R v WHITROD - [2011] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WHITROD
[2011] SADC 144
Ruling of His Honour Judge Stretton
9 February 2011
JURY - DISPENSING WITH OR DISCHARGE OF JURY BEFORE VERDICT - DISCHARGE OF JURY - EXERCISE OF DISCRETION
A juror in a part heard matter requested to be discharged from the jury as a result of unforeseen personal circumstances, namely the imminent bereavement of a close relative.
Held: Section 56(1) of the Juries Act codifies the basis upon which a juror may be excused. It requires ill health or a matter of "special urgency" or "special importance". These terms do however embrace the principles that have been recognised in the past at common law as justifying the excusing of jurors. If not discharged, the juror would be upset, distracted and unwilling. The discharge of the juror was appropriate.
Defence counsel made application to discharge the the remainder of the jury.
Held: Section 56(2) of the Juries Act provides that a trial “will” continue with 10 or 11 jurors subject to a contrary direction by the judge, however that does not displace the presumption in favour of 12 jurors long recognised by the law. Where there is a reasonable apprehension that the remaining jurors were not or will not be impartial the jury must be discharged. Where there is no such apprehension, a discretion to discharge the jury of 10 or 11 still remains. Whether a trial should continue with less than 12 jurors should be determined in accordance with 4 considerations; the long recognised preferability of 12 jurors, the degree of inconvenience in discharging the jury, the seriousness of the offence and the preference of the accused. In this matter whilst there is no apprehension that the remainder of the jury would not be impartial, recognising the importance of a jury of 12, and that the trial can recommence the next day with little inconvenience to any party, application granted.
Jury Act 1995 (Qld) ss 56 and 57; Juries Act 1927 (SA) s 56, referred to.
R v Hutchings (2006) QCA 219; Wu v R (1999) 199 CLR 108, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"special urgency", "special importance" and "ill health"

R v WHITROD
[2011] SADC 144
Introduction

This is an application by a juror to be excused from a jury empanelled and part heard in this matter.
If that application is granted, the accused submits that the entire jury should be discharged.
These are two distinct questions, and each question may be affected by different considerations[1].
The accused is charged with manufacturing methylamphetamine, contrary to section 33J of the Controlled Substances Act.
The trial commenced yesterday, and the Crown case is estimated to conclude today. If the jury is discharged, the trial could recommence tomorrow before a new jury.
The application to excuse a juror
This morning a message was conveyed to the Court from a juror that that juror had pressing family issues which might require her to be absent for a considerable period. Her message to the court was:
‘My grandma isn’t expected to survive the next 24 hours. My family and I will be travelling to Melbourne tomorrow to see her and wish to stay until the funeral which could be up to a week. I’m feeling too emotional and upset to sit on the jury today and ask to be discharged from sitting on this trial. I will hope to be available from 21 February. Signed Juror 101.’
The statutory framework
S.56 of the Juries Act (1927) (“the Act”) provides for situations where a juror may be excused. The section says:
‘56—Continuation of trial with less than full number of jurors
(1) If during the course of a criminal trial the presiding judge is satisfied that, by reason of the ill health of a juror or a matter of special urgency or importance, a juror should be excused from further attendance, the judge may order that the juror be excused from further attendance during that trial and for such further period (if any) as the judge determines.’
There are three statutory criteria that allow a juror to be excused. They are ill health, a matter of special urgency and a matter of special importance.
The ill health of a juror will need to amount to a condition that incapacitates the juror in their capacity as a juror. In my view that would not need to be permanent incapacity, rather incapacity for a period that would unreasonably delay the trial in all the circumstances. It cannot be that the Act intends that a juror be excused if a juror is unwell for a matter of merely minutes or hours, such that the trial could shortly recommence with a full complement of 12. Neither will it require permanent incapacity for exclusion, as that might necessitate jury trials to be adjourned for months awaiting the recovery of a very ill yet not permanently incapacitated juror.
Matters of special urgency or importance are potentially wider concepts. In my view special urgency must mean special urgency for the juror. It must concern some pressing matter requiring the juror’s immediate absence, such as bereavement, or some other major personal or financial issue that is of sufficient urgency that it is reasonable to excuse the juror. The word ‘special’ connotes that the urgency must have some urgency over and above the usual, expected exigencies of daily life. “Urgency” suggests matters that cannot be put off until the conclusion of the trial. Whilst not explicit, the urgent matter must have enough obvious significance to the juror as to justify the exclusion and require the absence of the juror.
Special importance is equally undefined. A matter of special importance that does not relate to the juror’s health or some matter of special urgency requiring the juror’s absence, could mean matters of such subjective importance to the juror that it is unreasonable for them to have to continue their jury service. Such matters might include personal tragedy, compelling family needs, or any other matter where either humanity and compassion dictate excuse, or such subjective importance to the juror that they would be likely to be distracted and unable to fully concentrate on their role as juror. In my view ‘special importance’ is likely to also include matters of objective special importance, for example importance in terms of their integrity and role as a juror. In my view it is likely the Parliament would have intended the court to have powers akin to the common law power to excuse a juror where matters long-recognised as affecting the integrity as a juror became apparent. At common law the fundamental criteria for the discharge of a juror is whether the issue, whatever it might be, gives rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or the jury has not discharged or will not discharge the juror’s task impartially. These matters would include the actuality or appearance of bias, lack of objectivity, conflict of interest and the like. Such matters are obviously especially important to the exercise of the jury’s function. In my view “special importance” embraces all of these matters.
Accordingly, whilst section 56 purports to codify the law as to the grounds upon which a juror may be excused, it embraces the common law principles expressed over time concerning the discharge of jurors.
The application to excuse this juror
The comment by the juror that she is too emotional and upset to sit on the jury today is, in my view, particularly significant. It is fundamental that jurors in any trial be able to give their full attention to the evidence, and not be upset and distracted when considering whether a person charged with a serious offence is guilty or not guilty. Further, the juror wishes to spend time interstate visiting her critically ill relative and to attend the anticipated funeral, and is likely to be upset and distracted if not able to do so.
These matters would mean that if the juror were not excused either the trial would continue immediately with an upset, distracted and unwilling juror, or that the trial would be adjourned for at least 11 days so that the juror was able to attend the funeral. I have already articulated why the first of these options is highly undesirable. The second option would substantially delay the trial, introduce a large gap between the evidence given to date and the evidence to be given, and prevent the members of the jury panel serving on any other trial for that extended period. This is also undesirable. Finally, the matters the juror wishes to attend to obviously cannot be put off to the end of the trial and in that sense are urgent.
I am satisfied, on the basis of the matters raised by the juror, both that this is a matter of special urgency and of special importance and that I should exercise my discretion to excuse her.
Therefore, in the interests of all concerned, particularly the accused, who is entitled to jurors who can give full and unaffected attention to a matter and to a trial that proceeds in a timely way without extended interruptions, I excuse the juror concerned.
The application to discharge the remainder of the Jury
The next issue is whether the trial should continue with 11 jurors or whether I should discharge the remainder of the jury. There is no power at common law to continue a trial with less than 12 jurors[2].
Sub-s.(2) of s56 of the Act provides however that:
‘(2) If during the course of a criminal trial a juror dies or is excused under subsection (1), or fails to attend without lawful excuse, the trial will, subject to any contrary direction by the presiding judge, continue with the reduced number of jurors, provided that the number of jurors has not been reduced to less than 10.’
I have been referred to the decision of R v Hutchings (2006) QCA 219. That was a decision by the Queensland Court of Appeal based on sections 56 and 57 of the Jury Act (Qld) 1995 (‘the Queensland Act’). S.57 of the Queensland Act provides:
’57    Continuation of trial with less than full number of jurors
(1)     If a juror dies or is discharged after a trial begins, and there is no reserve juror available to take the juror’s place, the judge may direct that the trial continue with the remaining jurors.
(2)     However, a civil trial cannot continue with less than 3 jurors and a criminal trial cannot continue with less than 10 jurors.
(3)     The verdict of the remaining jurors has the same effect as if all the jurors had continued present.’
Neither the South Australian Act nor the Queensland Act provide criteria for the exercise of the discretion to discharge the juror or to order the trial to continue within less than 12 jurors. It is clear that a jury must be discharged if, as a result of the issues that caused the individual juror to be excused, there is a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the jury has not discharged or will not discharge the jury’s task impartially. It is fundamental that juries be impartial, and equally fundamental that they be discharged if they may not be. This might occur, for example, where the excused juror had accessed inadmissible material or displayed bias, and had continuing contact with existing jury members. Put another way, where there is a reasonable apprehension that the excused juror has infected or polluted the minds of the remaining jurors or any of them then there will be a reasonable apprehension the remaining jury members will not discharge their duty impartially. It is clear that such a jury must be discharged.
But what if, as here, there is no suggestion of that?
Chief Justice de Jersey, with the agreement of the other appeal judges, held that the phraseology of the Queensland Act preserved the Commonwealth and common law position that 12 jurors are strongly preferable in a trial of any person. In consequence that Court held that there needs to be good reason why the discretion to continue a trial with less than 12 jurors under that legislation be exercised.
S.56 of the South Australian Juries Act is drafted differently. The literal words of s56(2) appear to direct the court to continue the trial unless there is a reason not to. Parliament ostensibly conveys this intention by providing that a trial where a juror has been excused will continue, unless the judge otherwise orders. This ostensibly directs the court to continue the trial unless there is a positive reason to exercise a judicial discretion not to continue with the trial.
This is not the end of the matter, however. Whilst the words of s.56 are ostensibly clear, there is a long recognised primacy of 12 jurors in the trial of an accused at common law and in South Australia. Legislation is not to be interpreted as displacing long recognised rights unless that intention is absolutely clear. Does s.56(2) overturn this primacy?
Section 6(2) of the Act provides that a Jury in South Australia is, subject to the Act, to consist of 12 persons qualified and liable to serve as jurors. The importance of 12 jurors is reflected in section 6A which allows additional jurors to be empanelled, with any over the number of 12 to be balloted down to 12 when the jury is about to retire to consider their verdict. This provision is likely to be in place to ensure, so far as possible, that in a long trial where jurors may be lost, so far as possible, 12 jurors still consider the verdict.
The law recognises that it is an advantage to the accused in having 12 people hear an accused’s case. Any individual juror can have a reasonable doubt. Any individual juror may also advocate views favourable to the accused to the other jury members. Indeed, in Wu v R (1999) 199 CLR at 108 Kirby J said: ‘Every juror presents a forensic advantage to an accused person.’
In Wu v R the High Court considered sections 19 and 22 of the New South Wales Jury Act 1977 (“the NSW Act”) a literal interpretation of which might indicate, similarly to the SA Act, an intention that a jury consisting of 10 or 11 should continue, subject to the court ordering otherwise. However, the fact that section 19 of the NSW Act ordinarily provided for a jury of 12 was regarded as much more significant.
McHugh J said at [27 -30]:
For hundreds of years, the common law has insisted that no person be convicted of serious crime without the unanimous verdict of 12 jurors. If even one juror died or had to be discharged, the common law required the rest of the jury to be discharged. The trial had to recommence with a new jury of 12. In various jurisdictions, including New South Wales, the dictates of expense and convenience have introduced legislative change which now authorises the judge in a criminal trial, after the death or discharge of a juror, to make an order that permits a person to be convicted by a jury of less than 12. In New South Wales, a person may not be convicted by a jury of less than 10 persons ordinarily, but the judge may order that the jury be properly constituted by as few as 8 persons if the trial has gone for at least 2 months or if the Crown and the accused consent to such an order.
But no-one should think that once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than 12 is a denial of a long-standing right of those tried for serious crime under the common law system. Given the mandatory terms of s 19 of the Jury Act, some positive reason, beyond the death or discharge of a juror, must exist for the judge to make the order that the trial continue with less than 12 jurors.
The usual reason for exercising the power under s 22 is that the trial has proceeded for some time and that it would cause significant expense to begin again with a new jury. No doubt the circumstances of individual trials will throw up other valid reasons. And there may be countervailing reasons. It may be a case dealing with matters upon which the opinion of the community is deeply divided. In such a case, despite the time that the trial has already taken, the proper exercise of the discretion may require that the accused be retried before a jury of 12. Or the case may be one where the community has strong feelings against the crime in question and the risk of prejudice against the accused may be strong. In such a case, depriving the accused of the chance to obtain the vote of the twelfth juror may be a step that should not be taken.
Furthermore, although two stages are involved in the making of a s 22 order, the first stage cannot always be separated from the second stage. Before the judge discharges a juror for illness or "any other reason", the judge will usually need to consider whether exercising the power of discharge has implications for the continuation of the trial with the remaining jurors. In the case of the temporary illness of a juror, the proper course will ordinarily require the temporary adjournment of the trial rather than the discharge of the jury and the making of the s 22 order.
Section 6 of the South Australian Act is expressed in similarly mandatory terms, requiring a jury of 12. Accordingly notwithstanding the literal wording of section 56 of the Act, it is appropriate that a South Australian Court recognise the historical importance of a jury of 12. Accordingly, where a juror has been excused from further attendance, the court should not assume the trial should continue unless there is a good reason why not. The court should, recognising the historical importance if 12 jurors, and the potential forensic advantage that represents to an accused person consider the issue in light of all the circumstances and ask whether there is significant reason for the trial to continue with less than 12 jurors. Therefore if the trial can be restarted easily without significant delay, expense or inconvenience, then it is within the appropriate exercise of the court’s discretion to discharge the jury of 10 or 11, so that it can be recommenced before a jury of 12.
This trial can be re-started
The trial has been going only one day. The Crown case is due to finish today, the second day of the trial.
I am told that whilst there are three prosecution witnesses who are unavailable for a new trial starting tomorrow, defence counsel has agreed the reading of that evidence to a new jury. There is no prejudice to the Crown apart from the moderate time, cost and inconvenience in re-commencing the matter tomorrow. I am told there is accordingly no reason why the trial cannot start again tomorrow.
Discussion
There are two aspects of the application to discharge a jury in these circumstances. Firstly, if I assess that there is a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the remaining jurors have not discharged or will not discharge the their function impartially, the jury must be discharged. In those circumstances, it is not a matter of discretion.
If there is no such apprehension, and the only issue is whether the jury should be discharged so that the trial can re-commence with 12 jurors rather than 10 or 11, then the court has a discretion whether to discharge the jury. The court must take into account all the circumstances, when considering whether there is sufficient reason to continue the trial with less than 12 jurors.
Where there is no suggestion that the jury of 10 or 11 will not perform their function impartially, matters relevant to the exercise of the discretion to discharge them and restart with 12 jurors include:
1The long recognised preferability of a jury of 12, in that each of those jurors presents a potential forensic advantage to an accused person.
2The degree of inconvenience and delay that would be occasioned by discharging the jury. Here that is minimal as there has been only one day of trial and the matter can re-commence tomorrow.
3The seriousness of the alleged offence. Here whilst the alleged offence is not trivial, the maximum penalty is seven years imprisonment and this places the offence among the relatively less serious categories of offence commonly dealt with by the court.
4The preference of the accused. If the accused had a preference to continue immediately with 10 or 11, than unless there was some other good reason why not, the trial should continue. An accused’s preference to avoid delay and further cost, and waive his interest in 12 jurors is a relevant factor. In this matter the accused through his counsel has voiced a strong preference for a jury of 12. Whilst none of the authorities specifically address the weight, if any, that should be accorded to an accused’s preference for a jury of 12, it is very important that an accused not only receives a fair trial which gives them every lawful chance of acquittal, but that an accused believes they are receiving that fair trial. Hence in each scenario, the accused’s preferences are relevant.

In all the circumstances, in particular the early stage of the trial, and that it can be easily recommenced without further delay, and the preference of the accused I consider that I should exercise my discretion to discharge the jury and re-commence tomorrow with a jury of 12.
The jury will be discharged. The trial will recommence tomorrow with a new jury of 12.

[1] Wu v The Queen [1999] HCA 52 at [8] per Gleeson CJ and Hayne J.

[2] Wu v The Queen [1999] HCA 52 at [21] per Gleeson CJ and Hayne J, and at [27] per McHugh J.