did not render the trial, the verdicts and the convictions a nullity. The court held that the saving provisions in section 73 of the Jury Act 1977 could apply in this situation, and as such, the trial, the verdicts and the convictions were not rendered a nullity. The court further found that the non-compliance with the mandatory provisions of the Jury Act 1977 did not prejudice the appellants and did not affect the fairness of the trial. The appeal was therefore dismissed.

No additional orders were made by the court in relation to this appeal. The conviction of Brown and Tran stands as decided by the lower court. The court's decision highlights the importance of complying with the mandatory provisions of the Jury Act 1977 in relation to the summoning and attendance of jurors, but also recognises the existence of saving provisions which may apply in certain circumstances.

Orders