Reported Decision : 7 DCLR (NSW) 278 New South Wales District Court CITATION: R v Geoffrey William LEONARD (No 2) [2008] NSWDC 197 HEARING DATE(S): 1 September 2008 - 4 September 2008 JUDGMENT DATE: 4 September 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Jury to deliver the verdict CATCHWORDS: CRIMINAL LAW - Taking verdict where accused has not voluntarily absented himself - Accused not present at return of verdict because of illness - Self represented accused - Importance of integrity of verdict LEGISLATION CITED: Jury Act 1977 R v McHardie and Danielson [1988] 2 NSWLR 733 CASES CITED: R v Cornwell [1972] 2 NSWLR 1 The Queen v Thomas CASTRO (1879) 5 Q.B. 490 R v Mokbel [2006] VSC 520 PARTIES: The Crown Geoffrey William Leonard FILE NUMBER(S): DC 2006/11/0746 COUNSEL: L McManus (the Crown) SOLICITORS: Commonwealth DPP Self Represented JUDGMENT 1 The jury in this matter had been deliberating for some time, when they told the court officer that they had reached a verdict. The officer then told me. I asked for the court to be assembled. However within a very short time, indeed less than a minute, of me learning that the jury had reached a verdict I was also informed that Mr Leonard, the accused, had been taken unwell. Mr Leonard is appearing for himself at his trial. 2 At the conclusion of yesterday's proceedings I remanded him in custody. He was therefore in the custody of corrective service officers this morning at the time it was reported to me he had been taken ill. It now transpires that Mr Leonard has been taken away to hospital in an ambulance. Information I received suggested that Mr Leonard was not feigning any illness but, on the assessment of the ambulance officers, appeared to be genuinely and significantly unwell. I do know from earlier proceedings in which Mr Leonard has appeared in front of me that he has, in the past, suffered a heart attack. He is seventy-four years of age. One of the matters he was going to rely on when I was to sentence him for matters (not the subject of the jury trial, of course) was his poor health. 3 It has now been some time since the jury announced that they had reached a verdict. A very simple issue has come up. Do I take the verdict or not? Mr Leonard is not present, cannot be present, and has not voluntarily absented himself. In those circumstances am I allowed to take the verdict from the jury? 4 Of course as I think I mentioned, a complicating factor is that Mr Leonard appears unrepresented. There has been no-one here to protect his interests during the course of the submissions as to what I should do in the present circumstances. Nor, if I were to take the verdict, would there be anyone here to protect his interests to ensure there was no irregularity in the way the verdict was taken. Balanced against that circumstance is that these proceedings are recorded on sound and so there will be available a sound recording of what would occur if I took the verdict. 5 There are many cases discussing the situation where an accused voluntarily absents himself. Perhaps the best known in this case is R v McHardie and Danielson [1988] 2 NSWLR 733 the case of the Woolworth bombers. I have had occasion to look at that case and many of the cases therein cited including R v Cornwell [1972] 2 NSWLR 1, and R v Thomas Castro (1879) 5 Q.B. 490. I have also looked at cases where the McHardie and Danielson principles have been referred to, including R v Mokbel [2006] VSC 520. The cases establish quite clearly that a judge has a discretion as to whether to continue a trial where an accused has voluntarily absented himself or herself by escaping. They do not, however, say anything about the position which faces me, namely, can I take a verdict when an accused person has not voluntarily absented himself but has been taken ill during the course of jury deliberations, indeed it at the very moment that the jury announced that they had reached a verdict? 6 There are many authorities which say that the accused is entitled to be present throughout his trial. Clearly those authorities are directed to the proposition that an accused person is entitled to see and participate in his or her trial. An accused person is entitled to cross-examine witnesses, address the jury, take objections to evidence and so on. Of course it could be said that at this stage the accused has no role at all to play. The time for cross-examination, address and objection is past and all that remains is for the verdict to be delivered. 7 It may be that those authorities which state the general rule that an accused person is entitled to be present at his or her trial, are addressing the circumstance that an accused person is entitled to participate in his or her trial in the ways which I have mentioned above. Neither the Crown Prosecutor nor I can find any case addressing the situation where an accused is absent at a time his active involvement in the trial has come to end and all that remains is for the accused to hear the verdict. 8 In the 2005 edition of Archbold this appears: "the presence of the defendant is not essential at the return of the verdict … but in practice he usually is present". The authors refer to two old, and rare, text books in support of that proposition. In the time I have had available I have been able to look at one of those but do not find it to be of much assistance. I note that the statement in Archbold which I have just quoted appears in a much earlier edition as well (see Archbold 32nd edition 1949 at 196) so the principle seems to have been accepted as a correct statement of law for some time. 9 The statement I have quoted is unqualified but it would be consistent with my understanding of the authorities referred to in McHardie and Danielson such that the statement in Archbold should be interpreted as expressing the idea that a verdict may be taken from a jury when a defendant has voluntarily absented himself from his or her trial. I do not regard the statement in Archbold to be saying anything, one way or the other , about the situation with which I am presently faced. 10 Counsel referred me to s 54 of the Jury Act. That is the section that allows me to permit the jury to separate. S 54 says that I can allow the jury to separate at any time before they retire to consider their verdict, and after they retire to consider their verdict. The Crown Prosecutor makes the point that they are no longer considering their verdict. The jury has reached their verdict and indeed the time for consideration of the verdict has passed, and passed some time ago. The Crown argues that, in those circumstances, I am not allowed to permit the jury to separate. What would the result be if that was correct? The result would be that the jury would be locked up until Mr Leonard recovered sufficiently to the point where he was able to return to court. That would be, as I understand it on the information available to me, some time away and certainly not today. It would mean that the jury would have to be locked up overnight. 11 The old rule of course was that juries were locked up, without 'food, water or candle' even, until they reached a verdict. S 54 and its predecessors modified that position. But the Crown says that s 54 does not allow me to permit the jury to separate in the present circumstances before delivering their verdict. 12 The matter is not an easy one to resolve. It seems to be a novel one and there are difficult competing interests involved. Perhaps the most important consideration is the integrity of the verdict the jury has currently reached. It is the usual course that, as soon as a jury has reached a verdict it should be announced. Not only is this done as a matter of having regard to the personal needs of jurors to return to non-jury life, but is also designed to ensure that a verdict, once reached, is not changed. I am satisfied that the appropriate course in the present case is to take the verdict. 13 I have reached this conclusion because of s 54 of the Jury Act, and, more importantly, the need to protect the integrity of the jury verdict. There is a possibility that jurors, having deliberated and reached a verdict, will commence inquiring into the background of Mr Leonard, which might mean that the jurors will attempt to resile from the verdict they have reached. If we assume for a moment that the verdict already reached by the jury is one of "not guilty" then there is a real possibility that one or more jurors will change their minds before the verdict is returned because the nature of the material they are likely to find about Mr Leonard if they make enquiries (he has an extensive, and unflattering, internet presence including many appearances on the youtube web site). 14 I take into account that ordinarily an accused person is present throughout his or her trial but that is not essential. One circumstance is where the accused voluntarily absents himself or herself, and I am satisfied that another circumstance is where the accused has no effective part to play in the trial because a jury has actually reached a verdict. Such is the present situation, where the accused's only role is to hear the verdict announced. 15 I confess to being very uncomfortable about the decision I have made. It seems to me the best of two quite bad alternatives. It is however one I have made consistent with my understanding of the law and I therefore propose to bring the jury in and ask them to deliver their verdict. ********** 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. 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