Luland v R [2007] NSWCCA 64

New South Wales Court of Criminal Appeal

CITATION: Luland v R [2007] NSWCCA 64

HEARING DATE(S): 1 March 2007

JUDGMENT DATE: 16 March 2007

JUDGMENT OF: Sully J at 1; Bell J at 42; Hoeben J at 43

DECISION: Appeal against conviction dismissed

Crimes Act 1900 (NSW) LEGISLATION CITED: Jury Act 1977 (NSW) Criminal Appeal Act 1912 (NSW)

Wu v The Queen (1999) 199 CLR 99 CASES CITED: House v The King (1936) 55 CLR 499 Veen v The Queen [No. 2] (1988) 164 CLR 465

PARTIES: Bernard George Luland Regina

FILE NUMBER(S): CCA 2006/2495

COUNSEL: R. Herps - Crown A. Cook - Appellant

SOLICITORS: S. Kavanagh - Crown M. Pikett - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0088

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 17 March 2006 - amended 24/4/06

IN THE COURT OF CRIMINAL APPEAL 2006/2495

SULLY J BELL J HOEBEN J

16 March 2007 Bernard George LULAND v REGINA Judgment 1 SULLY J: In December 2005 the appellant, Mr. Luland, stood trial in the District Court at Nowra before his Honour Judge Knight QC and a jury of eleven. The appellant stood trial upon an indictment containing three counts. 2 Count 1 charged an offence of aggravated break and enter contrary to section 112(2) of the Crimes Act 1900 (NSW). 3 Count 2 charged an offence of assault occasioning actual bodily harm in contravention of section 59(1) of the Crimes Act. 4 Count 3 and Count 4 each charged an offence of robbery while armed with an offensive weapon in contravention of section 97(1) of the Crimes Act. The jury found the appellant guilty as charged on each of the four counts in the indictment. The appellant was sentenced subsequently to various terms of imprisonment but the details are not now of any moment. 5 The appellant now appeals against his convictions. There is one ground of appeal namely: "The trial miscarried as a result of a decision by the learned trial Judge to order pursuant to section 22 of the Jury Act that the trial of the appellant would continue with a jury of eleven." 6 The nature of the issue thus tendered for the decision of this Court makes it unnecessary to embark upon any extensive canvass of the competing cases at trial. It will suffice to quote the brief summary of the prosecution case at trial, as provided in the written submissions lodged on behalf of the appellant: "2. The appellant was convicted of 4 offences all said to have been committed on 11th December 2004. These offences were aggravated break enter and steal, contrary to s.112(2) Crimes Act , assault occasioning actual bodily harm on Cecil Gash contrary to s.59(1) Crimes Act and 2 offences of armed robbery, contrary to s.97(1). The victims were respectively Cecil Gash and his wife, Linnett Gash. 3. Mr and Mrs Gash operated a supermarket at Bawley Point on the South Coast of New South Wales. On Saturday 11th December 2004 Mrs. Gash worked at the supermarket until 7.00 pm. Mrs. Gash then placed the takings of the supermarket in a tin and went home. Mr. and Mrs. Gash locked the supermarket before leaving. Their address was 152 Malibu Drive. Mrs. Gash made dinner and she and her husband ate in the dining room. Sometime after dinner Mrs. Gash heard a funny sound, which she described as a screeching or moaning sound from outside the house. 4. Mrs. Gash's husband went to investigate. As he went to open the door two men entered and pushed him backwards. It was the Crown case that the first of the two men was the appellant. The second man went towards Mrs. Gash and held a knife to her neck. A demand was made for her money and handbag. Whilst this was happening the first man was assaulting Mr. Gash, having pushed him into a chair, he struck him in the face about half a dozen times with the handle of the knife he was holding. Mr. Gash's face was covered in a significant amount of blood. He was ordered to take his hands out of his pockets. 5. The second man pulled Mrs. Gash up to her feet and made a demand as to where the money was. Mrs. Gash pointed to a floral bag on the breakfast bar. There was a tin containing money in that bag. The man said that was not enough money. He pushed her down the hallway in the direction of her bedroom to get her handbag. He held a knife to the centre of her back and she could feel it. Once in the bedroom he demanded the handbag. Mrs. Gash handed it to him. Inside the bag were personal items and several hundred dollars in cash. 6. The first man robbed Mr. Gash of his wallet. It contained personal items, including a driver's licence, Medicare card and about $250 in cash. After this he was forced down the hallway of the house into the second bedroom. Mr. Gash was covered with a doona and a threat was made that if (he) moved he would be killed. 7. Mrs. Gash escaped and went next door to get help. The intruders left. Mrs. Gash made a triple O call in which she nominated the appellant as having been the first intruder. The amount of money obtained as a result of the crimes committed was substantial. The cash in the tin (the items stolen in the break and enter offence) was just under $20,000. The money robbed of Mr. and Mrs. Gash respectively was $250 and about $350." 7 The relevant procedural history is, of course, important in the adjudication of the sole ground of appeal. It will suffice, once again, to quote the succinct summary given at paragraphs 8 through 11 of the appellant's written submissions: "8. The matter had been attended by procedural difficulties. The history of the matter is set out below: 15th August 2005 The appellant was arraigned before his Honour Judge Garling DCJ. A jury was empanelled. It was later discharged when it became known that one of the jurors knew the appellant's family. The matter was adjourned to 17th August 2005 for trial. 17th August 2005 The appellant was arraigned and a trial commenced. It proceeded without difficulty. The jury was unable to reach a verdict and on the 23rd August 2005 was discharged. The matter was stood over for trial on 25th August 2005. 25th August 2005 On the appellant's behalf an application was made to vacate the trial date for the purpose of attempting to enhance a security surveillance video of the IGA Supermarket. The purpose of this was to observe images, if any, of the appellant in that store on the 11th December 2004. The application was granted and the matter was stood over for trial to the next sittings at the Nowra District Court. 28th November 2005 The appellant was arraigned before his Honour Judge Knight DCJ. A jury was empanelled and the matter was stood over to the following day. 29th November 2005 The trial was adjourned due to the illness of Mrs. Gash who was in the middle of cross-examination. 29th November 2005 The trial was again adjourned for the same reason. (sic)