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.