Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Le v R [2012] NSWCCA 202 Hearing dates: 17 August 2012 Decision date: 14 September 2012 Before: McClellan CJ at CL at [1] Hall J at [2] R A Hulme J at [3] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - individual jurors - continuation of trial with reduced number of jurors JURY - the jury in criminal proceedings - general matters - discharge of individual juror - continuation of trial with reduced number of jurors CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - decisions of trial judge supported or not opposed by trial counsel Legislation Cited: Criminal Appeal Rules Jury Act 1977 Jury Amendment Act 2008 Cases Cited: BG v R [2012] NSWCCA 139 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 House v R [1936] HCA 40; (1936) 55 CLR 499 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 Category: Principal judgment Parties: Huu Hong Le (Applicant) Regina (Respondent) Representation: Counsel: Mr G Wendler (Applicant) Ms S Dowling (Crown) Solicitors: Audix Legal Solicitor for Public Prosecutions File Number(s): 2009/241755 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-12-10 00:00:00 Before: Sweeney DCJ File Number(s): 2009/241755 Judgment 1McCLELLAN CJ at CL: I agree with R A Hulme J. 2HALL J: I agree with R A Hulme J. 3R A HULME J: Huu Hong Le was found guilty by a jury of larceny and discharging a firearm with intent to resist arrest. He was sentenced to imprisonment for a total term of 7 years with a non-parole period of 5 years. 4I will refer to Mr Le as the applicant because leave to appeal is required. The contentions raised in this Court were never raised by the applicant's counsel at trial: r 4 Criminal Appeal Rules. Indeed, the decisions of the trial judge now the subject of challenge were either actively supported by the applicant's counsel or, at least, not opposed. Counsel in this Court did not appear at the trial. 5Before turning to the grounds of appeal it is worth observing the repeated disapproval expressed by this Court about appeals of this nature, often described as "armchair appeals". There are many statements to this effect. For example, Tobias JA, James and Howie JJ in R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 stated: [38] We take this opportunity for the Court once again to deprecate what has been referred to as an "armchair appeal" (see R v Fuge (2001) 123 A Crim R 310 at [40]), where counsel briefed on appeal takes points, often of a technical nature, without any apparent regard to the manner in which the trial was conducted by competent defence counsel and where an easy remedy would have been available at trial, had counsel believed that his or her client was prejudiced by what the trial judge said or failed to say. Once again, there is little if any regard to rule 4 of the Criminal Appeal Rules in raising such grounds of appeal, treating it as a technicality of little or no moment, notwithstanding repeated statements of this Court to the contrary: see for example R v King [2000] NSWCCA 507; the long line of authorities referred to in the judgment of Whealy J; R v Button and Griffin [2002] NSWCCA 159 per Heydon JA; and most recently R v Ita [2003] NSWCCA 174. 6There are three grounds of appeal: 1. There was a fundamental error of law going to the root of the trial process in that the trial judge embarked upon a process to discharge a juror before the discretion to discharge that juror was enlivened by s 53B(d) of the Jury Act 1977 (NSW) 2. In the alternative the trial judge erred in law when exercising the discretion to discharge a juror in the trial of the applicant pursuant to s 53B(d) of the Jury Act 1977 (NSW) 3. The trial judge erred in law when applying s 53C(1)(a)(b) of the Jury Act 1977 (NSW) to the continuation of the applicant's trial 7Given the nature of these grounds it is unnecessary to refer to the evidence or the facts underpinning the jury's verdicts. Rather, it is necessary to refer in some detail to the course of the trial. 8The trial commenced with the arraignment of the applicant and empanelment of the jury on Tuesday 17 August 2010. The jury were informed that the estimated length of the trial was three or four days. They were, however, also informed that the court would not be sitting on Friday 20 or Monday 23 August for reasons presently irrelevant. 9The Crown case proceeded on 17, 18 and 19 August, resumed on Tuesday 24 August and continued on 25 August. It was at this point, with the Crown case about to close, that counsel for the applicant foreshadowed that his client would be giving evidence. In the course of disclosing certain aspects of the evidence it was anticipated the applicant would give, it emerged that there had been a failure to put certain things to the complainant in cross-examination. It was resolved that the complainant should be recalled for further cross-examination. It then emerged that he was unavailable until the following Tuesday. 10There was discussion about the length of the trial and the Crown Prosecutor reminded the judge what she had told the jury about the initial estimate. Her Honour brought the jury in and explained the need to adjourn until the following Tuesday. She invited jurors to let her know if anyone had any difficulties with work or personal commitments in the next week. She subsequently announced that none of the jurors had a problem with the trial continuing in the following week but that there was a problem if it went beyond that (T325). 11The trial continued with the jury on Tuesday 31 August. The complainant and another witness were recalled and the Crown case closed. The defence case proceeded for the balance of that day and closed on the luncheon adjournment on Wednesday 1 September. Before taking the morning adjournment that day, the trial judge announced: HER HONOUR: Just in terms of timing, one of the jurors who indicated last week he had a problem if the matter went past Friday has raised that with the court officer again today. I don't think the trial will go past Friday ... (T445) 12Just after the luncheon adjournment that day the judge raised the issue again: HER HONOUR: Just before we continue, there's a note from the anxious juror who says he's due to be in Malaysia on Monday to teach a course. He's self-employed. Unless he can reassure his customers tonight that he will definitely be there on Monday, they're going to cancel the course; he will suffer a significant financial penalty and penalty to his reputation. Is there anything I can do for him? CROWN PROSECUTOR: I'm anticipating to be in address this afternoon. I think my friend is as well. PROVERA: Yes. CROWN PROSECUTOR: I'm quite happy to sit perhaps an additional half an hour this afternoon, or to start early tomorrow. HER HONOUR: Well, no, if you think you'll both be addressing this afternoon then we should send the jury [out] tomorrow. I'll tell him he'll be there. I mean, if worse come to worst and the jury are still out, we might have to face the issue of discharging him, but he has raised it fairly. PROVERA: Thank you. HER HONOUR: All right. (T465) 13When the jury returned to court, the judge sought to reassure them as follows: HER HONOUR: Just before we continue, one of you has written a note about a commitment you have on Monday, and I don't need to know who it is, but I understand you need to reassure your customers tonight that you will be there on Monday. You can do that. You will be there on Monday, whoever you are. I've just been talking to counsel. I'm confident on the basis of what they've told me that you will be going out to consider your verdicts tomorrow. Of course, once you retire it's a matter for you. There's no time pressure on you as to when you finish. But whoever that juror is, you will be where you need to be on Monday, so you can give your customer that reassurance. (T466) 14The defence case concluded that afternoon and the Crown Prosecutor addressed. On Thursday 2 September the trial proceeded with the closing address of the applicant's counsel and her Honour's summing up. The jury retired to consider its verdicts at 12:20pm. They were released just after 3:30pm and returned to continue their deliberations at 10am on Friday 3 September. 15A number of questions relevant to the jury's deliberations were received on the Friday morning. In the course of discussing them, counsel for the applicant raised the possibility of the juror with the commitment the following week experiencing some anxiety. There followed a discussion about what the judge should do. Reference was made to the need to comply with s 53B of the Jury Act 1977 in the event that discharge of a juror came to be considered. There was also reference by the Crown Prosecutor to the need to follow "a two step process". The judge acknowledged her understanding of such matters. The jury returned to court at 10:52am to receive her Honour's answers to various questions. 16In the course of subsequent discussion with counsel about one of the jury questions the Crown Prosecutor raised the following suggestion: CROWN PROSECUTOR: Your Honour my position is if the jury is still deliberating after lunch perhaps the matter should be raised then with them, there should be an assurance given that if they're likely to go into Monday there's been an indication that that will cause problems for that juror, that juror is welcome to come into court by himself and - so the matter can be sorted out. HER HONOUR: Hmm okay. So maybe two o'clock we should reconsider it? CROWN PROSECUTOR: Or some time after two o'clock? HER HONOUR: Sometime after two okay. PROVERA: Yeah I'd be asking for two your Honour - matter for you, matter for you of course your Honour. (SU 36 - 37) 17The jury returned at 11:45am to receive further directions concerning one of the earlier questions and retired to continue their deliberations a minute later. Just after the luncheon adjournment, at the suggestion of the Crown Prosecutor and counsel for the applicant, the judge brought the jury back in to allay any concerns they might have about the juror with the commitment the following week: HER HONOUR: Members of the jury, I have brought you in just to raise a matter with you. I do not know whether all of you know but one of you has a commitment on Monday which he raised earlier in the week and has to be there on Monday. And I said to you yesterday there are no time pressures on you and I just wanted to explain to you that you do not have to reach a verdict by four o'clock today so that your colleague can go to his commitment on Monday, because I have the power to release him and continue with the rest of you if you have not reached a verdict by four o'clock today. So I just wanted to let that person know that that is how he can meet his commitment and how the rest of you should not feel any time pressure. All right, so I will send you back to your room to continue thanks. (SU 38) 18The jury retired once again at 2:11pm. 19At some time around the middle of the afternoon the court reconvened and the judge announced that there was another question from the jury concerning an issue in the trial. There was also a note from the juror in question that was marked for identification 12. There is handwriting on the MFI tag which includes "14.45", presumably the time that the note was received. The note was in the following terms: Your Honour, Thank you for your willingness to release me this evening if our deliberation is not complete. I wasn't sure whether this would happen automatically now, so hence this request: I request to be excused from jury service as of 4 pm 3 -Sept-2010 in order to meet a pressing work commitment. Thank you. 20The following discussion occurred: HER HONOUR: The juror who has a commitment next week has written a note asking to be excused as of four o'clock this afternoon to meet a pressing work commitment so he's kind of - but there's a question from the jury ... [Discussion of the question from the jury took placed before the judge returned to the juror's note]. HER HONOUR: All right we'll bring them in and tell them that. And should we then deal with this man given the time 3.30? PROVERA: Yes. In fact I just raised it with my friend given the timing I think that's an appropriate time your Honour rather than wait 15 minutes. HER HONOUR: Okay, all right well I'll bring the jury in and tell them now, send them out and I'll have that man stay here. CROWN PROSECUTOR: Your Honour just before that's done should we deal with the juror first and excuse him and then send - and then you direct the jury that they can continue deliberating until four or we could send the rest of the jury home for the weekend if they'd prefer that course? HER HONOUR: I thought I should answer their question - oh I see you say they can't continue deliberating without him. What are you saying? CROWN PROSECUTOR: Well the way I look at it if we answer the question. HER HONOUR: Yes. CROWN PROSECUTOR: The jury can then continue deliberating but then we're taking out that juror from that additional deliberation. I'm just wondering whether or not that juror might've been the juror that had this question? HER HONOUR: I don't have any idea who has the question but if I take that juror out I would really discharge him as of now so they could continue deliberating if they wished until four. CROWN PROSECUTOR: Yes I just - in fact your Honour I don't think it really matters which way it's done-- PROVERA: No I-- CROWN PROSECUTOR: --perhaps if we answer the question first then we can deal with him. PROVERA: I don't think anything arises from it your Honour, matter for you of course. (SU 38-40) (Emphasis added) 21The jury returned to court at 3:30pm and the judge provided a response to their question. Having dealt with that, the following occurred: HER HONOUR: ... I will ask the one juror who has the commitment on Monday to either stay or come back in when the rest of you have left and I will just deal with his situation and then the rest of you can decide whether you want to go for the day or stay until four. So if you just wait nearby thanks. JURY RETIRED TO FURTHER CONSIDER ITS VERDICT AT 3.32PM HER HONOUR: Sir come into the witness box please, I just need to have you clarify your situation on oath. I do not need your name. JUROR, SWORN AT 3.32PM EXAMINATION BY HER HONOUR Q. All right now you've been a juror in this trial I think we're now at the end of week three and as I understand it you have a commitment to be in Malaysia on Monday? A. That's right. Q. And you raised this with me the other day and said you needed to confirm with your customers that you'd be there on Monday? A. That's right. Q. And you've done that? A. Yes. Q. And they're expecting you on Monday? A. Yes. Q. And so you would say that you can't continue to deliberate because your mind is really on the fact that you've promised to be somewhere on Monday? A. That wasn't quite the main point that I was putting forward for me. I have been somewhat distracted because of this but it's more the - I guess you could say the hardship and consequences of not going on Monday that I'm, that I've been concerned about. Q. Hmm and what are they, I know you've written me a note but can you just briefly summarise them? A. Sure. I'm self employed, I only get paid when I work and I teach IT courses around the Asia/Pacific region. In order to be here I've cancelled one course and therefore I lost a certain amount of money and if I was not - if I was here again next week that - I guess that loss would mount up and that's quite significant for me. HER HONOUR: Is there anything that counsel would like me to ask this gentleman? CROWN PROSECUTOR: No your Honour. PROVERA: No your Honour. HER HONOUR: Okay. All right. Thank you sir, would you just step outside with your fellow jurors and I will be back to you shortly, well in fact don't go back to the room just wait outside and I will be with you in a minute. THE WITNESS WITHDREW HER HONOUR: [Court officer] if perhaps you just stay in the corridor with that gentleman for a minute and we will just come and let you know. Just make sure no one else gets involved. Mr Crown? CROWN PROSECUTOR: Your Honour, my submission is that in view of his evidence that he is distracted from his deliberations and in view of the fact that the original estimate given was just one of four or five days and we are now in our third week, it is my submission that he falls within the ambit of s 53B(d) of the Jury Act and even after taking into account that the accused would be deprived of his right to trial by a jury of 12 persons, in my submission the appropriate order to make is to discharge this juror. If your Honour accepts that submission the next step in the process as I understand it is to go on and consider whether or not the trial should continue under s 53C. There is no bar to a trial proceeding with a jury of 11. There is no other reason that I can suggest that would justify the trial not proceeding. In my submission the trial should proceed with 11 jurors. HER HONOUR: Thank you. PROVERA: I don't wish to be heard. HER HONOUR: Okay. All right well I think that given this juror's evidence about his commitment and that it is distracting him and given that the estimate of the trial has exceeded what the jurors were told originally his ability to perform his functions as a juror are being affected and therefore I am of the view he should not continue to act as a juror, I should discharge him but as to the matters in s 53C, I am of the view that although Mr Le will then not have 12 jurors deciding or considering his charges that there is no reason why the trial should not continue with 11 jurors so I will order the trial is to continue with 11 jurors. So I will bring that one juror in and discharge him. Yes I will just get that man brought in and tell him and then I'll bring in the rest of the jury and then they might want to go home I guess. Just have a seat there sir in the jury box. I've decided to discharge you so thank you for the time and attention you've devoted to being a juror on the trial and you're now free to go. If you could just stay there shortly, I'll bring in the other jurors and tell them that and then the court officer might need to attend to some administrative matters with you before you actually leave, thanks. Can you take that gentleman out and then bring in the 11 jurors please. JURY RETURNED TO COURT AT 3.39PM HER HONOUR: Members of the jury I have discharged one of your fellow jurors who has a commitment on Monday because that was pressing on him and I have decided that the trial will continue with the eleven of you so you can continue your deliberations just the eleven of you. If you wish to go home now at twenty to four you can do that. If you wish to stay until 4 o'clock you can do that as well so I will leave that to you to decide. FOREMAN: We'll stay. HER HONOUR: Okay all right. Well I won't bring you back in then. I'll send you to the jury room and I will excuse as at four so at 4 o'clock you can go and then you - yes? FOREMAN: Does that mean now he's been discharged from now? HER HONOUR: Yes. FOREMAN: So he no longer can sit on a-- HER HONOUR: Yes, yes. So it's just the eleven of you from here on in. Okay. All right. FOREMAN: (Not transcribable). JURY RETIRED TO FURTHER CONSIDER ITS VERDICT AT 3.40PM (SU 41 - 43) (Emphasis added) 22The jury returned with verdicts of guilty at 3:50pm. (It was not contended that there was anything significant in the timing of the verdict in relation to any of the grounds of appeal.) Statutory provisions 23Part 7A of the Jury Act was inserted by the Jury Amendment Act 2008 and commenced operation on 1 July 2008. It contains 3 sections: s 53A is concerned with the mandatory discharge of a juror in certain circumstances; s 53B is concerned with discretionary discharge in certain circumstances; and if a juror is discharged, s 53C is concerned with the consequential need to consider whether the jury should be discharged as a whole or whether the trial should continue with a reduced number of jurors. 24The issues in this case concern ss 53B and 53C. Section 22 is also relevant. I set out below the relevant portions of each: 53B Discretionary discharge of individual juror The court ... may, in the course of any trial ... discharge a juror if: ... (d) it appears to the court ... 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. 53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If ... the court ... discharges a juror in the course of a trial ... the court ... must: (a) discharge the jury if the court ... is of the opinion that to continue the trial ... with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial ... continue with a reduced number of jurors. 22 Continuation of trial or inquest on death or discharge of juror Where in the course of any trial ... any member of the jury ... is discharged by the court ... under Part 7A, 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, ... and if the court ... orders that the trial ... continue with a reduced number of jurors under Part 7A. Submissions in relation to Ground 1 (discharge of juror before the discretion was enlivened) 25The argument for the applicant in relation to this ground was presented in written submissions in succinct terms. It was contended that the note from the juror indicated that he was able to perform his function as a juror until 4pm on the Friday upon which he was discharged. He was however discharged some twenty or so minutes before then and so the conditions giving rise to the discretion to discharge the juror in s 53B(d) had not arisen. On this basis it was submitted, "the premature discharge of the juror when there was no material before the court to enliven the court's discretionary power in s 53B(d) created a fundamental defect going to the root of the trial and created a miscarriage of justice." 26For the Crown it was submitted that the discretion to discharge the juror was enlivened by the history of concern in the latter days of the trial about the juror's commitments and his evidence that he was "somewhat distracted". It was also submitted that the reasons advanced by the juror (concern about being in Malaysia the following Monday) were not an improper basis for discharge. It is notable that the applicant does not suggest otherwise. It is only the time at which he was discharged that is the issue. Determination of Ground 1 27The contention that the judge could not discharge the juror prior to 4pm because he had indicated that he was able to perform his function as a juror until that time must be rejected. The juror had not said in express terms that he was so able until that time. Certainly that was the time he had nominated at which he sought to be excused. However, that did not put it beyond the trial judge's power to determine that prior to then there was a "reason affecting the juror's ability to perform the functions of a juror": s 53B(d). 28The contention that "there was no material before the court to enliven the court's discretionary power" must also be rejected. The judge had the juror's evidence. She also had the history of concern about the juror's commitment which included the trial judge referring two days earlier to him as being "anxious" about his commitment. The real question raised by the applicant is whether the judge incorrectly exercised her discretion. There is no merit in the contention that she did not have the power to do so because of a lack of "material". Submissions in relation to Ground 2 (error in the exercise of the discretion to discharge the juror) 29It was submitted on behalf of the applicant that the discretion of the trial judge to discharge the jury miscarried under House v The King principles: House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. It was submitted that her Honour's discretion miscarried "in a fundamental way because her Honour ignored or failed to take into account the juror's communication that he was capable of performing his function as a juror until 4pm that day". 30It was also submitted that the "juror in answer to the questions put by her Honour appeared to be saying his concern was an economic one, he never suggested that he could not function as a juror - at least until 4pm that day". 31The Crown's submissions were the same for this ground as for the previous ground. There was an evidentiary foundation for the discretion to discharge being exercised and it was open to her Honour to do so. Determination of Ground 2 32It is important to observe that it was not contended that the juror should not have been discharged because of his commitment overseas the following week. The argument was confined to aspects relating to the time at which the discharge occurred. 33Those parts of the applicant's submissions that concern what the juror had said about his capacity to perform his function as a juror must be rejected. The juror had not said, as was asserted on behalf of the applicant, "he was capable of performing his function as a juror until 4pm that day". His communications were confined to his desire to be released at 4pm so as to enable him to meet his overseas commitment the following week. 34Even if it can be inferred that the juror had indicated a capacity to perform his function until 4pm, this was not binding on the judge. The question whether a juror is able to perform his or her functions is to be determined by the trial judge, not by the juror him or herself. 35For the same reasons, the contention that the questioning of the juror was "narrow" and that he should have been asked whether there was any impediment affecting his ability to function as a juror until 4pm must be rejected. If this question had been asked and the juror responded affirmatively, it would not have bound the judge to accept the juror's opinion. 36These submissions for the applicant ignore the fact that his own counsel at trial positively supported the idea of dealing with the individual juror's situation immediately after answering the jury's question at 3.30pm (SU 40). It also ignores the fact that, after the judge's examination of the juror, she asked counsel if they would like her to ask anything further and the applicant's counsel replied, "No your Honour" (SU 42). These features indicate to me that the atmosphere at the trial was such that nobody thought that it was inappropriate to discharge the juror a relatively short time prior to 4pm and that nobody thought that the juror's ability to perform his functions was completely unaffected at any moment before that time. 37The contention that the juror said in his evidence that his concern was an economic one, and that he did not say that he could not function as a juror prior to 4pm, should also be rejected. This is partly because of the reasons set out in the preceding paragraphs and partly because it mischaracterises the evidence. The juror did refer to the "hardship and consequences of not going on Monday" but he also said that he had been "somewhat distracted because of this". 38The trial judge was entitled, indeed expected, to take into account more than what the juror said in his notes and in his evidence. She was required to consider the issue in the context of the trial as a whole. The critical features of that context included that: (a) it was 3.30pm on a Friday at the end of the third week of a trial originally estimated to run three or four days; (b) the jury had commenced their deliberations at 12.20pm the previous day; (c) anxiety had been expressed by a juror about being overseas the following Monday; and (d) the juror wanted to discontinue involvement in the trial by 4pm and had been assured that this would occur. 39In this context, I am not persuaded that by deciding to discharge the juror about 25 minutes before the juror had asked to be discharged the discretion in s 53(d) miscarried. 40Other considerations support the correctness of the decision to discharge. The juror had formally asked, seemingly at 2.45pm, to be excused at 4pm but he had not had a reply. As 4pm approached, the prospect of the juror being distracted, or causing distraction, must have been an increasing possibility. The juror's evidence itself confirmed a level of distraction. 41The jury had been together for the past three weeks, albeit not on every day. The judge had told them that if verdicts had not been reached by 4pm, the trial could continue without one juror. But as a matter of human nature, it might not have been an appealing prospect for the trial to conclude in the absence of one of their number. Such circumstances might give rise to a temptation to hasten to judgment. 42Whether the matters I have just mentioned were part of what her Honour considered in deciding to discharge the juror is unknown. Her Honour's reasons only disclosed that she took into account his evidence of being distracted and that she had concluded "his ability to perform his functions as a juror are being affected" (SU 43). I propose to say something more about the adequacy of her Honour's reasons later. But for now, it is sufficient to note that the circumstances surrounding the discharge of the juror support the decision. 43Another matter supporting the correctness of the judge's decision is that it was not only the judge, but counsel as well, who were alive to the atmosphere of the trial. It is not insignificant that trial counsel for the applicant: (a) agreed with the suggestion that the judge should deal with the situation of the juror at about 3.30pm; (b) made no suggestion that the juror should be examined further about his capacity to serve as a juror; and (c) did not wish to be heard in response to the prosecutor's submission that the juror should be discharged. 44I am not persuaded that the decision to discharge the juror involved a miscarriage of the judge's discretion. It was a decision that was well open to her. In fact, I do not believe that she could have done anything else. Submissions in relation to Ground 3 (error of law in ordering the continuation of the trial with a reduced number of jurors) 45Once a judge has decided to discharge a juror, s 53C requires the court to give separate consideration to whether or not the trial should continue with the remaining jurors. It was contended that the trial judge had incorrectly applied the provision. 46Reference was made by counsel for the applicant to the following passage in the transcript which I have already set out above but which is convenient to repeat: PROVERA: I don't wish to be heard. HER HONOUR: Okay. All right well I think that given this juror's evidence about his commitment and that it is distracting him and given that the estimate of the trial has exceeded what the jurors were told originally his ability to perform his functions as a juror are being affected and therefore I am of the view he should not continue to act as a juror, I should discharge him but as to the matters in s 53C, I am of the view that although Mr Le will then not have 12 jurors deciding or considering his charges that there is no reason why the trial should not continue with 11 jurors so I will order the trial is to continue with 11 jurors. So I will bring that one juror in and discharge him. Yes I will just get that man brought in and tell him and then I'll bring in the rest of the jury and then they might want to go home I guess. Just have a seat there sir in the jury box. I've decided to discharge you so thank you for the time and attention you've devoted to being a juror on the trial and you're now free to go. If you could just stay there shortly, I'll bring in the other jurors and tell them that and then the court officer might need to attend to some administrative matters with you before you actually leave, thanks. 47The first submission for the applicant was that her Honour had "misapplied the terms of s 53C by deciding there were no reasons not to continue the trial with 11 jurors and making an order within the terms of s 53C(d) and s 22 of the Act before actually discharging the juror". It was submitted that the discharge of the juror occurred when her Honour called the juror back into Court after the discussion that followed his sworn evidence and informed him, "I've decided to discharge you". It was submitted that her Honour had already by that time decided to continue the trial with a reduced number and made an order to that affect. Accordingly, it was submitted that her Honour had reversed the procedure in s 53C for the continuation of the trial with a reduced number of jurors. 48Alternatively, it was submitted that her Honour erred in her application of the provisions in s 53C "by not properly evaluating and identifying the risk factors relevant to the question of whether or not a substantial miscarriage of justice would be occasioned if the applicant's trial were to continue with a jury of 11 jurors". It was submitted, in effect, that her Honour's statement, that there were "no reasons why the trial should not continue with 11 jurors", did not properly fulfil her statutory function. 49It was the contention of counsel for the applicant that s 53C(1) speaks in terms of an "opinion". Therefore it "required identification and articulation of matters comprising reasons why there was not a risk of a substantial miscarriage of justice in continuing the [applicant's] trial with a reduced number of jurors". It was submitted the failure to fulfil this asserted requirement "precipitated a fundamental failure of procedure and thus a trial not according to law". 50The Crown's submission in response to the first point was that her Honour addressed the two issues she was required to decide separately and in the correct order. Formal discharge of the juror was not necessary before her Honour considered the second issue of whether to continue with a reduced number of jurors. 51In relation to the second point concerning an asserted failure to identify "risk factors", it was submitted for the Crown that not every ruling given in a trial must be accompanied by reasons. Moreover, even if there was an error in failing to give reasons, that will not necessarily amount to an error of law warranting the appeal being allowed. The Crown relied upon Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 and BG v R [2012] NSWCCA 139. It was submitted that the question is whether the decision to continue the trial with eleven jurors gave rise to a risk of a substantial miscarriage of justice. In other words, the relevant question for this Court in determining this ground of the appeal is whether the decision was the correct one, notwithstanding any inadequacy of reasons: Evans v The Queen at [246] - [247]: BG v R at [100] - [101]. 52It was also submitted that no "risk factors" had been identified that would have led her Honour to conclude that there was a substantial risk of miscarriage of justice if the trial continued. Counsel for the applicant at trial did not suggest any to her Honour. In fact, he expressed no opposition to the continuation of the trial. 53The Crown submitted that the trial judge's decision to continue the trial was correct, having regard to the late stage of trial at which the juror was discharged and the lack of opposition by the applicant to continuation. It was submitted that if the entire jury was discharged it would have the consequences that the entire trial would have to be re-run; the cost of the 12 days already occupied by the trial would be wasted; and the applicant, being refused bail, would likely remain in custody without bail for a longer period. Determination of Ground 3 54It was not contended for the applicant that the decision to continue the trial with a reduced number of jurors was wrong; simply that the process by which this decision was taken was incorrect. 55The importance of dealing separately with the two issues in Part 7A (discharge of juror and whether to continue with a reduced number of jurors) was emphasised in each of the judgments in Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99: Gleeson CJ and Hayne J at [6]; McHugh J at [26]; Kirby J at [67]; and Callinan J at [103]. 56As to the sequence in which her Honour dealt with the two issues, what occurred involved the following steps (contained all within about half a page of transcript (SU 43)): (1)The trial judge stated her opinion was that the juror's ability to perform his functions as a juror was being affected and that he should be discharged. (2)The judge then stated it was her opinion that despite the accused not having 12 jurors, there was otherwise no reason why the trial should not continue with 11, so "I will order that the trial is to continue with 11 jurors". (Emphasis added) (3)The juror was informed that he was discharged. (4)The judge then informed the remaining jurors "I have decided that the trial will continue with the eleven of you". (Emphasis added) 57Wu v The Queen was decided prior to the enactment of Part 7A, when the two issues were encompassed in s 22. Nothing presently turns upon this, except to understand why the reference to statutory provisions in the judgments is confined to s 22. It is important to note the practical consideration referred to by McHugh J: [30] Furthermore, although two stages are involved in the making of a s 22 order, the first stage cannot always be separated from the second stage. Before the judge discharges a juror for illness or "any other reason", the judge will usually need to consider whether exercising the power of discharge has implications for the continuation of the trial with the remaining jurors. In the case of the temporary illness of a juror, the proper course will ordinarily require the temporary adjournment of the trial rather than the discharge of the jury and the making of the s 22 order. 58The argument presented on behalf of the applicant depends upon a particular characterisation of the steps I have identified above (at [55]). In effect, it is contended that when her Honour said that the juror "should be discharged" (step 1), it did not constitute the discharge of the juror. That only occurred when the juror was informed that he was discharged (step 3). The statement that "I will order that the trial is to continue with 11 jurors" (step 2), and not the judge informing the remaining jurors that "I have decided that the trial will continue with the eleven of you" (step 4), represented the order made under s 53C. 59I cannot accept such a characterisation. I accept that, to some extent, there is a lack of clarity. But the reality is that two things were important; first, the judge regarded the two decisions as calling for separate consideration, and secondly, the second decision was only made after the first. 60I am satisfied that the judge gave separate consideration to the two issues and that her decision to continue the trial with a reduced number of jurors was taken only as a consequence of her decision to discharge the juror. If the judge had decided to discharge the juror because she had already decided to continue with 11 jurors, then error may have been established. But that is not what occurred. Alternatively, if she decided that the trial should continue with a reduced number of jurors as an automatic consequence of discharging the juror, error would have been established. Again, that is not what occurred. 61The fact that the two issues were dealt with in a "leapfrogging" fashion, as indicated by the four steps I have identified (above at [56]), does not mean that the two issues were elided or conflated, or that the second issue was decided before the first. 62The alternative submission advanced under this ground concerned her Honour's statement that she could see no reason why the trial should not continue with 11 jurors. It was contended that she should have articulated the "risk factors relevant to the question of whether or not a substantial miscarriage of justice would be occasioned" on the issue as to whether the trial should have continued. 63The judge referred to the applicant being deprived of 12 jurors. That was certainly an important matter that was stressed in the various judgments in Wu v The Queen. Her statement that "as to the matters in s 53C ... there is no reason why the trial should not continue with 11 jurors", I take to mean that she could not otherwise identify any reason why continuing the trial would risk a substantial miscarriage of justice. On forming such an opinion she was required to order the trial to continue: s 53C(1)(b). 64The Crown in this Court pointed to a number of factors militating in favour of the trial continuing with a reduced number of jurors (see above at [53]). When counsel for the applicant was pressed to articulate reasons pointing in the opposite direction he was unable to do so. 65My conclusion is that it has not been demonstrated that the decision of the trial judge to continue the trial with a reduced number of jurors was wrong. Adequacy of trial judge's reasons 66There was some discussion at the hearing of the application concerning the adequacy of the reasons disclosed by the trial judge. The relevant passages of the transcript have been set out above. Clearly, the reasons given were brief. The critical phase occurred at about 3.30 on a Friday afternoon. It was the second day of the jury's deliberations and the judge was unaware whether they would wish to sit on or resume their deliberations the following Monday. Overlaying this was a pressing need to deal with the concerns of an individual juror who could not continue beyond the Friday. Brevity of expression in these circumstances was understandable. 67It is important, however, to observe that the issues posed by ss 53A and 53B on the one hand and s 53C on the other are important and require separate consideration, as was pointed out earlier. Lengthy reasons for decisions made under these provisions, let alone formal judgments, will rarely be necessary. But it is nonetheless important that sufficient reasons are disclosed, so that the parties are aware of the bases of the trial judge's decisions and that this Court is not left to divine from the circumstances of the trial whether a decision was correct. The latter is, in part, because it is very difficult for this Court to infer much about the atmosphere of a trial from the pages of the transcript. Formal orders being announced with some clarity is also important. 68In BG v R [2012] NSWCCA 139 the trial judge had failed to make a separate order under s 53C to continue with a reduced number of jurors and no reasons were given. A juror was discharged and the judge immediately announced, "The jury will therefore continue as a jury of 11". Adamson J, with whom McClellan CJ at CL and McDougall J agreed, referred to the judgment of Heydon J in Evans v The Queen at [246] - [247] to support the proposition that a lack of reasons will not be determinative in an appeal of this kind. Rather, this Court must determine whether the continuation of the trial with a reduced number of jurors has given rise to a risk of a substantial miscarriage of justice. In other words, rather than this Court reviewing a primary decision, this Court was required, in effect, to determine the issue for itself. This is unsatisfactory. 69In BG v R, Adamson J determined that there had been no risk of a substantial miscarriage of justice. She added the following observations about the importance of trial judges giving reasons: [137] The trial judge's failure to address s 53C explicitly and separately from her decision to discharge a juror did not affect the result, since I have found that her Honour's decisions to discharge the juror and continue the trial with the remaining jurors were within a proper exercise of discretion. However, it is highly desirable that trial judges, when an occasion for the discharge of a juror arises, state not only the reasons for discharging a juror, or refusing to do so, but also the reasons for continuing the trial with the remaining jurors or discharging the whole jury. [138] Although this Court can, as it has done in the instant case, undertake the task itself of determining whether the decisions made by the trial judge are correct, or amount to a proper exercise of the discretion, it is preferable that the reasons for a trial judge's decisions on these matters are expressed. Not only do reasons assist in permitting the accused in particular to understand the basis of the decision, but they are, if expressed, available to this Court. In the absence of reasons this Court is left to infer from the circumstances of the trial what the reasons were, or might have been, if the correct question had been asked and the statutory provisions expressly addressed and considered. 70Earlier, in Wu v The Queen, Callinan J observed: [103] I need only make this further observation. It is appropriate that a trial judge, confronted with a situation in which he or she has to make a decision about a reduction in the number of jurors not do so hastily, without as full an inquiry as is practicable and reasonable, and without making explicit orders as s 22 requires, as to the reduction in number and the continuation of the trial with the reduced number. Adherence to such a procedure (which the Act demands) has the effect not only of ensuring an unambiguous record of what has taken place but also of focussing the trial judge's attention upon the necessity to weigh up whether a juror's or jurors' absence should require the trial to be aborted or whether it should continue with the reduced number. ... 71In the present case, the reasons of the trial judge were barely adequate. My view is that they were sufficient for this Court to understand the bases for her decisions. I fully appreciate the prevailing circumstances; they were not conducive to providing extensive reasons for the decisions. The fact that there was no opposition by trial counsel for the applicant probably encouraged an economical approach by the judge. And expansive reasoning is usually not required in relation to issues concerning the discharge of jurors, or the consequential continuation or termination of trials. But it would be useful for this Court if in the future a little more attention were given to announcing formal orders, and giving brief reasons for the conclusions that led to the making of such orders. Conclusion 72I am not persuaded that there is any merit in any of the proposed grounds of appeal. They were each technical and they ignored the practical realities of the trial. It is unfortunate that they were sought to be raised in the face of each of the decisions made by the trial judge either having the direct support of the applicant's counsel, or without his opposition. Orders 73I propose that leave to appeal be refused. ********** 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: 14 September 2012