R v Radju

COUNSEL : Crown: W.L. Robinson QC Appellant: G D Wendler SOLICITORS : S E O'Connor CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - obtaining a valuable thing by deception - fundamental failure of procedure - failure to give express orders for discharge of juror - failure to give express order for separation of jury LEGISLATION CITED : Crimes Act 1900 s 178 BA Jury Act 1977 ss 22, 54 DECISION : Leave to appeal granted. Appeal dismissed. Convictions and sentence confirmed.

No. 60356 of 2000 GILES JA WOOD CJ at CL SIMPSON J 19 March 2001 Regina v Radju

The appellant was found guilty of three counts of obtaining a valuable thing by deception, contrary to s 178BA Crimes Act 1900. During the trial one of the jurors requested permission to withdraw from jury duty. The trial judge discharged the juror and informed the jury that one of their number had been discharged. No formal order was sought by trial counsel. At the end of the summing up, the trial Judge indicated that if the jury was unable to reach a decision that day they should notify the Sheriff's Officer that no verdict had been reached and leave without returning to the Court. They could then resume their deliberations the next morning.

The appellant seeks leave to appeal against the conviction on the sole ground that there was a fundamental failure of procedure going to the root of the trial process in that (1) his Honour failed to make an order in express terms pursuant to s 22 Jury Act when discharging the juror; (2) his Honour failed to make an order in express terms pursuant to s 54 Jury Act when allowing the jury to separate.

Held: (Appeal dismissed): Ground 1: Trial judge failed to give a formal order in compliance with s 22 Jury Act While it would have been preferable for orders to have been made in express terms, his Honour clearly gave consideration to the question as to whether the juror should be discharged and whether the remaining jurors should be allowed to continue the trial. His Honours remarks amounted to an implied order. However, in future, trial judges should exercise care to consider the questions that arise concerning the potential discharge of a juror and possible continuation of the trial. The consideration of such questions should be recorded and reflected informal orders

Wu (1999) CLR 99 applied. Maher (1987) 163 CLR 99 distinguished.

Ground 2: Trial judge failed to give a formal order in compliance with s 54 Jury Act What occurred here amounted to an implied order under s 54 Jury Act. The trial judge gave adequate consideration to the issues before announcing that the jury could separate. It should be regarded as proper practice in the future, that an express order for separation be made in the presence of the jury, so that it becomes a matter of record upon the face of the transcript. It would also be highly desirable at that point for the trial judge to remind the jury of the need to refrain from discussing the case outside the confines of the jury room.

Wu (1999) CLR 99 considered. Maher (1987) 163 CLR 99 distinguished.

JUDGMENT 1 WOOD CJ AT CL: On 13 September 1999, the appellant was indicted before his Honour, Judge Shadbolt QC and a jury of twelve in the Sydney District Court, on three counts of obtaining a valuable thing by deception, contrary to section 178 B A of the Crimes Act 1900. Later that day the first jury was discharged and the appellant was reindicted before a second jury. 2 At the commencement of proceedings on 23 September 1999, it became known that one of the 12 jurors empanelled for the trial had requested permission to withdraw from duty during the following week. The transcript records that the request was dealt with in respect of this juror, in the following way: "HIS HONOUR: One of our jurors wishes to be excused next week because he has commitments overseas. He has written to me to say: 'I regret to inform you that due to my business commitment I have to travel overseas at the end of this week to attend to urgent matters. It will therefore not be possible for me to continue with my jury duty next week. I sincerely request the court to allow me to withdraw from the jury of the case being heard in this court. I apologise for any inconvenience caused.' He has accompanied that with a fax from the Viva Steamship Company Limited which says: "Due to recent earthquakes in Taiwan it is of utmost importance that you should return to Hong Kong immediately so you can visit Taipei and Kaohsiung to attend to our business investments, and find out whether losses have been incurred by the earthquake."

I think the Sheriff's Officer will correct me, the Sheriff's Officer perhaps showed some surprise at this. It was pointed out to him by the juror that the trial was put down for two weeks, not two weeks plus. I quite agree with that. He came along quite willingly to give his time over what was the proposed time, and the case has run over.

My own view is that I should discharge him, not on Friday, but now, because he is not going to sit on any further. It also relieves the jury of any tension which such a jury member might express in the jury room. Although it is my decision, I appreciate anything that you have to say about it.

CROWN PROSECUTOR: I don't have anything to say your Honour.

KING: I have got no objection to following that course your Honour.

HIS HONOUR: I will just call him in. I will just speak to him as a witness." 3 It was obviously common ground between all concerned that, in the event of the juror being discharged, the trial should continue with the remaining eleven jurors. 4 His Honour brought the juror in question back before the Court. The transcript reveals that the matter was dealt with in the following way: "IN THE PRESENCE OF THE JUROR

HIS HONOUR: We have received your letter. I have spoken to counsel. I apologise for the fact that the case has taken as long as it has taken, so that it will exclude you from the resolution of the matter. We have really wasted your time. These things occur.

Both counsel and I agree that you should not sit on any longer, and that you should make such arrangements as you obviously need to make. I would just like to thank you very much for your attention to this case. I am sorry that it has turned out like this.

JUROR: I apologise for the inconvenience caused. I apologise I have to leave.

HIS HONOUR: Not at all. We held you for a fortnight. If we cannot keep to that, that is our bad luck. If you would like to go with the Sheriff's Officer, he will show you out. As far as your payment is concerned, that should occur this morning. That is what should happen. Whether it will or not, I don't know.

JUROR: There is no rush, that is fine." 5 When the remainder of the jury were returned to Court his Honour gave them the following explanation as to what had happened in the trial: "HIS HONOUR: First of all, ladies and gentlemen you will see that I have discharged one of your number for reasons which no doubt you have been aware of so that he can conduct his business next week." 6 The trial then continued before the remaining jurors. At the conclusion of the summing-up, late in the afternoon of 30 September 1999, his Honour gave consideration as to whether to send the jury out that afternoon. The transcript records that the matter was dealt with in the following way: "HIS HONOUR: Now ladies and gentlemen it is a matter for you whether you want to retire and start considering your verdict or not. You are able to leave at any time you want to, if you wanted to go out now you would be able to leave at any stage that you felt that you would like to draw a stance to the afternoon. You might like to come back tomorrow, it is a matter entirely for you.

Mr Foreman have you taken any kind of straw poll on it?

FOREPERSON: Yes, your Honour, if we retired now for deliberations would the Court still be here in one hour's time, we didn't know whether you went home.

HIS HONOUR: Yes of course, we wait upon your return, but if you were to tell the Sheriff's Officer at some stage that you had enough of the afternoon then you just leave without coming back into the Court and return again tomorrow at half past nine and deliberate only when the eleven of you are together.

FOREPERSON: I think we'd like to go and deliberate now and see what happens.

FOREPERSON: If nothing comes out then we'll be back tomorrow.

JURY RETIRED TO CONSIDER ITS VERDICT AT 3.46PM" 7 Again there was no opposition by trial counsel to this course of events. The jury thereafter retired to consider their verdict at 3.46pm. Although the transcript does not disclose when it was, that afternoon, that they separated it is clear that they did do so, and that they not return to Court until the following day. 8 There was no objection raised by trial counsel to the jury having separated overnight. The transcript records in this respect: "HIS HONOUR: The jury have retired for the afternoon and they've gone home and I'll (sic) return tomorrow at half past nine. I haven't brought them back to tell them that and the Court will assemble at ten and the accused will go into custody, bail refused." 9 It is probable that in this last passage the expression "I'll return tomorrow at half past nine " is an error for "they'll return tomorrow at half past nine". In the context of the exchange that would make more sense indeed it would be consistent with his Honour's expectation, announced earlier that day, that they would return on the following morning, at half past nine, if they did decide to cease deliberations for the day. 10 The transcript does not record whether in fact a message was sent to his Honour in Chambers informing him of the jury's wish to separate, nor does it show whether any order was made in Chambers, that is in the absence both of counsel and of the jury. 11 On the following morning, that is 1 October 1999, the jury returned verdicts of guilty in respect of all three counts on the indictment. 12 It is now contended by Mr Wendler, for the appellant, as the sole ground for an appeal against conviction, that there was a fundamental failure of procedure going to the root of the trial process requiring that the convictions be quashed. This is based upon the submission that his Honour did not make orders in express terms, first, when the juror was discharged, secondly, when the trial continued with the remaining eleven jurors, and thirdly, when the jury separated on the afternoon of 30 September.

Discharge of Juror and Continuation of Trial 13 The Jury Act provides: "19. The jury in any criminal proceedings in the Supreme Court or the District Court is to consist of 12 persons returned and selected in accordance with the Act.

22. Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all purposes of that trial or inquest properly constituted if:

(a) in the case of criminal proceedings, the number of its members:

(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 10 but not below 8 and the trial has been in progress for at least 2 months;

(b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8; or

(c) in the case of a coronial inquest, the number of its members is not reduced below 4,

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.

Separation of the Jury 37 It is provided by the Jury Act 1977 section 54: "54. The jury in criminal proceedings: (a) shall, unless the court otherwise orders, be permitted to separate at any time before they retire to consider their verdict; and

(b) may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict". 38 Section 54 again alters the common law rule that, once a jury retired to consider its verdict, it should be sequestered and not allowed to separate. The Act now reserves for a trial judge a discretion to permit the jury to separate. There will naturally be exceptional cases where that should not occur, as there will routinely be cases where it might be expected that the jury would be allowed to separate. 39 It was submitted that the procedure followed by his Honour amounted to an impermissible delegation of authority to a Sheriff's Officer to permit the separation of the jury. This it was similarly submitted, despite the absence of opposition to the course proposed, was a procedural error going to the root of the trial process. 40 For similar reasons to those identified earlier, in relation to continuation of the trial, I am of the view that what occurred here amounted to an implied order that the jury could separate when they decided that they had spent sufficient time, that afternoon in considering their verdict, and elected to return on the following morning. That in particular emerges from the observations by his Honour which made it plain that they would be able to leave when they thought it appropriate to do so, after having commenced their deliberations. 41 Having regard to the entirety of the relevant passages in the transcript an implied order was, in my view, made permitting them to separate, the timing of which alone was left to their convenience, it being the expectation of all concerned, and particularly of the trial judge, that when that did occur they would notify the Sheriff's Officer. 42 I agree that had a decision as to whether they could separate or not been left to the Sheriff's Officer, then that would have amounted to an impermissible delegation of the discretion or power reserved under the Act. I also agree that the making of an express order, at the time of separation, would have been preferable but I am not persuaded that that the separation occurred here in an impermissible way, that is, in the absence of an order which is to be inferred or implied from the passage that I have extracted. I am accordingly not persuaded that this ground has been made good. 43 For reasons similar to those expressed in relation to the first ground, I would regard it as proper practice henceforth for an express order for separation to be made in the presence of the jury, where it is thought necessary to allow them to separate, so that it becomes a matter of record upon the face of the transcript. It would also be highly desirable at that point for the trial judge to remind the jury of the need to refrain from any temptation to discuss the case outside the confines of the jury room, and in particular to exercise care to keep the terms of the jury deliberations to themselves. 44 I would accordingly propose that leave should be granted to argue the points sought to be raised. The appeal should, however, be dismissed and the convictions and sentence below confirmed. 45 GILES JA: I agree. 46 SIMPSON J: I also agree. 47 GILES JA: Those will be the orders. **********

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