22 Where in the course of any trial … 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 -
(a) in the case of criminal proceedings, the number of its members -
(i) is not reduced below 10;
(ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused; or
(iii) is reduced below ten but not below eight and the trial has been in progress for at least two months;
(b) …
(c ) …
and if the court … so orders . (emphasis added)
94 It is of some importance to note that there were in fact two separate decisions made by the trial judge. The first was the decision to discharge the individual juror. The second was the decision to proceed with a jury of eleven, rather than aborting the trial, discharging the remainder of the jury, and fixing a new trial date. Both decisions are the subject of criticism on behalf of Reardon. The only criticisms advanced in relation to the first decision made reference to that part of the discussion in which the judge said:
It doesn't make sense for a three months trial to have someone who doesn't want to be here.
95 Further, it was submitted that no sufficient reason for the discharge of the juror had been disclosed, the trial judge having confined her explanation for her decision to the juror's "dislike of performing jury service". This, it was said, was an insufficient reason for the discharge.
96 Section 22 confers a very broad power or discretion in relation to the discharge of individual jurors: see generally Wu v R [1999] HCA 52; 199 CLR 99. The section inherently recognises that such discharge might occur where a juror is "through illness incapable of continuing to act", but broadens that scope by the addition of the words "or for any other reason". However, it may well be correct to say that a stated dislike of performing jury service, with no more, would be inadequate to justify the exercise of the discretion. It is unnecessary further to consider that, because it is far from what the evidence discloses was before the judge. True, during the course of discussion, the judge expressed the view that it did not make sense, in a lengthy trial, to have an unwilling juror, and did not give explicit reasons for the decision to discharge that juror. However, even leaving aside the validity of the juror's expressed concern about her employment, the medical evidence was compelling, and, in my opinion, decisive. This is so notwithstanding the doubt cast upon that evidence by the circumstance that the juror was in fact found to be at work on the Tuesday afternoon. The medical certificate required that the juror be excused from service until 6 April. Unless that medical evidence was to be challenged (and it was not) it left the judge with no alternative. She could not have kept the remaining members of the jury unoccupied for the period encompassed by the medical certificate; that was particularly so when the trial had barely begun. That makes it unnecessary to consider whether the circumstances relating to the juror's employment would have justified the decision to discharge her. The first decision, that is, the decision to discharge the individual juror, is, in my opinion, unassailable.
97 Occasionally it will happen that an individual, such as (perhaps) this juror, will confront the system. It is one thing to maintain that it is the duty of every citizen to perform jury duty and it is no doubt tempting, at times, to seek to enforce that principle. But it is equally important never to lose sight of the important function that jurors are called upon to perform. Inherent in that function is a willingness to forgo, or put to one side, personal interest. Where a juror cannot or will not do that, he or she cannot be compelled. Only physical attendance can be compelled; the heart and mind cannot. The reality here was that this juror was not suited to the task, and no amount of compulsion was going to make her turn her mind to the task. Unpalatable as it may be to see the disrespect for the system implicit in the juror's conduct, justice mandated that the juror be released from service in the trial. Any other course would potentially have worked unfairness to one party or another. In my opinion the judge had no alternative other than to act as she did.
98 The second decision was the decision to proceed with a jury of eleven. The only alternative was to discharge the entire jury and commence a fresh trial when a suitable jury panel was available. In this respect it is of great significance that the two co-accused who sought continuation of the trial had been in custody for many months.
99 On behalf of Reardon it was submitted that error could be discerned in the decision-making process in a number of ways. Firstly, it was submitted, the trial judge appeared to have given little or no consideration to the common law principle that an accused should ordinarily be tried by a jury of twelve, unless a juror is (or jurors are) discharged for good and sufficient reason; and that, equally, no or inadequate consideration was given to the provisions of s19 of the Jury Act. Counsel referred to the decision of this court in R v Radju [2001] NSWCCA 103, unreported, 19 March 2001.
100 The principle referred to may readily be accepted. However, it is not absolute. Once it is also accepted (as I do accept) that the position of the two co-accused was not only a relevant consideration, but one entitled to considerable weight, the argument loses a great deal of force. The Jury Act expressly envisages that a trial may proceed with less than the prima facie number of jurors, even over the opposition of the person(s) on trial. Here the judge had a number of factors to balance, and I am satisfied that she was entirely correct in assigning greater weight to the desirability of the trial proceeding, the minimisation of further delay, and the wishes of the two accused who remained in custody, than to the wish of Reardon to be tried by a jury of twelve.
101 Reliance was also placed upon the reference by the trial judge to her own personal commitments, it being suggested that she gave some weight to this circumstance. I would reject this proposition. The reference by her Honour to her proposed leave was no more than an observation concerned with the various potential consequences of a full jury discharge.
102 The decision to proceed with a reduced number of jurors is a discretionary one requiring the weighing of a number of competing considerations. The desire of one co-accused to be tried by a jury of twelve members is one, but only one, of those considerations.
103 In oral submissions in this court it was argued that a further alternative was the discharge of the jury in relation to Reardon, and the separation of his trial from that of the two co-accused. Adoption of this course would have meant that the preferences of all accused were met. Such a suggestion was never made to the trial judge, and the possibilities were not canvassed. However, this being a conspiracy trial, it is obvious that it was desirable that as many co-accused be tried together as possible. It had already been necessary to separate the trial of Cox by reason of his lack of legal representation.
104 Indeed, this gave rise to a suggestion that the judge:
may well have been influenced by the fact that she had recently on 22 March, 1999 (sic) had to discharge the jury in the same matter.
105 I would reject this submission. There is no inkling in the transcript that this circumstance had any bearing on the decision to proceed with a jury of eleven. Even if it had been a factor, I am not persuaded that it would necessarily have been erroneous. The fact of delays that had already occurred was certainly a relevant factor, the weight of which depended upon the degree of risk of unfairness (if any) of proceeding with a jury of only eleven.
106 In my opinion no error has been disclosed in the judge's reasoning towards the decision to proceed with a jury of eleven, or in the evidence of that discussion.
107 Counsel for Reardon also raised two arguments which may reasonably be labelled "technical". The first of these was that s22 of the Jury Act requires, before a trial proceeds with a jury of less than twelve, that an order to that effect be made. It was argued that, although the judge stated her intention of so proceeding, she did not, in terms, make an order. A similar argument was put concerning the discharge of the juror (although it is difficult to see show the terms of s22 permit a construction that requires such an "order").
108 In Wu Gleeson CJ and Hayne J accepted that an order under s22 might be made by implication: [8]. See also Radju [26].
109 In the present case I do not think it is necessary to resort to that principle. Section 22 does not prescribe any particular form of words by which either the discharge of an individual juror, or an order to proceed with less than the otherwise prescribed number, is to be made. At the conclusion of her exchange with the juror, the trial judge expressly said that the juror was excused from further attendance. In my opinion that was adequate to meet the requirements of s22 in relation to that decision. In relation to the second matter, her Honour stated that she proposed to continue with eleven. Again, in my view, that is sufficient compliance with s22. In other words, I am satisfied that an appropriate statement was made reflecting each decision, sufficient to comply with s22. If that were wrong, I would be quite satisfied that, in each case, an order should be inferred from what the judge said. This is consistent with Radju.
110 The final matter raised in relation to this question about the jury arises from a passage in the dissenting judgment of Kirby J in Wu. That case bore some similarities to the present, in that a juror was discharged (mid-trial) because of personal commitments. Kirby J wrote:
There is another difficulty with the passage of transcript which occurs in the presence of the jury and which therefore alone represents the record of the formal discharge of the juror. The passage proceeds on an apparent assumption that the juror has already been discharged. But that could not lawfully have been done in the absence of the jury . Accordingly, it is necessary to infer from the words '[W]e can carry on with eleven' a judicial decision and order to discharge the juror in question. Whilst I am prepared to imply into the words used such an order, the passage is certainly elliptical. What is undoubtedly missing is an order, as s22 contemplates, that the residual jurors should be considered as remaining 'for all the purposes of that trial … properly constituted'. (emphasis added)
111 Heavy reliance was based upon the assertion by his Honour that the discharge of a single juror could not lawfully have been done in the absence of the jury. However, this was a dissenting judgment, and the considerations which moved Kirby J to make this observation obviously did not weigh heavily with the other members of the court. The reason for this, so it was put, was that in that case leave to amend the grounds of appeal in the High Court to encompass a complaint about the making of an order that the trial continue with a reduced number was refused. That may be so. But it is clear that severe practical difficulties would attend a rigid adoption of the principle stated by Kirby J. Where, for example, a juror is taken seriously ill, or is injured, it would hardly be practical to require the discharge of that juror in the presence of the remainder of the jury. It seems to me that Kirby J was doing no more than suggesting that a formal order should, in the ordinary course, be made in the presence of the surviving members of the jury. In my opinion sufficient in that regard was done by the trial judge in this case.
112 Accordingly, I am satisfied that there is no substance in those grounds of appeal advanced on behalf of Reardon which contend that error infected the trial process in relation to the discharge of a single juror, and the continuation of the trial with a jury constituted by the remaining eleven members. I would dismiss these grounds of appeal.
113 The second matter concerning the jury arises out of the events that occurred on 29 March. A number of tape recordings had been tendered and played to the jury. Each member of the jury had a copy of an agreed transcript of the tape recordings. The jury had been directed, in the usual terms, that the transcripts were provided as an aide memoire and that, should they detect any discrepancies between the transcript and the tape recording, they should give weight to the tape recording rather than the transcript.
114 Prior to the trial, the Crown and defence counsel had agreed on the deletion of certain material from some of the tapes, and the transcripts were amended accordingly. However, on 29 March, by inadvertence, an unedited version of a tape recording which had been edited by agreement was played in the presence of the jury. The material which should have been edited out did not appear in the transcript on which the jury was attempting to follow the tape recordings.
115 The material that had been deleted from the tape recording included references to "a court date" on which Reardon was required to attend in relation to certain charges. These were referred to as "for belting a screw and copper four years ago".
116 Trial counsel for Reardon immediately sought a discharge of the jury on the basis that Reardon's bad character had been exposed by reasons of the error.
117 The trial judge refused, giving reasons. Her Honour made the observation that the tape recording was indistinct, but noted that counsel had been able to discern the words. She said that she herself had not been able to do so. Nevertheless, she accepted that the words were audible to those at the Bar table.
118 She also noted that, in the tapes that were admitted into evidence by consent, there had been references to various criminal behaviours in which Reardon was engaged. This included provision of false drivers' licences, securing passports to enable the emigration of two men wanted in Australia, the growing of marijuana and other drug matters. Accordingly, her Honour was of the view that the tapes already admitted made it clear that Reardon was engaged in criminal activity. However, the complaint about the material now under consideration is that it disclosed criminal activity of a different kind and different dimension, and included, for the first time, the suggestion of violence.
119 Having considered all relevant matters, her Honour decided that the material was not such as to affect the fairness of the trial and refused the application. However, she stated her intention:
to direct the jury in very strong terms about such evidence and matters which they ought to exclude from their considerations.
She went on to say that she would not do so immediately as to do so might underline the offending evidence rather than minimise its effect.
120 Her Honour began summing up on Monday 10 May 1999. The jury was formally charged early the following morning and retired to consider its verdicts. Her Honour did not give the direction she had foreshadowed. No application was made for such a direction.
121 One submission made on behalf of Reardon was that the reasons given disclosed that the judge had made certain assumptions, and taken into account certain irrelevant considerations. This appears to be a reference to the judge's allusion to criminality disclosed on tape recordings properly before the jury. This court was not, however, directed to those passages on the tape recordings to which her Honour alluded. It was not argued that her Honour was wrong in the conclusion that the legitimately admitted tape recordings did in fact reveal some criminality, or contact with criminality, on the part of Reardon.
122 Further, it was claimed that the reference to an alleged assault on the part of Reardon was of considerable significance because one disputed matter of fact in the trial concerned an allegation by the Crown that Reardon had threatened another conspirator (also a witness), Ms Villegas, and that he intended the threats to be taken seriously. The passage on the tape recording which, it is clear, should not have been before the jury was, on that argument, capable of being used by the jury in its assessment of the credibility of that evidence.
123 Further, it was argued, despite the absence of any express request on the part of counsel at the conclusion of or during the summing up, the failure to give the direction foreshadowed constituted an error.
124 The last matter can, in my opinion, be put to one side. The summing up took place more than a month after the playing of the tape recording. Obviously its significance was not then apparent to Reardon's counsel, who did not request any additional direction.
125 The incident was, in reality, a very minor one. Whether or not the tape recording was decipherable by the jury without the aid of a transcript, it seems to me that it could not have played any real part in the jury's deliberations. The jury had listened to numerous tape recordings by the time the trial concluded. They had the opportunity, if they wished, to replay any of the tape recordings which were exhibits, and they had access to the transcript to remind them in convenient form of what had been said in the conversations. The rogue tape was not with them in the jury room. It had been replaced by the agreed edited version. That version conformed with the transcript. It is, in my opinion, far fetched to think that any member of the jury may have seized upon an accidental reference to a charge involving some kind of assault on police or prison officers, and allowed that to influence the verdict. Had it appeared to counsel for Reardon that that was possible, he would have been expected to remind the judge of the direction she had intended giving.
126 I am satisfied that the refusal to discharge the jury, and the failure to give the foreshadowed direction, did not result in any miscarriage of justice. I would reject this ground of appeal.