SUPREME COURT OF QUEENSLAND

[1]  MCMURDO P: Jerrard JA has set out the relevant facts and issues.  I agree with his Honour's reasons for dismissing this appeal but wish to add the following observations. 

[2] The appellant, having pleaded not guilty, was entitled to a trial by jury (s 604(1) Criminal Code 1899 (Qld)).  The jury for a criminal trial consists of 12 persons (s 33 Jury Act 1995 (Qld)).  Under s 56 Jury Act a judge may discharge a juror without discharging the whole jury if in the judge's opinion the juror becomes incapable of continuing to act as a juror.  The learned primary judge discharged the ill juror under s 56.  No complaint is made about that part of his Honour's order.  His Honour then directed under s 57 Jury Act (there being no reserve juror) that the trial continue with the remaining 11 jurors.  It is this order that is at the heart of the present appeal. 

[3] The order under s 57 was made in the morning of the third day of the trial.  The jury of 11 jurors retired to consider their verdict at 11.05 am on the fifth day of the trial  There were no applications for redirections prior to the return of the guilty verdict at 3.21 pm that day.

[4] In enacting s 57, the legislature clearly intended that judges should have a wide discretion to allow a trial to continue with 11 jurors where a juror was discharged under s 56.[1]  Nevertheless, as Williams JA (Helman J agreeing) observed in R v Hutchings,[2] the exercise of that "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".

[5] In making the order under s 57 his Honour did not specifically refer to those observations.  That principle, however, was effectively and strongly emphasised (although without specific reference to Hutchings) by defence counsel at trial who urged the judge for that reason to discharge the jury without reaching a verdict instead of directing under s 57 that the trial continue with 11 jurors.  In giving reasons for the order under s 57, his Honour referred to defence counsel's submissions that the appellant was entitled to a trial with 12 jurors.  His Honour did not directly refer to that fundamental right in listing the six matters which persuaded him to exercise his discretion under s 57 to direct the trial continue with 11 jurors.  It can, however, be clearly inferred from the judge's reasons that he was well cognisant of that fundamental right and was only prepared to exercise his discretion under s 57 to modify it because of the six matters to which his Honour referred.   

[6] I am not persuaded that his Honour's exercise of discretion in making that order under s 57 miscarried, nor that a miscarriage of justice has resulted from the order made.

[7] The appeal should be dismissed.

[8]  JERRARD JA: On 1 December 2006 Mr Shaw was convicted by a jury of one count of dangerous driving of a motor vehicle causing death when having a concentration of alcohol in his blood exceeding 150 milligrams of alcohol per      100 millilitres of blood and when adversely affected by an intoxicating substance, namely alcohol.  He was sentenced that day to three years imprisonment and the learned sentencing judge, after declaring that 28 days spent in pre-sentence custody was time already served under the sentence, fixed 3 May 2008 as Mr Shaw’s parole release date.  Mr Shaw has appealed against his conviction, with the appeal limited to the ground that the learned judge erred in law in declining to discharge the jury after one of its members became ill and unable to continue as a juror. 

[9] The incident the subject of the charge happened on 20 February 1986, at Waterford via Brisbane.  The essence of the prosecution case at trial was that Mr Shaw had allowed the vehicle he was driving to cross the centre line of the roadway on Nerang Road at Waterford, when driving in a generally southerly direction, and his vehicle had collided with a Torana Sedan being driven in the opposite direction by the victim, who was killed.  There were no eyewitnesses to the accident; the prosecution relied on gauge marks in the northbound lane of travel, and the majority of debris at the scene being in that lane.  The weather was fine and the road conditions were unlikely to have contributed to the collision.  A blood sample taken from Mr Shaw approximately one hour after the collision returned a blood alcohol concentration of .162 per cent, although he was not seen to have observable indicia of intoxication, apart from a smell of alcohol on his breath.  A post mortem sample of blood from the deceased gave a blood alcohol concentration of .19 per cent.  The prosecution also relied on a statement made in the early hours of 21 February 1986 to investigating police, that as Mr Shaw had turned into Nerang Road:

“...I felt dozy or sort of faint, then I saw the headlights coming towards me.”[3]

[10]  Mr Shaw was initially charged by summons with an offence under the Traffic Act 1949 (Qld), and served with a summons returning on 23 May 1986.  He failed to appear and a warrant was later issued for his apprehension for the offence of dangerous driving causing death.  That warrant was executed on 28 May 2003 at the Brisbane International Airport.  A trial was held in March 2006 and the jury was unable to agree.  A re-trial began on 27 November 2006, and it is the conviction on that trial from which this appeal comes. 

[11]  Most of the first morning of the first day of that trial was taken up with legal argument, and the evidence began a little after midday.  The jurors communicated to the judge during the luncheon adjournment that they wished to have a view of the location, and arrangements were made for that.  The evidence continued on the afternoon of 27 November, with evidence from one of the investigating police officers.  During the evidence of that witness the prosecution put in evidence a statement as to uncontroversial matters which the officer had taken from a witness in 1986, who had since died.  There was also evidence from the police officer who took the sample of blood from Mr Shaw.  They were both still in the Police Service; the forensic chemist who analysed the appellant’s blood sample was called, and it appeared he had retired; likewise the police officer who inspected the two vehicles after the collision was called, and he had retired by then too.

[12]  The next day, 28 November, the principal investigator was called – he had also remained in the Police Service – and some brief evidence-in-chief was taken from him, before the court adjourned to have the view.  When the court resumed from the view, it transpired that Mr Shaw had fallen ill and had been taken by ambulance to the Logan Hospital.  The learned trial judge accordingly adjourned until 9.30 am on 29 November 2006.  On that morning although Mr Shaw was now present, one of the jurors had failed to attend, and the bailiff had been supplied with a copy of a medical certificate about the juror from a doctor.  That certified that the juror was receiving medical treatment, and would be unfit to continue his usual occupation for the period 29 November 2006 to 30 November 2006 inclusive.  The learned judge remarked that the certificate was unsatisfactory in saying nothing as to the condition for which treatment was being received, but that the juror was described as unable to attend for both that day and the next.  The learned judge then heard submissions from counsel as to the appropriate course.

[13]  Counsel for Mr Shaw submitted that it was not an appropriate case to continue with 11 jurors because it was an “old” matter, with no eyewitnesses, and it contained the prejudicial allegation that Mr Shaw was under the influence of alcohol at the time of the collision.  Counsel submitted:

“That in itself has a potential to influence a lot of people in the public, a lot of people, simply because an accident occurs and because one of the persons in the accident is affected by alcohol, that, in itself, stirs up some emotions in some people.”[4]

Counsel submitted that made it imperative that Mr Shaw have the opportunity to be judged by a full compliment of jurors.

[14]  The learned judge sought assistance as to relevant authorities, but neither of the counsel who appeared were able to assist the judge at that moment.  Counsel for the prosecution did direct the judge to s 56 and s 57 of the Jury Act 1995 (Qld), which respectively deal with the discharge of an individual juror, and the continuation of a trial with less than 12.  Section 56 provides:

“56

(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; or

(b) the juror becomes incapable, in the judge’s opinion, of continuing to act as a juror; or

(c) the juror becomes unavailable, for reasons the judge considers adequate, to continue as a juror; the judge may, without discharging the whole jury, discharge the juror.

(2) If a juror dies or is discharged before the trial begins, the judge may direct that another juror be selected and sworn.”

Section 57 reads:

“57

(1) If a juror dies or 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.

(2)...

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

[15]  As it happened, the learned judge was correct in the understanding the judge described to counsel, that there was recent authority on the proper approach when exercising discretionary power under those sections.  In Wu v The Queen (1999) 199 CLR 99; (166 ALR 200) the High Court heard an appeal in which a trial judge in New South Wales had discharged a juror on the tenth day of a trial, and continued with the remaining 11 jurors.  In doing that, the trial judge was exercising power given by s 22 of the Jury Act 1977 (NSW).  That appellant was convicted, and on his appeal in the High Court Gleeson CJ and Hayne J wrote in a joint judgment that:

“[8]It is plainly desirable that a judge exercising the power to discharge a juror and the power to proceed with a jury of less than 12 members does so in unmistakable terms.  Ordinarily that will be done by the trial judge making two separate orders: an order discharging the juror and an order that the trial proceed before the jury constituted by the remaining jurors.”

[16]  Their Honours went on to remark that delay in a trial can cause hardship to an accused as well as to witnesses and jurors[5], and that 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.  They added that it may be accepted that criminal trials by jury in New South Wales must begin before a jury of 12, and that the whole purpose of s 22 was to provide that a trial could proceed before a jury despite the discharge of one or more of its members.  That is, there could be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings.[6]

[17]  McHugh J, in a separate judgment, also described a two stage process for an order that a trial continue with a jury of less than 12 persons, the first stage being concerned with the death or discharge of a juror, and the second stage concerned with whether the judge should order that the trial continue with the remaining jurors.  His Honour wrote:

“[27]For hundreds of years, the common law has insisted that no person be convicted of serious crime without the unanimous verdict of 12 jurors... In various jurisdictions, including New South Wales, the dictates of expense and convenience have introduced legislative change which now authorises the judge in a criminal trial, after the death or discharge of a juror, to make an order that permits a person to be convicted by a jury of less than 12.”

[18]  He then wrote:

“[28]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 12 is a denial of a long standing right of those tried for a serious crime under the common law system.  Given the mandatory terms of s 19 of the 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 12 jurors.

[29]The usual reason for exercising the power under s 22 is that the trial has proceeded for some time and that it would cause significant expense to begin again with a new jury.  No doubt the circumstances of individual trials will throw up other valid reasons.  And there may be countervailing reasons.  It may be a case dealing with matters upon which the opinion of the community is deeply divided.  In such a case, despite the time the trial has already taken, the proper exercise of the discretion may require that the accused be retried before a jury of 12.  Or the case may be one where the community has strong feelings against the crime in question and the risk of prejudice against the accused may be strong.  In such a case, depriving the accused of the chance to obtain the vote of the twelfth juror may be a step that should not be taken.”

[19]  I observe that the submissions made to the learned trial judge by counsel for Mr Shaw actually focused on the possibility of prejudice to Mr Shaw from the allegation of driving while adversely affected by alcohol, as a reason for requiring 12 jurors.  That submission reflected the reasoning of McHugh J; so the learned judge had at least the advantage of the argument, although he was not referred to the decision.

[20]  The majority in Wu v The Queen were satisfied that it had not been shown that the trial judge had erred in discharging the juror in the circumstances in that case.  As there was no attack in that appeal on the decision to proceed with the remaining jurors, it was unnecessary to examine that decision; although Gleeson CJ and Hayne J remarked that there was no basis for doubting that it was appropriate to proceed as the trial judge did.

[21]  In R v Hutchings [2006] QCA 219 this Court did have occasion to consider the decision to proceed with 11 jurors, after an appropriately ordered discharge of a 12th.  In that matter the appellant had been charged with murder, and convicted of manslaughter.  After the empanelment of the jury and the conclusion of the prosecutor’s opening of the Crown case, the trial judge informed counsel that one of the jurors had told the bailiff that counsel for the defendant had been the defence counsel in a case in which that juror’s daughter had been the complainant.  The juror thought that the circumstance would not affect her judgment, but the learned trial judge discharged that particular juror under s 56 of the Jury Act 1995, and continued on with the trial conducted before the remaining 11 jurors. 

[22]  On appeal, de Jersey CJ remarked that considerations of convenience and delay could plainly be relevant to the exercise of the discretion arising under s 57 (to continue with the remaining 11), and that it was unfortunate that the trial judge had not been referred by counsel to the decision in Wu.  The Chief Justice considered that 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, that the learned judge should have taken the course urged by defence counsel, namely to discharge the jury, reconvene the following day, and proceed with a newly selected jury of 12. 

[23]  Williams JA referred to the observation of this Court in R v Roberts [2005] 1 Qd R 408, and observed that that decision had emphasised the historical importance of the right to a unanimous verdict of a jury of 12, which right was self evidently qualified by s 56 of the Jury Act.  His Honour referred to the judgment of the Chief Justice in that matter, which held that the qualification given by s 56 should be exercised only where the circumstances clearly called for its exercise.  Williams JA remarked that that reasoning clearly confirmed the proposition of a basic right to an accused person to a trial by a jury of 12.  Regarding the decision in R v WU, he concluded it was clear that all members of the High Court considered in that case the statutory power to proceed with a jury of less than 12 should not be exercised lightly, and there should be some identified reason for continuing with the lesser number. 

[24]  In Hutchings, Williams JA considered that the exercise of the power to continue with less than 12 had to be balanced against the fundamental right to a trial by a jury of 12 and to be convicted only on the unanimous verdict of 12; where the trial had barely begun, and only minimal inconvenience and additional cost would be occasioned by discharging the whole of the jury and beginning again, that course must be preferred, particularly where the charge was serious.  Helman J agreed with the orders proposed, but added brief observations, remarking on the difficulties facing a trial judge in the circumstances.

[25]  Those two decisions describe the consideration relevant to the exercise of the discretion by the learned trial judge.  Reference can also be made to the remarks by Gleason CJ and McHugh J in their joint judgment in Brownlee v The Queen (2001) 207 CLR 278 at [22].  They referred to s 22 of the Jury Act 1977 (NSW), and to observations by White J in Williams v Florida[7], giving the opinion of the court, to the effect that the essential feature of a jury trial lies in the interposition, between the accused and his accuser, of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.  White J had gone on to remark that the numbers on a jury should be large enough to promote group deliberation and to give a fair possibility of getting a representative cross-section of the community.  Provided the requirement of unanimity of the verdict was retained, there was little reason to think the goals (of a jury trial) were less likely to be achieved by a jury of 12 rather than six, in the opinion of White J.

[26]  Gleeson CJ and McHugh J wrote, of those remarks:

“[22]Those observations apply with even greater force to a system which requires 12 jurors to begin with, but permits the trial to continue with 10 of the original 12 where two have been discharged, and requires a unanimous verdict of the remaining 10.  Such a system is not inconsistent with the purposes of trial by jury.  In particular, it is not inconsistent with the objectives of independence, representativeness and randomness of selections, or with the need to maintain the prosecution’s obligation to prove its case beyond reasonable doubt.”

[27]  The learned trial judge had not been referred to either of Wu, Hutchings, or Brownlee, but nevertheless succeeded in giving a ruling which referred to all but one of the relevant principles and matters referred to in those judgments.  The learned judge recited the submissions of counsel for Mr Shaw, to the effect that     12 persons and no fewer should decide the matter, essentially because of the history of the case with the allegation by the Crown that Mr Shaw was adversely affected by alcohol.  The judge likewise referred to the submission of the Crown that the matter was now 20 years old, and the jury had heard a substantial part of the evidence, and had already had a view.  The judge recognised that a discretion existed under each of s 56 and s 57 of the Jury Act 1995 (Qld), and identified seven matters on which the judge exercised the discretion to discharge the ill juror and continue with the remaining 11.  Those were:

1. the age of the matter and the fact that the event giving rise to the charge occurred almost 21 years ago;

2. that there had been already a previous trial in which the jury failed to agree, placing the defendant under stress with no resolution of the matter;

3. that there must be a limit to the continuing availability of witnesses, of whom one was already dead;

4. that the public interest demanded that criminal trials be prosecuted with the minimum of delay, in the interest of the fairness to the accused;

5. that the jury had already heard a significant part of the evidence, and had conducted a view;

6. that there had been considerable expense already incurred in the prosecution of the matter, and to the defendant too; and

7. that the legislature had provided that a trial might continue, in the exercise of the discretion of a judge, with fewer than 12 jurors.

[28]  It was not suggested on appeal that any of those were irrelevant to the exercise of the discretion.  The chief complaint made is that the learned judge did not expressly identify, as relevant, the right described by Williams JA in R v Hutchings.  That is, a right to a trial by a jury by 12 and to be convicted on the unanimous verdict of those 12.  Williams JA had made clear elsewhere in that judgment that the statutory power to proceed with less than 12 did modify that right, but required some identified reasons for its exercise, and should never be exercised lightly.  The learned trial judge in this matter was clearly aware of the fundamental right, and that a discretion was being exercised, and the matters taken into account show that the learned judge did not exercise it lightly.  The circumstances were different from those applicable in Hutchings, and the learned judge identified appropriate reasons for continuing with less than 12 jurors.  Mr M Byrne QC submitted that the matters identified by the learned judge equally supported arguments in the discharge of the jury, but those arguments were made to the judge, and the judge did consider the relevant facts.  No other facts were suggested, which should have been but were not considered. 

[29]  Sufficient circumstances existed for the exercise of the discretion in favour of continuing the trial, and the judge identified those, and did not fail to identify circumstances in favour of discharging all of the jury.  The position may have been different if the learned judge had not expressly referred to the submission by Mr Shaw’s counsel about the allegation of alcohol, but the judge did consider that submission.  It follows that the appellant has not shown that the learned judge erred, and no miscarriage of justice has been demonstrated.  I would dismiss the appeal.

[30]  PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Jerrard JA and agree for the reasons stated therein that the appeal should be dismissed.  The learned trial judge did not have the benefit of being referred to the recent decision of this Court in R v Hutchings [2006] QCA 219 where the Court discussed the proper approach and considerations relevant to the exercise of the discretions in section 56 and section 57 of the Jury Act 1995 (Qld) to discharge a juror and proceed with the remaining jury.  Nevertheless, the learned trial judge approached the exercise of his discretion consistently with the principles enunciated in that case and in Wu v The Queen (1999) 199 CLR 99 which was considered in Hutchings.  As was stated by Gleeson CJ and Hayne J in Wu (at 103), it is plainly desirable that a judge exercising the power to discharge a juror and the power to proceed with a jury of less than 12 members does so in unmistakeable terms and the learned trial judge clearly did so in the present case, identifying the reasons for the exercise of his discretion.  It is apparent from those reasons that his Honour in exercising the discretion to continue with a jury of 11 had regard to all the relevant considerations including those emphasised at some length by defence counsel and which his Honour summarised as being that:

“… the accused he is entitled to be tried by a jury of twelve and the nature of the case is such that there are no eye witnesses to the incident and essentially because of the history of the matter with the allegation by the Crown of the accused being adversely affected by alcohol to a marked degree, twelve persons should determine the matter, not fewer.”

[31]  The appellant has not shown that the learned trial judge erred in law in declining to discharge the jury upon one of its members becoming ill and being unable to continue.