Radju v The Queen

[2002] HCATrans 33

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S76 of 2001

B e t w e e n -

WARTHA RADJU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2002, AT 11.13 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear on behalf of the applicant.  (instructed by David M. Robinson & Associates)

MR A.M. BLACKMORE, SC:   If the Court pleases, I appear on behalf of the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GAUDRON J:   Yes, Mr Wendler.

MR WENDLER:   If the Court pleases.  Your Honours, this application raises matters of importance to the law of criminal trial procedure.  It picks up, in a sense, where this Court left off in R v Wu.

GAUDRON J:   I would have thought you wanted to traverse much of the same ground.

MR WENDLER:   Not really, because in Wu the section 54 Jury Act point was not before the Court and in Wu the comments were obiter comments because the majority in Wu did not grant leave to examine further the legal nature of section 22 of the New South Wales Jury Act.  Your Honours, section 22 of the New South Wales Jury Act mandates a form of procedure, that is the making of explicit orders in certain circumstances.

GAUDRON J:   That is the question.

GUMMOW J:   Yes, that is right.

GAUDRON J:   It does not necessarily mandate the making of explicit orders.  Wu says otherwise.

MR WENDLER:   Wu says that if the orders are not made they may be implied having regard to what occurred.

GAUDRON J:   Well, it does not say that they are not made.

MR WENDLER:   There is an avenue of implication, let us put it that way, which would satisfy the requirements of section 22, having regard to the fact that ‑ ‑ ‑

GAUDRON J:   What it says is – what…..may be made by implication is that the order itself is implicit in what was said or done.

MR WENDLER:   Yes, but in the circumstances of what occurred in the applicant’s trial, at its highest you could imply the order in relation to the discharge of the juror but you could not possibly imply the order, which is also required, that the jury remaining be the jury properly constituted ‑ ‑ ‑

GAUDRON J:   Now, was defence counsel invited to say anything at that stage?

MR WENDLER:   No.

GAUDRON J:   Well, I do not think that is right, is it?  What exactly happened?

MR WENDLER:   What happened appears in the application book, first at pages 3 and 4.  Perhaps I should invite your Honours to those pages.  What occurred essentially, just to summarise it broadly, on page 3 a juror wished to be excused and ‑ ‑ ‑

GAUDRON J:   Now, who was Mr King for?

MR WENDLER:   Mr King was for the accused, now the applicant.

GAUDRON J:   That is right.

MR WENDLER:   What occurred essentially was a juror made application to be excused and there is set out ‑ ‑ ‑

GAUDRON J:   But not instantly.  He wanted to be excused at the end of the next week.

MR WENDLER:   Yes, that is right, and at line 45 his Honour the learned trial judge said:

My own view is that I should discharge him, not on Friday, but now, because he is not going to sit on any further –

and so on.  He then made further comment in relation to the rest of the jury.  It is recorded that there was no objection from trial counsel to that course.  Neither was there any objection implicitly from the prosecutor and following that the trial judge called the juror into court and on page 4 of the application book it is recorded ‑ ‑ ‑

GAUDRON J:   And where is the rest of that transcript?

MR WENDLER:   I am sorry, your Honour.

GAUDRON J:   What happened thereafter?

MR WENDLER:   What happened was nothing happened other than ‑ ‑ ‑

GAUDRON J:   Well, where is the transcript?  If you want to say that there was not implicit in what thereafter happened an order that the trial continue, where is the transcript?

MR WENDLER:   That is all the transcript there is.  That is what occurred.

GAUDRON J:   That is not the case, Mr Wendler.

MR WENDLER:   In relation to ‑ ‑ ‑

GAUDRON J:   It may be all of the transcript that was taken out.  I do not know.  Something else happened.  Where is the transcript?

MR WENDLER:   If you go to page 55 of the application book, page 55 in the judgment of the Court of Criminal Appeal, we can pick it up in this way ‑ ‑ ‑

GAUDRON J:   Yes.

MR WENDLER:   Your Honours will see at the top of the page the juror is recorded as saying:

There is no rush, that is fine.”

Then the Court of Criminal Appeal, essentially, records what occurred:

When the remainder of the jury were returned to Court his Honour gave them the following explanation as to what had happened in the trial . . . 

The trial then continued before the remaining jurors.

GAUDRON J:   All right then.  Now, presumably at some stage, his Honour said, “Call the next witness” or something of that nature, and there would be implicit in that, I should have thought, an order that the matter continue before the remaining jurors.  The real question, not being one that anyone seems to have addressed their minds to, is whether counsel then acquiesced in that course or whether counsel should have been given an opportunity to address on it, but that does not seem to have been raised at any point.

MR WENDLER:   It was not raised in the trial context.

GAUDRON J:   No, or in the Court of Criminal Appeal.

MR WENDLER:   Yes.  The Court of Criminal Appeal resolved it by simply holding, in effect, that having regard to what occurred in the trial context it could be implied that an order of the kind contemplated by section 22 had been made, even though the trial judge did not say, “I order pursuant to section 22 the discharge of the juror and I further order that the remaining jurors be regarded as the jury properly constituted for the balance of the trial”.  It is really that second limb, in my submission, namely, the order which reflects what is required by section 22 in explicit terms had not been made.  The question then is, what is the legal effect of that?  Well, the legal effect of that, if it is not made and cannot possibly ‑ ‑ ‑

GUMMOW J:   Where do you say the Court of Criminal Appeal went wrong?

MR WENDLER:   In my respectful submission, in holding that the jury that remained were properly constituted within the meaning of section 22 of the New South Wales Jury Act, because if the jury was not properly constituted within the meaning of section 22, of course, the trial would have to be a nullity because the verdict was brought home by a jury which was not properly constituted within the meaning of section 22.

GUMMOW J:   Yes, I understand that.  Where do you specifically say the Court of Criminal Appeal went wrong?

MR WENDLER:   By holding that ‑ ‑ ‑

GUMMOW J:   Which passage?

MR WENDLER:   I beg your pardon.  Page 60 at line 25 of the application book.

GUMMOW J:   It is really line 27, is it not, or paragraph 27?

MR WENDLER:   Yes.  That, in broad terms ‑ ‑ ‑

GUMMOW J:   Paragraph 28.  Well, that seems fair enough.

MR WENDLER:   So, this application does raise important matters of criminal trial procedure and civil trial procedure and coronial trial procedure, so far as section 22 is concerned, because that section not only applies to criminal proceedings but civil and coronial proceedings as well.

The other limb of this application, which was not addressed in Wu, concerns section 54(b) of the New South Wales Jury Act and that situation arose in this way.  It is recorded at page 45 of the application book what occurred in the context of the trial which activates or sought to activate the circumstances in which section 54 of the Jury Act is said to apply.

The background to it is this, that his Honour completed the summing up and it was late in the day and he was about to invite the jury to retire to consider their verdict, or verdicts in this case, and the foreman made some inquiry of the judge, which is reported at page 45 of the application book, and he asked his Honour:

Yes, your Honour, if we retired now for deliberations would the Court still be here in one hours time, we didn’t know whether you went home.

HIS HONOUR:  Yes of course, we wait upon your return, but if you were to tell the Sheriff’s Officer at some stage that you had enough of –

or it should be “for” –

the afternoon then you just leave without coming back into the Court and return again tomorrow at half past nine and deliberate only when the eleven of you are together.

GUMMOW J:   This is dealt with in paragraphs 40 and 41 in the Court of Criminal Appeal’s judgment, and 42.

MR WENDLER:   Yes.  The problem with that, first, is there is no power at all for his Honour to make a pre‑emptive order.  That is what that was, a pre‑emptive order, because section 54(b) only activates, or rather imposes an obligation on the court to make an order after the jury had retired to consider their verdict and they had not retired to consider their verdict.  He was, in effect, making a pre‑emptive order.

GAUDRON J:   Was any objection taken at the trial?

MR WENDLER:   No.  There was no objection taken to this, but I stress, your Honours, that in the Court of Criminal Appeal the court specifically said on page 60 again at line 25:

despite the purely technical nature of this submission, and despite the fact that no point was taken below, I would grant leave to argue the ground.

GUMMOW J:   That does not mean we should grant special leave to argue it again.

MR WENDLER:   No, no.  I am not arguing it again.  My submission is that these are matters of importance for criminal trial procedure in this State and, indeed, in other States and ‑ ‑ ‑

GAUDRON J:   The importance is probably established by the decision in this case, if it was not already established by the decision in Wu.

MR WENDLER:   Well, the section 54(b) point was not considered, of course, in Wu.

GAUDRON J:   No, but it is considered in this case by the Court of Criminal Appeal.

MR WENDLER:   Yes, by the Court of Criminal Appeal.  The reality in the trial was that this jury was permitted to separate otherwise than in accordance with section 54 and returned to court the next morning.  They virtually did not deliberate at all and returned to court the next morning at about 10 o’clock and found, I am instructed, the applicant guilty of these offences charged, without having been warned, having returned to court and being warned not to discuss this matter with anybody overnight and so on and so forth.                 So, section 54(b) is of great importance.  That is why it requires these orders to be made in solemn form to bring home to the jury the importance of their responsibility.

Your Honours, as I said at the commencement of this application, these are matters which were not entirely resolved in Wu.  This is an appropriate vehicle to return to those matters, having regard to the obiter remarks in Wu by the majority.  Justice Kirby, as I read his judgment, and, indeed, later in Brownlie v The Queen warned about the necessity of making these explicit orders in order to comply fully with these particular sections in the Jury Act and these orders not being made, there is a real reflection upon the legality of the trial process.  Your Honours, that, overall, is the nature of this application.  Unless there is anything else, I cannot press it any further.

GAUDRON J:   Yes, thank you, Mr Wendler.  No, we need not trouble you, Mr Blackmore.

Given the decision of this Court in Wu v The Queen (1999) 199 CLR 99, and given also the fact that no objection was taken to the course adopted by the trial judge in this matter, it cannot be said that the applicant’s conviction involved any miscarriage of justice. Accordingly, special leave is refused.

AT 11.27 AM THE MATTER WAS CONCLUDED