Reported Decision: 237 FLR 12673 NSWLR 134[2009] ALMD 5956199 A Crim R 151 New South Wales Court of Criminal Appeal CITATION: PETROULIAS v R [2007] NSWCCA 134 HEARING DATE(S): 11 May 2007 JUDGMENT DATE: 16 May 2007 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 48; Hoeben J at 83 DECISION: By majority; 1. Appeal upheld; 2. The judgment of Johnson J of 10 May 2007 is vacated; 3. The jury empanelled in the trial of R v Petroulias be discharged. CATCHWORDS: CRIMINAL PRACTICE - trial by jury - trial of indictable offence against the Commonwealth - Commonwealth Constitution s 80 - tried according to law - requirements of criminal process in a fundamental respect - decision to discharge juror - decision to discharge jury - decision to proceed with fewer than twelve jurors - discharged "for any other reason" - whether miscarriage of power or discretion - nullity - persons disqualified or ineligible - verdict not affected or invalidated - statutory construction - mandatory provisions - Jury Act 1977 (NSW) ss 19, 22, 73 Sch 1 Crimes Act 1914 (Cth); LEGISLATION CITED: Jury Act 1977 Criminal Appeal Act 1912 Judiciary Act 1903 (Cth) Brownlee v The Queen (2001) HCA 36; 207 CLR 278 Cheatle v The Queen (1993) HCA 44; 177 CLR 541 Crane v Public Prosecutor (1921) 2 AC 299 Hill v Yates (12 East. 229) Johns v The Queen (1979) 141 CLR 409 Katsuno v The Queen (1999) 199 CLR 40; 109 A Crim R 66 Maher v The Queen (1987) 163 CLR 221; 25 A Crim R 261 CASES CITED: R v Brown and R v Tran (2004) 148 A Crim R 268 R v Dempster [1924] SASR 299 R v Hall [1971] VR 293 R v Short (1898) 15 WN (NSW) 140 R v Smith [1954] QWN 49 Swansson v R; Henry v R [2007] NSWCCA 67 Tuckerman v Tuckerman (1932) 32 SR (NSW) 220 Wilde v The Queen (1988) 164 CLR 365 Wu v The Queen (1999) HCA 52; 199 CLR 99 PARTIES: Nikytas Nicholas Petroulias (Appl) The Crown (Cth) FILE NUMBER(S): CCA 2007/1152 R F Sutherland SC/G K Walsh (Appl) COUNSEL: P Hastings QC/C P Hoy (Crown Cth) M Sexton SC/J Caldwell (Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General for the State of New South Wales) Coadys Solicitors (Appl) SOLICITORS: Commonwealth Director of Public Prosecutions (Crown) Crown Solicitors Office of New South Wales (Attorney-General for the State of New South Wales intervening) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2002/93 LOWER COURT JUDICIAL OFFICER: Johnson J LOWER COURT DATE OF DECISION: 10 May 2007 IN THE COURT OF CRIMINAL APPEAL 2007/1152 McCLELLAN CJ at CL SIMPSON J HOEBEN J WEDNESDAY 16 MAY 2007 PETROULIAS, Nikytas Nicholas v R (Cth) Judgment 1 McCLELLAN CJ at CL: The appellant is being tried before a judge and jury in the Supreme Court on an indictment which alleges (a) one count of defrauding the Commonwealth contrary to s.29D Crimes Act 1914 (Cth) ; (b) one count of agreeing to receive a benefit on an understanding that the exercise by him of his duty as a Commonwealth officer would be affected contrary to s.73 Crimes Act 1914 (Cth) ; and (c) one count of publishing to a person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose, an offence under s.70 Crimes Act 1914 (Cth) . 2 The trial which is taking place is a retrial. At the appellant's first trial the jury was unable to agree and was discharged. 3 The jury at the present trial was selected on 26 March 2007 and the trial commenced. 4 On Monday 7 May (which was day 25 of the trial) a member of the jury failed to attend court and inquiries were made. Those inquiries revealed that the juror had been arrested over the week end of 5-6 May 2007 and charged with offences of resist police, driving recklessly, driving an unregistered motor vehicle, driving whilst disqualified and exceeding the speed limit by more than 45 kph. Following his arrest he was refused bail. 5 When this information became available to the trial judge further enquiries were made and it was ascertained that the juror had been disqualified from driving by a court order for a period of four years on 12 April 2002 with further periods of disqualification being ordered by courts for other offences. The juror has been disqualified from driving until 24 April 2015. 6 Section 6(a) of the Jury Act 1977 provides that a person is not qualified to serve as a juror if that person is presently disqualified. The list of disqualified persons is provided by Schedule 1 to the Act and includes a person who is currently bound by an order including an order disqualifying the person from driving a motor vehicle (Schedule 1 clause 3(a)). Accordingly, the absent juror was at all times a person disqualified and accordingly not qualified to serve as a juror. 7 Following the disclosure of these matters to the parties the appellant moved for the discharge of the jury. The Crown opposed that course and submitted that the trial judge should discharge the absent juror but order that the trial continue with a jury constituted by the remaining 11 jurors in accordance with s 22 of the Jury Act. The trial judge declined to take the course urged by the appellant and made the following orders: "(a) The juror whom I have described as the absent juror is discharged, under s.22(a) Jury Act 1977 ; (b) I order, under s.22(a) Jury Act 1977 , that the remaining eleven jurors be considered as remaining, for all purposes of the trial, to be properly constituted as the jury; (c) Until further order of the Court, I make an order prohibiting publication of the matters revealed in the course of these proceedings on 8, 9 and 10 May 2007 concerning the absent juror, the reasons for his absence from this trial and the reasons for my order discharging him under s.22(a) Jury Act 1977 . " 8 Following the delivery of his Honour's judgment senior counsel for the appellant indicated that he had instructions to appeal to this Court pursuant to s 5F of the Criminal Appeal Act 1912. He asked the trial judge for a certificate pursuant to s 5F(3)(b) of the Act. The trial judge determined to grant the certificate and as a consequence the appellant may appeal to this Court as of right. 9 The appellant's argument raised for consideration whether in the events that have happened the appellant was being tried by a jury as required by s 80 of the Constitution. For that reason notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were issued. Only the State of New South Wales sought to intervene in the proceedings. The appellant's argument 10 The appellant submitted that by reason of the fact that one of the members of the jury was disqualified from serving as a juror the trial had miscarried and the jury must be discharged. Section 19 of the Jury Act provides that the jury "is to consist of 12 persons returned and selected in accordance with this Act." It was submitted that persons referred to in s 19 must be persons who are not disqualified or ineligible to serve. Accordingly, if, as happened in the present case, a person who is disqualified is returned and selected a fundamental breach of the Jury Act has been committed. 11 It was submitted that that breach cannot be cured by the discharge of the disqualified juror. Although s 22 provides that in the event that a juror is discharged "whether as being through illness incapable of continuing to act or for any other reason" and if the judge so orders, the jury subject to certain conditions, remains for all the purposes of the trial, it was submitted that the section does not contemplate the jury remaining when it had included from the outset a person or persons who were not lawfully a member of it. It was submitted that although the jury comprised 12 persons it was not constituted as required by law and s 22 could not operate to allow it to remain. The respondents' submission 12 The respondents submitted that s 22 would allow the discharge of the disqualified juror and permit the trial to continue with a jury of 11. It was submitted that the proper understanding of s 22 was informed by s 73. Section 73(a) provides that the verdict of a jury shall not be affected or invalidated by reason only: "(a) that any member of the jury was disqualified from serving as a juror or ineligible to serve as a juror." 13 It was submitted that the legislature had accordingly recognised that a trial may take place when through inadvertence a member of the jury was disqualified from serving but had clearly intended that if that event should occur the verdict could not later be challenged. It was submitted that in these circumstances it can be comfortably inferred that the legislature intended that if it was discovered during the trial that a juror was disqualified s 22 could be utilised to remove the juror without affecting the lawfulness of the trial. The appellant's response 14 The appellant responded by submitting that s 73 was a significant intrusion into the common law which adopted a strict approach to the essential elements of a jury trial, including the selection and empanelling of the jury. It was submitted that s 73 must be strictly construed and, although it would operate to save the verdict, it could not operate to validate a trial where there was a material defect in the constitution of the jury. The appellant accepted that there were evident policy reasons why the legislature should provide that if a trial has concluded and a verdict has been entered, be it acquittal or conviction, the law should preclude a challenge to it. However, when the opportunity is available to remedy the defect before the trial has been completed it was submitted that the court is required to discharge the jury to enable the accused to be tried according to law. Discussion 15 The origins of trial by jury have been considered by the High Court on a number of occasions (see Wu v The Queen (1999) 199 CLR 99 esp Kirby J at 111 ff Callinan J at 132-133; see also Cheatle v The Queen (1993) 177 CLR 541 at 550-552). From the time orthodox juries were introduced to New South Wales the relevant statutes provided for a jury comprised of twelve persons. The common law did not provide for a judge to discharge an individual juror although the entire jury could be discharged in a "case of evident necessity." 16 The Jury Act was amended in 1929 to empower a judge to discharge up to two jurors and order that the trial continue. The Jury Act 1977 continued that position. 17 As Kirby J observed in Wu at [46] s 22 of the Act does not expressly confer on the judge a power or discretion to discharge a juror. This power derives from the inherent or implied powers of the particular court. However, if the judge orders the discharge of an individual juror s 22 is available so that in the appropriate circumstances a judge is not obliged to discharge the entire jury, but may order that the trial continue with less than 12 jury members. 18 Section 22 is in the following terms "Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below 10, (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months, (b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8, or (c) in the case of a coronial inquest, the number of its members is not reduced below 4, and if the court or the coroner, as the case may be, so orders." 19 The question in this case is whether the power in s 22 is available when the jury empanelled for a trial was comprised of at least one person who was disqualified and that person has been discharged. 20 Section 19 of the Jury Act provides that in the Supreme Court the jury "is to consist of 12 persons returned and selected in accordance with (the) Act." The significance of that requirement cannot be understated. As the statutory enactment of the common law position, which had prevailed in England for hundreds of years, it lies at the heart of our system of trial by jury. 21 There have been a number of instances where a failure to comply with the legislation providing for the selection of jurors has been found to result in a "departure from the essential requirements of the law that it goes to the root of the proceedings" (Wilde v The Queen (1988) 164 CLR 365 at 373). In each of these cases the accused was convicted and the court intervened to quash that conviction. Sometimes in these circumstances a trial has been referred to as a "nullity" although care must be exercised in the use of that expression. The practical effect may be confined to the fact that the conviction must be set aside in the event of an appeal: see Crane v Public Prosecutor (1921) 2 AC 299 and the discussion in Swansson v R; Henry v R [2007] NSWCCA 67. 22 In Tuckerman v Tuckerman (1932) 32 SR (NSW) 220 the Full Court cautioned against the granting of new trials where irregularities were found in the empanelling of the jury. Halse Rogers J referred to Hill v Yates (12 East. 229) where Lord Ellenborough CJ expressed the view that if, notwithstanding that there was an irregularity, no identifiable injustice was done, it was a matter for the discretion of the trial judge as to whether the jury should be discharged and an appeal court should not intervene. 23 In Tuckerman, although the jury had been struck "from properly qualified jurors", the identified irregularity was that there was an excessive number of names of prospective jurors in the box from which the jurors' names were drawn by the associate. The court described this as a "mere irregularity" and there being no prejudice said that "we are not prepared to say that such an irregularity is of such importance that subsequent proceedings are to be regarded as having taken place … coram non judice." 24 In R v Smith [1954] QWN 49 a trial was regarded as a "nullity" because a challenge for cause had been wrongly determined by the judge and not by the jurors. In R v Hall [1971] VR 293 the trial judge directed the jury to try a challenge for cause when the judge himself was required by statute to try that challenge. The verdict was set aside. In R v Short (1898) 15 WN (NSW) 140 a juryman took ill and the remaining jurors were discharged but did not leave the jury box. Another juror was called and sworn but the other 11 were not resworn. The conviction was set aside. In R v Dempster [1924] SASR 299 a juror was chosen and empanelled but was not sworn. The trial proceeded and the jury returned a verdict. Before the trial judge had passed judgment the difficulty with the juror was discovered. The judge declined to pass judgment and ordered that the record should be amended so that all entries subsequent to the plea of not guilty up to and including the verdict should be expunged. 25 Johns v The Queen (1979) 141 CLR 409 concerned the situation where an accused person himself challenged a prospective juror but his counsel, without consulting the accused, informed the trial judge that there was no challenge. The High Court determined that the trial had miscarried and quashed the conviction. 26 In Maher v The Queen (1987) 163 CLR 221; 25 A Crim R 261 two charges were added to the indictment after the jury had been sworn. The jury was not resworn and the appellant was convicted on one of the added charges. It was determined that there had been a failure to comply with mandatory provisions and the conviction on the added count was set aside. 27 The High Court delivered one judgment saying, inter alia: "The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory. … A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor (UK) [1921] 2 AC 299)." 28 Mindful of the complexities in the concept of "nullity" the court said: "In any event it involves such a miscarriage of justice as to require the conviction to be set aside." 29 In Maher (at p 234) the court went onto say: "The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing on an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect." 30 In the time available to this Court no authority dealing with circumstances similar to the present case has been identified. However, in R v Brown and R v Tran (2004) 148 A Crim R 268 this Court considered the Jury Act in circumstances where a person became a member of a jury although they had mistakenly attended court on a day other than that provided in the summons to attend. Unbeknown to anyone that person became a member of the jury, although they were not a member of the panel summoned to attend on the day appointed for the trial. Accordingly, the juror was not a member of the panel provided for the accused's trial. 31 This Court held that there had been a failure to comply with mandatory provisions of the Jury Act and the empanelling of the jury was invalid and ineffective and accordingly the trial was a nullity. The court did not accept an argument that the verdict could be saved by s 73(b) and the convictions were quashed. The question of whether the juror could have been discharged and an order made allowing the trial to continue pursuant to s 22 did not arise and was not considered. 32 Further significant statements of present relevance were made by the High Court in Katsuno v The Queen (1999) 199 CLR 40; 109 A Crim R 66. The problem in that case arose from the fact that the Director of Public Prosecutions was provided with information concerning persons listed on the jury panel at a time other than provided by the statute. A majority of the High Court held that the unlawful supply of such information did not vitiate the trial. Relevant statements of principle in that decision include: · "the failure to observe mandatory provisions relating to the constitution and authority of the jury" are failures "to observe the requirements of the criminal process in a fundamental respect" ([35]) · "a conviction simply cannot stand if the trial process is flawed in a fundamental respect." ([35]) · There will be a failure to observe the requirements of the criminal process in a fundamental respect if there has been a failure to comply with a mandatory provision relating to "the constitution and authority of the jury." ([41]) · Not every legislative provision is mandatory. However, provisions relating to the summoning and number of jurors are mandatory. [41]-[42] · In Maher, Short and Dempster there was non-compliance with legislative or mandatory procedures which resulted in a person or persons sitting on the jury when not entitled to do so. In those circumstances there has been a relevant fundamental failure in the trial process. [43] 33 In the present case there has been a failure to comply with the Jury Act and although twelve members were sworn only eleven were qualified to serve on the jury. In these circumstances, but for any statutory provisions, this Court would conclude that s 19 had not been complied with and accordingly the trial involved a miscarriage of justice and any conviction would have to be set aside. Furthermore if, as has happened, the present irregularity was identified in the course of the trial, the judge would have no alternative but to discharge the disqualified juror. At common law that would have led inevitably to the discharge of the entire jury. 34 Although s 19 requires a jury of twelve the Act does not mandate that the jury's verdict will only be valid if returned by a jury of that number. Section 22 of the Act provides that the trial judge may order that when a juror has been discharged the other jurors remain for "all the purposes of that trial." Although s 22 refers to jurors who are incapable through illness of continuing to act it also expressly contemplates, without further elaboration, that the power may be exercised when a juror has been discharged "for any other reason." 35 The High Court considered s 22 in Wu. In that case the juror was discharged as being unwell. Although the legitimacy of that decision was debated in the High Court the exercise by the trial judge of the power or discretion provided in s 22 was also considered. 36 Gleeson CJ and Hayne J said at at [21]-[22]: "It may be accepted that a criminal trial by jury in New South Wales must begin before a jury of twelve. At common law if a juror died or was taken ill a fresh jury had to be sworn Halsbury's Laws of England ,1st ed (1917) Vol 18, para 623, although it seems that sometimes the eleven remaining jurors were re-empanelled and a fresh juror sworn in the place of the disabled juror R v Beere (1843) 2 Mood & R 472 [174 ER 353]. But the whole purpose of s 22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. That is, there can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings. In this case it is not shown that the trial judge erred in discharging the juror. There being no attack on the decision to proceed before the jury constituted by the remaining jurors, it is not necessary to examine that decision. Nevertheless, the cause for discharging the juror relating only to that juror and not affecting in any way the capacity of the remaining jurors to perform their task, there is no basis for doubting that it was appropriate to proceed as the trial judge did." 37 Wu stands as authority for the proposition that when tried for a State offence, if the relevant circumstances arise and a proper decision is made pursuant to s 22, although the jury may be reduced below 12 persons contrary to s 19, any verdict which is returned will be valid. In the case of a Commonwealth offence, s 80 of the Constitution does not require that the verdict be returned by all of the original twelve jurors (Brownlee v The Queen (2001) 207 CLR 278). Accordingly, if a juror misbehaves or is incapable of continuing to act for relevant reasons in the course of the trial for the Commonwealth offence, although that juror may be discharged, it would not follow that the entire jury must be discharged. This may be contrasted with the position when a State Act provides for a verdict by a majority of the members of the jury. In those circumstances the statutory provision is of no effect, s 80 of the Constitution requiring that a verdict of guilty may only be entered on the unanimous decision of all members of the jury. (see Cheatle v The Queen (1993) 177 CLR 541). 38 From the preceding discussion it is apparent that s 22 is a significant intrusion into the right to trial by jury provided by the common law. It also operates to modify the otherwise mandatory requirements in s 19. However, it is not the only statutory intrusion of present relevance. Section 73 provides: "The verdict of a jury shall not be affected or invalidated by reason only: (a) that any member of the jury was disqualified from serving as a juror or ineligible to serve as a juror, (b) of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act, (c) that any juror was misnamed or misdescribed (where there is no question as to the juror's identity)." 39 Although s 73(b) and (c) are important s 73(a) is of greater consequence. If a disqualified or ineligible person has been included in a jury roll and has been empanelled as a member of the jury, any verdict returned by that jury is not "affected or invalidated." It is apparent that the legislature took this course out of a recognition that the preparation and maintenance of the roll was a complex task and that the presence of persons on it who were disqualified was almost inevitable. A person who, when first included on the roll may have been under no disqualification, could become so without recognising the consequence for the jury roll. If a verdict could be challenged and set aside in those circumstances considerable cost and inconvenience could be caused to both the person tried and to the State. It may be readily inferred that it was to avoid these difficulties that the section was enacted. 40 It would be surprising if in these circumstances the power in s 22 was confined in the manner contended for by the appellant. However, there is force in the submission that, because s 73 operates to modify the operation of the statute which otherwise requires a jury comprised of persons who are not disqualified or ineligible, it should be strictly construed. I also accept that because it says nothing about the discharge or otherwise of the jury if the problem is discovered in the course of the trial it is not of direct relevance to the construction of s 22. Nevertheless it confirms that the legislature was concerned that because the disqualification and ineligibility provisions were complex, and likely to be breached, the cost and inconvenience if verdicts could be set aside were unacceptable. 41 Although the common law provided for trial by a jury of 12 jurors the composition of the jury and the criteria by which the eligibility of potential jurors is determined is now provided by the State Jury Act. To my mind when the High Court speaks of "mandatory provisions" relating to the "constitution and authority of the jury" there is no reason to exclude s 22 from these provisions. Both s 19 and s 22 are to be found in Part 4 of the Act. The effect is that although the legislature has expressly provided that a jury must comprise twelve persons who are not disqualified a lawful verdict may be returned by a jury of less than 12 in circumstances falling within s 22 and provided that section is complied with. 42 It is the legislature in New South Wales which has determined that certain persons should be disqualified from being a member of a jury. Apart from a person in the circumstances of the "absent juror" a lengthy list of persons is disqualified or ineligible. It includes a person who is unable to read or understand English and persons who are unable because of sickness, infirmity or disability to discharge the duties of a juror (Schedule 2). It is not hard to imagine persons in either of these categories ending up on a jury. Persons who cannot read English commonly seek to mask their difficulties out of embarrassment. I cannot accept that the legislature did not intend that if a person with these difficulties found their way onto a jury and the difficulty was identified during the trial, particularly at a late stage of the trial, s 22 would not be available so that the juror could be discharged and the trial continue to a verdict. 43 The view I have reached in relation to s 22 is reinforced, although not conclusively, by s 73(a). The legislature recognised that on occasions persons who are disqualified or ineligible will become members of a jury and has legislated to preserve a verdict returned by such a jury. In these circumstances there is little justification for confining the operation of the words "for any other reason" to exclude the exercise of the power in the present circumstances. There would be no justification, either of policy or necessary construction, to exclude the discharge of a juror who, being disqualified, was discharged for that reason. 44 I appreciate that I have earlier referred to various decisions where a failure to observe a provision of the statute in relation to the constitution of a jury has caused the jury's verdict to be quashed. In each of the cases the "problem" was not discovered until after the trial had concluded and in no case was a provision, such as s 73, available to protect the jury's verdict from a successful challenge. Each of these decisions reflects a determination by the courts to ensure that where there is a defect in the constitution of the jury or its process, by reason of a failure to comply with the Act, a verdict cannot stand. 45 However, in Wu the High Court accepted that s 22 could operate to vary the otherwise mandatory requirements of s 19. Furthermore, the High Court in Brownlee concluded that s 22 was not incompatible with s 80 of the Constitution. If available to authorise a jury verdict returned by less than twelve jurors I can see no reason why s 22 should not be available in the present case. 46 Apart from the submission that the power provided by s 22 was not presently available no challenge was made to the trial judge's consideration of whether to exercise the power. In the circumstances of this trial, which is a retrial of a complex series of charges which has already proceeded for a number of weeks, the reasons which his Honour gave for the exercise of the power under s 22 are compelling. 47 In my opinion the appeal should be dismissed. 48 SIMPSON J: Pursuant to a certificate issued under s 5F(3)(b) of the Criminal Appeal Act 1912 by Johnson J on 10 May 2007, the appellant appeals against an order of his Honour made on the same day. The order appealed against was made under s 22 of the Jury Act 1977. The substance and effect of the order is that a trial then in progress proceed with a jury of 11 members. 49 Since dictating these reasons, I have had the opportunity of reading in draft the judgment of McClellan CJ at CL. His Honour proposes that the appeal be dismissed. I have come to a different view. History 50 The appellant is charged with three counts of offences against the Crimes Act 1914 (Cth). On 26 March 2007 a jury was empanelled and a trial began. It had an estimate of four months' duration. It proceeded, with one hiccup, until 7 May. A number of important Crown witnesses have completed their evidence in chief and cross-examination. 51 On 7 May it was discovered that one member of the jury had, on 12 April 2002, and other occasions thereafter, been disqualified by court order from driving a motor vehicle. By s 6 and Sch 1 of the Jury Act the existence of such an order carries a further disqualification: disqualification from serving as a juror. 52 Johnson J was then called upon to decide what course to take. He determined (i) to discharge the juror and (ii) to proceed with a jury of 11. It is the latter decision that is the subject of the present appeal. 53 On behalf of the appellant it was submitted that proceeding with the trial with a jury of 11 members was not open to his Honour. Two strands of the argument were advanced: (i) that s 80 of the Constitution of Australia mandates that trial of indictable offences against laws of the Commonwealth be by jury, and that, implicit in that mandate is a further mandate that the jury, at least at the commencement of the trial, be constituted by 12 qualified individuals; that is, that an essential feature of the "jury" envisaged in s 80 is that it be composed of that number of jurors; (ii) that, in any event, the terms of the Jury Act do not permit, in these circumstances, the trial to proceed. 54 The first strand of the argument raises a question under the Constitution and, accordingly, notices to the Attorneys-General of the States, Territories, and the Commonwealth were issued under s 78B of the Judiciary Act 1903 (Cth). Only the Attorney-General for the State of NSW opted to participate in the appeal. 55 The second strand of the argument involves the construction of the Jury Act and is not dependent upon constitutional issues or questions. 56 I will return in due course to the constitutional issue. I am satisfied that the appeal turns upon the construction of certain provisions of the Jury Act. They are s 6 and Sch 1, and ss 19, 22 and 73(a). It is convenient to set out the relevant portions of those sections here. " 6 Persons not qualified or liable to serve as jurors A person is not qualified or liable to serve as a juror if that person is, for the time being: (a) disqualified from serving as a juror, being a person referred to in Schedule 1 … Schedule 1 Persons disqualified from serving as jurors 1 … 2 … 3 A person who is currently bound by an order made in New South Wales or elsewhere pursuant to a criminal charge or conviction, not including an order for compensation, but including the following: (a) … an order disqualifying the person from driving a motor vehicle, (b) … (c) … 19 Number of jurors in criminal proceedings The jury in any criminal proceedings in the Supreme Court or the District Court is to consist of 12 persons returned and selected in accordance with this Act. 22 Continuation of trial or inquest on death or discharge of juror Where in the course of any trial … any member of the jury dies or is discharged by the court … whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial … properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below 10, (ii) … (iii) … (b) … (c) … and if the court … so orders. 73 Verdict not invalidated in certain cases The verdict of a jury shall not be affected or invalidated by reason only: (a) that any member of the jury was disqualified from serving as a juror or ineligible to serve as a juror, (b) of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act, (c) that any juror was misnamed or misdescribed (where there is no question as to the juror's identity)." 57 Trial of criminal charges by jury is an ancient part of the criminal justice system in all states and territories of this country. It has evolved over the years and centuries: see Wu v The Queen [1999] HCA 52; 199 CLR 99; R v Brownlee (1997) 41 NSWLR 139 at 142-144. 58 Historically, a jury was composed of 12 persons. Absent statutory intervention, a trial could not proceed with fewer than 12 jurors. The power (or discretion) to discharge a single juror and allow the trial to proceed with the remainder derives (in part, by necessary implication only – the power or discretion to discharge a single juror is not explicitly spelled out) from s 22. That the power or discretion exists to continue a trial with a jury made up of fewer than 12 jurors cannot be doubted. This is explicit in the terms of s 22. It applies equally to trials conducted in NSW courts for offences against Commonwealth law: R v Brownlee (2001) HCA 36; 207 CLR 278. 59 The basis upon which a decision to discharge a single juror may be made is as wide as it can be possibly be – for incapacity caused by illness "or for any other reason". Here, the reason is as compelling as it can possibly be: "the juror" was disqualified from serving. He ought never to have been empanelled. Indeed, his name ought not to have been on the jury roll: see Jury Act, s 14. That, however, is not the present issue. 60 A decision under s 22 involves not one, but two, steps: the decision to discharge the single juror, and the decision (which must be the subject of an order) that: "… the jury shall be considered as remaining for all the purposes of that trial … properly constituted …": see Wu (supra) The present issue concerns whether it was open to the trial judge to make that further order. 61 I have come to the conclusion that it was not. Section 19 is explicit in its terms: a jury in a criminal trial is to consist of 12 persons returned and selected in accordance with the Jury Act. This jury was not returned and selected in accordance with the Jury Act. It included one member (purported member) who was disqualified from serving. The trial process was flawed from the outset. Can s 73(a) save the trial? 62 Only one argument can avail the Crown, in its support of the decision of the trial judge. It is that s 73(a) is to be read as including, not merely the preservation of a verdict in which a disqualified person participated, but also the preservation of an unconcluded trial subject to the same defect. This is an argument that found favour with Johnson J. I respectfully disagree. In my opinion s 73(a) cannot be read as going so far. Section 73(a) is, in my opinion, a quite extraordinary provision. It overrides the entitlement of an accused person to the verdict of a jury constituted in accordance with the requirements of the Jury Act – that is a jury from which are excluded all persons who were disqualified from serving or ineligible to serve as jurors. Because of its extraordinary nature it ought not to be interpreted as going beyond its terms. Johnson J applied the well-known maxim "the greater includes the lesser" to reach a contrary view, that is, that s 73(a) denotes an intention on the part of the NSW legislature to preserve a trial in which the defect in the jury constitution is discovered before verdict. 63 I acknowledge the practical benefit and attractiveness of this argument. Discharge of the disqualified person could be seen to achieve, in substance, what the legislature sought to achieve by the disqualification provisions – that is, that no disqualified person will participate in the verdict. 64 However, that does not overcome the problem that the explicit requirement of s 19 has not been met: that is, that the jury be returned and selected in accordance with the provisions of the Jury Act. That is, in my opinion, a mandatory requirement. Section 73(a) cannot, in my opinion, be broadened to incorporate a concept that simply is not present. 65 In enacting s 73(a) (and, indeed, the other sub-paras of s 73) the legislature turned its mind to the consequences of a disqualified or ineligible person finding his or her way onto a jury. It cannot have been blind to the possibility that the defect or disqualification would have been discovered prior to verdict. Yet it opted to make no equivalent provision to cover that circumstance. 66 In my opinion, to excuse non-compliance with a mandatory or fundamental requirement concerning the composition of the jury would require express statutory provision. There is no such provision. 67 I have considered whether s 22 is adequate, even without s 73(a), to permit the course taken by Johnson J. (This, as I understand it, is the approach taken by the Chief Judge.) I am satisfied that it is not. That is, largely, because of the terms of s 19. Section 22 is predicated upon the jury having been returned and selected in accordance with the Jury Act. The reasons for discharge that it envisages are open-ended, but do not, in my view encompass the circumstance that one purported member of the jury was not qualified to serve. 68 The view to which I have come is in accord with observations made by members of the High Court. In Maher v The Queen [1987] HCA 31; 163 CLR 221, in considering an irregularity in a trial of offences against both Queensland and Commonwealth law, the High Court said: "The provisions of the Jury Act [the Jury Act 1929-1981 (Q)] and of the Code [the Criminal Code (Q)] which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s 604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorised by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor [[1921] 2 AC 299]. In any event it involves such a miscarriage of justice as to require the conviction to be set aside." 69 In Katsuno v The Queen [1999] HCA 50; 199 CLR 40 (a case the facts of which have no bearing on the present case), Gaudron, Gummow and Callinan JJ said: "At one level, the decisions in Maher and Johns [ Johns (Roger) v The Queen (1978) 141 CLR 409] are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the Court in Maher , they are concerned with 'failure to observe the requirements of the criminal process in a fundamental respect of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect." If a conviction following trial flawed in a fundamental respect cannot survive, then, axiomatically, it is not open to a judge to decide to proceed with the trial after the defect is discovered. 70 On this basis the appeal should be allowed. The constitutional issue 71 Section 80 of the Australian Constitution provides as follows: "80 The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed …" 72 By s 68 of the Judiciary Act the laws of States or Territories concerning, inter alia, the trial and conviction on indictment of persons charged with offences against the law of the Commonwealth apply to the conduct of trials of those offences. The Jury Act applies to the conduct of the present trial. 73 In Cheatle v The Queen [1993] HCA 44; 177 CLR 541 the High Court held, however, that a provision of the Juries Act 1927 (SA), which authorised majority verdicts in certain circumstances in trials conducted in that State, nevertheless did not authorise majority verdicts in trials of offences against Commonwealth law. That was because unanimity was an essential feature of trial by jury at the time of the adoption of the Constitution and that was not amenable to modification by State statute. This does not mean that, in order to comply with the "essential" requirements of s 80, a jury must consist of 12 members. In Brownlee the Court held that s 22 of the Jury Act authorised reduction of the numbers of members of the jury to 10, not only in respect of trials of offences against state laws, but also of charges brought under Commonwealth laws. 74 This was held to be not inconsistent with the requirements of s 80. Some reservations were expressed concerning whether a further reduction to fewer than that number might exceed the bounds permitted by s 80. (It was because of the decision in Brownlee that the argument advanced on behalf of the appellant had to recognize that the proposed "essential feature" (that the trial commenced with a jury of 12) was so limited – Brownlee precludes an argument that s 80 envisages a verdict of a jury of 12. 75 The question posed in the majority judgment (Gaudron, Gummow and Hayne JJ) was: "… whether laws in the terms of s 22(a)(i) … of the Jury Act are compatible with the command in s 80 of the Constitution." or what was encompassed by: "… the essential features of a trial by jury." as mandated by s 80. 76 The consequence of the decisions in Cheatle and Brownlee is that unanimity is an essential requirement; that the verdict be that of a jury composed of 12 members is not. 77 Nevertheless, counsel who appeared for the appellant sought to persuade the Court that "the essential features of a trial by jury" include 12 members (at the outset of the trial). The argument depended upon the fact (which is clearly correct) that the appellant's trial, while it had the appearance of commencing with 12 (qualified) jurors, in fact commenced with only 11, because one was disqualified from serving. 78 Brownlee persuades me that the fundamental premise of the argument is wrong. A jury in a Commonwealth trial may be made up of such numbers (at least, provided it is not less than 10) as the local law provides. If a state Jury Act provided for juries made up of 10 persons, or of 14 persons, there would be no inconsistency with the requirements of s 80. The flaw in the present trial lies not in any departure from constitutional requirements, but in the departure from the standards prescribed by NSW statute. There is no merit in the constitutional argument. 79 I would nevertheless, for the reasons I have given above, allow the appeal. 80 That raises the question what orders this Court ought to make. The orders sought on behalf of the appellant are: "1 That judgment (No 17) of Johnson J of 10 May 1007 be set aside. 2 That the jury be discharged. 3 That a new trial be ordered. 4 Such other orders as the Court sees fit." 81 Section 5F(5) provides for the powers of this Court following an appeal under s 5F: it is in the following terms: "(5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against." 82 Accordingly, I propose that this Court make the following orders: (1) The judgment of Johnson J of 10 May 2007 is vacated; (2) The jury empanelled in the trial of R v Petroulias be discharged; 83 HOEBEN J: I agree with Simpson J and the orders which her Honour proposes. 84 I also agree with McClellan CJ at CL that s 22 of the Jury Act 1977 has a wide application except that for the reasons given by Simpson J it cannot apply to the facts of this appeal. By way of illustration, I see no reason why s 22 could not save a trial where a person was empanelled as a member of a jury and after commencement of the trial but before verdict became disqualified. ********** 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.