Phan v R [2018] NSWCCA 225

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Phan v R [2018] NSWCCA 225 Hearing dates: 14 February 2018; 20 August 2018; Written Submissions 3 October 2018 Date of orders: 12 October 2018 Decision date: 12 October 2018 Before: Hoeben CJ at CL at [1]; Price J at [2]; Fullerton J at [200] Decision: (1) Appeal upheld.

(2) The appellant's conviction and sentence are quashed.

(3) List the case for mention at the Sydney District Court on 26 October 2018 at 9.30am Catchwords: CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – "partial" Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of co-accused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter

CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror's note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of co-accused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Criminal Code (Cth), ss 11.1, 11.5, 307.5 Judiciary Act 1903 (Cth), s 68 Juries Act 2003 (TAS), s 43 Jury Act 1977 (NSW), ss 22, 53B, 53C, 55F, 56 The Commonwealth Constitution, s 80 Cases Cited: BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Filipou v The Queen (2015) 256 CLR 47; [2015] HCA 29 House v The King (1936) 55 CLR 499; [1936] HCA 40 Potter v The Queen [2007] EWCA 2485 R v Godson (1975) 1 WLR 549 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Category: Principal judgment Parties: Tri Thanh Phan (Appellant) Regina (Respondent) Attorney General for the Commonwealth (First Intervenor) Attorney General for New South Wales (Second Intervenor) Representation: Counsel: T Game SC and L Hutchinson (Appellant) W Abraham QC and M Kalyk (Respondent) S Donaghue QC and J Stellios (First Intervenor) M Sexton SC SG and C Winnett (Second Intervenor)