R v Hutchings

[2006] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hutchings [2006] QCA 219

PARTIES:

R
v
HUTCHINGS, Frank Nigel David
(appellant)

FILE NO/S:

CA No 345 of 2005
SC No 259 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2006

JUDGES:

de Jersey CJ, Williams JA and Helman J
Separate reasons for judgment of each member of the Court, all concurring as to the orders made

ORDER:

1.  That the appeal be allowed
2.  That the conviction of the appellant on the charge of manslaughter be quashed
3.  That there be a new trial of the appellant on the count of manslaughter

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – JURIES – DISCHARGE – exercise of discretion to continue trial of murder charge with a jury of 11 members – discharge of juror occurring at conclusion of crown opening – practicability of resuming the next day with a jury of 12 – significance of its being a charge of murder

Criminal Code 1899 (Qld), s 17, s 668E
Jury Act 1995 (Qld), s 33, s 56, s 57
 
Black v R (1993) 179 CLR 44, cited
Cheatle v R (1993) 177 CLR 541, cited
Glennon v R (1994) 179 CLR 1, cited
House v R (1936) 55 CLR 499, cited
R v A [1995] QCA 148; (1995) 79 A Crim R 100, cited
R v Roberts [2004] QCA 366; [2005] 1 Qd R 408, cited
Wilde v R (1988) 164 CLR 365, cited
Wu v R (1999) HCA 52; (1999) 199 CLR 99, applied

COUNSEL:

M J Byrne QC for the appellant
P F Rutledge for the respondent

SOLICITORS:

Ryan & Bosscher for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. de JERSEY CJ:  The appellant was charged with the murder, on 14 June 2003, of David John Coddington.  He was convicted of manslaughter, and sentenced to seven years imprisonment with a recommendation for consideration for parole after three years.  He appeals against his conviction.

1. The first and second grounds of appeal are as follows:

“1.That the learned trial Judge erred in law in failing to discharge the entire jury and selecting a new jury having regard to the circumstances which led to juror number four (4) being excused and having regard to the fact that no evidence had been led at the trial;

2.That the learned trial Judge erred in law in allowing the trial to continue with eleven (11) jurors instead of twelve (12);”

1. After the empanelment of the jury, and at the conclusion of the Crown prosecutor’s opening, the learned trial Judge informed counsel, in the absence of the jury, that one of the jurors had told the bailiff that counsel for the defendant, Mr Gundelach, had been defence counsel in another case in which that juror’s daughter had been the complainant.  The bailiff confirmed that the juror had raised that…