R v Brown & Tran

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0935 FILE NUMBER(S) : LOWER COURT Berman DCJ JUDICIAL OFFICER :

• 10 - IN THE COURT OF CRIMINAL APPEAL 2003/3089 (60500/03) 2004/1884 (60235/04)

Mason P Sully J Sperling J

Thursday, 30 September 2004 Regina v Jarrod Christopher Brown Regina v Nam Duong Tran Judgment 1 Mason P: I agree with Sperling J. 2 I would add this. Everything points in the present case to an entirely innocent intervention by "Ms Smith". Nothing suggests that she deliberately impersonated the juror who meant to attend the Downing Centre on 26 February 2003 and unexpectedly did not; or that Ms Smith went out of her way to get onto the panel from which the appellants' jury was drawn. But other cases might be closer to the line or over it. 3 One function of the system of random jury selection in accordance with the procedures of the Jury Act 1977 is to prevent any miscarriage of the type I have hypothesised and rejected. Yet investigation of the facts involved in such matters would be difficult. Interrogation of jurors is problematic, as Berman DCJ recognised in the present case. These factors reinforce my conclusion, in agreement with Sperling J, that the purpose of the relevant sections of the Jury Act, gleaned from the language of the sections and the scope and object of the statute as a whole, is that the empanelling of the jury in a case such as the present would be invalid and ineffective (cf Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1988) 194 CLR 355 at 390-1 [93]). 4 Sully J: I agree with Sperling J. 5 Sperling J: On 4 April 2001 a maroon Subaru Liberty, registered number WAB392, was stolen. Between 1 April and 6 April 2001, a dark blue Subaru Impreza, registered number XEG765, was stolen. In the early hours of 5 April 2001 the following further events occurred. Graces Hardware Store at 97 Percival Road Stanmore was broken into. Property to the value of $850 was stolen. The stolen property included bolt cutters, pinch bars, screw drivers, sledge hammers, wrenches, crow bars, block splitters and hatchets. The Regent Hotel at Kingsford was entered by a group of men, one of whom had a hatchet, a crow bar and a knife. A total of $6320 in cash was stolen. The Kareela Golf Club at Kareela was entered by two men. An automatic teller machine and a cigarette vending machine were damaged. Gaming machines were also forced open and the coin collectors were removed. 6 Five young men are alleged to have been involved, including Jason West, Neil Pettersen, Tuan Ta, the appellant Jarrod Brown and the appellant Nam Duong Tran. 7 Of these, Mr West and Mr Ta were tried separately from Mr Pettersen and the applicants. They were acquitted on all counts.

The subject trial 8 Mr Tran, Mr Brown and Mr Pettersen were to be tried jointly. 9 Before the jury was empanelled, Mr Pettersen pleaded guilty to one count of break, enter and steal in company (at the hardware shop), one count of robbery in company (at the hotel) and one count of break, enter and steal in company (at the golf club). Form 1 consisted of one count of assault (throwing axes at witnesses at the hardware shop) and one charge of malicious damage (at the golf club). 10 The trial then proceeded against Mr Tran and Mr Brown. 11 Mr Tran and Mr Brown were each arraigned on the following charges.

Count 1: Break, enter & steal in circumstances of aggravation, being in company, contrary to s112(2), Crimes Act 1900 (for which the maximum penalty is 20 years imprisonment). This related to the hardware shop.

Count 2: Robbery in company, contrary to s97(1), Crimes Act 1900 (for which the maximum penalty is 20 years imprisonment). This related to the hotel.

Count 3: Break, enter & steal in circumstances of aggravation, being in company, contrary to s112(2), Crimes Act 1900 (for which the maximum penalty is 20 years imprisonment). This related to the golf club.

Count 4: Malicious damage, contrary to s195(a), Crimes Act 1900 (for which the maximum penalty is 5 years imprisonment). This also related to the golf club. 12 Mr Tran was arraigned on the following further charge.

Count 5: Larceny of motor vehicle, contrary to s117/154A(1), Crimes Act 1900 for which the maximum penalty is 5 years imprisonment). 13 The appellants pleaded not guilty. They were found guilty on all counts. Mr Tran was sentenced as follows.

Count 1: Imprisonment for a fixed term of 2 years to commence on 6 March 2003 and expire on 5 March 2005

Count 2: Imprisonment for a term of 4 years to commence on 6 March 2005 and expire on 5 March 2009, with a non-parole period of 2 years to commence on 6 March 2005 and expire on 5 March 2007

Count 3: Imprisonment for a fixed term of 3 years to commence on 6 March 2004 and expire on 5 March 2007

Count 4: Imprisonment for a fixed term of 2 years to commence on 6 March 2004 and expire on 5 March 2006

Count 5: Imprisonment for a fixed term of 1 year to commence on 6 March 2003 and expire on 5 March 2004

The effective sentence was imprisonment for six years with a non-parole period of four years. 14 Mr Brown was sentenced as follows.

Count 1: Imprisonment for a fixed term of 2 years to commence on 6 March 2003 and expire on 5 March 2005

Count 2: Imprisonment for a term of 4 years to commence on 6 March 2005 and expire on 5 March 2009, with a non-parole period of 2 years to expire on 5 March 2007

Count 3: Imprisonment for a fixed term of 3 years to commence on 6 March 2004 and expire on 5 March 2007

Count 4: Imprisonment for a fixed term of 2 years to commence on 6 March 2004 and expire on 5 March 2006

The effective sentence was imprisonment for six years with a non-parole period of four years, the same as for Mr Tran.

The appeal 15 Both appellants have appealed against conviction and sentence. Mr Tran's appeal against sentence is not pressed. 16 Mr Tran's grounds of appeal are as follows.

Ground 1: The trial was conducted with a jury which was not selected in accordance with the Jury Act as required by s19 of the Jury Act 1977.

Ground 2: The verdicts were unsafe and unsatisfactory.

Ground 3: The appellant should have had a separate trial.

Ground 4: The verdict in relation to Count 2 in the indictment was independently unsafe and unsatisfactory.

Ground 5: The appellant being required to exhibit a demonstration of posture in court hence abrogating his right not to give evidence.

Ground 6: The directions of the learned trial judge effectively amounted to an impermissible comment about the failure of the accused to give evidence. 17 Mr Brown's grounds of appeal are as follows.

Ground 1: The trial was vitiated by the presence on the jury of a person who was not lawfully empanelled. (This corresponds with ground 1 in Mr Tran's appeal).

Ground 2: There is erroneous disparity between the aggregate sentence imposed upon the appellant and the aggregate sentences imposed on the co-offenders Tran and Pettersen.

In the Tran appeal: The trial was conducted with a jury which was not selected in accordance with the Jury Act as required by s19 of the Jury Act 1977.

In the Brown appeal: The trial was vitiated by the presence on the jury of a person who was not lawfully empanelled. 18 Ground 1 in each case was substantially the same.

Error discovered 19 After the jury had been empanelled and the Crown prosecutor had opened the Crown case, there was the following exchange between the trial judge and counsel. (Mr Drewett was appearing for Mr Tran. Mr Dennis was appearing for Mr Brown.) HIS HONOUR: Just before you start Mr Drewett, the court officer has drawn this to my attention. Sitting on the jury is a juror who wasn't supposed to be here today. The juror was supposed to come next month, but has come by mistake today, has mis-identified her number and has been empanelled. I'm open to suggestions as to whether that's a problem. I can't see it is a problem. After all, if we'd run out of jurors we could have gone out and dragged people off the street. So, the fact that they were here by accident I can't see it's a problem. The juror has been randomly selected, even more randomly than usual because she came by mistake, and has taken either taken an oath or make an affirmation to hear this trial and deliver her verdict according to the evidence. Has anyone got any submissions? DENNIS: I don't have a problem with it your Honour. I'm happy for the matter to continue. HIS HONOUR: Mr Drewett? DREWETT: I don't have a problem, but I might suggest that it may be prudent to identify the juror and just ask her to clarify that that is the true position and that there is no other hidden motive perhaps in wanting to be on the jury. I don't think that's likely and I'm sure it is quite innocent. HIS HONOUR: I don't want to single her out in that way. When she came along today she wouldn't have known she was going to be selected for this trial. DENNIS: Just to clarify your Honour - I take it the position is that this juror had proper documentation and is simply come on 26 February when the document says 26 March. HIS HONOUR: Close. I won't give you the exact details, but that's right. She was intended to be a juror next month. She's just come earlier. DENNIS: Yes, I've got no problem. HIS HONOUR: She must be very keen. DREWETT: I'm entirely in your Honour's hands. I can't see that there'd be any great problem. HIS HONOUR: Mr Crown anything? CROWN PROSECUTOR: I don't have concern about the juror continuing. The only problem is whether there is a procedural difficulty. HIS HONOUR: If there is a procedural problem you let me know after lunch. If there's any technical reason that we have to do something then let me know after lunch.

(Praying tales had in fact been abolished with the introduction of the Jury Act 1977.) 20 Later in the day, the following exchange took place. HIS HONOUR: Does anyone want to say anything in relation to that problem with the jury. DENNIS: No your Honour, I've taken the time to look at the Jury Act over the lunch adjournment. I think the situation is this. The Jury Act talks about jurors answering a summons, it doesn't say on a particular date, your Honour. I think answering a summons implies on the correct date, I don't know that she's answered the summons correctly, and further random selection is only where there is an inadequate number-- HIS HONOUR: Just tell me, what's your ultimate application. DENNIS: Ultimately your Honour I've taken instructions from Mr Brown. We waive the issue your Honour, and I note the terms of section 73 of the Jury Act, which basically says the verdict is not invalidated by the irregularity. HIS HONOUR: Thank you. Mr Drewett, Mr Crown? DREWITT: Yes, the same your Honour. HIS HONOUR: Mr Crown? CROWN PROSECUTOR: Yes your Honour.

The Jury Act 1977 21 Part III of the Jury Act 1977 relates to jury districts and jury rolls. Sections 9 and 10 provide for the sheriff to maintain a jury roll for each jury district. 22 Part IV relates to trial by jury. Section 19 provides as follows. The jury in any criminal proceedings in the Supreme Court or the District Court is to consist of 12 persons returned and selected in accordance with this Act. 23 Section 25(1) provides as follows. The sheriff must select at random, from the jury roll for each jury district, the number of jurors estimated by the sheriff as required to be summoned for trials or coronial inquests in that jury district. 24 Section 26(1) provides as follows. The sheriff must issue a summons to each person selected requiring the person to attend at the court or coronial inquest, at the place and at the time specified in the summons until discharged by the court or coroner. 25 By s27, the sheriff may select and summon jurors to make up or supplement a jury panel in order to provide an adequate number of persons for the selection of a jury. 26 By s28, the sheriff is to return a panel of the names of those, summoned to attend on the particular occasion, who are qualified and liable to serve as jurors. The sheriff is also to provide, with the return, a card in respect of each such person bearing, in particular, the name of the person. 27 By s29, the sheriff is to allocate an identification number to each person included in the panel and is to record that number on the panel against the name of the person and on the card relating to the person. The person is to be informed of his or her identification number when attending under the summons, and is then to be addressed or referred to only by that identification number when present at the court. 28 Parts VI and VII relate proceedings in court, including challenges and the selection of the jury from the panel by balloting. 29 Part X includes s73, which provides as follows. The verdict of a jury shall not be affected or invalidated by reason only: (a) that any member of the jury was disqualified from serving as a juror or ineligible to serve as a juror, (b) of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act, (c) that any juror was misnamed or misdescribed (where there is no question as to the juror's identity). 30 It is fundamental to this code that the only persons to be included in a jury panel are persons who have been selected at random from the jury roll and summoned accordingly to attend for jury service on the particular day.

How the error occurred 31 Mr R A Wilson, a court officer, was on duty at the District Court on the day. He is the officer who reported the matter to the trial judge. Mr Wilson gave evidence at the hearing of this appeal. He is employed by the Sheriff's Office and is familiar with the procedures for processing jurors when they attend court. The relevant procedures and what happened on this occasion was explained by him as follows. 32 On any one day panels, each of 100 prospective jurors, are constituted. 33 A prospective juror's summons bears three numbers, a precept number for the panel and two juror numbers. 34 The first juror number is the juror's individual identification number. 35 The second juror number - the "call number" - is a number which relates the juror to the particular panel. It is a five digit number. The first four digits are the last four digits in the precept number for the panel. The last three digits are from a series 001 to 100 (making up the panel of 100 persons). 36 The summons also bears a reference to the juror's panel for that attendance (being Panel A or Panel B etc.). 37 Prospective jurors attending in answer to their summonses report at the jury muster room at the Downing Centre. Before entering the room, their identity is confirmed by some form of photo identification. They are then directed to the part of the muster room for their panel. 38 On this occasion, a juror (who was referred to as "Ms Smith" for convenience) had received a summons to attend at court on 24 March 2003, Panel B. She attended in error on 26 February 2003. 39 What then occurred could be inferred from the way jurors are processed when they report for service. 40 When Ms Smith presented her summons and identified herself, it was not noticed that her summons was for another date. 41 In the muster room, jurors are checked off against a roll for the particular panel. The roll contains no names, only call numbers. Ms Smith's seven digit call number would not have been on the roll for panel B. The last three digits of her call number (in the series 001 to 100) would have corresponded with a number on the roll. But the first four digits of her call number (which corresponded with a panel number) would not have corresponded with the first four digits of the call numbers on the roll for that panel that day. The discrepancy was again not noticed, Ms Smith was erroneously checked off against the number on the roll which corresponded to Ms Smith's summons only in relation to the last three digits. 42 At that stage, Ms Smith had been accepted as a juror summoned to attend as a member of that panel on that day, when in actuality she was not a person so summoned and not the person against whose call number she had had been checked off. 43 It appears that, by coincidence, the person, who had received a summons to attend on that day bearing the call number against which Ms Smith was checked off, did not attend. If he or she had attended, the error would presumably have been detected because two persons would then have presented themselves as the holders of the same call number. 44 After being checked off against the roll, Ms Smith was issued with a juror card bearing her call number. The cards are prepared in duplicate. One is given to the juror. The other is retained and provided to the judge's associate for use in balloting for the jury. Ms Smith was not qualified to receive the card given to her, not having been selected to attend that day and not having received a summons to do so. She was not the person who had been selected to fulfil the role which she assumed on that occasion. 45 Ms Smith then attended with others at the particular courtroom, where she was chosen by ballot and the jury was empanelled. 46 During the next recess, the error in relation to Ms Smith was detected by Mr Wilson and the matter was reported to the trial judge. 47 In summary, a person who had not been duly selected from the jury roll for attendance on that day and who had not been duly summoned to attend on that day had mistakenly been presented to the court as a person duly selected and summoned for jury service on that day, and had become a member of the jury.

The case law 48 In Tuckerman v Tuckerman and Hogg (1932) 32 SR (NSW) 220, the following passage appears (at 242): The Courts have always set themselves against the granting of new trials for what may be termed irregularities in composition of the jury. As early as the time of Lord Ellenborough it was held that the fact that a man whose name was not on the panel had served as a juror was not sufficient reason for setting aside a verdict. In Hill v Yates (12 East 229) the judgment of the Court is set out in these words: "Lord Ellenborough, CJ, after adverting to the motion which had been made and to the two cases which were then mentioned, observed that in the latter of them, the Court appeared to have considered the application as a matter within their discretion and that no injustice having been done, they had refused to interfere. His Lordship then said that he had mentioned this case to all the Judges and they were all of the opinion that it was a matter within their discretion to grant or refuse a new trial on such a ground; and that if no injustice had been done, which was not pretended in this instance, they would not interfere in this mode, but would leave the party to get rid of the verdict as he might. That if they were to listen to such an objection, they might set aside half the verdict given in every assizes where the same thing might happen from accident or inadvertence and possibly sometimes from design, especially in criminal cases. …" 49 A stricter approach has since been adopted in this country. In Maher (1987) 163 CLR 221, two charges were added to the indictment after the jury had been sworn. The jury was not resworn. The appellant was convicted on one of the added charges. It was held that there was a failure to comply with mandatory provisions governing the constitution and authority of the jury. The conviction charged in the added count was set aside. In their joint judgment, Mason CJ, Wilson, Brennan, Dawson and Toohey JJ said at 233-4: The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s 604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor . In any event it involves such a miscarriage of justice as to require the conviction to be set aside. Thus, in Reg. v Smith a trial was regarded as a nullity because a challenge for cause had been wrongly determined by the judge and not by the jurors. The converse situation arose in Reg. v Hall where the trial judge directed jurymen to try a challenge for cause when the relevant statute required the judge to try any challenge. The conviction was set aside. A similar view was taken in Reg. v Short . There a juryman was taken ill and the remaining jurymen were discharged but did not leave the jury-box. Another juryman was called and sworn but the other eleven jurymen were not resworn. Judgment against the prisoner was reversed for error on the record. Again, in R v Dempster , when it appeared that one of the jurors while duly empanelled and chosen had not been sworn, the court directed the record to be amended by expunging all entries subsequent to the plea of not guilty. [Footnotes omitted] 50 In Johns (1978) 141 CLR 409, the accused challenged a juror. His counsel withdrew the challenge, purportedly overriding the accused's decision. The juror was not stood aside and was included in the jury. It was held that the accused had been denied his right to challenge, the jury had accordingly not been constituted according to law and the trial was a nullity. 51 Katsuno (1999) 199 CLR 40 involved a practice under which the Victorian Police provided the Director of Public Prosecutions with advance information concerning persons listed on jury panels for the purpose of assisting the Director in relation to peremptory challenges. The legislation provided for such information to be supplied to the Director but at a later time. Supply of the information in advance was unlawful. A majority of the court Gaudron, Gummow and Callinan JJ held that the unlawful supply of such information vitiated the trial. Statements of principle were made in the course of the joint judgment. [35] At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the Court in Maher, they are concerned with "failure to observe the requirements of the criminal process in a fundamental respect" of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect. [41] The question in this case is whether there was a fundamental failure to observe the requirements of the criminal process. As Maher and Johns show, there will have been a failure of that kind if there was a failure to comply with a mandatory provision relating to "the constitution and authority of the jury". However, not every legislative provision is a mandatory one. In this context, it is convenient to return to the Act. For example, it hardly seems likely that a minor arithmetical error by the Sheriff in notifying the Electoral Commission of the number of persons required for jury service, or an error as to the exact location of a juror's residence within 32 km of a relevant court house pursuant to s 8, would invalidate the process for which that section makes provision. Nor would an omission to send a questionnaire as required by s 10(2) to every person recorded on a jury list be likely to render a nullity a verdict given by a jury selected from a panel which might have been a little more numerous had all questionnaires been sent as required. [42] Part IV of the Juries Act in which s 21 appears is concerned, as the heading states, with the summoning of jurors. Some of its provisions are clearly mandatory (eg , ss 14 and 17, dealing with the number of jurors, and ss 20 and 23, dealing with random selection). It is true that any jury will have to be constituted from a panel prepared pursuant to Pt IV and after the processes referred to in s 21 are complete. [43] In this case, however, the jury was constituted from such a panel. The complaint in this case is not that the jury panel was not properly constituted but that a particular person was not a member of the jury finally chosen. This is not a case, as was the situation in Maher , Short and Dempster , where there was non-compliance with legislative provisions or mandatory procedures which resulted in a person or persons sitting on the jury when not entitled to do so. Rather, it is a case involving the exclusion of a potential juror who, as already pointed out, could have been excluded by peremptory challenge for any reason, whether good or bad. [Footnotes omitted and emphasis added]

In Short (1898) 19 LR (NSW) 385, the jury was discharged and jurors who were included in the new jury were not resworn. In Dempster [1924] SASR 299, one of the jurors was not sworn. In Maher (above), the jury was not sworn to try the additional charges. The common feature of these cases identified by the High Court (see above) was that non-compliance with the legislation has resulted in a person or persons sitting on the jury when not entitled to do so. That is what happened in the present case. 52 McHugh J at [56] and Kirby J at [131] did not disagree with the principles stated by the majority in Katsuno, but with the application of those principles to the facts of the case. Kirby J said, at [131], [131] In a series of decisions of Australian courts, stretching back to colonial times, concerned ultimately with the integrity of jury trials, a strict view has consistently been taken where an appellant has shown error in the constitution of the jury empanelled or unlawful conduct on the part of officials or jurors. When such matters have come to this Court, it too has insisted upon strict compliance with the law governing the constitution of the jury and the conduct of jury trial. In Maher v The Queen this Court stated: "The provisions of the Jury Act [1929 (Q)] and of the [Criminal Code (Q)] which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory. A failure to comply with those provisions ... involves such a miscarriage of justice as to require the conviction to be set aside." The Court in Maher went on to emphasise that failure to conform to such law, even where the trial may otherwise have been impeccable, will be classified as a "failure to observe the requirements of the criminal process in a fundamental respect". By its very nature, jury selection involves a process performed before the finalisation of the jury's constitution. While it is true that past decisions had involved errors which occurred after the jury had been constituted, the strict approach reflected in Maher necessarily extends to jury selection itself - a process which inevitably and directly affects the constitution of the panel of those who will try the accused. This is particularly critical where the unlawful conduct involves a denial of basic procedural fairness and equality before the law, as was the case here. 53 It is easy to see how minds could differ concerning the application of agreed principle to the facts of Katsuno. The infringement in that case was the early supply of information to the Crown which the Crown was entitled to have later. The infringement had not demonstrably affected the composition of the jury. In the present case, the composition of the jury was affected.

Discussion 54 In light of these authorities, it cannot be doubted that what occurred in the present case involved a failure of compliance with mandatory provisions of the Jury Act 1977. 55 The trial is accordingly a nullity unless s73 and, in particular, s73(b), applies. 56 The phrase "with respect to" in s73(b) designates a connection. In a sense, the error which occurred in the present case had a connection with documents of the kind mentioned in s73(b). In particular, it had a connection with a summons and a card. It cannot have been intended, however, that every omission connected with a document of the kind specified will be excused. So wide a construction would mean that failures of compliance with mandatory provisions of the most fundamental kind would be excused. 57 I would accordingly construe s73(b) as meaning an omission, error or irregularity in respect of a document of the kind specified, as a document. The exemption is then confined to omissions, errors and irregularities concerning the content of such documents. It covers, for example, mistakes in the spelling of names or addresses recorded in documents. It does not cover mistakes in relation to mandatory processes required by the legislation, even if such processes involve the making or use of documents of the kind specified (as they would generally, if not always, do). 58 Reference to the corresponding provision of the Juries Act 1974 of the United Kingdom is instructive. (The statute is applicable to England and Wales.) 18(1) No judgment after verdict in any trial by jury in any court shall be stayed or reversed by reason - (a) that the provisions of this Act about the summoning or empanelling of jurors, or the selection of jurors by ballot, have not been complied with, or (b) that a juror was not qualified in accordance with section 1 of this Act, or (c) that any juror was misnamed or misdescribed, or (d) that any juror was unfit to serve. (2) Subsection (1)(a) above shall not apply to any irregularity if objection is taken at, or as soon as practicable after, the time it occurs, and the irregularity is not corrected. (3) Nothing in subsection (1) above shall apply to any objection to a verdict on the ground of personation. 59 If the legislature of New South Wales had intended so wide an exemption, covering mandatory processes as well as documentation, that could readily have been enacted with clarity. The United Kingdom model existed in 1977. Instead, the legislature of this state chose to use imprecise language, leaving it to context to define the ambit of the provision. Without clear words to the contrary, such as have been used in the United Kingdom legislation, I would assume that it was not intended by the legislature here to exempt non-compliance with fundamental, mandatory provisions of the legislation of the kind involved in the present case, where the composition of the jury has been affected by error. 60 It was submitted by counsel for the Crown that s73(b) should be construed as comprehending any innocent mishap which resulted in non-compliance with the legislation. I think it is difficult to impute to the legislature, without clear words, an intention to distinguish between mendatious and innocent non-compliance where fundamental, mandatory provisions of the legislation are involved. I would not construe s73(b) in that way. 61 Section 73(b) does not, in my view, avoid what is otherwise the consequence of non-compliance with the legislation in this case.

Result 62 The trial is a nullity. The verdicts must be set aside and a new trial may be held at the discretion of the prosecuting authority.

In the Tran appeal: Other grounds of appeal 63 The trial being a nullity, other grounds of appeal do not fall to be determined. However, the prosecuting authority may be assisted by the following observations, concerning ground 2 in the Tran appeal, in deciding whether Mr Tran should stand trial again in relation to the charges against him other than larceny of the motor vehicle.

Ground 2: the verdicts were unsafe and unsatisfactory 64 Counsel appearing for the Crown on the appeal was asked to specify the direct evidence relied upon in support of the verdicts against Mr Tran. The evidence specified can be summarised as follows.

(a) In the early hours of 5 April 2001, three males travelled in a taxi from Mr Tran's residence at Glebe to the Kent Street parking station.

(b) Security video cameras at the parking station recorded three males entering the car park and departing in the Subaru motor vehicle.

(c) One of the males shown in stills taken from the video recordings resembled Mr Tran.

(d) The Subaru motor vehicle was seen at and near the premises wrongfully entered later that night.

(e) A mobile phone, used in the vicinity of the premises wrongfully entered later that night, was found by the police in Mr Tran's bedroom at the Glebe residence in the course of a police search carried out some weeks after these events.

Other evidence was referred to but it was not evidence against Mr Tran. 65 The only basis on which the verdict in relation to larceny of a motor vehicle could be impugned as unreasonable was on the question of identity, that is, whether Mr Tran was one of the three males who committed that offence. In that regard, I think there was a sufficient resemblance between, on the one hand, one of the males depicted in the video stills and, on the other hand, Mr Tran's police photograph and his appearance in the flesh - he was present at the hearing of the appeal - to support a finding that Mr Tran was one of the males who stole the motor vehicle, particularly when that evidence was coupled with the taxi having picked up the three males from Mr Tran's residence. 66 However, in relation to the other offences, I am strongly inclined to the view that it was not open to the jury to find Mr Tran guilty. It seems to me that there was a reasonable hypothesis consistent with innocence, namely, that Mr Tran left the group after the theft of the motor vehicle and that his mobile phone was left with one of the others at that stage or had been in the possession of one of the others from the start. In these days, the lending of a mobile phone to friends or associates is commonplace. 67 I repeat that these observations are made without deciding the matters discussed in view of the trial being a nullity and that, for the same reason, there is no occasion to give consideration to other grounds of appeal.

Orders 68 There being no question for this court concerning a new trial, that being a matter for the prosecuting authority, I propose the following orders in each of the appeals:

(2) Verdicts set aside and convictions quashed. -oOo-

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