Wu v The Queen [1999] HCA 52 30 September 1999 S22/1999
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
G D Wendler for the appellant (instructed by Van Houten Solicitors and Barristers)
T L Buddin SC with P G Berman for the respondent (instructed by Director of Public Prosecutions (New South Wales))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wu v The Queen
Criminal law – Practice and procedure – Jury – Failure of juror to attend due to reported illness – Juror discharged by trial judge – Trial continued without juror – Whether trial judge erred in discharging juror – Whether judge's power or discretion miscarried in the terms in which he exercised it – Whether juror incapable of continuing to act – Whether the decision to discharge a juror and the decision to continue with fewer than 12 jurors involve separate considerations.
Jury – Criminal trial – Juror discharged for reported illness – Whether the decision to discharge a juror and the decision to continue with fewer than 12 jurors involve separate considerations.
Words and phrases – "incapable of continuing to act".
GLEESON CJ AND HAYNE J. The appellant, Mei Qin Wu, was indicted in the District Court of New South Wales on counts of kidnapping and attempted murder and two counts charged in the alternative to the counts of kidnapping and attempted murder. A jury was empanelled and the trial commenced.
On the tenth day of the hearing the trial judge discharged one of the jurors and the trial thereafter proceeded to verdict of the jury constituted by the remaining 11 jurors. The appellant contends that the trial miscarried because of these events. It is as well, therefore, to describe the course of events that preceded the juror's discharge. On the morning of the tenth day of hearing the trial judge said to counsel (in the absence of the jury):
"You have heard the news I suppose. You two might not agree with this, or one of you might not, but I am tempted to discharge her. I will hear you both fully on this.
This case has had unfortunate external problems. My two days off for medical reasons, it is just taking too long. We would be unlucky. This case, even at the worst case scenario, not hearing time but actual date, we should finish the case, at the worst, early May. We would be a bit unlucky to lose three. In determining these applications to discharge a juror, I have a pretty broad brush, have I not? The message I had from the Sheriff's Office was that she is not well today, she might not be well tomorrow. What do you say Mr Crown?"
Counsel…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Wu v The Queen [1999] HCA 52
Case
[1999] HCA 52
Decision Date
CaseChat Overview and Summary
The case of *Wu v The Queen* concerned an appeal to the High Court of Australia following the conviction of the appellant, Wu, for State offences. The central dispute revolved around the trial judge's decision to discharge a juror due to reported illness and to continue the trial with fewer than the full complement of twelve jurors.
The legal issues before the High Court were whether the trial judge erred in discharging the juror, whether the judge's power or discretion was miscarried in the manner it was exercised, and whether the decision to discharge a juror and the decision to continue with fewer than twelve jurors involved separate considerations. The appellant argued that the significance of the number twelve in criminal juries, rooted in history, constitutional considerations, and statutory provisions, was a matter of great weight that the trial judge had dismissed as irrelevant.
The High Court, in dismissing the appeal, affirmed the decision of the Court of Criminal Appeal. The Court acknowledged the historical and constitutional importance of a jury of twelve. However, it was held that the trial judge had acted in accordance with the relevant statutory provisions, which permitted the discharge of a juror found to be incapable of continuing to act. The Court found that the information before the judge regarding the juror's illness was sufficient to warrant the discharge, and that the judge's assessment of the juror's incapacity was not premature. The Court also considered that the decision to discharge a juror and the decision to continue with a reduced jury involved distinct considerations, both of which were properly addressed by the trial judge.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HAYNE J
HUGH J
KIRBY J
CALLINAN J
In Cheatle v The Queen[52], this Court held that, under s 80 of the Constitution, in respect of a trial upon indictment of an offence against a law of the Commonwealth, the Constitution precludes the application of a State law authorising a conviction by a majority jury verdict of guilty. The counts of the indictment filed against the present appellant referred only to State offences. However, the constitutional provision, as interpreted, is yet another indication of the importance of the number twelve in the context of criminal juries in Australia. It could not be suggested that, for the saving of costs, efficiency, decimal symmetry or any other cause, the jury referred to in s 80 of the Australian Constitution is anything but a jury of twelve persons. Therein, contended the appellant, lay the "magic", in the sense of importance or relevance, of the twelve jurors. History, constitutional rights and State statutory provisions combine to require that a criminal jury must initially be, and should ordinarily remain, a jury of twelve. This, therefore, was a consideration to be given great weight. It was not, she submitted, to be dismissed as irrelevant or insignificant as the judge did in these proceedings when he discharged the absent juror. [52](1993) 177 CLR 541.The decision of the Court of Criminal Appeal The opinion of the Court of Criminal Appeal was given by Abadee J[53]. His Honour recounted the facts and stated that the juror in question had been "discharged due to illness in accordance with s 22 of the [Act]"[54]. After citing the transcript passages referred to, he stated that the trial judge had "announced that he proposed to discharge the juror. He did this in the presence of the jury"[55]. Abadee J referred to the earlier decision of the Court of Criminal Appeal in R v Brownlee[56] in which Grove J had traced the history of jury trial with assistance from the Hamlyn Lectures of Sir Patrick Devlin[57]. He rejected the appellant's submission that the trial judge had acted prematurely on the basis of the suggested illness of the juror when he had "at best … vague information concerning her prognosis and … enquiries were in train to determine the likelihood of the juror's return to the trial"[58]. He dismissed the argument that the words "incapable of continuing" in s 22 of the Act meant, in the case of illness, incapable of continuing to act as a juror for the rest of the trial[59]. He then turned to the reference to the "magic" in the number twelve. He pointed out that that word had been used in Brownlee, attributed to Lord Somers in a pamphlet in 1682 cited by Evatt J in a paper for the 1936 Australian Legal Convention. Lord Somers, after recounting several times in which, in history, the number twelve had assumed significance, concluded that so it was in England in the case of petty jurors in criminal cases. A "round dozen" had been fixed to which "some magic was at one time ascribed to the number alone"[60]. [53]With whom Spigelman CJ and Ireland J agreed. See R v Mei Qin Wu, unreported, Court of Criminal Appeal (NSW), 6 October 1998.[54]R v Mei Qin Wu unreported, Court of Criminal Appeal (NSW), 6 October 1998 at 2.[55]R v Mei Qin Wu unreported, Court of Criminal Appeal (NSW), 6 October 1998 at 5.[56](1997) 41 NSWLR 139.[57]Devlin, Trial by Jury, Hamlyn Lectures, 1966.[58]R v Mei Qin Wu unreported, Court of Criminal Appeal (NSW), 6 October 1998 at 9.[59]R v Mei Qin Wu unreported, Court of Criminal Appeal (NSW), 6 October 1998 at 9.[60]Evatt, "The Jury System in Australia", (1936) 10 Australian Law Journal Supp 49 at 53.