District Court New South Wales Medium Neutral Citation: R v Jenkins; R v Clayton [2013] NSWDC 208 Decision date: 26 September 2013 Before: Marien SC DCJ Decision: The application to discharge the jury is refused. Catchwords: CRIMINAL LAW - procedure - juries - application to discharge the jury - jury separation - jury separated without an order being made under s 54(1)(b) of the Jury Act 1977 - whether separation without an order is an irregularity going to the root of the trial process Legislation Cited: Jury Act 1977 Cases Cited: Maher v The Queen (1987) 163 CLR 221 R v Ketteridge [1915] 1 KB 467 R v Phan [2001] NSWCCA 29 R v Radju (2001) 53 NSWLR 471 Tennant v R [2006] NSWCCA 208 Wilde v The Queen (1988) 164 CLR 365 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown) Christopher Jenkins (Accused) Luke Clayton (Accused) Representation: Mr D Woodbury (Christopher Jenkins) Ms D Hawkins (Luke Clayton) Mr R Kimbell (ODPP) File Number(s): 2012/00129210 2012/00129297 Judgment 1HIS HONOUR: Yesterday at 11:25am the jury in the trial retired to commence its deliberations after a trial which has lasted some four weeks. During the course of the day yesterday I received no communication from the jury and accordingly at about 3:45pm I requested that arrangements be made for the court to be reconvened so that I could advise the jury that they could either sit on to deliberate or, if they wished, go home. 2Evidence has been led this morning that I came onto the bench and first spoke at 4:02pm yesterday afternoon. The evidence from Sheriff's Officer Hart establishes that four seconds before I uttered a word on the bench the jury was recorded on CCTV exiting the Court from the Castlereagh Street exit. There is no issue, as we played back what I said when I came on the bench, and that was that I informed counsel that I proposed to tell the jury that they could either sit on deliberating or go home. 3I asked the court officer who has been with this jury almost entirely for the four week trial to bring the jury to the courtroom. Some minutes later the court officer returned to the court to inform me that the jury had left. Enquiries revealed and evidence was called from another court officer this morning that when the court officer who has been with the jury for the trial had actually left the area where juries are accommodated in the jury rooms to come down to the Court for the purpose of me coming on the bench at 4pm that he saw a member of the jury come out of the jury room and request his phone. He said he believed it was a man and that the juror said words to the effect "We want our phones, we are ready to go or we can go now." 4I accept that there was a misunderstanding by that court officer that he understood that the judge presiding in the trial in which the jury was involved had directed that the jury could leave for the afternoon. I also accept his evidence that he was not aware that the jury was actually deliberating. When juries are deliberating, a sign is placed, I am told, on the door of the jury room. However, the officer said that he was unable to see the door to the jury room from where he was talking to the jury member. 5There is no issue that the jury separated yesterday afternoon without an order being made by me, either express or implied, under s 54(1)(b) of the Jury Act 1977. The sub-section provides that the jury may, if the court so orders, be permitted to separate at any time after they retire to consider their verdicts. In other words, a jury can only separate after they retire to consider their verdicts if the court so orders. I had not made such an order when the jury separated or left the courthouse yesterday. However, in my view, the statement that I made when I came on the bench and first spoke at 4:02pm, again, as I say, it was some seconds after the jury left, that I proposed to allow the jury to go home if they wished, was an implied order that the jury could separate if the jury so wished. However, it was not made before the jury separated. 6The Crown has referred to some recent cases in the court where there was separation by a jury without an order being made under s 54(1)(b) and the trial judge made a retrospective order under s 54(2). Sub-section (2) provides that an order under s 54(1)(b) may be made even if the jury is not present when the order is made. I do not agree with the interpretation of the Crown that that sub-section provides the power for a judge to make an order following upon a jury leaving the courthouse. In my view, sub-section (2) is to be interpreted in the following way; that is, that the judge can make an order for separation under s 54(1)(b) without the jury actually being present in the courtroom. But in my view, the jury must still be in the courthouse or in the precincts of the court. That view is confirmed by what was said by Mr Graham West, Parliamentary Secretary, in the Second Reading Speech in reference to adding subs (2) to s 54. In Parliamentary Hansard, 31 October 2003, at p 4546 Mr West on behalf of the Attorney General, Mr Debus, said: "Schedule 5 [of the bill then under consideration] amends the Jury Act 1977 to make it clear that a court may make an order for the separation of the jury after it retires even if it is not present when the order is made." 7Mr West then said: "By "separate" I am referring to the jury finishing for the day and leaving the court or jury room. This amendment prevents the delays and inconvenience caused by moving the jury backwards and forwards from the courtroom to the jury room." 8In my view I cannot make a retrospective order under s 54(2). 9In these circumstances, Ms Hawkins on behalf of the accused Mr Clayton, and Mr Woodbury on behalf of the accused Mr Jenkins, make an application that I discharge the jury. The Crown opposes the application. As I understand the application by Ms Hawkins and Mr Woodbury, it is on the basis that a procedural irregularity has occurred which is so fundamental and so serious that it goes to the root of the trial and, accordingly, the trial process is now a nullity and the jury must therefore be discharged. 10Various authorities were referred to in the course of submissions. In the case of R v Radju (2001) 53 NSWLR 471 the judge had not made an express order that the jury could separate before the jury, which was deliberating, had left the court for the day. However, the Court of Criminal Appeal found that the trial judge had, prior to the jury separating, made an implied order that they could separate. The Court rejected an argument by the appellant that the failure of the trial judge to make an express order that the jury could separate was a procedural error going to the root of the trial process. It is important to note, however, that the Court did not express an opinion as to whether if the jury had separated without an order of the trial judge, either express or implied, under s 54(1)(b) of the Jury Act, that that would have constituted a procedural error going to the root of the trial process. 11In the later case of R v Phan [2001] NSWCCA 29 the Court of Criminal Appeal applied Radju. In that case the claim was made that the trial judge allowed the jury to separate without making an express order, although the trial judge clearly indicated to the jury that they could leave for the day but no express order was made. The Court followed the reasoning in Radju and found that his Honour had made an implied order. In that case again the appellant argued that the failure of the trial judge to make an express order under 54(1)(b) constituted a procedural irregularity going to the root of the trial process. Again the Court of Criminal Appeal expressed no opinion as to whether if the jury in that case had separated in the absence of an express or implied order to separate under s 54(1)(b) that that irregularity in that particular case would have constituted a procedural irregularity going to the root of the trial. 12Phan refers to a number of cases that have been cited in argument by Ms Hawkins and Mr Woodbury. The first is the case of R v Ketteridge [1915] 1 KB 467. That was a case where the common law applied so that the requirement was that the jury not be allowed to separate at all whilst deliberating. The jury expressed a desire to consider their verdict. The court bailiff was sworn and proceeded to take the jurors to the jury room. One of the jurors, however, departed alone. The juror left the building and was absent for fifteen minutes before rejoining the jury. It was held that in the circumstances the whole proceedings were abortive and that the conviction returned following the jury verdict must be quashed. However, as was pointed out in Phan, the irregularity occurred in circumstances where there was a clear breach of an order that had been made by the trial judge. 13Maher v The Queen (1987) 163 CLR 221 was a case where a failure to comply with a mandatory provision governing the constitution and authority of the jury meant that a conviction found on the verdict could not stand. The relevant failure concerned the addition of counts to the indictment after the jurors had been sworn, resulting in a situation in which the jury was asked to try issues on counts which they had not been sworn to try. The High Court said at pp 233 to 234: "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, 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 authorized 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." 14I emphasise that the High Court said that the failure to comply with provisions of the Jury Act and the Code "may" render a trial a nullity. The High Court went on to 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 in 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." 15As to what constitutes a fundamental irregularity that goes to the root of the trial, the High Court in Wilde v The Queen (1988) 164 CLR 365 found that the proviso in s 6(1) of the Criminal Appeal Act 1912 has no application to an irregularity that has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. The Court said that if that has occurred then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso. The majority said, at p 373: "There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial." 16I have considered all the circumstances in which this irregularity occurred in the trial. As I indicated to the jury this morning it was a grave irregularity that they separated without an order being made by me, express or implied. However, what I must determine is whether this is an irregularity which is, to use the words of the High Court in Wilde, such a departure from the essential requirements of the law that it goes to the root of the proceedings, or, as it was stated by the High Court in Maher, that there was a procedural irregularity which constituted "a failure to observe the requirements of the criminal process in a fundamental respect." In my view, the irregularity that has occurred in this trial cannot be characterised in such a way. 17In forming that view, I take into account the circumstances in which the irregularity occurred. In my view, what I said on the bench some four seconds after the jury actually left the court house for the day can be construed as an implied order to separate, and, in any event, I was going to allow the jury to separate if the jury wished to do so. 18In relation to ensuring that the jury was in no way contaminated in the crucial stage that the jury is now in, that is, in deliberation, I reminded the jury almost every day of this four week trial, at the end of each day's proceedings, to continue to abide by my direction not to discuss the case with anyone other than themselves in the privacy of the jury room until such time as they deliver their verdicts and they are discharged. Clearly, the jury would have understood that that direction extended to and applied during the period of their deliberations. 19Further, there is nothing before me to indicate that there may have been some interference with the jury. Further, it would be a most exceptional case in which a jury would not be allowed to separate when in deliberation. In my view, this is not an exceptional case. Further, the trial has been in progress now for some four weeks. 20Further, this is not a case where a jury deliberately disobeyed an order that I have made. I accept that what occurred in this case was a misunderstanding, certainly on the part of the court officer in allowing the jury to leave and possibly on behalf of the jury as well in leaving without returning to court. 21The view that I have formed that no miscarriage of justice has occurred in this case such as to render the trial unfair is fortified by the decision of the Court of Criminal Appeal in Tennant v R [2006] NSWCCA 208, where, although the factual situation was quite different, the Court proceeded on the basis of making an assumption that two of the jurors separated whilst the jury was deliberating in the absence of an order by the trial judge under s 54(1)(b). Two of the jurors asked to leave the jury room, as I understand it, to go outside the courthouse to have a cigarette. James J said, at [42], that in his view it was by no means clear that what happened should be regarded as having amounted to a separation of the jury within s 54 of the Jury Act. However, his Honour went on to say at [43]: "Even if what happened in the present trial did amount to a separation of the jury, and hence a contravention of section 54 of the Jury Act, I do not for a combination of reasons consider that it gave rise to a miscarriage of justice." 22His Honour referred to a number of factors, some of which do not apply in this case, for example, that a sheriff's officer had accompanied the two jurors who had left the jury room. His Honour also referred to the fact that the jury had been directed not to discuss the case unless all twelve of them were present, and the trial judge was entitled to proceed on the assumption that individual jurors had complied with the direction, so that neither the two jurors who were smokers or the ten jurors who had remained in the jury room had discussed the case during the separation of the jury. In my view, I can proceed on the same basis, given that I have regularly instructed the jury not to discuss the case with anyone other than between themselves in the privacy of the jury room until such time as they deliver their verdicts. I am entitled, in my view, to assume that the jury would have complied with that direction when they left court yesterday. James J also referred to the consideration that the judge had said that had he been requested to make an order to allow those jurors to separate, he would have made such an order. The same applies in this case. 23The Court of Criminal Appeal found no miscarriage of justice had occurred in those circumstances having assumed that there had been separation of the two jurors without an order being made under section 54(1)(b) of the Jury Act. The High Court in Wilde has made it clear that if there is a procedural irregularity which is so serious and which goes to the root of the trial, then the proviso cannot be applied. The Court of Criminal Appeal in Tennant appears to have applied the proviso, and in my view the Court can been taken to have determined that the irregularity was not, in all the circumstances of that case, an irregularity going to the root of the trial. I am of the same view in this case and, accordingly, I refuse the application to discharge the jury. ********** 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: 23 October 2013