SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant pleaded not guilty on 19 November 2007 to murdering her infant son on 21 October 2004.  Her trial proceeded before a judge and jury in the Supreme Court at Brisbane over seven court days.  On 28 November 2007 she was convicted of murder.  She appeals against her conviction contending that the trial judge erred in discharging one juror and continuing the trial with the remaining 11 jurors where the charge was murder; there was clear evidence of disharmony within the jury room; one of the jurors was feeling intimidated; and the discharge took place without consideration as to whether the trial should continue with less than 12 jurors.

The background facts

[2] The appellant's killing of the child was recorded on video tape.[1]  Counsel for the appellant at trial accepted that she "smothered her child in the Mater Children's Hospital in the late evening of 20th of October 2004 and into the early morning of the 21st and … those physical actions at law caused the death of her baby son".  The defence case was that the prosecution had not proven its case on murder beyond reasonable doubt on three bases.  First, the prosecution did not establish the necessary intent because of the appellant's intoxication.  Second, the defence established that when she killed the child she was acting under diminished responsibility within the terms of s 304A Criminal Code 1899.  Third, the prosecution did not establish under s 23(1)(a) Criminal Code that when she killed the child she was not acting independently of the exercise of her will in a state of automatism.  The defence argued that the appellant should be found not guilty of both murder and manslaughter on the third basis or not guilty of murder, but guilty of manslaughter on either the first or second basis.  No issue is taken with the judge's directions to the jury on these or other matters or with the reasonableness of the verdict of guilty of murder.

[3] The 12 person jury initially retired to consider its verdict at 12.05 pm on 27 November 2007, the sixth day of the trial.  At 8.35 pm, the court reconvened in the absence of the jury.  The judge explained:

"The Bailiff came to see me because of the behaviour of one of the jurors, and from what he's told me, it seems to me that I might well form the opinion that she's incapable of continuing to act as a juror."

[4] With the apparent concurrence of both counsel, the bailiff gave evidence about his knowledge of the issue.  At 1.00 pm that day the bailiff took the jury to the dining room.  Juror number 12 declined or refused to enter the dining room with the other 11 jurors.  She said she did not want to be with them; she wanted to eat alone; she felt as if she had been bullied throughout her time serving on that jury and "basically that her opinion didn't count".  She steadfastly refused to sit with the other jurors at lunchtime.  There was sufficient space in the jurors' dining room for her to be seated separately.  At one time the jury spokesperson joined her.  After lunch, the jury returned to the jury room to continue their deliberations.

[5] Shortly before the court reconvened, the bailiff heard "very raised voices … swearing yelling" coming from the jury room which beforehand had been "fairly quiet".  This continued for a couple of minutes until there was a buzz from the jury room.  Juror number 12 told the bailiff, "basically, that she wanted to leave, that she wanted to go to a doctor, she didn't want to serve on the jury anymore".  She seemed reasonably distressed, not to the point of breaking down, but agitated.  The yelling and swearing came only from juror number 12.  The bailiff did not see or hear anything untoward from the other 11 jurors towards juror number 12.  Her actions seemed to be at odds with the rest of the jury.  At times, she did not seem to wish to engage with them.  She was very quiet.  She did not participate in the banter that the other jurors engaged in.  He noticed no animosity from the other 11 jurors towards her and until the lunchtime incident he did not notice any animosity between her and them.  He had observed nothing that might constitute bullying of juror number 12 by her fellow jurors. 

[6] The bailiff said that all 12 jurors sat together at the same table for their evening meal.  There did not seem to be any hostility or animosity.  Juror number 12 did not appear physically unwell.  He had been a bailiff for two and a half years and had never before seen this sort of conduct.  Juror number 12 did not state that she could not be impartial.  Earlier, when the bailiff explained to all the jury members the possibility that they may need to be accommodated overnight, most of the jurors including juror number 12 said that they thought "that another 30 minutes may possibly resolve the issue". 

[7] The judge told counsel that she was reluctant to keep locked up a juror who wanted medical treatment.

[8] The appellant's counsel at trial expressed his reluctance to have discharged a juror who had been involved in a lengthy trial:  his client was facing a murder charge and 12 jurors should decide her fate.  He suggested that a government medical officer might examine her.  He repeated his wish that 12 jurors should decide the appellant's fate and added that there was nothing to indicate that juror number 12 could not be impartial. 

[9] The prosecution was conducted by the then Director of Public Prosecutions, Mrs Clare SC.  Mrs Clare noted that some of her officers had observed juror number 12 behaving strangely, laughing inappropriately and doing things that made her appear odd.  There was some concern amongst her officers that juror number 12 may not be well.  Mrs Clare agreed that the appropriate course was to arrange for juror number 12 to receive medical treatment, at least in the first instance. 

[10]  The judge instructed the bailiff to inform all the jurors that they would be taken to their overnight accommodation forthwith and to explain to juror number 12 that arrangements would be made for a doctor to see her in her private accommodation.  The Deputy Sheriff indicated that he would organise a doctor to attend on juror number 12. 

[11]  Before a doctor was arranged, defence counsel heard a conversation involving the bailiff and someone else in the court room.[2]  Defence counsel said, "… if that is the case, then the juror clearly isn't going to be impartial … and she feels threatened.  Then she should be discharged." 

[12]  The judge asked the bailiff to return to the witness box.  He gave the following further evidence.  As requested by the judge, he entered the jury room and informed the jurors that immediate arrangements would be made for them to be sent to their overnight accommodation.  Eleven jurors seemed happy with that course.  The bailiff informed juror number 12 that arrangements would be made for a medical practitioner to see her at her accommodation.  She stared at the bailiff for a time before stating that she did need to see a doctor, either that day or the next.  As the bailiff was about to leave the room she said that "she felt uneasy and threatened by the other 11 jurors.  She felt unsafe with them".  He did not notice anything about the other jurors' behaviour to suggest that she was unsafe. 

[13]  Defence counsel submitted that "because there seems to be external or undue pressure on the juror … justice needs to be seen to be done and if that is the case then she can't be considered to be impartial".  The judge suggested that the appropriate course was to discharge juror number 12.  Both defence counsel and the prosecutor agreed with that suggestion. 

[14]  The judge arranged for the bailiff to bring juror number 12 into the courtroom and addressed her in these terms: 

"Juror number 12, the bailiff has told me about how you feel about continuing to be on the jury and I've decided to discharge you from the jury.  So, you're discharged and you may go now.  Thanks very much.

JUROR NUMBER 12:  Thanks very much."[3]

The judge stated that she would not take a verdict before 9.00 am the next day and adjourned the court at 9.03 pm.

[15]  The Court resumed at 9.40 am the next day in the absence of the jury.  The judge stated: 

"…The reason why I asked the Bailiff to reconvene the Court is because last night I discharged a juror, but when I was looking at the authorities and further looking at the Jury Act, we were discussing two things last night.  One, the discharge of one juror and, two, the continuation of the trial with 11 jurors.  And while I made a specific order discharging the juror, it appears to me that I should also make the order directing the trial continue with the remaining jurors.

I don't think, although they're two separate orders, we've canvassed all the considerations.  So, unless someone else wants to say something else about that, I will now make that - formally make the order that the trial continue with the remaining jurors."[4]

Her Honour added that, after looking at Wu v The Queen,[5] it was clear that she had to make these two orders rather than merely one order discharging the juror.

[16]  Neither counsel made any submissions suggesting that this was not an appropriate course.  Defence counsel did not ask that the jury be discharged so that the appellant could be re-tried before a jury of 12.  The judge and counsel discussed another issue not relevant to this appeal.  The bailiff then informed the judge that the jury had reached a verdict.  At 10.06 am the remaining 11 jurors returned to the court room having indicated that they had reached a verdict.  The judge addressed them in these terms:

"… you're aware that I discharged a juror last night and I've made an order that the jury continue with the 11 of you."

The judge's associate then took the jury verdict which was that the appellant was guilty of murder.

The relevant Jury Act provisions

[17]  At the relevant time, the Jury Act 1995 included the following relevant provisions.

[18]  Section 33 provided:

"33Juries for criminal trials

      The jury for a criminal trial consists of 12 persons."

[19]  Division 5 of pt 6 of the Jury Act, headed "Discharge of individual jurors or of whole jury", contains the following provisions:

"56Discharge or death of individual juror

(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 … discharge the juror.

57Continuation of trial with less than full number of jurors

(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.

… 

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

…

60Jury may be discharged from giving verdict

(1) If a jury cannot agree on a verdict, or the judge considers there are other proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict."

The appellant's contentions

[20] Mr Byrne QC, for the appellant, made the following submissions. 

[21] An accused person has a right to be tried by 12 jurors.  This right has its genesis in s 33 Jury Act.  The Jury Act provides for modification of that right.  In Wu, McHugh J said:

"… 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 long-standing right of those tried for 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 twelve jurors."[6]

Kirby J noted that "… every juror presents a forensic advantage to an accused person".[7]  Callinan J observed: "It is uncontroversial that a continuing jury of twelve is much to be preferred".[8] 

[22]  This Court's consideration of Wu in R v Hutchings[9] and R v Shaw[10] recognised that a trial judge has the power to discharge a juror and to order that a trial continue with less than 12 jurors.  Such a discretion can only be exercised after the decision-maker has taken into account all material considerations: House v The King.[11]  In Wu, McHugh J identified those considerations:

"The usual reason for exercising the power … 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 that the trial has already taken, the proper exercise of the discretion may require that the accused be retried before a jury of twelve. 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."[12]

[23]  The transcript does not suggest that these matters were addressed by either counsel at the trial or by the primary judge.  The offence charged in this case, the murder of a young child by his mother, was one likely to arouse strong emotions amongst the community generally and therefore also amongst the jurors deciding it.  It was plain at the trial that there was disharmony in the jury room and that the discharged juror felt intimidated and bullied.  Unlike in Shaw, the primary judge did not indicate the basis for the exercise of her discretion to continue the trial with 11 jurors.  That decision is not supported by reasons.  As Williams JA observed in Hutchings:

"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."[13]

[24]  The circumstances required the discharge of the jury so that the appellant was tried by 12 jurors.  In any case, the absence of reasons for a decision which affected the appellant's right to a verdict from a jury of 12 on the offence of murder amounted to an error of law resulting in a miscarriage of justice.  The appeal must be allowed and a re-trial ordered.

Discussion and conclusion

(a)The discharge of juror number 12

[25]  The judge was empowered by s 56 of the Jury Act to discharge a juror if it appeared "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".

[26]  In Wu, a juror was discharged on the tenth day of a trial expected to last a number of weeks.  Some of these days were not full hearing days and the trial had by then become fragmented.  The judge discharged the juror after her boyfriend rang on her behalf to say she was unwell and probably would not be able to attend court for two days.  The trial proceeded with the remaining 11 jurors who returned a verdict of guilty.  The High Court majority concluded that if the judge exercised a discretion in discharging the juror, no error in that exercise had been demonstrated; if the judge exercised a power dependent upon certain facts or findings, the conditions for the exercise of a power were satisfied.  The High Court upheld the decision of the New South Wales Court of Criminal Appeal dismissing Wu's appeal.  Gleeson CJ and Hayne J, with whom McHugh J agreed, discussed the exercise of the power to discharge a juror:

"The decision to discharge a juror and the decision to proceed with a jury of less than twelve are distinct steps and often will be affected by different considerations. The conduct of, or circumstances affecting, a single juror may require that juror's discharge. That conduct or those circumstances may not affect the other members of the jury or suggest that they cannot perform their task satisfactorily.

…

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 twelve 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. …

The decision to discharge a juror may require consideration of difficult questions of fact and degree. One example may suffice to make the point. Deciding whether an irregular incident involving a juror is such that, notwithstanding any proposed or actual warning by the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror has not discharged or will not discharge the juror's task impartially will often raise difficult questions. And applying that test of reasonable apprehension to the other members of the jury may be even harder. It may be doubted, however, that it is always useful to describe the exercise of the power to discharge a juror or the jury in such a case as the exercise of a discretion by the judge. If satisfied that the incident gives rise to a reasonable apprehension or suspicion, the judge would, it seems to us, be bound to discharge those of whom the apprehension or suspicion would be held (whether that is a single juror or the whole jury). No discretion would fall to be exercised in such a case. By contrast, however, questions of discretion might be said to arise when a judge must decide between interrupting the course of a trial (for example, to allow a juror to recover from temporary illness) and discharging the juror concerned and proceeding with the trial without interruption."[14]

[27]  Both counsel agreed with the trial judge's intimation that the appropriate course was to discharge juror number 12.  It was not suggested at trial or on appeal that this was a case where juror number 12 was the sole dissenter so that there was a risk of giving rise to a public perception that a subsequent verdict from the remaining 11 jurors may be an impermissible majority verdict as in R v Roberts.[15]  Defence counsel first suggested the discharge of the juror when he noted, consistent with the preceding passage from Wu, that if she was feeling pressured by others, she could not be seen to be impartial.  Although the judge did not clearly identify and articulate her reasons for discharging juror number 12, a reading of the transcript makes abundantly clear that it was because juror number 12's statement to the bailiff (that she felt uneasy and threatened by the other 11 jurors and felt unsafe with them) made it appear that the juror may be overborne by the other jurors and not be able to impartially decide the case.  In these circumstances, it was proper to discharge juror number 12 and her discharge was authorised by s 56. 

[28]  If s 56 of the Jury Act gives a trial judge a discretion to discharge a juror, the appellant has not demonstrated any error in the trial judge's exercise of that discretion.  If s 56 sets out the circumstances where a judge is empowered to discharge a juror, on the facts of this case the judge was entitled to conclude, from the bailiff's evidence about juror number 12's statement to him, that that juror appeared "not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial".  The judge did not err in ordering the discharge of juror number 12.

(b)Allowing the trial to continue with 11 jurors

[29]  The next issue is more difficult.  It is whether the judge erred, either in the exercise of the discretion under s 57 of the Jury Act in directing the trial to continue with the remaining jurors, or in failing to give reasons for that exercise of discretion.

[30]  An appeal will only succeed against the exercise of a judge's discretion where it was exercised unreasonably or clearly unjustly or it arose from an error of fact or law or failed to take into account a material consideration or gave undue weight to some circumstance or matter: House v The King.[16]

[31]  The failure to give reasons for the exercise of a discretion will not necessarily amount to an error of law warranting the allowing of an appeal under s 668E(1) Criminal Code.  As Gummow and Hayne JJ noted in Evans v The Queen,[17] not every ruling given at trial must be accompanied by reasons.  Cases in which a discretion must be exercised are, however, more likely to warrant the giving of reasons than will issues such as the relevance of questions to a witness or the form in which questions are posed.[18]

[32]  Whilst s 57 contemplates that a judge has a wide discretion to allow a trial to continue with 11 jurors, the context and clear words of s 56 and s 57 also contemplate that some positive reason beyond the mere discharge of a juror must exist for the judge to make the order that the trial continue with less than 12 jurors: see McHugh J's observation in Wu.[19]

[33]  In determining the factors relevant to the exercise of that discretion it is helpful to review some recent cases.  Callinan J in Wu, noted:

"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 Act] 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."[20]

[34]  In Hutchings, after the empanelment of the jury in Hutchings' trial for murder and at the conclusion of the prosecutor's opening, the trial judge told counsel, in the absence of the jury, that a juror had raised a matter with the bailiff.  Hutchings' counsel had been defence counsel in a case in which the juror's daughter was the complainant.  The juror informed the other jurors of this.  The juror was brought into court without her fellow jurors.  She said she did not consider this matter would affect her impartiality or judgment and she had not discussed the matter to any extent with the other jurors.  Defence counsel applied for the discharge of the jury.  After discussing the issue with counsel, the judge stated that she would discharge the juror; if the remaining jurors had no difficulties the trial would proceed with a jury of 11.  This Court noted that the trial was not expected to be lengthy; it had only recently begun; it could have recommenced the following day with a fresh jury of 12.  This would have preserved Hutchings' right to be tried on the murder charge by a jury of 12 which was plainly a forensic advantage: Wu.[21]  This Court found that the trial judge's discretion under s 57 of the Jury Act in determining that the trial should continue with a jury of 11 members miscarried.  de Jersey CJ, with whom the other members of the Court agreed, noted:

"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."[22]

This Court determined that in the circumstances the decision to proceed with a jury of 11 instead of empanelling a new jury of 12 the following morning amounted to a fundamental irregularity requiring the allowing of the appeal, the quashing of Hutchings' conviction of manslaughter, and the ordering of a re-trial.

[35]  In Shaw, the appellant was convicted by a jury of dangerous driving causing death with a blood alcohol concentration exceeding 0.15.  On the third day of the trial, the judge discharged a juror who had failed to attend court but had sent a medical certificate stating that the juror was unfit for two days.  Shaw's counsel submitted that the trial should not proceed with 11 jurors "because it was an 'old matter', with no eye-witnesses and it contained the prejudicial allegation that Shaw was under the influence of alcohol at the time of the collision [in which the complainant was injured]".  His counsel submitted that it was imperative for Shaw to be judged by a full complement of jurors.  Although the trial judge was not referred to Wu or Hutchings, he considered a number of relevant matters which made clear that the judge was aware of Shaw's fundamental right to a trial by 12 jurors.  The judge identified appropriate reasons for continuing with 11 jurors.  Shaw's appeal was dismissed.

[36]  The primary judge in the present case did not initially undertake the two step process identified in Wu and discussed in Hutchings and Shaw.  After discharging juror number 12, the judge did not immediately make a separate order directing that the trial continue with the remaining 11 jurors.  This order was not made until the following morning, by which time Wu had been brought to the judge's attention.  The judge then, in her words, "formally ma[d]e the order that the trial continue with the remaining jurors".  The judge did not give discrete reasons for that order, but noted that "although they're two separate orders, we've canvassed all the considerations".  The appellant's counsel made no submissions to the effect that the trial should not proceed with the 11 jurors or that the jury should be discharged.  He appeared to have abandoned his initial concern about the trial proceeding with 11 instead of 12 jurors when he became concerned about the perceived lack of impartiality of juror number 12.

[37]  Although the judge referred to Wu, the transcript does not unequivocally demonstrate that her Honour was necessarily cognisant of the strong observations made by McHugh, Kirby and Callinan JJ in Wu as to the fundamental right of an accused person to a trial for the most serious crime of murder by a jury of 12 members.  Defence counsel, however, had originally submitted that his client was charged with murder and should have 12 jurors decide her fate.  When making the order to continue the trial with 11 jurors, the judge referred to Wu, however, and to the considerations canvassed the previous evening.  I am satisfied that her Honour was cognisant of the desirability of the appellant having 12 jurors decide her case.  Her Honour was also plainly cognisant of the fact that the appellant was charged with the murder of her infant son and must have appreciated that the community would regard such an offence with abhorrence.  It was clear from the transcript that the discharge of juror number 12 would not appear to have any effect on the ability of the 11 remaining members of the jury to perform their task satisfactorily: cf Wu.[23]

[38]  Although unstated, the primary reason for allowing the trial to continue with 11 jurors can be inferred.  It was that the trial, which had continued over six court days, during which 18 witnesses had given evidence, including three psychiatrists and the appellant, was in its final stages.  No doubt that was why the appellant's very experienced counsel did not ask for the discharge of the jury.  As recognised in Hutchings, allowing the trial to continue with 11 jurors will often be justified in such circumstances.[24]  It was also clear from the bailiff's evidence (which suggested that juror number 12 may not be impartial because she was at risk of being overborne) was not a matter which had any bearing on the ability of the remaining 11 jurors to carry out their function.  In such circumstances, the judge's decision to direct the trial to continue with the remaining 11 jurors was an unexceptional exercise of the discretion under s 57.  The unusual combination of circumstances in the present case was capable of supporting an exercise of discretion either to order that the trial continue with the remaining 11 jurors or to discharge the jury without giving a verdict. 

[39]  The legislature in enacting s 56 and s 57 plainly contemplated that even in cases of murder, where a juror has been discharged under s 56, as here, the trial of an accused person can continue with 11 jurors.  That is what s 57 states in unequivocal terms.  It is also what this Court identified in Hutchings.[25]  Despite the paucity of reasons for the order directing the trial to continue with the remaining 11 jurors, it can be inferred from the transcript that her Honour was cognisant of the relevant matters in exercising the wide discretion under s 57.  The appellant has not demonstrated, despite the paucity of reasons, that the primary judge's exercise of discretion was unreasonable or clearly unjust or that it arose from an error of fact or of law or failed to take into account any material consideration or gave undue weight to any circumstance or matter.  The appellant has not demonstrated that the judge has made a "wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice" within s 668E Criminal Code.  It follows that the appellant's contentions fail.

[40]  The appeal against conviction should be dismissed.

[41]  The appellant has also applied for leave to appeal against sentence.  Mr Byrne made no submissions in support of that application.  The appellant was sentenced to life imprisonment, the only penalty available for the offence of murder.  Her time spent in pre-sentence custody was declared as time served under the sentence.  It is not suggested that there is any error in that declaration.  The application must be refused.

ORDER:

1.  The appeal against conviction is dismissed.

2.  The application for leave to appeal against sentence is refused.

[42]  FRASER JA: I agree with the reasons of the President and with the order proposed by her Honour.

[43]  McMEEKIN J: I have read the reasons of the President.  I agree with her reasons and with the order proposed by her Honour.