R v Dunstall

Background to the controversy

1. That was not, however, all that had happened in the trial. The further events are as follows.
2. The trial was listed to commence on Monday 3 September 2018. At a pre-trial directions hearing some weeks beforehand, counsel had informed me that there were a number of legal matters that should be determined before the jury was empanelled, not least an important and "evidence rich" question about the admissibility of tendency evidence, and about which I shall provide a separate judgement, and that those matters would take some time to hear and resolve. The parties were correct, and it took almost two days to resolve all identified preliminary legal questions.
3. It was intended that the accused would be arraigned in the presence of a jury panel on the morning of Wednesday 5 September 2018. Most regrettably, however, shortly before 10 o'clock that morning I was informed in Chambers by the sheriffs that, although a large number of potential jurors had originally been summonsed, as a result of persons being excused before the week of trial, and persons being excused by the sheriffs on the Wednesday morning, and persons simply failing to answer their jury summons, a grand total of 22 persons were available to serve as jurors in a murder trial estimated to take something in the order of five weeks.
4. I convened the Court in the absence of that small jury panel and had the benefit of the submissions of counsel. As the transcript shows, I expressed the view that 18 panel members were required to be available to be empanelled if each party was to have its full complement of three challenges, and that there was no question of the accused being denied his full right of challenge.
5. I also expressed the opinion that it was very likely that more than four persons would seek to be excused from service by me for some reason or another, not least the nature of the allegation. And I expressed the related concern that, in the circumstances, I might - even unconsciously - shy away from granting a valid application for excusal, as a result of my concern that the trial be able to proceed.
6. I also noted that, if things reached a point where there were no longer 18 panel members available, the solemn process of arraignment and empanelment of a jury in a murder trial would simply grind to a halt in an unseemly manner before many members of the community.
7. In the event, it was agreed between counsel and me that the commencement of the trial should be deferred until Monday 10 September 2018, for which date two panels of (potentially) 100 persons had been summonsed. I had the 22 jury panel members who had attended brought into the courtroom, thanked them for their attendance, and asked them to return on the following Monday.
8. The net effect of all those logistical problems was that the trial was fruitlessly postponed for a period of five days (two of which were the intervening weekend) from Wednesday 5 September 2018 until Monday 10 September 2018.
9. On Monday 10 September 2018, a very large panel of potential jurors was brought into the courtroom, and there was no difficulty with empanelling the jury.
10. The upshot of all of that background was this: if I had acceded to the application of defence counsel to discharge the jury of 11 on Monday 10 September 2018, and to start afresh on Thursday 13 September 2018, the hearing of the trial before a jury would have been delayed in total for over a week, from Wednesday 5 September until Thursday 13 September 2018.

Submissions of defence counsel

1. In helpfully focused oral submissions, senior counsel for the accused made the following points in support of discharge of the remainder of the jury.
2. First, he accepted that the question was a matter for my discretion.
3. Secondly, he made it clear that he did not suggest that anything prejudicial could have been said by the discharged juror (who was excluded, in short, because of his employment within the Juvenile Justice system) to the remaining 11 jurors.
4. Thirdly, given the fact that he was on trial for murder, the accused had provided instructions that he would prefer to commence substantively with the full complement of 12 jurors.
5. Fourthly, substantively commencing a reasonably lengthy trial with only 11 jurors ran the objective numerical risk of the trial needing to be aborted if further misadventure occurred.
6. Fifthly and finally, in light of the preliminary stage that the proceedings had reached, no time would be lost with regard to evidence already given before the jury needing to be repeated before a second one.

Determination

1. As I have written, in the event, I decided not to discharge the remaining 11 jurors, and simply to continue with the trial. I exercised my discretion in that way for the following reasons.
2. First, I regarded the decision of the High Court of Australia in Wu v the Queen [1999] HCA 52; (1999) 199 CLR 99 as the leading authority on the question.
3. In accordance with the judgments in that case and the structure of the Act, I regarded the question of discharging the excluded juror and the question of continuing with 11 jurors as quite separate: per McHugh J at [26].
4. I did not regard the question of continuation with the remaining 11 jurors as automatic: per McHugh J at [28] and Kirby J at [66].
5. I regarded the question for me as being how best the trial of the accused should proceed, in all of the circumstances that had arisen: per Gleeson CJ and Hayne J at [18].
6. Secondly, I acted upon the concession of defence counsel that, in the circumstances, there could be no question of the 11 remaining jurors having been prejudiced or influenced against the accused by the excluded juror. Part of my acceptance of that proposition was my understanding that, in any event, the jury would become aware in the course of the evidence without objection that the accused had been in custody for at least one matter other than the alleged murder, and was part of the milieu of the supply and manufacture of prohibited drugs.
7. Thirdly, I accepted that any accused person has a right to have his or her trial commence with a jury of 12, as of course had occurred: per Kirby J at [40] and [44].
8. And I also accepted that, speaking generally, it is certainly preferable to have a verdict of 12 jurors (though not, of course, essential, by way of a number of mechanisms to be found in the Act, not least the provision for majority verdicts): per Callinan J at [91].
9. Fourthly, I took the view that the whole context and history of the unusual logistical problems that had bedevilled the trial could be taken into account by me: per Callinan J at [100].
10. In other words, I felt that the earlier delay of some days was a relevant factor as to whether the trial should be delayed further: per Gleeson CJ and Hayne J at [18].
11. I also took into account, albeit to a small degree, that the fact that a very large number of people had attended in answer to their summons on the Monday, and would need to be called upon to do so on the Thursday, argued against discharge.
12. In summary with regard to this factor, to my mind, the interests of the administration of justice were not irrelevant to the discretionary question (though of course they could not be allowed to "obliterate" other considerations: per Kirby J at [74]). Indeed, I believed that they provided a positive reason for the continuation of the trial with less than 11 jurors: per McHugh J at [28].
13. Fifthly, I possessed a guarded confidence that, due to the effective work of the two legal teams in reducing the evidence and the issues, the trial would be shorter rather than longer (though not, of course, insubstantial). In other words, I assessed the risk of the trial needing to be aborted for some other reason in the subsequent weeks, due to insufficient jurors remaining on the jury, as reasonably low.
14. Sixthly and finally, I was of the opinion that a verdict of 11 jurors, randomly drawn from the community and focused upon the gravity of the allegation against the accused, would remain a "formidable body of opinion": per Callinan J at [96].

Conclusion

1. In short, in the unusual circumstances that had arisen in this case, despite the excluded juror being discharged on the day upon which the jury had been empanelled, and seeking to balance up the countervailing factors that I have set out above, I exercised my discretion not to discharge the remaining 11 jurors, and to continue with the trial.

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