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[2012] NSWCCA 202
Court of Criminal Appeal (NSW)
2012-08-17
McClellan CJ, Hall J, Hulme J, Tobias JA, Howie JJ
Original judgment source is linked above.
Judgment 1McCLELLAN CJ at CL: I agree with R A Hulme J. 2HALL J: I agree with R A Hulme J. 3R A HULME J: Huu Hong Le was found guilty by a jury of larceny and discharging a firearm with intent to resist arrest. He was sentenced to imprisonment for a total term of 7 years with a non-parole period of 5 years. 4I will refer to Mr Le as the applicant because leave to appeal is required. The contentions raised in this Court were never raised by the applicant's counsel at trial: r 4 Criminal Appeal Rules. Indeed, the decisions of the trial judge now the subject of challenge were either actively supported by the applicant's counsel or, at least, not opposed. Counsel in this Court did not appear at the trial. 5Before turning to the grounds of appeal it is worth observing the repeated disapproval expressed by this Court about appeals of this nature, often described as "armchair appeals". There are many statements to this effect. For example, Tobias JA, James and Howie JJ in R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 stated: [38] We take this opportunity for the Court once again to deprecate what has been referred to as an "armchair appeal" (see R v Fuge (2001) 123 A Crim R 310 at [40]), where counsel briefed on appeal takes points, often of a technical nature, without any apparent regard to the manner in which the trial was conducted by competent defence counsel and where an easy remedy would have been available at trial, had counsel believed that his or her client was prejudiced by what the trial judge said or failed to say. Once again, there is little if any regard to rule 4 of the Criminal Appeal Rules in raising such grounds of appeal, treating it as a technicality of little or no moment, notwithstanding repeated statements of this Court to the contrary: see for example R v King [2000] NSWCCA 507; the long line of authorities referred to in the judgment of Whealy J; R v Button and Griffin [2002] NSWCCA 159 per Heydon JA; and most recently R v Ita [2003] NSWCCA 174. 6There are three grounds of appeal:
Statutory provisions 23Part 7A of the Jury Act was inserted by the Jury Amendment Act 2008 and commenced operation on 1 July 2008. It contains 3 sections: s 53A is concerned with the mandatory discharge of a juror in certain circumstances; s 53B is concerned with discretionary discharge in certain circumstances; and if a juror is discharged, s 53C is concerned with the consequential need to consider whether the jury should be discharged as a whole or whether the trial should continue with a reduced number of jurors. 24The issues in this case concern ss 53B and 53C. Section 22 is also relevant. I set out below the relevant portions of each: 53B Discretionary discharge of individual juror The court ... may, in the course of any trial ... discharge a juror if: ... (d) it appears to the court ... that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If ... the court ... discharges a juror in the course of a trial ... the court ... must: (a) discharge the jury if the court ... is of the opinion that to continue the trial ... with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial ... continue with a reduced number of jurors. 22 Continuation of trial or inquest on death or discharge of juror Where in the course of any trial ... any member of the jury ... is discharged by the court ... under Part 7A, the jury shall be considered as remaining for all the purposes of that trial ... properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below 10, ... and if the court ... orders that the trial ... continue with a reduced number of jurors under Part 7A.
Submissions in relation to Ground 1 (discharge of juror before the discretion was enlivened) 25The argument for the applicant in relation to this ground was presented in written submissions in succinct terms. It was contended that the note from the juror indicated that he was able to perform his function as a juror until 4pm on the Friday upon which he was discharged. He was however discharged some twenty or so minutes before then and so the conditions giving rise to the discretion to discharge the juror in s 53B(d) had not arisen. On this basis it was submitted, "the premature discharge of the juror when there was no material before the court to enliven the court's discretionary power in s 53B(d) created a fundamental defect going to the root of the trial and created a miscarriage of justice." 26For the Crown it was submitted that the discretion to discharge the juror was enlivened by the history of concern in the latter days of the trial about the juror's commitments and his evidence that he was "somewhat distracted". It was also submitted that the reasons advanced by the juror (concern about being in Malaysia the following Monday) were not an improper basis for discharge. It is notable that the applicant does not suggest otherwise. It is only the time at which he was discharged that is the issue.
Determination of Ground 1 27The contention that the judge could not discharge the juror prior to 4pm because he had indicated that he was able to perform his function as a juror until that time must be rejected. The juror had not said in express terms that he was so able until that time. Certainly that was the time he had nominated at which he sought to be excused. However, that did not put it beyond the trial judge's power to determine that prior to then there was a "reason affecting the juror's ability to perform the functions of a juror": s 53B(d). 28The contention that "there was no material before the court to enliven the court's discretionary power" must also be rejected. The judge had the juror's evidence. She also had the history of concern about the juror's commitment which included the trial judge referring two days earlier to him as being "anxious" about his commitment. The real question raised by the applicant is whether the judge incorrectly exercised her discretion. There is no merit in the contention that she did not have the power to do so because of a lack of "material".
Submissions in relation to Ground 2 (error in the exercise of the discretion to discharge the juror) 29It was submitted on behalf of the applicant that the discretion of the trial judge to discharge the jury miscarried under House v The King principles: House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. It was submitted that her Honour's discretion miscarried "in a fundamental way because her Honour ignored or failed to take into account the juror's communication that he was capable of performing his function as a juror until 4pm that day". 30It was also submitted that the "juror in answer to the questions put by her Honour appeared to be saying his concern was an economic one, he never suggested that he could not function as a juror - at least until 4pm that day". 31The Crown's submissions were the same for this ground as for the previous ground. There was an evidentiary foundation for the discretion to discharge being exercised and it was open to her Honour to do so.
Determination of Ground 2 32It is important to observe that it was not contended that the juror should not have been discharged because of his commitment overseas the following week. The argument was confined to aspects relating to the time at which the discharge occurred. 33Those parts of the applicant's submissions that concern what the juror had said about his capacity to perform his function as a juror must be rejected. The juror had not said, as was asserted on behalf of the applicant, "he was capable of performing his function as a juror until 4pm that day". His communications were confined to his desire to be released at 4pm so as to enable him to meet his overseas commitment the following week. 34Even if it can be inferred that the juror had indicated a capacity to perform his function until 4pm, this was not binding on the judge. The question whether a juror is able to perform his or her functions is to be determined by the trial judge, not by the juror him or herself. 35For the same reasons, the contention that the questioning of the juror was "narrow" and that he should have been asked whether there was any impediment affecting his ability to function as a juror until 4pm must be rejected. If this question had been asked and the juror responded affirmatively, it would not have bound the judge to accept the juror's opinion. 36These submissions for the applicant ignore the fact that his own counsel at trial positively supported the idea of dealing with the individual juror's situation immediately after answering the jury's question at 3.30pm (SU 40). It also ignores the fact that, after the judge's examination of the juror, she asked counsel if they would like her to ask anything further and the applicant's counsel replied, "No your Honour" (SU 42). These features indicate to me that the atmosphere at the trial was such that nobody thought that it was inappropriate to discharge the juror a relatively short time prior to 4pm and that nobody thought that the juror's ability to perform his functions was completely unaffected at any moment before that time. 37The contention that the juror said in his evidence that his concern was an economic one, and that he did not say that he could not function as a juror prior to 4pm, should also be rejected. This is partly because of the reasons set out in the preceding paragraphs and partly because it mischaracterises the evidence. The juror did refer to the "hardship and consequences of not going on Monday" but he also said that he had been "somewhat distracted because of this". 38The trial judge was entitled, indeed expected, to take into account more than what the juror said in his notes and in his evidence. She was required to consider the issue in the context of the trial as a whole. The critical features of that context included that: (a) it was 3.30pm on a Friday at the end of the third week of a trial originally estimated to run three or four days; (b) the jury had commenced their deliberations at 12.20pm the previous day; (c) anxiety had been expressed by a juror about being overseas the following Monday; and (d) the juror wanted to discontinue involvement in the trial by 4pm and had been assured that this would occur. 39In this context, I am not persuaded that by deciding to discharge the juror about 25 minutes before the juror had asked to be discharged the discretion in s 53(d) miscarried. 40Other considerations support the correctness of the decision to discharge. The juror had formally asked, seemingly at 2.45pm, to be excused at 4pm but he had not had a reply. As 4pm approached, the prospect of the juror being distracted, or causing distraction, must have been an increasing possibility. The juror's evidence itself confirmed a level of distraction. 41The jury had been together for the past three weeks, albeit not on every day. The judge had told them that if verdicts had not been reached by 4pm, the trial could continue without one juror. But as a matter of human nature, it might not have been an appealing prospect for the trial to conclude in the absence of one of their number. Such circumstances might give rise to a temptation to hasten to judgment. 42Whether the matters I have just mentioned were part of what her Honour considered in deciding to discharge the juror is unknown. Her Honour's reasons only disclosed that she took into account his evidence of being distracted and that she had concluded "his ability to perform his functions as a juror are being affected" (SU 43). I propose to say something more about the adequacy of her Honour's reasons later. But for now, it is sufficient to note that the circumstances surrounding the discharge of the juror support the decision. 43Another matter supporting the correctness of the judge's decision is that it was not only the judge, but counsel as well, who were alive to the atmosphere of the trial. It is not insignificant that trial counsel for the applicant: (a) agreed with the suggestion that the judge should deal with the situation of the juror at about 3.30pm; (b) made no suggestion that the juror should be examined further about his capacity to serve as a juror; and (c) did not wish to be heard in response to the prosecutor's submission that the juror should be discharged. 44I am not persuaded that the decision to discharge the juror involved a miscarriage of the judge's discretion. It was a decision that was well open to her. In fact, I do not believe that she could have done anything else.
Submissions in relation to Ground 3 (error of law in ordering the continuation of the trial with a reduced number of jurors) 45Once a judge has decided to discharge a juror, s 53C requires the court to give separate consideration to whether or not the trial should continue with the remaining jurors. It was contended that the trial judge had incorrectly applied the provision. 46Reference was made by counsel for the applicant to the following passage in the transcript which I have already set out above but which is convenient to repeat: PROVERA: I don't wish to be heard. HER HONOUR: Okay. All right well I think that given this juror's evidence about his commitment and that it is distracting him and given that the estimate of the trial has exceeded what the jurors were told originally his ability to perform his functions as a juror are being affected and therefore I am of the view he should not continue to act as a juror, I should discharge him but as to the matters in s 53C, I am of the view that although Mr Le will then not have 12 jurors deciding or considering his charges that there is no reason why the trial should not continue with 11 jurors so I will order the trial is to continue with 11 jurors. So I will bring that one juror in and discharge him. Yes I will just get that man brought in and tell him and then I'll bring in the rest of the jury and then they might want to go home I guess. Just have a seat there sir in the jury box. I've decided to discharge you so thank you for the time and attention you've devoted to being a juror on the trial and you're now free to go. If you could just stay there shortly, I'll bring in the other jurors and tell them that and then the court officer might need to attend to some administrative matters with you before you actually leave, thanks. 47The first submission for the applicant was that her Honour had "misapplied the terms of s 53C by deciding there were no reasons not to continue the trial with 11 jurors and making an order within the terms of s 53C(d) and s 22 of the Act before actually discharging the juror". It was submitted that the discharge of the juror occurred when her Honour called the juror back into Court after the discussion that followed his sworn evidence and informed him, "I've decided to discharge you". It was submitted that her Honour had already by that time decided to continue the trial with a reduced number and made an order to that affect. Accordingly, it was submitted that her Honour had reversed the procedure in s 53C for the continuation of the trial with a reduced number of jurors. 48Alternatively, it was submitted that her Honour erred in her application of the provisions in s 53C "by not properly evaluating and identifying the risk factors relevant to the question of whether or not a substantial miscarriage of justice would be occasioned if the applicant's trial were to continue with a jury of 11 jurors". It was submitted, in effect, that her Honour's statement, that there were "no reasons why the trial should not continue with 11 jurors", did not properly fulfil her statutory function. 49It was the contention of counsel for the applicant that s 53C(1) speaks in terms of an "opinion". Therefore it "required identification and articulation of matters comprising reasons why there was not a risk of a substantial miscarriage of justice in continuing the [applicant's] trial with a reduced number of jurors". It was submitted the failure to fulfil this asserted requirement "precipitated a fundamental failure of procedure and thus a trial not according to law". 50The Crown's submission in response to the first point was that her Honour addressed the two issues she was required to decide separately and in the correct order. Formal discharge of the juror was not necessary before her Honour considered the second issue of whether to continue with a reduced number of jurors. 51In relation to the second point concerning an asserted failure to identify "risk factors", it was submitted for the Crown that not every ruling given in a trial must be accompanied by reasons. Moreover, even if there was an error in failing to give reasons, that will not necessarily amount to an error of law warranting the appeal being allowed. The Crown relied upon Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 and BG v R [2012] NSWCCA 139. It was submitted that the question is whether the decision to continue the trial with eleven jurors gave rise to a risk of a substantial miscarriage of justice. In other words, the relevant question for this Court in determining this ground of the appeal is whether the decision was the correct one, notwithstanding any inadequacy of reasons: Evans v The Queen at [246] - [247]: BG v R at [100] - [101]. 52It was also submitted that no "risk factors" had been identified that would have led her Honour to conclude that there was a substantial risk of miscarriage of justice if the trial continued. Counsel for the applicant at trial did not suggest any to her Honour. In fact, he expressed no opposition to the continuation of the trial. 53The Crown submitted that the trial judge's decision to continue the trial was correct, having regard to the late stage of trial at which the juror was discharged and the lack of opposition by the applicant to continuation. It was submitted that if the entire jury was discharged it would have the consequences that the entire trial would have to be re-run; the cost of the 12 days already occupied by the trial would be wasted; and the applicant, being refused bail, would likely remain in custody without bail for a longer period.
Determination of Ground 3 54It was not contended for the applicant that the decision to continue the trial with a reduced number of jurors was wrong; simply that the process by which this decision was taken was incorrect. 55The importance of dealing separately with the two issues in Part 7A (discharge of juror and whether to continue with a reduced number of jurors) was emphasised in each of the judgments in Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99: Gleeson CJ and Hayne J at [6]; McHugh J at [26]; Kirby J at [67]; and Callinan J at [103]. 56As to the sequence in which her Honour dealt with the two issues, what occurred involved the following steps (contained all within about half a page of transcript (SU 43)): (1)The trial judge stated her opinion was that the juror's ability to perform his functions as a juror was being affected and that he should be discharged. (2)The judge then stated it was her opinion that despite the accused not having 12 jurors, there was otherwise no reason why the trial should not continue with 11, so "I will order that the trial is to continue with 11 jurors". (Emphasis added) (3)The juror was informed that he was discharged. (4)The judge then informed the remaining jurors "I have decided that the trial will continue with the eleven of you". (Emphasis added) 57Wu v The Queen was decided prior to the enactment of Part 7A, when the two issues were encompassed in s 22. Nothing presently turns upon this, except to understand why the reference to statutory provisions in the judgments is confined to s 22. It is important to note the practical consideration referred to by McHugh J: [30] Furthermore, although two stages are involved in the making of a s 22 order, the first stage cannot always be separated from the second stage. Before the judge discharges a juror for illness or "any other reason", the judge will usually need to consider whether exercising the power of discharge has implications for the continuation of the trial with the remaining jurors. In the case of the temporary illness of a juror, the proper course will ordinarily require the temporary adjournment of the trial rather than the discharge of the jury and the making of the s 22 order. 58The argument presented on behalf of the applicant depends upon a particular characterisation of the steps I have identified above (at [55]). In effect, it is contended that when her Honour said that the juror "should be discharged" (step 1), it did not constitute the discharge of the juror. That only occurred when the juror was informed that he was discharged (step 3). The statement that "I will order that the trial is to continue with 11 jurors" (step 2), and not the judge informing the remaining jurors that "I have decided that the trial will continue with the eleven of you" (step 4), represented the order made under s 53C. 59I cannot accept such a characterisation. I accept that, to some extent, there is a lack of clarity. But the reality is that two things were important; first, the judge regarded the two decisions as calling for separate consideration, and secondly, the second decision was only made after the first. 60I am satisfied that the judge gave separate consideration to the two issues and that her decision to continue the trial with a reduced number of jurors was taken only as a consequence of her decision to discharge the juror. If the judge had decided to discharge the juror because she had already decided to continue with 11 jurors, then error may have been established. But that is not what occurred. Alternatively, if she decided that the trial should continue with a reduced number of jurors as an automatic consequence of discharging the juror, error would have been established. Again, that is not what occurred. 61The fact that the two issues were dealt with in a "leapfrogging" fashion, as indicated by the four steps I have identified (above at [56]), does not mean that the two issues were elided or conflated, or that the second issue was decided before the first. 62The alternative submission advanced under this ground concerned her Honour's statement that she could see no reason why the trial should not continue with 11 jurors. It was contended that she should have articulated the "risk factors relevant to the question of whether or not a substantial miscarriage of justice would be occasioned" on the issue as to whether the trial should have continued. 63The judge referred to the applicant being deprived of 12 jurors. That was certainly an important matter that was stressed in the various judgments in Wu v The Queen. Her statement that "as to the matters in s 53C ... there is no reason why the trial should not continue with 11 jurors", I take to mean that she could not otherwise identify any reason why continuing the trial would risk a substantial miscarriage of justice. On forming such an opinion she was required to order the trial to continue: s 53C(1)(b). 64The Crown in this Court pointed to a number of factors militating in favour of the trial continuing with a reduced number of jurors (see above at [53]). When counsel for the applicant was pressed to articulate reasons pointing in the opposite direction he was unable to do so. 65My conclusion is that it has not been demonstrated that the decision of the trial judge to continue the trial with a reduced number of jurors was wrong.
Adequacy of trial judge's reasons 66There was some discussion at the hearing of the application concerning the adequacy of the reasons disclosed by the trial judge. The relevant passages of the transcript have been set out above. Clearly, the reasons given were brief. The critical phase occurred at about 3.30 on a Friday afternoon. It was the second day of the jury's deliberations and the judge was unaware whether they would wish to sit on or resume their deliberations the following Monday. Overlaying this was a pressing need to deal with the concerns of an individual juror who could not continue beyond the Friday. Brevity of expression in these circumstances was understandable. 67It is important, however, to observe that the issues posed by ss 53A and 53B on the one hand and s 53C on the other are important and require separate consideration, as was pointed out earlier. Lengthy reasons for decisions made under these provisions, let alone formal judgments, will rarely be necessary. But it is nonetheless important that sufficient reasons are disclosed, so that the parties are aware of the bases of the trial judge's decisions and that this Court is not left to divine from the circumstances of the trial whether a decision was correct. The latter is, in part, because it is very difficult for this Court to infer much about the atmosphere of a trial from the pages of the transcript. Formal orders being announced with some clarity is also important. 68In BG v R [2012] NSWCCA 139 the trial judge had failed to make a separate order under s 53C to continue with a reduced number of jurors and no reasons were given. A juror was discharged and the judge immediately announced, "The jury will therefore continue as a jury of 11". Adamson J, with whom McClellan CJ at CL and McDougall J agreed, referred to the judgment of Heydon J in Evans v The Queen at [246] - [247] to support the proposition that a lack of reasons will not be determinative in an appeal of this kind. Rather, this Court must determine whether the continuation of the trial with a reduced number of jurors has given rise to a risk of a substantial miscarriage of justice. In other words, rather than this Court reviewing a primary decision, this Court was required, in effect, to determine the issue for itself. This is unsatisfactory. 69In BG v R, Adamson J determined that there had been no risk of a substantial miscarriage of justice. She added the following observations about the importance of trial judges giving reasons: [137] The trial judge's failure to address s 53C explicitly and separately from her decision to discharge a juror did not affect the result, since I have found that her Honour's decisions to discharge the juror and continue the trial with the remaining jurors were within a proper exercise of discretion. However, it is highly desirable that trial judges, when an occasion for the discharge of a juror arises, state not only the reasons for discharging a juror, or refusing to do so, but also the reasons for continuing the trial with the remaining jurors or discharging the whole jury. [138] Although this Court can, as it has done in the instant case, undertake the task itself of determining whether the decisions made by the trial judge are correct, or amount to a proper exercise of the discretion, it is preferable that the reasons for a trial judge's decisions on these matters are expressed. Not only do reasons assist in permitting the accused in particular to understand the basis of the decision, but they are, if expressed, available to this Court. In the absence of reasons this Court is left to infer from the circumstances of the trial what the reasons were, or might have been, if the correct question had been asked and the statutory provisions expressly addressed and considered. 70Earlier, in Wu v The Queen, Callinan J observed: [103] I need only make this further observation. It is appropriate that a trial judge, confronted with a situation in which he or she has to make a decision about a reduction in the number of jurors not do so hastily, without as full an inquiry as is practicable and reasonable, and without making explicit orders as s 22 requires, as to the reduction in number and the continuation of the trial with the reduced number. Adherence to such a procedure (which the Act demands) has the effect not only of ensuring an unambiguous record of what has taken place but also of focussing the trial judge's attention upon the necessity to weigh up whether a juror's or jurors' absence should require the trial to be aborted or whether it should continue with the reduced number. ... 71In the present case, the reasons of the trial judge were barely adequate. My view is that they were sufficient for this Court to understand the bases for her decisions. I fully appreciate the prevailing circumstances; they were not conducive to providing extensive reasons for the decisions. The fact that there was no opposition by trial counsel for the applicant probably encouraged an economical approach by the judge. And expansive reasoning is usually not required in relation to issues concerning the discharge of jurors, or the consequential continuation or termination of trials. But it would be useful for this Court if in the future a little more attention were given to announcing formal orders, and giving brief reasons for the conclusions that led to the making of such orders.
Conclusion 72I am not persuaded that there is any merit in any of the proposed grounds of appeal. They were each technical and they ignored the practical realities of the trial. It is unfortunate that they were sought to be raised in the face of each of the decisions made by the trial judge either having the direct support of the applicant's counsel, or without his opposition.
Orders 73I propose that leave to appeal be refused.
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Le
R
[2007] HCA 59
(2007) 235 CLR 521
(1936) 55 CLR 499
(1999) 199 CLR 99
[1936] HCA 40