R v Pacitti
[2022] SASCA 108
•21 October 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
R v PACITTI
[2022] SASCA 108
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
21 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IRREGULARITY AS REGARDS PROCEDURE - MATTERS RELATING TO JURIES
The respondent was charged with rape or alternatively indecent assault. On 27 October 2021, he pleaded not guilty to both charges and was placed in the charge of the jury. The trial commenced and, on 5 November 2021, the jury retired to consider their verdict.
Later that day, the trial judge received a jury note indicating that a juror had viewed social media posts made by the complainant over the preceding 10 years and had discussed his opinion that they were consistent with her “overall persona” with other jurors. The jury was discharged, and a mistrial declared.
Rather than seeking a new trial, the respondent made an application for an extension of the time within which to elect for a trial without a jury, with a view to the trial continuing without a jury and the trial judge delivering a verdict. The trial judge granted the extension of time, and, upon an election being made, adjourned to consider her verdict. On 30 November 2021, the trial judge published her reasons for verdict and acquitted the accused on both counts.
The Director of Public Prosecutions seeks permission to appeal against the acquittal on two grounds: first, that the first trial of the respondent having ended upon the trial judge discharging the jury and declaring a mistrial, the trial judge erred in delivering a verdict; and secondly, that the trial judge erred in extending the time for the respondent to elect for the first trial to proceed without a jury, in granting the application that the first trial proceed before her Honour without a jury, and in determining to proceed with the first trial and deliver a verdict.
Held, (Livesey P, Doyle and David JJA), the Director's application for permission to appeal should be granted, and the appeal allowed. The respondent's acquittal should be set aside. The matter should be remitted for retrial.
1.The effect of the discharge of the jury and declaration of a mistrial was to end the trial. No verdict could be delivered in the first trial once the jury had been discharged and a mistrial declared. The only option was to commence a second trial.
2.Further, and in any event, the power to extend the time to elect to proceed without a jury pursuant to r 42(5) of the Juries Rules 1996 (SA) ceased to be available once the respondent had entered a plea of not guilty and had been placed in the charge of the jury (at the commencement of the trial on 27 October 2021).
3.Her Honour erred in granting the extension of time to elect for trial by judge alone, in determining to proceed with the trial, and in delivering a verdict.
4. The respondent’s acquittal is set aside, and the matter remitted to the District Court for retrial.
Criminal Law Consolidation Act 1935 (SA) ss 284, 285A; Criminal Procedure Act 1921 (SA) ss 157, 129, 131, 132; Criminal Procedure Act 1986 (NSW) 22 130, 154; District Court Act 1991 (SA) s 9; Evidence Act 1929 (SA) s 34R; Juries Act 1927 (SA) ss 6, 7, 59, 60; Juries Rules 1996 (Amendment No 2) (SA) Cl 4; Juries Rules 1996 (SA) Sch 1, rr 38, 40, 42, 43, 44, referred to.
Amagwula v The Queen [2019] NSWCCA 156; Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1; DL v The Queen (2018) 266 CLR 1; GG v The Queen (2010) 79 NSWLR 194; Lambert v The Queen [2020] SASCFC 85; Maher v The Queen (1987) 163 CLR 221; Newell v The King (1936) 55 CLR 707; NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; R v Gavare [2011] SASCFC 38; R v Gee (2012) 113 SASR 372; R v Gilham (2007) 73 NSWLR 308; R v IDH [2020] SADC 139; R v Janceski (2005) 64 NSWLR 10; R v LK (2010) 241 CLR 177; R v McLean [2020] SADC 170; R v Nicolaidis (1994) 33 NSWLR 364; R v Pacitti [2021] SADC 128; R v Scott [2013] SASC 29; R v Talia (1995) 82 A Crim R 373; R v Thaller and Gee (2001) 79 SASR 295; R v Tonner; R v Evans [1985] 1 All ER 807; Stephens v The Queen (2021) 290 A Crim R 303; Stephens v The Queen [2022] HCA 31; Stephens v The Queen (2022) 96 ALJR 871, considered.
R v PACITTI
[2022] SASCA 108Court of Appeal – Criminal: Livesey P, Doyle and David JJA
LIVESEY P:
Introduction
The two features of a criminal trial that arise for consideration on this appeal concern the time when a criminal trial for an indictable offence before a jury begins and, of particular importance for the outcome of this appeal, the time when a criminal trial before a jury ends.
These features frame the context in which the Director of Public Prosecutions (SA) (DPP) seeks permission to appeal under s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA) (CPA). The DPP challenges various decisions made by the trial judge, commencing with her decision to allow the respondent to make an application to elect for trial by judge alone and to continue with the trial.
This case is unusual because that application was made only after a trial had already been conducted before a jury in a conventional manner. Regrettably, after two weeks of hearing and after the jury had retired to consider their verdict, the judge acceded to a joint application that a mistrial be declared. The jury was discharged.
Without commencing a new trial, and over the objection of the prosecution,[1] the judge allowed the respondent to elect to continue the trial as one by judge alone and she retired to consider her verdict. The judge soon published reasons for her verdict. She acquitted the respondent of rape and the alternative charge of indecent assault.
[1] The objection by the prosecution started with the submission that the trial had finished, but addressed at length the merits of the application and the considerations relevant to why the judge ought not favourably exercise her discretion in favour of permitting the election, rather than whether she had power to entertain the application.
In substance, the questions for decision on this appeal are whether the trial judge had power to entertain the respondent’s application and whether she had power to deliver a verdict.
For the reasons that follow, permission to appeal should be granted and the appeal allowed. The acquittal must be set aside and a new trial ordered.
Once the jury was discharged the trial was at an end. There was no power to entertain an application for an extension of the time within which the respondent could be permitted to elect for trial by judge alone and continue with the trial. The trial could not continue and the judge could not deliver a verdict.
I otherwise gratefully adopt the comprehensive recitation of the events by Doyle and David JJA.
The conclusion to the trial
Since trials by jury were first conducted in South Australia in 1837,[2] the common law relating to the conduct of a criminal trial has, in numerous ways, been both amended and supplemented by statute and rules of court. The procedures relating to the conduct of criminal proceedings in which the guilt of a defendant for indictable offending is determined are now much more complex.[3]
[2] On 2 January 1837, an Act was passed for the establishment of Courts of General or Quarter and Petty Sessions in South Australia (Act No.1 (7th Wm IV, 1837). Sir John Jeffcott conducted the first jury trial in South Australia on 13 May 1837 (R M Hague, History of the Law in South Australia 1837-1867 (Barr Smith Press, 2005) vol 1, 73-74). The Supreme Court of South Australia was formally established by Act No. 5 (7th Wm IV, 1837) passed on 31 May 1937.
[3] Whether these are major indictable or minor indictable offences, see s 5 and Part 5 of the CPA, ss 6 and 7 of the Juries Act and Lambert v The Queen [2020] SASCFC 85, [42]-[44] (Livesey J).
In the circumstances of this case, it is necessary to address when a criminal trial finishes. That arises for determination because the trial judge purported to continue with the trial after she had discharged the jury. If the trial was then at an end, she had no power to continue with the trial, no power to entertain an application to elect for trial by judge alone and no power to deliver a verdict. As the determination of that issue is dispositive of this appeal, it is appropriate to commence with it.
Once the jury took the defendant into their charge to try the issues, it was for the jury, and for the jury alone, to deliver a verdict. That will be so even where the case is one requiring a directed verdict where, as a matter of law, a conviction is not open. Even in that type of case it is the jury who delivers the verdict, albeit acting on the direction of the trial judge.[4]
[4] R v LK (2010) 241 CLR 177, [26] (French CJ), citing Hocking v Bell (1945) 71 CLR 430, 440.
Where the case turns on a question of fact, it is the duty of the trial judge to leave the case for the jury to determine.[5] It is “fundamental” that the jury is “the constitutional tribunal for deciding issues of fact”.[6] That is one reason why the High Court recently rejected as contrary to law what was described as a ‘Prasad direction’, where juries were effectively invited to acquit at any time after the prosecution case where the trial judge took the view that the evidence was insufficient to support a conviction:[7]
The practice of permitting the trial judge to direct an acquittal based upon the judge's assessment of the insufficiency of the evidence to support a conviction was rejected in Doney as wrongly “enlarging the powers of a trial judge at the expense of the traditional jury function”.[8] If there is evidence (even if tenuous or inherently weak or vague) that is capable of supporting a verdict of guilty, the matter must be left to the jury.[9] This analysis does not sit readily with conferring on the trial judge a discretion, based upon the judge's assessment of the cogency of the evidence to support a conviction, to inform the jury that they may return a verdict of not guilty without hearing more.
[5] R v LK (2010) 241 CLR 177, [26] (French CJ), citing Ward v Mason (1821) 9 Price 291, 294; 147 ER 96, 97 (Graham B).
[6] R v Baden-Clay (2016) 258 CLR 308, [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[7] Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350, [56]; see also [39], [53] and [57].
[8] Doney v The Queen (1990) 171 CLR 207, 215 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[9] Doney v The Queen (1990) 171 CLR 207, 214-215 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).
Accordingly, once a criminal trial before a jury commences, the verdict of the jury “can never be dispensed with … A trial, once begun, must end in a verdict”.[10] That feature of a criminal trial before a jury is nonetheless subject to those cases where the jury is unable to deliver a verdict including where, as here, the trial judge declares a mistrial and the jury is discharged.[11]
[10] The Hon Sir Patrick Devlin, Trial by Jury (The Hamlyn Lectures Eighth Series, Stevens & Sons Limited, 1956), 78.
[11] The Hon Sir Patrick Devlin, Trial by Jury (The Hamlyn Lectures Eighth Series, Stevens & Sons Limited, 1956), 78. Other instances where the jury may be discharged without giving a verdict include where the jury disagree, where there is illness and where there has been interference or exposure to inadmissible or prejudicial material.
Rule 44 of Schedule 1 to the Juries Rules 1996 (SA) (Juries Rules), set out below, addresses what may be done after a trial comes to an end and a direction has been made for a new trial. In that event an accused may elect for trial by judge alone, or the accused may revoke an election earlier made for trial by judge alone. An election is appropriate where the accused has proceeded to trial by jury. A revocation is appropriate where the accused has earlier elected and proceeded to trial by judge alone. That is, the election may be made where there has been a mistrial or the jury has deliberated but been unable to reach a verdict, whereas the revocation may be made where an appeal against conviction by a judge alone has been allowed:
44—Election after direction for new trial
(1)Despite rule 42, when there has been a mistrial or a jury has been unable to reach a verdict or an appeal against conviction has been allowed and the accused has been remanded for a new trial, the accused may make the election in the manner set out in the preceding rules within 28 calendar days after being remanded for a new trial.
(2)Despite rule 43, when an appeal against conviction by a Judge alone has been allowed and the accused has been remanded for a new trial, the accused may revoke an election for trial by Judge alone by filing a notice of revocation in an approved form signed by the accused and a practitioner’s certificate within 28 calendar days after being remanded for a new trial.
(3)A notice of revocation and practitioner’s certificate complying with subrule (2) are admissible at any stage of the proceeding as evidence that the accused before making the revocation sought and received advice in relation to revoking the election from a lawyer.
Rule 44 must be read together with ss 59 and 60 of the Juries Act1927 (SA) (Juries Act):
59—Fresh proceedings may be taken
(1)If a jury is discharged from giving a verdict, fresh proceedings may be taken as if there had been no trial before the jury so discharged.
(2)Subject to subsection (3), a jury will, for the purposes of section 57, be taken to remain in deliberation for the total duration of any period between the time at which the jury retires to consider its verdict and the time at which the jury returns to the court room for the purpose of delivering its verdict.
(3)Where there has been a prolonged interruption of the deliberation of a jury, the presiding judge may, by order, determine that a period fixed in the order will not be taken into account as a period for which the jury has remained in deliberation, and any such order has effect according to its terms.
60—Court may order another trial
If at the time of discharging a jury the court thinks proper so to order, another trial may forthwith, or at some other time during the same or some future sittings, be commenced and proceeded with as if the previous trial had not been commenced; but no member of the jury so discharged may serve as a juror on that other trial.
When one reads ss 59 and 60 of the Juries Act together with r 44 of the Juries Rules, two things become clear. The first is that these provisions have been drafted on the assumption that, where a mistrial is declared and a jury is discharged from giving a verdict, that trial has come to an end. That is consistent with the common law and contemporary trial practice. The second is that after a mistrial or successful appeal the rights to elect or to revoke, as the case may be, are only to be exercised in connection with a new trial, which is “commenced and proceeded with as if the previous trial had not been commenced”.[12]
[12] Juries Act s 60.
In this case, once the jury was discharged the trial came to an end. All that remained for the trial judge was to formally conclude the proceedings, not to continue them.[13] A plain reading of the relevant legislation and rules, informed by the common law, demonstrates that there was then no power to entertain an application made under r 42(5) of the Juries Rules.
[13] In the same way as a trial judge enters a judgment for conviction or acquittal following the verdict of the jury, NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546, [76]-[78]; [99]-[100].
What was done effectively amounted to reviving the trial so that it could be concluded a second time by judge alone. As there was no power to proceed in that way, this appeal must be allowed.
The commencement of the trial: trial by judge alone
In deference to the arguments of the parties, it is appropriate to consider the further question of the breadth of the power to grant an extension of the time for an accused to elect for trial by judge alone under r 42(5) of the Juries Rules.
As will be seen, that issue can be approached by addressing the question when a jury trial begins. It has been recognised that the question of when a criminal trial begins may depend on the reason for which that question is asked.[14]
[14] Stephens v The Queen (2022) 96 ALJR 871, [7] (Keane, Gordon, Edelman and Gleeson JJ) citing R v Gilham (2007) 73 NSWLR 308, [78].
In this case, the reason for asking the question is to determine whether the power to both entertain and grant an extension of time to elect for a trial by judge alone ceased to remain available after a jury trial had begun. That must be determined by an analysis of the proper scope and effect of r 42(5), having regard to the common law and statutory context in which that rule appears.
Whether under s 17 (and s 63) of the Supreme Court Act 1935 (SA) or under s 9 of the District Court Act 1991 (SA) the superior courts of this State have jurisdiction to try criminal cases. The procedure to be applied in the conduct of criminal matters is addressed by a combination of the common law, legislation and rules of court: at the time of the subject trial, the CPA was supplemented by rules of court,[15] now the Joint Criminal Rules 2022 (SA).
[15] Supreme Court Criminal Supplementary Rules 2014 (SA); District Court Criminal Supplementary Rules 2014 (SA).
Under Part 5 of the CPA, the procedures applicable before and after the committal for trial of indictable offences are outlined, see Divisions 2 to 4, together with the proceedings applicable on trial in a superior court, see Division 6. By ss 129 and 131 of the CPA:
129—Plea of not guilty and refusal to plead
(1)A person arraigned on an information who pleads not guilty will, by that plea, without any further form, be taken to have put themself on the country for trial (and the court must, in the usual manner, proceed to the trial of that person accordingly).
(2)If any person, being so arraigned, refuses or fails to enter a plea to the information, it is lawful for the court to order a plea of not guilty to be entered on the person's behalf and the person will be treated as if the person had pleaded not guilty.
…
131—Certain questions of law may be determined before jury empanelled
A superior court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence or any other question of law affecting the conduct of the trial before the jury is empanelled.
The prevailing view in South Australia is that when a criminal trial begins is determined by the common law.[16] At common law the trial begins when the jury has “taken the defendant into their charge to try the issues”.[17]
[16] Attorney-General’s reference No. 1 of 1988 (1988) 49 SASR 1, 5 (King CJ, with whom Millhouse J agreed) citing R v Tonner [1985] 1 WLR 344.
[17] Attorney-General’s Reference No. 1 of 1988 (1988) 49 SASR 1, 5 (King CJ, with whom Millhouse J agreed); R v Gee (2012) 113 SASR 372, [25]-[26] (Gray and Sulan JJ), [258]-[259] (Peek J).
That view is subject to the qualification that the trial may begin earlier when, at or after the first arraignment but before the jury is empanelled, the judge proceeds to determine questions relating to the admissibility of evidence or the conduct of the trial, see s 131 of the CPA set out above.[18] That section was designed to avoid the “notorious mischief” that a jury might otherwise be kept waiting until these matters are addressed.[19]
[18] Attorney-General’s Reference No. 1 of 1988 (1988) 49 SASR 1, 5 (King CJ, with whom Millhouse J agreed).
[19] Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1, 5 (King CJ with whom Millhouse J agreed).
In other Australian jurisdictions, a criminal trial is regarded as beginning when the accused pleads not guilty at the first arraignment, whether or not the jury have been empanelled. The authorities in support of this view are based on the express terms of the legislation applicable to the conduct of trials by jury in those jurisdictions.[20]
[20] Newell v The King (1936) 55 CLR 707, 712 (Latham CJ), 712 (Dixon J). As King CJ pointed out in Attorney-General’s Reference No 1 of 1988, that case turned on s 351(6) of the Criminal Code (Tas). In 1988 there were similar provisions in the Crimes Act1900 (NSW) (s 395), the Crimes Act1958 (Vic) (s 391) and the Criminal Code (Qld) (s 594). To the same effect is the recent case of Stephens v The Queen (2022) 96 ALJR 781, [7]-[8] regarding s 130 of the Criminal Procedure Act 1986 (NSW): “the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial”.
When an accused is arraigned and pleads not guilty, the accused is “taken to have put themself on the country for trial”.[21] That operates as a consent to a trial which will be a trial by a jury acting in their capacity as representatives of the community.[22] Regardless whether an accused is arraigned in the presence of the jury, it is this consequence of any arraignment, especially the first arraignment, that probably best explains why an accused in South Australia must usually decide whether to elect for trial by judge alone by no later than the day of the first arraignment.[23] In the ordinary course that election is to be made before any step toward a trial by jury is taken.
[21] CPA s 129.
[22] Amagwula v R [2019] NSWCCA 156, [35] (Basten JA); R v Gee (2012) 113 SASR 372, [243] (Peek J).
[23] See r 42(1) of Schedule 1 to the Juries Rules, addressed below.
So, in South Australia the trial of an indictable offence will be a trial by jury unless the defendant “elects … to be tried by the judge alone” under s 7(1) of the Juries Act.[24] Broadly, s 7 represents the counterpoint to s 6 of the Juries Act:
6—Criminal trial to be by jury
(1)A criminal trial in the Supreme Court or the District Court is, subject to this Act, to be by jury.
(2)The jury is, subject to this Act, to consist of 12 persons qualified and liable to serve as jurors.
…
[24] South Australia was the first Australian jurisdiction to permit the trial of a criminal offence on information by judge alone, DL v The Queen (2018) 266 CLR 1, [80] (Bell J).
7—Trial without jury
(1)Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the trial will proceed without a jury.
…
(4)If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
The election for trial by judge alone is governed by Schedule 1 to the Juries Rules which addresses the means by which that election may be made. The election must be made in writing and with the benefit of legal advice from a legal practitioner, which is proved by a signed certificate from the practitioner:
38—Election
(1)An accused may make an election under section 7(1)(a) of the Juries Act 1927 (the election) in the manner and at the time stipulated in this Chapter and not otherwise.
…
40—Manner of making election
(1)An election made by the defendant is to be made by filing a notice of election in an approved form signed by the accused making the election and a practitioner’s certificate.
…
(4) … a notice of election complying with this rule is admissible at any stage of the proceeding as evidence that the accused before making the election sought and received advice in relation to the election from a lawyer.
These provisions and rules reflect that s 7 of the Juries Act creates an exception to the common law assumption that a criminal trial in a superior court will ordinarily proceed before a jury. There is no suggestion in these provisions and rules, and certainly not at common law, that there is any scope for a “hybrid” mode of trial. The criminal trial of an indictable offence is either by jury or it is by judge alone.
The Juries Rules also address the time by which the election must be made, which, as mentioned, is by no later than the day of first arraignment.[25] Once made, that election is generally irrevocable.[26]
42—Time for making election
(1)If an accused is committed for trial to sittings at Adelaide, the election is to be made no later than the day of the accused’s first arraignment on the information in respect of which the trial is intended to be held or within such time and in such manner as the Judge on the first arraignment directs.
(2)If an accused is committed for trial to a circuit sittings, the election is to be made within 28 calendar days after the accused is committed for trial.
(3)Subject to subrules (4) and (5) and to rule 44, if the election is not made in accordance with the preceding subrules, the accused is precluded from making the election subsequently notwithstanding that the information is amended or that the trial proceeds upon an information filed in substitution for an earlier information or informations on which the accused has been arraigned.
(4)If an amended or new information referred to in subrule (3) materially alters the substance of the charge or charges upon which the accused is to be tried, the accused may make an election at or before the first arraignment on the amended or new information.
(5)The Court may extend the time prescribed by or under this rule if satisfied that there are special reasons for so doing or that it would be unjust not to do so notwithstanding that such period has expired.
[25] Juries Rules r 42(1).
[26] Juries Rules r 43(1).
43—Election irrevocable
(1)Subject to rule 44, an accused who has made an election in accordance with the preceding rules is not permitted to revoke the election without the permission of the Court.
(2)Permission to revoke the election may be granted only if the Court is satisfied that, because of events occurring after the election, there are special reasons for so doing or that it would be unjust to refuse such permission.
The reference to the “first arraignment” reflects the modern practice that applies in this State: there may be more than one arraignment where, on each occasion, the accused’s matter is called on and a plea is taken after the Information has been read.[27] It is now commonplace that an accused may be arraigned on a number of occasions, with the first of these occurring months before any thought is given to empanelling the jury.
[27] R v Nicolaidis (1994) 33 NSWLR 364, 367 (Gleeson CJ, with whom Smart and Studdert JJ agreed).
It may be surmised that the requirement that the election be exercised by no later than the day of the accused’s first arraignment and plea of not guilty has the consequence that the decision about an election will ordinarily be made other than by reference to the identity of the likely trial judge. Nonetheless the first arraignment may, perhaps unusually nowadays, be coincident with the likely trial date. That the identity of the trial judge may then be known or likely to be known is not in itself a proper reason to reject the election.
The requirement that an election be made by no later than the first arraignment is rendered subject to the court’s discretionary power to extend the time for an election to be made under r 42(5) of the Juries Rules. That power depends on the court being satisfied either, that there are special reasons for so doing or, that it would be unjust not to do so.[28]
[28] See, for example, R v Gavare [2011] SASCFC 38.
The discretion available under r 42(5) is not explicitly circumscribed and its proper scope and exercise must depend on the common law and statutory context in which it is placed, together with the proper purposes it is intended to serve. The terms in which the power to grant an extension is framed shows that the power to grant an extension is not to be exercised as a matter of course.
Looked at in broad terms, r 42(5) permits the court to allow an accused to elect to proceed by judge alone after the time when that election should ordinarily be made. Assuming then that r 42(5) may first be utilised after the day of the accused’s first arraignment, and assuming also that it cannot be exercised once the trial has come to an end, what is the latest point before the end of the trial at which that power may be exercised?
Whilst the time when an application may be made to extend the time within which an accused may elect under r 42(5) is not explicitly circumscribed, a reading of the CPA, the Juries Act and the Juries Rules as a whole suggest, absent any question of consent or acquiescence, that the power to extend probably ceases to be available once the trial has started before the jury.
That is shown by various contextual and textual indicators. The most significant of these is the central importance of the jury trial in the administration and enforcement of the criminal law. The accused’s election represents a decision to adopt an alternative mode of trial where ss 6 and 7 identify the only two modes of trial available. In delineating these two distinct, alternate pathways there is, as mentioned, no scope for any “hybrid” form of trial. Once the election has been made, it is generally intended to be irrevocable.
It follows that where the trial has commenced as a trial before a jury, there is no longer any scope to select the alternative mode of trial.
Accordingly, as the power in r 42(5) is concerned with facilitating the right of an accused to select one of two alternate modes of trial after the first arraignment, once the jury has “taken the defendant into their charge to try the issues” and the accused’s trial has begun,[29] the power to extend time under r 42(5) ceases to remain available. In effect, the “window” within which an accused may ask for an extension of the time to elect for trial by judge alone has closed: the window for seeking an extension opens after the day of the accused’s first arraignment and it closes when the jury take the defendant into their charge to try the issues.
[29] Attorney-General’s Reference No. 1 of 1988 (1988) 49 SASR 1, 5 (King CJ, with whom Millhouse J agreed).
It might be said that the breadth of the rule is designed to accommodate cases where, even after the trial has started, an application to make a late election should be entertained. An example of that kind of case may be where the jury is discharged before evidence has commenced and, for whatever reason, a new jury cannot be made available without significant delay. In that setting both parties may well be content to proceed. The application may be supported, or at least not opposed, by the prosecution.
In my view there are two answers to this contention. The first is that the effect of an order granting the election would effectively amount to countenancing a mode of trial, a “hybrid” trial, which is not known to the law. That would be the effect of moving from one trier of fact (the jury) to another (the judge) within the same trial. There can be no legitimate purpose served in construing r 42(5) so as to enable a mode of trial which is not known to the law. Secondly, in the example just given, the legislation and rules of court earlier discussed specifically address the making of an election ahead of a new trial commencing. The proper course is to end the trial and commence a new trial.
Whilst the resolution of this appeal does not require that this issue be decided, it is my opinion that the r 42(5) power becomes available after the day of the accused’s first arraignment and it ceases to remain available when the jury take the defendant into their charge to try the issues.
Other matters
I agree with Doyle and David JJA that if the parties wished to proceed with the benefit of the evidence led at the first trial before the jury, it was necessary to commence a new trial.[30]
[30] See R v IDH [2020] SADC 139, R v McLean [2020] SADC 170.
Whilst the trial judge and the parties were in this case appropriately concerned to minimise the extent to which time and cost were wasted, expedition and efficiency could not be permitted to trump the fair and just resolution of criminal proceedings concerning serious charges in which each of the community, the complainant and the accused had a legitimate interest.
A second trial required that the accused again be remanded and arraigned. Whether the accused elected to be tried by judge alone on or before the first arraignment would be a matter for the accused.[31]
[31] Juries Rules r 44(1).
It could not be assumed that the court would make the trial judge available for the second trial. Ordinarily, the election under r 42(1) must be made by the accused without necessarily knowing the identity of the trial judge.
The provisional nature of the application under r 42(5) which was made in this case was probably designed to ensure that the accused would only elect for trial by judge alone if he was assured of securing the trial judge for a trial that would soon conclude. A provisional application of this kind is to be deprecated.
In addition, it could not be assumed that the evidence led at the first trial would be tendered in the second trial, or that there would be no need to recall witnesses. Whilst this was a matter for the parties to discuss, the evidence to be tendered in proof of the charges remained, subject to any objection by the defence and ruling by the court, a matter for the prosecution. It would in any event be a matter for the court and the parties to otherwise address the conduct of the second trial, including the extent to which rulings might be revisited under s 132 of the CPA.
Conclusion
The judge had no power to continue the trial once the jury was discharged. That is when the trial before the jury ended.
Accordingly, there was no power to entertain an application for an extension of the time to elect for trial by judge alone under r 42(5) of Schedule 1 to the Juries Rules and the trial judge was not empowered to deliver a verdict.
The power to entertain an application for an extension of the time within which the accused may elect for trial by judge alone under r 42(5) ceased to remain available after the jury took the accused into their charge. That is when the trial before the jury began.
The appeal should be allowed, the acquittal set aside and the matter remitted for trial.
DOYLE and DAVID JJA: The Director of Public Prosecutions seeks permission to appeal the respondent’s acquittal.[32]
[32] Pursuant to s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA).
The respondent was charged with the rape (or in the alternative, indecent assault) of the complainant, with the offending alleged to have occurred on 7 November 2017. The trial commenced on 27 October 2021, and on 5 November 2021 the trial judge completed her summing up and the jury retired to deliberate.
Later that same day, the Court reconvened in the absence of the jury to consider a note that the jury had sent to the trial judge. The note revealed that a member of the jury had viewed social media posts made by the complainant. The jury member was identified. He admitted that he had viewed posts made by the complainant over the preceding 10 years, that he considered those posts to be consistent with the complainant’s “overall persona”, and that he had shared this information with other members of the jury.
A joint application to discharge the jury was made, and granted.
The respondent, through his counsel, then made an application for an extension of the time within which to file an election for trial by judge alone. The application was adjourned and was the subject of submissions at a subsequent hearing on 11 November 2021. The application was opposed by the prosecution.
The trial judge delivered reasons on 19 November 2021 indicating her intention to grant the application, before formally granting the application on 26 November 2021.
In so ruling, the judge proceeded on the basis that the respondent’s application was for an extension of the time within which to elect to continue the trial that had commenced on 27 October 2021 (the first trial) without a jury. The respondent was not making an election that any new or second trial proceed without a jury. As such, there was no occasion to consider whether the evidence from the first trial would be tendered in a second trial, or whether any of the rulings made in the first trial might be revisited in a second trial.
The respondent having elected to continue the first trial without a jury, the trial judge adjourned to consider her verdict.
On 30 November 2021, the trial judge acquitted the respondent of the charges, and delivered her reasons for verdict.
The Director seeks permission to appeal on two grounds:
1.The first trial of the respondent having ended upon the trial judge discharging the jury and declaring a mistrial, the trial judge erred in delivering a verdict.
2.The trial judge erred in extending the time for the respondent to elect for the first trial to proceed without a jury, in granting the application that the first trial proceed before her Honour without a jury, and in determining to proceed with the first trial and deliver a verdict.
In their submissions, the parties agreed that the two grounds of appeal turned on the single issue of whether the trial judge had power to proceed to deliver a verdict in the first trial.
In our view, the trial judge did not have power to proceed in this way. While the respondent was entitled to elect to proceed before judge alone in a new trial, the first trial had concluded, and so could not continue before judge alone. Before explaining why this is so, it is appropriate to commence by identifying the relevant legislative provisions and rules of court, and by describing the procedural course adopted below in some more detail.
The legislation and rules
Under s 9 of the District Court Act 1991 (SA), the District Court has jurisdiction to try a charge of any offence (except murder or treason) and, if the defendant is found guilty (or admits their guilt), to convict and sentence them for that offence.
Under s 6 of the Juries Act 1927 (SA), “[a] criminal trial in the Supreme Court or District Court is, subject to this Act, to be by jury”.
However, s 7(1) of the Juries Act provides that if the accused elects (in accordance with the rules of court) to be tried by judge alone, the trial will proceed without a jury:
7—Trial without jury
(1) Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the trial will proceed without a jury.
Section 7(4) provides that if a criminal trial proceeds without a jury, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
The rules of court governing an election to proceed without a jury are found in Schedule 1 to the Juries Rules 1996 (SA).[33]Under r 38, the election must be made in the manner and at the time stipulated in the Juries Rules and not otherwise.
[33] As provided for in clause 4 of the Juries Rules 1996 (Amendment No 2), these rules duplicate Chapters 5 and 9 of the rules made separately by the Supreme Court pursuant to s 72 of the Supreme Court Act 1935 (SA) (being the Supreme Court Criminal Rules 2014 (SA)), and by the District Court pursuant to s 51 of the District Court Act 1991 (SA) (being the District Court Criminal Rules 2014 (SA)). These rules have now been replaced by similar rules in Division 1 of Part 4 in Chapter 5 of the Joint Criminal Rules 2022 (SA).
The manner of making the election is prescribed by r 40. It requires the filing of a notice in the prescribed form and signed by the accused, together with a practitioner’s certificate (certifying that the practitioner has advised the accused on all matters relevant to the election).
Under r 42, the accused must make his election by the date of his first arraignment on the relevant information, unless that time is extended under r 42(5):
42—Time for making election
(1)If an accused is committed for trial to sittings at Adelaide, the election is to be made no later than the day of the accused’s first arraignment on the information in respect of which the trial is intended to be held or within such time and in such manner as the Judge on the first arraignment directs.
(2)If an accused is committed for trial to a circuit sittings, the election is to be made within 28 calendar days after the accused is committed for trial.
(3)Subject to subrules (4) and (5) and to rule 44, if the election is not made in accordance with the preceding subrules, the accused is precluded from making the election subsequently notwithstanding that the information is amended or that the trial proceeds upon an information filed in substitution for an earlier information or informations on which the accused has been arraigned.
(4)If an amended or new information referred to in subrule (3) materially alters the substance of the charge or charges upon which the accused is to be tried, the accused may make an election at or before the first arraignment on the amended or new information.
(5)The Court may extend the time prescribed by or under this rule if satisfied that there are special reasons for so doing or that it would be unjust not to do so notwithstanding that such period has expired.
The election to proceed without a jury is, subject to limited exceptions, irrevocable:
43—Election irrevocable
(1)Subject to rule 44, an accused who has made an election in accordance with the preceding rules is not permitted to revoke the election without the permission of the Court.
(2)Permission to revoke the election may be granted only if the Court is satisfied that, because of events occurring after the election, there are special reasons for so doing or that it would be unjust to refuse such permission.
Importantly, r 44 provides that where there has been a mistrial (or a jury has been unable to reach a verdict, or an appeal against conviction has been allowed) the accused may make an election (or revoke a previous election) within 28 days after being remanded for a new trial:
44—Election after direction for new trial
(1)Despite rule 42, when there has been a mistrial or a jury has been unable to reach a verdict or an appeal against conviction has been allowed and the accused has been remanded for a new trial, the accused may make the election in the manner set out in the preceding rules within 28 calendar days after being remanded for a new trial.
(2)Despite rule 43, when an appeal against conviction by a Judge alone has been allowed and the accused has been remanded for a new trial, the accused may revoke an election for trial by Judge alone by filing a notice of revocation in an approved form signed by the accused and a practitioner’s certificate within 28 calendar days after being remanded for a new trial.
(3)A notice of revocation and practitioner’s certificate complying with subrule (2) are admissible at any stage of the proceeding as evidence that the accused before making the revocation sought and received advice in relation to revoking the election from a lawyer.
The prospect of a jury being discharged, and a new trial commencing, is contemplated by ss 59 and 60 of the Juries Act. In particular, s 59(1) provides that “[i]f a jury is discharged from giving a verdict, fresh proceedings may be taken as if there had been no trial before the jury so discharged.” And s 60 provides:
60—Court may order another trial
If at the time of discharging a jury the court thinks proper so to order, another trial may forthwith, or at some other time during the same or some future sittings, be commenced and proceeded with as if the previous trial had not been commenced; but no member of the jury so discharged may serve as a juror on that other trial.
The procedural course adopted below
As outlined earlier, the trial commenced before a judge and jury on 27 October 2021. The jury were given the usual directions not to conduct any searches or inquiries on the internet or social media in relation to any of the witnesses or persons associated with the trial or any issues, legal or otherwise, relating to the trial. They were warned of the risk of the need to discharge the jury and abandon the trial if these directions were not observed, and of the possibility of a juror being charged with contempt.
The trial then proceeded in the normal way over seven sitting days. The complainant and various other prosecution witnesses gave evidence. The accused gave evidence in his defence. An audio-visual recording was made of the complainant’s evidence.
During the course of the trial, the judge ruled, over prosecution objection, that the evidence of the complainant that the accused had assaulted and strangled her during, or shortly after, the alleged rape was discreditable conduct. Her Honour accordingly directed the jury under s 34R of the Evidence Act 1929 (SA) as to the permissible and impermissible use of that evidence.
Following the judge’s summing up, at about 1.00 pm on 5 November 2021, the jury retired.
Shortly after 3.40 pm that afternoon, it was revealed via a note from the jury that a juror had viewed certain social media posts made by the complainant, and had shared with other jurors his view that they were consistent with the complainant’s “overall persona”. After a short adjournment to reflect on the matter, both the prosecutor and defence counsel informed the trial judge that they were in agreement that the jury should be discharged.
Defence counsel also informed the trial judge that her instructions were to make “a late election for trial by judge alone before your Honour, which would involve no more evidence, no more submissions, no more other witnesses and your Honour could simply, the election having been made, adjourn to consider your verdict.” The trial judge having floated the possibility of the matter being “turned into trial by judge alone” shortly prior to the adjournment to take instructions, her Honour indicated that she had made inquiries during the adjournment and ascertained that the earliest the defendant could obtain a re-trial before a jury (or, it would seem, another judge) was in about a year.
Upon the jury returning to the court room, the trial judge informed the jury that both counsel had applied for a mistrial. After explaining that what had occurred was contrary to her Honour’s instructions to the jury at the outset of the trial not to conduct their own research, and that the fair trial of the defendant had been compromised, the trial judge told the jury that they were “formally discharge[d]”. Her Honour adjourned the matter to 11 November 2021.
The trial judge subsequently directed the Registrar to initiate contempt proceedings against the juror who had searched for and viewed the complainant’s social media posts.
Prior to the resumption of the hearing on 11 November 2021, both parties filed outlines of argument setting out their respective positions.
In its outline, the defence pressed “an application for trial by judge alone pursuant to section 7 of the Juries Act 1927 such that your Honour can be substituted as the finder of fact for the discharged jury and enter a verdict according to the law upon the evidence in the trial.” The defence submitted that there were strong public policy reasons in favour of the application, given that the trial miscarried through no fault of the defendant; that the accused and the State had already incurred great expense; and that any delay would cause the defendant significant distress. The defence submitted that the prosecution’s dissatisfaction with some of the rulings and directions made by the trial judge was not a basis for declining the accused’s application; that these concerns could be addressed through the right of appeal conferred upon the Crown in the case of an acquittal following a trial by judge alone. Indeed, it was suggested that to advance this dissatisfaction as a basis for opposing the accused’s proposed course was tantamount to the prosecution judge shopping.
In its outline, the prosecution opposed the application for a trial by judge alone. While apparently accepting that such an application might be granted if there were “special reasons for doing so or that it would be unjust not to do so”,[34] the prosecution contended that neither of these criteria had been made out. The prosecution contended that, unlike cases such as R v Gavare[35] (where new information came to light which might have affected the accused’s exercise of his right of election), there was nothing exceptional about a mistrial and consequential discharge of a jury. There was nothing peculiar about the trial which would render it unjust for the accused to face a further trial. Cost and inconvenience were not sufficient for this purpose. There was a proper reason to seek a retrial, given the prosecution position that the trial judge had made erroneous rulings and had given erroneous directions.[36] Further, there was a difficulty with the trial judge proceeding as the fact-finder in circumstances where she had had access to material (including statements given by the complainant) which had not been received as evidence in the trial, but which were said to “bear so heavily upon the key issues”. It was said to be unrealistic and unfair to assume that this material could be ignored, or that a verdict would be free from any appearance of bias.
[34] This being the wording used in r 42(5) of the Juries Rules.
[35] R v Gavare [2011] SASCFC 38.
[36] Particularly, the ruling that the alleged choking was discreditable conduct, and the directions given in relation to the same.
At the commencement of the hearing on 11 November 2021, counsel for the accused explained that an application for an extension of the time within which to seek an election that the trial proceed without a jury had not been filed; that a “provisional” application was being made. As counsel explained:
Can I explain to your Honour that the application for trial by judge alone has not been filed in the registry, as we speak, for, I say, obvious economic reasons which we say entitled the accused to bring this application notwithstanding that he has not formally exercised his right under the Juries Act. Obviously he wants, as indicated to your Honour last Friday, the matter to proceed by trial alone before your Honour. Were your Honour to refuse that application, then he would maintain his chosen mode of trial to date, namely, trial by jury and he makes the application to your Honour for the late election for the obvious economic benefits to him in taking that course. So, the application is, if you like, provisional at this stage, but we say with an interest of justice component as to why he should be entitled to a decision on that before he makes the election. Otherwise we rely upon what we put.
The trial judge described that application as “effectively for a trial by judge alone before me because if it was an election for trial by judge alone before any judge, then there’s no economic benefit to him in that regard.” Her Honour drew some support for this approach from the course adopted in R v IDH.[37]
[37] R v IDH [2020] SADC 139.
On appeal, the Director challenges not only the power of the Court to make an order continuing the first trial before judge alone, but also the appropriateness of an application for such an order being made on the provisional basis set out above. The prosecutor at the time, however, did not take any objection to the procedural approach adopted, confining his opposition to the substantive merits of the application. Whilst emphasising that the prosecution was conscious of the wasted expense associated with a second trial, and would in some cases consent to a trial by judge alone before the judge who had heard the first trial, the prosecution (for the reasons set out in its outline, and developed orally) did not consider that appropriate in the circumstances of the present case.
Defence counsel also reiterated and elaborated upon the matters advanced in her outline of argument.
The trial judge reserved her decision, indicating her then view that if she did grant the application, there would need to be consideration of whether the evidence from the first trial would be tendered and whether any of the rulings made would be revisited.[38]
[38] Noting that, as explained later in these reasons, her Honour was ultimately persuaded that there was no need for these steps to occur.
On 19 November 2021, the trial judge delivered reasons for granting the application.
In her reasons, the trial judge commenced by observing that the foreshadowed application to elect was not one that was specifically contemplated by either r 42 or r 44 of the Juries Rules, adding that r 42 appeared to contemplate an election, even if granted out of time, prior to the commencement of trial.[39] However, her Honour reasoned that because the trial had not concluded, r 42 nevertheless applied:[40]
In this matter, the foreshadowed application is not one made before the trial has commenced and is not being made after the accused has been remanded for a new trial. The trial has taken place although it has not concluded as the jury was discharged before verdicts could be delivered. In this hybrid situation, unless and until a new trial is listed, the accused’s application is one that has not been brought in compliance with the time limit stipulated in rule 42. Accordingly, in my view rule 42 applies.
[39] R v Pacitti [2021] SADC 128 at [13], noting that that is what occurred in R v Gavare [2011] SASCFC 38 and R v Scott [2013] SASC 29.
[40] R v Pacitti [2021] SADC 128 at [16].
After setting out and addressing the detail of the parties’ arguments, the operative passage of the trial judge’s reasons was as follows:[41]
[41] R v Pacitti [2021] SADC 128 at [64]-[72].
The purpose of rule 42(5) appears primarily to be directed to control process and avoid abuses of process. A genuine explanation as to why the right was not exercised earlier is sufficient to meet the requirement of the rules.[42] Even if the justice of the case does not call for an extension, special reasons may otherwise exist.
[42]R v Gavare [2011] SASCFC 38 at [59]-[61].
I do not consider this to be a case of Judge shopping. In this case the accused has given a genuine explanation as to why the right was not exercised earlier. There is a genuine and reasonable explanation for the late (provisional) application. This is not an abuse of the courts process.
That, without more, might be sufficient to justify the grant of an extension of time to file the application. However, in my view, where the application to extend time to file the election is for the purpose of substituting the Judge who presided over an aborted jury trial as the fact finder on the evidence led in that trial, there will invariably be other factors that require consideration. However, those factors must be considered in the context of the purpose of the Act and the Rules and the criteria in rule 42(5).
The phrase ‘would be unjust not to do so’ enables the court to act in a wide variety of circumstances. It is only necessary to satisfy one of the two criteria in rule 42(5) in order to succeed in an application to extend time.
In my view the following are relevant factors in the consideration of whether special reasons exist, or it would be unjust not to grant the (provisional) application:
1. The accused’s trial miscarried at the very end of the trial process by reason of a deliberate and egregious breach by a juror of a judicial direction; and
2. The accused was deprived of a fair trial and the prospect of an acquittal, which verdict would have been final; and
3. A re-trial will not be listed until November 2022 at which time 5 years will have elapsed since the alleged offence occurred; and
4. The accused elected to give evidence and called evidence at his trial and will be faced with the difficult decision in any re-trial of whether to again call and give evidence. His evidence was not recorded by audio-visual means, and the advantage enjoyed by the jury in its assessment of his evidence given in person in his first trial will not be replicated in the second trial by the tender of that evidence. If he gives evidence he can be cross-examined on the evidence he gave in the first trial. That position is to be contrasted with the forensic advantage to the prosecution arising from the choice to rely upon the tender in the re-trial of the audio-visual recording of the evidence of the complainant at the first trial or to call her to give evidence at the second trial; and
5. The accused has lost the forensic advantage of cross-examining witnesses for the first time; and
6. The prosecution will have the opportunity to revisit the rulings which it contends were unfavourable to the prosecution and proposes to do so in respect of the discreditable conduct ruling. The prosecution is now on notice that it will be suggested by defence counsel that there was no other person present in the men’s toilet other than Mr Pope at the time of the alleged rape and has indicated that the case may well be conducted differently by the prosecution and give rise to applications upon which the trial Judge will be required to rule; and
7. The accused will incur considerable expense in funding counsel for a re-trial, a circumstance for which he was not responsible and which would not have arisen had the juror complied with the judicial direction and he had a trial according to law; and
8. The accused is prepared to forfeit his right to a final verdict of acquittal; and
9. A re-trial necessarily puts the state and the taxpayer to significant expense and witnesses to inconvenience and potential distress; and
10. Actual or apprehended bias.
I reject the prosecution submission that the rulings given during the course of the trial which it considers to be wrong at law is a relevant factor in the application of the test in rule 42(5).
For the reasons I have given, I am not satisfied that there is an apprehension of bias requiring me to recuse myself from hearing the trial as a Judge alone.
The fact that the prosecution objects to the application has no bearing on the application of the test in rule 42(5).
In my view, the matters advance by the accused as summarised in para 68(1)-(9) lead me to conclude that it would be unjust not to grant the (provisional) application. It is not necessary for me to consider whether any or all of these matters constitutes special reasons, but I indicate that the same matters in my view would also amount to special reasons to grant the application.
Her Honour then proposed to make the following order:[43]
Upon the filing by the accused of a formal application to extend the time within which to file an application for trial by Judge alone, and provided the criteria in s 7(1)(a) and (b) Juries Act have been complied with, I will order that the time be extended for the filing of that application to the date on which the application is filed and the matter will return before me for the formal tender of the evidence and any further applications either counsel wish to make.
[43]R v Pacitti [2021] SADC 128 at [73].
There was a further hearing on 26 November 2021. Counsel for the defence indicated that her instructors had prepared, and were ready to file, an application for an extension of the time within which to file an election to proceed with a trial by judge alone, and the paperwork necessary to make that election. Importantly, she reiterated the defence position that the application was under r 42 rather than r 44, explaining that the latter did not apply because there had not in fact been a mistrial. She submitted that “the trial is still on foot and all that has occurred is that your Honour had discharged the jury from their function.” Defence counsel contended that because the first trial was still on foot, there was no occasion to consider the parties going through a process of tendering the evidence from that trial or the judge reconsidering any rulings that had been made. The defence position was that the judge should simply rule on its application and then adjourn to consider her verdict.
The prosecution position was that the first trial had come to an end upon the judge declaring a mistrial and discharging the jury. As a result, the appropriate procedure was to remand the accused for a new trial before a new judge.
Having noted that the necessary documents had been prepared, and would be filed forthwith, the trial judge delivered an ex tempore ruling to the effect that the first trial had not been completed and so could, and would, proceed as a trial by judge alone before her Honour:
In my reasons for ruling in R v Pacitti [2021] SADC 128 I set out at the end of that decision the proposed orders. I make the following orders in terms of the proposed orders with some modification. I accept the argument of Ms Powell QC that the application before me is made under rule 42(5) and not rule 44, and that the jury trial over which I presided did not conclude upon the discharge of the jury as a consequence of the immediate foreshadowed application for trial by judge alone by me, and in those circumstances although the jury was functus I was not functus, and in such circumstances have power to grant the application now before me and about to be filed for an extension of time within which to file an election for trial by judge alone, that trial being the trial before me of which I am still seized.
Her Honour ordered that the time for the filing of the application for trial by judge alone be extended to 26 November 2021, and adjourned to consider her verdict. The application and election were filed on 26 November 2021.
On 30 November 2021, the trial judge published her reasons for verdict and acquitted the accused on both counts.
Consideration
As explained at the outset of these reasons, the issue raised by the Director’s proposed appeal is whether, after discharging the jury, the trial judge had power to continue the first trial without a jury, and to proceed to deliver a verdict in that trial. This in turn requires consideration of whether, following the discharge of the jury, the trial judge still had power under r 42(5) of the Juries Rules to exercise her discretion to grant the accused an extension of the time within which to make an election to proceed without a jury.
In short, it is our view that the Court’s power under r 42(5) was no longer available when the trial judge sought to exercise it. While the articulation of the power in r 42(5) does not contain any express limit upon the timing of its exercise, it could not be exercised after the jury had been discharged. By that point in time, the first trial had come to an end and the only option was to embark upon a second trial, with any election to proceed without a jury in the second trial to be made under r 44. However, we would go further than this and hold that the power under r 42(5) ceased to be available upon the accused being placed in the charge of the jury. By this point in the process, it was too late in our view for the accused to resile from the mode of trial he had chosen. The Court no longer had any power under r 42(5) to grant an extension of the time within which to make an election to proceed without a jury.
In order to explain our reasons for coming to these conclusions, it is necessary to address some aspects of the legislation and rules of court governing the conduct of criminal trials in the superior courts of this state.
The District Court has jurisdiction to hear criminal trials under s 9 of the District Court Act. By reason of s 6 of the Juries Act, the default mode of trial through which that jurisdiction is exercised is trial by jury. However, under s 7 of the Juries Act, an accused may, in accordance with the rules of court, elect to proceed by way of the alternative mode of trial, namely trial by judge alone.
In understanding the provisions in the Juries Rules governing the time when an election to proceed with this alternative mode of trial may be made, it is relevant to consider the procedure by which an accused person comes to be tried in a superior court of this state.
Following committal for trial in a superior court, an accused person will be arraigned in that superior court. The term “arraign” describes the process by which an accused person is called for trial, the information read, and a plea taken.[44] There is no reason in law why an accused person may not be arraigned on more than one occasion.[45] Certainly that reflects the practice in this state.
[44] GG v The Queen (2010) 79 NSWLR 194 at [62] (Beazley JA, Buddin J and Barr AJ agreeing); R v Gee (2012) 113 SASR 372 at [243] (Peek J).
[45] R v Nicolaidis (1994) 33 NSWLR 364 at 367 (Gleeson CJ, Smart and Studdert JJ agreeing); R v Janceski (2005) 64 NSWLR 10 at [187] (Woods CJ at CL).
The first arraignment on the relevant information usually occurs relatively soon after committal and is essentially a step in the court assuming jurisdiction over, and then taking management of, the proceedings.[46] Under r 42(1) of the Juries Rules, it is this “first arraignment” which is identified as the time by which an election to proceed to trial without a jury must be made. This is subject only to the situations described in rr 42(2) (circuit sittings) and 42(4) (new or amended informations), or an extension of the time within which to make an election under r 42(5).
[46] R v Nicolaidis (1994) 33 NSWLR 364 at 367 (Gleeson CJ, Smart and Studdert JJ agreeing); GG v The Queen (2010) 79 NSWLR 194 at [71] (Beazley JA, Buddin J and Barr AJ agreeing); Amagwula v The Queen [2019] NSWCCA 156 at [219] (Button J).
An accused person will also be arraigned at the commencement of the trial. In the case of a jury trial, this arraignment takes place before the jury panel. Assuming the accused pleads not guilty, the jury is then empanelled, and the accused is placed in the charge of the jury.
A question that sometimes arises is when a criminal trial in a superior court commences. It would seem that the answer to this question may depend upon the purpose for which the question is asked, and the context and legislative regime in which the question arises.[47]
[47] R v Gilham (2007) 73 NSWLR 308 [78] (Spigelman CJ), as recently applied by the majority of the High Court in Stephens v The Queen [2022] HCA 31 at [8] (Keane, Gordon, Edelman and Gleeson JJ); see also GG v The Queen (2010) 79 NSWLR 194 at [63] (Beazley JA, Buddin J and Barr AJ agreeing).
In Stephens v The Queen,[48] in considering the applicability of certain legislative amendments to particular criminal proceedings, a majority of the High Court explained that in New South Wales the trial begins upon the accused’s first arraignment on the relevant indictment:[49]
On his arraignment on 29 November 2018, Mr Stephens pleaded not guilty to each count on the indictment. Although the question of when a trial begins may have a different answer for different purposes[50], in this context the Court of Criminal Appeal held[51], and in this Court there was no dispute, that the arraignment on 29 November 2018 relevantly marked the commencement of Mr Stephens’ trial.
Section 130 of the Criminal Procedure Act 1986 (NSW), introduced in 1997[52], relevantly provides in s 130(2) that the court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned and, in s 130(3), that if (as here) proceedings are held for the purposes of making orders after the indictment is presented and before the jury is empanelled, those proceedings are part of the trial and “the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial” (emphasis added). As Howie J said in R v Janceski[53], an arraignment before the jury panel is not a necessary step to commence the trial; rather, when the accused is first arraigned and pleads “not guilty” they are “taken to have put [themself] on the country for trial”. That is, “answering to the indictment on arraignment has that effect, whether the arraignment takes place before the jury panel or not”[54]. Thereafter, the court has jurisdiction to make orders with respect to the conduct of the proceedings under s 130 of the Criminal Procedure Act.
[48] Stephens v The Queen [2022] HCA 31.
[49] Stephens v The Queen [2022] HCA 31 at [7]-[8] (Keane, Gordon, Edelman and Gleeson JJ). Steward J dissented (at [54]-[55]), holding that despite the terms of s 130(3) of the Criminal Procedure Act 1986 (NSW), the trial did not commence until the last arraignment, being the arraignment before the jury panel.
[50] R v Gilham (2007) 73 NSWLR 308 at 325 [78].
[51] Stephens v The Queen (2021) 290 A Crim R 303 at 315 [48], 320 [88].
[52] Crimes Legislation Amendment (Procedure) Act 1997 (NSW), Sch 2, item 2, introducing s 19. Compare R v Nicolaidis (1994) 33 NSWLR 364 at 367.
[53] (2005) 64 NSWLR 10 at 42 [219]. See Criminal Procedure Act 1986 (NSW), s 154.
[54] Amagwula v The Queen [2019] NSWCCA 156 at [30].
The legislative regime in South Australia differs in some respects from the regime applicable in New South Wales, and in particular does not include any equivalent of the reference in s 130(3) of the New South Wales legislation to the “continuation of the trial” emphasised in the above passage. For the reasons developed below, the better view appears to be that in South Australia the trial does not commence upon the first arraignment in a superior court.
Following committal for trial in a superior court in South Australia, aspects of the arraignment and trial of the accused are addressed by the provisions of the Criminal Procedure Act 1921 (SA). Under s 129(1) of that Act, upon being arraigned and pleading not guilty, the accused is taken to have “put themself on the country for trial”:
129 — Plea of not guilty and refusal to plead
(1) A person arraigned on an information who pleads not guilty will, by that plea, without any further form, be taken to have put themself on the country for trial (and the court must, in the usual manner, proceed to the trial of that person accordingly).
The capacity for the court to determine questions relating to the admissibility of evidence and the conduct of the trial, and the status of these determinations during the trial, are addressed in ss 131 and 132 of the Criminal Procedure Act:
131—Certain questions of law may be determined before jury empanelled
A superior court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence or any other question of law affecting the conduct of the trial before the jury is empanelled.
132—Determinations of court binding on trial judge
A determination or order made by a judge of the superior court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless—
(a)the trial judge considers that it would not be in the interests of justice for the determination or order to be binding; or
(b) the determination or order is inconsistent with an order made on such an appeal.
The reference in s 129(1) of the Criminal Procedure Act to the accused, by pleading not guilty when arraigned, having put themself “on the country for trial” also appears in the New South Wales legislation.[55] It is a reference to the accused having consented through his arraignment to trial by jury,[56] the jury being the representative of “the country” (meaning, in this context, the community).[57]
[55] Criminal Procedure Act 1986 (NSW), s 154.
[56] Amagwula v R [2019] NSWCCA 156 at [35] (Basten JA), extracting a passage from Stephen, History of the Criminal Law of England (1883) Vol 1, p297; R v Gee (2012) 113 SASR 372 at [243] (footnote 205) (Peek J), citing R v Talia (1995) 82 A Crim R 373 at 383 (Winneke P, Charles JA and Southwell AJA).
[57] Pollock and Maitland, The History of English Law (1898) Vol 11, p624.
In R v Amagwula,[58] Button J held that this provision applied only to the arraignment before the jury, this being the only “true” arraignment:[59]
Still and all, in my opinion the “true” arraignment whereby the accused puts himself or herself “on the country” (to use the archaic phrase that continues to appear in s 154 of the CPA), and thereby exercises his or her right to trial by jury, is the one that occurs in the presence of the jury panel. To give but one example, were it otherwise, an accused person who was arraigned months before the date on which the trial is proposed to commence could complain that he or she is not having his or her right to that mode of trial immediately respected. In similar vein, it would be absurd to suggest that an accused person who has pleaded not guilty at a pre-trial arraignment is thereby estopped from subsequently electing for trial by judge alone before he or she is arraigned at the true commencement of the trial.
[58] Amagwula v R [2019] NSWCCA 156.
[59] Amagwula v R [2019] NSWCCA 156 at [221] (Button J).
However, Basten JA took a different view, holding that answering to the indictment on arraignment had the effect of the accused placing himself “on the country for trial”, regardless of whether the arraignment took place before the jury panel.[60] At least so far as criminal trials in New South Wales are concerned, this latter view was recently supported by a majority of the High Court in Stephens v The Queen,[61] in the passage already quoted from their Honours’ reasons.
[60] Amagwula v R [2019] NSWCCA 156 at [30] (Basten JA).
[61] Stephens v The Queen [2022] HCA 31 at [8] (Keane, Gordon, Edelman and Gleeson JJ).
There is no reason to think that the position would be otherwise in South Australia under s 129(1) of the Criminal Procedure Act. Addressing the predecessor to that provision (s 284 of the Criminal Law Consolidation Act 1935 (SA)), Peek J in R v Gee[62] held that it applied to each arraignment of the accused:[63]
Of course, it is a legitimate question to ask: to which arraignment do s 284 and the above Rules apply? However the answer is clear: the provisions apply to each arraignment of the defendant that is conducted.
Obviously, there will be an initial arraignment shortly after committal by the Magistrates Court and a defendant who pleads not guilty at that initial arraignment places himself upon his country at that time in the sense that he indicates by the plea of not guilty that he wishes for a trial by jury to determine the matter.[64]
However, it has always been the law, and remains so, that the defendant having at an initial arraignment indicated by that plea of not guilty his wish to have a jury trial, is later required to be arraigned again in the presence of the jury panel. It is possible, and happens not infrequently, that a defendant who had initially pleaded not guilty at first arraignment will later decide to plead guilty. He is under no obligation to make that decision, or inform anyone of a decision once made, until the date of trial. It is only when he enters a plea of not guilty in the presence of the jury panel that it becomes necessary to actually empanel the jury and proceed with a trial.
[62] R v Gee (2012) 113 SASR 372.
[63] R v Gee (2012) 113 SASR 372 at [250]-[252]. While Peek J was in dissent as to the outcome in that case, there does not appear to be anything in the reasoning of the majority that conflicts with this passage from Peek J’s reasons.
[64] So it is that if a defendant wishes to engage a different mode of trial, trial by Judge alone, he must make that application at that initial arraignment. If no such application is then made, subject to the Rules of Court, he will be taken to have elected for trial by jury and to have lost the right to have a different mode of trial.
We shall address in due course the significance to the present matter of this view of s 129(1) of the Criminal Procedure Act. However, returning for the moment to when a criminal trial commences in South Australia, the better view appears to be that, subject to the qualification to be addressed shortly, the issue remains governed by the common law, with the result that the trial commences upon the accused being arraigned in the presence of the jury and, having pleaded not guilty, being placed in the jury’s charge. This was the view taken by this Court in R v Gee,[65] relying upon the following passage from the reasons of King CJ in Attorney-General’s Reference No 1 of 1988:[66]
In Newell’s case, the High Court held that the trial commenced on the date of the accused’s first arraignment before the court. This decision was based, however, upon an express provision of the Criminal Code of Tasmania which provides that the trial in criminal cases shall be deemed to be begun when the prisoner is called upon to plead. There are similar provisions in the Crimes Act 1900 (NSW), the Crimes Act 1958 (Vic) and the Criminal Code (Qld). There is no similar provision in South Australia where the matter is governed, subject to a qualification which I shall shortly mention, by the common law.
The common law rule is expounded in R v Tonner. In that case during the period which elapsed between the discharge of the jury in the first trial due to disagreement and the commencement of the retrial, the Criminal Justice Act 1982 which abolished the right to make an unsworn statement had come into operation and it was expressed to apply to trials except those which had begun before the commencement of the section. It was argued that the trial had commenced when the accused was first arraigned. The Court of Appeal rejected that argument and held that the trial commenced when the jury had taken the accused into their charge to try the issues.
[65] R v Gee (2012) 113 SASR 372 at [26] (Gray and Sulan JJ); see also at [253]ff (Peek J), relying also upon Maher v The Queen (1987) 163 CLR 221 at 229 (The Court).
[66] Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1 at 5 (King CJ, Millhouse J agreeing).
The qualification to the common law position, acknowledged by King CJ in Attorney-General’s Reference No 1 of 1988, arises by reason of what was s 285A of the Criminal Law Consolidation Act, and what is now s 131 of the Criminal Procedure Act. If the procedure contemplated by these sections for hearing and determining issues affecting the conduct of the trial prior to the empanelment of the jury is invoked, then it would seem that the trial commences upon the accused being arraigned before the judge invoking that procedure. As King CJ explained:[67]
The qualification, to which I referred above, in this State to this rule of the common law is to be found in s 285a of the Criminal Law Consolidation Act which provides that “a court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled”. The purpose of that section is not, I apprehend, to institute in this State an analogue of the American pre-trial motion system whereby questions of law would be determined in pre-trial proceedings distinct from the trial. The purpose is indicated by the final clause of the section. It is to enable questions of admissibility of evidence and other questions of law to be determined at trial before the jury is empanelled. The notorious mischief aimed at is the inconvenience and cost which was involved in keeping juries waiting and unoccupied for days and even weeks while voir dire hearings and preliminary arguments were conducted in their absence. The “court” referred to in the section is not the court as an institution, but the particular court constituted of the judge who is sitting to try the case. The arraignment is not the first arraignment at which the accused pleads but the process by which the accused is arraigned before the trial judge at the commencement of the trial. In this State, therefore, the trial commences when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury.
[67] Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1 at 5 (King CJ, Millhouse J agreeing).
This qualification was also acknowledged by this Court in R v Gee.[68] Referring to the above passage from King CJ’s reasons, Gray and Sulan JJ held that a trial commences when the accused is arraigned before the judge hearing any issues to be determined under s 285A.[69] Peek J reached the same conclusion.[70]
[68] R v Gee (2012) 113 SASR 372.
[69] R v Gee (2012) 113 SASR 372 at [25]-[26] (Gray and Sulan JJ).
[70] R v Gee (2012) 113 SASR 372 at [260] (Peek J).
Consistently with this view, the practice adopted in this jurisdiction has been for the accused to be arraigned at the commencement of a hearing under s 285A of the Criminal Law Consolidation Act (now s 131 of the Criminal Procedure Act). As Peek J explained in R v Gee, after describing s 285A as inserting a further procedural layer between an initial arraignment and the subsequent arraignment before the jury panel immediately prior to trial:[71]
Section 285A enables the Judge allocated to hear the trial (the need for which is engaged by the plea of not guilty at the initial arraignment), to hear and determine any questions of law before the jury is empanelled. This option ameliorates the former practice of empanelling a jury but then requiring the selected jurors to wait outside for sometimes very extended periods of time whilst such matters were determined.
When a defendant does seek that matters be determined pursuant to s 285A, it is necessary for the defendant to be arraigned before the Judge allocated to hear the trial in the absence of any jury panel. A plea of not guilty confirms for the allocated Judge that a trial will in fact proceed (perhaps subject to the determination of the preliminary matters in some cases) and that it is therefore necessary to consider the application(s) of the defendant.[72]
[71] R v Gee (2012) 113 SASR 372 at [256]-[257] (Peek J).
[72] This, of course, is not to say that a voir dire hearing must automatically be granted but an application for such a hearing must be considered and ruled upon.
While the practice is for the accused to be further arraigned in the presence of the jury panel after the relevant issues have been heard and determined, it would seem that this is merely so that the potential jurors will hear the plea taken, and not because it marks the commencement of the trial.[73]
[73] R v Gee (2012) 113 SASR 372 at [262] (Peek J), referring to R v Thaller and Gee (2001) 79 SASR 295 at [25]-[26] (Doyle CJ, Prior, Duggan, Lander and Bleby JJ agreeing).
We note in passing that it appears to have been assumed in these authorities that the judge hearing and determining any issues under s 285A of the Criminal Law Consolidation Act (now s 131 of the Criminal Procedure Act) will be the judge allocated to hear the trial. We understand that in more recent times a practice has developed in the District Court whereby issues may be heard and determined under s 131 of the Criminal Procedure Act well in advance of what might conveniently be referred to as ‘the trial proper’, and by a judge other than the judge allocated to hear the trial. In that context, it seems to us somewhat artificial to regard the arraignment that occurs at a hearing under s 131 as marking the commencement of the trial, as opposed to merely marking the commencement of a procedure that has implications for the conduct of the subsequent trial. Indeed, the section itself speaks of determinations being made that will affect the conduct of “the trial”, which might be taken as suggesting that the trial is something that will take place at some point in the future. This would be consistent with s 132, which speaks of determinations made by a superior court judge in proceedings binding “a judge of the court presiding at the trial”, with that judge referred to later in the same section as “the trial judge”.
All of that said, we return to our earlier observation that the identification of when a trial commences may depend upon the purpose for which the question is being asked. Addressed in the abstract, the issue risks becoming an exercise in semantics. It may be that for some purposes a trial in a superior court of South Australia commences upon the accused’s first arraignment before a judge hearing an issue under s 131, whereas for other purposes it might not commence until the accused is arraigned at the start of the trial proper.
The issue in the present case is whether there is any temporal limit upon the court’s exercise of the discretionary power under r 42(5) to extend the time within which to make an election to proceed without a jury.
The Director contends that this power can no longer be exercised once the accused has been arraigned and has, through his plea of not guilty, put himself “on the country for trial” under s 129(1) of the Criminal Procedure Act. However, once it is accepted, as authority suggests, that this occurs upon each arraignment, including the first arraignment, then the Director’s contention must be rejected. The contention cannot be reconciled with the terms of r 42 of the Juries Rules, being a rule of court contemplated by s 7(2)(a) of the Juries Act. Under r 42(1), the accused is entitled to make an election up to the day of the first arraignment. Hence the discretionary power to extend the time for making an election under r 42(5) must be exercisable after the day of the first arraignment, and hence after the (first) occasion upon which the accused puts himself “on the country for trial”. Otherwise, that sub-rule would have no work to do. Section 129(1) of the Criminal Procedure Act is better understood as merely reinforcing s 6 of the Juries Act in reflecting the position in South Australia that the default mode of trial is trial by jury. Consistently with that understanding, an arraignment to which s 129(1) applies does not itself mark a point in the process beyond which an election for the alternative mode of trial (trial by judge alone) cannot be made.
Whilst there is no express temporal limit upon the discretionary power under r 42(5), it nevertheless seems to us that it ought no longer to be exercisable after the point at which the trial has commenced in the sense that the accused has unequivocally embarked upon, or at least acquiesced in, a jury trial. By this point in time, the accused has irrevocably proceeded with a mode of trial that is inconsistent with the alternative mode of trial, namely a trial by judge alone.
This approach derives support from the general principle that a person, here the accused, should not be entitled to act inconsistently, or to approbate and reprobate, as to the exercise of their legal rights in respect of the mode of trial. While s 6 of the Juries Act[74] reflects a default position of trial by jury, s 7 of that Act acknowledges the potential for an alternative, but inconsistent, mode of trial.
[74] And s 129(1) of the Criminal Procedure Act.
If this inconsistency between the two potential modes of trial were the only rationale for denying the court power to permit an accused to elect to proceed by trial without a jury after a trial by jury had commenced, then there might nevertheless be some force in an argument to the effect that the discretionary power to permit a late election to change the mode of trial might still be available, albeit that there might be very strong reasons not to exercise it in the accused’s favour. To qualify for the exercise of a discretion is, after all, not necessarily to be entitled to a favourable exercise of that discretion.
The argument would be, as indeed the respondent in the present case argued, that because the court at all times retains jurisdiction over the relevant criminal proceedings, there is nothing to prevent the court, in an appropriate case, from at any time moving from a trial by jury to the alternative mode of trial by judge alone; that the court’s power under s 7 of the Juries Act to proceed with the latter mode of trial remains, albeit lying dormant, even after a trial by jury has commenced, and so may, in an appropriate case, be exercised at any point in time.
But there is a more fundamental objection to permitting an accused to elect a different mode of trial once the trial has commenced. To permit this to occur would be contrary to the notion that once an accused person has been placed in the charge of the jury, the outcome of the trial lies in the hands of the jury and must end in a verdict from the jury (subject only to there being some proper basis for declaring a mistrial and discharging the jury). As the Honourable Sir Patrick Devlin wrote:[75]
The other great difference [between a criminal trial and a civil trial] is that the verdict of a criminal jury can never be dispensed with. If the prosecution does not in the opinion of the judge offer some evidence which would justify a conviction, he does not, as in a civil case, withdraw it from the jury; he directs the jury as a matter of law to find a verdict of Not Guilty. If the prisoner in the course of the trial changes his plea to Guilty, he must not (as would have happened if he had pleaded Guilty in the first instance) be sentenced upon his own confession; he is in the charge of the jury and therefore there must be a verdict; the jury must be told that the prisoner having in their presence by his changed plea confessed the crime, they should find him Guilty without hearing further evidence and then upon their verdict he will be sentenced. A trial, once begun, must end in a verdict unless the case falls within one of the recognised categories which justify the discharge of the jury without giving a verdict, such as a disagreement, illness, interference with the jury or the misconduct of one of them, or the utterance of inadmissible or prejudicial evidence. Without a verdict there cannot be a judgment.
[75] Devlin, Trial by Jury, Hamlyn Lectures (eighth series), 1956, p78; noting that the reference to directed verdicts is consistent with the position described by French CJ in R v LK (2010) 241 CLR 177 at [26]-[31].
It can thus be seen that, once the accused has been arraigned in the presence of the jury panel, and then placed in the charge of the jury, a trial by jury has commenced, and must end in a verdict from the jury. There has been an irrevocable selection of, or at least acquiescence in, the jury mode of trial. The judge presiding over the trial no longer has any power to withdraw the matter from the jury or to otherwise dispense with the jury’s verdict. The only exception to this is in circumstances where there is a proper basis for discharging the jury. However, in that exceptional case, the trial concludes with the discharge of the jury. There is no occasion for any change in the mode of that trial.
It is true that the trial does not, strictly speaking, end immediately upon the jury delivering its verdict or being discharged from delivering a verdict. The jury’s role concludes at that moment, but it remains for the judge to formally conclude the proceedings by acting upon the jury’s verdict (by entering a conviction or acquittal) or by declaring a mistrial.[76] But there is, in our view, no practical distinction to be drawn; the one follows inevitably from the other. We do not accept that there is any room once the jury has completed its function for the judge to adopt a course that would be inconsistent with the accused having earlier been placed in the charge of the jury. Once the accused has been placed in the charge of the jury, the potential for an accused to select the alternative but inconsistent mode of trial has been exhausted. The power in the court to permit this alternative mode of trial cannot be said to be merely dormant; it ceases to exist once the default mode of trial by jury has commenced.
[76] NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546 at [76]-[78] (French CJ, Kiefel and Bell JJ).
The trial judge in the present case not only discharged the jury, but also spoke in terms of a mistrial. Even if, as the respondent argued, it might be accepted that the trial judge intended, after discharging the jury, to nevertheless stop short of declaring a mistrial, for the reasons set out above, we do not think this was a course available to her Honour. This view is supported, if not required, by the terms of ss 59 and 60 of the Juries Act, which assume the requirement for fresh proceedings in the event that a jury is discharged from giving a verdict.
We also do not accept that the reference in the concluding words of s 7 of the Juries Act to an election that the trial “proceed” without a jury assists the respondent. Whilst “proceed” is ordinarily capable of meaning “continue”, we do not think this is a sufficient basis for construing s 7 as conferring upon the court a power to order that a trial by jury be converted mid-stream into a trial by judge alone. The fundamental difficulty with, and objection to, that course that we have outlined remains. In our view, “proceed” in this context is better understood as meaning merely that a trial may take place, or commence, without a jury.
Accepting that, once the accused has been arraigned and placed in the charge of the jury, the court no longer has any power to dispense with the verdict of the jury, it necessarily follows, in our view, that there can no longer be any election to be tried without a jury, and hence the court can no longer have any discretionary power under r 42(5) of the Juries Rules to extend the time within which to make such an election. To permit an election at this point in time would be contrary to the significance the law attaches to the accused having been placed in the charge of the jury.
As we have already explained, authority suggests that in circumstances where an accused has been arraigned at an earlier hearing relating to the admissibility of evidence or the conduct of the trial under s 131 of the Criminal Procedure Act, then the trial might be said to have commenced at that earlier date. It might be argued in that situation that the discretionary power under r 42(5) ceased to be exercisable upon that earlier commencement of the trial. While we prefer not to express a concluded view on this issue, and need not do so in order to decide the present case, we incline to the view that regardless of when, strictly speaking, the trial might be said to have commenced, the accused may not have irrevocably proceeded with a trial by jury until he has been arraigned in the presence of the jury and placed in their charge.
For the reasons set out, the trial judge no longer had power to grant an extension of time under r 42(5) once the respondent had been placed in the charge of the jury at the commencement of the trial proper, on 27 October 2021. But even if we are wrong about this, the trial judge no longer had that power once she had declared a mistrial and discharged the jury. By that point in time, the first trial had concluded and any power the judge had in respect of the mode of that first trial was well and truly spent. A fortiori, she no longer had any power to return a verdict of her own.
Having reached this conclusion, it follows that the trial judge erred in purporting to exercise her discretion under r 42(5), or in otherwise permitting the first trial to proceed before her Honour. In circumstances where that course was simply not available as a matter of law, there is no need or occasion to address why, in any event, that course was undesirable, or to otherwise address the merits of the trial judge’s purported exercise of the r 42(5) discretion.
In the absence of any prosecutorial decision not to pursue the allegations against the respondent, the only course available was to commence a new or second trial. Upon the accused being remanded for that new trial, he would have been entitled under r 44(1) to elect that the new trial proceed without a jury. He would have been entitled to do so as of right within the time specified in r 44(1); there was no need for him to seek the court’s permission.
The timing of that new trial would have been a matter for the court, informed by the parties’ submissions as to what was appropriate and convenient in the circumstances.
It would have been open to the trial judge to preside over the second trial, assuming that was convenient to the court. The only qualification to that course would be any meritorious application to have the trial judge disqualified on account of an apprehension of bias. Whilst the prosecution submissions below did suggest that any verdict delivered by her Honour might be tainted by an apprehension of bias, there was never any formal application that her Honour recuse herself. There is no occasion for this Court to opine on the merits of any such application that might have been brought. There may be circumstances where it will be undesirable that the judge at the first trial preside over the second trial. That may be so even in circumstances where the first trial was a jury trial, and it is proposed that the second trial proceed without a jury. The nature of the judicial task is quite different under those two distinct modes of trial, and the judge’s role and involvement in the first trial may affect, and in some cases compromise, their role in respect of the second trial. But it should not be assumed that the judge will ordinarily be disqualified from hearing the second trial.
Assuming there was to be a second trial before the same judge but without a jury, it would have been for the prosecution to determine how it wished to present its case. That trial could not simply proceed on the basis that the judge had already heard the evidence. It would have been necessary for the accused to be arraigned afresh. It would then have been for the prosecution to decide whether it wished to adduce its evidence afresh, or to seek to tender some or all of the evidence from the first trial. While the latter course may be adopted if it suits the prosecution (and is supported by the defence and trial judge), the prosecution could not have been forced to proceed in that way.
Further, the prosecution – indeed, both parties – would have been entitled to consider whether to seek, pursuant to s 132 of the Criminal Procedure Act, to revisit any of the evidentiary or procedural rulings made during the first trial.
In short, even if the trial judge in the present case had treated the first trial as completed, and had proceeded to treat the respondent as having elected to proceed by way of a second trial before the same judge but without a jury, it would not have been open to proceed in the manner that her Honour did. It would not have been appropriate to proceed without arraigning the accused afresh, considering how the evidence was to be received in that second trial, and addressing any rulings that were challenged under s 132 of the Criminal Procedure Act. While the trial judge apparently drew support for the course she adopted from authorities such as R v IDH[77] and R v McLean,[78] it is notable that in both of these cases the trial judges, with the consent of both parties, went through the process we have described, including formally receiving the record of the evidence in the first trial as evidence in the second trial. As those cases demonstrate, there will be situations in which it is convenient and appropriate to embark upon a truncated form of trial by judge alone following an aborted jury trial. But if that course is to be followed, the process we have described must nevertheless be followed.
[77] R v IDH [2020] SADC 139.
[78] R v McLean [2020] SADC 170.
The final observation we would make is to caution against entertaining an application under r 42(5) that is couched in the provisional terms in which the one in the present case was made. Even putting to one side the temporal difficulty with the application in the present case, it is undesirable that an application for an extension of the time within which to elect for a trial by judge alone be made on the basis that an election will only be made if a particular judge is to preside over the trial.
We do not intend to be overly critical of what occurred in the present case, given that the prosecution did not object to the provisional nature of the application, and given the obvious and appropriate pragmatic reasons for seeking a trial before the same judge. However, so as to dispel any undesirable appearance of ‘judge shopping’, it will generally be appropriate for the court to require that an application under r 42(5) be pursued or not pursued, rather than pursued in a provisional manner. The court should not be placed in a position where it delivers what is, in effect, a provisional ruling in the nature of an advisory opinion.
While it may be appropriate for there to be discussion between the judge and counsel as to the likely timing and nature of a second trial, any application under r 42(5) should not be made or determined in the provisional manner that occurred in the present case. Any such application, and indeed any decision to elect to proceed without a jury under either rr 42(1) or 44(1), should be made without it being conditional upon the identity of the judge who will be allocated to preside over the trial.
Conclusion
The Director’s application for permission to appeal should be granted, and the appeal allowed. The respondent’s acquittal should be set aside. The matter should be remitted for retrial. Whether or not the prosecution in fact proceeds will, as always, be a matter for the Director.
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