R v Clarke [2002] VSCA 184

10. This proceeding commenced as a case stated pursuant to ss.446(1) and 447(1) of the Crimes Act 1958. On the trial of Graeme Edward Clarke (the accused) on nine counts of sexual offences against the same female complainant in the County Court, a jury convicted him on seven counts and found him not guilty on two counts of indecent assault.

13. On the sixth day of hearing (31 July 2002) the judge completed his charge in the morning and the jury retired to consider its verdict. During the afternoon, at about 3.15 p.m., the jury requested the transcript for the entire trial. The request was considered by the judge and counsel in the absence of the jury, following which it was agreed that the judge should provide the jury with an edited transcript limited to the evidence heard by it. This was done at 4.45 p.m. The foreman then told the judge that the jury wanted to adjourn until the following day. The judge agreed to the request and asked the jury to return at 10 a.m. the following morning to resume their deliberations.

16. On the following day (1 August 2002) the jury continued their deliberations until they reached a verdict on all nine counts. His Honour received the verdicts of

guilty (counts 3 to 9 inclusive) and not guilty (counts 1 and 2) and discharged the jury. The court adjourned to 2 August for plea and sentence.

20. On 2 August the judge raised with counsel a perceived problem arising from the jury not having been sworn in the form of Schedule 5 in accordance with the requirement of s.50(2) of the Juries Act 2000 before the jurors separated.

23. No question arose of any interference with any of the jurors overnight or of any untoward event occurring during the period of separation that may have affected their verdict.

26. The judge apparently was satisfied that sub-s.(2) of s.50 had not been complied with and the transcript of the proceedings on 31 July confirms that the jury was allowed to separate without first being sworn in the form of Schedule 5.

29. The court did not proceed further with the trial, but reserved a question of law for the consideration and determination of the Court of Appeal. The question for determination is as follows:

"Does a trial judge, once aware that jury verdicts are invalid as a result of the jury not having been sworn in accordance with s.50 of the Juries Act 2000 have the power to regard the verdicts and the trial as being a nullity and proceeded with a retrial?"

33. By Act No. 108 of 1993[1], s.51A was inserted in the Juries Act 1967 empowering a trial court to allow the jury to separate after retiring to consider their verdict. Section 51A became operative on 1 February 1994. The new section abrogated the common law rule that jurors must remain segregated from the time when they embark upon their deliberations at the conclusion of the charge until they give their verdict.[2] Sub-section (2) provided;

"A court may only allow a jury to separate in accordance with sub-section (1) if each juror has given to the court an undertaking on oath or by affidavit not to discuss with any person, other than another member of the jury, any matter relating (directly or indirectly) to the inquest."

37. The Court of Appeal in R. v. Taylor[3] considered the consequence of jurors separating after the trial judge incorrectly allowed them to separate, when they had commenced their deliberations, without obtaining an undertaking from each juror in accordance with s.51A(2) of the Juries Act 1967. Southwell, A.J.A., in whose judgment Callaway, J.A. and Smith, A.J.A. agreed, was of the opinion that the separation of the jury, notwithstanding that the judge directed the jurors not to discuss the case with others, constituted a fatal irregularity in the trial, unless the separation was authorized by s.51A. His Honour considered that sub-s.(2) was expressed in exclusive terms: "A court may only allow a jury to separate ... if each juror has given the requisite undertaking." He said further:

"It follows that the giving of the undertakings is a condition precedent to the exercise of the discretion granted by sub-section (1); the court has no power to exercise that discretion unless and until the undertakings have been granted."

41. The Juries Act 2000 repealed the Juries Act 1967.[4] Section 50 replaced s.51A. It reads as follows:

(1) Subject to sub-section (2) but despite any rule of law or practice to the contrary, the court may - (a) allow the jury to separate; or (b) allow an individual juror to separate from the jury if, in the opinion of the court, there is good reason to do so - after the jury has retired to consider its verdict and before the verdict is given or the jurors are discharged. (2) A court may allow a jury or juror to separate in accordance with sub-section (1) only if each separating juror has been sworn in the form of Schedule 5."

"You (and each of you) swear by Almighty God that you will not discuss with any person other than another member of this jury any matter relating directly or indirectly to the evidence in this trial or the deliberations."

47. There is no material difference between s.51A(2) and s.50(2). Accordingly, the decision in Taylor is binding authority for the proposition that the taking of the oath in the form of Schedule 5 is a condition precedent to the exercise of the discretion granted by sub-s.(1). When the jurors separated on 31 July 2002 without taking the oath, a fundamental irregularity occurred in the trial which could not be cured by the trial judge. Had the irregularity come to the attention of the trial judge before the jury returned its verdict, the jury could have been discharged without verdict on the application of the accused or the Crown upon the ground that the accused had not had a proper trial. Indeed, the judge may proceed to discharge a jury for good and sufficient reason, should an irregularity become known before verdict, notwithstanding no application is made by either party. If the judge believed that the irregularity constituted "such a departure from the essential requirements of the law that it went to the root of the proceedings and that the accused has not had a proper trial,"[5] he should discharge the jury and may recommence the trial. Should an irregularity become known to the judge after verdict and before completion of the trial process, the only course open to the judge would be to complete the trial. Should an appeal be instituted the judge may include in his report[6] to the Court his opinion upon the irregularity arising in the trial. Be that as it may, the judge in this case did not discharge the jury before it returned a verdict on every count in the presentment, nor did he proceed to complete the trial, by hearing a plea and sentencing the accused, when he became aware of the irregularity.

50. The case stated is unhappily drafted, but essentially the question asks whether the trial judge had the power to regard the verdicts (of guilty and not guilty) and the trial as being a nullity and to proceed with a retrial.

53. When the case stated hearing commenced, Mr Coghlan appeared for the Crown. The accused was not formally represented because he had not been sentenced and had not yet filed a notice of appeal against conviction. However, his solicitor was in court to listen to the proceedings. At first, Mr Coghlan submitted that once the irregularity was known it was inappropriate for the judge to proceed to sentence knowing that the guilty verdicts could not stand on appeal. Therefore, he argued, there was no bar to a retrial being commenced by the trial judge and the question on the case stated should be answered in the affirmative. As the discussion progressed, questions arose as to the status of the not guilty verdicts. Should a retrial be held of the counts on which the jury made findings of not guilty? If so, could the accused plead autrefois acquit, notwithstanding the irregularity? Could some verdicts be null and void and other verdicts valid?

56. The problems raised in this proceeding have not come under consideration in Victoria, or elsewhere, so far as research has shown. The authorities listed below all came to the court on appeal after completion of the trial and not on case stated before completion of the trial.[7] All are concerned with irregularities affecting the jury during the trial, but in each case the trial was completed and the accused sought leave to appeal the conviction.

59. Mr Coghlan moved from his initial proposition and finally submitted that the appropriate course for the trial judge would have been to complete the trial, leaving it to this Court to determine whether the irregularity led to a mistrial in respect of the guilty verdicts after an appeal was instituted. In my opinion, this was the only course open to the trial judge. After jury verdict this Court is the competent court to correct the guilty verdicts by quashing the convictions.[8] It can have nothing to say about the not guilty verdicts. They will become part of the court record.

62. During the hearing, the President on behalf of the Court invited the solicitor for the accused to file notice of application for leave to appeal against a conviction. When the notice was filed, the court could and would deal with the application forthwith. Mr Coghlan indicated that the Crown would support an application to quash the guilty verdicts. The solicitor agreed to do so and proceeded to prepare and file an application.

65. I am satisfied that the convictions were tainted by the irregularity which occurred when the jurors separated on 31 July without first being sworn as required by s.50(2). The irregularity went to the root of the proceedings and the accused did not have a proper trial according to law. A reasonable and well-informed person would have been entitled to entertain a suspicion that the jury did not perform their duty according to law.

68. I am of the opinion that the application must succeed and the appeal against conviction allowed. The convictions should be quashed and a new trial ordered on counts 3 to 9 in the presentment, subject to the discretion of the Director of Public Prosecutions to determine whether, with respect to those counts, a third trial should proceed.

71. I am of the opinion that the Court should determine not to answer the question of law reserved for its consideration as the question is now otiose.

[1] Juries (Amendment) Act 1993, s.9.

[2] "The ancient common law rule was that jurors, once empanelled, were required to remain together until they had delivered their verdict. This involved keeping the jurors confined in the court, separated from all others, without nourishment and fire for their physical comfort." Kaye, J. in R. v. Chaouk [1986] VicRp 70; [1986] V.R. 707 at 710. In an article "On the Segregation of Jurors" published in (1953) 6 Res Judicatae 139, Barry, J., a notable criminal law jurist, considered the history of the jury system with particular reference to jury segregation.

[3] (1996) 86 A.Crim.R. 293.

[4] Juries Act No. 53 of 2000. Part 6, which includes s.50, came into operation on 1 August 2001

[5] Wilde v. The Queen [1988] HCA 6; (1987-1988) 164 C.L.R. 365 at 373.

[6] See s.573 of the Crimes Act 1958.

[7] R. v. Hall [1971] VicRp 35; [1971] V.R. 293; R. v. Chaouk [1986] VicRp 70; [1986] V.R. 707; R. v. Evans (1995) 79 A.Crim.R. 66; R. v. Appleby (1996) 88 A.Crim.R. 456; R. v. Patton [1998] 1 V.R. 7; R. v. Ali Sen [1999] VSCA 181.

[8] See s.568(1), Crimes Act 1958.