R v RBK

[2023] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v RBK [2023] QCA 185

PARTIES:

R
v
RBK
(appellant)

FILE NO/S:

CA No 184 of 2022
DC No 1045 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction (Extension Granted)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 2 September 2022 (Dearden DCJ)

DELIVERED ON:

12 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2023

JUDGES:

Bond and Flanagan JJA and Bradley J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of unlawfully doing grievous bodily harm to a baby – where the baby’s injuries consisted of subdural haematomas – where the evidence established that the baby was in the appellant’s sole care at the time the baby’s condition deteriorated – where the appellant’s account was that the baby’s condition deteriorated after the baby fell over on a bed – where the appellant contends that expert medical evidence left open the reasonable hypothesis that the baby’s fall on the bed had activated a latent brain injury – whether the expert medical evidence excluded all reasonable hypotheses consistent with innocence – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where two reserve jurors were sworn at the commencement of the trial – where a juror was discharged in the course of the trial – where the discharged juror was replaced by the reserve juror who was sworn in first – where s 34(4) of the Jury Act 1995 (Qld) requires that the reserve juror to replace a discharged juror “must be decided by lot or in another way decided by the judge” – whether s 34(4) preferences a method of selection which incorporates random chance – whether, by failing to select the reserve juror by lot, the trial judge occasioned a miscarriage of justice

Jury Act 1995 (Qld), s 34(4)

Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31, cited
Ng v The Queen (2003) 217 CLR 521; [2003] HCA 20, considered
Registrar-General v Harris (1998) 45 NSWLR 404, cited
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, considered

COUNSEL:

G D Wendler for the appellant
C N Marco for the respondent

SOLICITORS:

O’Sullivans Law Firm for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. BOND JA:  I agree with the reasons for judgment of Bradley J and with the order proposed by his Honour.

2. FLANAGAN JA:  I agree with Bradley J.

3. BRADLEY J:  On 2 September 2022, the appellant was found guilty of unlawfully doing grievous bodily harm to HD with the aggravating circumstance of it being a domestic violence offence.  The jury returned the verdict on the fifth day of trial.  At the trial, the Crown had alleged that on the morning of 21 October 2020, the appellant shook HD, then a five-month-old baby, applying a combination of acceleration-deceleration and rotational force to his body.  In this way, it was alleged, the appellant caused injury to HD’s brain in the form of a subdural haemorrhage.

4. On 5 September 2022, the appellant was sentenced to five years and six months’ imprisonment.

5. The appellant challenges his conviction on two grounds.  By the first, he contends there was a miscarriage of justice so that he did not receive a trial according to law because the learned trial judge failed to replace a discharged juror with a reserve juror chosen by lot.  By the second ground, he contends that the jury’s finding of guilty was unreasonable or cannot be supported having regard to the whole of the evidence at the trial.

6. If the appellant succeeds on either ground, this Court will set aside the conviction.  A successful appeal on the first ground would lead to an order for a re-trial.  Success on the second ground would entitle the appellant to an order that he be acquitted of the offence.  It follows that the Court should consider the second ground before the first.

   Ground 2 – Unsafe and unsatisfactory verdict

7. The appellant submits that the expert opinions of the two paediatricians who gave evidence at the trial were inconclusive, insofar as they left open the reasonable hypothesis that HD had suffered a previous head trauma that was activated when he fell onto a bed on the morning of 21 October 2020.

8. A conclusion on this ground of appeal requires this Court to make “its own independent assessment of the evidence” and decide whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.[1]

   [1]M v The Queen (1994) 181 CLR 487, 492-493 (Mason CJ, Deane, Dawson and Toohey JJ).

   The evidence at the trial

9. The relevant evidence admitted at the trial was as follows.

10. The appellant was born in September 1997.  He had been in a relationship with JD, HD’s mother, since about February 2020.  The appellant is a carpenter.  He had been unemployed since 31 March 2020, due to an eye condition which affected his vision and caused him severe pain.

11. HD was born in May 2020 at about 33 weeks’ gestation.  The birth was traumatic, and the baby was in a neonatal intensive unit for three weeks.  The appellant is not HD’s father.  After HD was discharged from hospital, JD moved, with another child, RD, who is HD’s sister, and the baby, to live with the appellant and his family in Caboolture.[2]  The appellant’s mother, his stepfather, his younger sister, his uncle, and his grandfather, lived at the Caboolture property.

    [2]JD had been living at her mother’s home in Morayfield and spending time at the appellant’s family home in Caboolture.

12. HD was breastfed and given supplementary formula.  JD described him as a “spewy baby”, who refluxed after feeding.  HD also had episodes when his legs and arms would turn purple.  The appellant’s mother had also observed this discolouration.

13. JD’s child RD was born 14 months before HD.  RD was 19 months old when HD suffered the injury.

14. RD was in day care one or two days a week.  Otherwise, from about the second week of June 2020 until she returned to work, JD was engaged with the day-to-day care of the two young children.  Some adult members of the appellant’s family would play with the children.  The appellant looked after HD and RD episodically.

15. On 12 October 2020, JD returned to work as a hairdressing apprentice.  She worked five days a week.  She left home at about 7.30 am to drive to work, which started at 9.00 am.  JD finished work at 5.00 pm and drove home, arriving between 6.00 and 7.00 pm.  When she was at work, the appellant cared for HD and RD, save on days when RD was at day care, when he would care for HD only.  The appellant spent significant time alone with the children.  He had help from his mother, his uncle, and his grandfather during the day, if they were home.

16. JD never saw the appellant interact negatively with HD.  She said he demonstrated love for the baby and RD.  He had never been violent or aggressive to her children or to any person.  The appellant’s mother never witnessed the appellant demonstrate any aggression or violence towards the children.  His uncle never saw the appellant behave aggressively towards the children, yell at them, or behave abusively towards them.  He said if the appellant “ever got stressed out with them he brought them to me or he took them to his mother and we helped him out.”  His stepfather never saw the appellant physically discipline JD’s children, lose his temper, or behave aggressively towards them.  His grandfather never saw either of the children being ill-treated by anyone within the house.

17. Between 7 October and 21 October 2020, messages on the appellant’s mobile telephone indicated he felt frustrated at times when caring for the children, particularly RD.

18. A few days or a week before 21 October 2020, while at work, JD received a message from the appellant that RD had kneed HD in the head.  The appellant’s uncle saw the incident.  The appellant did not.  The appellant’s uncle was speaking with the appellant while HD was lying on a bed.  RD was bouncing on the bed and landed knee-first on HD’s head.  The uncle consoled HD for about five minutes, as the baby quietened.  There were no obvious marks on HD.  When she returned from work, JD checked on HD.  He seemed fine.

    The evening of 20 October 2020

19. On the evening of 20 October 2020, nothing about HD’s health was of concern to JD.  He had been vomiting, but JD did not know whether it was reflux or whether he was sick with a virus RD had brought home from day care.  She observed nothing about HD that caused her any concern.  She noticed a dark colour to the baby’s legs but did not consider this required any immediate medical attention.  The appellant’s mother and stepfather saw HD that night and said there was nothing unusual about his physical condition.

    The morning of 21 October 2020

20. On the morning of 21 October 2020, JD woke at about her usual time of 6.00 am.  HD woke around 6.30 am.  JD changed the baby’s nappy and made up his bottle.  She found the baby “fussy”.  He did not finish his bottle.  She burped him and fed him some baby food.  He was “not taking his dummy”, which was not unusual.  JD nudged the appellant to wake him.  She dressed, put HD on the bed, fed RD, and said to the appellant, “Babe, you need to wake up”.  The appellant told police, “I sort of laid in the bed for a bit and then got up after JD sort of left so I can see HD, I can put him in his little position so he can watch the T-V and I can go for a smoke.”  At that time, HD was not yet crawling.  His rolling skills were not very good.  He was not able to sit up on his own.  He needed to lean against a memory foam pillow to prop him up in a sitting position.

21. JD woke the appellant because she needed to go to the shops before work to buy food and cigarettes.  JD told the appellant that she was “going just around the corner to the Drakes to grab some stuff before work”.  When the appellant was woken by JD, HD was “happy and giggling”.  JD saw the appellant pick HD up from the bed and “try to settle him” by bouncing the baby on his shoulder.  She said that HD, at that point, was “good” because he loved the appellant and “just loved being held by anyone really.”

22. JD left the house with RD, leaving HD in the appellant’s sole care.  She drove to the Drakes IGA store at Caboolture, about 2.2km from the house.  JD left her mobile phone in the car while she shopped.  She carried RD.  CCTV from the store captured JD and RD entering the store at 7.21.12am and leaving with groceries at 7.26.54 am.  Telephone records show three calls were made from the appellant’s mobile phone to JD’s mobile phone: at 7.24.32 am (5 seconds), 7.24.56 am (24 seconds), and 7.25.33 am (44 seconds).

23. When she returned to her car with RD, JD heard her mobile telephone vibrating.  She answered the phone.  It was a call from the appellant.  He sounded “really upset”.  He told JD that she needed to return home as there was “something wrong with HD.”  She asked him, “What’s wrong?”  He said, “I don’t know.”

24. The appellant’s younger sister was aged 12.  The jury heard her recorded interview with police.  On the morning of 21 October 2020, she was in her bedroom.  When she went to the bathroom, she saw the appellant holding HD, calling his name, and crying.  The baby was not responding.  She also saw the appellant make a call on his mobile phone.  She said the appellant told her that HD rolled on the bed and he did not know what was wrong with the baby.

25. JD estimated it took her around two minutes to drive home from the store.  When she arrived, she saw the appellant walking out the front door with HD in his arms.  The appellant was followed by his younger sister.  JD met the appellant at the bottom of the front steps and took hold of the baby.  She noticed HD was limp and “floppy”, his skin was pale, and he was “gasping for air, almost.”  At that time, the appellant said nothing to her about what had happened to the baby.  While holding the baby, JD made sure the appellant called an ambulance.  The appellant called 000.  The appellant told police he had earlier called JD and not an ambulance because he considered that JD, as HD’s mother, “need[ed] to know”.

26. When one of the attending ambulance officers arrived, the appellant told him that “he’d placed [HD] on a bed in another room, left the room, heard a loud bang, went back into the room, [HD] was in an unusual position and appeared to be non-responsive.”  JD then accompanied HD to the hospital.

    The appellant’s interviews with police

27. On 21 October 2020, in his first interview with police, the appellant explained the events of the morning in this way.  JD had woken him up.  He then propped HD up against a pillow and the backboard of the bed so that he could go out onto the deck next to the bedroom to smoke.  He had placed a pillow next to HD, so he did not roll off the bed.  The appellant said he could still hear HD from outside.  Shortly thereafter, he “heard [HD] hit the pillow”, looked inside the window, and saw the baby “with his chin … on the pillow next to the edge of the bed and his head … quite far back.”  When he went inside to check on HD, the baby started to cry but was struggling to breathe, and his neck was “floppy”.  The appellant then called JD’s mobile telephone.  He denied ever harming the baby.

28. In his second interview with police, on 25 November 2020, the appellant gave a similar version of events.  He described the sound he heard, while smoking on the morning of 21 October 2020, as a noise “like hitting the bed or pillow”.  He said he was panicked, terrified, and distressed by the incident.

    Medical evidence

29. Two paediatricians, Dr Waugh and Dr Roper, gave evidence.  In October 2020, Dr Waugh was the director of paediatrics at Caboolture Hospital.  On the morning of 21 October 2020, he was called to the emergency department of the hospital to attend on HD.  Dr Roper was a consultant paediatrician at the Queensland Children’s Hospital (QCH).  HD was referred to Dr Roper when the baby was transferred from the Caboolture Hospital to the QCH.

30. On examination at each hospital, HD was found to have retinal haemorrhaging and subdural haemorrhaging.  Both Dr Waugh and Dr Roper told the Court that retinal haemorrhaging and subdural haemorrhaging are often seen together in children subject to the application of acceleration-deceleration and rotational forces.  Retinal haemorrhaging is not commonly seen otherwise, except in motor vehicle or other high-speed accidents.  Both specialists ruled out the suggestion that HD could have caused himself the injuries they observed or that his sister RD could have inflicted injuries of this kind.  Both ruled out any connection between the injuries and the baby’s discoloured limbs.  They also ruled out the possibility that the subdural haemorrhaging had another cause, such as a blood disorder, trauma at birth, or stroke.  Both said HD would have died of the brain injuries in the absence of medical treatment.

31. Dr Waugh said the appellant’s explanation to the police – HD falling onto a pillow on the bed – could not account for the injuries.  He said HD’s injuries were most likely caused by some type of shaking.  The appellant’s counsel put propositions to Dr Waugh about the report of a radiologist on a CT scan performed at Caboolture Hospital.  Dr Waugh is not a radiologist and he deferred to the radiologist’s report.  Dr Waugh said he was not a neurosurgeon and did not have the expertise to express an opinion on the force required to cause a “re-bleed” from an existing head injury, another proposition put to him by the appellant’s trial counsel.

32. Dr Roper told the Court the initial radiologist’s report on the CT scan was clarified by the later report of another radiologist on an MRI performed at the QCH.  Dr Roper said the superior medical imaging from the MRI proved that HD did not have subdural haemorrhages of different ages.  She said the subdural haemorrhaging seen in the CT and MRI images of HD’s brain could be hours to days old, but not more than two weeks old.  Dr Roper said she would expect to see a baby who suffered such an injury exhibit the symptoms immediately after the brain injury.  Dr Roper said the onset of symptoms is the most reliable indicator of when the traumatic event occurred.  These were the symptoms HD had at about 7.30 am on 21 October 2020.

33. Dr Roper said the retinal haemorrhaging she observed in HD was more extensive than that which could have been caused by several innocent causes put to her by the appellant’s trial counsel.  An external impact alone would not explain the injuries.  The subdural haemorrhaging was in different locations of the brain, which is rarely seen in accidental trauma.  Dr Roper said there was no evidence to support the proposition that HD had suffered from an original bleeding event and then a second re-bleeding event.  Dr Roper did not think a baby with the injuries she observed in HD would be “happy and giggling”, whining, and consuming formula after the injuries were suffered.

    Assessment of the evidence

34. There was no direct evidence of the appellant shaking HD in a way that could have caused his injury.  The case against the appellant was circumstantial.

35. The evidence placed the appellant as the only adult with HD after JD left with RD shortly before 7.21 am on 21 October 2020.  It was open to the jury to be satisfied beyond reasonable doubt that no other person was with the baby between then and the time HD began to exhibit the symptoms.

36. Dr Waugh and Dr Roper were qualified experts in paediatrics and had additional training and experience in diagnosing and treating infant brain injuries.  Their respective evidence was sufficient, clear, and of a quality to be accepted by the jury.  Their evidence established beyond reasonable doubt that HD suffered the injury.  On their evidence, the jury could be satisfied beyond reasonable doubt: that the injury was not self-inflicted; that it was not caused by RD in earlier interactions with the baby; and that it was not the result of any cause other than the application of acceleration-deceleration and rotational forces.  On Dr Roper’s evidence, the jury could be satisfied to the same standard that HD suffered the injury on the morning of 21 October 2020 at the time other evidence and admissions established the baby was in the appellant’s sole care.

37. On the opinion evidence of Dr Roper, and the factual evidence of JD, and the appellant’s mother, stepfather, and uncle, the jury could be satisfied beyond reasonable doubt that HD’s injury was not caused by any event that occurred before JD left with RD on the morning of 21 October 2020.

38. Contrary to the appellant’s submissions, the opinions of Dr Waugh and Dr Roper were not inconclusive.  Their evidence did not leave open the hypothesis that HD had suffered a previous head trauma that was activated when he fell onto the bed on the morning of 21 October 2020.

    Conclusions on the ground 2

39. As a result of the above assessment of the whole of the evidence adduced at trial, I am satisfied the only rational inference from the evidence was that the appellant deliberately applied acceleration-deceleration and rotational forces to HD that caused the baby to suffer a subdural haemorrhage.  Ground 2 fails.

    Ground 1 – miscarriage of justice

40. In Maher v The Queen,[3] the High Court explained that the right to a trial by jury, conferred by s 604(1) of the Criminal Code (Qld), is a right to a “trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty” so that:

    “[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”.[4]

    [3](1987) 163 CLR 221.

    [4]Ibid, 233 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ). The High Court cited Crane v Director of Public Prosecutions [1921] 2 AC 299, where two defendants were tried and convicted after being placed in the charge of a single jury, despite each being charged on a separate indictment. The majority in the House of Lords dismissed an appeal from an order of the Court of Criminal Appeal setting aside the conviction. As Lord Sumner put it, at 331, the accused person had been deprived “of the protection given by essential steps in criminal procedure.”

1. In Maher, the High Court referred to the Jury Act 1929 (Qld) (the former Act), then in force.  For this appeal, the relevant statute is the Jury Act 1995 (Qld) (the Act).

2. If the appellant was deprived of a trial by jury in accordance with the Act, then the appellant submits there was a miscarriage of justice, the verdict must be set aside, and a new trial ordered. If there was noncompliance with the Act, the respondent Crown does not contend for any other consequence. However, the Crown says there was no such non-compliance.

   What occurred at the trial?

3. At the outset of the trial, after submissions by the Crown prosecutor, Ms Kelso, and the defence counsel, Mr Kennedy, the trial judge directed that two persons be chosen and sworn as reserve jurors.[5]  The two reserve jurors were selected at the same time and in the same way as the ordinary jurors.  They were designated as juror no. 13 and juror no. 14.

   [5]Ms Kelso suggested one reserve juror.  Mr Kennedy’s preference was two, with which the trial judge agreed.

4. As the appellant’s written outline notes, the two reserve jurors were selected pursuant to s 34 of the Act. It provides:

   “34     Reserve jurors

   (1)The judge before which a civil or criminal trial is to be held may direct that not more than 3 persons be chosen and sworn as reserve jurors.

   (2)Reserve jurors—

   (a)     are to be selected in the same way as ordinary jurors; and

   (b)     are liable to be challenged and discharged in the same way as ordinary jurors; and

   (c)     must take the same oath as ordinary jurors; and

   (d)     are otherwise subject to the same arrangements as other jurors during the trial.

   (3)If a juror dies or is discharged after a trial starts but before the jury retires to consider its verdict, and a reserve juror is available, the reserve juror must take the vacant place on the jury.

   Editor’s note—

   See section 56 (Discharge or death of individual juror).

   (4)If 2 or more reserve jurors are available, the juror to take the place on the jury must be decided by lot or in another way decided by the judge.

   (5)When a jury retires to consider its verdict, a reserve juror who has not been called on to take a place on the jury must be discharged from further attendance at the trial.

   (6)The death or discharge of a reserve juror before the juror has been called on to take a vacant place on the jury does not affect the validity of the trial.”

5. During the lunch adjournment on the first day of the trial, the Court received a juror note. The trial judge discussed the note with Ms Kelso and Mr Kennedy in the absence of the jury. Both agreed that his Honour should discharge juror no. 4 under s 56(1)(c) of the Act.

6. Section 56 provides:

   “56     Discharge or death of individual juror

   (1)If, after a juror has been sworn—

   (a)     it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial; or

   (b)     the juror becomes incapable, in the judge’s opinion, of continuing to act as a juror; or

   (c)     the juror becomes unavailable, for reasons the judge considers adequate, to continue as a juror;

   the judge may, without discharging the whole jury, discharge the juror.

   (2)If a juror dies or is discharged before the trial begins, the judge may direct that another juror be selected and sworn.”

7. Ms Kelso submitted that, once juror no. 4 was discharged, the trial judge should “move” juror no. 13 (the first of the two reserve jurors selected) into the “spot” of juror no. 4.  Mr Kennedy made no submission on this topic.

8. Juror no. 4 returned to the court room.  The trial judge discharged her.[6]  His Honour then made an order that juror no. 13 replace juror no. 4.

   [6]As the appellant’s counsel noted in his written outline, the trial judge did so by exercising the power in s 56(1)(c) of the Act.

9. The other members of the jury, and the two reserve jurors, then returned.  His Honour said:

   “Juror number 13, before you sit down, I’ve made a decision to excuse Juror number 4, so Juror number 13, would you take Juror number 4’s place, please?  You’re formally now part of the 12.  You are now someone who will participate in the deliberations at the end of the trial.”

10. Mr Kennedy made no objection to this process at this time or at any later time during the trial.

    Was the appellant deprived of a trial by jury in accordance with the Act?

11. The appellant contends the trial judge’s decision to order that juror no. 13 replace the discharged juror no. 4 was a miscarriage of justice because the discharged juror was replaced “otherwise than by random and chance selection”.

12. The appellant submits there is a “legal obligation” to maintain “randomness and chance” in “fact and appearance” in the selection of a reserve juror to replace a discharged juror as “one of the inviolable features” of trial by jury. This, he submits, supports an interpretation of s 34(4) that “a ballot or style of ballot mode of selection of a reserve juror to replace a discharged juror must be adopted before any other mode of selection.”

13. The appellant says the trial judge “avoided randomness and chance selection in the composition of the jury” by choosing juror no. 13 to become a member of the jury in place of the discharged juror no. 4.

14. In support of this submission, the appellant relies “generally” on the decision in Wu v The Queen.[7]  In Wu, the question before the High Court was not the selection of a replacement juror.  There, the High Court rejected a challenge to a statutory provision[8] that authorised the discharge of a juror.[9]

    [7](1999) 199 CLR 99.

    [8]Jury Act 1977 (NSW) s 22.

    [9](1999) 199 CLR 99, 106-107 [21]-[22] (Gleeson CJ and Hayne J); 109 [32] (McHugh J).

15. The topic raised by the appellant’s submissions was the subject of some consideration by the High Court in Cheatle v The Queen[10] and Ng v The Queen.[11]

    [10](1993) 177 CLR 541.

    [11](2003) 217 CLR 521.

16. In Cheatle, the High Court identified the requirement that “jurors be randomly or impartially selected rather than chosen by the prosecution or the State” as an “unchanging element” of the “essential feature or requirement” that “the jury be a body of persons representative of the wider community”.[12]  That was obiter dictum in the context of the High Court’s finding that, having regard to the nature of jury trials at the time of federation, a South Australian provision allowing a majority jury verdict in trials for Commonwealth offences offended against s 80 of the Constitution.[13] Section 80 mandates trial by jury on an indictment for any offence against a Commonwealth law.

    [12]Ibid, 560 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

    [13]Ibid, 552 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

17. In Ng, the High Court upheld a provision[14] that prevented the foreperson of a jury from being removed by ballot when it was necessary to reduce the number of jurors to 12. The High Court found the provision was not inconsistent with s 80.

    [14]Juries Act 1967 (Vic) s 48A(4).

18. The majority held that the “principle of randomness of selection” was put into effect by “peremptory challenges to potential jurors” at the beginning of the trial.  The preservation of the foreperson from later removal did not prevent the resulting jury from having “the character of a panel randomly or impartially selected rather than one chosen by the prosecution or by the State.”[15]

    [15]Ng v The Queen (2003) 217 CLR 521, 527 [14] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

19. In a separate concurring judgment, McHugh J explained:

    “The jurors are selected randomly when their names are drawn by ballot from a list that is representative of the community. The randomness of the panel is no more affected by the foreperson being exempted from the [later] ballot than it is by the order of the judge directing that a particular panel member be discharged for incapacity or other reason. In each case the requirements of s 80 are met by the selection of the jury by ballot from a list of names that is representative of the community. The random selection of the panel is not affected by a subsequent judicial order discharging a juror or by a statutory command that a juror who has been randomly selected and elected as foreperson is to remain a member of the jury that determines the case.”[16]

    [16]Ibid, 528 [18] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

    Was there an absence of random and impartial selection of the jurors?

20. At the beginning of the appellant’s trial, the reserve jurors were selected in the same way as ordinary jurors, as the Act requires. During the selection process, they were subject to challenge in the same way as other members of the jury panel. In short, like the foreperson in Ng, they were randomly and impartially selected.  They were not chosen by the prosecution or by the State.

21. I reject the applicant’s contention that the trial judge’s order – that juror no. 13 (rather than juror no. 14) replace the discharged juror no. 4 – negated or impaired the randomness and impartiality of the selection of juror no. 13 as a reserve juror.  The decision in Wu is not authority for that contention.  Nor is Cheatle.  The decision in Ng tends against acceptance of it.

    Meaning of s 34(4)

22. The appellant contends that, on the proper interpretation of s 34(4), “a ballot or style of ballot mode of selection of a reserve juror to replace a discharged juror must be adopted before any other mode of selection.”

23. By s 34(4), the legislature mandated that the reserve juror (of two or more) to take the place of the discharged juror on the jury “must be decided by lot or in another way decided by the judge.”

24. In its ordinary meaning, s 34(4) requires either course be adopted. The decision may be made “by lot” or it may be made “in another way decided by the judge.” The provision does not require or preference choice by lot over another way. I reject the appellant’s contrary contention.

25. No departure from the ordinary meaning is suggested by the context of the balance of s 34, or Part 5 dealing with the formation of juries, or Part 6 dealing with jury trial, or the balance of the Act.

    Legislative history

26. The section has been in the same terms since the Act was first enacted in 1995. The prior legislative history is consistent with this interpretation.

27. On 17 February 1997, when its main provisions commenced, the Act repealed the former Act. Immediately before it was repealed, by s 17(4),[17] the former Act provided:

    “(4)A juror who, prior to the time the jury retires to consider its verdict, dies or becomes incapable of or disqualified from or is discharged from performing his or her duties shall be replaced by a reserve juror who if there is more than one reserve juror available, shall then be determined by lot in such manner as the Court determines.”

    [17]This part of s 17 was inserted in the former Act by s 2 of the Jury Act Amendment Act 1981 (Qld).

28. In repealing s 17(4) with the former Act and enacting the Act with s 34(4), Parliament changed the requirement that the one of two or more reserve jurors to replace a discharged juror “be determined by lot in such manner as the Court determines” to the requirement that it “be decided by lot or in another way decided by the judge”.

29. The appellant submits that s 34(4) should be interpreted as if it is to the same effect as s 17(4) of the former Act. As Mason P observed in Registrar-General v Harris, “Normally, one assumes that a change of language signals a change of meaning.”[18] The change from the provision in the former Act to s 34(4) in the Act is quite inconsistent with a legislative intention to enact a new provision to the same effect as the one being repealed.

    [18](1998) 45 NSWLR 404, 415D; Stein JA agreeing.

    Conclusion on the ground 1

30. The trial judge’s decision to replace the discharged juror with the first of two reserve jurors chosen at the outset of the trial was a decision to choose the replacement juror in another way. It was authorised by s 34(4) of the Act. The appellant was not denied a trial by a jury constituted in accordance with the Act. Ground 1 fails.

    Final disposition

31. For these reasons, I would dismiss the appeal.