R (Cth) v Petroulias

Supreme Court of NSW|2007-12-06|Before: Johnson J, Mr P

CITATION : R (Cth) v Petroulias (No. 33) [2007] NSWSC 1447

DECISION : 1. The juror described as the "employment juror" is discharged; 2. Application by Accused to discharge the juror described as the "pregnant juror" is refused; 3. Under s.22 Jury Act 1977, the trial continues before a jury of 10.

CATCHWORDS : CRIMINAL LAW - trial by jury - application by juror to be discharged during trial - jury deliberations commenced - juror under stress because of time constraints arising from imminent new employment - juror unable to deliberate properly - juror discharged - separate application by Accused for discharge of another juror - application refused - order made under s.22 Jury Act 1977 that trial continue with jury of 10

R (Cth) v Petroulias (No. 26) [2007] NSWSC 819 R (Cth) v Petroulias (No. 27) [2007] NSWSC 838 R (Cth) v Petroulias (No. 31) [2007] NSWSC 1213 R (Cth) v Petroulias (No. 32) [2007] NSWSC 1302 Wu v The Queen [1999] 199 CLR 99 CASES CITED : R v Radju [2001] 53 NSWLR 471 Petroulias v The Queen [2007] NSWCCA 134 Brownlee v The Queen [2001] 207 CLR 278 R v Reardon (2002) 186 FLR 1 R v Ousley (1996) 87 A Crim R 326 Ousley v The Queen [1997] 192 CLR 69 Black v The Queen [1993] 179 CLR 44

PARTIES : Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)

COUNSEL : Mr P Hastings QC; Mr C Hoy (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)

SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2002/93 Regina (Cth) v Nikytas Nicholas Petroulias (No. 33)

JUDGMENT (On applications for discharge of two jurors) 1 JOHNSON J: On 6 December 2007, two applications were made for discharge of jurors:

(a) a discharge application by a juror ("the employment juror");

(b) an application by the Accused for the discharge of another juror ("the pregnant juror").

I use these terms as shorthand descriptions only of the relevant jurors to assist an understanding of what follows. 2 The present trial of the Accused commenced on 13 June 2007 with an estimate of four months (T2.11). On 2 August 2007, I discharged a juror and directed, under s.22 Jury Act 1977, that the trial proceed before a jury of 11: R (Cth) v Petroulias (No. 27) [2007] NSWSC 838. Since then, two judgments have dealt with other jury issues: R (Cth) v Petroulias (No. 31) [2007] NSWSC 1213 (application by Accused for discharge of juror); R (Cth) v Petroulias (No. 32) [2007] NSWSC 1302 (jury decision to change foreperson).

3 On 4 December 2007, the members of the jury retired to consider their verdicts. 4 The discharge application made by the employment juror was initially opposed by the Crown and was consistently opposed by Mr Sutherland SC, for the Accused. After certain developments on 6 December 2007, to which reference will be made, the Crown submitted that an order discharging the employment juror should be made. The Crown submitted that an order should be made that the trial proceed, following the discharge of that juror, with a jury of 10 under s.22 Jury Act 1977. 5 Mr Sutherland SC submitted that the pregnant juror should be discharged and that the trial should proceed under s.22 Jury Act 1977 on 6 December 2007 with a jury of 10 (including the employment juror). The Crown opposed the Defence application for discharge of the pregnant juror. 6 On 6 December 2007, I made an order discharging the employment juror and a further order that the trial continue with a jury of 10 under s.22 of the Act. I declined to discharge the pregnant juror. I refused an application by the Accused to discharge the jury. I stated that I would provide reasons for those orders at a later time. This judgment contains my reasons for those orders.

Applicable Legal Principles 7 The general legal principles applicable on an application to discharge individual jurors are clear: R (Cth) v Petroulias (No. 26) [2007] NSWSC 819 at [8]-[10]. 8 Section 22 Jury Act 1977 does not expressly confer upon the Court a power or discretion to discharge an individual juror, however, that is assumed as a common law or implied or inherent power: Wu v The Queen [1999] 199 CLR 99 at 114 [46], 118 [54]; R v Radju [2001] 53 NSWLR 471 at 475 [17]; Petroulias v The Queen [2007] NSWCCA 134 at [17], [58]. 9 Section 22 relieves the Court of the common law mandatory obligation to discharge the entire jury and permits continuation of the trial with a jury of 10 if the Court so orders: s.22(a)(i) Jury Act 1977; Wu v The Queen at 106 [21], 107 [27], 112 [42], 114 [46]; Brownlee v The Queen [2001] 207 CLR 278 at 289 [22]-[23], 296 [51], 331 [149], 342 [186]; R v Radju at 475 [17]. 10 There are two separate steps to the process - firstly, whether the juror should be discharged and, if that occurs, whether the trial should continue with a jury of 10: Wu v The Queen at 103 [8], 107 [26]; R v Radju at 475 [18]. 11 There is no closed category of circumstances which may warrant the discharge of a juror during a trial. Usual circumstances involve illness on the part of a juror or some event or revelation which otherwise impacts upon the appropriateness of the juror continuing to serve. 12 In Wu v The Queen, Gleeson CJ and Hayne J, at 103 [9] observed that the decision to discharge a juror may require consideration of difficult questions of fact and degree. At 103 [6], their Honours observed that the conduct of, or circumstances affecting, a single juror may require that juror's discharge, although that conduct or those circumstances may not affect the other members of the jury or suggest that they cannot perform their task satisfactorily. 13 As Simpson J (Hodgson JA and Barr J agreeing) observed in R v Reardon (2002) 186 FLR 1, at 23 [96], s.22 Jury Act 1977 envisages a very broad power or discretion in relation to the discharge of individual jurors, as reference is made to discharge where a juror is "through illness incapable of continuing to act" but broadens that scope by addition of the words "or for any other reason". 14 An additional and specific matter is pertinent to the present judgment. The Crown referred to the decision of the Victorian Court of Appeal in R v Ousley (1996) 87 A Crim R 326 at 339-345, where the Court (Hayne JA, Southwell and Smith AJJA) considered a ground of appeal against conviction arising from a refusal by the trial judge to discharge a juror in circumstances where it was contended the juror was unable to give undivided attention to the trial by reason of pressure being brought to bear upon the juror during the trial by her employer. 15 The decision of the Victorian Court of Appeal was the subject of appeal to the High Court of Australia (Ousley v The Queen [1997] 192 CLR 69) on other grounds. It was submitted to the Victorian Court of Appeal that the trial judge had erred in declining to discharge the relevant juror, with the appellant relying upon statements in Black v The Queen [1993] 179 CLR 44 at 50-51 concerning the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them. In the circumstances of R v Ousley, the Victorian Court of Appeal held (at 344-345) that the trial judge had not erred in the exercise of discretion in declining to discharge the juror who appeared to be under some stress with respect to employment. In that case, the juror stated that she wished to continue to serve as a juror in the trial and indicated that she did not feel that her ability to continue to act as a juror was affected by the employment-related stress (at 341). It remained a matter for the trial judge to determine whether the juror could and would perform her task without being distracted (at 345). 16 As will be seen, considerations of the type referred to in R v Ousley arose in connection with the discharge application by the employment juror. Events from 13 June 2007 to 5 December 2007 17 It is necessary to place in context the present applications for discharge. 18 The Court and the parties were informed on 4 July 2007 that the pregnant juror was pregnant (MFI24). That juror has continued to serve as a juror and has made no application to be discharged. A request was made for special consideration for medical appointments that needed to be made relating to the pregnancy (MFI24). The present appearance of the juror confirms that her pregnancy is well advanced. 19 After the trial had been underway for some time, the Court received a request on 31 July 2007 from the employment juror to be excused for two days in August 2007 to permit him to undertake a process of assessment for a new position which he regarded, reasonably, as being most important to his professional career path in the industry in which he worked (MFI56; T1578). On 6 August 2007, the employment juror indicated that the assessment process had been deferred and withdrew his request to be excused for those days (MFI64; T1713). On 12 September 2007, the employment juror renewed the application to be excused for the assessment process then scheduled for 17, 18, 19, 22 and 23 October 2007 (MFI94; T3011). 20 Having consulted counsel on the issue, a request was made that the juror seek to reschedule the assessment (MFI95; T3015-3023), but this was not possible (MFI101; T3236 and MFI106; T3299-3300). Having once again consulted counsel, I determined that it was appropriate to excuse the juror for the days requested to allow this process to be undertaken and the juror was so informed (T3332). It was also possible to utilise part of this period for the purpose of another juror who required tear-duct surgery: R (Cth) v Petroulias (No. 31) at [8]. 21 Following the assessment, the employment juror informed the Court by way of a note on 29 October 2007 (MFI118) that he had been successful in the assessment process and was to commence training as part of the employment process on 10 December 2007. 22 The closing addresses of counsel commenced on 9 October 2007 and concluded on 20 November 2007 (with some breaks during that period). The Court heard submissions and made decisions, in the absence of the jury, on 21-23 November 2007 concerning written directions and a chronology to be provided to the jury. My summing up commenced on 26 November 2007 and concluded on 4 December 2007. 23 As the trial progressed, the employment juror furnished notes to the Court indicating concerns which he had with respect to the approaching commencement date of 10 December 2007. On 29 November 2007, the juror provided documentation which demonstrated that he had on 6 November 2007 proposed to his future employer the deferral of the commencement date from 10 December 2007 to 7 January 2008 (MFI149). A complication in this respect was an important personal commitment of the juror in February 2008 which would interrupt a process commencing on 7 January 2008. According to the documentation provided by the juror (MFI149), the employer indicated to the juror on 7 November 2007 that it was not possible to accommodate the request by the juror to reschedule the commencement date to 7 January 2008 as other persons were affected by the commencement date given the nature of the industry involved. The employer indicated to the juror that, if he did not commence as scheduled, then he would be placed on "active hold" and offered a position when it could be confirmed. It seemed to me that the employment juror had made reasonable efforts to defer the commencement date until 7 January 2008. 24 In a note (MFI149) received on 29 November 2007, the employment juror foreshadowed an application to be discharged from the jury if verdicts had not been reached by 4.00 pm on Friday, 7 December 2007. The juror indicated that, following the offer of employment made in late October 2007, he had resigned from his previous employment. He indicated that he had substantial mortgage commitments and that the commencement of employment on 10 December 2007 was critical for financial, as well as personal and professional reasons. Counsel were informed of the position, and I raised with the employment juror the ability of the Sheriff's Office to make representations to his new employer (MFI149). The juror requested that this not be done as he did not think that it would assist. Given the point that the trial had reached, I accepted this and the Sheriff's Office were not requested to intervene at that time (MFI150). 25 I raised with the jury the possibility of deliberations continuing, if verdicts had not been reached, on the weekend of 8-9 December 2007. I was informed (MFI159 and MFI163) that two members of the jury had made interstate travel arrangements for that weekend. 26 On 5 December 2007, after the jury had retired to consider its verdicts, I received a further note from the employment juror. He indicated an increased level of stress and concern given the uncertainty surrounding his position (MFI159). Having heard submissions of counsel on the question, I formed the view that a note to the following effect should be handed to the juror (MFI164): "Your application is receiving careful consideration by his Honour.

You indicated in an earlier note that you did not wish the Sheriff's Office to make representations on your behalf to your employer. Given the critical stage which has been reached in the trial, his Honour considers that it is appropriate that the Sheriff's Office, on behalf of the Court, make active representations to your employer concerning your position. There is a public interest in your continued participation as a member of the jury until the trial is completed and the representations by the Sheriff's Office would emphasise that factor. Could you please indicate by note by 3.00 pm today the person to whom representations should be made." 27 The employment juror requested that his note in reply be provided the next morning.

Events on 6 December 2007 28 On 6 December 2007, the pregnant juror did not attend Court and a medical certificate was received certifying her unfitness to attend for jury duties because of pregnancy-related complications from 6 to 9 December 2007 (MFI166). The practical effect of this was that jury deliberations could not continue without the full jury being present. It was in this context that the two applications referred to at [1] above were considered by the Court. 29 On 6 December 2007, the employment juror provided a note (MFI167) which had clearly been typed overnight and before he came to Court and learned that the pregnant juror was not present. The note referred to difficulties if he was required to remain as a juror beyond 7 December 2007, including unemployment, financial and mortgage difficulties and personal difficulties surrounding his important personal commitment in February 2008. The note said: "I regard the threat to my future (for the above reasons) so seriously that I have become highly agitated and extremely anxious with these conditions impacting severely upon both my ability to concentrate and my general demeanour inside the jury room and outside in my private life. I understand the nature of the public duty associated with the important task that I am performing. However, I now believe that my inability to concentrate and my overall emotional state has now placed me in a position where I no longer feel that I have the capacity to properly discharge the very important oath that I took as a juror when this trial commenced on the 13th June 2007. On the above basis I must further renew my application to be excused as I can no longer tolerate the above threats to my financial, family professional welfare." 30 In the note, the employment juror acknowledged the offer that the Sheriff's Office intervene but observed that he did not consider that such representations would assist the position. 31 After hearing counsel, I determined that the Sheriff's Office should, nevertheless, make urgent representations to the new employer and the employment juror was so informed by note from my Associate (MFI168) which included the following: "His Honour has considered your note dated 5 December 2007 and has requested that I communicate the following to you.

His Honour is conscious of the personal and financial importance to you of this employment opportunity.

However, as stated in my note dated 5 December 2007, his Honour has determined that the Sheriff's Office ought make representations, on behalf of the Court, directly to your employer in the present exceptional circumstances. The focus of those representations would be to seek deferral of your commencement date until 7 January 2008, but on terms that would allow your other personal requirements in that period to be accommodated. His Honour wishes to emphasise that representations by the Sheriff's Office would seek to protect, and not prejudice, your interests with respect to this employment. It is the experience of the Court that direct representations by the Sheriff's Office, on behalf of the Court, may bring about a change in circumstances where those representations relate to the important duty of citizens to perform jury service.

His Honour has requested that the Sheriff's Office make urgent contact this morning with Mr […] , Resources Planning Co-Ordinator, the person referred to in the emails attached to your note dated 27 November 2007. If appropriate, the representative of the Sheriff's Office will discuss the position with Mr […] 's superior or superiors, if that was considered useful in making clear the view of the Court.

His Honour wishes to emphasise that the purposes of these representations being made by the Sheriff's Office, on behalf of the Court include the public interest in you continuing to serve as a member of the jury and to assist your ability to concentrate on jury deliberations while these representations are being made by the Sheriff's Office." 32 The Sheriff's Office made immediate contact with two persons from the relevant company (MFI170). In short, it was confirmed that, if the employment juror did not commence on 10 December 2007, it was not possible to include him in the group commencing on 7 January 2008 (given his leave request for a period in February 2008). It was confirmed that, if the employment juror did not commence on 10 December 2007, he would be placed on a form of eligibility list where there was no certainty of employment commencing and, if it did, such employment would not commence before March 2008. It was made clear that the employer could not alter the arrangements as requested, because of the effect on others and the nature and requirements of the training and induction process of the particular industry. In effect, this confirmed the belief of the employment juror as to the prospects of success of representations. 33 In view of the note from the juror (MFI167) and the responses to the representations by the Sheriff's Office, the Crown submitted that the appropriate course was to accede to the discharge application by the employment juror with the Court to then direct that the trial continue with a jury of 10 under s.22 of the Act. 34 Mr Sutherland SC submitted that I should discharge the pregnant juror forthwith to allow jury deliberations to continue with the 10 remaining jurors (including the employment juror) constituting the jury under s.22 Jury Act 1977. This would allow deliberations to proceed with the possibility of verdicts before the afternoon of Friday, 7 December 2007. 35 The application by the Accused to discharge the pregnant juror was based upon her temporary absence commencing on 6 December 2007, which had the effect of stopping jury deliberations at a time when the employment juror remained present. Mr Sutherland SC made submissions concerning observations of the degree of attention by the pregnant juror during the course of the trial, contending that there was limited attentiveness on the part of the juror. Mr Sutherland SC accepted, as was obvious, that the juror is well advanced in her pregnancy. During the course of submissions, I stated that my own observations (although not continuous during the course of summing up), were that the pregnant juror had (as with other jurors) been apparently attentive, with occasions when (as with other jurors) there may have been a lesser level of attention. This comment should be understood in the context of the trial. In the course of their lengthy closing addresses to the jury, both counsel had referred on more than one occasion, in an apologetic way, to the demanding nature of the process in which the jury was engaged in this trial. I had sought to ensure that the jury had regular breaks during the trial and, in particular, during closing addresses and the summing up. In the circumstances of the case and given the length of addresses and summing up, it did not seem to me that the level of attentiveness of the pregnant juror or, for that matter, any other juror supported an application for discharge. 36 Mr Sutherland SC raised in submissions the fact that the employment juror had been replaced as foreperson of the jury on 12 November 2007, in circumstances of some apparent personal tension amongst the jurors: R (Cth) v Petroulias (No. 32). He raised the question whether the pregnant juror might have been the author of notes (MFI130) written on 9 November 2007 to which reference was made by me on 12 November 2007 (T4402-4403) before I made comments to the jury concerning tensions in the jury room (T4404-4407). Later on 12 November 2007, raised voices were heard in Court apparently emanating from the jury room (T4423.11) and soon after a note was received stating that a new foreperson had been selected by the jury (MFI132; T4423-4428). Although it was not known to the Court at the time, I note that these tensions appear to have manifested themselves on 9 November 2007, soon after the employment juror had been informed on 7 November 2007 that there was no prospect of deferring his commencement to 7 January 2008 (see [23] above). I should observe that the pregnant juror was not the author of the notes which related to personal tensions in the jury room (MFI130). 37 I raised with Mr Sutherland SC what would occur if the pregnant juror was discharged and no verdicts were returned with the question then arising, on the afternoon of 7 December 2007, whether the employment juror should be discharged, with the prospect that the jury may be reduced to nine members. 38 In this regard, the Crown submitted that there was a question as to whether a jury trial for offences against the law of the Commonwealth could proceed under s.22(a)(iii) Jury Act 1977 with a jury of nine persons in light of an observation by Gaudron, Gummow and Hayne in Brownlee v The Queen at 304 [73]. In effect, the Crown submitted that no proper basis had been demonstrated for the discharge of the pregnant juror and, if that course was adopted, a question may arise if the employment juror sought to be discharged, involving the prospect of the trial proceeding with a jury of nine. 39 Having heard the submissions of counsel, I left the bench for a short period to consider the applications. In that period, I received a handwritten note from the employment juror (MFI169) in the following terms (the identity of the employer is omitted): "I do not agree with or condone what you are doing. You are going against what I have put to you and is now at a point of being unreasonable. From this point on - any detriment to any aspect of the issues and concerns relating to real situations that I have outlined to you in all previous correspondence that arise as a direct result of your directions, I will have no other option - other than to take advice to protect my position and ultimately - welfare. How you intend to have all of my interests covered by a company (…) that I'm not currently employed by - is beyond me. Whilst his Honour wishes to emphasise the purpose of these representations made by the Sheriff's Office are to assist me in being able to concentrate on deliberations, I can confirm that at this particular point in the trial, this is most certainly not the case. Your position is now causing a feeling of hostility within and is far from causing me to feel at ease let alone concentrate. My levels of tension, anxiety and stress are now at such levels that I am concerned that my personal health is put at risk." 40 I informed counsel of the contents of this note. The Crown submitted that it strengthened the submission that the employment juror should be discharged. Mr Sutherland SC had no further submission in light of the note, indicating that it was a matter for the Court.

Determination of Discharge and s.22 Continuation Applications 41 The receipt of the note (MFI169) fortified my view that the employment juror should be discharged forthwith and that the trial ought proceed under s.22 with a jury of 10, including the pregnant juror given that, according to the medical certificate (MFI166), she would be fit to resume jury duties on 10 December 2007. 42 I took the view that the fundamental issue on 6 December 2007 was the discharge application by the employment juror. In reality, whether the pregnant juror was present or not on that day, the employment juror stated that he was under such stress (which could not be alleviated) that he could no longer continue to deliberate. If deliberations had been able to continue, the proper conclusion was that the deliberations would have been affected by pressure, as a result of stresses upon the employment juror. 43 In my view, no basis was demonstrated for the discharge of the pregnant juror who was temporarily absent but to return on 10 December 2007. In my view, the pregnant juror was seeking to discharge her duty as a juror. She had made no application to be discharged from the jury upon the basis of her pregnancy. 44 I reached a different conclusion with respect to the application by the employment juror. It was clear to me that the juror was under a considerable level of stress, well illustrated in his final note (MFI169) set out at [39] above. If, contrary to his wishes, the employment juror was required to remain on the jury for the purpose of deliberations to take place on 6 and 7 December 2007, his level of stress was such that pressure would be placed upon himself and the other members of the jury, to reach verdicts within the time limit identified by the employment juror. This would give rise to the difficulties considered by the Victorian Court of Appeal in R v Ousley. 45 The employment juror no longer wished to serve as a juror in the trial. There was no doubt that he was under a great deal of pressure which was affecting his ability to deliberate as a juror. The employment juror's application on 5 December 2007 had been, in effect, that I guarantee that he be discharged on the afternoon of 7 December 2007 if verdicts had not been reached by then. I was not prepared to give the juror such an assurance. Even if I had given him such an assurance, the tenor of the employment juror's latest notes suggested that he did not, at that time, consider himself to be in a fit state to continue deliberations. Deliberations could have continued on 6 December 2007 only if I had discharged the pregnant juror, leaving a jury of 10. If verdicts had not been reached on 7 December 2007 and the employment juror was discharged, then the issue arising from Brownlee v The Queen concerning continuation of a trial with a jury of nine in a Commonwealth prosecution would have arisen for consideration. 46 In all the circumstances, I formed the view that the appropriate course was to discharge the employment juror. In reaching this conclusion, I took into account the employment juror's statements as to his state of mind and his inability to continue to deliberate in an undistracted way. I was satisfied that the employment juror could not and would not perform his task without being distracted. I was satisfied that the juror's level of distraction would dominate his thinking during deliberations. 47 I should mention that I raised with counsel the question whether s.69 Jury Act 1977 had application in the circumstances of the employment juror. Counsel did not submit that the provision had any application to these circumstances of future employment, and I accepted that view. 48 It was for these reasons that I formed the clear view that the employment juror ought be discharged from the jury. 49 Having reached that view, the second and separate step, referred to at [10] above, arose for consideration as to whether the trial ought continue with a jury of 10. Given the point that has been reached in the trial and the history of the proceedings, I formed the view that this was the appropriate course and that the trial ought proceed with a jury of 10 in accordance with s.22 of the Act. In R (Cth) v Petroulias (No. 27) at [17], I observed that trial before a jury of 12 persons is the statutory ideal, but that the ideal may be departed from by operation of s.22 of the Act. The whole purpose of s.22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. There can be a fair and lawful trial of an accused person despite the discharge of a juror or jurors in the course of the proceedings: Wu v The Queen at 106-107 [21]. Considerations of this type led me to the same conclusion on this application as I had reached on the earlier application on 2 August 2007. 50 In this respect, I note that Mr Sutherland SC had urged me to continue the trial with a jury of 10 under s.22 of the Act if I acceded to his application to discharge the pregnant juror. Application to Discharge the Jury 51 After stating my orders on 6 December 2007, Mr Sutherland SC made application to discharge the jury of 10, and to abort the trial, because of dislocation of the trial flowing from the four-day break in deliberations which would occur between 6 and 10 December 2007. The Crown opposed the discharge application. 52 I declined the application to discharge the jury. The trial has been a lengthy one and has reached a point where members of the jury have retired to consider their verdicts. I did not consider that a break in deliberations of four days (including a weekend) provides a proper basis, in the exercise of discretion, to discharge the jury and abort the trial. 53 In this respect, I had regard once again to factors which bore upon the s.22 continuation decision. These factors included the interests of the Accused and the community in verdicts being reached and the history of the proceedings involving two earlier trials (in 2005 and 2007) where juries were discharged without verdict. In these circumstances, I determined that the proper course was to keep the trial on foot with a jury of 10 continuing to deliberate for the purpose of reaching verdicts. That process would resume at 9.30 am on 10 December 2007. An order was made under s.54(1)(b) Jury Act 1977 permitting the jury to separate until that time. 54 It was for these reasons that I made orders as announced on 6 December 2007.

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