Jenkins v Director of Public Prosecutions

Was there an implied order for separation? 39The respondents drew attention to the fact that the trial judge had entered the courtroom 3 seconds before the jury left the Court precincts. They submitted that it would be open to find in the present case that the trial judge made an implied order for the separation of the jury under s 54(1)(b), given his statement made 4 seconds after the jury had left the Court precincts that he proposed to "ask the jury if they want to sit on this afternoon or if they want to go home". Reference was made to a number of cases where a jury, having retired to deliberate, had separated without an express order of the Court, but the Court was prepared to imply an order from the circumstances of what occurred. Such cases included R v Radju [2001] NSWCCA 103; 53 NSWLR 471; R v Phan [2001] NSWCCA 29; 53 NSWLR 480 and Tennant v R [2006] NSWCCA 208. The first two such cases were determined before s 54(2) had been enacted. 40In R v Radju, the trial judge informed the foreperson when the jury retired to deliberate that if he told the sheriff's officer that they had "had enough" they could leave without coming back into court: at [6]. The jury separated for the day sometime later without coming back to court or any order for separation having been made. Nonetheless, Wood CJ at CL (Giles JA and Simpson J agreeing) held that there had been an implied order given that the trial judge had earlier indicated that he would permit the jury to separate once they were finishing deliberating for the day: at [40]. 41In R v Phan, the trial judge had excused the jury for the day but made no order for their separation, simply telling them they were "excused" until 10.00am the following morning. Again, Wood CJ at CL (McClellan and Smart JJ agreeing) held that there was an implied order that the jury could separate: at [26]. Whilst noting the desirability that such matters be the subject of formal orders, it was recognised by his Honour that the circumstances and manner in which such questions were dealt with may give rise to implied orders which would meet the requirements of the Jury Act: at [26]. 42In Tennant v R, two jurors had "separated" to have a cigarette without a court order whilst the jury was deliberating. They were accompanied by a sheriff's officer. James J (McClellan CJ at CL and Hoeben J agreeing) doubted that what had happened amounted to a separation, but even if it did, it did not give rise to a miscarriage of justice: at [43]. In reaching this conclusion, James J took into account the fact that the jurors had already been told not to discuss the case unless all 12 of them were present and that the trial judge would have made the order in any event if so requested, and that the verdict of guilty was not returned until some hours after the jury had been reunited: at [45]-[47]. 43The facts of the present case are distinguishable from those considered above. Although Marien DCJ intended to allow the jury to separate (if they wanted to go home) and return the following morning to continue their deliberations, he had not in fact communicated this to the jury, nor had he made an order to this effect, prior to the jury leaving the court precincts. The matter should be approached on the basis that the jury separated without an order of the Court under s 54(1)(b) of the Jury Act.

Consequences of separation 44The question which arises is what is the consequence of the jury separating, without an express or implied order under s 54(1)(b) of the Jury Act. Undoubtedly, as the trial judge observed, this was an irregularity in the trial. 45Counsel for the applicant did not submit that this is a case of contamination of the jurors. It was not suggested that anyone did interfere with the jury's deliberations in this case and that that conduct did influence the resulting verdicts. 46Nonetheless, the applicant submitted that compliance with s 54(1)(b) of the Jury Act is mandatory, and that separation of the jury, in the absence of an order of the Court, is a fundamental defect going to the root of the trial. The applicant further submitted that upon separation without a court order the jury, in effect, ceased to be a jury. It was contended that when the persons comprising the jury returned to the Court the following morning to continue their deliberations, it was as if those persons had been "plucked off the street" and never empanelled as a jury. The trial judge's "direction" to the jury to continue their deliberations was said to be infected by jurisdictional error. Accordingly, it was submitted that the guilty verdicts were a nullity. 47The respondents submitted that the irregularity did not go to the root of the trial; that it was necessary to undertake a Project Blue Sky [1998] HCA 28; 194 CLR 355 type inquiry into the extent and consequence of the irregularity, and that non-compliance with s 54(1)(b) did not have the consequence that the jury ceased to be empowered to return a verdict upon the indictment against the applicant.

Consideration 48There are a number of difficulties with the applicant's submissions.

Irregularity is not a jurisdictional error 49First, and at the most fundamental level, what occurred in this case was an irregularity in the trial, that is, a departure from the procedure for jury separation under the Jury Act. The irregularity having occurred, the question to be determined by the trial judge on the discharge application was whether it was such that it would affect the jury's deliberations so as to result in a mistrial: R v Lansdell (unreported, NSWCCA, 22 May 1995)) per Simpson J at p 11, Gleeson CJ agreeing at p 4; R v Marsland (unreported, NSWCCA, 17 July 1991; BC9101776 at 13-14). The District Court undoubtedly had jurisdiction to determine the discharge application: R v George, Harris and Hilton (1987) 9 NSWLR 527 at 532-533. The refusal decision of the trial judge was made within jurisdiction. 50The applicant's submissions failed to identify how it was said that the refusal decision was infected with jurisdictional error. The applicant did not identify what the District Court did which it is not entitled to do: Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 at [76] -[78] per Basten JA (Hoeben JA agreeing). Whether his Honour's discretionary decision refusing to discharge the jury was such as to have led to a miscarriage of justice, is a matter which the applicant may raise by way of an appeal against conviction under s 5 of the Criminal Appeal Act: R v George at 534. 51Secondly, and related to the first matter, counsel for the applicant accepted in oral argument that the order which founds the applicant's challenge to the trial judge's "direction" that the jury continue its deliberations, is the refusal decision. Counsel for the applicant contended that just as the refusal decision is infected with jurisdictional error, both the "direction" to the jury to continue their deliberations and the verdicts returned by the jury were likewise infected with jurisdictional error. This argument breaks down at the first step. There was no jurisdictional error in the refusal decision. 52Thirdly, in seeking to characterise the trial judge's "direction" to the jury to continue their deliberations as being also infected with jurisdictional error, the applicant sought to equate the requirement of an order under s 54(1)(b) permitting separation of the jury, with a "precondition" to the jurisdiction of the Court to continue the trial with a jury against the applicant. However, the procedural requirement or condition of a court order for separation of the jury under s 54(1)(b), is not to be conflated with a "pre-condition" to the exercise of the District Court's jurisdiction in respect of a criminal trial. 53The basis of the District Court's jurisdiction has been noted at [17] above. That jurisdiction is not withdrawn by any non-compliance with a procedural requirement or condition relating to jury separation under s 54(1)(b).

Extent and consequences of non-compliance 54Fourthly, non-compliance with a statutory requirement or condition does not necessarily result in invalidity of an act done in breach of the legislative provision. Whether or not the failure to comply with a statutory requirement or condition has this effect is ultimately a matter of statutory construction: Project Blue Sky Inc v Australian Broadcasting Authority at [91]; Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 at [32]; R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 at [44] -[46] per Spigelman CJ, at [177] - [180] per Wood CJ at CL . 55Further, in considering the effect of non-compliance with a statutory requirement or condition, a significant factor will be a "consideration of the extent and consequences" of such non-compliance: Minister for Immigration and Citizenship v SZIZO at [35]. 56In this regard, the extent and consequences of non-compliance with the procedural requirement or condition in s 54(1)(b) of the Jury Act, is not to be approached with any preconceived notion that non-compliance invalidates the jury verdict, as contended by the applicant. 57Fifthly, contrary to the applicant's submissions, the proper approach to the consequences of a breach of s 54(1)(b) is not determined by whether the statutory requirement is characterised as mandatory. The description of provisions as either mandatory or directory provides no useful test by which the consequences of non-compliance can be determined: Project Blue Sky at 390 [93]. 58Rather, it is necessary to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had not only to the language of the relevant provision, but also to the scope and object of the whole statute: Project Blue Sky at 389-390 [92]-[93]; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at 112 [26]. 59The process of construction begins with the consideration of the ordinary and grammatical meaning of the words of the provision, having regard to their context and legislative purpose: Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 297 ALR 190 at [47] per French CJ, Crennan, Kiefel, Gageler and Keane JJ, referring to the statement of French CJ and Hayne J in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 293 ALR 412 at 418 [24].

Legislative purpose 60The starting point is s 54. The legislative purpose is clearly to permit the jury to separate whilst deliberating. The provision recognises that jury separation is not inconsistent with the essentials features of a trial by jury. The procedural requirement of a court order permitting separation ensures that the Court retains control over the conduct of the jury. However, nothing in s 54 suggests that separation of the jury, in the absence of a court order, has the consequence that the jury ceased to be a jury, or invalidates a jury verdict. 61Further, no other provision of the Jury Act provides for the consequences of non-compliance with s 54(1)(b). 62The absence of any provision dealing with the consequences of non-compliance with s 54(1)(b) is to be contrasted with the specific provisions in the Jury Act, which provide for the mandatory or discretionary discharge of individual jurors, or the whole of the jury, in a number of identified circumstances. These are: (1)the mandatory discharge of an individual juror in the circumstances described in s 53A of the Jury Act: where a juror is mistakenly or irregularly empanelled; where a juror becomes disqualified from serving, or ineligible to serve as a juror; or where the juror has engaged in misconduct in relation to the trial; (2)the discretionary discharge of individual jurors in the circumstances described in s 53B of the Jury Act relating to illness or infirmity of a juror; inability to give impartial consideration because of the juror's familiarity with the witnesses, parties or legal representatives, or any reasonable apprehension of bias or conflict of interest or any similar reason; a juror refuses to take part in the jury's deliberations; or for any other reason affecting the juror's ability to perform the functions of a juror; (3)the discharge of the remaining jury where a juror dies or the Court discharges a juror in the course of the trial, which is mandatory if the Court is of the opinion that to continue the trial "would give rise to the risk of a substantial miscarriage of justice": s 53C(1). 63The inclusion in the Jury Act of specific provisions dealing with the mandatory or discretionary discharge of individual jurors or the whole jury, in particular circumstances, compared to the absence of any such provision in relation to s 54(1)(b), is a strong indicator that separation of the jury in the absence of a court order does not have the consequence of invalidating the jury verdict. 64It is also relevant to observe that s 73(1) of the Jury Act provides that a jury verdict "shall not be affected or invalidated by reason only of" a number of nominated matters which may be broadly described as technical slips or errors, such as empanelling a juror mistakenly or irregularly. The terms of s 73(1) do not point to or require the conclusion that any other jury irregularity shall affect or invalidate the verdict. 65In my view, no legislative purpose can be discerned from the Jury Act, that jury separation, in the absence of a court order, has the consequence contended for by the applicant - that the jury in the applicant's trial ceased to be a jury, and the jury verdict was invalidated. 66The consequences of non-compliance not being specified in s 54 or elsewhere in the Jury Act, the matter of non-compliance is left to the discretionary decision of the trial judge whether to discharge the jury. As already noted, such decision may be reviewed on an appeal against conviction: s 5 Criminal Appeal Act.

No fundamental defect going to the root of the proceedings 67Sixthly, contrary to the applicant's contentions, the mere fact of an irregularity having occurred in the separation of a jury under s 54(1)(b), does not result in a fundamental defect in the trial. Whether an irregularity is so serious as to cause a mistrial depends on whether the irregularity is such a departure from the essential requirements of the law that it goes to the root of the proceedings: Wilde v The Queen [1988] HCA 6; 164 CLR 365 at 373, a case concerning the application of the proviso in s 6(1) of the Criminal Appeal Act. 68In Brownlee v The Queen [2001] HCA 36; 207 CLR 278, the High Court considered the essential features of trial by jury in the context of determining the constitutional validity of s 22 and s 54 of the Jury Act in the trial of a Commonwealth offence. The particular issue was whether s 54 of the Jury Act, which permitted jury separation, was incompatible with the constitutional guarantee of a trial by jury in respect of Commonwealth offences in s 80 of the Constitution. The High Court held that there was no incompatibility. 69In reaching this conclusion, the High Court referred to the historical evolution of the jury system and noted the common law position regarding jury separation - that jurors, after empanelment, were required to remain together until they had delivered their verdict: R v Ketteridge [1915] 1 KB 467 - had been relaxed by the time of Federation. Thus, Gaudron, Gummow and Hayne JJ stated at [64] that absolute sequestration of the jury was no longer regarded as an essential element of trial by jury by the time of Federation. Further, Gleeson CJ and McHugh J observed at [25] that s 54(1)(b) "modifies the common law, but the common law itself changed over time", and concluded at [28] that: "It is not an essential requirement of trial by jury that there be an inflexible general rule forbidding separation during the whole or any part of a trial." 70Callinan J similarly observed at [188]-[190]: "... the fact that a jury may, and has separated, will not necessarily impair or destroy the essential character of the trial as a jury. If in fact, by reason of separation a juror or jurors act improperly or become subjected to influences to which they should not have been subjected, that circumstance will require consideration and an appropriate response by the trial judge." 71The proposition to be derived from Brownlee for present purposes, is that strict confinement of a jury is not an essential feature of trial by jury. What is an essential feature is that the jury should deliberate upon its verdict uninfluenced by an outsider to the trial process. Thus, where an irregularity has occurred, the Court should inquire into the extent and consequences of the irregularity upon the criminal trial in order to determine whether the particular irregularity has or would invalidate a verdict. 72To the extent that the applicant sought to drive support from the historical position at common law - that separation upon a jury retiring was an irregularity of such seriousness as to require a quashing of any conviction: R v Ketteridge - the applicant ignored the historical relaxation of the common law regarding jury separation as explained by the High Court in Brownlee v The Queen. Moreover, cases such as R v Chaouk [1986] VR 707 demonstrate that even at a time when the Juries Act 1968 (Vic) was silent about the question of jury separation, not every case of separation would necessarily result in a miscarriage of justice such that the proviso on an appeal against conviction had no application. At 716, Fullagar J observed that he wished to reserve the question whether all guilty verdicts would necessarily be set aside if there had been a jury separation. Similarly, Hampel J observed at 717 that the facts of Chaouk "cannot be categorised as minor or insignificant irregularity of the kind considered in R v Alexander [1974] 1 WLR 422 or R v Dempster (1980) 71 Cr App Rep 302". The latter two cases involved communication between jurors and non-jurors which were not considered to be material irregularities on an appeal against conviction. Nonetheless, they are useful illustrations that not all jury irregularities necessarily invalidate a jury verdict. 73Seventhly, the approach to non-compliance with s 54(1)(b) of the Jury Act, suggested by the applicant, would lead to absurd consequences, which cannot have been intended by the legislature. It is not to be supposed that any separation whilst the jury is deliberating, in the absence of the trial judge making an order permitting separation to occur, has the consequence that the jury ceases to be a jury, or invalidates a jury verdict. 74The circumstances of jury separation will vary in their nature and extent. Such cases would include where one of the jurors was late in arriving at the Court one morning during the retirement of the jury: R v Locchi (1991) 22 NSWLR 309, or if, taking the present case, the court sheriff had realised the mistake in allowing the jurors to leave the jury room, just as they exited the court precincts, but was able to recall all of them to the Court before they had departed for home. 75In each case, whether there has been a material irregularity and departure from the procedure for jury separation whilst the jury is deliberating, such that there would be a miscarriage of justice, will depend on the nature and consequences for the fairness of the trial of the non-compliance with the procedural requirement or condition in s 54(1)(b) of the Jury Act. 76In this case, an irregularity having occurred, the trial judge was satisfied, after hearing an application for discharge of the jury, that it would not affect the verdicts. The applicant does not complain in these proceedings that the trial judge's exercise of discretion miscarried in any way. Rather, in an attempt to engage the supervisory jurisdiction of this Court, the applicant's complaint is elevated to the level of asserting that the discretionary decision to refuse to discharge the jury was infected by jurisdictional error, as was the consequential "direction" by the trial judge to the jury to continue their deliberations. For the reasons given above, this submission has no basis and should be rejected.

Discretionary considerations 77Against the possibility that contrary to my view, the refusal decision, the "direction" to the jury to continue with its deliberations on 26 September 2013 and the convictions against the applicant were infected with jurisdictional error, it is appropriate to consider the Crown's submission that this Court should decline to provide relief on a discretionary basis. The Crown refers to three matters: (1)the existence of an alternate statutory remedy under s 6(1) of the Criminal Appeal Act 1912; (2)the traditional reluctance of courts to fragment criminal proceedings by means of judicial review; and (3)the technical non-compliance with s 54(1)(b) of the Jury Act did not result in any practical injustice. 78It is sufficient to address the first two matters advanced by the Crown. The third matter raises issues which are more appropriately dealt with by the Court of Criminal Appeal, in the event of an appeal against conviction by the applicant, as they raise issues under s 6(1) of the Criminal Appeal Act. 79As to the first matter, Kirby P noted in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508 that "it has long been a principle in the provision of relief by way of the prerogative writs that relief will commonly be withheld if there is another 'equally effective and convenient remedy'". His Honour observed, however, that the mere existence of an alternative statutory remedy is not necessarily fatal to the provision of the prerogative relief. Relevant considerations usually taken into account were those referred to by Glidewell LJ in Ex parte Waldron [1986] QB 824 at 852: "Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than the procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available in the alternative appellate body; ...". 80Nonetheless, as observed by Basten JA (Beazley JA, as her Honour then was, agreeing) in Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302; 222 A Crim R 286 at 288 [3], the primary route for challenge to a judgment in the criminal jurisdiction of the District Court should be to the Court of Criminal Appeal. Basten J went on to observe: "Thus, in exercising the supervisory jurisdiction of this Court, a relevant factor militating against the grant of relief will be the failure of the applicant to avail himself or herself of the appropriate appeal procedure, which in this case is s 5B of the Criminal Appeal Act." 81In this case, the appropriate appeal procedure is provided by s 5(1) of the Criminal Appeal Act. The applicant has a statutory right of appeal to the Court of Criminal Appeal against his convictions on any question of law alone, and by leave, for any other error. There is no jurisdictional bar to that course being pursued at this stage, between "conviction" and sentence: R v MAJW at [14]-[15]; R v Tonari at [2]-[6]; Griffiths v The Queen at 301-302, 313 and 334. 82In dealing with an appeal against conviction under s 5(1) of the Criminal Appeal Act, the Court shall allow the appeal if it is of the opinion that "on any other ground whatsoever there was a miscarriage of justice", subject to the proviso that it may "dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred": s 6(1) of the Criminal Appeal Act. 83An appeal against conviction on the ground that there was a miscarriage of justice necessarily includes a complaint that there has not been a valid process leading to conviction, such as jury separation in the absence of a court order. 84The remedy under s 6(1) of the Criminal Appeal Act, if the applicant can establish that the irregularity in his trial was such as to have led to a miscarriage of justice, is that his conviction can be quashed and a new trial ordered. In addition, the applicant can apply for bail pending his appeal to the Court of Criminal Appeal if he can establish that "special or exceptional circumstances exist justifying the grant of bail", namely, his contention that he has a strong prospect of success on his appeal: s 30AA of the Bail Act 1978. 85As to the second matter, the Crown correctly points out that there is a similar reticence regarding the use of the supervisory jurisdiction of this Court to interfere in criminal proceedings at an interlocutory stage: Wo v Director of Public Prosecutions (NSW) at [19], as there is in the context of an appeal under s 5(1) of the Criminal Appeal Act, from a conviction but prior to sentence: Tonari v R at [5] per Johnson J, Price and RA Hulme JJ agreeing. 86Since the applicant has available to him a statutory right of appeal against conviction prior to sentence, as well as a similar right of appeal after sentence is passed, there is no occasion, in my view, to invoke the supervisory jurisdiction of this Court, even if jurisdictional error had otherwise been established.

Orders 87The orders that I propose are: (1)The application be dismissed. (2)The applicant pay the respondents' costs. 88SIMPSON J: I have read in draft the judgments of Hoeben JA and Gleeson JA. I agree that the application ought to be dismissed. 89The facts are stated in the judgment of Gleeson JA and need not here be repeated. The essential facts are:

• the jury retired to consider their verdicts during the morning of Wednesday, 25 September 2013;
• at about 4.00pm on that day the jury separated;
• no order, express or implied, was made by the judge permitting the jury to separate;
• on 26 September, on behalf of the applicant, an application was made to the judge to discharge the jury;
• the judge directed the jury to cease deliberations until he gave a further direction;
• after hearing argument, the judge refused to discharge the jury, and directed the jury to resume deliberations;
• on 27 September the jury returned verdicts of guilty in respect of each of the three counts on the indictment. What flows from these facts I will consider below. 90Section 54 of the Jury Act 1977 provides as follows: "54 Jury permitted to separate in criminal trials (1) The jury in criminal proceedings: (a) shall, unless the court otherwise orders, be permitted to separate at any time before they retire to consider their verdict, and (b) may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict. (2) An order under subsection (1) (b) may be made even if the jury in the proceedings is not present when the order is made." The separation of the jury after retirement, without an order of the judge was a contravention of s 54(1)(b). 91The applicant therefore invokes s 69 of the Supreme Court Act 1970 as the basis for relief in the nature of prerogative orders. The applicant asserts that jurisdictional error infected the verdicts of guilty, and the consequences of those verdicts. 92The respondents submitted that: "The jury verdict is not the act of the first respondent [the District Court]. Certiorari cannot issue against the jury." and that, therefore, no order in the nature of certiorari may, pursuant to s 69 of the Supreme Court Act 1970, be made. Acceptance of the latter depends upon acceptance of the first premise, that a jury verdict is not the act of the court in which it is delivered. No authority was cited on behalf of the respondents in support of that premise. In my opinion, it ought not to be accepted. Put simply, that is because, in criminal trials, the court is constituted by judge and jury. The verdict of a jury is the verdict of the court in which it is delivered. I will explain why that is so. 93Juries in criminal trials are conventionally directed upon empanelment that: "Together we [that is the judge and the jury] constitute the court by which the accused is to be tried." The conventional direction goes on to identify for the jury the respective functions of the judge on the one hand, and the jury on the other. Ritual incantation of a proposition does not establish that the proposition is correct. But in this case, the direction is not mere verbiage, and is, as a matter of law, correct. It is an accurate statement of the nature of the proceedings and accurately identifies the constitution of the court in which the proceedings are taken. 94In this respect, the principal question is: was the act of the jury in returning verdicts of guilty the act of the District Court? The answer to that question is to be found in the identification of "the District Court". 95What is encompassed by "court" has arisen for consideration in a number of cases that involve the conferral, under the authority of s 73(iii) of the Constitution, of federal jurisdiction on State courts. I will refer to two such cases: Kotsis v Kotsis [1970] HCA 61; 122 CLR 69 and Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49 ("HCF"). In what follows, it is to be borne in mind that Kotsis and HCF were concerned with the validity or otherwise of acts done in a State court exercising federal jurisdiction. I will therefore keep the outline of facts to the minimum necessary to explain the context of the passages to which I refer. Each contains statements that provide guidance and assist in the resolution of the question I have set out above. 96In Kotsis, federal jurisdiction in respect of matrimonial causes had been conferred on the Supreme Court of NSW by the Matrimonial Causes Act 1959. Proceedings were instituted in the Supreme Court. An application for costs was made by one party. That application fell within the definition of "matrimonial cause". In accordance with the practice of the Supreme Court, the application was assigned to a Registrar for determination. The Registrar made an order. The question that arose was whether, for the purposes of s 73(iii) of the Constitution, that order was made by the Supreme Court. 97By a majority, the High Court held that it was not. That was because: "... Registrars are not members of the Supreme Court nor in any presently relevant sense the Court or a constituent part of it." (per Barwick CJ); "In my opinion, however, the fact that the registrar is deemed to be exercising the jurisdiction of the Court in no way assists the extension to him of federal jurisdiction if he is not comprehended by the Court on which that jurisdiction has been solely conferred." (per McTiernan J) 98Menzies J identified the relevant questions as: "... whether the registrar, in the exercise of judicial functions, is the Supreme Court." and: "... whether, by investing the Supreme Court of a State with federal jurisdiction, the officers of the court empowered by State law to exercise judicial functions are, in the exercise of such functions, to be regarded as the Supreme Court invested with federal jurisdiction by [the Matrimonial Causes Act]." His Honour held that: "... [the Supreme Court and Circuit Courts Act 1900] indicates that the Supreme Court of New South Wales consists of judges of the Court and that the prothonotary and registrars are but officers of that Court. The power of the judges to empower an officer of the Court to exercise part of the judicial power of the Court does not, as I read the Act, make such officer either the Supreme Court or part of that Court." Windeyer J said: "The nature of a court and the functions of court officers were matters that were well known in England long before the Australian colonies began. The meaning of the word 'court' has thus come to us through a long history; and it is by the light of that that it is to be understood in ss 71, 72 and 73 of the Constitution. According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge ... I do not mean to suggest that when a Supreme Court is exercising the judicial power of the Commonwealth its officers may not be charged with duties to be performed in a judicial manner. But those duties must I think be only such as are truly ancillary to an adjudication by the court. That is to say it is not enough that they be in what in the Matrimonial Causes Rules are called 'proceedings for ancillary relief'. They must be truly subservient to adjudication." Gibbs J (as he then was) dissented. He agreed that: "... the deputy registrar, although an officer of the Supreme Court, was not a part of that court. As a general rule a court consists of the judges who constitute it, and officers of the court are not part of the court in the strict sense ..." but said: "But although the deputy registrar was not part of the court he was the delegate of the court. The powers he exercised were those of the court and in exercising them he acted for the court, and subject to its review ... Clearly he was part of the organization of the court within the meaning of that term as used in Le Mesurier v Connor [[1929] HCA 41; 42 CLR 481] and in Bond v George A Bond & Co Ltd and Bon''s Industries Ltd [[1930] HCA 24; 44 CLR 11]." In short, the effect of the majority judgments was that a "court" consisted solely of its judicial members, and did not extend to executive or even quasi-judicial officers. 99Kotsis was followed in Knight v Knight [1971] HCA 21; 122 CLR 114. However, both were overruled in the subsequent decision of the High Court in HCF. The proceedings involved a claim for damages by HCF against the Commonwealth of Australia. Since the Commonwealth was a party, the claims involved federal jurisdiction, which was conferred on the Supreme Court of NSW by s 39(2) of the Judiciary Act 1903 (Cth). An interlocutory application in the proceedings came before Master (as Associate Judges were then known) Allen. The Commonwealth objected to jurisdiction, on the basis that a person holding office as Master, although an officer of the Court, was not "a part of that Court" and therefore was not invested with federal jurisdiction. 100The High Court took a wider view of what is encompassed by "court" than it had in Kotsis. After careful reconsideration, Gibbs CJ (as he by then was) adhered to the dissenting views he had expressed in Kotsis. He identified a relevant question as: "... whether 'court' in s 77(iii) and 'Courts' in s 39(2) mean the persons of whom a court is composed (in the present case, the judges), or a court as an institution, 'an organization for the administration of justice, consisting of judges and with ministerial officers having specified functions', to use the words of Windeyer J in Kotsis v. Kotsis ... One would expect invested jurisdiction to be conferred on the court regarded as an entity, rather than on the individual persons who compose its membership ... ... The jurisdiction and powers of the court do not cease to be its jurisdiction and powers because they are exercised by an officer of the court, under the rules of the court. In the present case the jurisdiction and powers which Master Allen was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the matter in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was, in my respectful opinion, part of the organization through which the powers and jurisdiction of the court were exercised in matters of State jurisdiction, and through which they were to be exercised in matters of federal jurisdiction also, once the court was invested with federal jurisdiction." (italics added) Stephen J agreed with Gibbs CJ. Mason J (as he then was) and Wilson J, in separate judgments, entirely endorsed the views of Gibbs J in Kotsis. Mason J said: "The majority view in Kotsis was partly founded on the proposition that a court traditionally is comprised of judges or judicial officers who are to be distinguished from other officers who form part of the court's organization. This is a well recognized distinction ... which has importance in the interpretation and application of common form statutory provisions so expressed as to arm 'the Court' with specific jurisdiction. The jurisdiction is then exercisable by those persons who comprise the court. But the distinction is by no means an absolute one. The statute may provide that the court is comprised not only by judges but also by masters, registrars or deputy registrars, either generally or for a particular purpose ... The relevant jurisdiction is then exercisable not only by judges but also by the designated officers of the court ..." (italics added) Wilson J said: "In my opinion, with all respect to the views of the majority in [Kotsis], the decision presents too limited a concept of 'any court' as those words are used in s 77(iii). There is much to be said for the distinction which Miss Gaudron [the Solicitor General for the State of NSW] drew between the fact of conferring jurisdiction on a court and the manner of its exercise. Jurisdiction is vested in a court, and in that sense the word 'court' identifies an institution consisting both of the persons who compose the court, and the officers and procedures through which its judicial function is performed." (italics added) The italicised words in the above passages are concerned with officers of the court. They are readily transposable to include references to juries. 101In Brown v The Queen [1986] HCA 11; 160 CLR 171, in the context of a consideration of s 80 of the Constitution (whether s 80 precluded allegations of indictable offences against federal law being tried by judge alone) Brennan J (as he then was) said: "At common law, the jury is an essential constituent of any court exercising the jurisdiction to try persons charged on indictment." 102Cesan v The Queen [2008] HCA 52; 236 CLR 358 was, again, a case involving the exercise of federal jurisdiction. That, however, was not material to the decision. The issue in that case was whether a miscarriage of justice was demonstrated by the fact that the judge was, from time to time, asleep during the jury proceedings. Gummow J referred to American authority (Capital Traction Company v Hof [1899] USSC 85; 174 US 1), in particular to the following passage: "'Trial by jury,' in the primary and usual sense of the term at the common law and in the American is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict, if, in his opinion, it is against the law or the evidence." 103In the light of those observations it is necessary to consider the jurisdiction of the District Court and the manner of its exercise. 104The District Court is a creature of statute. Its jurisdiction is solely that derived from statute. It is constituted by s 8 of the District Court Act 1933. Its jurisdiction "generally" is spelled out in s 9, sub-s (1) of which confers civil jurisdiction, and sub-s (2) of which confers criminal jurisdiction. The criminal jurisdiction is specified as:
• jurisdiction conferred by Pt 4 of the District Court Act; and
• that conferred by any other Act or law. The jurisdiction conferred by Pt 4 of the District Court Act is partly of a historical nature (by s 166 its criminal jurisdiction is that which formerly resided in courts of Quarter Sessions). Section 166(1) (part of Pt 4) essentially repeats s 9(2), specifying that the criminal jurisdiction is that conferred on the court by the District Court Act, or any other Act, with specific reference to the Criminal Procedure Act 1986. 105Section 46 of the Criminal Procedure Act confers on the District Court jurisdiction in respect of all indictable offences other than those proscribed by the Regulations for the purposes of the section. 106Section 11 of the District Court Act provides: "(1) All civil and criminal proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act and the Jury Act 1977, be heard and disposed of before a Judge, who shall constitute the Court. (2) Subsection (1) does not affect the provisions of this Act and the civil or criminal procedure rules concerning the hearing and disposal of civil and criminal proceedings and business before a registrar or other officer of the Court." 107Section 169(2) of the District Court Act is, at first blush, somewhat surprising. It provides: "(2) Except where express provision to the contrary is made by any other Act: (a) the trial of all issues arising in the Court in the exercise of its criminal jurisdiction, (b) ... (c) .. shall be held before or dealt with by a Judge sitting alone." However, express provision to the contrary is made in s 131 of the Criminal Procedure Act, which provides: "Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part." 108Section 132 of the Criminal Procedure Act permits in certain circumstances, a judge to make an order for trial of criminal proceedings by judge alone, sitting without a jury. Section 133(1) of that Act deals with the power of a judge who tries criminal proceedings without a jury. It is in the following terms: "A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury." 109The effect of these provisions is: (i)jurisdiction in respect of indictable criminal offences is conferred on the District Court; (ii)the jurisdiction is to be exercised by the court constituted by a judge and jury. 110I appreciate that the concluding words of s 11(1) sit a little uncomfortably with this conclusion. However, s 11 is general in its terms, and applies both to civil and criminal trials. To the extent that it is incompatible with the more specific provisions of the District Court Act and the Criminal Procedure Act, it must give way. 111I am also conscious that it may appear that the conclusion that the court in a criminal trial is constituted by the judge and jury might appear to clash with the wording of s 54(1) of the Jury Act 1977 (set out in full above), which provides that "the court" may make an order permitting separation of the jury after retirement (or declining to allow separation during the course of the trial). Plainly, it is intended that such an order be made by the judge. The clash is readily explicable when regard is had to the distinct functions of judge and jury; the judge's functions include control of all procedural matters, including orders under s 54. 112In my opinion, analysis of the legislative provisions, in the light of the observations in HCF, is sufficient to establish that the jurisdiction of the District Court was, in this case, exercised by the jury acting as the court (or as part of the court). 113There are other reasons why that it is so. There is authority to the effect that the delivery of a verdict of guilty by a jury amounts to a conviction. As long ago as 1947, in Re Stubbs (1947) 47 SR (NSW) 329, the Court of Criminal Appeal endorsed the decision in R v Blaby [1894] 2 QB 170, in which it was decided that the expression "convicted" referred to the finding of a verdict of guilty. Davidson J went on to say: "The expression 'conviction' in itself is undoubtedly ambiguous, and for its interpretation in all the circumstances the only guide is to be found in the terms of the statute in which it appears. Where, for example, the words were 'convicted by the jury or upon his confession' there was no doubt as to the meaning." Street J (as he then was) said: "The question of the proper interpretation of the word 'convicted', as it is used in [the relevant statutory provision] is one which may be of some difficulty to answer. The word itself is capable of two meanings. It may mean the mere verdict or finding of guilty, as it was held in Oaten v Auty [[1919] 2 KB 278] and R v Sheridan [[1937] 1 KB 223]; or it may be used in its strict legal sense of the judgment of the Court, this being the meaning ascribed to the word in Harris v Cooke [(1918) 88 LJ KB 253]." 114In R v Tonks and Goss [1963] VR 121 the Full Court of the Victorian Supreme Court also grappled with the issue of what constitutes a conviction. The Court referred to authority that "conviction" might mean the verdict of a jury, and said: "A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a 'conviction', for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment ... but there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt." 115It will be seen that these last two decisions arose in the context of consideration of whether a plea of guilty itself, without any intervention by the court, amounted to a conviction. That is not the case where a jury has returned a verdict of guilty. 116In Griffiths v The Queen [1977] HCA 44; 137 CLR 293, Barwick CJ said: "But the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That accords with long-standing practice in the courts of New South Wales where accused are tried with a jury, where no specific step is taken to convict, or direct the entry of a conviction after verdict ..." Aickin J said: "The term 'conviction' has been said both in England and in Australia to be equivocal ... Generally speaking a verdict of guilty brought in by a jury constitutes a conviction and some dicta suggest that a plea of guilty is equally a conviction. The latter proposition however cannot be sustained." His Honour then referred with approval to the passage from Tonks and Goss set out above. 117James J alluded to the question in R v MAJW [2007] NSWCCA 145; 171 A Crim R 407. His Honour said: "14 Whether a person has been 'convicted' depends on the context in which the question is asked (Maxwell v The Queen [[1996] HCA 46;] (1996) 184 CLR 501 ... In Griffiths v The Queen [[1977] HCA 44;] (1977) 137 CLR 293, a case in which there was a plea of guilty, Barwick CJ at 301-2 and Aickin J at 334 stated in obiter dicta that, at least generally, a return of a verdict of guilty by a jury itself amounts to a conviction of the offender. There is no need for the trial judge, after the jury has returned its verdict, to make any announcement that he is convicting the offender of the offence ... In some special contexts, such as where a defence of autrefois acquit is raised in subsequent proceedings, a verdict of guilty will not of itself amount to a 'conviction' ... 15 In my opinion, the dicta of Barwick CJ and Aickin J in Griffiths should be followed and the Court should hold that in the present proceedings the respondent was 'convicted' when the jury returned their verdicts of guilty and hence this Court has jurisdiction to entertain the Crown's appeal." 118Accordingly, the weight of authority is to the effect that a guilty verdict returned by a jury constitutes a conviction. There is, in my opinion, no more quintessentially judicial act than conviction of a criminal offence - a first step towards, and a necessary prerequisite for, punishment, which may include loss of liberty. It would be extraordinary if an act so purely judicial were not the act of the court in which it is committed. 119Accordingly, I reject the proposition that the jury verdict was not the act of the District Court. In my opinion it clearly was. The consequence of that conclusion is that an order is the nature of certiorari was not, for that reason, unavailable to the applicant. 120Since, in my view, the nature of the tribunal that made the decision under review does not preclude an order in the nature of certiorari, it is necessary to consider whether the circumstances permit, and if they do, justify, the making of such an order. The first step is to identify the characteristics of an order in the nature of certiorari. 121The essence of an order in the nature of certiorari is the removal of the record or order of the court below for the purpose of having its legality investigated, and, if appropriate, having the order or decision or quashed: The King v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920), Ltd [1924] 1 KB 171 per Atkin LJ. 122The orders sought in the Further Amended Summons are set out in full in the judgment of Gleeson JA. Nowhere is there any express claim for an order of the kind outlined by Atkin LJ. The respondents have interpreted the orders sought in paragraphs 3, 4A and 4B as potentially claims for such an order. Each is framed as a claim for a declaration "or other order". The nature of the "other order" is not stated. 123Paragraph 4A claims merely a declaration or other order that, in convicting the applicant, the District Court fell into jurisdictional error. There is no reference to any record or other order of the District Court that could be removed into this Court and quashed. 124Paragraph 3, however, claims a declaration or "other order" that the verdicts of the jury are "a nullity, are void, and are of no effect"; paragraph 4B makes an identical claim in respect of the "convictions recorded" by the District Court. Having regard to what I have said above, there is no distinction between these two claims. The verdicts of the jury are convictions. 125Why, if the applicant sought an order or orders in the nature of certiorari, he did not expressly make such a claim is difficult to understand. But I accept that the substance of the claims made in paragraphs in 3 and 4B is, (taking a generous approach) capable of being interpreted as claims for removal of the verdicts (convictions) in order that they be quashed. 126Whether that course ought to be taken depends solely upon the outcome of the assertion of jurisdictional error. The assertion of jurisdictional error in turn depends solely upon the proper characterisation of the separation of the jury after retirement without an order of the judge. The applicant contends that that was so fundamental a defect in the trial that, thereafter, the jury ceased to be a jury empowered to return any verdicts on the indictment. In that way, jurisdictional error infected the delivery of the verdicts and the recording of the convictions. 127Whether that is to be accepted depends upon the proper construction of s 54(1) of the Jury Act, taking into account the language of that and other provisions of the Jury Act, and the statute viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]. 128There is nothing in s 54, and nothing elsewhere in the Jury Act, that identifies the consequences of a separation of a jury after retirement, absent an express or implied order of the judge. Section 73(1) makes specific provision protecting and preserving a jury verdict affected by certain identified irregularities. Non-compliance with s 54(1)(b) is not one of those irregularities. 129In order to ascertain why s 54 is in its present form, it is necessary to look to its history. Historically, on empanelment, a jury was not permitted to separate until the conclusion of the trial by the delivery of verdict: R v Chaouk [1986] VR 707; Brownlee v The Queen [2001] HCA 36; 207 CLR 278 at [25]. I do not propose to go into the details of the progressive changes to that position. It is sufficient to say that, prior to s 54 taking its current form in 1987 (Jury (Amendment) Act 1987) it provided: "54 Upon the trial of any criminal proceedings the jury shall, unless the court otherwise orders, be permitted to separate at any time before they retire to consider their verdict." It is a clear inference that it was intended that, after retirement, the jury would be segregated until completion of its deliberations. 130The 1987 amendment was the result of a report of the NSW Law Reform Commission: Criminal Procedure: The Jury in a Criminal Trial [1986] NSWLRC 48. The Report discussed the advantages and disadvantages of allowing separation of the jury after retirement. It noted a practice that had developed pursuant to which judges who completed summing up towards the end of a day reserved, for the commencement of the following day, a few brief formal directions, whereupon the jury would retire with a full day to deliberate. Clearly, this could be seen as a device, if a practical one. 131In the light of that practice, the Law Reform Commission said: "7.38 If this practice is acceptable, then it seems to us that jurors should, in such cases as the judge sees fit, be permitted to go home whilst their deliberations are continuing. If necessary, stricter security arrangements may be made for the jurors during this period. We consider that the disruption which this aspect of jury service causes to the small number of people affected would be greatly decreased if the current practice were altered so that, as a matter of discretion, juries could be permitted to separate during their deliberations. 7.39 It should be stressed that the occasions on which it may become necessary for a judge to exercise this discretion will be rare ... The separation of the jury should not be permitted as a matter of course. Two of the members of the Commission ... consider that while this discretion should be available to the judge, it should only be used in exceptional or unusual circumstances." 132The Report was substantially adopted. In the Second Reading Speech New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 November 1987 at 16523, the Attorney General of the day saw no need to make specific reference to the proposed amendment to s 54. 133It can therefore be seen that, in 1986, it was perceived that, upon retirement, juries would usually remain segregated after retirement until completion of deliberations. 134Even so, there is nothing in the Jury Act that contemplates the dire consequences of unauthorised separation proposed on behalf of the applicant. Moreover, it must be recognised that, in the almost three decades that have elapsed since 1986, the virtually invariable practice of the District Court and this Court has been to permit separation of the jury after retirement at the end of each day's deliberation. It is not without significance that one of the matters considered by the Law Reform Commission in 1986 was that, in criminal trials, most verdicts were reached within a period of six hours from retirement. That is a thing of the past and it is now commonplace, in an age of greater complexity in criminal trials, that juries will deliberate for several days and even weeks. 135Of real significance is that the legislation envisaged that, even after retirement, the jury will be permitted to separate. What is the importance of the requirement that that occur only on the order of the judge? 136It would be possible to postulate that the requirement for an order is to ensure that the jury is adequately directed about the importance of not discussing the trial with others who are not members of the jury. That was the subject of some discussion in the Law Reform Commission report. However, there are two reasons why that cannot be the explanation for the requirement. The first is, simply, that s 54 contains nothing to that effect. The second is that it is entirely inconsistent with sub-s (2), which permits an order to be made in the absence of the jury. Sub-section (2) was added in 2003: Courts Legislation Amendment Act 2003. 137In my opinion, the dispersal of the jury without an order being made by the judge was, as was identified by the judge, an irregularity. It was not an irregularity with fatal consequences. It was not an error going to jurisdiction. 138The consequence of that conclusion is that there is no basis for an order, under s 69 of the Supreme Court Act, in the nature of certiorari (or any other order under s 69). 139For these reasons, I would dismiss the Further Amended Summons.

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