(2007) 157 FCR 329
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
Comptroller-General of Customs
Source
Original judgment source is linked above.
Catchwords
290 FCR 239
Benasic v RMalavetas v R (1987) 77 ALR 340(2007) 157 FCR 329
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131Comptroller-General of CustomsT YoungFrancis Ivor Kelly [1982] FCA 7243 ALR 389
Republic of Croatia v Snedden [2010] HCA 14
Judgment (17 paragraphs)
[1]
195 CLR 1
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179
R v A2 (2019) 269 CLR 507
R v Cranston (No 16) [2022] NSWSC 1166
R v Leece (1995) 78 A Crim R 531
R v Olbrich (1999) 199 CLR 270
R v RB [2024] NSWSC 471
Re Lee Leontiades and F.T. Manfield Pty Limited (1980) 43 FLR 193
Re Michael Vickers v Minister of Business and Consumer Affairs; Comptroller-General of Customs; T Young; Francis Ivor Kelly [1982] FCA 72; 43 ALR 389
Republic of Croatia v Snedden [2010] HCA 14; 241 CLR 461
Russell v R (2023) 112 NSWLR 533
Sabapathy v Jetstar Airways (2021) 283 FCR 348
SafeWork NSW v Qantas Ground Services Pty Ltd (No 3) [2023] NSWDC 468
Squires v Flight Stewards Association of Australia (1982) IR 155
State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172
U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26
Waters v Public Transport Corporation (1991) 173 CLR 349
WBM v Chief Commissioner of Police [2012] VSCA 159
Texts Cited: DC Pearce and RS Geddes Statutory Interpretation in Australia 7th Ed, 2011
Category: Principal judgment
Parties: Tracey Hall, Sheriff of New South Wales (Prosecutor)
The Gilded Wombat Pty Limited (Defendant)
Representation: Counsel:
[2]
D Kell SC (Crown Advocate) with C Brain (Prosecutor)
G Diggins (Defendant)
[3]
Crown Solicitor's Office (Prosecutor)
Employsure Law (Defendant)
File Number(s): 2023/279240
Publication restriction: A non-publication, suppression and pseudonym order was made on 29 September 2023 in respect of the name of the witness known as 'Juror E' in these proceedings.
[4]
A. INTRODUCTION
This was a case about the intersection of an employer/employee contractual relationship with the employee's obligation to attend for jury service. The case concerned s 69(7) of the Jury Act 1977 (NSW) (the 'Jury Act'), about which neither the court, nor the parties, could locate any previous reported or unreported published decisions such as to assist, in particular, in interpreting the critically important, but undefined, terms used in that provision.
I was also not able to find any case authorities from other jurisdictions in which there was a statutory equivalent to s 69(7) of the Jury Act (see for example s 69 of the Jury Act 1995 (Qld), s 76 of the Juries Act 2000 (Vic), s 56 of the Juries Act 1957 (WA), s 56 of the Juries Act 2003 (Tas), s 52 of the Juries Act 1962 (NT) and s 44AA of the Juries Act 1967 (ACT)). There did not appear to be any equivalent provision in South Australia. I also considered s 32A of the Juries Act 1981 (NZ). It appears, therefore, that this case was a novel one.
The Gilded Wombat Pty Limited (the accused) is before the court charged with 3 offences under the Jury Act. The prosecutor is the person who has the function, inter alia, to provide for the effective management and administration of the jury system in accordance with the Jury Act (see s 4(1)(b) of the Sheriff Act 2005 (NSW)).
The details of the offences were described in the following way (I have omitted the particulars of each sequence as set out in the respective Court Attendance Notices, as these are set out and identified in more detail later in this judgment):
1. Sequence 1: On 1 March 2023, at Sydney, in the State of New South Wales, the accused threatened a person employed by it, namely, Juror E, with injury in her employment by reason of the fact that she was summoned to serve as a juror, contrary to s 69(7)(b) of the Jury Act;
2. Sequence 2: On 17 April 2023, at Sydney, in the State of New South Wales, the accused threatened a person employed by it, namely Juror E, with alterations of her position to her prejudice by reason of the fact that she was summoned to serve as a juror, contrary to s 69(7)(c) of the Jury Act; and
3. Sequence 3: On 17 April 2023, at Sydney, in the State of New South Wales, the accused threatened a person employed by it, namely Juror E, with dismissal by reason of the fact that she was summoned to serve as a juror, contrary to s 69(7)(a) of the Jury Act.
[5]
B. LEGISLATION
Section 69 of the Jury Act provides:
69 Unlawful dismissal of or prejudice to employees summoned for jury service
(1) An employer shall not dismiss a person in his or her employment or injure the person in his or her employment or alter his or her position to his or her prejudice by reason of the fact that the person is summoned to serve as a juror.
(2) In proceedings for an offence under subsection (1), if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge shall lie on the defendant.
(3) Where an employer is convicted by a court of an offence under subsection (1), the court may order -
(a) the employer to pay the employee a specified sum by way of reimbursement for the salary or wages lost by the employee, and
(b) that the employee be reinstated in his or her old or a similar position.
(4) An order under subsection (3) (a) shall operate as an order against the employer for the payment of money under the Civil Procedure Act 2005 and shall be enforceable as such an order under that Act.
(5) An employer shall give effect to an order of the court under subsection (3) (b).
(6) The amount of salary or wages that would have been payable to an employee in respect of any period that his or her employer fails to give effect to an order under subsection (3) (b) shall be recoverable, as a debt due to the employee by the employer, in any court of competent jurisdiction.
(7) An employer shall not threaten a person employed by the employer with -
(a) dismissal, or
(b) injury in his or her employment, or
(c) alteration of his or her position to his or her prejudice,
by reason of the fact that the person is summoned to serve as a juror.
(8) In proceedings for an offence under subsection (7), if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the threat was not actuated by the reason alleged in the charge lies on the defendant.
(9) A person can be prosecuted for and convicted of offences under both subsections (1) and (7) in relation to the same circumstances.
(10) In this section -
employee means -
(a) a full-time employee, or
(b) an employee who, as a regular casual employee (or partly as a regular casual employee and partly as a full-time or part-time employee), has worked with the employer for at least 12 months on an unbroken, regular and systematic basis (including any period of authorised leave or absence).
employer includes a person acting on behalf of the employer.
Maximum penalty - 200 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both (in the case of an individual).
[6]
C. DIRECTIONS
It is appropriate to set out the directions of law which are relevant to the determination of these charges.
The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, but subject to the application of s 69(8) of the Jury Act, which I emphasised earlier, and in respect of which the relevance will be explained later, the burden of proving the guilt of the accused is placed firmly on the prosecutor. The accused starts from the position that it is presumed innocent, and that presumption continues until the prosecution satisfies me beyond reasonable doubt that it is guilty.
What the prosecutor must prove, beyond reasonable doubt, are the ingredients or essentials facts contained in the charges. The words "beyond reasonable doubt" are ordinary, everyday words and that is how I understand them. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
No director of the accused gave evidence. I have not used that in any way against the accused, except to the extent this may be relevant to the application of s 69(8) of the Jury Act. Subject to this, the fact there was no evidence from a director of the accused does not affect the fundamental proposition which I must apply - that is, that the prosecutor must prove its guilt beyond reasonable doubt. The election to not give evidence is not an admission made by the accused and must not be used by me to fill gaps in the prosecutor's case or make up any deficiencies or defects in the prosecutor's case that might exist.
I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
[7]
D. EVIDENCE
The evidence adduced in this case comprised of several documentary exhibits and oral evidence from Juror E. Juror E was also cross examined.
What follows is a summary of the critical parts of the evidence adduced at the hearing, which was either expressly agreed between the parties, or was ultimately not in dispute.
Juror E was employed by the accused in May 2022 to work at a retail clothing store in Newtown, named 'Newtown Vintage 313'. She was initially engaged as a casual 'Senior Sales Assistant' pursuant to a contract of employment she signed on 16 May 2022.
Shortly after this, Juror E was offered a full-time "Shift Supervisor" position by letter dated 17 May 2022. She signed a further employment contract on 5 June 2022.
From the commencement of her employment, Juror E worked to a roster whereby her full-time hours were spread over weekdays and weekends across a four-week period. The roster was confirmed by letter dated 22 May 2022 and was also included in a schedule to her employment contract. Relevantly:
1. In the first 2 weeks of the four-week period, Juror E worked 3 weekdays and Saturday and Sunday;
2. In the third week of the four-week period she only worked 4 days, which were weekdays. She had the weekend off;
3. In the fourth week of the four-week period, she worked 6 days being 4 weekdays and Saturday and Sunday;
4. She therefore worked 3 out of 4 weekends in a four-week period. She confirmed in her oral evidence that the roster would repeat every 4 weeks.
Juror E's employment position changed on 2 more occasions between May 2022 and early 2023 as follows:
1. On 2 December 2022 her position changed from a "Level 3" supervisor to a "Level 4" supervisor, with an associated increase in her salary;
2. On 10 January 2023 her position was changed again from 'Shift Supervisor' to 'Senior Sales Assistant'. This was the position she held as at February 2023; and
3. There was no change to Juror E's status as a full-time employee and she continued to work to the same four-week roster.
At all relevant times Juror E reported to Ms Jodie Youster. In turn, Ms Youster reported to Ms Ruth Hannan. Ms Hannan was a director of the accused and its secretary.
On 5 June 2022, Juror E signed a document acknowledging that she had received a copy of the "Vintage @ 313 Employee Handbook". It is necessary to set out aspects of the handbook because it is referred to in later correspondence relevant to the charges.
[8]
(a) Uncontroversial Matters
I have had regard to the helpful submissions of the parties, which were in both written and oral form. The prosecutor was represented by David Kell SC (Crown Advocate), with Chelsea Brain, instructed by the Crowns Solicitor's Office. The accused was represented by Geoff Diggins, instructed by Employsure Law.
Before outlining my findings on the contested issues in this matter, I will record what I understand was not in issue between the parties:
1. First, there was no dispute between the parties that Juror E was a full-time employee of the accused and therefore, for the purposes of s 69 of the Jury Act, was the accused's "employee" at all relevant times. Based on the uncontroverted evidence adduced in these proceedings, I make such a finding; and
2. Secondly, there was also no dispute that Ms Hannan (who was a director of the accused and the person to whom Ms Youster reported) was someone who acted 'on behalf of' the accused in sending the communications to Juror E. Based on the uncontroverted evidence adduced in these proceedings, I make such a finding.
As to the contested issues, I start with sequence 1. My findings involve a combination of legal and factual determinations.
[10]
(i) What is a 'threat'?
The first, and central, issue was whether the 1 March email constituted a 'threat' within the meaning of that term in s 69(7) of the Jury Act.
As alluded to earlier, the parties agreed there was no case law directly concerning the meaning of the undefined key terms in s 69(7) of the Jury Act (including, relevantly, the term 'threat') such as to assist the court's determination of this sequence.
I had occasion in a recent decision to summarise the principles on the proper approach to statutory interpretation, which I adopt without full repetition here (see Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2024] NSWLC 2 at par [89]).
It suffices, therefore, for present purposes, to refer to R v A2 (2019) 269 CLR 507, in which Kiefel CJ and Keane J summarised the statutory construction task at pars [32]-[33] as follows:
"The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. Consideration of the context of the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve."
To the extent that there is ambiguity in the meaning of a word, the court is to prefer a construction that would promote the purpose or object underlying the Act over one which would not (see s 33 Interpretation Act 1987, and A2 at [37]).
[11]
(ii) What is 'injury' in employment?
In an industrial law context, a consistent theme has developed that 'injury' is a word of wide import (see e.g. Squires v Flight Stewards Association of Australia (1982) IR 155 at 164, Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 18, Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329 at par [139], Lamont v University of Queensland (No 2) [2020] FCA 720 at par [63], Sabapathy v Jetstar Airways (2021) 283 FCR 348 at par [70] and Employment Advocate v National Union of Workers (2000) 100 FCR 454 at par [45]). In that latter case of Employment Advocate, for example, the court said at par [45] that 'no exhaustive catalogue of possibly injurious circumstances could or should be attempted. A wide range of circumstances can be contemplated'.
In Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686, the court said at par [513] in the context of the Fair Work Act 2009 that an employee may be 'injured in his or her employment by the infliction of material harm or detriment, or by the deprivation or impairment of his or her rights'. Further, at par [514], the court said that the phrase 'prejudicial alteration' encompasses the deterioration of the advantages enjoyed by the employee.
I find the term 'injury' should be given its ordinary meaning, and consistent with the case authorities above, that it is a word of wide import. Again, as with my analysis of the meaning of 'threat', to give the term 'injury' a wide meaning is consistent with the protective function of s 69(7) of the Jury Act and its objects as explained in Cranston (No. 16).
I therefore find the ordinary meaning of 'injure' or 'injury' extends to any form of 'harm' to a juror in their employment, which would include disciplinary action, demotion, a loss of some benefit, termination, or differential treatment adverse to the juror. There is no warrant to construe the term narrowly, noting that the provision is concerned to protect jurors as they fulfil their function on a jury.
[12]
(iii) What is the meaning of the expression 'by reason of'?
Section 69(7) of the Jury Act also uses the phrase 'by reason of'. In this respect, I have again leant on case authorities in a different statutory context in the absence of a directly relevant case which has considered s 69(7) of the Jury Act. In particular, see for example MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177 at pars [137] - [139], which I have outlined below.
At par [137]: "The phrase "by reason of" has been the subject of judicial consideration where legislative provisions have used that phrase. Clearly, one must exercise considerable caution in applying the meaning given to that phrase in a statutory context differing from that in which the phrase is being construed for present purposes."
At par [138]: "In a number of cases the phrase has been held to connote a cause and effect relationship. So much was recognised by French CJ in Republic of Croatia v Snedden [2010] HCA 14; 241 CLR 461 at [22], citing earlier authorities of both the Federal Court and the Full Court of Victoria. In WBM v Chief Commissioner of Police [2012] VSCA 159, Warren CJ (Hansen JA agreeing) said at [34]: " … the phrases 'by reason of', 'because of' and 'by virtue of' have been found by Australian courts to imply a relationship of cause and effect and 'a practical application of ordinary causation principles is required' (DC Pearce and RS Geddes Statutory Interpretation in Australia 7th Ed, 2011) [12.9]."
At par [139]: "The nature of the "cause and effect" relationship was considered by Morling J in Re Michael Vickers v Minister of Business and Consumer Affairs; Comptroller-General of Customs; T Young; Francis Ivor Kelly [1982] FCA 72; 43 ALR 389 where at 407 his Honour referred to earlier cases in which the phrase "by reason of" had been interpreted. Consistent with the determination in those cases he identified the relationship required by the phrase as involving cause and effect. He also expressed agreement in an earlier decision by Bray CJ in Main Electrical Pty Ltd v Civil and Civic Pty Ltd (1978) 19 SASR 34 to the effect that the relationship of cause and effect need not be direct".
In Waters v Public Transport Corporation (1991) 173 CLR 349, being a case about the interpretation of the Equal Opportunity Act 1984 (Vic) which prohibited discrimination against a person 'by reason of' their private life, McHugh J said at 401 that 'by reason of' required "a causal connection between the act of the discriminator… and the status of the private life of the person" and that the "status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did".
[13]
(c) Contested Issues - Factual Findings
With respect to the 1 March email, and considering my discussion of the applicable legal principles, I find as follows.
The 1 March 2023 email contained a 'threat'. It did not state that there may have been a breach of company policy, or that there was an allegation being investigated. Instead, the 1 March email positively asserted that there had been breaches (an unauthorised absence and a failure to follow reasonable management instructions) against a background of quite direct correspondence from Ms Hannan instructing Juror E to attend for rostered work on weekends. In other words, the language of the email was in the nature of a conclusion having been made that there had been breaches of company policy.
The 1 March email did not use conditional language, such as that considered in SafeWork NSW v Qantas Ground Services Pty Ltd (No 3) [2023] NSWDC 468. In that case, Russell DCJ did not consider that the subject letter constituted a threat. His Honour noted (at par [328]) the use, in the letter, of conditional words such as "if", "may" and "could" - and said that "All that was said was that if the allegations were substantiated, there might be disciplinary action which might include a warning or even termination of employment".
Read in full, and in context, the 1 March email plainly conveyed an intention to take action ("address these breaches"), adverse to Juror E, when she returned to work. The use of the words "reserves the right", in the 1 March email, does not prevent it from constituting a threat. This is so having regard to the combined force of the following factors:
1. First, a broad approach to the types of conduct that can constitute a "threat" is warranted, in line with the purpose of protecting jurors against pressure and interference from employers while they are, or because they are, serving on a jury;
2. Secondly, the language of the email, considered in context, suggests to the reasonable recipient that the breaches will be addressed on Juror E's "return to work". In other words, the 'reservations of rights' would be taken to convey only a temporal limitation recognising that Juror E was then (at the time the email was sent) presently empanelled in the Supreme Court for a murder trial and thus could not be immediately dealt with by the accused. I therefore do not accept that the language of the threat was simply an attempt to protect the accused's position to avoid any suggestion of waiver or acquiescence concerning Juror E's impugned conduct. Ms Hannam was more than just 'unhappy' about Juror E's conduct - she had decided that there had been breaches of company policy and had an intention to pursue remedies in response to those breaches; and
3. Thirdly, and in any event, the fact that a communication includes language of "reserving" of "rights" does not prevent it from constituting a "threat", for statutory purposes. Much depends on context and the particular form of the communication. In this respect, I also note that in U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26 the Federal Court said that the language of 'reservation of rights' can constitute a "threat" (albeit in the context of s 128 of the Patents Act 1990);
4. Fourthly, I also do not consider it is appropriate to interpret the 1 March email with a 'fine tooth comb' attuned to legal niceties. What the email conveys is not what a lawyer, or particularly an employment lawyer, would interpret the email as conveying, whereby some legal meaning is given to each word or phrase. The 1 March email was received by a lay person. It is important therefore, as I said earlier, to consider only how the reasonable and objective recipient of the email would interpret it. Most people are not lawyers. It is important to approach this matter through that lens.
[14]
(d) Fate of Sequence 3
As I said earlier, Sequence 3 was a backup charge to Sequence 2. I have found Sequence 2 proved. Consequently, Sequence 3 is withdrawn and dismissed.
[15]
(e) No Prima Facie Case Submission
It was also for all these reasons that I found a prima facie case in respect of each of the charges and therefore dismissed the accused's 'first limb' submission at the close of the prosecution case.
[16]
F. VERDICTS
Accordingly, for the foregoing reasons, I enter the following verdicts:
1. On sequence 1, 'guilty'; and
2. On sequence 2, 'guilty'.
Sequence 3, as a backup charge to Sequence 2, is withdrawn and therefore dismissed.
[17]
Amendments
31 October 2024 - Paragraph [125] - inserted "(that Juror E was summoned)" to second sentence.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 October 2024
Sequence 3 was a 'backup' charge to Sequence 2, such that if Sequence 2 was proved, Sequence 3 would be withdrawn and dismissed.
The accused entered pleas of not guilty, and the matter proceeded to a contested hearing on 11 July 2024 and 21 August 2024.
In this judgment, I record my verdicts and the reasons for reaching those verdicts.
The elements of each offence were also set out in a document marked as 'MFI#A' in the proceedings, and they are as follows:
1. Sequence 1: to establish the offence, it is necessary for the court to be satisfied that:
1. Juror E was an employee of the accused;
2. Juror E was summoned to serve as a juror;
3. The accused, as Juror E's employer, threatened Juror E;
4. The threat was of injury in Juror E's employment;
5. The threat was made by reason of the fact that Juror E was summoned to serve as a juror.
1. Sequence 2: to establish the offence, it is necessary for the court to be satisfied that:
1. Juror E was an employee of the accused;
2. Juror E was summoned to serve as a juror;
3. The accused, as Juror E's employer, threatened Juror E;
4. The threat was of alteration of Juror E's position to her prejudice;
5. The threat was made by reason of the fact that Juror E was summoned to serve as a juror.
1. Sequence 3: to establish the offence, it is necessary for the court to be satisfied of the matters the subject of sequence 2, but instead is satisfied that the threat was a threat of 'dismissal' rather than 'alteration' of Juror E's position to her prejudice.
At this juncture, I wish to emphasise 2 matters:
1. First, the language of s 69(7) of the Jury Act can be contrasted with s 69(1) which makes it an offence to 'actually' dismiss an employee, alter their position, or injure them in their employment by reason of the fact that they were summoned to serve as a juror. Section 69(7) of the Jury Act, however, does not require proof of any actual adverse action toward the relevant employee - it is sufficient if there is a threat of the relevant form of action; and
2. Secondly, s 69(8) of the Jury Act is relevant to the determination of these charges. The effect of s 69(8) of the Jury Act is to reverse the onus of proof in the following limited way: the accused must establish, on the balance of probabilities, that the 'threat' was not made 'by reason of the fact that Juror E was summoned to serve as a juror' if the court is satisfied that all the other elements are proven (as to the standard of proof where there is an onus on an accused, see for example Re Lee Leontiades and F.T. Manfield Pty Limited (1980) 43 FLR 193; and see R v Olbrich (1999) 199 CLR 270). I will return to this later.
Section 69A of the Jury Act was also referenced in the parties' submissions. It provides:
69A Other offences relating to employment conditions of jurors
(1) An employer must not require an employee to use any leave to which the employee is entitled for the purpose of complying with a summons to serve as a juror.
(2) Subsection (1) does not prevent an employee from requesting to use any leave to which he or she is entitled for the purpose of complying with a summons to serve as a juror, or an employer from granting any such request.
(3) An employer must not require an employee -
(a) to carry out any work on any day on which the employee is serving as a juror, or
(b) to undertake any additional hours of work to compensate for work time lost by the employee while serving as a juror.
(4) Subsection (3) does not prevent an employer from requiring an employee who is empanelled as a juror to carry out work during normal working hours on any day if the jury of which the employee is a member is not required to attend at the relevant court or coronial inquest on that day.
(5) In this section -
employee means -
(a) a full-time employee, or
(b) an employee who, as a regular casual employee (or partly as a regular casual employee and partly as a full-time or part-time employee), has worked with the employer for at least 12 months on an unbroken, regular and systematic basis (including any period of authorised leave or absence).
employer includes a person acting on behalf of the employer.
normal working hours means the period between 9 am and 6 pm on any day that is not a Saturday, Sunday or public holiday.
Maximum penalty - 20 penalty units.
The handbook stated, under the heading of "Lateness/Absenteeism", that "all absences due to illness must be notified in accordance with the sickness reporting procedures set out in this Employee Handbook" and that "Lateness or unauthorised absence may result in disciplinary action and/or loss of pay".
The handbook made provision for annual leave and required employees to give 4 weeks' notice of an intention to take that form of leave. Under the heading of "Entitlements", the handbook stated that employees were entitled to paid personal leave and could accrue up to 10 days of paid personal leave for each year of continuous service and that:
"You are entitled to take personal leave:
because you are not fit for work due to a personal illness or personal injury affecting you, or
to provide care or support to a member of your immediate family, or a member of your household who requires your care and support because of:
a personal illness or injury affecting the member or
a sudden or unexpected emergency affecting the member. …"
Under the heading of "Notification of Personal Leave", the handbook stated that:
"You must notify your manager by telephone on the first day of incapacity or at the earliest possible opportunity and, in any case, by no later than two hours before your usual start time. Text messages and e-mails are not an acceptable method of notification. Other than in exceptional circumstances notification should be made personally to your manager. You should try to give an indication of your expected return date and notify the Employer as soon as possible if this date changes. The notification procedures should be followed on each day of absence, unless you are covered by a doctor's medical certificate. If your incapacity extends to more than seven days you are required to notify us of your continued incapacity once a week thereafter, unless otherwise agreed."
The handbook further stated, under the heading "Evidence", that a medical certificate from a registered health practitioner, or a statutory declaration where that was not "reasonably practical", was "required for all personal leave, unless otherwise agreed by the Employer in specific circumstances".
Under the heading "General", within the "Personal Leave" section, the handbook stated that:
"…submission of a medical certificate may not always be regarded as sufficient justification for accepting your absence. Sickness is just one of a number of reasons for absence and although it is understandable that if you are sick you may need time off, continual or repeated absence through sickness may not be acceptable to the Employer. In deciding whether your absence is acceptable, the Employer will take into account the reasons for your absences and the extent of them, including any absence caused by sickness/injury. We cannot operate with an excessive level of absence as all absence, for whatever reason, reduces the employer's ability to operate successfully. The Employer will not tolerate any non-genuine absences, and any such instances will result in disciplinary action being taken. If considered necessary, we reserve the right to ask your permission to contact your doctor and/or for you to be independently medically examined".
The handbook also made provision for parental leave, compassionate leave, long service leave and family and domestic violence leave.
Clause 6.4, headed "Community Service Leave", stated:
"You are entitled to community service leave in certain circumstances. Community service leave is for eligible community service activities such as SES and volunteer fire fighting. Community service is generally unpaid. Your entitlement for payment for Jury Duty will depend on the relevant state and federal legislation."
This was the only reference in the handbook to serving on a jury.
Under the heading "Personal Circumstance/Health Issues", the handbook provided in part:
"…There may also be personal circumstances which prevent you from attending work, either for a prolonged period or for frequent short absences. Under these circumstances, we will need to know when we can expect your attendance record to reach an acceptable level. This may again mean asking your own doctor for a medical report of by making whatever investigations are appropriate in the circumstances. When we have obtained as much information as possible regarding your condition, and after consultation with you, a decision will be made about your future employment with the employer in your current role or, where circumstances permit, in a more suitable role".
The handbook also contained a section entitled "Disciplinary" which referred to "disciplinary hearings" but did not specify when they might occur. Under the heading "Disciplinary Rules", the document stated that it was "not practicable to specify all disciplinary rules or offences that may result in disciplinary action, as they may vary depending on the nature of the work". However, it gave some specific examples of "unsatisfactory conduct" and referred to the potential for breaches of specific conditions, procedures and practices in the Employee Handbook to "result in this procedure being used to deal with such matters".
In the handbook, "Persistent absenteeism and/or lateness" was listed as an example of "unsatisfactory conduct and misconduct" making an employee "liable to disciplinary action". The handbook stated that "Unsatisfactory conduct" would result in a formal verbal warning on the first occasion, followed by a written warning on the second occasion, a final written warning on the third occasion and termination on the fourth occasion. It therefore contemplated a gradated system of escalating warnings leading to termination, but also stated that the employer had a discretion to vary the procedures, and that the steps could be "by-passed" in serious cases.
On 12 January 2023, Juror E notified Ms Youster that she was required to attend the Downing Centre for jury duty on 9 February 2023. She sent Ms Youster a photograph, via a message on WhatsApp messenger, of a document directing her to attend the Downing Centre. That document stated that Juror E had been "randomly selected to attend for jury duty under the Jury Act (NSW) 1977" and that she was "required to attend".
Juror E gave evidence that she attended court on 9 February 2023. On that date, she told Ms Youster that they (the jury panel) had been told they were no longer required and to return on Monday. Juror E sent Ms Youster a photograph of a letter stating that she was required to return to Court on Monday, 13 February 2023. Ms Youster thanked Juror E for letting her know.
On 13 February 2023, Juror E returned to court as directed and was empanelled as a juror in a Supreme Court murder trial (R v Daniel Haile) presided over by Harrison J (as His Honour then was).
At 1.23pm on the same date, Juror E notified Ms Youster, via WhatsApp messenger, that she had been chosen for the jury. Juror E told Ms Youster that the "expected time" was 8 weeks and wrote: "I'm not sure if I will have to speak to Ruth regarding the pay the court officers have told me for the first ten days I receive 106.30 and my employer has to make up the rest of my expected salary".
Ms Youster responded and said: "Thanks for letting me know. I will let ruth know. Angela, the accountant will let me know what she needs from you". Later that day, Juror E sent Ms Youster a PDF file called "certificate". That document was a "Certificate of Attendance" signed by the Sheriff of NSW dated 13 February 2023 which stated: "This certificate provides details of your attendance at King St Court to undertake jury service as required under the Jury Act 1977."
The following day (14 February 2023) Ms Youster wrote to Juror E and said "Hey [redacted]! You would have received an email from payroll re your jury duty service" and asked her if she had a "time table". Juror E responded: "it's just Monday-Friday 930-430ish different each day".
On 14 February 2023, Ms Hannan, using the email address "payroll@frenchfripe.com", wrote to Juror E about her jury duty and pay. Ms Hannan requested a copy of the summons and a receipt for payment from the Court "for the leave to be approved, and for top up payments to be processed". Ms Youster was copied into the email. Ms Hannan further wrote:
"We will expect to see you at work for rostered shifts that do not coincide with your Jury duty, but I believe it will be most efficient for you and Jodie to coordinate about your schedule of attendance at Court, therefore I don't expect to be directly involved in that side of the process".
The following day (15 February 2023), Justice Harrison provided Juror E with a letter to provide to her employer (the accused), which relevantly stated:
"I am informed that you have requested or instructed this juror, who is your employee, that she must work on weekends in order to make up for the time lost during her performance of duties as a juror in the trial. She has indicated to me that she will be unable to discharge her duties as a juror if she is also required to work on weekends during the trial. Jury duty is an important and difficult public service and jurors are given specific protections by the Jury Act, 1977. The Courts recognise that significant disruption may be caused not only to jurors personally but to their families and employers. Employers in particular are requested and expected to make allowance for the understandable inconvenience that they may experience by the absence of an employee serving on a jury".
Juror E gave evidence that this letter was provided in response to a jury note from her. On 16 February 2023, Juror E sent the letter by email to Ms Hannan. Ms Youster was copied into the email. Juror E wrote, relevantly:
"Unfortunately, I will be unable to attend the weekend shifts that I would otherwise regularly work as I and the court officer feel it will hinder my ability to serve properly as a juror if I am to have two days of rest a month for the duration. This trial is already unfortunately very emotionally taxing. I understand this is not ideal and I apologise for the inconvenience it creates. The judge has supplied me with a letter that I have also attached."
On 23 February 2023, Ms Hannan responded and said, relevantly:
"Thank you for your email and for providing the certificates of attendance, and correspondence in relation to payments for attending jury duty. As discussed, we have not asked that you complete 'make up' time. The weekend shifts in question form part of your ordinary hours and we have not asked you to 'make up' the time you attend jury duty. As such you are directed to attend your rostered shifts that fall on a Saturday or Sunday. If you are unwell to attend you may go through the Company's usual procedures regarding personal leave".
On 27 February 2023, Justice Harrison wrote a further letter stating in part:
"It has been drawn to my attention that you are effectively 'insisting' that your employee, who is serving as a juror in a criminal trial before me, should work for you on the weekend as she usually does. The juror has indicated that she is unable to perform her role as a conscientious and attentive juror and also work for you. As I trust you will appreciate, her role as a juror must take precedence and it is not permissible for you to require her to work if she says that she unable to do so."
On 27 February 2023, Juror E forwarded to Ms Hannan, by email, that letter from Justice Harrison and indicated that she believed she would be "unable to be of assistance at either the shop or in court should I do both" and again apologised.
When giving evidence at the hearing on 11 July 2024, Juror E said:
"The trial was very stressful and confronting in some parts. The - my job at that point was quite stressful as well, and I felt I would not be able to do both at the same time in any way, as it would be much too much for me" and "I was very tired due to the court case and the things that, that we were having to look at every day. I knew that I wouldn't be any good at, at the job because I would just be too tired had I worked those weekends and not had any time to decompress, and we had to - there was a lot of information in the trial that I was a part of and I believed I needed to give all of my energy to that, otherwise I wouldn't be able to do a good job", and further (as to why she was not able to work rostered weekend shifts during the trial): "I felt it would be much too taxing on me and I wouldn't be able to perform my jury duty to the best of my ability".
Juror E was cross examined on this evidence and, in particular, as to the travel times and distance between her residence and the Supreme Court and the fact that there were times when the trial finished early.
On 1 March 2023, Ms Hannan sent a further email to Juror E about her non-attendance at work (the 1 March email) which included the following:
"As a full-time employee you have an obligation to perform your contracted hours. While the Company can appreciate the time spent providing jury service may be taxing, you have not sought to vary your hours or follow Company policy or procedure with regards to your continued absence for your weekend shifts. The Company considers failure to fulfil your ordinary hours on non-jury duty days as unauthorised absence and a failure to follow reasonable management instruction. The Company reserves the right to address these breaches on your return to work."
The 1 March email is the subject of Sequence 1.
On 15 April 2023, Juror E returned to work at Newtown Vintage 313.
On 17 April 2023, she was given a letter, on 'Newtown Vintage 313' letterhead, of the same date (the 17 April letter). The letter was headed "Invitation to disciplinary meeting" and included the following:
"The purpose of this letter is to formally advise you that an allegation of misconduct has recently been brought to our attention.
On 25 and 26 February 2023, 4, 5, 11, 12, 25 and 26 March 2023, and 1, 2, 8 and 9 April 2023 it is alleged that you failed to attend for your rostered shifts and failed to notify the Company of your absence via telephone one hour before your usual start time. We understand that you were absent 13-16 February 2023, 20-23 February 2023, 27 February - 1 March 2023, 6-8 March 2023, 13-16 March 2023, 20-23 March 2023, 27-29 March 2023, 3-5 April 2023, and 10-13 April 2023 due to Jury service however, you were rostered for your usual Saturday Sunday days of work which was not time spent attending Jury service. This is in breach of your employment obligations to comply with the Company's policies and procedures, specifically the Notification of Personal Leave Policy of the Employee Handbook. Such conduct has the potential to adversely impact on the Company's workforce planning and operational efficiency.
If proven, this misconduct may result in a written warning, a final written warning or the termination of your employment.
Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to this allegation ……
You are expected to make every effort to attend this meeting and are placed on notice that the Company reserves the right to make a determination in your absence if you fail to attend this meeting for whatever reason…"
The letter was signed by Ms Hannan. The meeting was scheduled to take place on 22 April 2023.
Juror E gave evidence that she attended the meeting and resigned the following day as she felt there had been a loss of trust between her and the accused. Juror E felt that she had been punished for something she should not have been punished for.
The 17 April letter is the subject of Sequences 2 and 3.
The accused submitted at the close of the prosecution case that there was no prima facie case (see Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 at pars [47] - [49]). Contrary to the accused's submissions, I found a prima facie case in respect of each of the 3 sequences, and said I would deliver my reasons at a later time. This judgment essentially contains those reasons.
Consequent on my finding of a prima facie case, the accused tendered the 'NSW Law Reform Commission Report 117 - Jury Selection dated September 2007.' I address this evidence below. The accused did not adduce any other evidence.
I now turn to my findings, based on the evidence and submissions of the parties.
The closest direct assistance on the meaning of the key terms in s 69(7) of the Jury Act are the observations of Payne JA in R v Cranston (No 16) [2022] NSWSC 1166, in which at par [8] his Honour said: "The Jury Act contains provisions aimed at protecting the employment of a person who is summoned to serve as a juror. The purpose of such protections is to mitigate against possible interference with the administration of justice by an employer taking action prejudicial to the rights of an employee serving as a juror: Attorney-General v Butterworth [1963] 1 QB 696; New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 1947 at 1124".
At par [9] the court said: "the form of the Jury Act protections is to prohibit certain conduct by an employer in relation to an employee; the Act does not in terms impose any obligations on the employer. The key protective provision is s 69 of the Jury Act, which relevantly provides…":
At par [17] the court said: "both s 69 of the Jury Act and s 111 of the Fair Work Act 2009 are said to be aimed at protecting an employee summoned for jury service from suffering any prejudice in his or her employment or other financial burden by reason of that jury service".
What is clear is that the offence provision in s 69(7) of the Jury Act is intended to play an important role in the administration of justice. That purpose should be borne in mind in construing the scope of a 'threat' in this specific legislative context, and what might constitute an 'injury' in a person's employment (or an "alteration" in their position to their prejudice - see sequences 2 and 3). The way in which those terms may have been construed in other legislative contexts is not determinative.
In this respect, in submissions I was taken to a series of Federal Court first instance and Full Court decisions. These cases concerned a different statutory context to s 69(7) of the Jury Act, and accordingly, although they provide some guidance in the present matter, they are not binding as such.
In interpreting s 69 of the Jury Act, I nevertheless find what I consider to be the most helpful assistance from the observations in Australian Building and Construction Commissioner v Molina [2020] FCAFC 97, and in particular at par [24]: "The expression of an intention to do harm is a threat: see the review of the authorities by Bromberg J in Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 at [221]‑[226] (an analysis the correctness of which was not in issue on appeal: State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172). A threat is conduct which, viewed objectively, will induce a belief that it will be carried into effect: R v Leece (1995) 78 A Crim R 531 (a case concerned with a threat to kill). The threat may be implied; as in the case of a statement such as 'I know where you live'. Further, the person making the threat may have no intention of carrying it into effect yet the words may induce a belief that the threatened conduct will occur and indeed the words may be communicated for that purpose. By proscribing a threat as a separate contravention, the legislature is manifesting an intention to proscribe conduct irrespective of whether it is carried into effect, or subjectively intended to be carried into effect by the person making the threat. A hollow threat may be as effective as a threat made with the intention of carrying it out: CFMEU v State of Victoria at [226]".
What the court said in Molina at par [24] accords with my view of the meaning of the word 'threat' in the context of s 69(7) of the Jury Act. That is because the meaning gives proper effect to the objects of the Jury Act as explained in R v Cranston (No 16).
In further support of these findings as to the meaning of the word 'threat', in Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239, the Full Court said at par [157] that a communication which communicated an 'intent to take adverse action' or a 'warning of an intention to take adverse action for the purpose of intimidating a person which, viewed objectively, will induce a belief that it will be carried into effect' is a threat.
Further, unlike other extrinsic materials, Second Reading speeches are 'important and weighty sources of information that invite the available implication that these materials are more reflective of government intent' (R v RB [2024] NSWSC 471 at [37], citing Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168 at [116]: "…the Second Reading Speech makes plain that the "mischief" to which the Bill was directed"). Sub-sections (7) - (10) of s 69 of the Jury Act were introduced by the Courts Legislation Amendment Act 1998. In the Second Reading Speech in the Legislative Council (where the Bill was introduced), the Legislative Council Hansard on 21 May 1998, 5013, reveals the Treasurer described the rationale for s 69(7) as follows: "This proposal will help to ensure that the proper administration of justice is not thwarted". Again, these observations support a wide view of the meaning of the term 'threat', consistent with the protective function of s 69(7) of the Jury Act and the explanation of the objects of that provision as set out in R v Cranston (No 16).
The fact that a provision creates an offence does not of itself warrant a narrow reading of the provision. The starting point is that an offence provision is to be construed in the same way as any other provision (A2 at [52]). Where, however, there is a "real ambiguity" in the statute which "persists after the application of the ordinary rules of construction", it is to be resolved in favour of an accused (A2 at [52]). Where the purpose of the offence provision is protective, as it is here, a broad construction may be warranted (A2 at [55]).
Submissions were made about the utility of dictionary definitions of the words 'threat' and 'threaten'. The Oxford English Dictionary defines 'threaten' as 'to state one's intention to take hostile action against (someone) in retribution for something done or not done', and the Macquarie Dictionary defines 'threat' as a 'declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace'. The Court of Appeal, however, said in House of Peace Pty Ltd & anor v Bankstown City Council (2000) 106 LGERA 440; [2000] NSWCA 44 at par [28]: "A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose".
Accordingly, I find it preferable to place more reliance on case authorities, albeit they were addressing a different statutory context, which have considered the same terms in s 69(7) of the Jury Act, than to rely on definitions found in dictionaries.
Consistent with Molina, and like intimidation offences under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, for example, there is no positive need to prove the employee felt 'actually threatened' (see by analogy s 13(4) of that Act, which provides: 'For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm'). That is because the offence provision in s 69(7) of the Jury Act proscribes the employer's conduct only, and does not involve any inquiry into the employee's state of mind. Consistent with what was stated in Molina, I find the inquiry under s 69(7) of the Jury Act is a wholly objective one.
At this juncture, I note that at the hearing, evidence was adduced on the voir dire about Juror E's state of mind and her interpretation of the 1 March email containing the alleged threat to her employment. I find this evidence is not admissible, because under s 55 of the Evidence Act 1995, the evidence could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. That is, the evidence is not relevant on the basis that the subjective beliefs of, or an interpretation proffered by, the employee relating to the correspondence said to contain the threat(s) will not and cannot influence the outcome of a charge against s 69(7) of the Jury Act. The test is wholly objective.
The prosecutor submitted Juror E's state of mind was relevant, and relied on the decision of the Full Court of the Federal Court in Benasic v R; Malavetas v R (1987) 77 ALR 340; [1987] FCA 743 in which observations were made that even though the test as to the characterisation of the alleged threat was an objective test, evidence given by the victim as to their state of mind is admissible and may assist the tribunal of fact (see pp 341 - 342, per Fox J and at p 344 per Pincus and Kelly JJ).
In my view, there would, in fact, be a danger in finding that evidence of this nature was admissible because it would involve an acceptance of at least the potential for the subjective beliefs of the employee to inform whether an offence had been committed. If an employee were to be cross examined and admitted, for example, they did not take a communication from their employer as involving a 'threat' to their employment, but in circumstances where objectively speaking, the communication was a threat, that sort of evidence might be treated as potentially adversely affecting whether the charge had been proved. It seems to me that in such a situation, a prosecutor would seek to disavow the witness' answer. I do not consider it to be an adequate answer to this concern to say that evidence of this nature might simply be regarded as part of the 'res gestae', or contextual in nature.
I repeat that evidence should only be admitted under s 55 of the Evidence Act 1995 if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Whether a 'threat' was made is solely a matter for the court, viewed objectively, and that the juror's subjective beliefs or understanding is also not relevant to provide any form of context. Such evidence would have the real capacity to divert attention away from the correct task, which is to objectively determine if a communication constitutes a 'threat'.
This is unlike, for example, proceedings for an offence against s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, which I referred to earlier, because in s 7(1)(b) of that Act, 'intimidation' is defined to include an approach made to the person by any means that causes the person to fear for his or her safety. In this way, it is understandable that the personal, subjective fears of a person may be relevant in proof of an offence against s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, notwithstanding s 13(4) of that Act. There is no equivalent provision in s 69(7) of the Jury Act to s 7(1)(b) of the Crimes (Domestic and Personal Violence) Act 2007.
I therefore consider the correct approach is to rule the evidence of Juror E adduced on the voir dire as inadmissible, for the reasons I have given.
My findings on the evidence adduced on the voir dire, however, does not affect my verdicts, as these reasons will make clear.
Informed by these principles, I find it would be antithetical to the objects of the Jury Act if an employer could escape liability under s 69 by asserting and establishing that there was more than one motivating reason for the relevant threat, but in circumstances where one of the reasons was due to an employee's jury service. I consider that s 69(7) of the Jury Act, properly construed, seeks to deter conduct on the part of an employer which involves any direct or indirect link, that is, where a causal connection is established, between a relevant threat and the employee's jury service obligations.
I find that if the employee's jury service obligations are not the sole reason for a threat, this may perhaps reduce the objective seriousness of an offence, but I find that s 69(7) of the Jury Act is engaged if a reason for the threat is jury service related, that is, where a causal connection between the threat and jury service obligations is established.
In its submissions, the accused also sought to rely on s 69A of the Jury Act. I earlier set out that provision in full. In this respect, the accused argued that it was justified in asserting that Juror E was required to attend her weekend shifts, and therefore that the threats were not made 'by reason of' her being summoned to serve on a jury, but by reason only of her failure to attend on weekends when there was no reason that she could not do so, or could not be required at law to do so.
The central plank of the argument was that by the introduction of s 69A of the Jury Act (at which time s 69 was left relevantly unaltered), the scope of what was prohibited in relation to employers requiring their employees performing jury service to work outside court sitting hours causing those employees to become tired was what s 69A(3) prohibits.
Section 69A of the Jury Act contains different offences from s 69. It is an offence under s 69A(1) of the Jury Act for an employer to require an employee to use leave in order to comply with a summons to serve as a juror. It is an offence under s 69A(3) of the Jury Act to require an employee to carry out work on a day that the employee is serving as a juror or to undertake additional hours to make up for time spent serving on a jury. Section 69A(4) of the Jury Act provides that the offence in subs (3) "does not prevent an employer from requiring an employee who is empanelled as a juror to carry out work during normal working hours on any day if the jury of which the employee is a member is not required to attend at the relevant court or coronial inquest on that date".
I find s 69A(4) of the Jury Act has no meaningful relevance in construing s 69(7) or assessing the accused's conduct. Section 69A(4) of the Jury Act provides a limited exception to s 69A(3), and does not provide any defence to conduct infringing s 69(7). Importantly, 'normal working hours' is defined in s 69A(5) of the Jury Act as 'the period between 9am and 6pm on any day that is not a Saturday, Sunday or public holiday'. The exception in s 69A(3) of the Jury Act, therefore, is limited to requests for a juror to work on a weekday.
I find the intention of the exception is to ensure an employer cannot be penalised for requesting that an employee work on a weekday where the jury is not sitting. In a typical full-time work arrangement where an employee works Monday to Friday, such a request would be understandable and would not be expected to have the effect of unduly burdening the juror. Section 69A(4) of the Jury Act does not authorise a request to work on weekends, nor a request that would have the effect of requiring a juror to serve on a jury full-time during the week and also work on the weekends, as was the case here. Nothing in s 69A of the Jury Act rendered that request lawful or reasonable.
For completeness, I find that s 69A of the Jury Act does not inform the interpretation of s 69 and does not 'cover the field' in respect of conduct it penalises, nor does it 'cover the field' on the topic of 'juror tiredness'. An Act should be construed in the form in which it stands following any amendment. An amending Act may have the effect of altering the meaning which other provisions of the Act had before the amendment (see Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463 (Brennan CJ, Dawson and Toohey JJ), 479 (McHugh and Gummow JJ); see also Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [25]). Although that principle is not contained in the Interpretation Act 1987 (NSW), it is a principle of the common law. It is, however, one thing to construe an Act as a whole, subsequent to any amendment, but it is another to have regard to extrinsic material for an amending Act when construing a pre-existing provision (see Russell v R (2023) 112 NSWLR 533 at [28]).
Section 69A of the Jury Act was introduced by the Jury Amendment Act 2010 (NSW). The amendments were introduced to implement recommendations made by the NSW Law Reform Commission in its 2007 report entitled 'Jury Selection'. Under recommendation 69, it was recommended that, rather than a new offence be created, s 69 of the Jury Act be amended to "avoid the uncertainty and possible occasion for friction between an employer and employee" and "make it clear that requiring an employee to use annual leave or other leave entitlements while serving as a juror amounts to a prejudicial alteration of his or her position".
I find this suggests that the recommendations ultimately implemented were intended to expand, rather than restrict, the types of conduct by employers that could be captured by s 69 of the Jury Act. Nothing in the 2007 report suggested that the policy recommendation was to limit the circumstances in which the protections in s 69 of the Jury Act could be provided, or that the new offence in s 69A should 'cover the field' of 'juror tiredness'.
I therefore find that any reliance on the statutory entitlements of employees under, for example, the Fair Work Act 2009 (Cth) is misplaced. References to such legislation are a red herring because I consider that whether an employer infringes s 69(7) of the Jury Act should be determined within the bounds set by that provision, construed in the wider context of that Act and its objects. There is no warrant to consider federal workplace relations legislation in determining the proper interpretation of provisions of the Jury Act.
In summary I find as follows:
1. Although ss 69 and 69A of the Jury Act should be read together, there is no basis to conclude that, by introducing s 69A, it was intended to limit the scope of s 69. No intention to do so is apparent from the text of the provision or the statements of intention expressed in the extrinsic material;
2. Sections 69 and 69A of the Jury Act can be given harmonious operation, as part of the overall scheme of the Jury Act, without reading down s 69 to avoid any potential overlap with s 69A;
3. The fact there might be some overlap in broad subject matter (namely, 'juror tiredness'), does not in itself suggest s 69A of the Jury Act was intended to alter the scope of s 69;
4. If s 69A of the Jury Act was intended to limit the scope of s 69, this would have been made clear either in the text of the Act or in the extrinsic material accompanying the amending Act, but there was no such indication; and
5. Federal workplace relations legislation has no bearing on the scope and meaning of s 69(7) of the Jury Act and thus whether any of the elements of an offence against that provision have been proved or otherwise.
I therefore find that s 69A of the Jury Act is not relevant in construing the meaning or scope of s 69 in the circumstances as they pertain to the present proceedings.
Accordingly, I find beyond reasonable doubt that the accused's email of 1 March 2023 constituted a 'threat' within the meaning of s 69(7) of the Jury Act.
Although the 1 March email did not state in express terms how the breaches would be addressed, the clear and unavoidable implication is that it would be adverse to Juror E. In the particular circumstances, that is sufficient for the threat to be of "injury" to her employment. The 1 March email asserted, in blunt and direct terms, that Juror E had, inter alia, "fail[ed] to follow reasonable management instruction" and that her conduct involved "breaches". The threat to "address the breaches" was a threat of harm of a kind I set out earlier, namely, disciplinary action, demotion, loss of some benefit, termination, or differential treatment adverse to her. There is again no warrant to construe the term narrowly, noting that the provision is concerned to protect jurors as they fulfil their function on a jury. This case is illustrative of the type of distraction that pressure from an employer can cause.
The reasonable recipient of the 1 March email would readily link the assertion that Juror E had failed to follow reasonable management instruction, with the consequence that her conduct involved 'breaches' of company policy, to Juror E's employment contract (signed as recently then as 11 February 2023) and the statement as clause 20.1(e) that:
"20.1 The Employer may terminate your employment without notice or without a payment in lieu of notice for any of the following reasons, if you: …
(e) refuse to comply with any reasonable instruction or direction including any failure to comply with your obligations under any of the Employer's rules, policies and/or procedures with any directions given by management of the Employer."
The 1 March email referred also to the "Company policy or procedure". In context, I find this would be readily understood, by the reasonable and objective recipient of the email, as a reference to the 'Employee Handbook'. The handbook indicated that a "failure to carry out … reasonable instructions or follow … rules and procedures" comprised "Unsatisfactory Conduct" or "Misconduct" for which the employee was "liable to disciplinary action".
In turn, available "Disciplinary action" was specified, in the Handbook, as comprising: (i) a "formal verbal warning"; (ii) a "written warning"; or "termination" (depending on whether the defendant employer characterised the alleged failure by the employee as "unsatisfactory conduct" or "misconduct"). Read in context, the plain implication of the 1 March email was a threat to take action adverse to Juror E. In context, that included a threat to terminate her employment or to issue her a verbal or written warning. The threat was to injure Juror E in her employment, and the fact there had been no prior hostility or acrimony between Ms Hannan and Juror E is not to the point, given the level to which the matter had escalated, in isolation, at the direction of Ms Hannan, because of Juror E's impugned conduct.
Further, the fact that a person threatens alternative actions against a person (even if it includes an option to refrain from taking action) does not mean that a threat of injury to employment has not been made. To the contrary, I find the communication of a threatened action suffices to comprise a threat. Moreover, it is not to the point that one or more of the threatened actions does not eventuate. A threat is conceptually different from the action that is or is not taken following the making of the threat. In addition, the evident purpose of the offence provision would be frustrated if an employer could be seen to escape liability simply by making highly general threats.
Accordingly, I find beyond reasonable doubt that the accused's email of 1 March 2023 constituted a 'threat' of 'injury' to Juror E's employment, within the meaning of s 69(7) of the Jury Act.
The reason stated by Ms Hannan in the 1 March email for the 'threat' was that Juror E had 'failed to fulfil [her] ordinary hours on non-jury duty days', and that this was considered to be an 'unauthorised absence'. The earlier communications between Ms Hannan and Juror E provide further context to the 1 March email and make clear that Ms Hannan took the view that Juror E's jury service did not prevent her from working weekend shifts.
While Ms Hannan did not take issue with Juror E being absent from work on weekdays that coincided with her jury service, it was Juror E's jury service (the fact that she was summoned to serve as a juror) which, to Ms Hannan's knowledge, prevented her from working weekends. The alleged 'unauthorised absences' were the result of Juror E's jury service. That Juror E had no obligation as a juror on weekends does not sever the link or connection between her jury service obligations and the threat. As explained earlier, the phrase 'by reason of' requires proof of a causal connection, whether direct or indirect. The only reason for the threat arose from Juror E's jury service obligations, which wholly consumed her weekly working hours. I am not left in any doubt that but for Juror E's jury service obligations the threat would not have been made.
Ms Hannan proffered no other reason for the assertions in her communications. I have found all the facts constituting the offence, other than the reason for the accused's actions, are proved. The accused did not call any evidence to seek to discharge its onus under s 69(8) of the Jury Act. I am therefore not satisfied that the threats were not actuated by Juror E's jury service.
Accordingly, I find beyond reasonable doubt that the threat of injury to Juror E's employment was by reason of her jury service.
The accused also submitted that there was no evidence Juror E had been 'summoned' for jury service. In this respect, I find this (that Juror E was summoned) has been established by:
1. First, the evidence that Juror E gave that she received a "summons" (her word) requiring her to attend as a juror. In this respect, the evidence that Juror E gave included the following:
"Q. How was it that you came to be attending the Supreme Court the first time in February 2023? What made you go there?
A. I received the summons … for jury service in the mail in January."
1. Secondly, the image Juror E sent to Ms Youster showing correspondence requiring her to attend as a juror at a particular time and place;
2. Thirdly, the (agreed) evidence that Juror E was empanelled as a juror in a Supreme Court trial and served on the jury for its duration; and
3. Fourthly, the certificate Juror E received and forwarded to the accused which stated that her jury service was "required under [the Act]".
4. Fifthly, even though a copy of the summonsing document is not in evidence, there is, in any event, no basis to reason that production of a specific document is required to satisfy this element. Aspects of the Jury Act firmly support the conclusion that Juror E was summoned to serve as a juror, in the sense that she was subject to a legal requirement to attend, regardless of the specific form of document she received. Relevantly:
1. Section 25 of the Act provides that the Sheriff must select at random, from the jury roll for a "jury district", the number of jurors that the Sheriff estimates are required for trials (or inquests) in the district. The correspondence that Juror E photographed and sent to Ms Youster referred to her having been "randomly selected" under the Act;
2. Section 26 of the Act provides that the Sheriff must issue a "summons" to each person selected "requiring them to attend at the court…at the place and at the time specified in the summons until discharged by the court…", but does not specify the form of any "summons". The correspondence that Juror E photographed and sent to Ms Youster referred to her being "required" to attend, as did the certificate she later received;
3. Although s 76(1A) of the Act provides that regulations can be made with respect to "the information or other matter to be contained in any…summons…that by or under this Act is required or permitted to be prepared", no provision has been made in regulations made under the Act (the Jury Regulation 2022) to this end.
Therefore, I find that, by reason of the combination of these factual and legal circumstances, it is neither reasonable nor rationale to conclude that Juror E was not summoned for jury service. Expressed in a positive sense, I am therefore satisfied beyond reasonable doubt that Juror E was summoned for jury service.
It will be apparent from my findings that, to the extent Juror E's oral evidence is relevant to a determination of the issues in this case, I have accepted her evidence beyond reasonable doubt. I was not invited to make any alternative finding. Rather, the submissions of the parties related to how her evidence might be used in proof or otherwise of the offences. For completeness, however, I record my finding that the cross examination of Juror E did not affect or in any way impugn her evidence in chief. I accept her as a witness of truth. In particular, the impact of her jury service obligations on her mental strain was not challenged in such a way that I would be left in any doubt about her evidence in chief. Although there was some evidence of examples where the impost of the jury trial was lessened, such as some days in the trial finishing early, ultimately the impact on her mental wellbeing was not in broad terms the subject of any serious challenge.
The other point I wish to make is that I have not, with great respect and deference to his Honour, relied on Justice Harrison's correspondence to the accused in any way in resolving the issues in this case. It might be said, therefore, that this correspondence ought not have been admitted into evidence, and to have done so was therefore inconsistent with the exclusion of Juror E's subjective beliefs about the meaning of the 1 March email. There is no inconsistency, because the fact of Justice Harrison preparing this correspondence is relevant to provide context to the actual recorded interactions between the accused and Juror E leading up to the 1 March email. Juror E's opinions about the meaning of the 1 March email are in a different category, for the reasons I have earlier described.
Accordingly, for all these reasons, I find Sequence 1 proved.
I now turn to Sequence 2.
The first issue was whether the 17 April letter constituted a 'threat'.
I adopt the earlier discussion and analysis of the legal principles relating to the correct approach to the interpretation of s 69(7) of the Jury Act. The only additional consideration relates to the meaning of 'alteration' of a person's position to their prejudice. I have set out my analysis in this respect in my findings below. Applying all these principles, I find as follows.
A key contextual feature of the 17 April letter is again the assertion that Juror E had "breached" her employment obligations. Even allowing for some arguably more equivocal language elsewhere in it, the 17 April letter, in context, would readily be taken by the reasonable recipient as conveying that a determination had already been made by the accused, that Juror E had breached her employment obligations. Such a finding is reinforced by the fact that the 1 March email is part of the context in which the 17 April letter is to be approached. The reasonable and objective recipient of the 17 April letter would approach that letter as following on from the 1 March email which itself (as outlined above) clearly conveyed that there had been a concluded breach by Juror E of her employment obligations. The conclusionary language used in the 17 April letter (and the earlier 1 March email) is a factor that clearly distinguishes the present case from that of SafeWork NSW v Qantas Ground Services Pty Ltd (No 3) [2023] NSWDC 468.
The accused relied on the language in the 17 April letter, such as the terms and phrases 'if proven' and 'may result'. Juror E's impugned conduct was the 'failure' to attend her 'rostered shifts' and that she had 'failed' to notify the accused of her absence from work. The letter says that 'if proven', one of 3 consequences will flow (discussed below), but the words 'if proven' leave no room for doubt - what the accused had asserted (the failure of Juror E to attend her shifts and notify the accused of her absence) was inevitably going to be proved. Indeed, Juror E conceded she had not attended her rostered weekend shifts. There was never any doubt that the accused's asserted breaches or misconduct would be proved. Accordingly, even though the words 'if proved', on their face only, leave open the prospect that an allegation of misconduct might not be made out, there was never any reasonable or rational basis to conclude that that might be the case here.
Given its conclusionary language as to breach, the reasonable and objective reader of the 17 April letter, putting to one side the legal niceties as with the 1 March email, would take the letter as conveying that the question to be considered at the meeting was what would happen next. The only options referred to in the letter were a "written warning", "final written warning" or "termination". That is, the letter did not refer to the prospect that no action would be taken, rather one of those options would necessarily follow. The letter further stated that Ms Hannan, as its author, would have "sole responsibility for the conduct of this meeting", effectively foreshadowing to the reader that they were unlikely to have significant agency in the discussion to occur. The letter conveyed a clear intent to take one of the specified actions.
Accordingly, I find beyond reasonable doubt that the 17 April letter constituted a 'threat' within the meaning of s 69(7) of the Jury Act.
The term "alteration" is not defined in the Act. In industrial law, the concept of "alteration" has been held to extend to disciplinary action, which would render an employee's position less secure. For instance, in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531, the issuing of a warning, with the result that any further warning would lead to termination, was considered to be an alteration in the employee's position to their prejudice.
Further, I find there will be some overlap in the concepts of "injury" and "alteration" in s 69 of the Jury Act. In Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66, for example, Marshall J at [21] and [31] considered that disciplinary action in the form of a suspension and transfer of an employee would constitute both injury to an employee in her employment and an alteration of the employee's position to their prejudice for the purposes of the Workplace Relations Act 1996 (Cth) (now repealed). The concepts are not mutually exclusive.
Here, the question is not whether Juror E's position was altered to her prejudice, but whether there was a 'threat' of this occurring. I find that the 17 April letter amounted to a threat of disciplinary action, and specifically a threat of a formal warning or termination. The disciplinary action, including any associated warning, would render Juror E's employment with the accused less secure, and be an alteration in her position to her prejudice in that sense. This is also consistent with the series of gradated warnings leading to termination contemplated by the discipline policy in the handbook.
The accused's stated position was that it accepted that those actions would each constitute an 'alteration' in Juror E's employment to her prejudice. I accept that concession.
Accordingly, I am satisfied beyond reasonable doubt that the 17 April letter was a threat to alter Juror E's position to her prejudice.
The 17 April letter did not raise any issues or concerns with Juror E's conduct or performance beyond the alleged 'unauthorised absences'. The only reason for the absences, to Ms Hannan's knowledge, was Juror E being summoned to serve as a juror. The palpable change in the relationship between the accused and Juror E was only explicable by reference to Juror E's jury service obligations. I also repeat my earlier remarks as follows:
1. While Ms Hannan did not take issue with Juror E being absent from work on weekdays that coincided with her jury service, it was Juror E's jury service (the fact that she was summoned to serve as a juror) which, to Ms Hannan's knowledge, prevented her from working weekends. The alleged 'unauthorised absences' were the result of Juror E's jury service. That Juror E had no obligation as a juror on weekends does not sever the link or connection between her jury service obligations and the threat. As explained earlier, the phrase 'by reason of' requires proof of a causal connection, whether direct or indirect. The only reason for the threat arose from Juror E's jury service obligations, which wholly consumed her weekly working hours. I am not left in any doubt that but for Juror E's jury service obligations the threat would not have been made; and
2. I have found all the facts constituting the offence other than the reason for the accused's actions are proved. Ms Hannan proffered no other reason for the assertions in her communications. The accused did not call any evidence to seek to discharge its onus under s 69(8) of the Jury Act. I am therefore not satisfied that the threats were not actuated by Juror E's jury service.
Accordingly, I find beyond reasonable doubt that the threat to alter Juror E's position to her prejudice was by reason of her jury service.
Finally, for completeness, I repeat and adopt my remarks as expressed in relation to Sequence 1 concerning my assessment of Juror E as a witness, to the extent this is necessary.
For the same reasons as with Sequence 1, I find Juror E was 'summoned' for jury service.
Accordingly, for all these reasons, I find Sequence 2 proved.
In summary, I find the accused's conduct the subject of Sequences 1 and 2 involved threats of a kind which strike at the heart of the proper administration of justice. Those threats fundamentally undermined the object of the Jury Act to provide protections to employees so that they may fulfil their civic duties without fear their employment may be jeopardised. I ultimately find the accused's conduct was therefore inexcusable at law.