Sun v R

Background

1. The applicant was indicted on two charges: (1) supplying methylamphetamine between 4 September 2018 and 10 September 2018 contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and (2) supplying methylamphetamine for reward on three or more occasions between 17 September 2018 and 26 September 2018 contrary to s 25A of that Act. The jury returned verdicts of guilty for both counts on 5 May 2021.
2. The trial had commenced on Thursday 11 March 2021. A jury of 15 were empanelled, the trial judge having indicated to the parties on the day before the trial that "I'm going to empanel 15 so we don't run out halfway through". Neither party objected to that course. The trial judge presumptively made an order to that effect under s 19(2) of the Jury Act 1977 (NSW) (the Act). That provision authorised the Court to order that up to three additional jurors be selected for the jury if satisfied that: (a) the trial was of a kind prescribed by the regulation, being a trial likely to run for more than four weeks; (b) the selection of additional jurors was an appropriate means of ensuring that there would be sufficient jurors remaining on the jury when the jury was required to consider its verdict; and (c) that "appropriate facilities to accommodate the additional jurors are available".
3. On the Thursday the jury of 15 were empanelled, the trial judge made some introductory remarks, the Crown Prosecutor opened, counsel for the applicant made some short opening remarks, and the Crown's first witness - one of the investigating police detectives - commenced giving evidence.
4. Shortly after the hearing had finished for the day the trial judge's associate sent an email to the parties which read as follows: We have been informed that our jury room does not meet the government requirements to allow the jurors to stay 1.5m apart from each other, Courts are exempt from abiding by this requirement but the Chief Judge with the Chief Magistrate and the Sheriff, Tracey Hall came to the decision that the Courts will continue to abide by the physical distancing rules. When the court sits tomorrow His Honour will discharge this jury and we will empanel again on Monday.
5. Counsel for the applicant responded by email opposing the jury being discharged.
6. Precisely what occurred the next morning is not entirely clear. The Court has been provided with what is entitled a "revised ex tempore judgment" dealing with the issue. The transcript suggests that this was delivered at the beginning of the day, but it can be inferred that what occurred is that the trial judge made some remarks raising the possibility of proceeding to discharge three jurors under s 53B(d) and then asked for the views of the parties. Transcript records counsel for the applicant saying that "[m]y view strictly is we can go with the 15, but going to the 12 is also sensible in the circumstances". The Crown Prosecutor expressed doubt that the power was available in the circumstances. She then sought instructions from the chambers of the Director of Public Prosecutions, and returned to say that "[w]hilst the Crown's not convinced [of] the applicability of 53B(d)", it would agree to the trial proceeding and "doing the ballot under 55G". The applicant maintained his position, including making no objection to such a ballot being employed. The trial judge indicated that he would proceed accordingly and that he would give a judgment the following week dealing with the issue. It seems that the judgment was an expanded version of his Honour's initial remarks on the Friday morning.
7. The jury was recalled, the situation was explained, and a ballot was conducted to identify and remove three of the 15 jurors. The process provided for in s 55G was followed save in one respect. That section, which deals with how to reduce an expanded jury down to 12 when it comes time for the jury to deliberate, provides as follows: 55G Ballot where additional jurors on jury in criminal proceedings (1) If the jury in criminal proceedings consists of more than 12 persons (the expanded jury) immediately before the jury is required to retire to consider its verdict, the jury for the purposes of considering and returning the verdict (a verdict jury) is to be constituted by only 12 members of the expanded jury. (2) A verdict jury is to be constituted by - (a) if the expanded jury has chosen one of its members to speak on behalf of the jury as a whole (a foreperson) - the foreperson and 11 other members of the expanded jury selected by ballot, or (b) if there is no foreperson - 12 members of the expanded jury selected by ballot. (3) The ballot for a verdict jury must be conducted by the presiding judge or an officer of the court by - (a) placing in a box provided for that purpose the cards provided under section 28 (3) for all of the members of the expanded jury (other than the foreperson, if any), and (b) drawing out of that box those cards, one after another, and calling out the identification numbers on those cards, until 11 or 12 persons (as the case requires) are selected.
8. The one respect in which it was not followed is that shortly before the jury was recalled the judge noted that he had been told that the jury had selected a foreperson. Nevertheless, consistently with an earlier suggestion by the Crown, the foreperson was not excluded from the ballot, the judge having noted that the provision did not strictly apply to the context they were dealing with. As it turned out, the person who had been selected as foreperson was not excluded by the ballot.
9. In his judgment the trial judge explained the situation that had arisen: [1] Yesterday, at lunchtime, it was brought to my attention by the people responsible for managing the juries, notwithstanding that nothing had been said to gainsay the selection of 15 jurors upon the anticipated length of the trial, and that the whole process undertaken was facilitated, that someone brought to the attention of someone else that the jury room has a square meterage which does not allow for more than 12 people to occupy that space. [2] I sought inquiries for solutions about other locations where the jury could be held when not in the courtroom, and ultimately was told that the jury rooms are identical floor to floor, and all of the same dimensions, obviously, designed before the COVID‑19 pandemic.
10. His Honour explained that other possibilities had been explored but found to be unavailing. He then referred to the Covid public health order that then applied to restrict public gatherings. He noted his reading of the order was that it did not restrict gatherings at courts, but he had been told (implicitly by the District Court list judge) that the District Court had decided, in consultation with the Supreme Court, to abide by the restrictions as to spacing in any event. After elucidating the context further, and having quoted s 53B, his Honour said: [17] Although it speaks in singular terms with regard to "a juror", at least three of these jurors in the circumstances that I have before me are, on present arrangements, unable to continue as a juror. [18] I consider that the width of the discretion that is included in this section in paragraph (d) is such that I could exclude three members of the jury under this provision, with an appropriate formula to adopt for that process. There is already one provided in s 55G which could be employed for the purpose of reducing this jury to 12. If that is not a view that is favoured or accepted by the parties, and if the parties are not willing to consent to that process, though it is one that is available to me, it follows in my view that I shall have no choice but to discharge the whole jury.
11. His Honour proceeded as he did having obtained the consent of the parties to taking that course.
12. No complaint is made about the fairness of the trial. Nor is there any suggestion that the jury was not randomly selected from eligible members of the community. The complaint is a purely technical one. However, that complaint falls to be resolved as a matter of statutory construction, which does not depend on the particular facts of this case.

Did s 53B(d) of the Jury Act authorise the discharge?

1. The applicant's argument is addressed to the extent of the powers available to the trial judge, specifically arguing that what occurred did not fall within either ss 53B or 55G of the Act. The applicant did not otherwise attack any aspect of the judge's decision. As for the Crown, it only sought to rely on s 53B. It did not argue that there was some other power available to support the trial judge's decision to discharge the three jurors.
2. Section 55G was not an available source of power here. It only addresses the situation that arises for an expanded jury "immediately before the jury is required to retire to consider its verdict". That was not this case; the trial had barely commenced. The trial judge here did not purport to invoke s 55G as a source of power to discharge the three jurors. His Honour only referred to it as a guide as to how to go about identifying which jurors should be discharged.
3. This case thus falls to be determined by reference to the scope of s 53B(d). The issue of statutory construction must be resolved by reference to issues of text, statutory and historical context, and purpose.

Text and statutory context

1. Section 53B is contained within Pt 7A of the Act, which is headed "Discharge of jurors". The section provides as follows (none of the sections relevant to this case have been amended since the trial was conducted): 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if - (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. Note - Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.
2. There was here, in the view of the trial judge, a "reason affecting the juror's ability to perform the functions of a juror" for the three jurors discharged. The jury facilities were not compliant with then applicable Covid protocols for a jury of 15 and, although those protocols may not have been binding, the trial judge was not prepared to continue with a jury of 15 in those circumstances. The duties of a juror "ordinarily require the juror to attend from day to day during ordinary court hours until the jury is discharged": Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [14] per Gleeson CJ and Hayne J, with McHugh J agreeing at [24]. A juror who is unable to enter a jury room, and spend time there during legal argument and the like, will not in practice be able to perform the functions of a juror.
3. There was thus a reason which in the view of the Court affected the ability of each and all of the jurors to perform their functions as jurors, namely the absence of suitable facilities. None of them could continue in the circumstances as they stood. Unsurprisingly, the applicant has not challenged the reasonableness of the trial judge's conclusion that the situation could not continue. The problem could be cured by reducing the number of jurors. The provision was therefore available to deal with this situation as a matter of the ordinary meaning of the words employed.

The broader legal context and the purpose of the provision

1. The legal context in which s 53B was enacted is important to understanding its purpose and effect.
2. As noted above at [41], the common law had recognised a power to discharge juries prior to verdict by the mid-nineteenth century. But "when a 'case of evident necessity' involving one or more jurors did occur, the whole jury had to be discharged": Reg v Hambery [1977] 1 QB 924 at 927 (CA); note also Wu v The Queen at [41]-[42]. That was so because "there was no jurisdiction to try a criminal case otherwise than with a jury of 12": Hambery at 928. It seems that in some cases if a problem arose with one juror, such as illness, the remaining 11 members of the jury were re-sworn along with an additional juror: note R v Short (1898) 19 LR (NSW) 385, where this practice had been employed but found wanting on the basis merely that the original 11 jurors had not been re-sworn.
3. In 1929 the Jury Act 1912 (NSW) was amended, modelled on a 1925 amendment in the United Kingdom, to allow the discharge of up to two jurors with the trial to continue before the remaining jurors: Wu v The Queen at [43]. The provision to that effect in the Act as it applied from 1990 up until the enactment of the Jury Amendment Act 2008 (which introduced ss 53A-53C) was s 22, which stated as follows (emphasis added): 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 the purposes of that trial or inquest properly constituted if: …
4. The section went on to address the minimum number of remaining jurors. Kirby J suggested in his dissenting judgment in Wu v The Queen that this provision did not confer a power to discharge an individual juror but rather simply set out what the consequences of doing so would be, namely that the trial could continue: at [54]-[55]. On another view, the section's presupposition of such a power also acted to confer it, in circumstances where the common law had not recognised such a power: note, analogously, Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 301-302; [1985] HCA 70; Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 at [16]. The grant of an implied power was suggested at [11.5] by the New South Wales Law Reform Commission in its report number 117, Jury Selection, in 2007. The issue is not of great consequence.

Conclusions on construction

1. My conclusions can be summarised as follows: 1. The circumstances here fall within the ordinary meaning of the words in s 53B(d). For each of the three jurors discharged - together with the other 12 - there was a reason affecting their ability to perform the functions of a juror. The reference discharging "the juror", singular, can extend to more than one juror. The question is whether the paragraph should be read down such that the reference to "the juror" should be taken to mean that the "other reason" affecting their ability to perform their functions should be something specific to them, as opposed to other members of the jury. 2. There is some contextual support for that narrower construction in light of the terms of the preceding paragraphs of s 53B. However, that point is subject to consideration of whether the Parliament intended the residuary paragraph to cover a range of other circumstances not confined by the kinds of circumstance identified in the other paragraphs or in s 53A. There is also some limited force in the argument that the Parliament might have been expected to provide for some procedure to deal with this type of situation. However, such arguments are significantly undercut by the points that the provision was intended to deal with unforeseen circumstances; that trial judges are used to dealing with various challenges in running a trial and seek to do so fairly; that the Parliament is taken in general to intend that grants of powers to courts not be hedged in with limitations; and by the fact that the Parliament built in a safeguard mechanism in s 53C of considering whether there was any risk of a substantial miscarriage of justice. 3. Although some cases manifest a strict approach to compliance with the legal requirements relating to the constitution of juries, those decisions do not require that a narrow reading be taken to a grant of power to courts of the kind at issue here. 4. The legislative history is significant. The applicant's construction would suggest that the Parliament intended to narrow the previously available power available to discharge an individual juror, but that is not supported by the extrinsic materials. Rather, there is good reason to conclude that the Parliament did indeed intend the residuary criterion in s 53B(d) to be broad and flexible.
2. There are thus limited points in support of the applicant's construction and significant factors of text, context and purpose militating the other way. The better view is that s 53B(d) is not limited to issues arising that are specific to the particular juror or jurors. It was available to the trial judge here to discharge three jurors to reduce the number down to 12. There was no irregularity in the conduct of the trial. No question about the possible application of the proviso then arises.

The proper construction of s 53B(d) of the Jury Act 1977 (NSW)

1. The sole ground of appeal involves the scope of the trial Judge's power to discharge a juror (or jurors) under s 53B(d) of the Jury Act. Section 53B provides: 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if-- (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. Note: Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.
2. The question for this Court is whether s 53B(d) authorised the trial Judge to discharge three jurors because of matters entirely divorced from their individual qualities and ability to perform the functions of a juror. The question arose because the court complex where the trial was held did not have the capacity to accommodate the 15-member jury that had been empanelled a day earlier. That information came to the trial Judge after the "expanded jury" had been empanelled. Had the Court been able to accommodate the expanded jury of 15, as the trial Judge must have believed when it was empanelled, [1] none of the three jurors would have been discharged because none of them were unable to perform the functions of a juror. Conversely, the 12 jurors who were not discharged were equally unable to perform the functions of the juror, but through no quality of their own.
3. Before embarking on my reasons for concluding that the trial Judge was not authorised to discharge the three jurors in the way he did, I should say two things about the way events unfolded at the applicant's trial. First, the trial Judge's initial response was that he should discharge the whole jury and commence the process again the following day. His Honour's initial response was correct. However, counsel then appearing for the applicant (who did not appear on the appeal) objected to that course. Secondly, the Prosecutor at trial raised strong questions as to whether the process that was undertaken was authorised by the relevant provisions of the Jury Act. Again, the Prosecutor's misgivings were well founded.

The plain words of the statute

1. In determining the scope of the discretionary power vested in a trial Judge to discharge an individual juror, the words of s 53B(d) of the Jury Act are the starting point in the process of construction. This accords with well-established principles. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] ("Consolidated Media"), the High Court unanimously held: "… the task of statutory construction must begin with a consideration of the statutory text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself." (My emphasis) See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71] ("Project Blue Sky"), Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] and Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [33] per Simpson AJA.
2. This statement does not serve to undermine the relevance of context in the process of statutory construction. However, it identifies that the express words of the text are a limitation to a consideration of contextual matters. Care must be taken not to place excessive reliance on contextual matters, particularly where the terms of the statute are clear. As Kiefel CJ and Keane J observed in R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [34]-[36] ("A2"), a wide consideration of context concurrently with consideration of the text: "34 … is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction … 35 The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a 'substantial miscarriage of justice' within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. 36 These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision." (My emphasis with footnotes omitted)

The presumption that a provision conferring jurisdiction on a court, or granting powers to a court, is to be read as liberally as its terms and context permit

1. In Owners of Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 ("Shin Kobe Maru") the High Court emphasised (at 421) that "[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words" of those provisions.
2. This principle does not mean that there is a default position under which the text of a power-conferring provision should be construed as broadly as possible irrespective of "context, purpose or consequences": see P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [9.700] ("Interpretation"). The authors of Interpretation described the import of the principle as counselling "against imposing limitations on a provision conferring jurisdiction on or granting powers to a court, without a basis in the text of the statute considered as a whole and in context" (emphasis added). This is consistent with the reasoning of the High Court, in favour of narrower constructions of power-conferring provisions, in three recent cases:

• In Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 the Court held that s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not permit the re-opening of sentence proceedings generally to correct an error of law or fact, in circumstances where qualification of the common law principle of finality requires clear statutory language.
• In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 ("ABCC") the Court held that s 545(1) of the Fair Work Act 2009 (Cth) did not grant a power to make personal penal orders in circumstances where such orders were dealt with expressly in another provision of the Act.
• In BMW Australia Ltd v Brewster (2019) 269 CLR 574; [2019] HCA 45 the Court held that s 33ZF(1) of the Federal Court of Australia Act 1976 (Cth), which empowers that Court in a class action to make "any order the court thinks appropriate or necessary to ensure that justice is done in the proceeding", did not allow for the making of a "common fund order" on the basis that the provision was "essentially supplementary" to the existing powers of the Court to grant relief in a matter.

The text and immediate context of s 53B(d)

1. This brings me back to the text and immediate context of the power conferring provision in s 53B(d) of the Jury Act.
2. The text of s 53B is set out at by Kirk JA at [22] and by me at [88]. I will not repeat it other than to reinforce the fact that sub-s (d) grants a court or coroner with the discretionary power, in the course of any trial or coronial inquest, to "discharge a juror if … it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror" (emphasis added).
3. Sub-section (d) differs from (a), (b) and (c) by generally providing that any reason may give rise to the "discretionary discharge of [an] individual juror". However, the reason must affect the impugned juror's ability to perform the functions of a juror. Sub-section (a) is concerned with the situation where a juror has become too ill, infirm or incapacitated to serve as a juror and/or poses a risk to the health of other jurors. Sub-section (b) addresses the risk of juror bias, partiality or conflict of interest, based on "the juror's own statements or from evidence before the court or coroner". Sub-section (c) enlivens the discretion where "a juror refuses to take part in the jury's deliberations".
4. The following features of s 53B are clear from the text:

• First, it refers to a single juror, by the use of the indefinite article ("a") or the definite article ("the") without exception.
• Secondly, while sub-s (d) speaks in very broad terms of "any other reason", that term is immediately qualified by explaining that the other reason must "affect the juror's ability to perform the functions of a juror". In the absence of a contrary intention to be gleaned from context or purpose, those qualifying words can only be directed to ensuring that the "reason" which gives rise to the power is one that affects specifically the impugned juror and their ability to perform a juror's function. I discern no ambiguity whereby s 53B(d) gives rise to a constructional choice.
• Thirdly, although not forming part of the Act (see Interpretation Act 1987 (NSW), s 35(2)), and therefore serving only as an aid to construction (like extrinsic materials) [3] ; see A2 at [40]), the heading of s 53B refers to the "discretionary discharge of [an] individual juror".

Application of the "ejusdem generis" rule

1. This formulation of the issue draws an important contextual matter into sharp and immediate focus; that is, the effect of the preceding sub-sections of s 53B on the textual argument. "The maxim ejusdem generis ('of the same kind') means that where there is a list of things that are specific instances (species) of a class or category (genus), general words following the list are restricted to species of that genus". [4] The maxim is a specific application of the wider principle noscitur a sociis ("a thing is known by its associates") under which the meaning of a word can be discerned from "its associated words". [5] These maxims, with their mysterious Latin names, are simply aspects of the requirement that a particular statutory provision must be construed in context, including the "immediate context supplied by other provisions in [the] statute": see, for example, Sydney Seaplanes at [30]; see, also, Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [31], citing Project Blue Sky at [69]-[70]; Western Sydney University v Thiab [2023] NSWCA 57 at [113].
2. To similar effect are the words of Leeming JA in 2 Elizabeth Bay Road Pty Ltd v Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [82]: "It is axiomatic that (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence".
3. The same may be said of the words "for any other reason affecting the juror's ability to perform the functions of a juror" in s 53B(d). The meaning of the sub-section is informed by the preceding paragraphs of the section.
4. The impact of the nature and terms of sub-ss (a), (b) and (c) on a proper understanding of s 53B(d) is considerable and provides a strong indicator that, on its proper construction, the power in sub-s (d) is engaged by "any other reason" that is specific to a particular juror or jurors, as opposed to circumstances where every juror's ability to perform the functions of a juror is equally compromised.
5. Each of the matters set out in sub-ss (a), (b) and (c) is a matter specific to a particular juror or jurors. Those are the types of matters with which the Parliament was concerned in enacting s 53B. Although sub-s (d) is drafted in very general terms, and as a "catch-all" provision, it purports to catch all of the various reasons that may compromise a particular juror's ability to perform their function; it does not purport to catch a particular reason affecting all of the jurors who might then be discharged by means of a random ballot of the kind undertaken in this case, and which is also not authorised by the Jury Act.

The absence of a balloting procedure

1. The narrower construction of s 53B(d) is fortified by the absence of a relevant procedure within the Jury Act to facilitate the course taken in the applicant's trial. There is a procedure in s 53G but on no sensible view was it properly engaged in the present case. Section 53G is the procedure whereby an "expanded jury" is reduced to 12 members who then comprise the "verdict jury." The procedure is peculiar because it requires the Court to ballot on, rather than off, and insists that the "foreperson" be excluded from the ballot. The process is to take place "immediately before the jury is required to retire to consider its verdict". While the trial Judge, in the absence of any other process, adopted this procedure (except that the foreperson was not excluded and it did not occur immediately before the jury retired to consider its verdict), it cannot sensibly be suggested that s 53G was enacted to facilitate the random reduction in the jury's constitution in the middle of the trial.
2. The absence of a facilitative provision in s 53B or Part 7A to reduce the number of jurors randomly and without a reason associated with the jury's ability to perform their task is another strong indicator that Parliament did not intend for s 53B(d) to enable a reduction in the size of an expanded jury where the entire jury's ability to perform the functions of a juror was uniformly compromised.
3. Whilst it is true that "every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in [a] trial" (Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 at 300, 363-364; [1992] HCA 57), that principle is of little relevance to the construction of a specific power granted to a trial judge, such as the discretion to discharge an individual juror in s 53B(d). Nor can it reasonably be argued that what happened in this trial was calculated to "prevent unfairness". Rather, the balloting off of three jurors was considered necessary because the court could not accommodate the expanded jury that the Judge had decided to empanel.

The Interpretation Act: when one is more than one?

1. A matter raised by the presiding Judge at the hearing of the appeal, and referred to by his Honour at [25]-[26] concerns the application of s 8(b) of the Interpretation Act 1987 (NSW). The section provides that (b) "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form". I am unable to see how this provision works to transform s 53B into something it is not. That is because the question is not really whether multiple jurors may be discharged under s 53B(d), but whether those (particular) jurors' ability to perform the functions of a juror are affected by a reason specific to them.
2. While it is unnecessary to decide the point, it is arguable that s 53B(d), read with the Jury Act as a whole, evinces an intention contrary to s 8(b) of the Interpretation Act (see Blue Metal Industries v Dilley (1969) 117 CLR 651 at 656; [1969] HCA 23). That intention may be gleaned holistically, from factors including the use of the definite article in referring to "the juror" in s 53B (see, for example, Thompson v Duffin (2009) 105 SASR 181; [2009] SASC 270 at [48]); the heading to the provision referring to the "discretionary discharge of [an] individual juror" (emphasis added); the lack of a provision expressly providing for the discharge of multiple jurors (cf, the entire jury) other than in accordance with the s 55G balloting procedure, and the broader trend in the Jury Act to employ express and careful use of the singular juror or the plural jurors (see, for example, ss 19 and 22 of the Jury Act).

Conclusion on the text and its context

1. These matters, and the immediate context of s 53B(d), provide considerable support for a construction of that provision whereby the reason for the discharge of a particular juror must be specific to that juror, rather than affecting all members of the jury uniformly. This approach does not involve a "reading down" of the words of the provision, contrary to the Shin Kobe Maru principle. Rather, the express words of s 53B(d), read with Pt 7A and the Jury Act as a whole, contain a limitation on the discretionary power to discharge a juror, namely, that the relevant reason for discharge must be specific to that juror by "affecting the juror's ability to perform the functions of a juror". There is no ambiguity in the provision, and I doubt recourse to the legislative history and extrinsic material is warranted. However, in deference to the respondent's submissions, and matters contained in the judgment of Kirk JA, I will delve briefly into that material.

Broader context and purpose (legislative history and extrinsic materials)

1. In both written and oral submissions, the respondent referred to the legislative history of the discretion to discharge "any member of the jury … as being through illness incapable of continuing to act or for any other reason" (see the former s 22 of the Jury Act, prior to the commencement of the Jury Amendment Act 2008 (NSW) on 1 July 2008), in addition to extrinsic materials, including the former Attorney-General's second reading speech [6] and the New South Wales Law Reform Commission's Report No 117, on Jury Selection, which was delivered in January 2008.
2. The respondent submitted that these resources support the proposition that the purpose of s 53B(d) is to provide "specified powers for a judge to exercise discretion to discharge a juror, so as to enable the trial to continue with a lesser number of jurors". It was submitted that "even if the reason [for discharge] is not peculiar to a particular identified juror", that would not be inconsistent with the purpose of s 53B(d) because it would "allow the trial to continue and avoid delays to the accused and to the community" (emphasis added).
3. This submission involves placing a gloss on the statute that is not supported by the text. Nor is it supported by the legislative history, noting the observations of Simpson J (as her Honour then was), in R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134 at [58]-[59], that the former s 22 of the Jury Act implicitly enlivened "the power or discretion to discharge a single juror", albeit on a basis "as wide as it can possibly be - for incapacity caused by illness 'or for any other reason'" (emphasis added).
4. I am unable to accept the respondent's argument concerning the lack of inconsistency between its asserted construction and "the statutory purpose of the provision". Preference should be afforded to a construction that actively promotes the purpose or object underlying the Act or statutory rule: Interpretation Act, s 33. Further, the submission that the purpose of s 53B(d) includes "enabl[ing] the trial to continue with a lesser number of jurors" is undermined by the presently applicable form of s 22 of the Jury Act. It provides for the "[c]ontinuation of trial or inquest on death or discharge of juror" in the following terms: Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Pt 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if - (a) in the case of criminal proceedings, the number of its members - (i) is not reduced below 10, … (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least two months.

Conclusion on the proper construction of s 53B(d)

1. The Shin Kobe Maru principle must be considered in the context of the jurisdiction or power vested in a trial Judge by s 53B(d). However, the critical question is precisely what power s 53B provides to a trial Judge and what are the limits of that power.
2. In my opinion, the correct construction is that a trial judge is granted a power to discharge an individual juror based on that juror's capacity to perform the function of a juror. This is not to "read down" the breadth of the words "for any other reason affecting the juror's ability to perform the functions of a juror" in s 53B(d). Rather, it is to read paragraph (d) in conformity with paragraphs (a), (b) and (c). Resort to the history of the amendments to the Jury Act and the extrinsic materials does not justify a construction that a trial judge was granted an unfettered power to select three members of a 15-member "expanded jury" randomly and to discharge those three jurors despite the absence of any quality in any one of those individual jurors which compromised their ability to perform the functions of a juror.

Error is established

1. If that interpretation of s 53B is correct, it follows that the trial Judge fell into error. I would decide the points raised by ground 1 in favour of the applicant. That is not the end of the matter. The question then becomes whether the proviso to s 6 of the Criminal Appeal Act should apply with the result that the appeal should be dismissed.

The availability and application of the proviso

1. The proviso to s 6(1) is in the following terms: "…provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
2. I record my agreement with Kirk JA's observation that the sole ground of the applicant's conviction appeal raises an unattractive case, in circumstances where the applicant now takes issue with the trial Judge's failure to adopt the very course of action that his Honour initially proposed to take, but for the terse objection on the part of the applicant's trial counsel. However, there is a serious question as to whether the kind of error identified in this case is one where a conviction can be saved by resort to the proviso.

The application of the proviso: general matters

1. The question is whether the error is of a kind that cannot be cured because there was a "failure to observe the requirements of the criminal process in a fundamental respect": Maher v The Queen (1987) 163 CLR 221 at 234; [1987] HCA 31 ("Maher"); see also R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 and R v Chaouk (1986) 23 A Crim R 463; [1986] VR 707. In other words, the error may have been so fundamental to the trial process that the there is no room for the operation of the proviso.
2. Such errors were described by Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 373; [1988] HCA 6 ("Wilde") in the following terms: "The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143, at p 148; Reg. v. Henderson [1966] VicRp 8; (1966) VR 41, at p 43; Reg. v. Couper (1985) 18 A Crim R 1, at pp 7-8."
3. Their Honours went on to caution that "[t]here is no rigid formula to determine what constitutes such a radical or fundamental error."
4. In Weiss v The Queen (2005) 224 CLR 300 at 317; [2005] HCA 81 ("Weiss") the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said: "45. Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."
5. Of course, there can be no question of the application of the proviso "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty": Weiss at 317 [44].

Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50

1. Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50 ("Katsuno") was a case involving "jury vetting" by a Prosecutor who had access to information provided by the Victorian police. It was not a case determined by reference to the common form proviso but provides significant insight into the circumstances where an issue concerning the constitution of the jury might be considered to have gone to the root of the trial process. A majority of the High Court held (at 57 [24]) that the practice undertaken at the applicant's trial, and specifically in the course of selecting the jury, was unlawful.
2. Gaudron, Gummow and Callinan JJ turned to consider the consequences of the unlawfulness at 61-62: "41. The question in this case is whether there was a fundamental failure to observe the requirements of the criminal process. As Maher and Johns show, there will have been a failure of that kind if there was a failure to comply with a mandatory provision relating to 'the constitution and authority of the jury'. However, not every legislative provision is a mandatory one. In this context, it is convenient to return to the Act. For example, it hardly seems likely that a minor arithmetical error by the Sheriff in notifying the Electoral Commission of the number of persons required for jury service, or an error as to the exact location of a juror's residence within 32 kilometres of a relevant court house pursuant to s 8, would invalidate the process for which that section makes provision. Nor would an omission to send a questionnaire as required by s 10(2) to every person recorded on a jury list be likely to render a nullity a verdict given by a jury selected from a panel which might have been a little more numerous had all questionnaires been sent as required."
3. Their Honours continued at 62: "43. Part IV of the Juries Act in which s 21 appears is concerned, as the heading states, with the summoning of jurors. Some of its provisions are clearly mandatory (eg ss 14 and 17, dealing with the number of jurors, and ss 20 and 23, dealing with random selection). It is true that any jury will have to be constituted from a panel prepared pursuant to Pt IV and after the processes referred to in s 21 are complete. 44. In this case, however, the jury was constituted from such a panel. The complaint in this case is not that the jury panel was not properly constituted but that a particular person was not a member of the jury finally chosen. This is not a case, as was the situation in Maher, Short and Dempster, where there was non-compliance with legislative provisions or mandatory procedures which resulted in a person or persons sitting on the jury when not entitled to do so. Rather, it is a case involving the exclusion of a potential juror who, as already pointed out, could have been excluded by peremptory challenge for any reason, whether good or bad."

A contrast with other cases

1. The factual situation in Katsuno may be contrasted with cases where it has been held that the "authority and constitution" of the jury was impacted by the error or unlawfulness which infected the integrity of the trial proceedings. I refer to these cases to demonstrate that errors of a seemingly technical nature have been held to render the trial, in effect or in fact, a nullity. As Spigelman CJ said R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 in at [90]: "The criminal law is one of the last areas of the law in which a technical point is still a good point. Parliament can be taken to act on the basis that the common law has, subject to statutory exceptions, traditionally required punctilious compliance with the requirements of criminal procedure."
2. In Maher, where the High Court overturned the appellant's conviction, the jury was sworn to try the applicant on 19 counts contained on an indictment. The applicant was later re-arraigned on an additional two counts and placed in the jury's charge. The court held that the re-arraigning of the accused "did not alter the issues which the jury had been sworn to try", that is the 19 original counts.
3. In R v Brown; R v Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324 a juror came to court on the wrong day and was mistakenly included in the panel from which the jury who tried the accused was selected. This Court (Mason P, Sully and Sperling JJ) held the jury was not selected in accordance with the Jury Act and the trial was a nullity.
4. I will not recount the facts of the cases, but for further examples, see R v Smith [1954] QWN 49, R v Hall [1971] VR 293, R v Short (1898) 19 LR (NSW) 385, R v Dempster [1924] SASR 299 and Johns v The Queen (1979) 141 CLR 409; [1979] HCA 33.

Fantakis v R [2023] NSWCCA 3

1. I turn then to this Court's recent decision in Fantakis v R [2023] NSWCCA 3 ("Fantakis").
2. In Fantakis, the trial was conducted with an expanded jury and had reached the point where the jury was to retire to consider its verdict. A ballot was held pursuant to s 55G of the Jury Act. The section required (clearly but inexplicably) that the foreperson be excluded from the ballot. Contrary to those provisions, the foreperson was included in the ballot. The Court held that there was an error in the manner in which the ballot was conducted and turned to consider the consequences of the error (Ward ACJ at [378]). There is a helpful discussion of the authorities from [363] to [388]. Ward ACJ concluded that decisions such as Maher did "not preclude the application of the proviso in this case." After a thorough review of the authorities, with some focus on the distinctions between the decision of the High Court in Maher and Katsuno, Ward ACJ said: "386 Maher may be further distinguished on the basis that here the applicant was not deprived of his right to object to the course taken at trial by the trial judge. At SU 167-168, as noted above, Counsel for the applicant at trial agreed with her Honour's approach and did not make any objections when given the opportunity to do so. 387 The present case is more like Katsuno than Maher. In terms of the description in Katsuno at [43], the present case is one where the complaint 'is not that the jury panel was not properly constituted but that a particular person was not a member of the jury finally chosen'. 388 Accordingly, Maher does not preclude the application of the proviso in this case. The fact that the foreperson was not excluded from the ballot was not such a departure from a mandatory provision relating to the authority and constitution of the jury as to deny the constitutionality of the applicant's trial. That is another way of saying that the error did not involve such a departure from the requirements of the trial as to lead to the conclusion that there was, as a result of the error without more, a substantial miscarriage of justice."
3. Both Rothman and Dhanji JJ agreed with the Acting Chief Justice.
4. Without the guidance of the decision in Fantakis I may have come to a different view as to whether the error in the present case involved the failure to comply with a mandatory statutory requirement relating to the constitution and authority of the jury: Katsuno at [41]. However, while the factual circumstances are different, I can see no basis in law upon which to distinguish this case from Fantakis. Unless I concluded that Fantakis was (plainly) wrongly decided, I must follow the previous and reasoned decision of this Court. I am unable to say that the decision in Fantakis is plainly wrong. Nor can I see any basis in principle upon which the decision in Fantakis can legitimately be distinguished. Like that case, the jury which heard the applicant's case was randomly selected and each member of the jury was lawfully empanelled following their answering a jury summons.

The proviso should be applied and the appeal against conviction dismissed

1. The respondent submitted that, if error was established, the Court should apply the proviso. The submission was based on the nature of the error and the strength of the prosecution case. Counsel for the applicant submitted the proviso would not be applied because of the fundamental nature of the error. I have dealt with that submission and concluded to the contrary.
2. Counsel for the applicant very properly conceded that, if the proviso was available, he could not submit that it should not be applied "based upon the state of the evidence in relation to the convictions of the appellant." [8] Upon questioning from the bench, counsel confirmed that he did not "seek to make any factual answer to the proviso as raised by the [Respondent]".
3. Having reached the conclusion that the proviso may apply to the error established by the applicant, I have concluded that it should, in fact, be applied in the facts and circumstances of this case. My reasons for concluding that no substantial miscarriage of justice actually occurred are essentially two-fold.
4. First, while the erroneous application of s 53D may have affected the make-up of the jury and reduced its number to 12 precipitously, the fact remains that the applicant was tried by a representative and randomly selected jury, each member of whom was eligible and properly summoned under the Jury Act.
5. Secondly, on my review of the record of trial, the prosecution case against Mr Sun was extremely strong. As has been seen, counsel did not contend to the contrary. Counsel for the respondent summarised the prosecution case as follows: "i. The applicant's undisputed presence at each of the drug supplies forming Counts 1 and 2. ii. The surveillance device recordings of the applicant in relation to the first supply where he told Louise that the drugs were the best in Sydney. iii. The text message exchanges between the applicant and Louise to organize meetings for drugs. iv. The direct evidence of Witness A, Louise and Ms Han that the applicant was the person responsible for supplying the drugs. v. That on the occasion of the last supply the applicant was found to dispose of the Pringles can which had the $9000 pre-recorded money paid by Louise. vi. The tendency evidence that the applicant was a person who was engaged in the business of supplying "ice". The facts disclosed that in 2014 he had 47.17g methylamphetamine at his business premises, had supplied 26.05g methylamphetamine to an undercover officer for $6500 and offered to supply $75,000 worth of methylamphetamine on 13 February 2015 (Exhibit W - signed agreed facts). vii. The inherent unlikelihood of the applicant's account that he was forced into selling drugs and was under duress, particularly where the Crown led evidence of the calls made by the applicant with his friend which were said to set up the defence (Exhibit AM) and where he was contradicted by the evidence of Ms Han. viii. The fact that there was a considerable amount of evidence led in the Crown case to negative the claim of duress, and that even on the applicant's account it fell short of what might be considered sufficient to establish a genuine belief that if he did not deal drugs he or his parents would be killed or seriously injured, and that he could not have avoided the threats by doing something else such as reporting the matter to his parole officer."

Appeal against sentence

1. The applicant also appeals against the sentence imposed by Judge Bennett SC on 13 August 2021. His Honour's sentencing judgment is published on legal websites: R v Sun [2021] NSWDC 515. The reasons which follow assume the reader has access to and is familiar with that judgment. The applicant was sentenced to aggregate term of imprisonment of 7 years commencing on 23 November 2020 with a non-parole period of 5 years which will expire on 22 November 2025.
2. The applicant, who appeared for himself on the sentence appeal, raised six grounds of appeal: "1. The sentencing judge erred by failing to take into account that the COVID-19 pandemic makes conditions of imprisonment more onerous. 2. The sentencing judge erred by failing to take into account that the applicant was suffering from a mental illness at the time of offending as mitigating/special circumstance. 3. The sentencing judge erred by failing to take into account that the applicant was particularly vulnerable to safety in prison suffering from potential extortion by group of inmates on the background history of previous severe trauma as mitigating factor/special circumstances. 4. The sentencing judge erred by punishing the applicant twice for the same conduct that is ongoing supply of methylamphetamine with indictable quantity imposing an aggregate sentence on both count 1 and count 2 which reflected a nine-month accumulation as a result for count 1. 5. The sentencing judge erred in exercise of the discretion not including any of the balance of one and half year of parole the applicant had already served in the indicative sentence for the s 25A ongoing supply offence, that gives rise to a justifiable sense of grievance on the applicant. 6. The sentencing judge erred by making the order that the offender to pay to the State of New South Wales a drug proceeds order in the sum of $22,600."

The offences and facts on sentence

1. The applicant was convicted by the jury of one count of supplying an indictable quantity of methylamphetamine (count 1) and one count of the ongoing supply of the same drug for financial reward (count 2). The first count carried a maximum penalty of 15 years imprisonment, and the second exposed the applicant to a maximum sentence of 20 years.
2. The sentencing Judge made findings of fact based on the evidence adduced at the trial and these were not disputed on the appeal. The applicant was involved in the supply of drugs with a person known as Witness A, a woman known as "Louise" and Song Han, a person with whom the applicant was in a relationship. Count 1 involved the supply of a total of 55.77 grams of methylamphetamines to Louise in the course of two transactions, the first on 4 September 2018 (supplying 27.9 grams of methylamphetamine with a purity of 78%) and the second on 10 September 2018 (supplying 27.87 grams of methylamphetamine with a purity of 71.5%). The ongoing supply offence involved the following transactions of methylamphetamine: 1. 17 September 2018 - 25.5 grams with a purity of 77%. 2. 19 September 2018 - 24.78 grams with a purity of 79%. 3. 24 September 2018 - 28 grams with a purity of 79.5% 4. 26 September 2018 - 55.5 grams with a purity of 79.5%. The total amount of drugs supplied in the transactions caught by count 2 was around 5 ounces or 133.68 grams.
3. The applicant did not deny that he was involved in the transactions and the evidence of his involvement was overwhelming. After various communications between the applicant and Witness A, in which the applicant asked whether Witness A knew anybody "who wants to buy anything", police set up a controlled operation on 3 September 2018. Both Witness A and "Louise" were authorised to act as "civilian participants". Louise was provided with cash by the police and used that money to purchase the drugs from the applicant. Witness A was described as the "middle-man" in the first two transactions (the subject of count 1) but played no further role in the deals that took place after 10 September 2018. After that date, Louise and the applicant communicated directly by text messages. At one stage the applicant became "paranoid" (which he wrote in a text message) and organised a meeting between Louise and an associate (Ms Han), which the applicant observed, in what was described as "counter surveillance". The transactions encompassed by count 2 were organised between the applicant and Louise by various means of communication including encrypted messages. The police observed the meetings and there was also CCTV footage and electronic surveillance which supported the accounts given by Louise and Ms Han at the trial. The applicant sourced the drugs from his own supplier and received the money provided to Louise by police in exchange for the drugs.

The sentence imposed on the co-offender

1. Ms Han was arrested with the applicant. She pleaded guilty and gave evidence in accordance with the statement of facts upon which she was sentenced. Her role was said to be allowing her premises to be used for the transactions. She was sentenced in relation to five discrete offences of supply and there was no offence of ongoing supply. Judge Bennett SC said there was a "slight contrast" between the offences she was charged with when considered next to the offences faced by the offender, but his Honour said that contrast was of "marginal" significance.
2. Ms Han was sentenced in the Local Court to an aggregate sentence of 2 years to be served by way of an Intensive Corrections Order. The indicative sentences were 8 months, 12 months, 14 months, 18 months and 15 months.
3. Judge Bennett rejected a submission that the applicant "should suffer a comparable outcome" to Ms Han and noted that she pleaded guilty, was dealt with in the Local Court with significantly lower maximum penalties for individual offences of supply, under s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW).
4. There is no ground of appeal suggesting his Honour erred in his approach to parity and given the differences between the cases, such a ground would have little merit.

The applicant's personal case

1. A body of evidence was tendered on the applicant's behalf on sentence. Judge Bennett referred to it in some detail: R v Sun [2021] NSWDC 515 at [61]-[128]. Unless it is necessary in dealing with the grounds of appeal, I do not propose to repeat his Honour's detailed analysis except to note the following more significant aspects of the applicant's personal history: 1. The applicant was 47 at the time of the offence and was to turn 50 in the year of his sentence. 2. In 2014 he committed an offence of supplying a commercial quantity of a prohibited drug along with another less serious supply offence. He was sentenced by the late Judge Toner SC on 30 June 2017 to an effective (or aggregate) sentence of five years with a non-parole period of three years commencing on 20 February 2015. The non-parole period expired on 19 February 2018 and the total sentence was to expire 19 February 2020. 3. The applicant was on parole for the earlier drug offences when he committed the offences of which the jury found him guilty. 4. His Honour found the applicant was "capable of rehabilitation but has demonstrated no desire to achieve it." At the time of the offences, he was engaged in what were considered by a Community Corrections officer to be engaged in "appropriate interventions." 5. The tragedy of Mr Sun's case lay in his obvious intelligence and professional work history, which collapsed as a result of his drug addiction. He came to Australia from South Korea when he was 15, excelled at school and went on to achieve a degree in medicine from the University of Sydney. He studied dental surgery and other specialities, training in both South Korea and the United States. He had an established practice in Sydney. However, his registration was suspended in September 2014, before the 2015 offences. The NCAT judgments relating to his suspensions were before the sentencing Court and the details are set out in his Honour's judgment, as were the reports of various mental health experts. After losing his professional career he became homeless and depressed but not suicidal. 6. Mr Sun was assaulted while in custody and there was some evidence that he was "stood over" by other inmates. It was during his first period in custody in 2015 that he came to be associated with Witness A. 7. There was no evidence of contrition or remorse and reports tendered on sentence showed the applicant maintains his innocence. 8. While Judge Bennett approached the evidence with a degree of scepticism, his Honour accepted some of the diagnoses of depression, drug dependence and what was described as a "compelling evidence of the sequence of grief [and] depression" which commenced when the applicant's brother died in 2010. 9. Judge Bennett noted that the applicant's spiral into drug dependence and criminality came late in life, namely when Mr Sun was in his late thirties. However, as I have said, his Honour was of the view that the applicant's involvement in the offending was motivated by financial gain and was not attributable to his grief, depression and drug use.

Ground 1: The sentencing Judge erred by failing to take into account that the COVID-19 pandemic makes conditions of imprisonment more onerous

1. As the respondent submitted, there was very little evidence tendered in the sentencing hearing that went to the conditions of incarceration or the impact on those conditions of the Covid-19 pandemic. However, the difficulties faced by prisoners during that period are well known to this Court and to sentencing judges. Judge Bennett made a finding of special circumstances, although he did not say much about the conditions of incarceration and the adjustment to the non-parole period was modest.
2. His Honour did observe at [104]: "I have no difficulty coming to the view that part of the tragedy in this matter is that his parents at this late stage of life, burdened as they are with the illnesses and conditions there described, have the added difficulty of seeing their son returned to gaol for a not insignificant period of time when it is, at least at present, effectively impossible for them to have face to face contact with him in the custodial setting by reason of the Covid-19 pandemic."
3. While I accept his Honour might have said more about this issue, it was not the focus of the evidence or submissions at the sentencing hearing.
4. Again, his Honour might have made a more substantial adjustment upon the finding of special circumstances, particularly in view of the partial accumulation on the earlier sentence. However, I am not persuaded that his Honour ignored the existence of the pandemic and its impact on the conditions of incarceration on all inmates held in custody during that time. The observation I referred to above makes it clear that Judge Bennett was aware that the pandemic meant that there were difficulties in prisoners having contact visits.
5. Because there was no detailed evidence on the impact of the pandemic on the applicant, I do not accept that his Honour's failure to refer to the issue in more detail constituted legal error. The sentencing judgment was quite detailed and focused on the issues which were raised, and which were subject to evidence, by the applicant at the hearing.
6. I would reject ground 1.

Ground 2: The sentencing Judge erred by failing to take into account that the applicant was suffering from a mental illness at the time of offending as a mitigating/special circumstance.

1. There is no substance to the argument that Judge Bennett failed to take into account the applicant's mental health issues of which there was a substantial body of evidence for. On the contrary, his Honour analysed this evidence in considerable detail and accepted parts of it. However, he was not persuaded that it was a significant contributing factor to the offending. He found, as was clearly open on the evidence before the Court, that the applicant's motive in committing the offences was financial gain.
2. I would reject ground 2.

Ground 3. The sentencing judge erred by failing to take into account that the applicant was particularly vulnerable to safety in prison suffering from potential extortion by group of inmates on the background history of previous severe trauma as a mitigating factor/special circumstance

1. Again, the sentencing Judge analysed the evidence concerning the applicant's experiences in custody including that he was subject to at least one assault and that he asserted he was stood over by other prisoners. However, he found the evidence (which was largely based on the applicant's reports to others) was contradictory. His Honour made the following observations about the applicant's problems in gaol: "85. … Incarceration exacerbated his problems including when he was assaulted in Lithgow Gaol in 2015. Regarding this incident he represented that he was attacked by other prisoners when he refused to submit to their demands that he provide them with funds for their legal representation; they had become aware of his medical qualifications and saw him as a source of at least some wealth. 86. There is no question that he was assaulted on that occasion in that centre, but the records raised by Corrective Services, and the hospital where he was taken for treatment, do not attribute the reason for the attack as given here. Those records attribute to the offender an explanation to do with his association with a female before he came into gaol who had a relationship with another inmate who, as a consequence, instigated the attack. This became something of an issue in the trial in the course of the offender's evidence during which he acknowledged the representations previously recorded were false because he did not wish to reveal the true motivation for the attack upon him. 87. The report then states at p 6: 'There was then a further attempt to stand over him in 2018. This again related to paying a prisoner owing money for protection. Following this, he volunteered to go into protective custody. Dr Sun is now a mainstream prisoner at the Parklea Correctional Centre.' 88. This resonates, but is not [consistent] in all respects, with the claims by the offender. 89. First, this must be a reference to his incarceration after his arrest for these offences. 90. Secondly, his claim was that when he was in gaol in 2015 he formed his association with Witness A, said by him to be a godfather type figure, well connected to other violent criminals, and who provided him with protection and to whom he paid money after he was released to reward him for the accommodation he thus provided, until he could no longer do so at which point Witness A threatened him and his parents with harm if he did not facilitate the supply of methylamphetamine in which the offender acknowledges he participated, albeit under duress."

Ground 4: The sentencing Judge erred by punishing the applicant twice for the same conduct, that is the ongoing supply of methylamphetamine with indictable quantity, imposing an aggregate sentence on both count 1 and count 2, which reflected a nine-month accumulation for count 1

1. Ground 4 complains of the degree of notional accumulation within the aggregate sentence. The basis of the complaint is that the six separate incidents of supply were all part of the one criminal enterprise and sequence of events. This is, as far as it can be taken, true. There was only a small temporal gap between the two transactions which were rolled up into count 1 (4-10 September 2018) and the four transactions that encompassed the ongoing supply offence (17-26 September 2018).
2. The indicative sentences were 4 years for count 1 and 6 years and 3 months for count 2. This means there was a degree of "notional accumulation" of 7 months to produce the aggregate sentence of 7 years.
3. The applicant submitted that he was "punished twice for the same conduct" because the "s 25A offence had as part of its factual matrix two additional supplies" [being those which were rolled upon into count 1]. There is no merit to the applicant's contention. It is true that the six transactions were all part of the same sequence of events, involved similar criminality and, in that sense, were part of a connected "factual matrix". It is also true that it would have been open to the prosecuting authority to charge the six discrete transactions as particulars of one count of ongoing supply. However, there was a slight factual distinction in that Witness A ceased to be an intermediary after the first two transactions.
4. More importantly, as the respondent submitted, the question was whether the sentence for the second offence could encompass the criminality of both offences. It was open to his Honour to conclude, as he obviously did, that it could not. Count 1, as charged, involved two additional transactions by which around two ounces of methylamphetamines was sold for financial gain. Further, Judge Bennett quite correctly made the two indicative sentences largely (and notionally) concurrent.
5. I would reject ground 4.

Ground 5: The sentencing judge erred in his exercise of discretion in not including any of the balance of the one and half years of parole the applicant had already served in the indicative sentence for the s 25A ongoing supply offence, which gives rise to a justifiable sense of grievance for the applicant

1. Ground 5 essentially complains about the commencement date of the sentence.
2. There was a complication involved in choosing the commencement date because the applicant breached parole and his parole was revoked. Between his arrest and the date of sentence, he was in custody for a period which was referable both to the present offences (for the period bail was refused) and for the earlier commercial supply offence (for which he was serving the balance of parole). The applicant cited a portion of his Honour's remarks on sentence but the whole passage must be considered: "PRE-SENTENCE CUSTODY 6. On 15 May 2021, upon the jury's verdicts of guilty, I granted the Crown's detention application and the offender was taken into custody. Before this the offender was on bail, but for a period of time was in custody bail refused and serving the balance of parole from an earlier sentence. His pre-sentence custody is gleaned from the following sequence. • Date of arrest 26 September 2018, bail refused. • Balance of parole 26 September 2018 until 28 February 2020. • Detention thereafter continued upon refusal of bail from 29 February 2020 until 19 June 2020 when he was released to bail. • Bail revoked 15 May 2021. 7. Upon that sequence, upon my calculation, the offender has been held in custody for these offences for a total of 112 days. I note that the Crown has calculated the figure at 111 days. Upon my calculation on 29 February 2020, the offender was in custody. I note that 2020 was a leap year. In March there were 31 days, in April 30 days, and in May 31 days, and then until 19 June 2021 bail was granted. My calculation brings the total to 112 days. 8. The aggregate sentence to be imposed today could be taken to have commenced no later than 23 January 2021. The exercise of the discretion I have is discussed by Simpson J in Callaghan v R [2006] NSWCCA 58. Her Honour wrote: '22. I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23. It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and to be granted parole even after a revocation, to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24. However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referrable to the earlier offences and not the subsequent offences.' 9. The offender was released to parole on 19 February 2018 after serving a custodial component of a sentence for offences of supply more than the commercial quantity of prohibited drug. The sentence was of five years including a non-parole period of three years commencing on 20 February 2015. Thus he was released to parole at the expiration of the non-parole period and committed the offences upon which I am to impose sentence from 4 September 2018, after he had been at liberty for little more than six months. This was relatively soon after he was released and when there was remaining almost one year and a half of the head sentence. 10. Without more, I would have commenced this sentence from 23 January 2021, but I have brought to account the conditions of bail to which the offender was subject before he was returned to custody upon verdicts of guilty. According to Justice Link on 22 June 2020 his conditions of bail were: • To enter into an agreement to observe the following specified requirements as to conduct while at liberty on bail; • To be of good behaviour; • To report to Burwood Police Station once daily between 6am and 7pm on Monday, Wednesday and Friday; • Not to apply for any new passport or travel document; • Not to approach any point of International departure from the Commonwealth of Australia; • To live in his parents' home and to reside with his parents; • To not be absent from his parents' home except in the company of one of his parents, or his brother, or his legal representatives, other than to leave his residence on his own to report three times a week to Burwood Police Station taking the most direct route thereto and returning to his residence by the most direct route; • Not to have any contact in any way, except through a legal representative, with Ms Song Han, or any other Crown witness, or Haidar Al‑Jeezai (also known as Al J Haidar); • To present himself at the front door of the residence upon an attendance of any police officer; • To use one mobile phone only, being a device and phone number, to New South Wales Police and to update New South Wales Police of any change in respect of the mobile phone used; • To appear at the District Court of New South Wales on 8 March 2021 and on such dates as the Court requires; • To comply with the following enforcement condition, namely drug or alcohol testing; • To refrain from using illicit drugs or alcohol; • To submit to drug and alcohol testing when required by police officers acting within their lawful powers; • One acceptable person to enter into a bail security agreement to forfeit the sum of $30,000 if the accused fails to comply with the bail acknowledgement. 12. His release to bail was on 19 June 2020 until bail was revoked on 5 May 2021. I have brought these conditions to account upon my understanding that they applied to him from three days after his release upon a variation allowing him to be absent from his nominated address alone to report to police. 13. In light of these conditions, to which I find he was subject for ten months and 21 days, and which involve a significant curtailment of liberty, I shall commence the aggregate sentence I intend to impose on 23 November 2020."

Ground 6: The sentencing Judge erred by making the order that the offender pay to the State of New South Wales a drug proceeds order in the sum of $22,600.

1. The final ground of appeal concerns the drug proceeds order made pursuant to s 29 of the Confiscation of the Proceeds of Crime Act 1989 (NSW).
2. All relevant formalities of the Act, and all of the statutory pre-requisites, were fulfilled. The only issue raised on the appeal concerned the finding of fact that the applicant derived the benefit which was the subject of the order. The applicant argued that it was not open to his Honour to make this factual finding, essentially because he (the applicant) was not present at the time of the relevant transaction. However, all of the evidence pointed to the applicant as being behind the transaction, not Ms Han, and there was evidence from the officer in charge of the investigation that he believed the applicant had derived the monetary benefit of $22,620 (20 dollars more than the final order) from the transaction. His Honour presided over the trial and was well seized of the issues, the credibility of the witnesses, and the nature of the relationship between the various parties. It is not unusual for the person who organises a drug deal to absent themselves from the transaction when the drugs and money are exchanged.
3. I would not interfere at this distance with his Honour's finding of fact and would also reject ground 6.

Orders on the application for leave to appeal against sentence

1. I would grant leave to appeal against the sentence but dismiss the appeal.

Orders

1. For those reasons, I would make the following orders: 1. If necessary, grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against the sentence. 4. Dismiss the appeal against the sentence.

Endnotes

1. Jury Act 1977 (NSW), s 19(2)(c).
2. Jury Act 1977, s 55G.
3. R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [40]
4. "The maxim ejusdem generis (of the same kind) means that where there is a list of things that are specific instances (species) of a class or category (genus), general words following the list are restricted to species of that genus": P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [6.50] ("Interpretation").
5. Interpretation at [6.20].
6. New South Wales Legislative Council, Parliamentary Debates (Hansard), 15 May 2008 at 7681-7683.
7. See Crofts v The Queen (1996) 186 CLR 427 at 440-441; [1996] HCA 22; Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [40]-[43], citing Winsor v The Queen (1866) LR 1 QB 390.
8. Appeal Trct (3 April 2023), p 4.
9. House v The King (1936) 55 CLR 499; [1936] HCA 40. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2023