R v McNeill

Relevant Legislation 7 The Juries (Amendment) Act 2007 (NI), which came into force on 29 January 2007, amended the Juries Act by introducing a new s 5D in the following terms: "(1) Notwithstanding subsection 5(2), where in the course of any trial in criminal proceedings any member of the jury dies or is discharged by the court whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial properly constituted if the number of its membersis not reduced below 10, and if the court so orders. (2) Where the number of members of a jury is reduced to 11 or 10, a unanimous verdict is for all purposes (including subsection 5C(2)), that of all of the remaining members." 8 Section 5E is headed "Transition" and is in the following terms: "Section 5D applies to every trial commencing after that section comes into effect and whether the alleged offences in respect of which the trial is to be held took place before or after that date." 9 Section 2 of the Juries (Amendment) Act provided that that Act would come into operation on the day on which notification of its assent was published in the Gazette. Notification of assent was gazetted on 29 January 2007.

Commencement of trial 10 The accused was arraigned before me on 1 February 2007, immediately prior to the commencement of what I was initially told would be a two day voir dire. As it happened, the voir dire ran over six days. As arrangements had been made for the jury to be empanelled on 5 February 2007, and the voir dire had not been completed at that stage, it was decided that the empanelment should proceed on that day, and the voir dire continue thereafter. In accordance with normal practice, the accused was re-arraigned before the entire jury panel on 5 February 2007. 11 The practice of arraigning an accused before the judge and then re-arraigning the accused, at a later stage, before the jury panel, is well-established: see, for example, R v Nicolaidis (1994) 33 NSWLR 364 at 367-368; and R v Talia [1996] 1 VR 462 at 468-476. Certainly, there is no reason in law why an accused may not be arraigned on more than one occasion: see R v Radley (1973) 58 Cr App R 394; and Cicchino v R (1991) 54 A Crim R 358 at 363. Neither Mr Howard SC for the Crown, nor Mr Garling SC for the accused, raised any objection to my having the accused arraigned before me prior to the commencement of the voir dire, and then being re-arraigned before the jury panel. 12 In Halsbury's Laws of England (4th ed, LexisNexis Butterworths (UK), 2006) Vol 11(3) at [1263], the procedure of arraignment is described as follows: "When a defendant appears in the dock, he is arraigned by the clerk of the court. The arraignment consists in calling the defendant to the bar by name, reading out each count of the indictment … and asking the defendant whether he is guilty or not guilty." (Footnotes omitted.) 13 In Talia the Victorian Court of Appeal observed (at 472) that the process of arraignment could be traced back to the earliest origins of our law. Historically the procedure was in place even before the accused had the option of electing trial by jury. The evolution of the procedure showed that from the earliest times arraignment always preceded, in point of time, the summoning of the jurors. 14 A trial commences when the accused is arraigned: Nicolaidis at 367 per Gleeson CJ. 15 In Victoria ss 391 and 391A of the Crimes Act 1958 (Vic) specifically create a procedure for arraignment so that matters of law affecting the conduct of a trial can be argued and ruled upon without the need to empanel a jury. It is a nice question whether, in the absence of express provisions of this type, the accused may be said to have been arraigned when he enters a plea of not guilty, prior to a jury panel being assembled. The alternative view is that the accused is only arraigned when he "puts himself upon his country", in the presence of the entire jury panel. 16 None of this makes the slightest difference to the issue raised in this case. The accused was either arraigned on 1 February 2007 or, alternatively, on 5 February 2007 when he was "re-arraigned" before the entire jury panel. It follows that, on any view, his trial commenced after s 5D came into operation. 17 High Court authority supports the proposition that s 5D is applicable to this trial, notwithstanding the fact that the section was introduced long after this offence was committed, and only shortly before the accused was arraigned. 18 In Rodway v The Queen (1990) 169 CLR 515 the High Court was required to consider the applicability of a provision of the Tasmanian Criminal Code. Until its repeal on 26 November 1987, s 136(1) of the Code provided that no person could be convicted of a sexual offence against a child without corroboration. On the repeal of that section the requirement that there be actual corroboration was replaced by a requirement that the judge warn the jury of the dangers of convicting without corroboration. The appellant was charged on 12 November 1987 with offences to which s 136 applied that were alleged to have been committed between 1982 and 1986. He was committed for trial in 1988 and his trial commenced in 1989. The High Court held that the new s 136 applied to the trial. The amendment did not affect existing rights or obligations but merely affected the way in which rights fell to be determined at trial. 19 One argument that the High Court specifically addressed related to s 16(1)(c) of the Acts Interpretation Act 1931 (Tas). That section provided that where an Act repeals any other enactment, the repeal shall not "affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed". It was held that s 16(1)(c)did not preserve the operation of the repealed s 136 of the Criminal Code because it applied only to acquired or accrued rights, and the accused had acquired no right to a particular mode of procedure at his trial. 20 In a joint judgment, the Court said (at 518-519): "The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations." 21 A similar approach had earlier been taken by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 where his Honour said (at 267): "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done"". (Footnotes omitted.) 22 In Rodway the Court referred specifically to Newell v The King (1936) 55 CLR 707. In that case, the accused was arraigned upon an indictment for manslaughter to which he pleaded not guilty. A jury was subsequently empanelled, but it was unable to agree upon a verdict. The accused was then remanded until the next criminal sittings. Before a new jury was empanelled the Jury Act 1936 (Tas) came into operation. That Act altered the requirement that there be a unanimous verdict and provided for the decision of a majority of 10 jurors after two hours' deliberation. A second jury subsequently returned a majority verdict, and the High Court was asked whether on the facts stated, the Jury Act applied to the case. It held that the Act did not apply to the accused's trial, and the majority verdict should therefore be set aside. 23 In Rodway the Court stated (at 520-521) that Newell was to be understood in the following way: "… what appears to have been important was that upon the commencement of his trial the accused had joined issue with the Crown and had placed himself in jeopardy of conviction upon the unanimous verdict of twelve men, not a majority of ten. It was in those narrow circumstances inappropriate to give the Jury Act a retrospective operation by applying it to a trial already begun. But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish L.J. in the passage cited by Dixon C.J. in Maxwell v. Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years". 24 It follows from the High Court's analysis of Newell in Rodway, that s 5D (which came into force before the commencement of the accused's trial) is, as s 5E expressly provides, applicable to this trial. There is no question in this case of giving s 5D retrospective operation. 25 I should add for the sake of completeness that nothing in s 31 of the Interpretation Act 1979 (NI) alters or affects the position. That section relevantly provides: "(2) Where an enactment repeals in whole or in part a former enactment, the repeal does not - … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed; … (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. (3) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing enactment had not been made." 26 Section 31 does not have the saving clause typically found in most analogous provisions, namely "unless a contrary intention is expressed". Also, unlike many such provisions, the section does not apply to an amendment, but only to a "repeal" (in whole or in part) of a former enactment. 27 Section 5D of the Juries Act does not repeal "in whole or in part" any former enactment. It does not repeal s 5(2) which provides that the "jury is to consist of 12 jurors". Section 5D retains that requirement. It also retains the requirement in s 5C that no verdict that a person is guilty of murder shall be returned by majority. The only change of any consequence that s 5D brings about is to permit a trial to continue in the event of death or discharge of a juror. In those circumstances the section provides that the jury shall be considered as remaining for all the purposes of the trial properly constituted provided that the numbers do not reduce below 10, and provided that the court so orders.

Empanelling juries on Norfolk Island 28 In the major cities on the mainland of Australia when a juror falls seriously ill in the very early stages of a criminal trial, there is no significant impediment to discharging the jury as a whole, and recommencing the trial before a new jury. Normally, another jury panel can easily be assembled. The position in Norfolk Island is quite different. 29 The process of arranging for a jury panel in Norfolk Island is particularly time consuming. First, once a date is fixed for a sitting of the Supreme Court at which a trial by jury is to be held, the Administrator is required to issue a precept directing the Sheriff to summon jurors before the Court. That precept must be in accordance with the specified form, specify the number of jurors required and the time and place at which the attendance of jurors is required, and be issued and delivered to the Sheriff at least seven clear days before the time so specified. 30 The Sheriff is then required to choose jurors to be summoned via the procedure set out in s 23 of the Juries Act. As soon as practicable after the jurors have been chosen in accordance with that section, the Sheriff is required to serve a summons on each of the chosen jurors in the prescribed form. That service must take place at least four clear days before the time specified as the time for attendance at Court. 31 Finally, before the time when a jury precept is required to be returned into Court, the Sheriff must: (a) prepare a list showing the names, in alphabetical order, and the addresses and occupations, of the persons summoned; (b) prepare, in respect of each person whose name appears on the list referred to in paragraph (a), a card showing the name, address and occupation of that person; and (c) prepare a list showing the names, in alphabetical order, of persons not summoned by virtue of s 23(3)(b) of the Juries Act and the reasons why those persons were not summoned. 32 As a practical matter, in Norfolk Island the list of things that must be done before a new jury panel can be assembled means that the entire process is likely to take, at the very least, some weeks.

The principles governing the discretion to continue with less than 12 jurors 33 The common law did not provide for a judge to discharge an individual juror although the entire jury could be discharged in a "case of evident necessity": Petroulias v R [2007] NSWCCA 134 at [15]; and R v Hambery [1977] 1 QB 924 at 927 per Lawton LJ. 34 It was because of the obvious inconvenience created by the need to discharge the jury as a whole if a single juror became seriously ill, or was otherwise unable to continue to serve, that the statutory provisions permitting the trial to continue with a reduced number were introduced: R v Ousley (1996) 87 A Crim R 326 at 343; and R v Panozzo (2003) 8 VR 548 at [25]. 35 There is one qualification to all this. There are recorded instances at common law of a juror having become disabled, and the remaining jurors having been re-empanelled with a replacement juror being sworn in: R v Beere (1843) 2 Mood & R 472 as referred to in Wu v The Queen (1999) 199 CLR 99 at [21]. 36 In Panozzo the trial judge adopted a variant of this practice. However, as the Victorian Court of Appeal noted, the accused in that case was denied the right to avail himself of the full number of challenges that should have been open to him in the circumstances. It was for that reason that the convictions in Panozzo were quashed. 37 Section 5D of the Norfolk Island Juries Act is modelled upon similar provisions in the States and Territories. In particular, it appears to be closely based upon s 22 of the Jury Act 1977 (NSW). 38 Section 22 of the New South Wales Act was the subject of careful consideration by the High Court in Wu. In that case the appellant was indicted in the District Court of New South Wales on counts of kidnapping and attempted murder. A jury was empanelled and the trial began. On the morning of the tenth day of the hearing the judge was informed that one of the jurors had been taken ill. He intimated his intention to discharge the juror and invited submissions from counsel. He noted that the case had already been delayed for several days because he himself had been ill. 39 Counsel for the accused had objected to the discharge of the juror and asked the judge to have inquiries made about the period in which the juror would be unable to serve. A Sheriff's officer informed the judge and counsel that the boyfriend of the juror had made a telephone call saying that she would not attend court that day as she was not well and might also be unwell the following day. In those circumstances, the trial judge said that he proposed to discharge the juror and added "What is the magic in twelve anyhow?". When the jury returned to court, he informed them: "Your colleague … is not well. Ladies and gentlemen, there is no magic in the number twelve. We can carry on with eleven. We are sorry to lose her, but it is my decision. I have the power to discharge in these circumstances." 40 The trial subsequently continued to verdict with 11 jurors. 41 In a joint judgment, Gleeson CJ and Hayne J noted that the decision to discharge a juror and the decision to proceed with a jury of less than 12 were distinct steps, which would often be affected by different considerations. Their Honours stated (at [8]): "It is plainly desirable that a judge exercising the power to discharge a juror and the power to proceed with a jury of less than twelve members does so in unmistakable terms. Ordinarily that will be done by the trial judge making two separate orders: an order discharging the juror and an order that the trial proceed before the jury constituted by the remaining jurors. It might fairly be said that, in the present case, the judge's orders discharging the juror and directing continuation of the trial before the remaining jurors were not expressed but are to be inferred from what he said and the course that the trial took thereafter." 42 Their Honours accepted that the trial judge had little information about the juror's health, and that the information that he did have was second or third hand. However, they rejected the submission that the power to discharge a juror on the grounds of illness required, in every case, an elaborate factual inquiry about the juror's health. 43 Turning to the exercise of the discretion to continue the trial with 11 jurors, their Honours noted that delay in a trial can work hardship to an accused as well as to witnesses and to jurors. They added that the courts cannot and must not shut their eyes to the consequences of delay upon others - not only to witnesses and jurors but also to all others who seek access to the courts and cannot have their cases tried because of what is happening in cases that are being tried. If the trial did not go ahead the delay would affect the accused, the witnesses who would otherwise have given evidence and the other members of the jury. No error had been shown in the exercise of the trial judge's discretion. 44 In Wu the appellant focused upon the trial judge's statements to the effect that there was "no magic" in the number 12. Gleeson CJ and Hayne J observed that this expression may well have had its origin in a paper of Evatt J delivered to the 1936 Australian Legal Convention, and there was no reason to criticise the trial judge for having used it. Obviously, it was not meant to be taken literally. 45 McHugh J agreed that the appeal should be dismissed. However, his Honour observed that at least in the case of the temporary illness of a juror the proper course would ordinarily require the temporary adjournment of the trial rather than the making of an order under s 22. 46 Callinan J accepted that it would have been better if more details of the juror's indisposition had been ascertained. However, his Honour noted that the discretion conferred by s 22 was a wide one, and not lightly to be overturned. 47 Wu, of course, concerned a juror with a temporary indisposition. That was not the situation with which this Court was confronted on 6 February 2007. The juror who was discharged by reason of illness was permanently incapacitated from serving on this jury. There was therefore no question of delaying the trial for a relatively short period. 48 There are many cases which deal with the principles that govern the discretion to order continuation of a trial after a juror has been discharged: see for example R v Radju (2001) 53 NSWLR 471 where the Court of Criminal Appeal emphasised that trial judges should exercise care when the occasion presents for the potential discharge of a juror, and the making of an order under s 22. The Court added that the consideration of each of those matters should be recorded and reflected in express orders, with reasons. 49 In Brownlee v The Queen (2001) 207 CLR 278 the High Court upheld the constitutional validity of s 22 in the context of a trial for an offence against a law of the Commonwealth. Gleeson CJ and McHugh J in a joint judgment rejected the notion that "trial by jury" in s 80 of the Constitution meant a trial at which a verdict was given by no fewer than 12 jurors. On the contrary, as their Honours stated, modification of this feature of jury trials to meet the kind of problem to which s 22 is addressed was well known. It should, however, be noted that Gaudron, Gummow and Hayne JJ did state that there was "much force in the contention that no reduction below ten is permissible". Section 22, which was at issue in that case, met that criterion. 50 In R v Reardon (2002) 186 FLR 1 there is a useful discussion of the principles that govern the exercise of the discretion under s 22. Simpson J noted (at [96]) that the section confers a very broad power or discretion in relation to the discharge of individual jurors. It recognises that such discharge can occur on the basis of illness, but also "for any other reason". Her Honour accepted that there was a common law principle that an accused should ordinarily be tried by a jury of 12. She added, however, that that principle was not absolute. The Jury Act expressly envisaged that a trial may proceed with less than 12 even over the opposition of the accused. Each case would turn upon its own particular circumstances. There were a number of factors to balance and it was open to the trial judge to assign greater weight to the desirability of the trial proceeding, and the minimisation of further delay, than to the wish of one of the three accused to be tried by a jury of 12.

The position taken by the parties 51 Mr Howard initially canvassed the possibility of retaining the 11 jurors who had been empanelled, and recalling the balance of the panel with a view to finding a new twelfth juror. He did not press that suggestion, and ultimately submitted that although this particular juror had to be discharged, the trial should nonetheless proceed with a reduced number of 11 jurors. 52 Mr Garling also initially submitted that I should frame an order that would allow the 11 remaining members of the jury to continue to serve, but provide a method whereby an additional juror could be added to their number. He argued that this could be done by bringing back those members of the jury panel who had not been excused, but had been discharged on 5 February 2007. He submitted that there could then be a process of selection of the entire jury whereby the Crown would use its power to stand aside to ensure that the 11 jurors already selected were reselected, and that a twelfth juror, acceptable to both sides, replaced the juror who was to be discharged. 53 After brief consideration, I rejected that submission as both artificial and contrived. I considered that it would involve a misuse of the Crown's power to stand aside. I also considered that it ran directly counter to the reasoning in Panozzo. 54 There was another difficulty with Mr Garling's submission. It sought to have me interpret my order discharging the balance of the jury pool, on 5 February 2007, in a way that was contrary to the ordinary meaning of what I had said, and also contrary to my actual intent in pronouncing that order. 55 What I said on 5 February 2007 was as follows (at Tx 14): "Mr Howard, the other members of the jury panel can now be discharged, can they not? CROWN PROSECUTOR: Yes, may it please your Honour. HIS HONOUR: The other members of the jury panel can be released, thank you." 56 Mr Garling focused upon my perhaps unfortunate use of the word "released" in the last sentence, rather than the more correct term "discharged". However, when understood in context, a reasonable bystander would surely have understood that the balance of the jury panel were being discharged, and not merely being allowed to go home that day. As I have indicated, my intent was to discharge the balance of the panel, in the ordinary way. 57 Faced with the difficulty that Panozzo, in particular, presented to his initial submission, Mr Garling then took instructions from the accused. After doing so, he informed the Court that his client would not oppose a continuation of the trial with 11 jurors. He said that this was preferable, from his client's point of view, to the lengthy delay that empanelling a new jury would involve; a delay that he estimated would be in the order of three weeks, if not longer. This was, however, subject to any rights that his client might have to argue, at some later stage, that s 5D was not applicable to this trial.

Conclusion 58 As there was no doubt that the juror who was ill had to be discharged, the issue in the end boiled down to whether to discharge the jury as a whole as well. 59 In the particular circumstances of this case, if the jury were to be discharged there would plainly be a lengthy delay in empanelling a new jury. As a practical matter, given the processes required for such empanelment on Norfolk Island, the trial would not be able to proceed for at least some weeks. Given other difficulties, such as my own firm commitments, and possibly those of counsel, the trial may have had to be adjourned for some months. That would be highly prejudicial to the accused. It must be remembered that he had already been in custody, in Sydney, for just over a year. 60 In addition, the costs to Norfolk Island in the event of such a delay would have been substantial. For example, the Courtroom and the Court complex had been equipped at great expense with specific technology and equipment for this particular trial. 61 There would also have been enormous logistical difficulties since many witnesses had already been brought to Norfolk Island from Australia and New Zealand. In addition, detailed arrangements had been made for other witnesses to be flown to Norfolk Island, including one who was being brought from the United States. As many of these witnesses were experts, it was highly likely that some at least would be unavailable unless the trial was adjourned for a substantial period. In that regard, I note that I fixed this trial for hearing in February of this year as far back as September 2006. 62 It should also be noted that by February 2007 the events surrounding the death of Janelle Patton were already quite old. A delay of perhaps some months might have further impaired the recollections of those witnesses who were to give evidence of the events of Easter Sunday 2002. That would have been prejudicial to the interests of the administration of justice. 63 There were other factors that seemed to me to be of some relevance. Members of both the Patton family and the accused's family had flown to Norfolk Island for the trial and made arrangements to remain there for its duration. Had the trial been adjourned, they would have suffered significant inconvenience, and perhaps financial hardship as well. 64 Most importantly, the accused's preference was to continue with 11 jurors rather than have the trial adjourned. 65 These factors all weighed in favour of my exercising the discretion under s 5D. 66 There seemed to me to be only two factors that weighed in favour of adjourning the trial. The first was the prima facie entitlement of the accused to be tried by a jury of 12. The second was the fact that trial had scarcely begun. 67 Having weighed these competing factors, I was completely satisfied that this was a case where I should exercise my discretion in favour of continuing the trial with 11 jurors. I therefore ordered accordingly. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Weinberg.

Associate: Dated: 7 February 2007 Counsel for the Prosecution: Mr D Howard SC and Mr R Holdsworth Solicitor for the Prosecution: Crown Counsel for Norfolk Island Counsel for the Accused: Mr P Garling SC and Mr J Morris Solicitor for the Accused: McIntyres Solicitors Date of Hearing: 6 February 2007 Date of Ruling: 7 February 2007 Date of Publication of Reasons: 18 May 2007