R v Leonard Theodore Lam (No 2)
[2014] ACTSC 391
•8 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Leonard Theodore Lam (No 2) |
Citation: | [2014] ACTSC 391 |
Hearing Date(s): | 8 September 2014 |
DecisionDate: | 8 September 2014 |
Before: | Refshauge J |
Decision: | The trial continue with ten jurors. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – Whether trial can continue with ten jurors |
Legislation Cited: | Juries Act 1967 (ACT), ss 7, 8 |
Cases Cited: | Wu v The Queen (1999) 199 CLR 99 |
Texts Cited: | Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, Responding to Sexual Assault: The Challenge of Change (2005, ACT, Canberra) |
Parties: | The Queen (Crown) Leonard Theodore Lam (Accused) |
Representation: | Counsel Mr S Drumgold (Crown) Mr A Doig (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Accused) | |
File Number(s): | SCC 12 of 2013 |
Refshauge J:
This trial has taken an unfortunate course. It was estimated to take four days when it started on Tuesday 2 September 2014. In charging the jury, however, I did say, “I warn you, however, that estimates of how long a trial takes are unfortunately often wrong”. I had, by that remark, intended to refer to the not uncommon fact that the evidence cannot infrequently take longer to adduce than is estimated. This may occur for a variety of reasons which I do not need to itemise.
This trial, however, has been extended for other reasons. Although not delaying the trial, one juror fell quite ill shortly after the trial commenced and I discharged her under s 8(1) of the Juries Act 1967 (ACT).
On Friday 5 September 2014, my obligations as duty judge required me to deal with various matters before resuming the trial. Although listed to commence at 9:00 am, the first matter was unable to be started until 9:20 am. Although dealing with the matters as speedily as I could, I nevertheless did not complete them until about noon. Counsel for the accused was, by this time, seriously indisposed and I inquired whether his instructor could replace him for at least the adducing of any relatively uncontroversial oral testimony, which proved not to be possible, I adjourned the trial until Monday 8 September 2014 and requested the jurors to return by 9:30 am that day, that is, today.
At 10:00 am today I was informed that two jurors had not arrived. Efforts were made to locate them. One was contacted and eventually arrived. He explained that he had called the jury hotline and received the message that the jury panel of which he had been part had been discharged. That, of course, referred to the panel from which the jury had been selected and not the empanelled jury, despite what may otherwise be semantic confusion. I permitted him to re-join the jury.
Despite significant efforts, the last juror had not arrived and was not able to be contacted, although it appears that some contact was made. She apparently called the Court twice earlier today and her employer, when phoned, agreed to telephone her, which he subsequently said he did. I also directed one of the jury keepers to attend at her home and work during the lunch hour to see if he could make contact and arrange for her to come to court.
Ultimately, it appeared that she had been in the Magistrates Court for most of the morning because of an incident that occurred over the weekend. That incident resulted in her then partner being charged with an offence and appearing in the Magistrates Court today. As a result of that, and considering her condition and other matters that were drawn to my attention by counsel for the Crown, I discharged her, an action that was not opposed by counsel for Mr Lam.
The next question, however, is whether I should discharge the jury. Section 7 of the Juries Act requires that a jury consist of twelve jurors. While that section is in mandatory terms, s 8 of the Juries Act permits a reduced number of jurors. Section 8 is in the following terms
8 Reduced number of jurors
(1)If the judge is satisfied that, because of illness or other sufficient cause, a juror should not continue to act as a juror, the judge may order that the juror be excused from further attendance during the trial and during any further period that the judge specifies in the order.
(2)Where, because of the death of a juror or of a juror being excused under subsection (1), the number of jurors is reduced to not less than 10, the trial shall, if the judge so orders and notwithstanding section 7, continue with the reduced number of jurors, and the verdict of those jurors shall be a sufficient verdict.
(3)If, at a criminal trial—
(a)the number of jurors is reduced to 11 or 10 and the judge does not make an order under subsection (2); or
(b)the number of jurors is reduced to less than 10;
the judge shall discharge the remaining jurors and shall adjourn the trial to a date fixed by the judge or to be fixed as the judge orders.
I have now considered whether the trial should continue as required under s 8(2). Initially, it was suggested that the order referred to in s 8(2) is the same order made in s 8(1), but that cannot be so for two reasons:
(a)subs (3) refers only to an order under subs (2), making it relatively clear that the two orders are different; and
(b)what was said by the High Court in Wu v The Queen (1999) 199 CLR 99 at 103, where Gleeson CJ and Hayne J said
The decision to discharge a juror and the decision to proceed with a jury of less than 12 are distinct steps and often will be affected by different considerations.
The question now arises as to whether I should discharge the whole jury. In my view, I should not do so. In the first place, the statute has clearly made it appropriate for a reduced number of jurors, namely ten, to be available to continue the trial. Secondly, I am concerned about the prospect of delay in this matter if the jury were to be discharged and the trial therefore delayed.
While, through the changes to our system of prosecuting sexual assault cases, introduced by the Sexual Assault Response Project after adoption of the Report by the Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, Responding to Sexual Assault: The Challenge of Change (2005, ACT, Canberra), means that the complainant will not be affected as her evidence has been preserved by CCTV and audio‑visual record, nevertheless, the delay will affect other persons and, in particular, will impose a burden on the accused. Indeed, that has been described by the High Court as a considerable burden on the accused. Nevertheless, the accused is, of course, entitled to a fair trial.
I have considered the matter carefully and in my view a fair trial can continue with a reduced number of jurors. I do not consider that a trial with ten jurors instead of twelve will be unfair to the accused and I do consider that the delay that will inevitably be occasioned by the discharge of the jury would be unfair and inappropriate.
Accordingly, I will order that the trial continue with the reduced number of jurors.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 5 February 2015 |
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