The State of Western Australia v BA
[2011] WASC 364
•19 DECEMBER 2011
THE STATE OF WESTERN AUSTRALIA -v- BA [2011] WASC 364
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 364 | |
| Case No: | MCS:26/2011 | 19 DECEMBER 2011 | |
| Coram: | SIMMONDS J | 19/12/11 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Some penalties remitted, remainder to be enforced | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA BA AB1 MB NB PB DB AB2 SB TC SC GC AD HF KH AH NJ BL ML PM SLM SJM LM DN FN DP MP PR DGR DR AS MS KS LS RT |
Catchwords: | Juries Penalties for failure to attend on jury summons Summons to show cause why penalty should not be enforced Approach to exercise power to remit or reduce penalty |
Legislation: | Juries Act 1957 (WA) s 32G, s 32D, s 33, s 55, s 56, s 59 Juries Legislation Amendment Act 2011 (WA) s 42, s 44 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Plaintiff
AND
BA
Defendant
- Plaintiff
AND
AB1
Defendant
- Plaintiff
AND
MB
Defendant
FILE NO/S : MCS 29 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
NB
Defendant
- Plaintiff
AND
PB
Defendant
- Plaintiff
AND
DB
Defendant
- Plaintiff
AND
AB2
Defendant
(Page 3)
FILE NO/S : MCS 33 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
SB
Defendant
- Plaintiff
AND
TC
Defendant
- Plaintiff
AND
SC
Defendant
- Plaintiff
AND
GC
Defendant
(Page 4)
FILE NO/S : MCS 37 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
AD
Defendant
- Plaintiff
AND
HF
Defendant
- Plaintiff
AND
KH
Defendant
- Plaintiff
AND
AH
Defendant
(Page 5)
FILE NO/S : MCS 41 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
NJ
Defendant
- Plaintiff
AND
BL
Defendant
- Plaintiff
AND
ML
Defendant
- Plaintiff
AND
PM
Defendant
(Page 6)
FILE NO/S : MCS 45 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
SLM
Defendant
- Plaintiff
AND
SJM
Defendant
- Plaintiff
AND
LM
Defendant
- Plaintiff
AND
DN
Defendant
(Page 7)
FILE NO/S : MCS 49 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
FN
Defendant
- Plaintiff
AND
DP
Defendant
- Plaintiff
AND
MP
Defendant
- Plaintiff
AND
PR
Defendant
(Page 8)
FILE NO/S : MCS 53 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
DGR
Defendant
- Plaintiff
AND
DR
Defendant
- Plaintiff
AND
AS
Defendant
- Plaintiff
AND
MS
Defendant
(Page 9)
FILE NO/S : MCS 57 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Plaintiff
AND
KS
Defendant
- Plaintiff
AND
LS
Defendant
- Plaintiff
AND
RT
Defendant
Plaintiff
AND
RT
Defendant
(Page 10)
Catchwords:
Juries - Penalties for failure to attend on jury summons - Summons to show cause why penalty should not be enforced - Approach to exercise power to remit or reduce penalty
Legislation:
Juries Act 1957 (WA)s 32G, s 32D, s 33, s 55, s 56, s 59
Juries Legislation Amendment Act 2011 (WA) s 42, s 44
Result:
Some penalties remitted, remainder to be enforced
Category: B
Representation:
MCS 26 of 2011MCS 26 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 27 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 11)
MCS 28 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 29 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 30 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 12)
MCS 31 of 2011
Counsel:
Plaintiff : No appearance
Defendant : In person
Solicitors:
Plaintiff : No appearance
Defendant : In person
MCS 32 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 33 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 13)
MCS 34 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 35 of 2911
Counsel:
Plaintiff : No appearance
Defendant : In person
Solicitors:
Plaintiff : No appearance
Defendant : In person
MCS 36 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 14)
MCS 37 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 38 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 39 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 15)
MCS 40 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 41 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 42 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 16)
MCS 43 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 44 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 45 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 17)
MCS 46 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 47 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 48 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 18)
MCS 49 of 2011
Counsel:
Plaintiff : No appearance
Defendant : In person
Solicitors:
Plaintiff : No appearance
Defendant : In person
MCS 50 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 51 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 19)
MCS 52 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 53 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 54 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 20)
MCS 55 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 56 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 57 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
(Page 21)
MCS 58 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
MCS 59 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
(Page 22)
- SIMMONDS J:
Introduction
1 These remarks are the reasons for determinations made today, following the issuance of summonses under Juries Act 1957 (WA) s 56 (Juries Act). These summonses are to show cause why payment of fines imposed for non-attendance by jurors summoned to jury duty should not be enforced.
2 Fines were imposed under Juries Act s 55 as it stood at the date of the jurors' non-attendance. As I will indicate, Juries Act s 55 and s 56 have, since the date of the jurors' non-attendance, and indeed since the issue of the summonses to show cause, changed in respects which will likely make the following reasons of historical significance only.
3 I begin with the background to the issuance of the summonses to show cause.
Background
4 Commencing on 5 September 2011, I presided at what was to be the trial of charges against Messrs Hansen, Banbury, Indich and Thomas on indictment 165 of 2010. Mr Hansen was charged with assault with intent to rob, and aggravated home burglary, to both of which he pleaded guilty.
5 Messrs Banbury, Indich and Thomas pleaded not guilty to the only charge on the indictment that they faced, that of aggravated home burglary. The jury was then empanelled and the trial ran for four days, at the end of which all three accused were found guilty. On 5 September 2011, as part of the empanelment process, there was an exchange between the sheriff's officer and myself as follows:
THE CLERK OF ARRAIGNS: Ms Sheriff's Officer, will you deliver the precept and the panel, please? Are all the jurors present?
THE SHERIFF'S OFFICER: No, there are 53 absent.
- THE CLERK OF ARRAIGNS: Thank you.
SIMMONDS J: I understand that there are, as you have indicated, 53 jurors absent. Have you made any determinations as to the basis upon which they are absent at this point?
THE SHERIFF'S OFFICER: No.
(Page 23)
- SIMMONDS J: Very well. Would you wish me to make any pronouncements with respect to those absences or to leave the matter to be dealt with once the reasons for the absences have been determined?
THE SHERIFF'S OFFICER: It would be better to announce
SIMMONDS J: So you would wish me, in the event that the reasons for absence do not constitute a satisfactory excuse for absence, to indicate the appropriate penalty to be imposed.
THE SHERIFF'S OFFICER: Yes, sir.
SIMMONDS J: Do you have a particular penalty that you would wish the court to consider imposing?
THE SHERIFF'S OFFICER: No.
SIMMONDS J: Very well. I would accordingly, in respect of those persons who have not answered the summons for attendance and in respect of whom no satisfactory excuse is obtained - the burden with respect to that being discharged in the ordinary way under the legislation in that regard would pronounce in respect of each such person a fine of $100 to be paid forthwith by that person in respect of that non-attendance. That is sufficient for your purposes?
THE SHERIFF'S OFFICER: Yes.
SIMMONDS J: Thank you. So pronounced.
6 In that exchange, as appears from it, the sheriff's officer indicated that there were 53 jurors absent, and that subject to inquiries being made as to why they were absent, I should announce what the penalty would be for their non-attendance. I announced that that penalty should be a fine of $100. The legislative provision for fines to be imposed in circumstances like those was Juries Act s 55, as that provision was at 5 September 2011.
7 Prior to 5 September 2011, I had issued a pool precept for the trial, under what I understand to be s 32G. However, in view of the number of jurors referred to in the report of the sheriff's officer, I took that report to relate to a failure to respond to a summons to jury duty under s 32D. The Juries Act s 55, as at 5 September 2011, read in the respects relevant to me as follows:
(2) Upon consideration of a report made by a summoning officer, any court may impose summarily such fine as the court thinks fit upon -
(a) a person who, having been duly summoned to attend as a juror at the jury assembly room of a jury pool, does not
- attend in pursuance of the summons or having been called 3 times does not answer to his or her name;
8 In the event, fines of $100 each were imposed on 34 persons. Subsequently, I signed summonses to show cause dated 11 October 2011 under Juries Act s 56, addressed to those persons. The Juries Act s 56, as at 5 September 2011, read as follows:
(1) Where a fine is imposed on a juror for non-attendance at a court or jury assembly room, a summons may forthwith, or at any time afterwards, be signed and issued by the presiding judge of the court calling on the juror to show cause to the court, or to the Supreme Court if the fine has been imposed for non-attendance at a circuit court, on a day specified in the summons, why payment of the fine should not be enforced.
(2) To a summons so issued a memorandum shall be attached informing the juror that cause may be shown by affidavit transmitted by post or delivered to the registrar or judge of the court imposing the fine.
(3) The judge of the court upon reading the affidavit may if he deems fit remit or reduce the fine but in default of any order to that effect recovery of the full amount of the fine shall be enforced.
9 I have called, in these reasons, summonses under Juries Act s 56, 'summonses to show cause'. The summons to show cause in each case was in the form prescribed by the Criminal Procedure Rules 2005 (WA) r 56 and Form 17 and read as follows in material part:
On 5 September 2011 you did not attend Kalgoorlie Courthouse, Brookman Street, Kalgoorlie WA 6430 as required by a summons that had been served on you.
As a result the Court fined you $100.00.
You are required to show cause why the payment of the fine should not be enforced.
You may show cause –
• by attending personally before the Court at the hearing specified below and giving your explanation; or
• by sending the Court an affidavit containing your explanation before the date of the hearing specified below.
…
(Page 25)
- You may attend the hearing by presenting yourself to the Kalgoorlie Courthouse, Brookman Street, Kalgoorlie, from which a video link communication will be sent to the Supreme Court in Perth.
10 The hearing specified was that before me today. On the information available to me, the summons to show cause was in each case sent by registered post to the address shown on the summons to show cause for the person concerned.
11 I should note that there was no maximum set for fines under s 55. I should further note that the Law Reform Commission of Western Australia Selection, Eligibility and Exemption of Jurors: Final Report (2010), page 141 stated that the fine commonly imposed in this state for non attendance in metropolitan areas was $250, while fines up to $1,200 have been imposed in regional courts. That would indicate the fine I fixed on 5 September 2011 was very low, particularly for a regional area. I further note that the Commission recommended the replacement of s 55 with a provision that failure to comply with a summons to jury duty without reasonable excuse is a 'simple offence' punishable by a maximum fine of $2,000.
12 Effective 28 October 2011, the Juries Legislation Amendment Act 2011 (WA) s 42 replaced the form of s 55 under which I had imposed the fines in this case, with a provision which reads in material part as follows:
55. Offences by jurors and others
(1) A person who, without a reasonable excuse, does not obey a summons that has been served on the person under this Act commits an offence.
- This provision makes the failure referred to an offence.
13 I do not consider that was the effect of the previous form of s 55. I derive support for that view from Juries Act s 59, which as at 5 September 2011 provided in material part as follows:
59. Enforcement of fines
(1) A fine imposed under this Act is to be paid, and its payment may be enforced, under Part 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 as if the fine were a fine imposed for an offence.
(2) For the purposes of section 32 of the Fines, Penalties and Infringement Notices Enforcement Act 1994, a fine imposed under this Act is taken to be imposed on the day
- specified in the summons issued under section 56(1), or on the day when an order is made under section 56(3), whichever is the later.
14 In s 55(1) I note that the language used is that of making a fine imposed under the Juries Act to be treated, 'as if the fine were a fine imposed for an offence.' It is the 'as if' language which is the source of the support I referred to.
15 Finally, I note that effective 28 October 2011, the Juries Legislation Amendment Act 2011 (WA), s 42 and s 44 deleted the form of s 56 I have set out and replaced s 59 with the following, while deleting former s 59(2) altogether:
(1) A fine imposed under this Act for an act or omission that does not constitute an offence is to be paid, and its payment may be enforced, under Part 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 as if the fine were a fine imposed for an offence.
16 While I do not consider I can derive any assistance in construing Juries Act s 55 and s 56 from these changes, they, together with the other changes made by the Juries Legislation Amendment Act 2011 that I have referred to, indicate that the determinations I am called upon to make today are likely to be of historical significance only.
17 I now turn to further background of the circumstances arising subsequent to the issuance of the summonses to show cause and prior to the hearing. The persons involved might be grouped into nine categories.
18 Category 1 is for summonses to jury duty for which the person paid the fine and there is no other matter in the file, such as matter to indicate that payment was under protest, or was made in error. There are three persons in this category.
19 Category 2 is for summonses to show cause for which there is an indication of delivery of the summons to show cause, but nothing more in the file. In each case there is a signed 'delivery confirmation' from Australia Post. There are six persons in this category.
20 Category 3 is for summonses to show cause for which there are indications that the summons was returned unclaimed, after which the summons was sent again by ordinary post, with nothing more in the file. In each case there is a 'returned to sender' sticker on the envelope that contained the summons, on which the printed item 'unclaimed' is ticked,
(Page 27)
- and there is also an annotation in the file that the summons was reposted, this time by ordinary post. There are three persons in this category.
21 Category 4 is for summonses to show cause for which there is an indication that the summons was returned unclaimed, with nothing more in the file. In each case, there is a 'returned to sender' sticker on the envelope that contained the summons, on which the item 'unclaimed' is ticked. There are two persons in this category.
22 Category 5 is for summonses to show cause for which there is an indication that the summons was returned because the person had left the address or the address was unknown with nothing more in the file. In each case, there is a 'returned to sender' sticker on the envelope that contained the summons, on which the item 'left address/unknown' is ticked. There is one person in this category.
23 Category 6 is for summonses to show cause for which there is an indication that the summons was returned with the name and address crossed out on the envelope that contained the summons which was returned. There are four persons in this category.
24 Category 7 is for summonses to show cause for which there is nothing more on the file than the registered post receipt sticker. There are seven persons in this category.
25 Category 8 is for summonses to show cause for which there was an affidavit provided by the persons concerned. There are six persons in this category.
26 The final category, category 9, is for summonses to show cause for which there was another form of written communication to the court from the person concerned, either a statutory declaration or a letter. There are two persons in this category.
27 The final item of background is the hearing referred to in the summons to show cause. At the hearing, three of the persons to whom a summons to show cause had been sent appeared by video-link from the court in Kalgoorlie. No other person appeared in that way or otherwise, as in person at the court here in Perth. Those three persons' cases I will return to shortly.
28 I turn then to the approach to the Juries Act s 56 as it was on 5 September 2011 which I consider to be applicable.
(Page 28)
Approach to Juries Act s 56 as at 5 September 2011
29 There is no authority I could find on that provision, and I received no submissions from or for any of the persons concerned on it.
30 I will, in due course, refer to some indications of judicial practice going to the view of the judicial officer involved, as to some matters of concern to me.
31 I consider that I should approach s 56 on the basis that it creates a discretion to cancel the fine or to order a payment of it be handed back in whole or in part, what I understand to be meant by 'remit'; or to reduce the amount of the fine, what I understand to be meant by 'reduce'.
32 If the discretion is exercised, the fine is cancelled, or to be handed back, or is reduced accordingly. If the discretion is not exercised, recovery of the fine to the extent it is unpaid must be enforced. I further consider that that discretion is enlivened simply by the proper issuance of the summons to show cause in question, and the occurrence of the hearing referred to in that summons.
33 I consider the summonses to show cause in this case were all properly issued in view of the arrangements and their implementation for the posting of each summons that I have referred to. I also consider that the hearing each summons referred to has indeed taken place. In particular, I do not consider the proof of service on the person concerned is a further condition to the enlivening of the discretion.
34 I have, of course, noted for this purpose Juries Act s 33(1)(a)(i) and (ii) and (b) and s 33(5) which read:
(1) A summons or notice required or authorised by or under this Act to be sent, served or given to any person by a summoning officer shall be deemed to have been duly sent, served or given -
(a) if delivered personally to that person, or if left -
(i) at the address appearing in the jurors’ book in respect of that person; or
(ii) if it is in the same jury district as that address, at an address recorded by the Electoral Commissioner in respect of that person;
or
- (b) if sent by prepaid post addressed to that person at an address referred to in paragraph (a).
- …
(5) Service of a summons or notice in accordance with subsection (1)(b) shall be prima facie deemed to have been effected at the time when it would be delivered in the ordinary course of post.
35 It seems to me that the matter of whether or not the summons to show cause should be taken with the assistance of this provision to have been served is undoubtedly relevant to the exercise of the discretion.
36 However, the language of Juries Act s 56, as it was on 5 September 2011, is inapt it seems to me to have the effect that the discretion only arises if the summons to show cause may be taken to have been served. It seems to me that the language of s 56 read with s 59 indicates that the legislature intended that a determination of whether or not to remit or reduce the fine should be made at or following the hearing referred to in the summons to show cause, provided that the summons to show cause was properly issued, but without anything more.
37 I am fortified in this understanding of the enlivening of the discretion by the administrative character of the proceedings before me, which for the reasons I previously gave, I do not consider are ones arising out of an offence. I note of course that as a result of Juries Act s 59, as it was at the material time, the effect for enforcement purposes under the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA) of a fine continuing after such proceedings is the same as for a fine for an offence.
38 However, I do not consider the effect of the fine as the same for any other purpose, such as that of the juror's criminal history, if any.
39 At the same time, it would seem to me that if there were indications that at least notice of the summons to show cause, as in the case of posting it by registered post, if not the summons to show cause itself, had not been received by the person concerned before the hearing of that summons to show cause, then in the exercise of the discretion the fine might be remitted (cancelled).
40 Further, I consider there might be circumstances for which that might not be the determination, as in at least some cases where there were indications that the summons to jury duty had been received by the person concerned, they had not responded and subsequently their address had
(Page 30)
- changed before the summons to show cause was sent to them, where that summons to show cause was sent to them by post to their former address.
41 I have had the benefit of access to determinations made by another judicial officer under Juries Act s 56, where those determinations were in respect of non-attendance by jurors at a regional court. So far as I was able to determine, those determinations are consistent with the view of the enlivening of the discretion I have referred to, if not always how it should be exercised, which I have adopted.
42 I have considered whether or not the discretion is only enlivened by the provision to the court of an affidavit, or at least the provision of an affidavit or attendance at a hearing. It seems to me that the language of Juries Act s 56 is not at all clear in this regard. However, it seems to me that s 56 allows for a determination to be made on matter put before the court up to or at the hearing or indeed subsequently to it, as I will explain including by, but not limited to, an affidavit.
43 This is notwithstanding the language of the prescribed form of summons to show cause itself, which as in this case must follow that of Form 17 prescribed under the Criminal Procedure Rules. I reach this conclusion after considering Juries Act s 56(3) referring to a determination on an affidavit.
44 It is clear to me that s 56(3) cannot be understood as describing the sole circumstance, the provision of an affidavit, after the issuance of the summons to show cause, in which the discretion arises. That would be inconsistent with the provision in s 56(1) for a hearing. On that view it seems to me, that the reference to an affidavit was not intended to be exhaustive of the circumstances in which a determination might be made otherwise than on what transpires at the hearing.
45 However, the lack of an affidavit might go to the exercise of the discretion, as where the person concerned only communicated with the court by a document not sworn or witnessed in any form.
46 Finally, I consider that the Juries Act s 56 should be read with s 59 so as not to require the discretion to be exercised at the hearing. It seems to me that it should be read to allow at least for a deferral of the exercise of the discretion, such as where there are indications that the person concerned has not had a sufficient opportunity to present their case. This might be where a juror's parents in the juror's absence had sought to explain the juror's non-attendance on the summons to jury duty, and the
(Page 31)
- Judge considered that an explanation from the juror himself or herself was called for.
47 I accept that the language of the first part of s 56(3) makes that construction difficult, to the extent it allows for an explanation, as that construction in my view does, after the hearing to be made otherwise than by affidavit. However, I consider a limitation to explanation by affidavit to be unlikely to have been the legislature's intention, particularly in view of the second part of 56(3), with its reference to 'any' order, as well as my consideration of the other means by which a juror may explain their non-attendance before or at the hearing.
48 So far as I can determine, that view of the discretion is consistent with the view of the Judge of this court proceeding under Juries Act s 56, as it was at 5 September 2011, to whose determinations I had access.
49 I turn now to apply the approach to my discretion which I have described.
Application of approach
50 On that approach it seems to me I should make no order in the category 1 cases where the fine is paid before the hearing and no other matter is on the file. This is the determination in the cases of AB2, KH and LM. In these cases of course no enforcement action would appear to be called for.
51 I determine that the fines that were imposed on 5 September 2011 should not be remitted or reduced for the persons in categories 2, NJ, SLM, SJM, PR, MS and KS; 3, SB, GC and MP; 4, AB1 and MB; and 7, BA, NB, AD, HF, ML, DP and LS.
52 I consider the fine should be remitted for the persons in categories 5, PB; and 6, TC, AH, BL and RT. In respect of category 6 I consider I should take the crossing out as an indication that the person was not at the address used on the envelope containing the summons to show cause, not only then but also at the time of the summons to jury duty.
53 I have examined the affidavits for the persons in category 8 and the statutory declaration and the letter for the persons in category 9. In respect of the affidavits, five indicated that the deponent had not received the summons to jury duty, or did not recall receiving it. In two cases, FN and DGR, there was an explanation of non-receipt in terms of having
(Page 32)
- moved address at the relevant time and notified the officers in charge of the electoral roll, or having moved interstate at the relevant time.
54 FN also appeared at the hearing before me by video link from Kalgoorlie and elaborated somewhat on the terms of her affidavit. In particular she indicated that after receiving the summons to show cause, she went to her former address, which is now vacant, and could not find any paper answering the description of the summons to jury duty. I remit the fine in both cases of FN and DGR.
55 In one case, SC, the person concerned deposes that they do not recall having received the notification of jury duty, and in another (PM) the person concerned indicates they simply 'never' received the summons to jury duty. In both cases the person concerned deposes that they had responded to such a notification or summons to jury duty on another occasion at least. In the case of SC, she also appeared before me by video link from Kalgoorlie and indicated that, although she had not changed address at any relevant time, she had asked of those who were in the house with her at the time of the summons to jury duty, for whose mail she was not responsible, whether they had seen the summons to jury duty, and received a negative answer; and her own search of records indicated also that she had not received a summons to jury duty at that address.
56 In still another case the person concerned (DN) deposes that they did not receive the notification, without any indication of any other occasion on which a notification had been received. However there is also an indication for that person that they were away on 'holidays' when the notification or summons to jury duty was sent to them in circumstances as I would understand being stated by implication that they could not be expected to respond to that notification or summons. It seems to me that where there is no indication of an explanation for why this notification of or summons to jury duty was not received, and no indication of any other matter than the oath going to why it should be seen that the deponent did not receive the summons to jury duty, and no other matter of any other kind, a Judge would not be inclined to remit or reduce the fine, at least where it is of the amount involved here. However it seems to me where there is at least an indication in the affidavit beyond the oath of a matter going to why it should be seen that the deponent did not receive the summons to jury duty, the determination might well be different. I so consider in all three cases of SC, PM and DN.
57 In the final case of an affidavit having been provided, the person concerned deposes they could not attend the Kalgoorlie courthouse as
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- they were wheelchair bound and the courthouse was not accessible for people with disabilities: DR. I take this as an indication that summons to jury duty was received, but the juror considered they were not required to respond to it in the circumstances described. At the same time there is no indication that the person concerned notified or attempted to notify the court of those circumstances. In all of those circumstances in the exercise of my discretion I would not remit or reduce the fine in the case of DR.
58 In respect of the statutory declaration, the person concerned, DB, declares she did not receive a letter in the mail for jury duty, adding that she worked only half a block from the courthouse and it would have taken less than five minutes to get there to attend for jury duty. DB was the third person to whom the summons to jury duty had been addressed who appeared before me by video link from Kalgoorlie, and she elaborated somewhat on the material in the statutory declaration.
59 In particular she had indicated there had been previous instances where mail had gone astray, and that her address at the time, being near a heavily trafficked area in Kalgoorlie, was one in respect of which she considered loss of mail to persons who had been in the vicinity was the likeliest explanation. Since the summons to jury duty had been received, she had spoken with the post office and had arranged for a padlock to be placed on her mail facilities at that address. In all the circumstances in the exercise of my discretion I would remit the fine in the case of DB.
60 Finally, I note that there is a letter from one of the persons to whom the summons to jury duty is addressed, AS. This letter is witnessed by a justice of the peace. I consider that a letter should not receive the same weight as a statutory declaration, let alone an affidavit. At the same time the author of the letter not only says she never received the original letter for jury duty, but she also provides what seems to me to be a substantial account of possible explanations for this. In view of those explanations in the exercise of my discretion I would remit the fine in her case.
Conclusion
61 My conclusions then are that determinations having been made as I previously indicated, there should be orders or other action accordingly.
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