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[2007] QCA 140
General information, not legal advice.
Court of Appeal (Qld)
2007-04-27
Jerrard and Holmes JJA and Cullinane JSeparate, reasons for judgment of each member of the Court, Holmes JA and Cullinane J, concurring as to the orders made, Jerrard JA
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Walters [2007] QCA 140
PARTIES: R v WALTERS, Piet Cornelius (applicant/appellant)
FILE NO/S: CA No 293 of 2006 / DC No 338 of 2004
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction and Sentence
ORIGINATING COURT: District Court at Cairns
DELIVERED ON: 27 April 2007
DELIVERED AT: Brisbane
HEARING DATE: 20 March 2007
JUDGES: Jerrard and Holmes JJA and Cullinane J / Separate reasons for judgment of each member of the Court, Holmes JA and Cullinane J concurring as to the orders made, Jerrard JA dissenting
ORDER: 1. Appeal allowed / 2. Conviction set aside / 3. New trial
CATCHWORDS: JURY – THE JURY IN CRIMINAL PROCEEDINGS – GENERAL MATTERS – where a juror became ill – where the juror was separated from the remaining jurors for a period of time – whether the presence of only 11 jurors prejudiced the trial / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – where local media published articles critical of the applicant – where the trial took place notwithstanding potential juror exposure to the adverse media – whether the failure to change the venue was a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was convicted of large-scale fraud – whether the sentence was manifestly excessive / District Court of Queensland Act 1967 (Qld), s 63 / Jury Act 1995 (Qld), s 53, s 56(1)(b) / R v Chapple [1995] QCA 73, CA No 461 of 1994, 31 March 1995, considered / R v Edwards [2002] QCA 206; [2002] 1 Qd R 203, applied / R v Green [1996] QCA 42, CA No 426 of 1995, 30 January 1996, considered / R v Hutchings [2006] QCA 219, CA No 345 of 2005, 21 June 2006, applied / R v Ollis (1986) 21 A Crim R 256, considered / R v Webber [2000] QCA 316, CA No 436 of 1999, 8 August 2000, considered / R v Yanner [1998] 2 Qd R 208, considered / Wu v The Queen (1999) 199 CLR 99, applied
COUNSEL: A W Collins for the appellant / D Adsett for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Commonwealth) for the respondent
JERRARD JA: On 16 September 2006 Mr Walters was convicted by a jury on 13 counts of dishonestly gaining an advantage, and on one count of dishonestly causing a detriment. He was sentenced that same day to eight years imprisonment. He has appealed against the convictions and sought leave to appeal against the sentence.
His appeal against conviction relies on two matters. The first is that the learned trial judge erred in failing to order a change of venue for the trial, away from the Cairns district. The second is that the trial miscarried, because of irregularities in the conduct of the jury deliberations; that ground essentially complains that the learned trial judge erred in re-instating a juror after the judge had discharged that juror.
The change of venue application
The learned trial judge had heard an application under s 63 of the District Court of Queensland Act 1967 (Qld) on 12 September 2005, a year before the trial took place. On that application, counsel for Mr Walters read an affidavit annexing what counsel correctly described as a multitude of articles published in the local daily press in Cairns, reporting on an allegedly fraudulent investment scheme in which Mr Walters was involved. Counsel informed the judge that the articles named Mr Walters “as being a clearly fraudulent operator who has, to use my words, fleeced quite a number of investors.”1 Counsel also informed the judge that the publicity related not only to the charges which were the subject of the future trial, but other matters such as an ASIC investigation (apparently, into a company or companies associated with Mr Walters) and “the winding up application in the Supreme Court before Justice Jones. They make mention of Mr Walters being wanted in Canada. … [T]here is at least one fairly lengthy article about that very matter in – related to similar allegations.”2
Counsel continued with the description, that there were articles concerning Mr Walters “being a bail risk, bail being refused. He is described as a wanted man living the high life in what's described as a fairly luxurious house in Tasmania. There's mention of figures of losses, various amounts; 8 million, 10 million, up I think to 17 and a half million dollars, and of course most importantly the blaze of publicity just a couple of weeks ago involving the sentence of Mrs Parry, where she blamed virtually all of her woes on trying to clean up after Mr Walters and his alleged illegal conduct. In my submission it can only be described as a constant barrage of publicity which occurred not over a period of a few weeks, or a few months, but rather a few years.”3
Counsel referred to the decision of this Court in R v Yanner [1998] 2 Qd R 208, and particularly to the matters described by Muir J in his judgment in that case, as considerations likely to be relevant on such an application. Those included:
● Ensuring that a fair trial was had and seen to be had;
● The cost, expense and inconvenience involved in a change of venue, including disruption to court schedules and a waste of court resources;
● Delay which might be occasioned by a change;
● Moving a trial from the locality in which the offence was allegedly committed;
● The system of administration of justice in the State, which established court districts and enabled selection of the district in which criminal proceedings were commenced.
The learned trial judge gave an ex tempore judgment on the application to move the trial, in which the judge made reference to a large amount of adverse publicity over almost the prior three years and since October 2002, relating not only to Mr Walters personally, but also to the investment scheme he was alleged to have operated. The judge described most of that publicity as emanating from the local newspaper in Cairns, the Cairns Post, and with significant other publicity in the State as well. That publicity had also related to an ASIC investigation and a winding up application in the Supreme Court, and to other matters adverse to Mr Walters, such as the allegation that he was wanted in Canada in relation to similar dealings, and that he had been considered a bail risk at one stage. The judge added that the publicity alleged large financial losses on the part of the complainants, and the matter had recently gained publicity again because the judge had sentenced an Elizabeth Parry in relation to another fraudulent scheme, which involved an association that she had had initially with Mr Walters.
The judge said it was true to say that the publicity had been significantly adverse to Mr Walters, and spread over a three year period. The judge concluded that it was likely that most potential jurors would have had some knowledge of the matter, not simply from the publicity but also as a result of discussion within the community, and particularly emanating from the various complainants. There were at least ten of those, living in the Tablelands. Accordingly, the judge held that the inference could be drawn that prospective jurors would have read or at least heard about the allegations against Mr Walters and the scheme that he was involved in.
The judge held that the onus was on Mr Walters to show cause as to why the venue should be changed, and observed that the jury panel was not drawn from the immediate community in which the complainants lived. The judge then held that having regard to the appropriate and timely warnings and directions that the judge expected would be given by a trial judge, the judge could not be persuaded that Mr Walters could not obtain a fair trial in Cairns, and that he could not be seen to have a fair trial in Cairns. Accordingly, the judge dismissed the application.
The appellant's counsel did not suggest that the learned judge understated, misdescribed, or minimised the likely effect of the prejudicial pre-trial publicity. This Court was not requested to make its own assessment of that publicity. It was certainly prejudicial to Mr Walters, but the learned trial judge considered a fair trial could be conducted despite that publicity, by reason of directions and warnings to the jury about it.
The learned judge took relevant matters into account. The judge could also have added, as a factor militating against changing the place of trial, the inconvenience and expense to witnesses and to the prosecution of moving the trial elsewhere. It appeared that in September 2005 Brisbane was the only realistic alternative venue. The trial in fact came on a year later in Cairns, and there is no complaint of any intervening publicity between the ruling in September 2005 and the trial in September 2006. The appeal grounds repeat the same arguments as those pressed on the trial judge, but the appellant has to show that a miscarriage of justice has resulted from the refusal to order a change of venue. That really requires this Court to be persuaded now by the submission that a change of venue was the only order that could fairly and properly have been made then, and that there was no proper basis for exercising a discretion to refuse the application and conduct the trial in Cairns.
Discharge of a juror
The other ground of appeal arises from the following events. The jury had retired to consider their verdict at 10.15 am on 15 September 2006, and at 4.08 pm the court resumed and the learned trial judge informed counsel that juror no 4 has “some sort of upset, is very distressed, she has been vomiting. She's presently separated in another room out there, but she has access to a toilet and so forth. She says she can't go on.”5 The learned judge sought submissions from counsel, and adjourned briefly while instructions were taken. At 4.20 pm counsel for the appellant told the court that if the judge was contemplating discharging that juror, counsel's instructions were to ask for the discharge of the whole jury. Counsel for the prosecution suggested in opposition that the sensible course was to discharge that juror, and that the trial should continue with the other 11 jurors deliberating. The learned judge asked the bailiff to enquire if the juror was well enough to come in and speak with the judge (and to the court), and the bailiff informed the court that “[S]he's quite sick, actually. She's laying down and - yes, she has vomited a few times and she's not really well enough to come in, she said, yes.”6
The judge thanked the bailiff, and announced that the judge proposed to discharge juror no 4, and invited submissions from Mr Walters' counsel on whether the whole jury should be discharged. During the course of those submissions, the judge instructed the bailiff to let juror no 4 know that she was discharged and free to go, and then heard submissions from counsel for the Crown, who still submitted that the trial should continue with the balance of the jurors.
Two things seem then to have happened at once. The bailiff advised the court that juror no 4 felt that she could come in (and, apparently, speak with the court); and further that there was now a verdict on all counts (apparently reached by at least the 11 jurors who were not indisposed). The bailiff further informed the court that when juror no 4 was advised that she was discharged and free to go, she had said words to the effect “Oh, you know, am I? What if I'm OK tomorrow?”
The learned judge responded to that information with the statement that the judge had formally ruled that the juror had been discharged, and the matter would be left there. But then counsel for the appellant suggested to the judge that while the judge had made a ruling that juror no 4 was discharged, “nothing had changed as far as the juror was concerned, and that she didn't know any such thing”,7 and that if it was possible for the juror to continue, then “maybe you could revoke the order that you made concerning the juror. I wouldn't have thought there was a problem with that in the circumstances.” That counsel suggested that it would do no harm to see what the juror had to say, and that it was preferable to have a verdict of 12 jurors. Counsel for the Crown supported that proposal, observing regarding the premise upon which the judge had acted, that the juror was unable to continue, that “we should check that”.
“Well, I am satisfied that the basis on which I made the order to discharge juror no 4 varied when she spoke to me or spoke to the Court at her request, and I am satisfied that, by what she said, she is not indicating that she's incapable of continuing to act at all and therefore I will revoke the discharge order that I made earlier, and I will reunite the jury. I won't discharge the jury. I think it's appropriate, given the length of this trial, the nature of the trial and the background of the trial, that the jury continue to deliberate and attempt to reach a verdict of 12.”
That was at 5.08 pm; at 5.18 pm the judge informed the jurors that the law preferred a verdict from all 12, and that it was important that they try to reach a verdict with all 12, that the court would be adjourning overnight and deliberations could resume at either 8.30 or 9.00 o'clock in the morning. The court then did adjourn, with, it would appear, no further jury deliberation at all that night. At 9.05 am on 16 September 2006 the learned judge resumed the court, and informed counsel that the jury had reached a verdict. The judge then put on record the circumstances that had happened. Those included that a government medical officer had seen the juror at some time between 7.30 and 7.45 the previous night, and the juror then felt fine and able to continue. The judge also described the juror's separation from the others as starting shortly after 3.20 pm, when the judge had given permission for the juror to be separated to the extent that she was taken from the room in which the jurors were deliberating, and into a witness room across a hallway, which had a separate bathroom. She was accordingly not with the other jurors from a little after 3.20 pm until either 5.08 or 5.18 pm. The only people with whom she communicated was the court bailiff, and her doctor’s associate. Presumably, she contacted her doctor after being separated from the other jurors. She had been deliberating with the other jurors for most of the day of 15 September.
Section 53 of the Jury Act 1995 (Qld) provides that after the jury in a criminal trial has been sworn, the jurors must not separate until they have given their verdict or have been discharged by the judge. Because of her indisposition, juror no 4 did separate from the other jurors for a period that afternoon. Section 53(4) provides that:
“The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.”
In R v Edwards [2002] 1 Qd R 203, Williams JA wrote at [41] that the question is whether or not the judge considers the contraventions or irregularities appear likely to prejudice a fair trial. In applying that test the judge might have regard to the reaction of fair minded and informed members of the public to the irregularities in question and it would be sufficient if the judge were satisfied that there appeared to be a reasonable suspicion about the fairness of the trial. A trial judge asked to exercise a discretion under s 53 should consider whether whatever irregularities or contraventions had occurred appeared to give rise to a reasonable suspicion about the fairness of the trial. That included considering whether public confidence in the proper administration of criminal justice could be preserved if the convictions were allowed to stand in the light of the irregularities.
In that case, a juror had disappeared from the hotel at which the jury were intended to be housed, and had spent some hours alone in Cairns and in nightclubs, become intoxicated, and had been in the presence and company of several police officers for some time. That case is very different to this one, where juror no 4 had access only to the bailiff and a doctor, and where the fact of her being ill for some time in the afternoon, and physically separated from the other jurors for that time, was known to the other jury members. It would not give rise to a reasonable suspicion about the fairness of the trial, or reduce public confidence in the proper administration of criminal justice, if these convictions were allowed to stand after that limited contact with non-jurors, where there was no basis to suspect juror No 4 had spoken about anything except her health with the doctor’s associate.
The fact that a juror became unwell in a stressful environment and time, was separated from the other jurors for a period while that juror recovered, and then rejoined the jurors when well enough to do so, is not a procedure which is likely to reduce confidence in the impartiality of the jury or proprietary of the trial; certainly not where the juror at all times had no contact with the general public. The general circumstances suggest that the jurors were not far from a concluded verdict when juror no 4 became unwell. All 12 jurors reached a unanimous verdict quite quickly after juror no 4 rejoined the deliberations. Accordingly that period of separation from the other jurors, to the extent that it was a contravention of s 53(1), does not appear likely to prejudice a fair trial.
But there is still another matter. The learned trial judge had pronounced the discharge of juror no 4, exercising the power given in s 56(1)(b) of the Jury Act 1995 (Qld). That relevantly provides that if, after a juror has been sworn, the juror becomes incapable, in the judge's opinion, of continuing to act as a juror, the judge may, without discharging the whole jury, discharge the juror. This Court held in [2006] QCA 219, following (1999) 199 CLR 99, that, particularly where a charge was a serious one such as murder, the power to proceed with a jury of less than 12 should not be exercised where, without a great deal of inconvenience, steps could be taken to procure a trial with a jury of 12. But that case has limited relevance in this matter, because this trial had reached almost its conclusion before juror no 4 fell ill. On the information given to the learned trial judge, the judge had proper grounds for the opinion that juror no 4 had become incapable of continuing to act as a juror. The judge accordingly acted quite properly in announcing that the judge proposed to discharge juror no 4, and in advising the bailiff to let that juror know that the juror was discharged and free to go. In , Gleeson CJ and Hayne J wrote, at 199 CLR 103, that it was plainly desirable that a judge exercising the power to discharge a juror, and the power to proceed with a jury of less than 12 members, does so in unmistakable terms by two separate orders. The learned trial judge had unmistakably pronounced an order discharging juror no 4, although the judge had not yet directed under s 57 of the that the trial continue with the remaining jurors; the judge clearly intended that it should.
Sentence appeal
The applicant also sought leave to appeal against his sentence, arguing in written submissions that insufficient consideration was given to his cooperation with the authorities in ensuring that the trial took place as efficiently as possible. The learned judge had announced a head sentence of nine years, which is supported by other decisions of this Court to which the respondent director has referred us. Those included R v Chapple [1995] QCA 73, where the sentence was ten years imprisonment with parole eligibility after four years, for misappropriation by a solicitor of $1.5 million over a three year period; R v Green [1996] QCA 42, where the sentence was nine years imprisonment for misappropriation of $576,806 on 12 counts of misappropriation and two of making a wilfully false promise; R v Ollis (1986) 23 A Crim R 256, where a sentence was 12 years imprisonment for misappropriation of $700,000 over a seven month period in which a retirement village scheme had been marketed to elderly investors; R v Webber [2000] QCA 316, where a sentence of eight years imprisonment with a parole recommendation after three years was imposed on four counts of fraud in which the total amount received was just over $1 million. In this matter the sentencing remarks record that the amount of money involved in the 14 separate offences was around $1 million, and that the jury's verdicts accepted that from the very outset Mr Walters knew that the scheme was incapable of honouring the obligations promised, and that the complainants ultimately would lose their money. The sentencing remarks report that a substantial amount of money was spent on maintaining a luxury lifestyle for Mr Walters and his wife, with money being spent on an expensive house in Tasmania, expensive cars, antiques, jewellery, art works and so on; and that Mr Walters had exhibited no remorse. The judge did say that the trial took place in a short period of time, and for that reason reduced the head sentence to eight years, and also described taking Mr Walters' age, 69, into account in that reduction.
A considerably greater reduction could have been expected if Mr Walters had exhibited greater remorse by, for example, a plea of guilty, and a head sentence of nine years is supported by the cases on which the Crown relies. The appellant's counsel argues for a parole eligibility date earlier than half way, and that would have been within an available sentencing discretion, but the absence of that earlier eligibility does not make the sentence manifestly excessive. Accordingly, I would dismiss the application for leave to appeal against the sentence.
HOLMES JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and Cullinane J. I respectfully agree with what Jerrard JA has said as to the argument that there should have been a change of venue, and, like him, would not allow the appeal on that ground. However, on the question of whether the trial miscarried because of the learned trial judge’s reinstatement of a juror previously discharged, I find myself generally in agreement with the reasons of Cullinane J.
“(1)After the jury in a criminal trial has been sworn, the jurors must not separate until they have given their verdict or have been discharged by the judge.
(2)However, the judge may allow the jury to separate before retiring to consider its verdict during an adjournment of the court or while proceedings are held in the jury’s absence.
(2A)Despite subsection (2) -
(a) the judge must allow the jurors to separate during a lunch or dinner adjournment to obtain meals; and
(b) if the judge considers allowing the jury to separate may prejudice a fair trial—the judge may order the jurors not to separate.
(3)If a juror separates from the rest of the jury in contravention of this section, the juror may be punished summarily for contempt of the court.
(4)The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.”
The appropriate test to be applied is to be found in the judgment of the Court of Appeal in R v Edwards [2002] 1 Qd R 203.
The relevant question is whether the contravention of s 53 appears likely to prejudice a fair trial.
The possible risk of prejudice arising from the separation of one juror from the remainder in this case does not arise out of any possibility of contact between a juror and some other person or persons or because of any other concern about the integrity of the process.
Here however, it seems to me a very real issue arose as to whether to fair minded and informed members of the public the absence of the juror concerned for such a significant time during a period when the other jurors continued to deliberate and reached a verdict, gave rise to a reasonable suspicion about the fairness of the trial.
As Kirby J said in Wu v The Queen (1999) 199 CLR 99 at page 125, “every juror represents a forensic advantage to an accused person.”
Here the absence of the juror from the jury room for a significant period while the remaining jurors deliberated and reached a verdict meant that she at that time played no part in the interplay of views between jurors, which are so essential a part of the process by which a jury reaches a verdict. It meant that she had no opportunity on that day after separating from the other jurors to influence one way or another, whatever impressions were formed or conclusions reached in the process of arriving at the verdict reached. Any input by her into the process of deliberation as a whole leading to the verdict reached by the 11 on that day was limited to what had taken place prior to her becoming ill.
For a significant period the appellant was, to use the language of James LJ in R v Goodson (1975) 1 WLR 549 at 550, “deprived of the voice of one juryman in the jury room in the consideration of the verdict.”
The learned trial Judge was faced with a set of circumstances which were to say the least unusual. No authority was cited to us dealing with a similar case.
In deciding to take the course that she did, Her Honour placed considerable emphasis upon the importance of trial by a jury of 12. There is high authority for this proposition. See Cheatle v The Queen (1993) 177 CLR 541, Wu v The Queen (1999) 199 CLR 99. See also R v Roberts [2005] 1 Qd R 408.
However, in my view the course which was taken was not an appropriate one in the circumstances and resulted in a serious irregularity in the trial.
I do not think that the difficulties arising from the juror's absence from the jury room, for a significant period whilst the remaining jurors continued to deliberate and reached a verdict is remedied in any way by that juror's presence on the following day in the jury room for a short period with the other jurors prior to a verdict being formally delivered.
R
Walters
(1999) 199 CLR 99
(1993) 177 CLR 541
With respect, although there was plainly a good deal of prejudicial publicity up until September 2005, none is complained of in the intervening period, and the argument on appeal did not identify any aspect of the trial which was conducted which was unfair to Mr Walters, or in which he was disadvantaged because the trial was conducted in Cairns. There are no complaints about any of the directions given by the learned judge, who advised the jurors at the start of the trial that it was absolutely essential that they approached it from a completely objective and impartial point of view. The judge also directed the jurors in the summing-up not to let sympathy or prejudice play a role in how they assessed the evidence or in their ultimate verdict, and that it was very important that they set aside anything they might have read about the case or heard about it outside of the court. The judge reminded the jurors that that included anything they might have read in the paper or anything another person might have said to them, or which they may have seen on the TV or heard on the radio. The judge further advised the jurors not to be influenced by public opinion and to be dispassionate when considering the evidence.4
The appellant's counsel does not complain of any imbalance in the summing up, and I observe with respect (as counsel for the appellant frankly agreed) that the defence case was fully and fairly put to the jury in that summing up. The prosecution case appears to have been a strong one, based on what it alleged was dishonest conduct by Mr Walters in making various representations and assurances to complainants who invested money in a company of which he was a director, Drury Management Pty Ltd. The prosecution case was that that company was in fact insolvent by at least October 1999, if not August of that year (the dates of the alleged offences were in the period September 1999 to August 2002), and there was no evidence at all of any significant income producing assets owned by Drury Management. There were payments from that company for what appeared to be private expenditures of Mr Walters, an excess of liabilities over assets of $438,670 as at 31 October 1999; such repayments to investors as were made over the years came not from investments made on behalf of Drury Management, but from new loans that were being received from other investors. The prosecution contended that the unrealistically high interest rates offered to investors could not be maintained, and invited the jury to conclude that from the outset Mr Walters knew that Drury Management could not repay the investors' capital or interest; it pointed to repeated assurances by Mr Walters to investors that their investments were safe, and argued that he should have, or did know, that the insurance policy to which he referred was not one that protected the investors' particular investments. The learned judge put to the jury that the critical question was whether at the time alleged in each charge Mr Walters knew that it would be impossible ultimately to repay the principal and interest that the investors had been promised.
The judge's other directions had reminded the jurors that Mr Walters was not on trial for being a bad bookkeeper, or for being a poor investment advisor, or for failing to cooperate fully with receivers, that he had not sought out investors and the complainants had all voluntarily gone to see him, and had been told to obtain independent legal and financial advice, and one of them actually did so. Further, the investors agreed that they generally knew that the higher the interest rate, the greater the risk, and Mr Walters had not tried to talk any investor out of withdrawing any money. His counsel had challenged the assumption of the expert witness or witnesses that Mr Walters' company Drury Management was insolvent, and the defence had argued that the expert accountant was really drawing conclusions with the benefit of hindsight.
The appeal record does not suggest that Mr Walters was convicted because the trial was held in Cairns. It reveals that after a fairly conducted trial, about which there is no complaint, he was convicted on the evidence lead by the prosecution. He had chosen not to call or lead any himself. He has not demonstrated that a miscarriage of justice resulted from the trial being held when it was in Cairns. I would dismiss that ground of appeal.
The learned judge accordingly had juror no 4 brought into the court, and the judge advised that juror “Before I do formally discharge you I just wanted to make sure how you felt, and whether you feel that with more time you could go back into the jury room.” The juror replied that she had (previously) been fine, but had become ill after lunch. She said she thought the mushroom soup for lunch had affected her, and “I contacted my doctor and I spoke to his associate.” She then added “I'm feeling sort of OK at the moment, but I've still got a tremendous headache. But I would feel terrible for inconveniencing the court in any way. I know I have already. So I would like to – I would like to remain.”9 She added a few moments later, “I'm sort of feeling up and down at the moment but I'll go back into the jury. I really don't want to be discharged. But I don't want to inconvenience the court. So that's my position.”10
The learned judge asked the juror to retire outside for a moment, and counsel asked for a brief adjournment. The court adjourned at 4.38 pm and resumed at 4.52 pm. The appellant's counsel informed the judge that he understood that that juror had been separated from the rest of the jury from approximately 3 o'clock, and accordingly for about an hour and a half, by the time the judge made the order pronouncing the juror's discharge. Because the other 11 members had reached a verdict without juror no 4's final and concluded views, counsel urged the judge to discharge the whole jury, submitting that it would be unsatisfactory either to take the verdict of a jury of 11, or to allow juror no 4 to rejoin the deliberations. Counsel for the Crown ultimately urged the judge to see if a verdict of 12 jurors could be obtained, and to revoke the discharge order and to reunite the jury.
The learned judge did that, explaining the reasons as follows:
The appellant's counsel on the appeal submits that the learned judge lacked any power to reverse that first order and re-admit juror no 4. He argued that juror no 4 had been discharged, and if re-admitted, should have been re-sworn. He contended the discharge happened when the judge pronounced the order; and did not in any way depend on the juror's accepting the order of discharge, or on it being communicated to her. I agree with the latter submissions, but in this case I consider that execution of the order pronounced by the judge had been suspended on the juror's protest, evidenced by the judge’s remark “Before I do formally discharge you…”. At the invitation of both counsel at the trial, the learned judge examined again the assumption on which the order was made. It was an order having, when executed, an irreversible effect, and in the circumstances it was important for the learned trial judge to ensure that the order was not enforced or executed – while revocation remained a realistic possibility – if the assumption on which it was made was no longer valid. The judge was satisfied after further enquiry that the juror was capable of continuing to act as a juror, and the judge reversed the order before the juror spoke with any non-juror, other than the bailiff and the doctor. I consider it was within the learned judge's general and wide discretion in conducting the trial to accede to the invitation made by both counsel, to at first suspend execution of the order, and then, on being satisfied that the order could no longer be supported on the facts, to revoke it.
The result of the exercise of discretion by the learned trial judge was that the court received the unanimous verdict of 12 jurors, not of 11, and no error by the learned judge was shown. Things would have been different if, for example, the juror had left the court building or had had some communication with other non-jurors; or had been treated other than as a juror. I would dismiss that ground of appeal against conviction.
I am unable, with respect, to accept that once the discharge order was made there was anything further required for its execution. This was not a case in which there was any question of the order being vitiated by mistake as to cause or identity. The learned trial judge had been informed that the juror was ill, vomiting and saying that she could not go on, a state of affairs which amply justified the formation of an opinion that she was incapable of continuing to act as a juror. Her Honour did not prove to have been mistaken in her understanding of any of those circumstances; all that altered was that the juror expressed her reluctance to be discharged, and it was thought that she might improve overnight. The discharge order was correctly made, and there was no basis on which it could be suspended or revoked.
The other aspect of the matter, which is dealt with in Cullinane J’s reasons, is that it is clear that the juror missed an active and important part of the jury deliberations in the time that she was separated from the other jury members between approximately 3.20 and 5.20 pm. The significance of their discussions during her absence is evidenced by the fact that they arrived at a verdict. There is also the lesser concern that during that period the juror had, on her own account, contact with her doctor’s rooms through a channel of communication which was not explored or explained.
The re‑introduction of the juror into the jury room after the other members had already reached a verdict simply compounded the irregularity constituted by the separation. The appellant has not had a trial according to law. I would set aside the conviction and order a new trial.
CULLINANE J: I have had the advantage in this matter of reading the reasons for judgment of Jerrard JA.
I respectfully agree with what he has to say on the subject of the change of venue application and on the application for leave to appeal against sentence.
I regret that I take a different view to His Honour on the other issue concerning the juror who had been discharged and who was subsequently reinstated.
Although counsel for the Respondents sought to mount an argument to the contrary it is, in my view, clear that Her Honour made an order discharging the juror concerned and this was conveyed to the juror.
His Honour has set out the relevant events comprehensively and I gratefully adopt his statement of the facts on the subject
It seems to me that once the learned trial Judge had countenanced the revocation of her order discharging the juror concerned, consideration necessarily had to be given to the effect of the separation of that juror from the other 11 jurors from approximately 3:00pm until sometime about 4:30pm, during which time the remaining 11 jurors continued deliberating and reached a verdict. The record does not suggest that this was adverted to.
Section 53 of the Jury Act 1995 (Qld) provides as follows:
The appellant contended before us that the learned trial Judge having discharged the juror had no power to revoke that order. I am not persuaded that this is so but I do not think it is necessary to express any concluded view on the subject. If there was such a power in my view it was not a proper exercise of it in the circumstances of this case to revoke the order discharging the juror and reinstate her with the remaining 11 jurors.
There has in my view been a serious irregularity in the conduct of the trial. What has occurred here departs so far from the proper conduct of a criminal trial, and particularly the manner in which jurors are both entitled and required to participate in the jury's deliberations upon and the reaching of a verdict that the verdict cannot stand.
Section 53 ought to have been given express consideration and in my view had this occurred the conclusion would have been reached that what had occurred would give rise to a reasonable suspicion about the fairness of the trial to fair minded and informed members of the public.
Furthermore as I have said it was not in my view an appropriate exercise of the power to revoke an order discharging a juror (assuming its existence) to take that course in the circumstances outlined above.
I would order that the verdict of the jury be set aside and that there be a new trial.