R v Magnus (Ruling No 2)

[2011] VSC 409

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0146

THE QUEEN

V

TIMOTHY FRANCIS MAGNUS

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2011
DATE OF RULING:	24 August 2011
CASE MAY BE CITED AS:	R v Magnus (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 409

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Illness of juror during jury deliberations – Sections 43 and 44 Juries Act2000 – Juror discharged – Trial directed to proceed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC and Mr J Fitzgerald	Solicitor for Public Prosecutions
For the Accused	Mr R Edney and Ms N Sheridan-Smith	Doogue & O’Brien

HIS HONOUR:

1. At about 11.45am today I exercised my discretion to discharge a juror from further service in this trial pursuant to s 43 of the Juries Act 2000. I then directed that the trial proceed in that juror’s absence pursuant to s 44 of the Act. I indicated that I would provide my reasons as soon as possible.

1. The accused has pleaded not guilty to an indictment containing fifty three charges of Obtaining a Financial Advantage by Deception, involving eleven complainants.

1. A jury of 13 were empanelled in this trial on 27 July 2011. That number was reduced to 12 on 5 August 2011 when a juror became ill with symptoms of a heavy cold or flu. On that occasion, I exercised the discretion I have under ss 43 and 44 of the Juries Act 2000, by discharging that juror and directing that the trial continue.

1. The jury of 12 retired to deliberate at 3.05pm Thursday 18 August.  They were not sequestered, and deliberated until 4.30pm.  Deliberations continued on Friday the 19 August and Monday the 22 August.  By my rough calculations, as at Monday evening, the jury had deliberated for approximately 15 ½ hours. 

1. On Tuesday 23 August at approximately 7.30am, Juror No. 188 contacted my Tipstaff.  He advised he was ill and would not be attending court that day.  It transpired that he too is suffering flu-like symptoms.  My tipstaff was subsequently advised (this morning) that the juror had seen his doctor on Monday evening and had been certified unfit for work for two days.  A copy of the certificate is held on the court file.

1. Thus, the jury has been precluded from deliberating yesterday (Tuesday) and for part of this morning. I convened court at 11.30am to invite submissions from counsel as to whether I should exercise my powers under s 43 (to discharge the juror) and s 44 (to order the trial continue with a reduced number of jurors). This is a two stage process.

Discharge of Juror No. 188

1. Mr Edney for the accused submitted that I ought not discharge the juror at this stage.  The jury was at a critical stage of its deliberations and it was desirable that it remain intact.  He submitted that there was a chance the relevant juror had taken a favourable view of his client’s case and he did not wish to forego that chance.  Mr Edney accepted that the timing of this issue arising was different to that encountered in Wu v R[1] and R v Arnott.[2]

   [1](1999) 199 CLR 99. This case concerned the application of ss 19 and 22 of the Jury Act 1977 (NSW).

   [2][2009] VSCA 299.

1. Mr Rose, who appears with Mr Fitzgerald to prosecute, argued that the ill juror ought to be discharged.  If another day were lost with no guarantee that the juror would present tomorrow, then the momentum of the jury’s deliberations would be substantially interrupted.  These submissions went both to the first phase of the process (whether or not to discharge the juror) as well as the second.

1. Wu’s case left open the question as to whether the similar but different s 22 of the Jury Act 1977 (NSW) involved an exercise of power in discharging a juror as opposed to an exercise of discretion. Arnott’s case treated the Victorian legislation (ss 43 and 44 Juries Act 2000) as discretionary provisions with the concurrence of counsel appearing in that case, and counsel before me also approached the matter on the same footing. I approach this issue on the basis that both ss 43 and 44 involve exercises of discretion on the part of the trial judge.

1. I considered that it was appropriate that I discharge juror No 188.  I did so for the following reasons:

·     I accept that he is ill and suffering from flu-like symptoms.

·     If I did not discharge him, his absence would interrupt the jury deliberations for at least two full days (yesterday and today) and perhaps more.  I considered it to be inappropriate that the jury’s momentum in this process be interrupted any more than is necessary.

·     I considered it was inappropriate to adjourn this phase of the trial further to allow his return.  I believe that it is unfair to expect the other jurors to ‘tread water’ until  his return, whenever that may be.  I am also of the view that, despite the opposition to this course by counsel, it is unfair to the accused that this process be any more drawn out than it needs to be.

·     I am unable to identify any prejudice to the accused flowing from the exercise of my discretion to discharge the juror other than the mathematical fact that any verdicts will now be the verdicts of 11 of his peers, not 12.

·     The Victorian legislation evinces the clear intention of parliament that the old Common Law position be abrogated and, in appropriate circumstances, a juror may be discharged without necessarily aborting the trial process.

Continuation of the Trial

1. Although this is a two-phase process, in the current circumstances many of the considerations overlap.  Mr Edney submitted that I ought not to allow the trial to proceed and ought to discharge the jury of 11 for effectively the same reasons as he advanced on the discharge of juror application and Mr Rose responded in kind.

1. I directed that the trial continue with the remaining jurors for the following reasons:

·     The trial is at its penultimate stage and has occupied the court for over a month.  There is a strong public interest in its continuation.

·     I can identify no prejudice to the accused other than the mathematical fact I observed earlier in these reasons.

·     As observed above it is the clear intention of Parliament that, in an appropriate case, criminal trials ought not be aborted by illness reducing the number of jurors to below 12.

·     The illness of this juror has come at a most inconvenient time.  The only work left to do in this trial is being done by the jury, who are now reduced in number by one.  We place great faith in juries to act objectively and fairly and I am unable to accept that the reduction in its number will adversely impact upon its objectivity or fairness to any party.

1. Accordingly, I did not consider there was a ‘high degree of need’[3] to discharge the balance of the jurors from further service in this trial and I directed that the trial continue.

   [3]See R v Sharp [2005] VSCA 44, [48]-[50]