R v Lahrs

[2013] QSC 224

[2013] QSC 224

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

CHIEF JUSTICE

Indictment No 569 of 2012

THE QUEEN

v.

BRENDON JOHN LAHRS

BRISBANE

4.32 PM, THURSDAY, 22 AUGUST 2013

RULING

CHIEF JUSTICE:   I wish to record my view about the selection of the person who became juror number 5.  Both counsel asked me to proceed as I did, but there is a twist to the construction of the Jury Act 1995 provisions which should be exposed.

The original juror 5 was, I considered, “unavailable”, in terms of section 56(1)(c) of the Jury Act 1995 (Qld). That is why I discharged her. She disclosed after being sworn that she was moving house within the suggested timeframe of the trial.

If the trial had not by that stage begun, in terms of the Jury Act, I had then the power to empanel a substitute juror because of section 56(2).

The expression “before the trial begins” in section 56(2) must contemplate the time before the trial begins in earnest, as it were, which presumably does not occur until the accused is placed into the charge of the jury, and that had not, by the relevant time, occurred here.

For the purposes of the Jury Act, that position is therefore different from the position under the Criminal Code, where the trial begins when the accused is arraigned.  See section 597C(3) of the Code. 

Section 56 of the Jury Act must bear that different construction, simply because it contemplates the discharge of a juror after the juror has been sworn. 

We had not, in this case, progressed beyond that point, notwithstanding all jurors, including reserve jurors, had been sworn.  The proceeding had gone no further.  Significantly, the accused had not been placed into the charge of the jury. 

The question then was whether, because of the presence of reserve jurors, resort should have been made to them, for the replacement of the discharged juror, under section 34.  The position under section 34 as to utilising reserved jurors applies only after the trial has started.  See section 34(3), which uses those terms.  In our case here, the trial had not at the relevant time started, for the reasons which I have just explained. 

I did refer earlier in the day to sections 45 and 46 of the Jury Act.  I should make it clear that upon reflection I consider those provisions did not apply here, because the discharge of the original juror number 5 was not based on any absence of impartiality. 

The justification for the empanelment of a substitute juror, without recourse to the reserve jurors, as occurred, rests simply in the circumstance that the trial had not by the relevant time begun, in terms of section 56.