New South Wales Court of Criminal Appeal CITATION : Regina v Jackson [2002] NSWCCA 303 FILE NUMBER(S) : CCA 60879/2001 HEARING DATE(S) : 23/07/02 JUDGMENT DATE : 23 July 2002 PARTIES : Regina Lloyd William Jackson JUDGMENT OF : Sheller JA at 21; Hidden J at 1; Adams J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0202 LOWER COURT JUDICIAL Payne DCJ OFFICER : COUNSEL : GD Wendler - App RA Hulme - Crown SOLICITORS : Van Houten SE O'Connor CATCHWORDS : CRIMINAL LAW: jury trial - two week interruption of the trial in the course of the Crown case - whether jury should have been discharged - whether trial as a whole unfair. DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60879/01 SHELLER JA HIDDEN J ADAMS J Tuesday, 23 July 2002 REGINA V Lloyd William JACKSON Judgment 1 HIDDEN J: The appellant, Lloyd William Jackson, was tried in the District Court before her Honour, Judge Payne and a jury on an indictment containing two counts of homosexual intercourse, one count of assaulting a male with intent to have homosexual intercourse and one count of committing an act of gross indecency with a male. He was found guilty of three of those four counts, and was sentenced to a term of imprisonment. He appeals against conviction only. 2 The offences were alleged to have been committed upon the same complainant between 1985 and 1986, when the complainant was aged between sixteen and seventeen years and was an employee of the appellant. It is unnecessary to recite the evidence at the trial. The only ground of appeal arises from the unusual course which the trial took. 3 It is sufficient to say that the case was basically one of word against word. The appellant gave evidence denying any sexual contact whatsoever with the complainant. There was a delay of over thirteen years before the complainant made any complaint of the appellant's alleged conduct. 4 The matter which is agitated in the appeal arises in this way. On 6 September 2001 the appellant was arraigned and a jury was empanelled. The jury was excused until 10 September and, as I understand it, some legal matters were addressed in the meantime. On 10 September the trial got underway in the presence of the jury. For reasons which need not concern us, the evidence of the complainant was given in somewhat piecemeal fashion over the four days between 10 and 13 September. 5 On 13 and 14 September other evidence in the Crown case was called. A weekend intervened and, by Monday, 17 September, an issue had arisen about the appellant's fitness to be tried. On that day and on the following day the jury was sent away whilst there was discussion about how that matter should be dealt with. 6 On 19 September the jury was sent away until 27 September. On that day counsel then appearing for the appellant sought the discharge of the jury. There does not appear to have been a formal ruling on that application but, clearly, her Honour did not take that course. In the event, a fresh jury was empanelled to try the issue of the appellant's fitness. That trial proceeded between 24 and 27 September, on which day the appellant was found fit to be tried. 7 The trial resumed with the original jury on 28 September. On that day counsel then appearing for the appellant made a further application for the discharge of the jury. That application was refused and her Honour gave formal reasons for that decision on 3 October. I shall turn to those in a moment. 8 On 28 September the evidence resumed. The Crown case was completed and the accused gave evidence. On the same day counsels' addresses commenced. A long weekend intervened and addresses were completed on Tuesday 2 October. The summing up commenced that same day and the jury retired to consider its verdicts on 3 October. The verdicts were returned some hours later that day. 9 The application for discharge of the jury which was made on 28 September was pressed on a number of bases. Counsel argued, firstly, that the jury had been absent for the best part of fourteen days and that they would be unlikely to have an adequate recollection of the evidence and demeanour of the witnesses who had already given evidence. Secondly, it was said that the jury would be left with a much stronger recollection of the appellant's evidence, which had been given after the trial resumed, perhaps to the disadvantage of the appellant. 10 Thirdly, the Court was on notice that one of the jurors planned to travel overseas on 4 October, that is the day after which the jury in fact delivered their verdicts, and it was argued that that juror may well be under undue pressure and be inhibited in his or her ability to give the case proper attention. There was another matter raised in support of the application which has not been canvassed before us, and I need not refer to it. 11 In refusing the application, her Honour expressed the view that the appellant appeared to her to have acquitted himself well in the course of his evidence. Her Honour noted that the jury had requested the transcript of the evidence to be available to them upon their retirement, and her Honour also had regard to the fact that the evidence in the trial was within a relatively narrow compass and the issue was a straightforward one. Her Honour determined, accordingly, that there would be no unfairness to the appellant in the trial continuing. 12 It should be observed, of course, that her Honour gave her formal reasons on 3 October, after the jury had retired to consider its verdicts and, to some extent, those reasons were influenced by what her Honour had observed since the application for discharge had been made. 13 Before us, Mr Wendler, who appears for the appellant, agitated the same matters as those raised by trial counsel in support of the only ground of appeal, which is that her Honour erred in declining to discharge the jury. The real question, of course, is whether it appears to this Court that, as a result of that course of events, the trial miscarried. 14 Mr Wendler summarised the matters raised by trial counsel by a submission that effectively, by the time the trial was resumed before the jury, it had lost its momentum. He relied also on the separate matter of the juror who had plans to go overseas. 15 I am not persuaded that her Honour's discretion miscarried or that the trial, in the event, was unfair to the appellant. As the Crown Prosecutor in this Court has pointed out in written submissions, a number of steps were taken to overcome any difficulty which might have arisen from the delay in the trial. 16 As I have said, the jury requested, and were supplied with, the transcript of the whole of the evidence. It seems that the addresses of counsel were quite lengthy and her Honour took the course of summarising the evidence in considerably greater detail than she might otherwise have done. In addition, her Honour gave very strong warnings to the jury about the need to scrutinise the complainant's evidence with care and about the danger of convicting upon his evidence, together with the significance of the very long delay in complaint. 17 One of the specific matters raised is that the jury would have been unlikely to have recalled, after such a gap, their impression of the demeanour of the complainant. For myself, I do not see why that would be so. An impression of his demeanour, if it played any part in the jury's deliberations at all, would have been made at the time they saw and heard him, and I see no reason why that recollection would have been erased by the passage of about a fortnight before the trial resumed. 18 As to the matter of the juror who planned to go overseas, as I have said, the verdicts were in fact given in about the middle of the day before he planned to do so. I should add that, at the end of the summing up, her Honour assured that juror that his or her plans to travel overseas would not be prevented by the jury's deliberations. There was no record of any discussion before her Honour said that. I can only take it, however, that it was agreed that, if need be, the juror would be discharged if the jury were unable to reach a verdict before the anticipated time of departure. 19 There is ample authority in this Court that the decision of a trial judge on an application to discharge a jury is very much a discretionary one, and one with which this Court would not lightly interfere. That is partly an application of the normal principles governing appellate review of the exercise of a judicial discretion, and partly a recognition of the fact that the trial judge is uniquely placed to make that judgment in the light of the events as they have unfolded in the trial court. 20 As I have said, I am not persuaded that her Honour's discretion miscarried, or that, with the benefit of hindsight, it can be said that the appellant's trial was unfair. I would propose that the appeal be dismissed. 21 SHELLER JA: I agree. 22 ADAMS J: I also agree. 23 SHELLER JA: The order of the Court is that the appeal is dismissed. ********** 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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