R v Juric
[2003] VSC 383
•12 September 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1468 of 1997
| THE QUEEN |
| v |
| MIROSLAV JURIC |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2003 | |
DATE OF RULING: | 12 September 2003 | |
CASE MAY BE CITED AS: | R v Juric, Ruling (Jurors, less than twelve) | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 383 | |
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Criminal law – juries – discharge of juror – remaining panel less than twelve – whether trial should continue with remaining panel – hardship to witnesses and accused – other relevant considerations – Juries Act 2000, s. 44(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.M. Horgan SC with Mr K.G. Gilligan | Solicitor for Public Prosecutions |
| For the Accused | Mr P.C. Dane QC with Mr C.J. Pearson | C & H Lawyers |
HIS HONOUR:
Last Wednesday afternoon, shortly after the Crown had called Paul Vincent Mitchell to give evidence and he had begun to give his evidence-in-chief, I received a note from the foreman of the jury stating that "I also work with this witness." The word "also" is referrable to the fact that on a previous occasion upon the calling of another witness the foreman had handed to me a note stating that the foreman worked at the same place as that witness.
Mitchell's evidence-in-chief was short, as was his cross-examination, and as matters developed there was not an opportunity or at least I did not make an opportunity to mention the note to counsel until Mitchell had been excused. The matter was then discussed briefly in the absence of the jury but left over until the next morning so that counsel could take instructions, and the evidence continued to the point where Shane John Foley had been examined in chief and his cross-examination had begun.
After adjourning on Wednesday evening I was told by my tipstaff that another member of the jury, Juror 241, had informed him immediately after court that she had met Foley in 1997 in company with her now deceased brother, although she had not seen Foley since. Arrangements were then made to ensure that when the juror arrived at court next day she would be kept apart from the other jurors.
When the hearing resumed yesterday morning I informed counsel of what had occurred the previous evening and allowed time for them to take instructions. Later in the morning Mr Dane QC applied on behalf of the accused for the foreman and Juror 241 to be discharged pursuant to s. 43 of the Juries Act 2000, and thereafter that I discharge the remainder of the jury.
Mr Horgan SC for the Crown supported Mr Dane's submission that I should discharge Juror 241 but he opposed the discharge of the foreman and he opposed the discharge of the remainder of the jury. He submitted in the alternative that even if I were disposed to discharge both Juror 241 and the foreman I should order pursuant to s. 44 of the Act that the trial continue with the remaining ten jurors.
After some time, Mr Mitchell was located at his place of work and was asked to return to court, which he did, and I then asked him a number of questions on oath designed to establish the nature of his relationship with the foreman of the jury. Mr Mitchell told me that he is one of 39 "pit bosses" working at the Crown Casino in Melbourne and that the function of each such pit boss is to supervise between 25 and 30 gaming staff who man the gaming tables at the Casino. The work is undertaken in shifts of between eight and ten hours per shift and for the duration of a shift the 25 or 30 gaming staff under each pit boss are subject to that pit boss' direction and control.
Mr Mitchell said that gaming staff are allocated randomly to a particular boss and thus may and frequently do change from pit boss to pit boss with the change of each shift, although occasionally they may be under the same pit boss for two or three shifts in a row.
I asked Mr Mitchell if he had recognised any member of the jury when he gave his evidence and he said that he thought he recognised a male sitting in the front row (which was in fact the foreman) as a dealer at the Casino, although he did not know the man's name and he did not know how long the man had been working at the Casino. Mr Mitchell said that he could not recall speaking to the man, although he thought that he must have done so on some occasion, but Mr Mitchell was confident that he had not spoken to the man within the last three roster cycles, comprising the last 12 weeks. Mr Mitchell told me that he had no personal relationship with the man, that he had never been to the man's home, and that the man had never been to his home. He had never shared a meal or had a drink with the man, or been involved with him in any social activity, and he had no recollection of having ever had any difficulties with the man or confrontation with him at work.
I next called in Juror 241 and asked her questions on oath, in order to confirm that what she had told my Tipstaff was as it had been communicated to me, and that she had not discussed her knowledge of Foley with any of the other jurors. She confirmed that the message was as reported and that since shortly after she had arrived at court yesterday morning she had been kept apart from the other jurors. She said that she had not mentioned the matter to any of the other jurors.
In submissions which followed, Mr Dane contended that the evidence given by Mr Mitchell and Juror 241 confirmed that there was a high degree of need for the discharge of Juror 241 and the foreman, and that it would be quite inappropriate to continue the trial with the remaining jurors.
Mr Horgan, for the Crown, said that he had nothing to add on the subject of Juror 241. His submissions remained that she ought to be discharged. But he contended that there was plainly no need to discharge the foreman and that there was adequate reason to continue the trial with the remaining 11 jurors. In support of that contention he pointed out that Mr Dane had not made any attack in cross-examination upon the honesty of Mr Mitchell, and thus it followed that if Mr Dane wished to ask the jury to disbelieve Mitchell's evidence he could only do so on the basis that Mitchell was mistaken as to what occurred or had forgotten about it. In Mr Horgan's submission, it was plain that there was nothing in the relationship between Mitchell and the foreman that should be thought capable of deflecting the foreman from determining that issue impartially.
As to the discharge of the remainder of the jury, Mr Horgan submitted that it was trite that s. 44 of the Juries Act enables the trial to proceed with 11 jurors, but that even if reason be needed to justify the adoption of that course, it existed in the considerations that it has been a very long time since the alleged offence was committed; that there have been a number of trials and false starts already; that it would be at least another six months or thereabouts until there could be another trial; that it is not easy to get witnesses coming back and back, and their recollections obviously continue to fade; and in any event, that it is important to bring finality to the matter.
Mr Dane replied that although it is true that he made no attack upon the credit of Mr Mitchell and therefore that he could not now go to the jury on the basis that they should doubt the honesty of Mitchell, it would be open to him to do so if the jury were discharged and a fresh jury were empanelled, for in those circumstances it would be open to him to attack Mitchell's credit in cross-examination and to seek thereby to establish that at least part of Mitchell's evidence was recent invention. Thus, in Mr Dane's contention, to continue the trial with 11 jurors would be to deprive the accused of a chance which he would have to attack the credit of Mitchell if the trial were not to continue and, in his submission, that was less than fair.
The authorities to which I shall come a little later show that an application to discharge a juror should not be considered in isolation from the question of whether the trial should continue with the remaining jurors. They also show, however, that each question is discrete and is to be dealt with separately. Accordingly, I start with the applications for the discharge of Juror 241 and the foreman of the jury.
For that purpose I take as the test to be applied: whether the matters which have arisen are such that notwithstanding any proposed or actual warning of the judge, they would give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury would not discharge their task impartially.[1]
[1]Webb v The Queen (1994) 181 CLR 41, at p. 43, and R v Czajkowski (2002) NSWCCA 530, at paragraph [16]
In the case of Juror 241 I consider that the test is satisfied. Foley's evidence is important, if not critical to the Crown's case. He has deposed to confessions of guilt which he says the accused made to him in prison relatively shortly after the time of the alleged offence. But his credit is under attack. He is, according to his own evidence, a recidivist, he is a criminal with a history of giving evidence for favours, and he is a drug addict whose offending is driven by his addiction.
In my opinion the relationship which existed between Foley and Juror 241's deceased brother is reason to believe that Juror 241 could be biased in favour of Foley or perhaps against him, because she may associate her brother's death with Foley's criminal activities.
Of course it may be that her meeting with Foley would not deflect her in any degree from a fair and impartial assessment of Foley's evidence, and it may be, given her apparent conscientiousness in bringing the matter to my attention, that she would with the aid of appropriate directions be able to put any prejudice to one side. But in my opinion the association is just too close to be satisfied of that outcome. I consider that a fair minded and informed member of the public would have a reasonable apprehension or suspicion that Juror 241 could not fairly and impartially discharge her functions as a juror, and it follows that she must be discharged.
I do not, however, consider that the test is satisfied in the case of the foreman. Mitchell gave evidence essentially as to only two matters. The first was that although at all relevant times he lived at 3 Summit Crescent, Ringwood, he did not recall hearing or seeing a motorbike at 5 Summit Crescent, Ringwood, during the period in which the accused is alleged to have lived there late in 1995 and early in 1996. That evidence is relevant to the accused's alibi, inasmuch as the alibi involves that the accused used a motorcycle, which he says he ordinarily kept elsewhere, and rode it to his parents' home in Boronia on the night of the alleged offence. Presumably it may be contended by the Crown that because Mitchell did not recall seeing or hearing a motorbike at any time during the period in which the accused was living next door, it is the less likely that the accused owned or used a motorbike at all.
The second matter, which was really only touched upon in the course of cross-examination, was that Mitchell said that he recalled coming home one afternoon late in January 1996 and seeing smoke emerging from the chimney of 5 Summit Crescent, Ringwood, and he thought it to be odd because it was in the middle of summer. That evidence is perhaps relevant to the Crown's case that upon returning from the scene of the crime on the morning of 24 January 1996 the accused, Tsagaris and Evans burnt in the fireplace at 5 Summit Crescent the clothes and footwear that they had been wearing at the time of the alleged offence.
I do not consider that an informed member of the public would have a reasonable apprehension that the foreman could not decide impartially on either of those matters. So far as the motorbike is concerned, it is not suggested that Mitchell's evidence was dishonest. As Mr Horgan has submitted, all that might be said against it is that it should be considered unreliable in the sense that Mitchell may have seen a bike, but forgotten all about it, or on the basis that his aural and ocular powers of perception were insufficient to enable him to detect the bike when in fact it was present.
Even assuming that the foreman's association with Mitchell was such as favourably to dispose the foreman towards Mitchell, there is no reason to think that the foreman once properly instructed would not be able to determine impartially whether there is a reasonable possibility that Mitchell once heard or saw the motor bike but forgot all about it, or that even if he never did see it or hear it, it could still have been there and used on occasion.
A juror acting reasonably could have all the reason in the world to admire a witness and perhaps even to consider that the witness' powers of perception and recollection were remarkable, and that the witness' integrity was unquestionable, and still be able without difficulty fairly and impartially to allow for the reasonable possibility that the witness had seen and forgot, or perhaps never seen or heard something which occurred more than seven years ago.
On the other hand, even if it is assumed that the foreman's association with Mitchell were such as to dispose the foreman unfavourably towards Mitchell, the result could only favour the accused and, as I have noted already, the Crown resists the suggestion that the foreman should be discharged.
So far as the smoking chimney is concerned, the position is very similar. It is not suggested that the witness was dishonest in the evidence which he gave about the chimney. Again therefore the most that might be said against it is that it is unreliable in the sense that the witness has convinced himself that he saw something that he never saw, or that he saw something of the kind of which he spoke but at a different time of the year to the time that he recollected. That being so, and again even assuming that the foreman's association with the witness were favourable, I see no reason to think that the foreman properly instructed would not be able to allow for the reasonable possibility that the witness did not see what he recollected he saw or did not see it at the time that he recollected that he saw it.
It is moreover to be noted that there is other evidence given by the witness Sarah Hagan, which was not sought to be impeached, that the fireplace was not infrequently used in the summer months simply for the pleasure of having a fire, and it accords with common experience that in Melbourne fireplaces are used from time to time even in the height of summer. But even if I were wrong about the ability of the foreman to put aside his association with the witness, and even if the association were such as to give the foreman an unshakeable belief in the recollection and reliability of the witness, it could still only work in favour of the accused.
The expert evidence given by Detective Senior Sergeant Martin is plain that if there were a fire of the kind for which the Crown contends the smoke would have been black smoke and Mr Mitchell was clear in his evidence that the smoke which he says he saw was not black. Again I observe that the Crown so far from applying for the discharge of the foreman actively opposes that course.
I note Mr Dane's argument that it would be unfair not to discharge Juror 241 because it would deprive the accused of the opportunity, that would exist if there were a new trial, to attack the credit of Mitchell and thereby to suggest that Mitchell's evidence about the smoke from the chimney was a recent invention. But I do not find that argument persuasive. No doubt it is right to say that discharging the jury and empanelling a fresh jury would afford the accused a chance to conduct his defence in a fashion different to that in which it has been conducted to this point. But it does not follow that a decision not to discharge the jury and to continue with the remainder of the jury deprives the accused of a chance of acquittal to which he is justly entitled.
In principle the position is no different to that which would obtain if there had still been 13 jurors sitting at the time of Mitchell's cross-examination and the 13th had now become so ill that it necessitated his immediate discharge. A chance to restructure the accused's defence might be a fortuitous consequence of an order to discharge the juror and the jury but it is not a chance to which the accused is entitled.
Having decided that Juror 241 should be discharged I turn therefore to the question of whether I should discharge the remainder of the jury or order under s.44 that the trial continue with the remainder.
The principles upon which that question is to be decided were considered by the High Court in Wu v The Queen[2]. Wu was a case of kidnapping and attempted murder. A jury was empanelled and the trial commenced before Judge Flannery of the New South Wales District Court on 16 March 1998. On the morning of the tenth day of the hearing the judge was informed that one of the jurors had taken ill. He intimated his intention to discharge the jury and invited submissions from counsel. He noted that the case had already been delayed by two days for medical reasons pertaining to himself. Counsel for the appellant objected to the discharge of the juror and asked the judge to have enquiries made about the period in which the juror would be unable to serve. The judge said that he had received a message from the Sheriff's Office that the juror was not well and might also be unwell on the following day. He said that he proposed to discharge the juror and added: "What is the magic in 12 anyhow?"
[2](1999) 199 CLR 99, with reference to s. 22 of the Jury Act 1977 (NSW)
The jury then returned to court, the trial continued to verdict with 11 jurors and the accused was convicted of kidnapping and attempted murder. He appealed to the Court of Criminal Appeal which dismissed the appeal.
He then appealed to the High Court by special leave granted by Kirby and Callinan JJ. In the course of the hearing, the appellant applied to amend the grounds of appeal to contend that no order had been made, under s. 22 of the Jury Act (1977), that the trial continue with the jury constituted by the remaining jurors, or that if an order had been made, it should not have been made. The court, by a majority, refused leave to amend. Because of the refusal of leave to amend, the appeal was in terms confined to the question of whether the judge had been correct to discharge the jury, rather than adjourning the trial until her return. But all members of the court dealt in substance with both issues to a greater or lesser extent.
Gleeson CJ and Hayne J were strongest in favour of discharging the juror and continuing the trial with the remainder of the jury. Their Honours said that:
"Delay in a trial can work hardship to an accused as well as to witnesses and to jurors. No doubt some persons accused of crime will gladly put off the day of judgment, but delay in the trial of any accused leaves the accused uncertain of his or her fate. That has long been recognised to be a considerable burden upon an accused. And the courts cannot and must not shut their eyes to the consequences of delay upon others - not only to witnesses and jurors but also to all others who seek access to the courts and cannot have their cases tried because of what is happening in cases that are being tried. The fact that the juror was absent (for whatever reason) meant that the trial would be delayed. If the trial did not go ahead, the delay would affect the accused, the witnesses who would otherwise have given their evidence, and the other members of the jury. It would also have delayed the start of the trial of some other accused waiting for trial (perhaps on bail, perhaps remanded in custody). All of those considerations taken together, could properly found 'any other reason' for discharging the absent juror.
As we have noted earlier, the appellant's argument emphasised the trial judge's statements to the effect that there is no 'magic' in twelve. That expression may well have had its origin in a paper of Evatt J delivered to the 1936 Australian Legal Convention and mention was made of it in R v. Brownlea. There is, therefore, no reason to criticise the trial judge for using the expression as he did. Obviously, however, the statement is not meant literally.
It may be accepted that a criminal trial by a jury in New South Wales must begin before a jury of twelve. At common law, if a juror died or was taken ill a fresh jury had to be sworn, although it seems that sometimes the eleven remaining jurors were re-empanelled and a fresh juror sworn in the place of the disabled juror. But the whole purpose of s. 22 is to provide that a trial can proceed before a jury despite the discharge of one or more members. That is, there can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings.
In this case it is not shown that the trial judge erred in discharging the juror. There being no attack on the decision to proceed before the jury constituted by the remaining jurors, it is not necessary to examine that decision. Nevertheless, the cause for discharging a juror relating only to that juror and not affecting in any way the capacity of the remaining jurors to perform their task, there is no basis for doubting that it was appropriate to proceed as the trial judge did."
McHugh J appeared less favourably disposed to the idea that the trial should have continued once the juror had been discharged. His Honour said that:
"But no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than twelve is a denial of a long-standing right of those tried for serious crime under the common law system. Given the mandatory terms of s. 19 of the Jury Act, some positive reason, beyond the death or discharge of a juror, must exist for the judge to make the order that the trial continues with less than twelve jurors.
The usual reason for exercising the power under s. 22 is that the trial has proceeded for some time, and that it would cause significant expenses to begin again with a new jury. No doubt the circumstances of individual trials will throw up other valid reasons. And there may be countervailing reasons. It may be a case dealing with matters upon which the opinion of the community is deeply divided. In such a case, despite the time that the trial has already taken, the proper exercise of the discretion may require that the accused be retried before a jury of twelve. Or the case may be one where the community has strong feelings against the crime in question, and the risk of prejudice against the accused may be strong. In such a case, depriving the accused of the chance to obtain the vote of the twelfth juror may be a step that should not be taken.
Furthermore, although two stages are involved in the making of a s. 22 order, the first stage cannot always be separated from the second stage. Before the judge discharges a juror for illness or 'any other reason', the judge will usually need to consider whether exercising the power of discharge has implications for the continuation of the trial with the remaining jurors. In the case of the temporary illness of a juror, the proper course will ordinarily require the temporary adjournment of the trial rather than the discharge of the jury and the making of a s. 22 order."
Kirby J spoke in terms of the historical and constitutional considerations which combine to require that a criminal jury must initially be, and should ordinarily remain, a jury of twelve. As His Honour put it:
"The judicial power to discharge a particular juror is thus only to be exercised in a context which has appropriate regard to the rule established by s. 19. The primary rule is laid down by Parliament not only for the benefit of the accused but also for the satisfaction of society. Whatever the historical origins of the requirement that a criminal jury be constituted by twelve persons, the present justification of the rule is that the number is sufficient to ensure the presence, in such a jury, of a cross-section of the community. Twelve is not unwieldy. But it is a sufficient number to ensure that the accused has 'an inestimable safeguard against the corrupt and overzealous prosecutor and against the compliant, biased or eccentric judge'. The twelve jurors interpose between the accused and his accuser ... the commonsense judgment of a group of layman, and ... community participation, and [accept] shared responsibility that results from the group's determination of guilt or innocence.
These are features of jury trial of criminal charges in Australia to which this court has attached significance. The jury must be 'a body of persons representative of the wider community'. Obviously, to the extent that the historical and statutory number of twelve is reduced there is an equivalent reduction of the degree to which the jury may reflect the diversity of the makeup of the community in Australia. Unlike the community of village England from which jurors were historically drawn in that country, the Australian community today is highly diverse in its composition. It reflects differences of age, gender, race, ethnicity, and national origin, sexuality and other grounds, as well as in life's experiences and attitudes. Such considerations which doubtless have been amongst the purposes of a New South Wales Parliament in enacting the Act and in thereafter preserving the prima facie rule of twelve jurors. In an age when other references to twelve were abandoned, the Act adhered, in the case of the jury and criminal proceedings, to the requirement of twelve."
Ultimately, however, His Honour would have decided the case on the basis that the trial judge had devoted insufficient time to the question, and insufficient attention to the need to be satisfied of the necessity to discharge the juror, that he had taken into account an irrelevant consideration, namely, that there was "no magic" in the number 12, and that he had failed to have regard to a relevant consideration, namely, the accused's prima facie entitlement to remain in the charge of the jury selected and sworn.
Thus, as His Honour put it:
"The approach of the trial judge in this case, and the very hasty way in which his decision was made, over objection to deprive the appellant of her right to the verdict of a jury of twelve, represented in my view a miscarriage of the power. This was so because an irrelevant consideration was taken into account, and a relevant consideration ignored. The irrelevant consideration was the trial judge's repeated statement that there was 'no magic in the number twelve'. As I have shown, there may not be 'magic' as such. But the number is supported by the plain terms of s.19 of the Act, and by long legal history."
Callinan J was of a view similar to that expressed by Gleeson CJ and Hayne J. His Honour considered that it was not shown that the trial judge's exercise of discretion had miscarried.
More recently the High Court has dealt again with the issue of trial by jury of less than 12 members, in a constitutional context, in R v. Brownlea[3]. It will be recalled that in Cheatle v The Queen[4] the High Court determined that s. 80 of the Constitution requires unanimity of verdict in the case of an offence against the law of the Commonwealth. In Brownlea the question was whether s. 80 required a jury of 12. All members of the court were of the view that it does not.
[3](2001) 207 CLR 278
[4](1993) 177 CLR 541
Gleeson CJ and McHugh J reasoned that:
"The function of jury trial is not such as to make it essential that the common law rule be preserved in its full rigour. Adopting a functional approach to questions of the validity of State Legislation permitting juries of a lesser number than twelve, the Supreme Court of the United States held that such a reduction in numbers was consistent with the corresponding constitutional guarantee. In Williams v Florida White J, delivering the opinion of the Court, said: 'The purpose of the jury trial ... is to prevent oppression by the Government ... Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgement of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers twelve, particularly if the requirement of unanimity is retained.
Those observations apply with even greater force to a system which required twelve jurors to begin with, but permits the trial to continue with ten of the original twelve where two have been discharged, and requires a unanimous verdict of the remaining ten. Such a system is not inconsistent with the purposes of trial by jury. In particular, it is not inconsistent with the objectives of independence, representativeness and randomness of selection, or with the need to maintain the prosecution's obligation to prove its case beyond reasonable doubt."
Gummow and Hayne JJ expressed a similar view. After reiterating the passage from the judgment of Gleeson CJ and Hayne J in Wu, to which I have already referred, their Honours said:
"At the time of federation legislation in several of the colonies fixed upon the number ten as the minimum for the remaining jurors whose unanimous agreement would be sufficient to ensure observance of the deliberative processes required by the institution of trial by jury. This legislation adapted the institution to what already in the late nineteenth century were perceived to be particular needs, whilst retaining the substantial character of the institution as an efficient instrument in the administration of justice. Current legislation which authorises the discharge of jurors for good cause so that the trial continues with no fewer ten jurors is not incompatible with s.80 of the Constitution."
Remarkably, Kirby J was also of the opinion that s. 80 did not require a jury of 12. His Honour observed:
"What, then, are the functional considerations that permit a distinction to the drawn between a trial that answers to the description of 'trial ... by jury' and one that does not? The following considerations inform the answer to that question:
(1)the jury must be of a size sufficient to promote group deliberation;
(2)there must be a sufficient number of jurors to ensure that the commonsense attributed to a lay jury can be given effect, so that a cross-section of the community opinion will be expressed and shared amongst the jurors;
(3)because an important purpose of trial by jury is to guard individuals from the danger of oppression by the government or by the judiciary, the jury rendering a verdict in a criminal trial must be, and remain of, a sufficient number to reflect, in a general way, the variety of opinions that exist in the community concerning society, the law and public authority;
(4)there must be sufficient jurors to guard against the force of personality of one or more jurors and to ensure the expression, during deliberation, of any differing viewpoints which can then be shared and evaluated by all of the jurors collectively;
(5)the number must also be sufficient to reflect, in a general way, those members of, or acquainted with, minorities within the community so that the dangers of prejudice against an accused, who may be a member of one or more of such minorities, are eliminated or at least reduced;
(6)given that contemporary trials, particularly of federal offences, can be extremely complex and lengthy, the inconvenience to the community, to jurors and the cost to parties should not needlessly be incurred by unnecessary termination and re-litigation of jury trials where, (as will inevitably happen from time to time), jurors die, fall ill, or are otherwise incapable of continuing to act;
(7)ultimately 'trial ... by jury', being a mode of trial envisaged within Ch.III of the Constitution, it is essential that it should continue to hold public confidence and 'through the involvement of the public, societal trust in the system as a whole'.
If the foregoing functional considerations are applied to the provisions of s. 22 of the Jury Act that were invoked as applicable to the applicant's trial, I am not persuaded that such provisions offend the constitutional requirement for 'trial ... by jury' as those requirements are understood in contemporary Australia. It is beyond doubt that, in comparison with earlier times, criminal trials today typically last longer, are more expensive and involve many more complex issues than previously was the case. The present is not an instance where a federal statute or State law 'picked up' and applied to a federal trial by force of the Judiciary Act, has established a universal rule of trial on indictment of a federal offence by a jury of ten persons. Such a law would certainly depart from longstanding English and Australian legal prescription. It would also discriminate between the juries presently summoned to try State indictable offences in Australia.
The law said to be 'applicable' to the applicant's trial was one expressed in undiscriminating terms. It applied, relevantly in a way similar to legislation now applicable throughout Australia. Such legislation has existed for a very long time. It is sensible. It is designed to meet exigencies which exceptionally, but occasionally, arise and more so as criminal trials take longer.
As experience in the United States illustrates, in constitutional adjudication of this kind the drawing of lines is unavoidable. But nothing more be said to dispose of the first ground of the present application than that s. 22(a)(i) of the Jury Act 'picked up' by s. 68 of the Judiciary Act, falls on the right side of the line. It is valid. Whatever may have been the assumptions and 'intentions' of the framers of the Constitution in 1900, viewed in terms of the function that 'trial ... by jury' in s. 80 of the Constitution fulfils, the provisions of s. 22(a)(i) of the Jury Act meet contemporary Australian notions of that mode of trial. Any other conclusion would result in the needless and accidental termination of many jury trials. Nothing would be more likely to undermine the survival of jury trial. An absolute rule that the jury reaching a verdict on a count charging an indictable crime, must be a jury of twelve jurors is not, therefore, a requirement that s. 80 of the Constitution imposes."
Callinan J demonstrated by a reference to the history of jury trial in this country that there never was an absolute rule of common law that only a jury of 12 people as originally constituted could bring in a valid verdict, and moreover, as His Honour put it:
"Furthermore there is no reason in principle why a jury of twelve persons should necessarily be considered more representative of the community than a jury of ten persons or fourteen; although there may come a point at which a somewhat smaller number could not, in a real sense, be regarded as a jury, a matter that is unnecessary to decide in this case."
Reference should also be made to Ng v The Queen[5].
[5](2003) 77 ALJR 967
As it appears to me, there is something of a shift in emphasis as between Wu and Brownlea, away from the significance of the prima facie entitlement to a trial by jury of 12 and towards competing considerations of the kind mentioned by Gleeson CJ and Hayne J in Wu. Whereas in Wu McHugh and Kirby JJ appear to have regarded the prima facie entitlement to a jury of 12 as something seldom if ever to be abrogated, in Brownlea both of their Honours appeared disposed to identify more closely with other members of the court in the weight which may be given to competing considerations.
I do not suggest of course that the prima facie entitlement to a jury of 12 is lightly to be disregarded, or that any member of the High Court has ever suggested otherwise, but it does appear from what the High Court has now said in Brownlea that legislation like s. 44 of the Juries Act 2000 is intended to be given effect where circumstances are appropriate to engage its operation. It is not to be ignored, and it is not allowed to be derailed or emasculated by the weight of rhetoric or blandishments.
Consistently with what was said by McHugh and Kirby JJ in Wu, I start at the point that the accused in this case has a prima facie entitlement to a trial by a jury of 12, and that his right to such is not lightly to be diminished. The fact of the matter is, however, that I must now discharge one of the 12, for there is a reasonable apprehension that she could not impartially decide upon the matters in issue, and this development comes three and a half weeks after the empanelment of the jury, and upon best estimates only a couple of days before the Crown will close its case. All but one of the Crown's principal witnesses have already completed their evidence-in-chief, and the cross-examination of the last of the Crown's principal witnesses has already begun. In addition, there have been some 20 other witnesses pass through the witness box, and most have been subjected to cross-examination to a greater or lesser extent.
Prior to the empanelment of the jury there was also a pre-empanelment hearing concerning the admissibility of DNA evidence and the admissibility of audio tapes, which lasted for the better part of two weeks.
Most significantly, however, this is not the first time that the accused has stood trial for the offence with which he is charged. The offence is alleged to have been committed on 24 January 1996, and since then there have been four trials, of which two went full-term and the other two were aborted for one reason or another. This is, therefore, the fifth trial. At the conclusion of the third of the trials, which was held in 1998, the accused was convicted and sentenced to imprisonment. But that conviction was overturned on appeal to the Court of Appeal in 2001 after a delay of more than two years, and the matter was remitted to this Division for a retrial. That retrial was conducted between February and April of this year, but the jury were unable to agree. It is therefore now over seven years since the offence is alleged to have been committed, and if I discharge the jury, it would be more than eight years before the matter would come to trial, for the sixth time, before a new jury.
It goes without saying that the recollection of witnesses, already diminished by the passage of time would then be more uncertain. It also goes with saying that the nervous strain which is imposed upon witnesses by the giving of evidence in a trial of this kind, is by any test substantial. The repetition of that exercise on at least one occasion inevitably amplifies the stress involved. In this case, where witnesses have been asked already to repeat the exercise on four previous occasions, the stress is surely extreme; and to ask that it be done yet one more time, may well be one time too many.
In a case as serious as this, financial considerations must take second place to the interests of the accused. As has been said so often, he is entitled to the fairest trial that we are able to give him. But, in reality, we are able to give him only as much as that for which we have funds to spend. Hence, even in a case as serious as this, cost and delay are relevant considerations to be brought into account. Secondary though those consideration may be, I note that already vast amounts have been spent upon the prosecution and the defence of the accused and that if this trial does not continue to verdict, yet more will be thrown away.
As against all that, the case for discharging Juror 241 relates only to that juror, and does not affect in any way the capacity of the remaining jurors to perform their task. The case does not concern an issue upon which the community might be thought to be divided, and while it may be considered that the crime alleged is one about which the community would have strong feelings, and that the risk of prejudice against the accused would be significant, neither of those considerations is likely to be ameliorated by the presence of an additional juror.
As was said in the observations of White J of the United States Supreme Court in Williams v Florida, in the passage which found favour with the High Court in Wu:
"The performance of this role is not a function of the particular number of the body that makes up the jury ... particularly if the requirement of unanimity is retained."
Balancing as best I am able the competing considerations of the accused's right under the common law system to a trial by a jury of 12, the hardship to the witnesses and to the accused which would result from further delay, the consequences of delay upon others, and the reasons for discharging Juror 241, I have come to the conclusion that I should exercise the power which is conferred upon by s. 44(1) of the Juries Act 2000, to direct that after discharge of Juror 241 the trial shall continue with the remaining jurors.
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