SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  The appellant was charged with the murder, on 14 June 2003, of David John Coddington.  He was convicted of manslaughter, and sentenced to seven years imprisonment with a recommendation for consideration for parole after three years.  He appeals against his conviction.

2. The first and second grounds of appeal are as follows:

“1.That the learned trial Judge erred in law in failing to discharge the entire jury and selecting a new jury having regard to the circumstances which led to juror number four (4) being excused and having regard to the fact that no evidence had been led at the trial;

2.               That the learned trial Judge erred in law in allowing the trial to continue with eleven (11) jurors instead of twelve (12);”

3. After the empanelment of the jury, and at the conclusion of the Crown prosecutor’s opening, the learned trial Judge informed counsel, in the absence of the jury, that one of the jurors had told the bailiff that counsel for the defendant, Mr Gundelach, had been defence counsel in another case in which that juror’s daughter had been the complainant. The bailiff confirmed that the juror had raised that matter in the presence of the other jurors. The juror was then brought into court, by herself. She said that the circumstance would not affect her judgment, and said she had not discussed the matter to any extent with the other jurors. Mr Gundelach later confirmed that he had acted at the earlier trial.

4. Defence counsel applied for the discharge of the jury. After some discussion, her Honour said:

“Well, it is just a bit of a practical toss up, I suppose.  We haven’t got very far so it would not be the end of the world to start again … The other thing then is we would have to go on with 11 and run the risk that somebody else could drop out.”

5. The Crown prosecutor suggested there would be no difficulty commencing with a new jury the following day. He said:

“There’s merit of proceeding with a regularly empanelled jury and there is merit in starting again tomorrow.”

The prosecutor then mentioned the situation of two witnesses who were present at court.  One was a butcher from Hervey Bay who needed to be back as soon as possible.  The other had taken a day off work to be at the trial to give evidence that day.  He thereby implied they would be inconvenienced were the trial to be postponed, although he in no sense pressed the matter, or presented it as a matter of real significance.

6. Her Honour then indicated she intended taking this course:

“What I’m going to do … is get (the juror) back again and ask her again if she can confirm she hasn’t spoken about the substance of that case, and then I will get the balance of the jury in and check whether anybody has any difficulties.  If they don’t, I’m going to go ahead.  I think it is not really something that should occasion the discharge of the jury.”

7. Proceeding that way, the judge discharged the particular juror under s 56 of the Jury Act 1995 (Qld), and went on with the trial with the jury of 11 members.

8. Section 56 provides:

“(1)  If, after a juror has been sworn –

(a)it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial; …

the judge may, without discharging the whole jury, discharge the juror.”

9. Section 57 provides:

“(1)If a juror … is discharged after a trial begins, and there is no reserve juror available to take the juror’s place, the judge may direct that the trial continue with the remaining jurors.

…

(3)The verdict of the remaining jurors has the same effect as if all the jurors had continued present.”

10. It is not suggested there was insufficient reason, in terms of s 56(1)(a), for the discharge of the juror who was discharged. That was plainly justified on the basis that notwithstanding the juror’s own belief in her capacity to act impartially, it may have been perceived she may be affected, in her approach to this case, by the circumstance that the current defence counsel was in the position of challenging her daughter as complainant in the other. The challenge pursued now hinges on her Honour’s decision to proceed with the jury of 11.

11. Mr Byrne QC, who appeared for the appellant, referred to what was said in R v Roberts [2005] 1 Qd R 408, 413 (per Cullinane J, with whom McPherson JA and White J agreed):

“In Cheatle v R (1993) 177 CLR 541 the High Court, when considering whether the constitutional right of trial by jury contained in s 80 of the Commonwealth Constitution permitted the taking of a majority verdict as provided for by legislation of a State in the case of a federal offence emphasised the historical importance of the right to a unanimous verdict of a jury of 12.  Put in the negative, that is the right not to be convicted except by a unanimous verdict of a jury of 12.

Section 56 of the Jury Act (which has counterparts in other Australian jurisdictions) obviously qualifies this right.  However such a power, should be exercised only where the circumstances clearly call for its exercise.”

12. Mr Byrne then submitted as follows:

“On a charge of murder, any ‘right’ to not be convicted other than by a unanimous verdict of 12 is at its zenith … [W]here the trial could have begun with an unblemished jury of 12 the next day and where such a course was sought by the appellant’s counsel, and seen as meritorious by Crown counsel, the failure to so proceed (in that way) was a miscarriage of justice.”

13. On the other hand, considerations of convenience and delay plainly can be relevant to the exercise of the discretion arising under s 57. In Wu v R (1999) 199 CLR 99, 106, Gleeson CJ and Hayne J said:

“Delay in a trial can work hardship to an accused as well as to witnesses and to jurors … delay in the trial of any accused leaves the accused uncertain of his or her fate … And the courts cannot and must not shut their eyes to the consequences of delay upon others – not only to witnesses and jurors but also to all others who seek access to the courts and cannot have their cases tried because of what is happening in cases that are being tried.  The fact that the juror was absent … meant that the trial would be delayed.  If the trial did not go ahead, the delay would affect the accused, the witnesses who would otherwise have given their evidence and the other members of the jury.  It would also have delayed the start of the trial of some other accused waiting for trial (perhaps on bail, perhaps remanded in custody).  All of those considerations, taken together, could properly found ‘any other reason’ for discharging the absent juror.”

14. I refer to the matter of convenience because her Honour’s effective ruling on the matter followed closely after the prosecutor’s impliedly raising inconvenience to the two intended witnesses.

15. Her Honour did not articulate reasons as such for the course she intended following, although the considerations which motivated her can to an extent be gleaned from her discussion with counsel. I note however these observations of Callinan J in Wu (p 134):

“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 (the section) 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 focusing 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.”

16. Mr Byrne queried whether the learned judge clearly addressed the two issues which arose: first, whether there was reason to discharge the particular juror; and second, whether the trial should continue with the remaining 11 jurors. See Wu, p 107 para [26].  It is however obvious her Honour answered both questions in the affirmative.

17. But Mr Byrne submitted that in the speedy resolution of the matter, her Honour may not, for example, have adverted, or adverted sufficiently, to the primary desirability, especially with its being a trial on a charge of murder, of proceeding if possible with a jury of 12 members. See Wu p 106 para [18], p 107 para [26], p 108 paras [28], [29], p 113 para [44], p 115 para [47], p 117 para [49].

18. In furtherance of a contention that the appellant should not in this case have been deprived of a trial before a jury of 12 members, Mr Byrne pointed to the arguable complexity of the medical evidence, and to the feature that the jury deliberated for a substantial period (approximately 22 hours) prior to her Honour’s offering further guidance as to how they might proceed (cf. Black v R (1993) 179 CLR 44), after which they deliberated for a further two hours before delivering verdicts.  He relied on these circumstances to support a contention the appellant should have had the potential benefit of the deliberation of a full complement of 12 jurors – where that could, with relative ease, have been secured. 

19. Mr Rutledge, who appeared for the respondent, emphasized the circumstance that the learned judge is very experienced in the criminal law, as are both counsel who appeared before her, such that the importance of proceeding with a jury of 12, if possible, would have been obvious to all.

20. It is nevertheless unfortunate that her Honour was not referred by counsel to the High Court’s decision in Wu.  As will emerge, one surmises that had counsel reminded her Honour of the thrust of Wu, the result would have been different.

21. The trial commenced on Monday 12 December 2005, close to Christmas. It was expected to last into a second week. As it turned out, it consumed five hearing days, with verdicts returned on Saturday 17 December. It may be her Honour was concerned, estimates being as unreliable (though well meant) as experience shows they are, about a possibility the trial might have run substantially into the week immediately before Christmas, with all the distraction inevitably involved with that.

22. But on the basis of what was said in court, the only circumstance which fairly clearly must have influenced her Honour to proceed with a jury of 11 was inconvenience to the two witnesses. Yet that was not a matter which appeared to cause the Crown prosecutor, who would be calling them, any substantial concern. In the context of the charge of murder, that inconvenience warranted the epithet ‘slight’, especially bearing in mind the attitude of the prosecutor, and that a new trial could begin the following morning.

23. The trial was not expected to be lengthy. There was no reason why it could not have recommenced the following day. The Crown prosecutor saw merit in that course. Proceeding that way would have preserved the position that the accused would be tried on the murder charge by a jury of 12 members. As observed by Kirby J in Wu (p 125):  “… every juror presents a forensic advantage to an accused person.”  See also at pp 108 para [29] and 117 para [49].

24. I regret to have to conclude that the exercise of the learned judge’s discretion arising under s 57, in determining that the trial should continue with a jury of 11 members, miscarried. The aggregation of circumstances favouring recommencing the following day with a jury of 12, so substantially overwhelmed the rather vague suggestion of inconvenience to witnesses (which appears to have impelled her Honour to proceed as she did), that she should have taken the course urged by defence counsel: that is, to discharge the jury and re-convene the following day and proceed with a jury of 12.

25. The court is circumspect in its approach to the review of discretionary judgments, consistently with House v R (1936) 55 CLR 499.  As I have said, it is difficult to be completely confident which factors her Honour should be taken to have considered.  But I am persuaded that in the end, a proper consideration of all relevant factors compelled the conclusion that a new trial should commence the following day with a jury of 12 members.  It follows, of course, that in my view the discretion must be taken to have miscarried.

26. Of course this decision does not mean that where, particularly, the charge is of murder, and it becomes apparent a juror should be discharged, the trial should never continue with the remaining jurors. If a juror had to be discharged at a time when the trial was well advanced, proceeding with 11 jurors would ordinarily be justified – or with 10 for that matter. The unique combination of aspects attending this case was that the issue arose before the giving of evidence had commenced, the charge was the ultimately serious charge of murder, the trial could practicably have been recommenced as early as the following morning, the Crown prosecutor favoured that course, and the suggestion of inconvenience to witnesses was, as I have suggested, rather vague and insubstantial, or as earlier put, slight. The situation confronting the judge was therefore unusual.

27. I turn shortly to the third ground of appeal, which necessitates some analysis of the evidence. It will be apparent from that analysis that I consider the Crown’s case to have been strong. Nevertheless, this is not a case in which the conviction could be sustained by recourse to the proviso set up by s 668E(1A) of the Criminal Code 1899 (Qld).  This is a case which involved, in terms of Glennon v R (1994) 179 CLR 1, a “fundamental irregularity”.  It cannot be said that had a new jury of 12 been engaged, that jury, properly instructed and acting reasonably and lawfully, would inevitably have convicted the appellant (Wilde v R (1988) 164 CLR 365).  The appeal must therefore be allowed, the conviction quashed, and the appellant retried on the count of manslaughter.  (The acquittal on murder precludes his being retried on that count:  s 17 Criminal Code.)  I must nevertheless deal with the remaining ground of appeal.

28. The third ground is expressed as follows:

“That the verdict is unsafe having regard to the evidence and in particular the following:

(a)That the injury to the right shoulder of the deceased is consistent with the evidence given by the accused;

(b)That the deceased falling from the chair approximately fifteen (15) minutes prior to the assault cannot be excluded to the requisite standard as the cause of death;

(c)That the evidence of the witness Doctor Anthony Edward Garnett Tannenberg is inconsistent with the evidence of Doctor Beng Beng Ong and Doctor Richard Byron Collins as to the fall from the chair being the possible cause of the death of the deceased.”

29. The appellant was a security officer at the Colmslie Hotel. The deceased was a 27 year old patron who had been drinking at the hotel with a group of other young men. He became intoxicated, left upon request and went outside and sat at a table. He fell off a chair, and got back up. (That was recorded, if indistinctly, on a security video camera.)

30. About 15 minutes later, the deceased began leaving the area with his friends. In his intoxicated state, he spoke to the appellant saying: “I fucked your Mum.” The appellant called the deceased back, and asked the deceased to repeat what he had just said, which the deceased did. The appellant then – on the evidence of witnesses called by the Crown – kicked the deceased in the head, following which the deceased collapsed unconscious. He died because of a subarachnoid haemorrhage caused by the rupture of an artery within his brain.

31. In her summing up to the jury (which was on the hearing of the appeal in no respect challenged), the trial judge canvassed the issues of self-defence, accident and provocation. On the issue of causation, she said the question was whether the appellant’s kick “was a significant or substantial cause of (the) death”. The appellant gave evidence at the trial. He said that he did not kick the victim in the head, but did kick him on the shoulder, but that “there was no force. There was no power to it. There was nothing to make him stumble.” Witnesses called by the Crown prosecutor described it as a forceful kick to the head. As her Honour said, when subsequently sentencing the appellant:

“I think it is reasonable to infer that the jury rejected your evidence that it was a non-forceful kick to the shoulder and I think it is reasonable to prefer the evidence of the witnesses who said it was a swinging kick to the side of the head.”

32. Her Honour had left the matter with the jury in this way in the summing up:

“… if you thought Mr Coddington’s fatal haemorrhage was caused by the fall from a chair or drunken trip, nothing to do with any kick, or if you thought that the possibility one of those was the cause raised a reasonable doubt for you, then you would acquit of murder and manslaughter.  It is only if you are satisfied beyond reasonable doubt that the haemorrhage causing his death resulted from the kick directly in the sense that it caused the haemorrhage, or indirectly in the sense that it caused him to fall to the ground and hit his head, that you could convict him of murder or manslaughter, subject to what I am going to tell you about accident and self-defence.”

33. Mr Byrne referred to evidence which he submitted supported the appellant’s claim to have kicked the deceased in the area of the shoulder. That was evidence of an abrasion to the upper aspect of the deceased’s right shoulder. (I note however the consistency of that abrasion with a kick to the shoulder was not explored in the evidence.)

34. Mr Byrne also referred to evidence that the rupture of a basal brain vessel could have been caused by hyper extension of the neck resulting from a fall from a chair. That evidence came from Dr Ong, the pathologist who conducted the post mortem, and Dr Collins, also a pathologist. (Another pathologist Dr Tannenberg expressed a contrary view.)

35. In relation to the delay of 15 minutes between that fall and the ultimate collapse, Dr Collins said that the extent of any such interval depended on the size of the tear in the vessel. But as time wore on, symptoms would be experienced, including (on Dr Tannenberg’s evidence) excruciating headache, and (on Dr Ong’s evidence) neck stiffness, vomiting, semi-consciousness and stupor. As to why on the evidence the deceased did not complain of such symptoms before his collapse, assuming the defence scenario linking the rupture to the fall from the chair, Mr Byrne relied on the deceased’s heavily intoxicated state. He referred to the evidence of Dr Hoskings and Dr Collins as to the anesthetizing effect of heavy intoxication.

36. All of this means that the mechanism for which the defence contended, death caused by a haemorrhage resulting from the fall from the chair, was on the evidence a possibility. Mr Byrne advanced it as “a reasonable hypothesis consistent with innocence” which the prosecution failed to exclude beyond reasonable doubt.

37. But as we know, the evidence also disclosed another scenario.

38. That is that just before the deceased collapsed into unconsciousness, the appellant kicked him in the head with such force as to endanger his life. It was unsurprising the jury concluded the death was explained by those circumstances, rather than by the undoubtedly less traumatic occurrence 15 minutes earlier. (Compare R v A (1995) 79 A Crim R 100, 122.)

39. Evidence of the forcefulness of the appellant’s kick to the head of the deceased came from a number of witnesses. Brent Hall, for example, described it as “a front snap kick straight into his face… snapped his head back … it slightly twisted his head around … I could see … his head being snapped back with great force, came back forward and the momentum of his head going back forward like that sort of lurched his lifeless body forward and he just fell straight down”. Mr Hall called it a “snap kick … a very forceful kick … to create force and to render the opponent unconscious … a fairly serious kick”. It was presented as a martial arts style manoeuvre.

40. That and other eye witness evidence (for example, from the witnesses Andrew Barber and Melanie Smith) had to be seen in the context of specialist medical evidence as to the cause of death. The pathologist Dr Ong, who conducted the post mortem, considered the subarachnoid haemorrhage was caused by a ruptured artery, and that the rupture resulted from “trauma to the head (which) caused … the head to swing or move excessively … and also in a very sudden manner, and … this will be helped by the presence of high levels of alcohol, and this excessive movement has actually stretched these arteries causing them to rupture.” (The intoxication may also explain the absence of injury to the deceased’s head caused by the appellant’s kick delivered to the head on the evidence of the witnesses called by the Crown.)

41. Yet on the other hand, there was specialist medical evidence that such a rupture would not have been a likely consequence of the fall from the chair. Dr Tannenberg was asked by defence counsel:

“… a fall from a chair and the person falling, hitting his head on the pavement or a garden bed could cause his death, couldn’t it, in the same way?” 

The doctor answered:  “If we’re talking about likelihoods, the answer’s no … the falling from a chair is rarely a cause of death.”

42. This jury, properly instructed, was entitled to conclude beyond reasonable doubt that a forceful kick by the appellant to the head of the deceased just prior to his collapse caused the death of the deceased, and in so doing, to exclude any reasonable doubt whether the cause was injury sustained through the deceased’s fall from the chair 15 minutes earlier.

43. The third ground of appeal was not made out.

44. But because I would uphold the other grounds of appeal, I would order:

1. that the appeal be allowed;

2. that the conviction of the appellant on the charge of manslaughter be quashed;

3. that there be a new trial of the appellant on the count of manslaughter.

45. WILLIAMS JA:  The background to this appeal is set out in the reasons for judgment of the Chief Justice which I have had the advantage of reading.  I agree with what is said therein and with the order proposed.  However, because of the importance of the decision and its possible ramifications, it is desirable that I express reasons of my own for concluding that the learned trial judge erred in proceeding with a jury of 11.

46. Section 33 of the Jury Act 1995 (Qld) provides:  "The jury for a criminal trial consists of 12 persons."  That states the basic rule which must ordinarily apply to all criminal trials.  The High Court in Cheatle v R (1993) 177 CLR 541 dealt generally with the right of an accused person at common law to a trial by a jury of 12; an accused had a right not to be convicted except by the unanimous decision of those 12.  It is clear from the reasoning therein that that common law right still applies except insofar as it is modified by a valid statutory provision.  Section 33 enshrines the common law principle that essentially conviction for an offence should be the decision of a jury of 12. 

47. This Court in R v Roberts [2005] 1 Qd R 408 considered Cheatle, and at 413 it was said that the reasoning therein "… emphasised the historical importance of the right to a unanimous verdict of a jury of 12.  Put in the negative, that is the right not to be convicted except by a unanimous verdict of a jury of 12."  The Court then went on to consider s 56 of the Jury Act (which is set out in the reasons for judgment of the Chief Justice) and said that it "obviously qualifies this right.  However such a power should be exercised only where the circumstances clearly call for its exercise."  That reasoning clearly confirms the proposition that the basic right of an accused person is to a trial by a jury of 12.

48. That brings me to Wu v R (1999) 199 CLR 99.  There the trial judge discharged one of the jurors on the tenth day of a trial for kidnapping and attempted murder and thereafter the trial proceeded to verdict with a jury constituted by the remaining 11.  Gleeson CJ and Hayne J at 106 considered that in determining whether or not to discharge a juror and proceed with 11 (pursuant to provisions such as s 56 and s 57 of the Jury Act) the judge was required to give "attention to the fair and lawful trial of the appellant by a properly constituted jury and it also required attention to how best that trial might be conducted promptly and without delay."  In the circumstances of that case it was sufficient for their Honours to note that "a criminal trial by jury in New South Wales must begin before a jury of twelve" but that pursuant to the legislative provisions the discharge of one or more of the jurors may yet result in a "fair and lawful trial of an accused". 

49. It is that latter aspect which was taken up by other members of the High Court. McHugh J at [28] said:

"But no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors.  Conviction by a jury of less than twelve is a denial of a longstanding right of those tried for serious crime under the common law system.  Given the mandatory terms of s 19 of the Jury Act [broadly similar to s 33 of the Queensland Jury Act] some positive reason, beyond the death or discharge of a juror, must exist for the judge to make the order that the trial continue with less than twelve jurors." (my emphasis)

50. Kirby J at [40] noted: "In respect of juries, the common law attached very great importance to the number twelve and to maintaining that number and securing the unanimous verdict of the twelve." That continued until there was legislative reform. Relevantly he then said at [43]:

"However, the use of the word "jury" and the ancient history and constitutional features of that institution, import, unless otherwise provided, the laws and practices of England, at least so far as these are essential to the nature and function of a jury.  The common law and judicial practice governing the discharge of juries is one aspect of that inherited law.  It continues, save only to the extent that a constitutionally valid local statute has modified it."

51. That modification, which now applies in most jurisdictions, is substantially in the form found in s 56 and s 57 of the Queensland Act. His Honour went on in [44]:

"The judicial power to discharge a particular juror is thus only to be exercised in a context which has appropriate regard to the rule established by s 19 [Queensland s 33].  The primary rule is laid down by Parliament not only for the benefit of the accused but also for the satisfaction of society.  Whatever the historical origins of the requirement that a criminal jury be constituted by twelve persons, the present justification of the rule is that the number is sufficient to ensure the presence, in such a jury, of a cross-section of the community."

52. As his Honour then observed in the next paragraph: "Obviously, to the extent that the historical and statutory number of twelve is reduced, there is an equivalent reduction of the degree to which a jury may reflect the diversity of the makeup of the community in Australia." Clearly Kirby J was of the view that a criminal jury not only must initially be a jury of 12 but should ordinarily remain so. Provisions such as s 56 of the Jury Act provide for the circumstances in which, contrary to the common law, the judge might continue with the trial with less than 12 jurors.  Speaking then of the power to discharge a jury and proceed with 11, Kirby J reasoned at [74]:

"... at common law the jury has often been described as the "constitutional tribunal" for the determination of facts where the law provides for jury trial.  The approach of the trial judge in this case, and the very hasty way in which his decision was made, over objection, to deprive the appellant of her right to the verdict of a jury of twelve, represented in my view a miscarriage of the power.  … The irrelevant consideration was the trial judge's repeated statement that there was "no magic in the number twelve" ... But the number is supported by the plain terms of s 19 of the Act and by long legal history.  Moreover, every juror presents a forensic advantage to an accused person."

53. The final judgment was that of Callinan J: relevantly he said in [90]:

"The appellant's case before this Court is that it is a fundamental right of an accused to be tried by a jury of twelve persons and that any reduction in that number may only be made strictly in accordance with any statutory power to do so, and in the proper exercise of a judicial discretion.  It is uncontroversial that a continuing jury of twelve is much to be preferred."

54. His Honour in [92] regarded provisions such as s 33 of the Jury Act as raising "a statutory presumption of the critical importance of a jury of twelve persons".  But as his Honour subsequently conceded the discretion conferred by sections such as s 56 of the Jury Act is "a wide one"; all of that led his Honour to conclude in [103]:

“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 to the reduction in number and the continuation of the trial with the reduced number.  Adherence to such a procedure … has the effect not only of ensuring an unambiguous record of what has taken place but also of focusing 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.”

Though in that case the majority (only Kirby J dissenting) dismissed the appeal, it is clear that all of the members of the High Court considered that the statutory power to proceed with a jury of less than 12 should not be exercised lightly; there should be some identified reason for continuing with the lesser number.  An accused's fundamental right was to a jury comprised of 12 citizens. 

55. In my view, particularly where the charge is a serious one such as murder, the power to proceed with a jury of less than 12 should not be exercised where, without a great deal of inconvenience, steps can be taken to procure a trial with a jury of 12.

56. In the present case no evidence had been led when the decision was made. A jury had been empanelled and the Crown prosecutor had opened the case. The whole jury could have been discharged and a fresh jury empanelled the following day. That would not have prolonged the trial to any significant extent. It would not have involved the parties in any significant additional expenditure. All the Crown prosecutor could refer to was some moderate inconvenience to two Crown witnesses.

57. It is clear from the passages from the transcript quoted by the Chief Justice that both counsel favoured discharging the jury and empanelling a fresh jury the following day. That such a course did not involve great inconvenience was conceded by the trial judge when she referred to the competing procedural alternatives as "a bit of a practical toss up".

58. Having read in detail the reasoning of the High Court in Cheatle and Wu, I have reluctantly come to the conclusion that in order to ensure a fair trial according to law for the appellant the proper course for the trial judge to have taken was to discharge the whole jury and empanel a fresh jury the following day.  It is unfortunate that neither counsel referred the trial judge to the reasoning of the High Court in cases such as Cheatle and Wu; if she had been referred to those cases I have no doubt that other course would have been followed.

59. It must be emphasised that a trial judge is given power by s 56 and s 57 of the Jury Act to proceed in appropriate cases with a jury of less than 12.  But that power is not lightly to be exercised.  The exercise of the power has to be balanced against the fundamental right of an accused person to a trial by a jury of 12 persons and only to be convicted on the unanimous verdict of those 12.  Where, as here, the trial has barely begun, and only minimal inconvenience and additional cost would be occasioned by discharging the whole jury and commencing again with a jury of 12, that course must be preferred particularly where the charge is a serious one such as murder.

60. When a trial judge is called upon to exercise the power conferred by s 56 and s 57 of the Jury Act regard should be had to what was said by this Court in Roberts and by the High Court in Wu. 

61. It follows that the appellant should be re-tried on a charge of manslaughter.

62. HELMAN J:  I have had the advantage of reading the reasons for judgment prepared by the Chief Justice and Williams J.A., with each of whom I agree.  I also agree with the orders proposed, but I should like to add two brief observations concerning the ground arising from the failure to discharge the jury:  one concerns an implication of saying that an accused person has a right to trial by a jury of 12 and the other the practical difficulties facing a trial judge.

63. In Wu v. The Queen (1999) 199 C.L.R. 99 it was observed that ‘[c]onviction by a jury of less than twelve is a denial of a long-standing right of those tried for serious crime under the common law system’:  p. 108 per McHugh J.  It would follow I think, adopting the words of Thomas Jefferson written in another context (freedom of the press) in a letter to Dr J. Currie in 1786, that that right cannot be limited without being lost.  But that is the effect of the legislation concerning juries in this and other States.

64. The difficulties facing a trial judge in deciding whether a trial should proceed with fewer than 12 jurors cannot be minimized. The decision will hinge upon a number of factors, some of which will be little more than speculation as to the likely future course of the trial. With the luxury of hindsight denied to the trial judge the relevant considerations may be clarified. The inconvenience caused by the discharge of remaining jurors may be substantial, but one must think of the even greater inconvenience caused by the quashing of a conviction and an order for a retrial if the remaining jurors are not discharged, the accused is convicted, and he or she then appeals successfully on the ground that has succeeded in this case. It is hard, if not impossible, to give clear guidance on that subject.