Supreme Court New South Wales Medium Neutral Citation: R v Cranston (No 27) [2023] NSWSC 200 Hearing dates: 21 and 22 February, 1, 3 and 6 March 2023 Date of orders: 6 March 2023 Decision date: 09 March 2023 Jurisdiction: Common Law - Criminal Before: Payne JA Decision: (1) That individual Juror 02964979 is discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW) (2) Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), the trial is to continue with the remaining ten jurors Jury direction at [33] given. Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where juror must attend training period as precondition to offer of employment — juror discharged. CRIMINAL PROCEDURE — Trial of five accused on two counts each — Direction to jury that separate verdicts may be given. Legislation Cited: Jury Act 1977 (NSW) Cases Cited: BG v R (2012) 221 A Crim R 215 Black v The Queen (1993) 179 CLR 44 Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36 Lee v R; Tang v R [2015] NSWCCA 157 R (Cth) v Petroulias (No. 33) [2007] NSWSC 1447 R v Cranston (No 14) [2022] NSWSC 860 R v Cranston (No 15) [2022] NSWSC 977 R v Cranston (No 16) [2022] NSWSC 1166 R v Cranston (No 26) [2023] NSWSC 139 R v Medich (No 10) [2017] NSWSC 32 R v Ousley (1996) 87 A Crim R 326 Category: Procedural rulings Parties: Crown Adam Michael Cranston (Accused) Lauren Anne Cranston (Accused) Jason Cornell Onley (Accused) Dev Menon (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) Kingston Fox Lawyers (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Willmott) File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208; 2020/115291 Publication restriction: Not to be published other than to the parties until after the trials of each of the accused are completed.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. This judgment addresses two issues: 1. The discharge of individual Juror 02964979 (known as Juror P) on 6 March 2023; and 2. A direction to the jury given on 6 March 2023. Discharge of Juror P 1. This 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, 20 July 2022, 30 August 2022 and 23 February 2023, on each occasion discharging one individual member of the jury, respectively: R v Cranston (No 14) [2022] NSWSC 860; R v Cranston (No 15) [2022] NSWSC 977; R v Cranston (No 16) [2022] NSWSC 1166; and R v Cranston (No 26) [2023] NSWSC 139. 2. I completed my summing up to the jury on 18 January 2023 and invited the jury to retire to consider their verdicts that morning. The jury have deliberated since that time. 3. The most recent discharge, the subject of R v Cranston (No 26), occurred at the end of the sitting day on 23 February 2023. Since the beginning of the following sitting day, 27 February 2023, the trial has proceeded with eleven jurors. 4. On the morning of 1 March 2023, I was informed by the Court Officer that another juror (known as Juror N) would not be attending for jury service that day. The Court Officer informed me that the partner of Juror N attended the Court and informed her that Juror N had suffered an "accident", was experiencing abdominal pain and was attending the emergency department of St Vincent's Hospital. 5. I immediately informed the parties of this development and convened the Court shortly thereafter. No application was made by any party for the discharge of Juror N. I proposed, and each of the parties agreed, to have the Court Officer send Juror N a short text message wishing her well and inviting her to let us know whether she could attend the following day. Juror N's partner replied, using Juror N's phone, indicating that Juror N had been admitted into hospital, that they were not sure when she would be out, and offering to provide the Court with a letter from the hospital. Later that day, the partner texted the Court Officer saying that Juror N would be out of hospital on Monday 6 March 2023, and attaching a medical certificate from the hospital stating that she would be unfit for work from 1 to 5 March 2023. Having been provided with this information, the parties agreed that I should adjourn the proceedings until Monday 6 March 2023. I did so on 1 March 2023. 6. On Friday 3 March 2023, the Court Officer received a text message from another juror (known as Juror P) in the following terms: "Hello, Juror P here, I'm going to ask to be dismissed on Monday. I have training for a new job coming up, and believed I could reschedule my training for April, but have recently been told that their April intake is cancelled – so either I attend in March or I lose my job. (Hence the short notice – I thought it could be postponed until this week.) My employers will provide a letter to present. Would it be possible to be dismissed before Monday, or do I have to attend court that day? It's the day the training starts, but they have given me a day of leeway. Sorry to bother you on your day off. No pressure to respond. Feel free to point me to another person. Thanks very much." 1. Another text message was received shortly after in the following terms: "(Just to clarify: I went into jury duty with one employer, recieved an offer for another job, and gave my notice to the first employer. The second requires me to attend training, not the first. They didn't intend to interrupt my service – it's just that they do intakes once or twice yearly, and the second was cancelled. The trial was also meant to be finished before this year.)" 1. I convened the Court shortly afterward. The parties each agreed that no final orders should be made in relation to any discharge of Juror P until Monday 6 March 2023, and until the foreshadowed letter from his employer arrived. 2. The Crown submitted that, on the assumption that Juror N attended for jury service on 6 March 2023 without further interruption, Juror P should be discharged pursuant to s 53B of the Jury Act 1977 (NSW). The parties drew my attention to various cases involving applications for discharge of a juror for employment-related reasons: R (Cth) v Petroulias (No. 33) [2007] NSWSC 1447; R v Ousley (1996) 87 A Crim R 326; BG v R (2012) 221 A Crim R 215. 3. Section 53B of the Jury Act 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. 1. Late on the afternoon of 3 March 2023, the foreshadowed letter from Juror P's employer was received. It was redacted by the Court Officer to protect Juror P's statutory anonymity and provided to me. Addressed to the New South Wales Sherriff's Office, it stated: "Dear Sir or Madam, We are the employer of [redacted], with juror number [redacted], who has received a summons dated 09 February 2022 for inclusion on a jury roll from February 2022 to February 2023. [Redacted] has recently been employed as a Voice Captioner, Live Operations – APAC in our organisation with his employment commencing on 7th March 2023. Due to the specific nature of captioning work, all newly employed captioners are required to undertake 4 consecutive weeks of extensive training, from Monday to Friday, 10am to 5pm AEDT. Successful completion of the training program is mandatory in order for their employment to be confirmed at Ai-Media. As court proceedings are scheduled to start on 6th March 2023, we respectfully ask if [redacted] could please be excused from Jury Duty. The schedule of the training program is unfortunately not flexible as it is based on client requirements and also includes a group of 9 other captioners. Without the necessary training, [redacted] will not be able to perform his role as a captioner and may lose the opportunity to work with [redacted]. We understand the importance of this responsibility, however as [redacted] employer we would like to provide him with the training he needs to succeed, and also support [redacted] interest in the opportunity to start a career at [redacted]. Given the circumstances, we kindly request your consideration and hope for a positive response." 1. The letter was circulated electronically to the parties after business hours on 3 March 2023. 2. On the morning of 6 March 2023, counsel for each of the accused submitted that further information should be sought before Juror P could be discharged. Mr Bruckner, counsel for the accused Mr Menon, referred to the case of R v Medich (No 10) [2017] NSWSC 32, another case involving the discharge of a juror for employment-related issues, and tendered two documents said to provide further information about the new position of Juror P. 3. I recalled the jury and asked Juror P to inform the Court whether, if his discharge request were refused, he would be willing and able to continue participating in the jury's deliberations. I asked him to inform the Court whether his new position would be on a full-time or casual basis. 4. Shortly after, Juror P sent the following note: "Your Honour, I previously worked as a casual stock-taker. I received an offer to become a casual live captioner, and accepted. While the job is casual, its training period is a month of full-time hours. It is usually offered in March and April, but when I asked if I could be moved to the April group last week, I was told that the April intake was cancelled and if could not attend in March I would lose the position. I've handed in my notice to my old employers. If I cannot hold onto my new position (which I have signed a contract for) I will not be employed. I have been given only one day of leniency, with training to catch up on remotely. I've been told I can only have one. I apologise for the inconvenience, and would be happy to sit until one o'clock. -Juror P." 1. On the application, Mr Bruckner tendered documents sourced from the internet from which he submitted I should conclude that Juror P had accepted a relatively low skill job. It was submitted that Juror P, if not discharged, could likely find another relatively low skill job and that, in effect, I should ask Juror P to confirm those matters. Mr Bruckner submitted that "It may well be that the jury will see the sense that there are a lot of resources in this trial and the opportunity to take on what at present may be regarded as an unskilled position but with training to gain skills to do it, the juror might see the sense in continuing deliberations until the end of the trial and taking up either another opportunity with another firm or another job at a later stage". After receipt of the above note, Mr Bruckner submitted that I should further examine Juror P prior to deciding whether to discharge him. 2. I concluded that the further questioning suggested by Mr Bruckner would be intrusive and serve little purpose, other than to embarrass Juror P. It was clear to me that Juror P had accepted a new job and had acted reasonably in doing so. Having regard to all the correspondence and Juror P's note I reached the following conclusions: 1. Juror P had been made an offer of employment which was conditional upon attending a month-long training commencing on 7 March 2023; 2. If Juror P did not attend the month long training the offer of employment would lapse; 3. On the faith of earlier being told in writing, by me, that the trial would likely conclude by 31 January 2023, Juror P had resigned from his prior employment and could not go back to that job (the estimate of a likely conclusion by 31 January 2023 was joined in by the Crown and each of the accused); 4. If not discharged on 6 March 2023 Juror P would become unemployed; 5. Forcing Juror P to continue to participate in deliberations in circumstances where he had become unemployed by reason of these circumstances would likely lead to his being distracted and resentful in relation to further deliberations; and 6. In all the circumstances I have described, failing to discharge juror P would be likely to affect his "ability to perform the functions of a juror" pursuant to s 53B(d) of the Jury Act. 1. Accordingly, I called Juror P back into Court and made an order discharging Juror P on the morning of 6 March 2023. 2. As to the separate discretion in s 53C of the Jury Act, it was the unanimous submission of the parties that the trial should continue with the remaining ten jurors. The jury have been deliberating since 18 January 2023 in a trial which commenced almost a year ago. It is permissible for the number of jurors in Commonwealth prosecutions to fall below twelve: Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36 at [20]-[24] (Gleeson CJ and McHugh J), [68]-[78] (Gaudron, Gummow and Hayne JJ), [139]-[149] (Kirby J), [172]-[186] (Callinan J). I found that there was no risk of a miscarriage of justice in proceeding with the remaining ten jurors, as per s 53C(1)(a) of the Jury Act. 3. In these circumstances, I determined that pursuant to s 53C(1)(b) of the Jury Act the trial should continue with the remaining ten jurors. 4. One matter which I will return to is that Mr Stratton SC, counsel for the accused Mr Cranston, made clear during submissions that if it became necessary to discharge one further juror his client would oppose proceeding with a jury of nine. 5. For the above reasons I made the following orders on 6 March 2023: 1. That individual Juror 02964979 is discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW); 2. Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), the trial is to continue with the remaining ten jurors. Direction about separate verdicts given to the jury on 23 March 2023 1. As I have said, a jury of 12 were invited to retire and consider their verdicts on 18 January 2023. In circumstances explained in R v Cranston (No 26) it became necessary to discharge a juror. On 21 February 2023, prior to the discharge of that juror, the Crown submitted that the jury should be given a direction explaining that they are able to deliver their verdicts on each count separately if they choose to do so. 2. I was satisfied, and counsel for each of the parties agreed, that I had the power to give such a direction and to accept separate verdicts in a multi-accused trial. For example, in Lee v R; Tang v R [2015] NSWCCA 157 at [31] Basten JA accepted that a trial judge took the necessary steps in accepting the verdict with respect to two of the accused before inviting the jury to proceed to continue deliberations in relation to the other two accused. Garling J at [49] also referred to the taking of separate verdicts in a multi-accused trial with apparent approval. 3. I invited the Crown to prepare a draft form of words for such a direction, which it did later that day. 4. On 22 February 2023, at the initial hearing of the Crown's application for such a direction, Mr Stratton SC, for the accused Adam Cranston, submitted that the direction might have the effect of "hurrying up" the jury to deliver some verdicts before the impending discharge of Juror K (the juror the subject of R v Cranston (No 26)). Mr Willis, solicitor for the accused Lauren Cranston, suggested a minor amendment to the draft form of words to emphasise that the jury only need follow this course if it wishes to do so. 5. On 23 February 2023, I decided that I would not give any direction like the one suggested by the Crown prior to the discharge of Juror K. 6. I foreshadowed, however, that if circumstances changed I would reconsider my decision. 7. On 3 March 2023, the Crown submitted that I should consider giving such a direction at the beginning of the sitting day on 6 March 2023, prior to Juror P being discharged. This was opposed by counsel for the accused. 8. After hearing submissions, I indicated to the parties my preliminary view that if, after considering further information provided by Juror P by 6 March 2023, Juror P was discharged and that I ordered the trial to continue with the remaining ten jurors, that I would give those remaining jurors a direction in the terms suggested by the Crown (amended as suggested by Mr Willis). 9. On 6 March 2023, counsel for each of the accused continued to oppose the giving of the proposed direction. Mr Stratton SC submitted that in his experience such a direction is only given at the time a jury indicates that it is deadlocked such that a direction of the kind described in Black v The Queen (1993) 179 CLR 44 was appropriate. No authority for that proposition was identified. 10. Following the discharge of Juror P, I recalled the jury and gave them a direction in the essential terms discussed by the parties: "Yes, thank you, members of the jury. I just wanted to explain to you directly what I have done this morning and I have made an order that Juror P is discharged, he having made an application for work-related reasons. Secondly, I have made an order pursuant to the Jury Act that the trial is to continue with the remaining ten jurors. So just reminding you of two important directions that I have already given you, that you should not feel under any time pressure to reach your verdicts and you take as long as you need to take. And the second is that your verdicts must be unanimous and that continues to apply. Now, during my summing up I told you, although the accused are being tried together as a matter of convenience, they are in effect separate trials against each of the accused and you have to consider each accused and each count separately, as I am sure you understand. What I did not tell you during my summing-up is that, as a result, you can deliver verdicts separately in relation to any of the accused or any of the counts. In other words, because you are considering ten separate counts and five separate accused, it is open to you to deliver a verdict about any particular count against any particular accused at any time. You do not have to wait until you have reached verdicts for all accused on all counts. Of course, whether you are able to do so or wish to do so is a matter entirely for you." 1. My reasons for giving this direction may be summarised as follows. 2. First, in a trial which has lasted almost a year and where deliberations had been taking place over several weeks, the jury were entitled to know that, if they had reached verdicts on some counts, they could deliver those verdicts. No accused submitted that the proposed direction was not legally correct. No authority was cited casting any doubt upon my ability to give the proposed direction at the time I proposed to give it. The question was one of the appropriate exercise of discretion to give the proposed direction. 3. Secondly, the essence of the accused's opposition to the proposed direction was that it would act as a direction to hurry the jury, to create an artificial deadline or, as Mr Brasch colourfully put it, to create a sense of "panic" in the jury room. I concluded that those complaints were without substance. In my summing up I had directed the jury to examine each of the elements of each of the offences against each of the accused. As I repeatedly explained, these were separate trials against five individuals and separate counts in relation to each accused. Acting properly and conscientiously and in accordance with my directions, the jury could have reached separate verdicts already but had not been told that they could deliver those verdicts. The proposed direction simply informed the jury of something that they had not yet been informed about. That is, if at any time, without feeling under any pressure, they reached a verdict on any counts, they were able if they wished, to deliver those verdicts. In the exercise of my discretion to give the direction at the time I did, I took the view that leaving the direction to some later stage might create the very problem that the accused wished to avoid, that is, creating an artificial deadline. If I had waited until receiving a note from the jury that might prompt a Black direction, it may then have led to a risk that I would undercut the force of that Black direction. 4. Thirdly, the proposed direction cured the only complaint that was made about it. The proposed direction contained a specific direction that the jury should continue to take their time and not feel rushed. This was in addition to the numerous directions to this effect that I had already given. I reminded the jury "that you should not feel under any time pressure to reach your verdicts and you take as long as you need to take." I was satisfied no urgency or "deadline" would be created by the direction I proposed to give. Rather than create urgency or "panic" the proposed direction told the jury to do quite the opposite. 5. Fourthly, although the Jury Act permits trials of this length to go forward with as few as eight jurors, as I have said at [22] above, senior counsel for Mr Cranston had already indicated that he would oppose the trial going forward if only one more juror was discharged. There was a therefore a risk, that if the jury had reached verdicts on some counts and not delivered them, in circumstances where another juror applied to be discharged, that close to an entire year of effort in a multi-accused criminal trial would be wasted. ********** 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