R v Glynn

Case [2002] SASC 117

R v GLYNN
[2002] SASC 117

Court of Criminal Appeal:  Perry, Wicks and Gray JJ

  1. PERRY J. This is an appeal by leave on an issue antecedent to trial brought pursuant to s 352(1)(c) of the Criminal Law Consolidation Act 1935. The order under appeal is an order of a District Court judge made on 9 November 2001, in which he refused an application by the appellant that there be a stay of proceedings with respect to the trial of the appellant on a charge of unlawful importation into Australia of a prohibited import, namely, the drug commonly known as Ecstasy.

  2. The Attorney-General for the State of South Australia, represented by the Solicitor-General Mr Selway QC, exercised his right of intervention on the hearing of the appeal, pursuant to s 78A(1) of the Judiciary Act (1903) (Cth). No other Attorney intervened, although notices were given pursuant to s 78B.

  3. The offence is a Commonwealth offence. The appellant was presented for trial in the District Court upon the information of the Commonwealth Director of Public Prosecutions. Relevantly, the information reads as follows:

    “STATEMENT OF OFFENCE

    Import into Australia a Prohibited Import
    Section 233B(1)(b) of the Customs Act 1901

    PARTICULARS OF THE OFFENCE

    On or about the 4th day of April 2001 at Adelaide in the State of South Australia [the appellant] imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applies, namely 359.6 g of 3,4 methylenedioxymethamphetamine (MDMA) [Ecstasy], being not less than a trafficable quantity.”

  4. Following the appellant’s arraignment, at which he pleaded not guilty, the trial commenced before a Judge and jury on 4 October 2001.

  5. The jury retired to consider its verdict on the next day, that is, 5 October 2001.

  6. After the jury had retired for more than four hours, but before they had returned a verdict, counsel for the appellant sought a direction by the trial judge in accordance with s 57 of the Juries Act 1927 (SA) (“the Juries Act”), to the effect that it was open to the jury to return a verdict of acquittal by a majority.

  7. Relevantly, s 57 provides:

    “(1)Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least four hours and the jurors have not then reached a unanimous verdict-

    (a)     if a sufficient number agrees to enable the jury to return a majority verdict - a majority verdict will be returned; but

    (b)    otherwise - the jury may be discharged from giving a verdict.

    (2)..................

    (3)..................

    (4)In this section-

    “majority verdict” means-

    (a)     where the jury, at the time of returning its verdict, consists of twelve jurors - a verdict in which ten or eleven jurors concur;

    (b)    where the jury, at the time of returning its verdict, consists of eleven jurors - a verdict in which ten jurors concur;

    (c)    where the jury, at the time of returning its verdict, consists of ten jurors - a verdict in which nine…

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R v Glynn [2002] SASC 117
Case
[2002] SASC 117
Decision Date

CaseChat Overview and Summary

The appeal concerns the decision of a District Court Judge to refuse a permanent stay of the trial of John Patrick Glynn, who was charged with the importation of a prohibited item into Australia. The jury had deliberated for four hours without reaching a unanimous verdict when the appellant's counsel requested a direction to the jury under section 57 of the Juries Act 1927 (SA), allowing them to return a majority verdict of not guilty. The trial judge refused to give such direction, and the appellant's counsel subsequently applied for a permanent stay of the trial. This application was also denied by the trial judge. The appellant now appeals against the refusal of the stay.

The central legal issue was whether the trial judge's refusal to direct the jury on the possibility of a majority verdict constituted an abuse of process. Additionally, the appeal considered whether the denial of the stay of proceedings was an appropriate exercise of the trial judge's discretion. The appeal also challenged the trial judge's failure to correctly advise the jury on the possibility of a majority verdict, as mandated by section 57 of the Juries Act 1927 (SA).

The court found that while the trial judge's failure to direct the jury on the possibility of a majority verdict under section 57 of the Juries Act 1927 (SA) was an error, it did not constitute an abuse of process. The court reasoned that the Crown's obligation to bring those charged with criminal offences to trial was not compromised by the error, and therefore the refusal to stay the proceedings was not an abuse of process. Furthermore, the court upheld the trial judge's discretion in denying the stay, concluding that the trial judge did not err in exercising this discretion. The appeal against the order of refusal was dismissed.

The court's final order was that the appeal against the order of refusal should be dismissed. The court agreed with the reasoning provided by Gray J in draft form, affirming that the appeal should be dismissed for the reasons stated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J WICKS J GRAY J
For the Crown to present the accused again for trial cannot properly be characterised as an abuse of process. In such circumstances the Crown is simply exercising its obligation to answer to the public interest in ensuring that persons charged on indictment with criminal offences are brought to trial.Conclusions For the reasons given, I am of the view that the learned trial judge erred in failing to accede to the request by counsel for the appellant to direct the jury that it was open to them to return a verdict of not guilty by a majority, in accordance with the provisions of s 57 of the Juries Act. But notwithstanding that error, the application for a stay of further proceedings on the indictment was properly refused. The appeal against the order of refusal should be dismissed. I have read the judgment of Gray J in draft form in this matter. I agree that the appeal be dismissed for the reasons which he has given. This is an appeal against a District Court Judge’s decision to refuse to permanently stay a trial.Background John Patrick Glynn, the appellant, was charged with one count of importing a prohibited import into Australia[19]. This is a Commonwealth indictable offence. The trial commenced on 4 October 2001. The following day the jury retired to consider its verdict. After fours hours, counsel for Mr Glynn sought a direction by the trial judge that if a sufficient number of the jurors agreed, they were entitled to return a majority verdict of not guilty. The direction was sought pursuant to section 57 of the Juries Act 1927 (SA) which provides:[19] The information was in the following terms:(1)Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least 4 hours and the jurors have not then reached a unanimous verdict –(a) if a sufficient number agrees to enable the jury to return a majority verdict – a majority verdict will be returned; but(b) otherwise – the jury may be discharged from giving a verdict.(2)No verdict that an accused person is guilty of murder or treason can be returned by majority.(3)Where an accused person is charged with a particular offence (the major offence) and it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of some other offence for which the person has not been charged (the alternative offence) –(a) the jury must consider whether the accused is guilty of the major offence before considering whether he or she is guilty of the alternative offence; and(b) if the jury reaches a verdict (either unanimously or by majority) that the accused is not guilty of the major offence but then, having been in deliberation for a least 4 hours, is unable to reach a verdict on the question of whether the accused is guilty of the alternative offence –(i) the accused must be acquitted of the major offence; and(ii) the jury may be discharged from giving a verdict in respect of the alternative offence; and (iii) fresh proceedings may be taken against the accused on a charge of the alternative offence.(4) In this section –“majority verdict” means – (a) where the jury, at the time of returning its verdict, consists of 12 jurors – a verdict in which 10 or 11 jurors concur;(b) where the jury, at the time of returning its verdict, consists of 11 jurors – a verdict in which 10 jurors concur;(c) the jury, at the time of returning its verdict, consists of 10 jurors – a verdict in which 9 jurors concur, and “by majority” has a corresponding meaning.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, WICKS J, GRAY J

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