R v Petroulias (No 17)

[2007] NSWSC 499

CITATION:	R v Petroulias (No 17) [2007] NSWSC 499
HEARING DATE(S):	9 May 2007
JUDGMENT DATE :	10 May 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	1. The juror described as the absent juror is discharged, under s.22(a) Jury Act 1977; 2. Under s.22(a) Jury Act 1977, the remaining eleven jurors be considered as remaining, for all purposes of the trial, to be properly constituted as the jury; 3. Until further order of the Court, an order is made prohibiting publication of the matters revealed in the course of these proceedings on 8, 9 and 10 May 2007 concerning the absent juror, the reasons for his absence from this trial and the reasons for my order discharging him under s.22(a) Jury Act 1977.
CATCHWORDS:	CRIMINAL LAW - trial by jury for offences against the law of the Commonwealth - trial commences with jury including a person disqualified from serving as a juror - discovery of this fact during trial - whether person may be discharged and trial continue with a jury of eleven under s.22 Jury Act 1977 - held that power to discharge juror and continue trial under s.22 was available and ought be exercised
LEGISLATION CITED:	Jury Act 1977 Crimes Act 1914 (Cth) Juries Act 1974 (UK) Evidence Act 1995
CASES CITED:	R v Petroulias (No 1) [2006] NSWSC 788 Wu v The Queen [1999] 199 CLR 99 Brownlee v The Queen [2001] 207 CLR 278 Maher v The Queen [1987] 163 CLR 221 R v Brown & Tran (2004) 148 A Crim R 268 Swansson v R [2007] NSWCCA 67 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Brown v The Queen [1985-1986] 160 CLR 171 Cheatle v The Queen [1993] 177 CLR 541 Ng v The Queen [2003] 217 CLR 521 Williams v Florida (1970) 399 US 78 Katsuno v The Queen [1999] 199 CLR 40 R v Halmi (2005) 62 NSWLR 263 R v Janceski (2005) 64 NSWLR 10 R v Ronen [2004] NSWCCA 176
PARTIES:	Regina (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr P Hastings QC; Mr C Hoy (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JOHNSON J

10 May 2007

2002/93 Regina v Nikytas Nicholas Petroulias (No 17)

JUDGMENT - (On applications arising from discovery that a member of the jury was disqualified from serving as a juror - see T1403)

1 HIS HONOUR: On Monday 7 May 2007 (day 25 of the trial), a juror did not attend Court by 10am to continue his participation in the criminal trial of the Accused. In accordance with usual practice, attempts were made to contact the absent juror to ascertain his whereabouts. These attempts were unsuccessful.

2 Further inquiries by the Sheriff’s Office revealed that the juror had been arrested over the weekend of 5 - 6 May 2007 and charged with offences of resist police, driving recklessly, driving an unregistered motor vehicle, driving whilst disqualified and exceeding the speed limit by more than forty-five kilometres per hour. The juror had appeared before a Local Court on the morning of 7 May 2007, with the proceedings being adjourned to 21 May 2007 and bail being refused by a Magistrate (MFI 40).

3 Further inquiries were undertaken by the Sheriff’s Office at my request. It was ascertained that the juror had been disqualified from driving by court order for a period of four years on 12 April 2002, with further periods of disqualification being ordered thereafter by courts for other offences, so that the juror is disqualified from driving until 24 April 2015 (MFI 42).

4 This state of affairs has given rise to a number of legal questions which have been argued by counsel and require urgent determination by me. Those issues are:

(a) Whether the trial is rendered a nullity as a result of the presence on the jury of a person who is disqualified from serving as a juror;
(b) If the trial is not a nullity, whether that person ought be discharged under s.22 Jury Act 1977 ;
(c) If that person is discharged, whether the trial ought proceed before a jury comprising the eleven remaining jurors under s.22 Jury Act 1977 .

5 Having heard submissions from counsel yesterday morning and having considered those submissions, I indicated to the parties at 2pm yesterday my conclusions on these issues (T1400). In this judgment, I give my reasons for those conclusions.

The Present Trial

6 The history of the litigation giving rise to this trial may be found in R v Petroulias (No 1) [2006] NSWSC 788. This is a retrial following a trial before Sully J and a jury in 2005, at which the jury was unable to agree and was discharged.

7 As at the first trial, the indictment against the Accused, alleges:

(a) one count of defrauding the Commonwealth contrary to s.29D Crimes Act 1914 (Cth) ;

(b) one count of agreeing to receive a benefit on an understanding that the exercise by him of his duty as a Commonwealth officer would be affected contray to s.73 Crimes Act 1914 (Cth) ; and

(c) one count of publishing to a person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose, an offence under s.70 Crimes Act 1914 (Cth) .

8 On 26 March 2007, a jury was selected and the trial for the Accused commenced. On the sixth day (2 April 2007) a (different) juror fell ill. In circumstances which do not require elaboration, Senior Counsel for the Crown and the Accused submitted that it was appropriate to await the recovery of the juror and to resume the trial with a jury of twelve. No application was made to discharge the ill juror under s.22 Jury Act 1977. I agreed with the submissions of the parties.

9 The trial resumed on 16 April 2007 and has continued since then. A number of Crown witnesses have been called - Michael Robert Ingersoll, Richard Llewellyn Morgan, Lowman Chow and Francis Jeyapal. The examination in chief of Emmanuel Demetrios Aivaliotes was drawing to an end at the time when the present issue arose. Although some twenty-five witnesses remain to be called in the Crown case after Mr Aivaliotes (assuming all the Crown witnesses called at the first trial are called again at the present trial), it is fair to observe that the Crown case is well advanced at this time. Mr Morgan, Mr Chow and Mr Aivaliotes are important witnesses in the Crown case and their evidence occupied substantial time at the first trial and has done so again at this trial.

10 Before the trial commenced, the jury panel was given an estimate of four months for the trial. It is my present belief that the balance of the trial is likely to occupy some two months.

11 This was the point that had been reached in the trial when the surprising discovery was made this week, that present on the jury all along was a person who was disqualified from service as a juror.

The Broad Positions of the Crown and Accused

12 Mr Sutherland SC, for the Accused, submits that the state of affairs which now presents itself means that the trial is a nullity and cannot proceed. He submits that such a finding ought be made and that the remaining eleven members of the jury ought be discharged.

13 The Crown submits that the trial is not a nullity and that the Court ought proceed to discharge the absent juror under s.22 Jury Act 1977 with the trial to continue with a jury constituted by the remaining eleven jurors in accordance with s.22.

14 I note that Mr Sutherland SC submits that, if the trial is not a nullity and the Court has power to proceed further under s.22, it would be appropriate to discharge the absent juror and to proceed with the trial with a jury comprised of the remaining eleven jurors.

15 The critical issue for determination, therefore, is whether the events which have occurred render the trial a nullity so that it is not open to the Court to resort to the provisions of s.22 Jury Act 1977.

Relevant Provisions of Jury Act 1977

16 It is appropriate to set out several provisions in the Jury Act 1977 which are pertinent to the present application.

17 Section 6 is in the following terms:

“ Persons not qualified or liable to serve as jurors
A person is not qualified or liable to serve as a juror if that person is, for the time being:
(a) disqualified from serving as a juror, being a person referred to in Schedule 1, or
(b) ineligible to serve as a juror, being a person referred to in Schedule 2”

18 Schedule 1 to the Act, referred to in s.6(a), provides as follows (emphasis added):

“Schedule 1 Persons disqualified from serving as jurors
1 A person who at any time within the last 10 years in New South Wales or elsewhere has served any part of a sentence of imprisonment (not being imprisonment merely for failure to pay a fine).
2 A person who at any time within the last 3 years in New South Wales or elsewhere has been found guilty of an offence and detained in a detention centre or other institution for juvenile offenders (not being detention merely for failure to pay a fine).
3 A person who is currently bound by an order made in New South Wales or elsewhere pursuant to a criminal charge or conviction , not including an order for compensation, but including the following :
(a) a parole order, a community service order, an apprehended violence order and an order disqualifying the person from driving a motor vehicle ,
(b) an order committing the person to prison for failure to pay a fine,
(c) a recognizance to be of good behaviour or to keep the peace, a remand in custody pending trial or sentence and a release on bail pending trial or sentence.”

19 Section 19 provides as follows:

“Number of jurors in criminal proceedings
The jury in any criminal proceedings in the Supreme Court or the District Court is to consist of 12 persons returned and selected in accordance with this Act.”

20 Section 22 provides for continuation of a trial where a juror is discharged (emphasis added):

“ Continuation of trial or inquest on death or discharge of juror
Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if :
(a) in the case of criminal proceedings, the number of its members :
(i) is not reduced below 10 ,
(ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or
(iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months,
(b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8, or
(c) in the case of a coronial inquest, the number of its members is not reduced below 4,
and if the court or the coroner, as the case may be, so orders .”

21 Section 73 is in the following terms (emphasis added):

“ Verdict not invalidated in certain cases
The verdict of a jury shall not be affected or invalidated by reason only :
(a) that any member of the jury was disqualified from serving as a juror or ineligible to serve as a juror,
(b) of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act,
(c) that any juror was misnamed or misdescribed (where there is no question as to the juror’s identity).”

Submissions for the Accused

22 Mr Sutherland SC submits that s.19 requires a jury in criminal proceedings in the Supreme Court to “consist of twelve persons returned and selected in accordance” with the Act. He submits that the absent juror was and is “currently bound by an order made in New South Wales… pursuant to a… conviction… disqualifying the person from driving a motor vehicle”, and thus fell within cl 3(a) of Sch 1 to the Act. Accordingly, because he was, as at 26 March 2007 and is, for the time being, disqualified from serving as a juror (s.6(a)), the absent juror was and remains not qualified or liable to serve as a juror.

23 Mr Sutherland SC submits, that a trial of the Accused before a jury of twelve persons did not commence in this case, and that s.22 cannot apply. He submits that s.22 has application where a relevant event occurs in the course of a trial and “any member of the jury” is discharged by the Court. Mr Sutherland SC submits that the absent juror was disqualified from serving as a juror and thus never became a “member of the jury”.

24 Mr Sutherland SC refers to a number of decisions of the High Court of Australia with respect to jury trials for offences against the law of the Commonwealth. The Accused is on trial for offences against the law of the Commonwealth in this case.

25 Mr Sutherland SC submits that there are consistent statements in the cases of the importance of a trial at least commencing with twelve jurors: Wu v The Queen [1999] 199 CLR 99 at 106 [21]; Brownlee v The Queen [2001] 207 CLR 278 at 302 - 303 [68]. He submits that the requirement for a jury of twelve at the commencement of a trial is mandatory under s.19, and that a failure to comply with that provision renders the trial a nullity: Maher v The Queen [1987] 163 CLR 221 at 233.

26 Particular reliance is placed upon the decision of the Court of Criminal Appeal in R v Brown & Tran (2004) 148 A Crim R 268. Although the jury defect which occurred in that case is different to the present case, Mr Sutherland SC submits that the consequences are the same. He points to the conclusion of Sperling J (Mason P and Sully J agreeing) at 278 [54] - [55], that there had been, in that case, a failure of compliance with mandatory provisions of the Jury Act1977 and that “the trial is accordingly a nullity unless s.73 and, in particular, s.73(b), applies”. The Court held that s.73 did not apply in R v Brown & Tran so that the trial was a nullity (at 279 [62]).

27 Mr Sutherland SC acknowledges that R v Brown & Tran concerned s.73(b) of the Act and that the Court held that the facts of the case were not accommodated by that provision. He acknowledges that s.73(a) relates directly to a verdict of a jury where a member of the jury was disqualified from serving as a juror. Accordingly, the precise defect in this case is addressed specifically in the Act with respect to the saving of a verdict at trial.

28 He submits, however, that s.73 relates only to the saving of verdicts, and cannot apply directly or indirectly to assist the process of construction of other provisions in the Act. In particular, he submits that s.73(a) cannot be called in aid in any way to assist the construction of the Act and the possible application of s.22 to circumstances where it is discovered, before verdict, that a disqualified person is a member of the jury.

29 Section 73(a) was part of the Jury Act 1977 as originally enacted. Mr Sutherland SC referred to parts of the second reading debates in the Legislative Assembly and the Legislative Council concerning the Jury Bill 1977 which, he contends, shed light upon the matters presently falling for determination. In the second reading speech in the Legislative Assembly, the Attorney General, Mr FJ Walker, referred to matters included in Sch 1 to the Bill (Hansard, 24 February 1977, p 4474 at 4477):

“Though Victoria has gone part of the way, legislation in that State falls short in that it does not preclude the chronic serious traffic offender from taking his place on a jury, and this Bill will improve on that State’s legislation in this regard. After examining comparative legislation in other States and overseas and discussing the matter extensively with the New South Wales Privacy Committee, the Government has arrived at the criteria for disqualification because of criminal conviction as set out in Sch 1.”

30 Soon after, the Attorney General said at page 4478:

“I have already mentioned a number of matters about disqualified persons, particularly the difficult task of drawing up a Schedule of this kind to fit all situations. Schedule 1 aims at ensuring that persons who sit in judgment upon their fellows, or decide issues between parties, ought to be able to point to their own good character and general fitness for the task. It recognises that people who have come into conflict with the law, particularly those who have served gaol sentences, could bear some ill will towards the Crown and so increase the probability of disagreement in criminal proceedings. As I stated earlier, this Bill improves upon the Victorian legislation in that it will ensure that one of society’s most anti-social types, the chronic, serious traffic offender, would be precluded from jury service.”

31 The Attorney General made no reference to cl 73 of the Bill in the second reading speech in the Legislative Assembly. Nor did the Hon DP Landa, Minister for Planning and Environment, make reference to cl 73 in the second reading speech in the Legislative Council (Hansard, 2 March 1977, p 4645). However, Mr Sutherland SC points to later references in the second reading debate in the Legislative Council where the Hon LA Solomons, for the Opposition, said at p 4748:

“I am glad that the people who designed the Bill have recognised the importance of cl 73 which provides that a jury’s verdict cannot be invalidated by a mere technicality. On this point I again refer honourable members to my remarks about majority verdicts. It is most frustrating for the technical point to be taken that a jury has been incorrectly struck, thus aborting a trial and resulting in heavy costs and inconvenience.”

32 In his speech in reply, the Hon DP Landa (at p 4753) acknowledged that the exercise of a challenge for cause depended upon knowledge of the facts giving rise to the challenge, and then said:

“Without such knowledge one would not be able to establish cause. Otherwise the matter would be left for discovery until after the trial. In my view, that would involve the risk of destroying a trial that was impeccably conducted and give rise among those who were convicted properly to a clutching at straws, with a possible tarnishing of the regard in which the jury system is held. It would be regrettable if that cautious approach were changed today, only to have a person claiming later that he had not received a fair trial because a woman who served on the jury was the wife of a policeman whose attitude to drugs, alcoholism or whatever field of human behaviour was involved, was well known. It is worthwhile to pay a penalty for covering as wide an area as possible in that cautious approach.”

Although reference was not made to cl 73 in this passage, Mr Sutherland SC submits that it is clear that the Minister had in mind that provision in making these observations.

33 Accordingly, Mr Sutherland SC submits that s.73(a) cannot be called in aid in any way on an application such as this. He submits that the trial is a nullity and that situation may only be changed, by operation of the statute, if a verdict is returned. As that point has not been reached in the trial, he submits that the Court should decide that the trial is a nullity and discharge the jury.

Submissions of the Crown

34 The Crown submits that the circumstances of the present case disclose a procedural irregularity in the conduct of the trial but not such as to constitute a nullity. It is submitted that care ought be taken in the use of the term “nullity” and, in this respect, reference is made to the decision of the Court of Criminal Appeal in Swansson v R [2007] NSWCCA 67.

35 With respect to R v Brown & Tran, the Crown emphasises that the Court held that the factual circumstances were not caught by s.73(b) of the Act. Sperling J observed, at 279 [57], that the statutory exemption in s.73(b) was confined to omissions, errors and irregularities concerning the contents of documents of a specified kind but did “not cover mistakes in relation to mandatory processes required by the legislation”. His Honour referred, at 279 [58], to s.18 Juries Act 1974 (UK) and continued at [59]:

“ If the legislature of New South Wales had intended so wide an exemption, covering mandatory processes as well as documentation, that could readily have been enacted with clarity. The United Kingdom model existed in 1977. Instead, the legislature of this state chose to use imprecise language, leaving it to context to define the ambit of the provision. Without clear words to the contrary, such as have been used in the United Kingdom legislation, I would assume that it was not intended by the legislature here to exempt non-compliance with fundamental, mandatory provisions of the legislation of the kind involved in the present case, where the composition of the jury has been affected by error.”

36 The Crown submits that s.73(a) does relate expressly to the process in s.19 whereby the trial should commence with twelve jurors empanelled in accordance with the Act. It is submitted that insertion of these clear words in s.73(a) discloses a statutory intention to, in the words of Sperling J at 279 [59], “exempt non-compliance with fundamental, mandatory provisions of the legislation of the kind involved in the present case, where the composition of the jury has been affected by error.”

37 According to the Crown submission, not only does s.73(a) operate to maintain a verdict given by a jury which has included a disqualified person or persons, but the existence of s.73(a) in the Act discloses a statutory purpose which is relevant to the present case where discovery is made of the presence of a disqualified juror before verdict. Applying the well known principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 [91] and 390 [93], the Crown submits that the use of the mandatory-directory dichotomy ought be placed to one side, with a better test for determining the issue of validity being to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.

38 Given the presence of s.73(a) in the Act, the Crown submits that a statutory intention is disclosed whereby the commencement of a criminal trial with a jury comprising twelve persons, one or more of whom are disqualified persons under s.6(a) of the Act, does not render the trial a nullity. A verdict returned by such a jury is valid.

39 In the event that this state of affairs is discovered before verdict, the Crown submits that s.22 of the Act is available, as part of the statutory scheme, to remove the disqualified person and permit the trial to continue with a jury constituted in accordance with the Act. The Crown submits that, to approach the matter in accordance with the Accused’s submissions would create an artificial distinction between events in the trial before and after verdict. The Crown submits that, if the Accused’s construction is correct, all steps taken during the course of the trial, including the swearing of witnesses, the issue of certificates under s.128 Evidence Act 1995 and other steps which form part of the trial process would be nullities. On this approach, for example, a prosecution for perjury could not be brought against a witness who had given false evidence at the trial. The Crown submits that such a result injects an element of uncertainty, if not absurdity, into the process which is not consistent with a sensible construction of ss.6, 19, 22 and 73 of the Act.

40 With respect to the concept of “nullity”, the Crown referred to Swansson v R where Spigelman CJ said at [60] - [61]:

“As noted above, the judgments in Crane and Munday v Gill , reflecting a number of authorities, assert that a criminal trial that has been conducted in contravention of the rule of criminal procedure here under consideration is a “nullity”. Notwithstanding the force of these remarks, in my opinion, this Court should not proceed on the basis that the cases are authority for the proposition that a trial conducted in breach of this rule is to be treated as if there had not been a trial at all. Rather, the position is that there has not been a trial in accordance with law.
The use of terminology such as “nullity” and, in the administrative law context, the cognate distinction between “void” and “voidable” decisions, where appearing in judgments, must be approached with some caution. (See generally FC Hutley “The Cult of Nullification in English Law” (1978) 52 ALJ 8.)”

41 Later, Spigelman CJ said at [78]:

“In view of their express reliance on Crane , in my opinion, their Honours were not using the terminology of “nullity” in the sense that there has not been a trial at all but, as I have noted at [60] above, that there has not been a trial in accordance with law.”

42 The Crown refers to other passages in Swansson v R where the term “nullity” is to be understood as the consequence where a court in which the proceeding takes place is, for some reason, devoid of jurisdiction. See the judgment of McClellan CJ at CL at [86] - [94] and Simpson J at [163] - [164], [172] - [173]. The Crown submits that the issue in Swansson v R involved an absence of jurisdiction resulting from a departure from the “one indictment, one jury” rule. In the present case, the Crown submits that the Court has jurisdiction, and that the defect concerning the absent juror does not go to jurisdiction. Accordingly, the Crown submits that the term “nullity” is not apt to this case, nor was it apt (in the Swansson v R sense) to the facts of R v Brown & Tran.

43 The Crown submits that the power under s.22 is available to the Court to remedy the present defect by discharging the absent juror and to permit the trial to continue according to law.

Resolution of Competing Submissions

44 The issues arising on this application are important to the trial and to the parties. There is no direct authority dealing with the issue to be determined in this case. Important questions are raised concerning the proper construction and operation of the Jury Act 1977. It is necessary that I determine this application as a matter of urgency, and without the opportunity for detailed reflection which might otherwise be open.

45 The constitutional importance of trial by jury for a Commonwealth offence is reflected in decisions that judge alone trial is not available (Brown v The Queen [1985-1986] 160 CLR 171) nor is a majority verdict open (Cheatle v The Queen [1993] 177 CLR 541). The High Court has accepted that s.22 Jury Act 1977 may apply to reduce a jury below twelve persons in a trial for a Commonwealth offence: Brownlee v The Queen; Ng v The Queen [2003] 217 CLR 521.

46 I take, as a starting point, the repeated statements by the High Court of Australia of the importance of trial by jury generally, and for Commonwealth indictable offences in particular given the terms of s.80 of the Commonwealth Constitution. Deane J observed in Brown v The Queen, at 201, that the constitutional guarantee of trial by jury existed for the benefit of the community as a whole as well as for the benefit of the particular accused.

47 It is clear, however, that a verdict may be returned in a Commonwealth trial by a jury comprising less than twelve members, where a juror or jurors have been discharged under s.22 Jury Act 1977. In Brownlee v The Queen, Gleeson CJ and McHugh J, after referring to Williams v Florida (1970) 399 US 78 at 100, said at 289 [22] - [23]:

“ Those observations apply with even greater force to a system which requires twelve jurors to begin with, but permits the trial to continue with ten of the original twelve where two have been discharged, and requires a unanimous verdict of the remaining ten. Such a system is not inconsistent with the purposes of trial by jury. In particular, it is not inconsistent with the objectives of independence, representativeness and randomness of selection, or with the need to maintain the prosecution's obligation to prove its case beyond reasonable doubt.

Neither history, nor principle, nor authority warrants a conclusion that the meaning of "trial ... by jury" in s 80 of the Constitution is inconsistent with the provisions of s 22(a)(i) of the Jury Act.”

48 In Brownlee v The Queen, Gaudron, Gummow and Hayne JJ said at 302 - 303 [68] - [69]:

“ There remains the applicant's complaint respecting s 22 of the Jury Act. The origin of the requirement, currently expressed in s 19 of the Jury Act, that the jury in proceedings for the prosecution of offenders on indictment consist of twelve persons rather than some greater or lesser number is lost in the mists of Anglo-Saxon and then Anglo-Norman life and experience. In modern times, the requirement that a jury of twelve be empanelled for a trial on indictment (which may be assumed, for present purposes, to be a central characteristic of trial by jury and mandated by s 80 of the Constitution) is to be supported on utilitarian grounds. It ensures that the trial gets underway with fact-finding entrusted to a group of laymen which is large enough to promote measured deliberation and indicates to the community sufficient participation by its members to vindicate the outcome.
Further questions arise where, in the course of the trial, for what appears to the presiding judge to be good reason and in accordance with legislative provision, one or more jurors should be discharged. It may be accepted, as was urged by the Attorney-General of the Commonwealth, that trials in the nineteenth century tended to be much shorter than is so today. This reflects not only the increased complexity of the substantive issues to be tried but the expansion of procedural rights favouring the accused. If, in the circumstances under consideration, a fresh jury must be empanelled, this has consequences not only for the public purse, but also for the individuals involved.”

49 Their Honours said at 303 - 304 [71] - [72]:

“Current legislation which authorises the discharge of jurors for good cause so that the trial continues with no fewer than ten jurors is not incompatible with s.80 of the Constitution.
It may well be said that questions of degree are involved. However, if twelve be taken as the requisite minimum with which the trial must commence, there is much force in the contention that no reduction below ten is permissible. Paragraph (a)(i) of s.22 of the Jury Act, which is in issue here, meets that criterion.”

50 In Ng v The Queen, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said at 526 [9], [11]:

“ Brownlee establishes that, whilst the requirement in s 80 of a trial "by jury" is referable to that institution as understood at common law at the time of federation, it is the essential features of that institution which have what might be called a constitutionally entrenched status. Further, Brownlee also indicates that those essential features are to be discerned with regard to the purpose which s 80 was intended to serve and to the constant evolution, before and since federation, of the characteristics and incidents of jury trial. Accordingly, the circumstance that provisions such as those in ss.14A and 48A of the Juries Act respecting additional jurors were not found in pre-federation legislation is not determinative.
Brownlee determined that a trial on indictment for an offence against a law of the Commonwealth which was conducted in accordance with a provision of New South Wales law which permitted the reduction in number of jurors to not below ten was not at odds with the meaning of trial "by jury" in s 80 of the Constitution. The applicant does not argue for the proscription of a trial by a jury where more than twelve jurors are empanelled. The complaint concerns the operation of the provisions respecting reduction in numbers to twelve before the jury retired to consider its verdict. However, by parity of reasoning, the conclusions which led to the outcome in Brownlee militate in favour of the dismissal of the present application.”

51 The requirement of unanimity is a requirement that all the persons constituting the jury at the time the verdict is pronounced return a unanimous verdict: Cheatle v The Queen at 548; Ng v The Queen at 526 [12]. The continued participation in the process of any juror after empanelment is at all times conditional upon the juror remaining qualified and of capacity and on operation of any relevant laws: Ng v The Queen at 527 [13].

52 The cases demonstrate that a trial by jury for a Commonwealth offence attracts the incidents of State legislation concerning juries. In the present case, that legislation includes s.73(a).

53 Other decisions of the High Court of Australia have emphasised the importance of provisions concerning the jury in a criminal trial. In this context, the term “nullity” has been used. It is important, for present purposes, to examine the precise way in which that term has been used. In Maher v The Queen, Mason CJ, Wilson, Brennan, Dawson and Toohey JJ said at 233:

“The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s.604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorised by law to try the issue raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor [1921] 2 AC 299. In any event it involves such a miscarriage of justice as to require the conviction to be set aside.”

54 In Maher v The Queen, a jury found the applicant guilty of an offence charged in a particular count though it had not been sworn to try the issues on that count. The Court concluded, at 234, that a conviction founded on that verdict could not stand and that there was “a failure to observe the requirements of the criminal process in a fundamental respect”.

55 In Katsuno v The Queen [1999] 199 CLR 40, the Court held that the provision of information about potential jurors by the Chief Commissioner of Police to the Crown was unlawful, but that the trial was not rendered a nullity as a result (Gleeson CJ at 51 [7], Gaudron, Gummow and Callinan JJ at 58 [30] ff, in particular, at 60 - 62 [34] - [45]).

56 The various statutory provisions considered in the High Court cases do not appear to contain a provision such as s.73 Jury Act 1977. The circumstances under consideration in the cases involve provisions which were characterised as mandatory in nature where, to use the language of Maher v The Queen, a failure to comply with the provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal.

57 It is apparent immediately that any conviction which arose in the present case from a verdict of a jury including a disqualified person would withstand an appeal by operation of s.73(a) of the Act. Accordingly, the Jury Act 1977 itself contains a statutory indicator that such a verdict, and the trial at which the verdict arose, are not nullities. This is an important point of distinction between this case and other cases so far considered.

58 This brings me to the decision of the Court of Criminal Appeal in R v Brown & Tran. The Crown submits that that decision may be distinguished on the facts and that a different conclusion may be reached in the present case, as a matter of construction, because of the presence of s.73(a). The Crown submits further that the term “nullity” as used by Sperling J should be understood in light of statements in Swansson v R.

59 In R v Brown & Tran, Mason P agreed with Sperling J but made the following additional comments at 269 [2] - [3]:

“ I would add this. Everything points in the present case to an entirely innocent intervention by "Ms Smith". Nothing suggests that she deliberately impersonated the juror who meant to attend the Downing Centre on 26 February 2003 and unexpectedly did not; or that Ms Smith went out of her way to get onto the panel from which the appellants' jury was drawn. But other cases might be closer to the line or over it.

One function of the system of random jury selection in accordance with the procedures of the Jury Act 1977 (NSW) is to prevent any miscarriage of the type I have hypothesised and rejected. Yet investigation of the facts involved in such matters would be difficult. Interrogation of jurors is problematic, as Berman DCJ recognised in the present case. These factors reinforce my conclusion, in agreement with Sperling J, that the purpose of the relevant sections of the Jury Act, gleaned from the language of the sections and the scope and object of the statute as a whole, is that the empanelling of the jury in a case such as the present would be invalid and ineffective (cf Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355).”

60 In my opinion, the application of the Project Blue Sky test to the present case leads to a different conclusion to that reached in R v Brown & Tran. There, s.73 could not be called in aid at all for the purpose of construing provisions of the Jury Act 1977 which had not been complied with. The facts in R v Brown & Tran fell completely outside s.73, and the failure of the legislature to make express reference in that provision for the relevant factual circumstances fortified the conclusion in that case.

61 In this case, the proper construction of ss.6, 19, 22 and 73 of the Act is assisted directly by the express provisions of s.73(a) which protect a verdict returned by a jury which comprises a disqualified juror. The existence of that express provision, in my view, sheds light upon the so called mandatory nature of that provision or, using the Project Blue Sky test, whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In my view, the existence of s.73(a) leads to a negative answer to this question.

62 The defect in this case does not go to the jurisdiction of the Court and is not a nullity in the sense recognised in R v Halmi (2005) 62 NSWLR 263, R v Janceski (2005) 64 NSWLR 10 and Swansson v R. Nor does the failure to comply with ss.6 and 19 render the trial a nullity in the sense that any conviction produced could not withstand an appeal: Maher v The Queen at 233. To the contrary, any conviction by a jury which includes a disqualified person will always withstand appeal by operation of s.73(a) of the Act.

63 In my view, it is appropriate to approach this question upon the basis of a statutory expectation of twelve jurors being empanelled in accordance with the Act, but that any verdict of a jury which includes a disqualified juror being nevertheless good. The position after verdict is protected directly by operation of s.73(a) of The Act.

64 Where it comes to attention before verdict that a disqualified person is on the jury, the legislative scheme permits the defect to be overcome by use of s.22 of the Act to discharge that person and, if the Court sees fit, continue with the trial with the jury constituted by the eleven remaining jurors. This is part of the statutory scheme which enables the Court to overcome the defect arising from the presence of the disqualified person and to allow the trial to proceed to verdict according to law.

65 The submissions for the Accused contend, in effect, that a disqualified person may never be a “member of the jury” so that s.22 can have no application. In this respect, I note that s.73(a) uses the term “any member of the jury was disqualified from serving as a juror”. The words of the statute extend the phrase “member of the jury” to a disqualified person. As a matter of construction, a particular word or phrase in a statute ought be construed consistently in the same or different sections unless the context dictates otherwise: Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, 2006, para [4.6] - [4.7]. Where a disqualified person is characterised, in one part of the Jury Act 1977, as a “member of the jury”, then it seems to me that he falls within the terms of the same phrase appearing in s.22 of the Act.

66 In the circumstances of this case and having regard to s.73(a), the submissions for the Accused point to a type of conditional or provisional nullity during the course of the trial which, in the event that a verdict is returned, will disappear by operation of statute. I do not consider that this concept sits comfortably with an understanding of the legal term “nullity”, nor with a sensible and consistent construction and operation of the Jury Act 1977.

67 The scheme of the Jury Act 1977 itself provides a solution in s.22 to the defect which has arisen in this case.

68 Mr Sutherland SC is correct in his submission that s.73(a) relates expressly to post-verdict events. I do not consider, however, that the statements during the second reading debates assist the Accused on the present application. In particular, I do not consider that the reference by the Hon DP Landa in reply in the Legislative Council (p 4753) (see par 32 above) assists on the present question. The real issue here is what light s.73(a) sheds upon the process of statutory construction required, for the purpose of the Project Blue Sky test, in determining the consequence of presence on a jury of a disqualified person. In my view, the consequences of such a state of affairs are as I have set out above.

69 Construing the provisions of the Jury Act 1977 as a whole, I am satisfied that the trial is not a nullity and that s.22 may be applied to discharge the “member of the jury” who is a disqualified person. I accept the Crown’s submissions concerning R v Brown & Tran which, in my view, is distinguishable from the present case, because of the express provision contained in s.73(a) of the Act. Put shortly, the presence of s.73(a) suggests that the greater includes the lesser in this case. If the verdict of a jury including a disqualified person is valid, then it is open to the Court to use available procedures within the Act, before verdict, to remove the disqualified person to enable the remaining jurors to return a verdict in accordance with the law.

70 I reject the submission of the Accused that the circumstances of the present case render the trial a nullity. The powers of the Court in s.22 of the Act are available in this case.

Should the Absent Juror be Discharged?

71 I have concluded that the absent juror is a “member of the jury” for the purposes of s.22 and, accordingly, may be discharged by the Court “for any other reason”. The material before the Court demonstrates that the absent juror is disqualified from serving as a juror under s.6(a) of the Act. That alone is good reason for discharging him at this time. Added to that is the fact that he has been remanded in custody, bail refused, until 21 May 2007 and is, for obvious reasons, unable to attend the Court.

72 The decision to discharge a juror and the decision to proceed with fewer than twelve jurors are distinct steps and often will be affected by different considerations: Wu v The Queen at 103 [6].

73 In the event that I concluded that the power to discharge the absent juror under s.22 is available in this case, both the Crown and the Accused submit that discharge of that person is appropriate.

74 I am satisfied that the absent juror should be discharged.

Should the Trial Proceed With Fewer Than Twelve Jurors?

75 The second and distinct step now arises, namely, whether the trial of the Accused should proceed with the remaining eleven jurors constituting the jury for the purpose of the trial under s.22 of the Act. The Crown submits that such a course is appropriate. In the event that I reached this point, Mr Sutherland SC does not advance a submission to the contrary.

76 I have regard to the fact that the Crown case is well advanced. I accept the Crown submission that a number of Crown witnesses, including Messrs Morgan, Chow and Aivaliotes, have given evidence three times - at committal proceedings, the first trial and the present trial. I have regard to the fact that, as is obvious, a trial before a jury of eleven is not a trial before a jury of twelve. Trial before a jury of twelve persons is the statutory ideal, but the ideal may be departed from by operation of s.22 of the Act. The whole purpose of s.22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. There can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings: Wu v The Queen at 106 - 107 [21].

77 I am satisfied that the appropriate course in this case is to direct that the trial of the Accused proceed with the jury constituted by the remaining eleven jury members.

Non-Publication Order

78 On 8 May 2007, I made an order prohibiting publication of the fact that the absent juror had failed to attend Court, the reasons for that failure and the fact that application was being made arising from the circumstances of that failure (T1371).

79 In making that order, I had in mind the provisions of s.68(1) Jury Act 1977 which prohibit a person, except in accordance with the Act, wilfully publishing any material or broadcasting any matter, or otherwise disclosing any information, which is likely to lead to the identification of a juror or former juror in a particular trial. Section 68 reflects the purpose or object of protecting juror anonymity: R v Ronen [2004] NSWCCA 176 at [97].

80 The absent juror has not been present at Court since 4 May 2007, and is not in a position to express a view concerning possible disclosure of his identity as a juror, or former juror, in this trial. I was informed that some publicity had appeared in a metropolitan newspaper which might relate to the arrest of the absent juror. Reference was made to the alleged offences of the person but no reference was made in the article to him being a juror (if, indeed, he is the same person). In these circumstances, it appeared to me to be important to make orders to guard against the possible identification of the absent juror in any report of his criminal proceedings where his association with this trial might be revealed. Further, it appeared to me that the possibility of some publication in a newspaper concerning the absent juror’s arrest and charge which linked him as a juror in this trial, may serve to distract the eleven remaining jurors from the exercise of their duties and functions in the trial. Accordingly, in the exercise of implied or inherent power to protect the administration of justice, I made an interim non-publication order as set out above. The Crown supported the making of such an order and Mr Sutherland SC did not submit to the contrary.

81 Having regard to the view that I have formed on the present application, I propose to extend that non-publication order until further order of the Court. I will give further consideration to this question at the end of the present trial.

Conclusion

82 The issues falling for determination on this application are not straight forward. Having considered the submissions of the parties, I have determined that the presence of the absent juror on the jury, although a disqualified person, does not render the trial a nullity. It is open to the Court to discharge the absent juror under s.22 and to direct that the trial proceed with the jury constituted by the eleven remaining jurors. I announced these conclusions in the Court at 2pm yesterday. This judgment contains my reasons for reaching those conclusions.

83 I make the following orders:

(a) The juror whom I have described as the absent juror is discharged, under s.22(a) Jury Act 1977 ;
(b) I order, under s.22(a) Jury Act 1977 , that the remaining eleven jurors be considered as remaining, for all purposes of the trial, to be properly constituted as the jury;
(c) Until further order of the Court, I make an order prohibiting publication of the matters revealed in the course of these proceedings on 8, 9 and 10 May 2007 concerning the absent juror, the reasons for his absence from this trial and the reasons for my order discharging him under s.22(a) Jury Act 1977 .

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