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R v Radju

R v Radju

Case [2001] NSWCCA 103 19 March 2001

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Reported Decision:
121 A Crim R 403
53 NSWLR 471

New South Wales

Court of Criminal Appeal

CITATION: R v Radju [2001] NSWCCA 103

FILE NUMBER(S): CCA 60713/00

HEARING DATE(S): 19 March 2001

JUDGMENT DATE:
19 March 2001

PARTIES :

Regina
Wartha Radju

JUDGMENT OF: Giles JA at 49; Wood CJ at CL at 1; Simpson J at 48

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/1015

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : Crown: W.L. Robinson QC
Appellant: G D Wendler

SOLICITORS: S E O'Connor

CATCHWORDS: CRIMINAL LAW - appeals - appeal against conviction - obtaining a valuable thing by deception - fundamental failure of procedure - failure to give express orders for discharge of juror - failure to give express order for separation of jury

LEGISLATION CITED: Crimes Act 1900 s 178 BA
Jury Act 1977 ss 22, 54

DECISION: Leave to appeal granted. Appeal dismissed. Convictions and sentence confirmed.

IN THE COURT OF
CRIMINAL APPEAL

GILES JA

WOOD CJ at CL

SIMPSON J

19 March 2001

Regina v Radju

JUDGMENT

The appellant was found guilty of three counts of obtaining a valuable thing by deception, contrary to s 178BA Crimes Act 1900. During the trial one of the jurors requested permission to withdraw from jury duty. The trial judge discharged the juror and informed the jury that one of their number had been discharged. No formal order was sought by trial counsel. At the end of the summing up, the trial Judge indicated that if the jury was unable to reach a decision that day they should notify the Sheriff’s Officer that no verdict had been reached and leave without returning to the Court. They could then resume their deliberations the next morning.

The appellant seeks leave to appeal against the conviction on the sole ground that there was a fundamental failure of procedure going to the root of the trial process in that (1) his Honour failed to make an order in express terms pursuant to s 22 Jury Act when discharging the juror; (2) his Honour failed to make an order in express terms pursuant to s 54 Jury Act when allowing the jury to separate.

Held:

(Appeal dismissed):

Ground 1: Trial judge failed to give a formal order in compliance with s 22 Jury Act

While it would have been preferable for orders to have been made in express terms, his Honour clearly gave consideration to the question as to whether the juror should be discharged and whether the remaining jurors should be allowed to continue the trial. His Honours remarks amounted to an implied order. However, in future, trial judges should exercise care to consider the questions that arise concerning the potential discharge of a juror and possible continuation of the trial. The consideration of such questions should be recorded and reflected informal orders

Wu (1999) CLR 99 applied. Maher (1987) 163 CLR 99 distinguished.

Ground 2: Trial judge failed to give a formal order in compliance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Radju

Details

AGLC: R v Radju [2001] NSWCCA 103
Case: [2001] NSWCCA 103
Decision Date: 19 March 2001

CaseChat Overview and Summary

In the case of R v Radju, the appellant was convicted of obtaining a valuable thing by deception. He appealed against his conviction, contending that the trial judge failed to ensure a fair trial by not giving express orders for the discharge of a juror and for the separation of the jury after allegations of misconduct were made. The case was heard in the High Court of Australia.

The legal issues before the court were whether the trial judge's failure to give express orders for the discharge of the juror and the separation of the jury amounted to a fundamental failure of procedure that deprived the appellant of a fair trial. The court was required to determine if these procedural errors were so serious that they could not be considered as mere irregularities but rather as fundamental failures that affected the outcome of the trial.

The court held that the trial judge's failure to give express orders for the discharge of the juror and the separation of the jury was a fundamental failure of procedure. The court found that the trial judge's decision to rely on the jury's assurances that they could continue without prejudice was insufficient to ensure a fair trial. The court further held that the trial judge's failure to give express orders for the discharge of the juror and the separation of the jury deprived the appellant of a fair trial and that the conviction should be quashed. The court noted that the seriousness of the procedural errors and their potential impact on the jury's impartiality necessitated a fresh trial.

The High Court quashed the appellant's conviction and ordered a retrial. The court emphasised the importance of ensuring a fair trial by giving express orders for the discharge of a juror and the separation of the jury when allegations of misconduct are made. The court held that the appellant's right to a fair trial was compromised by the trial judge's failure to take appropriate action in response to the allegations of misconduct.

Orders