Supreme Court New South Wales Medium Neutral Citation: R v Cranston (No 16) [2022] NSWSC 1166 Hearing dates: 30 August 2022 Date of orders: 30 August 2022 Decision date: 31 August 2022 Jurisdiction: Common Law Before: Payne JA Decision: (1) The individual Juror 01052964 is discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW); (2) Pursuant to s 53C(1)(b) of the Jury Act, the trial is to continue with the remaining twelve jurors. Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where juror's employer refused to continue to provide make-up payments — where juror would suffer financial burden without make-up payments — juror discharged CRIMINAL PROCEDURE — Trial — Jury — order that the trial continue with remaining jurors Legislation Cited: Fair Work Act 2009 (Cth), ss 111, 112 Industrial Relations Act 1999 (Qld), s 14A Juries Act 1957 (WA), s 58B Juries Act 2000 (Vic), s 52 Jury Act 1977 (NSW), ss 53B, 53C, 69 Jury Regulation 2015 (NSW) Cases Cited: Attorney-General v Butterworth [1963] 1 QB 696 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 R v Cranston (No 14) [2022] NSWSC 860 R v Cranston (No 15) [2022] NSWSC 977 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 Texts Cited: Explanatory Memorandum, Fair Work Bill 2009 (Cth) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 1947 Category: Procedural rulings Parties: Regina (Crown) Adam Michael Cranston (Accused) Lauren Anne Cranston (Accused) Dev Menon (Accused) Jason Cornell Onley (Accused) Patrick Willmott (Accused) Representation: Counsel: P McGuire SC with J Paingakulam and C Tran (Crown) J Stratton SC with H Blake (Adam Cranston) TD Anderson SC (Lauren Cranston) P Bruckner (Dev Menon) WR Johnson (Jason Onley) L Brasch (Patrick Willmott) Solicitors: Commonwealth Director of Public Prosecutions (Crown) One Group Legal (Adam Cranston) Greg Willis Criminal Defence Lawyer (Lauren Cranston) Hardinlaw (Dev Menon) Pure Legal (Jason Onley) The Defenders (Patrick Willmott) File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208; 2020/115291 Publication restriction: Not to be published other than to the parties until after the trials of each of the accused are completed. Judgment 1. 30 August 2022 was the 71st day of this trial. The trial commenced on 26 April 2022, on which day a jury of fifteen was empanelled. Since that time, I have made orders on 28 June 2022 and 20 July 2022 discharging two individual members of the jury respectively: R v Cranston (No 14) [2022] NSWSC 860; R v Cranston (No 15) [2022] NSWSC 977. On each occasion, I also determined that the trial should continue with the remaining jurors. 2. Since 20 July 2022, the trial has proceeded with thirteen jurors. However, on the morning of 30 August 2022 I received a note from Juror 01052964 in the following terms: "Your Honour, I was recently advised by my employer that they had decided to stop providing make‑up pay in addition to the juror payments. Advice I've received confirms that this decision is lawful, according to a clause in my employment contract. Receiving only the juror allowance will make it very difficult to meet my family's financial obligations, therefore I request to be discharged from jury service so that I can return to work. I apologise sincerely for letting down the court and my fellow jurors in this instance and am thankful for this opportunity." 1. "Make-up payments" to employees engaged in jury service are payments made by an employer to an employee providing jury service to "make up" the difference between payments made to all jurors by the State pursuant to the Jury Act 1977 (NSW) and the Jury Regulation 2015 (NSW), and the amount of wages or salary usually earned by the juror. 2. When the jury was empanelled on 26 April 2022, I impressed upon the members of the jury panel who had answered the Sheriff's summons the importance of jury service as both a right and duty of Australian citizens. I also made clear that, in view of the importance of jury service to our community and the criminal justice system, individuals serving as a member of a jury on a criminal trial must not be stressed by other commitments or pressures which might impede upon that individual's ability to perform the functions of a juror. 3. To my observation, Juror 01052964 has been an engaged and attentive member of the jury these last four months. It is a matter of considerable regret that after this lengthy period, his employer has determined no longer to provide make‑up pay in addition to the juror payments. It is a matter of even greater regret that despite the apparently emphatic language of certain provisions of the Jury Act, it is not clear to me that the advice received by Juror 01052964 was incorrect; that is, it may be open to employers in NSW to decide to stop providing make‑up pay in addition to the juror payments after a period of 10 days of making payments has elapsed. This is a situation which places intolerable burdens on employed citizens chosen to serve as a member of a jury on a criminal trial lasting for longer than a few weeks. Urgent consideration should be given by NSW authorities as to whether the Jury Act was intended to work in this way. 4. Having already progressed for over four months, this trial has at least a further two months to run until a verdict can reasonably be expected. The Commonwealth is prosecuting the case. The Commonwealth statute regulating industrial relations obligations, the Fair Work Act 2009 (Cth), addresses the issue of payments to employees providing jury service, but in a way that in the present case has proven wholly inadequate. The result of the Fair Work Act in long trials in NSW (and all Commonwealth trials on indictment must be jury trials), will be that the panel of possible jury members in NSW will be drawn from people outside the paid workforce, or worse, months into a trial a juror may ask to be discharged if the employer ceases to pay the juror make-up payments. Urgent consideration should be given by Commonwealth authorities as to whether the Fair Work Act was intended to work in this way. 5. I formed the view that by reason of the decision of his employer, Juror 01052964 had been placed in an intolerable position and ought be discharged. The trial should continue with the remaining 12 jurors. These are my reasons. Consideration 1. The Jury Act contains provisions aimed at protecting the employment of a person who is summoned to serve as a juror. The purpose of such protections is to mitigate against possible interference with the administration of justice by an employer taking action prejudicial to the rights of an employee serving as a juror: Attorney-General v Butterworth [1963] 1 QB 696; New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 1947 at 1124. 2. The form of the Jury Act protections is to prohibit certain conduct by an employer in relation to an employee; the Act does not in terms impose any obligations on the employer. The key protective provision is s 69 of the Jury Act, which relevantly provides: 69 Unlawful dismissal of or prejudice to employees summoned for jury service (1) An employer shall not dismiss a person in his or her employment or injure the person in his or her employment or alter his or her position to his or her prejudice by reason of the fact that the person is summoned to serve as a juror. … (7) An employer shall not threaten a person employed by the employer with— (a) dismissal, or (b) injury in his or her employment, or (c) alteration of his or her position to his or her prejudice, by reason of the fact that the person is summoned to serve as a juror. … (10) In this section— employee means— (a) a full-time employee, or (b) an employee who, as a regular casual employee (or partly as a regular casual employee and partly as a full-time or part-time employee), has worked with the employer for at least 12 months on an unbroken, regular and systematic basis (including any period of authorised leave or absence). employer includes a person acting on behalf of the employer. Maximum penalty—200 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both (in the case of an individual). 1. No authority was drawn to my attention about the correct construction of "employee" in the Jury Act. It may be that some forms of work carried on in the modern Australian economy would not fall within this definition. Examination of, at least, the recent High Court authorities in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, which address this issue in a different context, would need to be conducted before venturing upon the question of the correct construction of the terms used, given the subject matter, scope and purpose of the Jury Act. I proceed, however, on the basis that Juror 01052964 is an "employee" as defined. 2. The action of the employer here, to refuse to provide further make-up payments to the juror for the remaining months of this trial, if a breach of the Jury Act, could only be "injury in his or her employment" or a threat thereof (under sub‑s 69(1) or sub‑s 69(7)(b) respectively), as no actual or threatened dismissal or "alteration of his or her position" ("position" being a heavily laden term in industrial relations law) has occurred. 3. In the absence of authority, and none was drawn to my attention, I doubt that the employer's refusal after four months to make further make-up payments for the remaining two or more months of this trial constituted "injury in his or her employment" to Juror 01052964. If the intention of the Jury Act prohibitions was effectively to require employers to provide make-up payments to employees selected for jury service for the entire length of that service, the provisions do not in my view make that sufficiently clear. As I have said, urgent consideration should be given by NSW authorities as to whether the Jury Act was intended to require employers to provide make-up pay and, if so, whether amendments should be made to clarify that obligation. 4. My doubts about the scope of the Jury Act prohibitions are reinforced by the Fair Work Act, which addresses this issue by imposing an obligation on employers to provide make-up payments for the first 10 days only of jury service. If an employer acts in accordance with the obligation imposed by the Fair Work Act, and under the federal statute lawfully ceases make-up payments after the requisite 10 days, it would be a surprising conclusion that the prohibition in the Jury Act could create a valid criminal offence arising from the same conduct. 5. Section 111 of the Fair Work Act was introduced to prevent an employee serving as a juror from suffering a financial burden due to their participation in jury service: Explanatory Memorandum, Fair Work Bill 2009 (Cth) [r.66]-[r.67]. As this case demonstrates, that aim has not been adequately met. The period of 10 days is not a sufficient period to ensure that "employees who provide jury service should not suffer a financial burden due to their participation in jury service", as this case demonstrates. 6. Section 111 of the Fair Work Act relevantly provides: 111 Payment to employees (other than casuals) on jury service Application of this section (1) This section applies if: (a) in accordance with this Division, an employee is absent from his or her employment for a period because of jury service; and (b) the employee is not a casual employee. Employee to be paid base rate of pay (2) Subject to subsections (3), (4) and (5), the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period. … Payment only required for first 10 days of absence (5) If an employee is absent because of jury service in relation to a particular jury service summons for a period, or a number of periods, of more than 10 days in total: (a) the employer is only required to pay the employee for the first 10 days of absence; and (b) the evidence provided in response to a requirement under subsection (3) need only relate to the first 10 days of absence; and (c) the reference in subsection (4) to the total amount of jury service pay as disclosed in evidence is a reference to the total amount so disclosed for the first 10 days of absence. Meaning of jury service pay (6) Jury service pay means an amount paid in relation to jury service under a law of the Commonwealth, a State or a Territory, other than an amount that is, or that is in the nature of, an expense‑related allowance. Meaning of jury service summons (7) Jury service summons means a summons or other instruction (however described) that requires a person to attend for, or perform, jury service. 1. There is a provision in the Fair Work Act which is intended to save obligations imposed by State or Territory laws in relation to make-up payments for employees providing jury service, to the extent those obligations are more favourable to the employee than the requirement set out at s 111. Such laws dealing explicitly with make-up payments apparently exist only in Victoria and Western Australia: Juries Act 2000 (Vic), s 52; Juries Act 1957 (WA), s 58B(3). [1] The validity of those provisions is preserved by s 112 of the Fair Work Act, which provides: 112 State and Territory laws that are not excluded (1) This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to engaging in eligible community service activities, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division. Note: For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid jury service pay. (2) If the community service activity is an activity prescribed in regulations made for the purpose of subsection 109(4), subsection (1) of this section has effect subject to any provision to the contrary in the regulations. 1. While both s 69 of the Jury Act and s 111 of the Fair Work Act are said to be aimed at protecting an employee summoned for jury service from suffering any prejudice in his or her employment or other financial burden by reason of that jury service, the scope of those protections is limited in a case such as the present. 2. On the assumption that Juror 01052964 is an employee who qualified for the protections under the Jury Act and the Fair Work Act it is at least strongly arguable that the juror's employer is not prohibited from ceasing to provide make-up payments. It is strongly arguable that neither Act operated to prevent Juror 01052964 from suffering financial consequences due to the juror's inability to earn his usual rate of pay by reason of his participation in jury service. 3. If I had refused to discharge Juror 01052964, he would have been placed in the intolerable position of being unable properly to provide for his family whilst I caused enquires to be made and, potentially, proceedings to be taken against his employer. Those proceedings could not, on any reasonable assumptions, be determined by the end of this year. The juror would be forced to serve on this jury against his will and in circumstances where he has said, and I accept, that without the make-up payments from his employer it would be "very difficult to meet [his] family's financial obligations". The potential disruption to the calm deliberation by the jury in these circumstances is obvious. 4. The juror, through no fault of his own, was placed in an invidious position wherein his continued service to the community as a juror in this lengthy trial would cause him personally to suffer a financial burden. By fulfilling his community duty to provide jury service, the individual juror was unable to undertake his usual employment and earn his usual rate of pay, and his employer was not clearly required to provide any make-up payment to that rate in his absence. Despite the objective of both the Jury Act and the Fair Work Act, being to protect employees providing jury service from being prejudiced in their employment or from suffering a financial burden, neither the State Act nor the Commonwealth Act operates to achieve that outcome in the present circumstances. 5. Despite the mischief which they each aim to address, neither the Jury Act nor the Fair Work Act effectively operates to protect employees serving as a juror from suffering a detriment by reason of their participation in jury service in a long trial. In lengthy trials such as the present, employees serving on the jury are vulnerable to the possibility of having to bear a substantial financial burden because their jury service prevents them from undertaking their usual employment and earning their usual rate of pay for an extended period of time. Juries in lengthy trials may therefore be less representative as a result, with employees more inclined to try to avoid jury service for an extended period during which they are not entitled to make-up pay. That is obviously a highly undesirable outcome. 6. While jury service is a duty, that duty should not have the effect of causing undue hardship for an individual juror. I was satisfied that continued service by Juror 01052964 would have been productive of significant financial detriment. I am further satisfied that this continuing financial detriment would have affected the juror's ability properly to perform his functions as a juror such that he should not be required to continue to act as a juror. 7. Accordingly, on 30 August I ordered under s 53B(d) of the Jury Act that Juror 01052964 be discharged. I expressed personally to him when doing so my gratitude for his lengthy period of service and acknowledged the dedication and attention to the proceedings which he had displayed. 8. In accordance with s 53C of the Jury Act, none of the parties made a submission that the jury should be discharged, and I was satisfied that the trial should continue with the remaining jury of twelve. There was no suggestion that any of the remaining jurors will not be able to properly fulfil his or her function as a juror, or that continuation of the trial gave rise to any risk of a substantial miscarriage of justice. This is an exceptionally lengthy trial with a vast volume of evidence. The present jury have heard over four months of the total evidence in this case. I found there was no risk of a miscarriage of justice in proceeding with twelve jurors. In these circumstances, I determined that pursuant to s 53C(1)(b) of the Jury Act the trial should continue with the remaining twelve jurors. Conclusion 1. For the above reasons I made the following orders on 30 August 2022: 1. The individual Juror 01052964 is discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW); 2. Pursuant to s 53C(1)(b) of the Jury Act, the trial is to continue with the remaining twelve jurors. ********** Endnote 1. Employers in Queensland were previously also required to provide make-up payments to an employee required to attend for jury service, for the duration of that service, under the now-repealed Industrial Relations Act 1999 (Qld), s 14A. Amendments 21 March 2023 - Publication restriction lifted. 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 March 2023