Ground 3
13 On the morning of Monday 19 July 1999, the third day of the joint trial, Badgery-Parker AJ raised with counsel the contents of a note which he had received from a member of the jury. The note was in the following terms:
"I was at the Workers' Club Goulburn talking to someone, and two men came in and the person I was talking to said something to the effect that they were involved in some way with the death of a man. I sat down at the table and the two men came over, and I was introduced to them. A short time later someone in the management escorted a couple of people out of the club who were standing just behind us. I understood they were reporters."
14 The trial Judge told counsel that it seemed to him, but subject to anything that counsel might wish to put to the contrary, that the note was intended to convey an apprehension on the part of the juror that the two men who had sat at his table at the Workers' Club were the two accused then before the Court. The Judge indicated that he was proposing to bring that juror into Court and ask some questions intended to clarify further the matter raised by the juror's note. His Honour expressed a tentative view that, provided always that there was no reason to think that the juror had discussed the matter with other members of the jury, then "there is probably no reason to discharge the whole of the jury, and we should continue with eleven. I will invite counsel to speak about those matters after we have heard from the juror".
15 The individual juror was then brought, alone, into the Court Room and briefly questioned by the Judge. It became clear that the juror was not prepared to say dogmatically that the two men to whom he referred in the note had been, to his then certain recollection, the two accused; but that they might have been. The juror told his Honour that there had been no conversation "about the death of a man".
16 At that point, his Honour is recorded as having said to counsel: "Well gentlemen, I don't know that there is a problem". His Honour thereupon addressed some further questions to the juror. The answers to those questions established that the juror had not spoken to any other member of the jury about the particular occasion; and that he had no idea at all of when the incident had occurred except to say that it had not been recent. Further questions, including three questions put by the Crown Prosecutor, and one question put by his Honour at the instance of counsel then appearing for the present appellant, established that the juror could not date the particular incident by reference to having read in a newspaper, or seen on the television, anything about Dr. Rowland's death; or about the committal proceedings that were subsequently conducted in the Local Court at Goulburn. The only other matter established by these additional questions was that the juror believed that it had been the fact of reporters being escorted out of the club that had triggered off the brief reference to something to do with a murder; and that "there may have been photographs taken as well that brought it up".
17 His Honour then sought the assistance of all three counsel.
18 The Crown Prosecutor led off. His position, eventually, was that he thought it "probably better that he be discharged in any event and we continue on with the other eleven jurors".
19 Queen's Counsel then appearing for the appellant's brother, followed. He told the Judge that he had been instructed that his client "has never been to the Goulburn Workers' Club. He doesn't believe he has ever seen the man before, and he is content to continue with twelve". After some further brief exchanges between his Honour and counsel, senior counsel for the appellant's co-accused reiterated that, according to his instructions, the co-accused "is content to go on with the twelve".
20 Counsel then appearing for the present appellant then put his final position which was: "I have got serious reservations about continuing with this jury your Honour".
21 Badgery-Parker AJ then expressed briefly and as follows the conclusion to which he had come:
"I think the safest course is to discharge the single juror. If it were possible to empanel a new jury today, I would even have thought of discharging the whole lot so that we have the full twelve in case of a further accident during the trial, but that is not feasible. I will discharge the one juror and go on with eleven."
22 The particular juror, who had been sent out of Court after his questioning had concluded, and during the exchanges between the Judge and counsel, was called thereupon back into Court; given a brief explanation of what was going to happen and its consequences so far as he, the individual juror, was concerned; and formally discharged.
23 The remaining members of the jury were then called back into Court. His Honour addressed them as follows:
"Ladies and gentlemen, you will notice that whereas we had on Friday a jury of twelve, we now have a jury of eleven. Something has occurred, and one of the jurors has spoken to me. We have discussed the situation and I have excused him from any further participation in the trial. It is of no concern to you, or to anybody else as to why he is no longer with us. The trial will continue with a jury of eleven members only, and I think we are ready to go on now."
24 The trial then proceeded to finality with a jury of eleven.
25 The submissions now put for the appellant are based upon the terms of, in particular, sections 19 and 22 of the Jury Act 1977 (NSW). Those sections provide, relevantly:
"19. The jury in any criminal proceedings in the Supreme Court …………………… is to consist of 12 persons returned and selected in accordance with this Act
…………………………………………………………
22. Where in the course of any trial ……………… any member of the jury dies or is discharged by the court ……………………whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial …………………….. properly constituted if
(a) in the case of criminal proceedings, the number of its members:
(i) is not reduced below 10, ……………………..
and if the court ………………… so orders."
26 These provisions of the Jury Act have received recent consideration in the High Court: Wu v The Queen (1999) 199 CLR 99. The submissions of the appellant place stress upon the views expressed, in particular, by Kirby J; but his Honour delivered a dissenting judgment.
27 Gleeson CJ and Hayne J say in their joint judgment:
"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.
The decision to discharge a juror may require consideration of difficult questions of fact and degree. ………………….." 199 CLR, 103 [8] and [9]
28 Their Honours later expressed the view that "the central question" which has to be determined whenever the possible discharge of a juror arises, is "……………… how best the trial of the appellant should proceed. That required attention to the fair and lawful trial of the appellant by a properly constituted jury and it also required attention to how best that trial might be conducted promptly and without delay" 199 CLR , 106 [18]
29 Later still, their Honours said:
"It may be accepted that a criminal trial by jury in New South Wales must begin before a jury of twelve. At common law if a juror died or was taken ill a fresh jury had to be sworn, although it seems that sometimes the eleven remaining jurors were re-empanelled and a fresh juror sworn in the place of the disabled juror. But 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. That is, there can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings." 199 CLR 106[21]
30 Callinan J makes the following observations:
"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 it 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 ……………………..(the particular judge) said ………….. and ruled to involve at least implicitly consideration of, and orders covering, these matters." 199 CLR, 134 [103]
31 It is, no doubt, easy enough to criticise Badgery-Parker AJ for not having proceeded, especially in the matter of articulating final orders, with that last refinement of precision which the submissions now made for the appellant put forward as, in effect, mandatory minimum requirements of statute law.
32 It would be, perhaps, both more useful and more fair to take as a starting point a consideration of the position in which his Honour was left by counsel then appearing before him. The Crown Prosecutor made it clear that he felt, albeit not without some seeming hesitation, that the individual juror should be discharged. The Crown Prosecutor gave the Judge, so far as I can tell from the available transcript, no indication whatsoever as to the Crown's position as to what should thereupon happen in connection with the further progress of the trial. Learned senior counsel then appearing for the appellant's co-accused told the Judge with complete clarity that the co-accused was content to continue with the full complement of twelve jurors and did not require the discharge of the individual juror. Counsel did not say, however, what stance his client proposed to take in the event that the Judge came to the conclusion that the better course was in fact to discharge the individual juror. Learned counsel then appearing for the present appellant gave the Judge no other assistance than to indicate that he had what he described to the Judge as "serious reservations about continuing with this jury". It is impossible to tell from the available transcript quite what this statement was intended to convey to the Judge; or, for that matter, quite what the Judge understood the statement to be conveying. Not one of the three counsel seems to me to have assisted the Judge by putting at any stage a clear and unequivocal application respecting either the discharge of the individual juror; or the propriety of proceeding, should the individual juror be discharged in fact, with the remaining eleven jurors.
33 Given that pattern of non-assistance from counsel at trial, the submissions now put for the appellant are, in my opinion, unattractive in their unfairness to the trial Judge. I would not uphold those submissions in the absence of a clear demonstration of some error or errors of substance rather than of form, leading to some clearly demonstrated miscarriage of substance in the further conduct of the trial with a jury reduced to eleven members.
34 As it happens, I am comfortably satisfied that a fair application to the facts of the present case of the principles established by the decision in Wu does not warrant the upholding of the present ground of appeal. In my opinion, the trial Judge was entitled to discharge the juror. His Honour obviously felt some invincible discomfort about allowing the juror to continue as a participant in the trial when there was a real risk that he might have had some untoward, or potentially untoward, brush with either or both of the accused. I do not consider that the Judge was obliged to discharge the juror in the presence of the remainder of the jury. Once the Judge had decided that the juror ought to be discharged; and had satisfied himself that the remainder of the jury had not been tainted by the difficulties that had been perceived as justifying the discharge of the individual juror; then it seems to me that there was a great deal to be said, from a practical and sensible point of view, in minimising any continuing contact of that juror and the remainder of his co-jurors; and by minimising any unsettling, by the formalities of the discharge of the juror, of the remaining jurors. I do not consider that the trial Judge erred in failing to discharge the whole jury. Of three experienced counsel, not one thought it necessary to put a submission to the contrary.
35 As to the proposition that the trial Judge did not properly order that the remaining eleven jurors were to constitute a jury for the purpose of the continuation of the trial, I think that the short answer lies in his Honour's statement: "The trial will continue with a jury of eleven members only, and I think we are ready to go on now". I would myself have thought that his Honour's statement was an explicit order; but, even if the correct view be that it was not more than an implicit order in the sense discussed in Wu, then such an implicit order was, on the authority of Wu, sufficient.
36 I would not uphold Ground 3.