and if the court or the coroner, as the case may be, so orders".
14 The closing words of section 22 are obviously important for the resolution of this appeal.
15 The point which arises as to the need for an order to be made, in express terms, for the discharge of a juror also arose in Wu v The Queen (1999) 199 CLR 99, a case decided in the High Court after the verdict in the present proceedings. There, over objection, a juror was discharged, on the tenth day of the trial, after a report was received that he was unwell and would probably not be able to attend Court for two days. No formal order was made to continue the trial with eleven jurors, although the trial judge did say to the balance of the jury "I think time is running on so we will carry on with eleven".
16 When, in the High Court, the appellant sought to enlarge the argument to encompass a suggested irregularity in the continuation of the trial by reason of the lack of formal order, leave was refused to raise that ground. The appeal was accordingly confined to the correctness of the decision to discharge the juror. However, in dealing with that matter, some observations were passed of relevance for the present case.
17 As appears from the judgment of Kirby J at 114 and 118, section 22 of the Jury Act does not expressly confer upon the Court a power or discretion to discharge an individual juror. That is assumed as a common law or implied or inherent power. What it does is to relieve the Court of the common law mandatory obligation to discharge the entire jury, and to permit the continuation of the trial if the Court so order: see the judgments of Gleeson CJ and Hayne J at 106 and 107, McHugh J at 107 and Kirby J at 112 and 114.
18 As was also made clear, the decision to discharge the juror, and the decision to order a continuation of the trial with the remaining jurors, are separate matters and depend upon separate considerations.
19 The desirability of both matters being dealt with expressly, and by formal order consequent upon considered reasons, is obvious. Gleeson CJ and Hayne J in their joint judgment said in this regard at 103:
"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".
20 Kirby J, who dissented on the point argued at the appeal, said (at 121):
"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 s 22 contemplates, that the residual jurors should be considered as remaining' for all the purposes of that trial...properly constituted'".
21 His Honour continued, at 121:
"Neither at trial, nor in the Court of Criminal Appeal, did the appellant, by her counsel, object to the failure of the trial judge to make an order in terms of the closing words of s 22 of the Act. Yet it is clear that only 'if the court...so orders' will the remaining jurors be entitled to continue as the jury properly constituted for the trial of the accused. This is a condition of the exercise of the power to continue which the Act permitted but which the common law resolutely denied".
22 His Honour further observed at 122:
"...in my view, the order required by s 22 is not legally redundant or surplusage. It addresses the judge's attention to an important question which has to be decided. This is not, as such, whether the individual juror should be discharged. It is assumed that this has been done. Rather, it is what then follows. Is it (as at common law) that the entire jury must likewise be discharged? Or is it that the remaining jurors will be taken as properly constituting the jury for the trial? Involved in that decision are considerations quite separate from a decision to discharge an individual juror".
23 Callinan J said at 124:
"It is appropriate that a trial judge, confronted with a situation in which he or she has to make a decision about a reduction in the number of jurors not do so hastily, without as full an inquiry as is practicable and reasonable, and without making explicit orders as s 22 requires, as to the reduction in number and the continuation of the trial with the reduced number. Adherence to such a procedure (which the Act demands) has the effect not only of ensuring an unambiguous record of what has taken place but also of focusing the trial judge's attention upon the necessity to weigh up whether a juror's or jurors' absence should require the trial to be aborted or whether it should continue with the reduced number. Here I take what Judge Flannery said and ruled to involve at least implicitly consideration of, and orders covering these matters. This was not therefore a case of the kind considered in Maher v The Queen (125) where what occurred was directly relevant to and affected the constitution and the authority of the jury trying the case contrary to the statutory provisions governing these matters".
24 In accordance with history and statute, leaving aside those cases where there is an election for a trial by judge alone, a criminal trial in this State must commence with a jury of twelve persons. It should ordinarily remain as such unless and until a juror is discharged for good and sufficient cause.
25 It was necessary, in the present case, for the appellant to be tried by a properly constituted jury in accordance with those principles and for the trial to continue with a properly constituted jury. For that reason, despite the purely technical nature of this submission, and despite the fact that no point was taken below, I would grant leave to argue the ground. That follows from the circumstance that, if the jury were not properly constituted, then it could hardly be said that any error made was not one that went to the root of the trial process.
26 While it would have been preferable for orders to have been made in express terms, his Honour clearly gave consideration to the question, first, whether the juror should be discharged; and next, whether the remaining jurors should be allowed to continue the trial.
27 The terms in which his Honour dealt with both matters made it clear, in my view, that he regarded himself as having reached a decision to discharge the juror and to continue the trial with the remaining jurors. It is also clear that his Honour regarded the parties as concurring with each of those two events. That, to my mind, is clear from the passage in which his Honour noted that it was his view that he should discharge the juror that day, rather than on Friday, and also noted that by doing so that would relieve the remaining members of the jury "of any tension" which the released juror might otherwise have expressed in the jury room.
28 Those remarks are consistent only with a decision having been made that the juror should be discharged that day, and that the trial should continue. The case was accordingly, in my view, stronger than WU, where the discharge of the juror was opposed, an event which called for a considered decision with reasons for the course taken.
29 Consistently with the views expressed obiter in Wu, concerning the circumstances in which orders might be inferred or implied, I am of the view that his Honour's remarks may here be treated as having amounted to implied orders of the kind required by the Act.
30 I would add, for completeness, that no question whatsoever arose, in this case, as to the sufficiency of the reasons which arose for the discharge of the juror, in view of his overseas commitments and in view of the fact that the trial had overrun its estimate. It was not a case of any great complexity, nor was it one involving any unique issue of public interest, such that it might have benefited from as comprehensive a community input as was possible. There was every reason to continue the trial in the interests of efficiency, and the saving of costs and inconvenience to all concerned.
31 Once the policy decision had been taken by the Legislature, in this State, to authorise the continuation of trials with jurors comprised of less than twelve jurors, the present case, in my view, was one in which that might properly have occurred.
32 Moreover, the case was one in which the trial began with twelve jurors, regularly empanelled and authorised to determine the guilt or otherwise of the appellant. Had the attention of his Honour been brought to the need for an order, framed in express terms, for the discharge of the juror and for the continuation of the trial, there is no doubt whatsoever that the orders would have been made and by consent.
33 Finally, I note that reference was made in the course of argument to the decision of the High Court in Maher v The Queen (1987) 163 CLR 221 and in particular to the passage in the joint judgment at 233 to 234 where it was said:
"The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorised by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor [1921] 2 AC 299.
…
The principal is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect."
34 Maher was a case where the failure to comply with a mandatory provision governing the constitution and authority of the jury from the outset, meant that a conviction founded on the verdict could not stand. The relevant failure concerned the addition of counts to the indictment after the jury had been sworn resulting in a situation in which they were asked to try issues on counts which they had not been sworn to try. While the principle it establishes for the need for a trial to commence, and to continue before a properly constituted jury, cannot be questioned it does not itself throw any additional light on the present case.
35 I am, accordingly, not persuaded that this ground has been made good. However, for the future I would underline the observations made in Wu that trial judges should exercise care to consider the questions that do arise, when occasion is presented for the potential discharge of a juror, and for a possible continuation of the trial. The consideration of such questions should be recorded and reflected in express orders, with reasons.
36 If it has been a practice in this State, as was suggested in Wu, to deal with those events somewhat informally, that is without express order and reasons, then that practice should be henceforth abandoned.