R v Blackmore[2016] QCA 181

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  After a five-day jury trial the applicant, Christine Blackmore, was convicted on 17 July 2015 of fraud to the value of $30,000 or more (count 1); forging (count 2) and uttering (count 3).  The offences were charged as occurring at various times between March and September 2011.  She has appealed against her convictions, essentially on two grounds.  The first is that s 50, s 53 and s 54 Jury Act 1995 (Qld) were contravened so as to be likely to prejudice a fair trial.  The second is that the primary judge erred in not discharging the jury and in determining that the trial should continue with 11 jurors instead of 12.

[2] It is relevant to these grounds of appeal to note that there were two earlier trials.  The first commenced on 13 October 2014 and resulted in a mistrial on 14 October 2014 following an exchange of text messages between the appellant and a witness.  The second commenced on 26 November 2014 but the jury were discharged on 28 November 2014 when they were unable to reach a verdict after deliberating for 4 hours and 11 minutes.[1]

The relevant aspects of the trial

[3] The prosecution case alleged that the appellant, who owned a house in Grantham damaged during the 2011 floods, dishonestly represented that this house was her principal place of residence to obtain flood relief totalling $142,763 (count 1); forged the address on her rates notice (count 2); and faxed the altered rates notice to the Department of Communities (count 3).[2]

[4] The difficulties in the trial became manifest only after the jury retired to consider its verdict at 12.07 pm on the fourth day.  At 3.27 pm the bailiff informed the court, in the absence of the jury, that the jurors:

“…were all buzzing around.  They said that one of the jurors was upset.  That juror was in the toilets at the time and they thought that we should maybe adjourn for the day…One of them thought that she couldn’t say her true feelings because it was upsetting people and she didn’t want to stop her true feelings because she’s taken an oath.”[3] 

[5] The judge stated that she also understood one or some jurors asked the bailiff “whether a verdict of 11 would be sufficient”.[4]  With the concurrence of counsel, when the jury returned to the courtroom the judge stated:

“I’d sent the bailiff in just to see if you did need any assistance earlier and the feedback I got was that you might be encountering a bit of difficulty at the moment.  What I’m quite happy to do – and counsel’s happy too – is to let you go home now and resume your deliberations in the morning.  Do you think that would be of assistance?  Yes.  Okay.  All right.  So do any of you have any difficulty in getting back here for a 9 o’clock start to go back to deliberating?  Okay.  Well I will allow you to go home now then.  It’s even more important now that you are deliberating that you do not talk to anyone about the case or about your deliberations or anything to do with the – with any of the witnesses or the defendant or make any searches or inquiries.  So we’ll leave it at that now and we’ll get back – you back here at 9 o’clock.  You can just go straight back into the jury room and if and when you need any assistance, just let me know.”[5]

[6] The court adjourned at 3.34 pm but resumed without the jury at 3.49 pm when her Honour stated:

“Now I’ve got you back because when the bailiff went to escort the jury out they felt they couldn’t leave because juror number six in particular – well, he seems to be the juror that they all have concerns about.  One of the jurors said that we can’t let him go.  He needs to speak to someone.  He’s behaving very – what was the word? Aggressively?  Abusive, aggressive, slamming doors.  He seemed to be – anyway, the other jurors are certainly concerned about him to the extent that they don’t think they should leave yet and one of the women has sat him down and is making him a cup of tea.  The trouble with this is that I can’t imagine who I could tell him he could go and talk to.”[6]

[7] The judge, with counsel’s concurrence, had the jury return to the courtroom at 3.58 pm and stated:

“Now, members of the jury, you haven’t gone home and the reason for that is that you’ve raised concerns with the bailiff and the question I need to ask all of you – and all of you individually – and I want you to think very carefully about this before you answer, is whether any of you believe you are not able to carry out your duty in accordance with the oath or affirmation that you all took at the beginning of the trial and reach verdicts according to the evidence.  Do any of you feel that you are unable to do that?

JUROR NO 10 [indistinct] but I don’t feel it’s not possible [indistinct]

HER HONOUR:  All right.  It did appear before that you all thought that if you went home and slept on it, so to speak, you might be able to go ahead tomorrow.  You are in a difficult position, because I’ve given you those strong and strict directions not to talk about this to anyone else, and I can appreciate that some of you may prefer to speak to other people about this matter overnight, but you really must not do that, not now that you’re – but particularly not now that you’re deliberating.  So, really, if you all at this stage feel that you can be true to the oath or affirmation that you made, then we’ll continue tomorrow and I’ll have to let you go home tonight. Ok. So thank you and we’ll wish you a good night until tomorrow.  Thanks.”[7]

[8] After the jury retired, the judge observed that she did not presently have grounds to discharge Juror Number 6 but was concerned he was unwell.

[9] At 9.07 am the next morning court resumed without the jury.  The judge stated that all 12 jurors were back deliberating, adding that, shortly after the jury left the courthouse the previous afternoon, a registry staff member took a phone call from the wife of Juror Number 6:

“saying that her husband had just called her; he was very distressed; he was on his way home; but he was saying that he felt very pressured, he felt very unhappy, and didn’t want to come back here today and was thinking of going to the doctor’s to get a certificate or something… the registry staff member told her that – look, he’s an empanelled juror. He has to come back.  He has told the bailiff that he wants to go ahead, he wants to continue with the deliberations.  He feels he’s able to…  What I’ve instructed the bailiff to tell the jury, once they were all assembled, was … that if, either as a group or individually, any of them have any difficulty, then they should communicate with me by a note and I’ll try and deal with it.”[8]

[10] Defence counsel immediately applied to have the jury discharged, contending that the public perception of these events would be that not all jurors are able to deliberate true to their oaths.[9]

[11] The judge pointed out that she had asked the jurors to inform her if any of them felt unable to reach a verdict in accordance with their individual oaths and affirmations.  No juror had indicated he or she was unable to do this.  As her Honour was satisfied at that stage that the jurors could or were attempting to do their duty, she refused the application.[10]  The court adjourned at 9.22 am.

[12] The jury next sent the judge three pages of notes containing questions about the evidence and the law.[11]  After discussing these with counsel and with their concurrence, the judge gave the jury further redirections about which there is no complaint and which are of no direct relevance to this appeal.  The jury retired again at 1.53 pm.[12]

[13] At 3.16 pm the court reconvened in the absence of the jury.  The judge informed counsel that the jury had sent a note stating: “We are not in a position to come to a unanimous verdict.”  When the jury returned to the courtroom, the judge, again with the concurrence of counsel, uncontroversially directed them in accordance with Black v The Queen.[13]  At 3.23 pm the jury retired once more to consider their verdict.

[14] The court reconvened in the absence of the jury at 3.53 pm.  The judge informed counsel that the jury had indicated to the bailiff that they had not progressed and did not think they could.  They had been deliberating for eight hours and eight minutes.  Her Honour was satisfied that the prescribed period required under the Jury Act before allowing a majority verdict had elapsed, and that this was not a case that required a longer period of time for deliberation given the number of charges and their complexity.  Her Honour was also satisfied that the jury were unlikely to reach a unanimous verdict after further deliberation.  When the jury returned to the courtroom at 3.58 pm, the judge asked if they still could not reach a unanimous verdict even if given further time.  The speaker responded, “Yes.”[14]

[15] Her Honour then gave this direction:

“Well, our law does provide, members of the jury, for a majority verdict, but it only arises in certain circumstances.  We have reached those circumstances now.  When I say a majority verdict, though, it means a verdict where no less than 11 of you agree on the same verdict.  So what I will do – if after any further time you cannot agree – all 12 of you – on a verdict, then the verdict of 11 of you can be taken to be the verdict of the jury.

So I will ask you to retire again now and resume your deliberations, and it may be that you can still each [sic] a unanimous verdict, but if you are unable to reach a unanimous verdict, then you may find that you’re able to reach a verdict where 11 of you agree on the same verdict.  If that happens – well, either way – if it happens, you can let the bailiff know that you’ve reached a verdict and you can be brought in and we’ll take the verdict from you.

The procedure will be a little bit different, though, when you come back in again if you have reached verdicts.  You will be asked, first of all, if you’ve reached a verdict that all 12 of you agree on.  If you say no to that you will then be asked have you reached a verdict that all – that 11 of you agree upon and then we’ll take the verdicts on each charge along those lines, and we will need a confirmation, though, from you all that it is a verdict that 11 of you agree to.”[15]

[16] The jury retired again to consider its verdict at 4.00 pm.  The court reconvened in the absence of the jury at 4.45 pm.  The judge explained that, as the buzzer in the jury room was not working, she had the bailiff check on the jury at around 4.30 pm.  The bailiff responded that Juror Number 6 said he was not feeling well; the others said they were making progress.  The judge sent a message to the jury through the bailiff that if Juror Number 6 wanted to communicate directly he should write the judge a note.  Juror Number 6 then wrote to the judge in these terms: 

“I suffer from high blood pressure and I checked it this morning and it is through the roof…  I am also being treated for depression and at the moment I am feeling very bad.  I will be attending my doctor after today’s session.”[16]

[17] The judge told counsel that she intended to speak to the juror and ask him whether he was unable to proceed.  She could discharge him under s 56(1)(b) Jury Act if satisfied he was unable to proceed.

[18] The prosecutor agreed with that course, stating that if the trial was to proceed with 11 jurors, the judge should tell the jury that they could return a majority verdict of 10.[17]

[19] Defence counsel again applied to discharge the jury because Juror Number 6’s illness the previous day meant there had never been 12 jurors deliberating.  The judge rejected that contention, pointing out that, until perhaps 20 minutes ago, she had no indication that Juror Number 6 was not participating in the deliberations.  From her observations he seemed alert and receptive.  She discussed but rejected the notion of sending the jury home with them returning to their deliberations after the weekend.  Her Honour refused the application to discharge the jury.[18]

[20] The jury returned at 4.53 pm and the judge asked Juror Number 6 if he felt incapable of continuing as a juror.  Although the transcript records “indistinct,” it can be inferred that he must have stated that he felt incapable as the judge then discharged him.  In response to the judge’s query as to whether the rest of the jury were making progress, the speaker answered, “Yes.”  The judge directed that:

“…the jury can proceed with the 11 of you who are left.  That means that in terms of a majority verdict, now that there are only 11 of you left, a majority verdict can be one on which 10 of you agree.  So, otherwise, everything I said before applies.  But if 10 of you are able to agree on a verdict, then we can take that as the verdict of the jury.  So I’ll let you continue your deliberations.”[19]

[21] At 4.54 pm the jury once more retired to consider their verdict.  At the request of the prosecutor, the court reconvened at 6.01 pm in the absence of the jury.  The prosecutor asked the judge to remind the jury that a unanimous verdict was preferable.[20]  At 6.08 pm the jury returned to the courtroom and the judge stated:

“I think you’ll appreciate that we have ordered dinner for you and that should be here within the next 20 minutes or so, but just a couple of things I want to say to you.  Firstly – I think it’s probably obvious from what I said to you before, but a unanimous verdict of 11 of you is a preferable verdict to a majority verdict of 10 and I do urge you to try and reach a unanimous verdict on all three counts if you possibly can, but as I said to you before, I can take a majority verdict of 10 of you all agreeing on the same verdict.

Now, dinner’s been ordered.  You’ll get that shortly.  It’s up to you how long you need, but if you do feel that you’d rather come back on Monday morning, that is open, but if you want to keep going this evening – within reason – we’ll stick with it.”[21]

[22] The speaker stated that the jury wished, “to keep going for a while longer” and the jury retired at 6.09 pm.[22]  At 7.28 pm they returned with their verdicts: majority verdicts of guilty from 10 jurors on counts 1 and 3 (aggravated fraud and uttering) and a unanimous verdict of guilty from 11 jurors on count 2 (forgery).

Relevant provisions of the Jury Act

[23] Jury Act s 33 provides that a jury for a criminal trial consists of 12 people.  Jury Act, Part 6, “Jury Trials,” Division 1, “Procedure following selection of the jury,” contains s 50 which requires that members of the jury must be sworn or affirmed “to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury’s deliberations except as allowed or required by law.”  Part 6, Division 3, “Segregation of jury in criminal cases,” consists of s 53 and s 54 which relevantly provide:

“53Separation of Jury

…

(7)After the jury has retired to consider its verdict, the judge —

(a)may allow the jury to separate, or an individual juror to separate from the jury, if the judge considers that allowing the jury or juror to separate would not prejudice a fair trial; and

(b)may impose conditions to be complied with by the jurors or juror.

(8)A juror must comply with any conditions imposed by the judge under subsection (7)(b), unless the juror has a reasonable excuse.

…

(10)The validity of proceedings is not affected if a juror contravenes a provision of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.

54Restriction on communication

(1)While a jury is kept together, a person (other than a member of the jury or a reserve juror) must not communicate with any of the jurors without the judge’s leave.

(2)Despite subsection (1) —

(a)the officer of the court who has charge of the jury may communicate with jurors with the judge’s leave; and

(b)if a juror is ill—communication with the juror for arranging or administering medical treatment does not require the judge’s leave.

(3)A person who contravenes subsection (1) may be punished summarily for a contempt of the court.

(4)The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.”

[24] Part 6, Division 5, “Discharge of individual jurors or of whole jury,” includes s 56, s 57 and s 59A which relevantly provide:

“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, without discharging the whole jury, 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.

(2)However,…a criminal trial can not continue with less than 10 jurors.

…

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

...

59AVerdict in criminal cases for other offences

(1)This section applies to a criminal trial on indictment…

(2)If, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation, the judge may ask the jury to reach a majority verdict.

(3)If the jury can reach a majority verdict, the verdict of the jury is the majority verdict.

…

(6)In this section —

majority verdict means—

(a)if the jury consists of 12 jurors—a verdict on which at least 11 jurors agree; or

(b)if the jury consists of 11 jurors—a verdict on which at least 10 jurors agree.

…”

[25] Part 8 Jury Act, “Miscellaneous,” includes s 70 which relevantly provides:

70Confidentiality of jury deliberations

(2)A person must not publish to the public jury information.

Maximum penalty—2 years imprisonment.

(3)A person must not seek from a member or former member of a jury the disclosure of jury information.

Maximum penalty—2 years imprisonment.

(4)A person who is a member…of a jury must not disclose jury information, if the person has reason to believe any of the information is likely to be, or will be, published to the public.

Maximum penalty—2 years imprisonment.

(5)Subsections (2) to (4) are subject to the following subsections.

(6)Information may be sought by, and disclosed to, the court to the extent necessary for the proper performance of the jury’s functions.

…

(12)A former member of a jury may disclose jury information to a health professional who is treating the former member in relation to issues arising out of the former member’s service on the jury.

(13)The health professional may ask the former member to disclose jury information for the purpose of treating the former member in relation to issues arising out of the former member’s service on the jury.

(14)The health professional must not disclose jury information to anyone else unless the health professional considers it necessary for the health or welfare of the former member.

Maximum penalty—2 years imprisonment.

...

(17)In this section—

health professional means a person who practises a profession prescribed under a regulation for the definition, and includes a doctor and a psychologist.

jury information means—

(a)information about statements made, opinions expressed, arguments advanced, or votes cast, in the course of a jury’s deliberations; or

(b)information identifying or likely to identify a person as, or as having been, a juror in a particular proceeding.

…”

The appellant’s contentions

[26] As to the first ground, the appellant contends that communications between Juror Number 6 and his wife, and his wife’s resulting communication with the registry staff member, were in contravention of s 50, s 53 and s 54 Jury Act.  They contradicted the judge’s directions to the jury not to communicate with anyone outside the jury about the case and, the appellant submits, constituted external communications and irregularities in the trial.  The appellant emphasises that the respondent concedes these communications contravened both s 50 and s 53.[23]  In deciding not to discharge the jury the judge was not alerted to and did not consider those provisions.  Juror Number 6 contravened them by communicating with his wife about the jury’s deliberations and was likely to have had subsequent discussions once he returned home: see R v Edwards, Heferen & Georgiou.[24]  Contrary to the approach set out in R v Roberts[25] and R v Orgles and Orgles,[26] the judge made no enquiries of Juror Number 6 to ascertain the extent of the irregular communications and failed to ensure any actual or potential “infection” did not spread to the rest of the jury.  The appellant contends the impact of the juror’s external communications was unknown.

[27] Her Honour also erred, the appellant contends, in dismissing public perception as irrelevant: Edwards.[27]  The appellant contends that in this case, as in Edwards, an objective observer may well have concluded that another juror or jurors was aware of problems arising from Juror No 6’s external communications which might complicate the decision-making process.  Of particular concern was Juror Number 6’s earlier aggression which made Juror Number 10 upset and uncomfortable.

[28] The jury, the appellant submits, should have been discharged under s 53(10) or s 54(4) as, in all the circumstances, these contraventions of the Jury Act were likely to prejudice a fair trial in that there was a reasonable suspicion that the trial might not be justly carried through to its conclusion.

[29] As to the second ground of appeal, the appellant contends her Honour erred, not in discharging Juror Number 6 under s 56, but in allowing the trial to continue with less than 12 jurors under s 57.  The jury for a criminal trial consists of 12 people.  The power to discharge a juror under s 56 should be exercised only where the circumstances clearly call for it: Roberts.[28]  The judge’s enquiry as to the irregularities surrounding Juror Number 6 was cursory.  Her Honour gave no reasons either for discharging the juror or for allowing the trial to continue with 11 jurors: see Wu v The Queen.[29]  Juror Number 6 may well have wanted to leave the jury not because he was so unwell that he could not deliberate but because he was feeling pressured by other jury members.  It was open to consider that Juror Number 6 was a dissenter who had been subject to pressure from early in the jury’s deliberations.  In those circumstances his discharge, as in Roberts, gave rise to the perception that, when it was known that the jury were in a state of disagreement, “an obstacle to a verdict [had] been removed.”[30]  It was logical for the appellant to perceive that, with the discharge of the juror, she lost a dissenting voice against conviction in the jury room.  As Kirby J observed in Wu, “every juror presents a forensic advantage to an accused person.”[31]  It was incumbent upon the judge to identify the reason for discharging the juror, having approached the decision without haste and with as full an enquiry as was practical and reasonable in the circumstances.[32]

[30] The task of allowing the trial to continue with 11 jurors should not be approached lightly, the appellant contends: R v Hutchings.[33]  It is impossible to ascertain from the judge’s ruling what justified continuing the trial with less than 12 jurors.  The fact that the trial was well advanced, with the jury having deliberated for more than eight hours, should have given way to considerations of the appellant’s right to a fair trial and one which could be perceived to be fair.[34]  It could reasonably have been inferred that Juror Number 6 may have been unwilling to convict so that, the appellant contends, this was within the categories discussed in BG v R[35] where it was inappropriate to order that the trial continue with the remaining jurors.

[31] For these reasons, the appellant contends in allowing the trial to continue with 11 jurors, after discharging Juror Number 6, the judge’s discretion under s 57 miscarried.  Instead, the judge should have discharged the jury.  The appellant contends that the appeal against conviction should be allowed and a retrial ordered on all counts.

Were there contraventions of the Jury Act such as to prejudice a fair trial?

[32] After the jury had been deliberating for less than four hours,[36] the judge was informed that one juror (whom we now know was Juror Number 6) was behaving aggressively; he was abusive and needed to speak to someone.  The judge asked all jurors if they were able to perform their duty in accordance with their oaths or affirmations.  All jurors indicated they could.[37]  The judge, acting under s 53, allowed the jury to go home overnight, reminding them of her “strong and strict directions not to talk about this to anyone else” and that they “really must not do that” now that they were deliberating on their verdict.[38]   Shortly beforehand the judge directed them to “not talk to anyone about the case or about [their] deliberations or anything to do with...the witnesses or the defendant or to make any searches or inquiries.”[39] The judge, therefore, made it a condition of allowing them to separate under s 53 that they not talk about the case to anyone.

[33] Juror Number 6 shortly afterwards telephoned his wife and told her that he was on his way home and felt very distressed, very pressured and unhappy, did not want to return the following day, and was thinking of obtaining a medical certificate from a doctor.

[34] Despite any concession made by the respondent, I am unpersuaded that there is evidence that Juror Number 6 contravened s 50 which required him “not to disclose anything about the jury’s deliberations except as allowed or required by law.”  To go beyond the transcribed record as to what the juror said to his wife would be to impermissibly speculate.  The transcript does not establish that the juror disclosed to his wife anything about the case or the jury’s deliberations on it.  The most likely inference is that he felt very pressured and unhappy because of a combination of the onerous task of deliberating on a jury and his later disclosed health problems.  There was no reason to conclude from that evidence, even with hindsight, that he felt pressured because he was a minority voice in the jury room.

[35] Nor do I accept the contention that the judge was required to question Juror Number 6 to ascertain further details of conversations: there was nothing to require investigation. A juror does not contravene s 50 or break his or her oath or affirmation by telling a bailiff or someone in the category of close family member, co-resident, or health professional, that he or she is feeling physically or mentally unwell because of the pressure flowing from the juror’s role in general.  The courts have a responsibility to ensure that jurors who become ill while performing jury service are able to ask for and obtain medical assistance. There is nothing in the Jury Act to gainsay that conclusion which is plainly in the public interest.  Indeed, it is supported by the scheme of the Jury Act, particularly the exception in s 50; s 53(8); s 54(2)(b); and s 70(12), (13) and (14).[40]  This aspect of the first ground of appeal is not made out.

[36] It may be helpful if I give some guidance as to how registry staff should react in circumstances such as those which arose here.  Although the staff member’s reaction was understandable, with hindsight it was unfortunate that she told the juror’s wife, without qualification, that he had to return the following day.  Ideally, the staff member would advise that, if the juror considered he was too ill to do jury duty, he should obtain a medical certificate stating the nature and likely duration of the illness.  If he was able to attend court the following day he should do so, provide the bailiff with the medical certificate and ask the judge to excuse him for the period stated in the medical certificate.  If he felt too ill to attend court, he should inform the court and arrange for the medical certificate to be delivered to the court.  If he could not have the medical certificate delivered to the court, he should inform the registry staff member of the contents of the medical certificate and ask for guidance.  If the unwell juror is unable to or has not obtained a medical certificate, he should inform the registry staff member of this.  The staff member should ascertain as comprehensively as possible the details of the illness, including when the juror expects to recover and report this to the bailiff as soon as possible.  In all cases the staff member should obtain the juror’s contact details.

[37] The transcript does not suggest that Juror Number 6 infringed s 54(1) in communicating with his wife.  The terms of that provision make clear it applies only where the jury is kept together.  At the time of the impugned communications in this case, the judge had allowed the jury to separate under s 53.  The only rational inference from the transcript is that Juror Number 6 phoned his wife after the judge had discharged him for the evening so that s 54(1) did not apply.  This aspect of the first ground of appeal is not made out.

[38] The final aspect of this ground of appeal is whether Juror Number 6 contravened s 53 so that the jury had to be discharged to ensure the fairness of the trial.  The most that can be gleaned from the transcript as to the impugned communications is that there was some possibility that Juror Number 6 may have felt distressed, pressured and unhappy, not because of the inherent pressures of jury service but because he was of a minority view and was feeling pressured by other jurors in the majority.  But this seems highly unlikely as, before the jurors were allowed to separate under s 53 and before Juror Number 6 spoke to his wife, all jurors indicated to the judge that they felt they could perform their duty as jurors.  The only juror who expressed any initial hesitation was the female Juror Number 10.[41] The next morning the judge instructed the bailiff to tell the jurors that if they were having difficulties to send a note.  Juror Number 6 at no time throughout the two days of deliberations prior to his discharge informed the bailiff or the judge that he was being pressured, let alone as a minority juror. He raised no concerns about anything at all until shortly before his discharge at 4.53 pm on the second day of deliberations, and that was that he felt unwell.

[39] The appellant understandably emphasises that in Edwards, Williams J set out five irregularities arising during the jury deliberations in that case.[42]  The first was arose when a juror discussed with the bailiff, in the absence of the other jurors, his personal problems and the fact that he was feeling suicidal.  Williams J considered that this conversation was likely (at least to the mind of an ordinary reasonable member of the public) to involve discussion of the impact on his personal problems of being locked up with the jury for a considerable period of time.[43]  Since Edwards was decided in 2000, the Jury Act has been significantly amended to allow for juries which have retired to consider their verdict to separate during their deliberations.[44]  Unlike the impugned conversation with the bailiff in Edwards, the conversation between Juror Number 6 and his wife occurred after the judge had allowed the jury to separate under s 53(7) so that s 54 had no application and there was no irregularity under or breach of the Jury Act.

[40] It must also be understood that in Edwards, the discussion with the bailiff was but one of many irregularities and a relatively minor one.  The recalcitrant juror went on to commit further flagrant breaches, under the Jury Act as it then was, of his obligation as a juror not to separate once the jury was deliberating on its verdict.  The Edwards juror left the hotel where the jury was confined for the night and visited a nightclub.  He then spoke at length to a police officer, in the absence of other jurors in breach of his statutory obligation not to separate from the remaining jurors, about the juror’s personal life and the pressures he was under as a juror.  This is in stark contrast to Juror Number 6’s impugned communications with his wife about his health issues which did not contravene the Jury Act as amended.  Williams J’s observations in Edwards were made in a quite different statutory and factual context to the present case.  They do not require this Court to conclude that the judge in this case erred in not discharging the jury because of the impugned communications.

[41] After carefully considering the appellant’s contentions, I am unpersuaded that Juror Number 6’s conversation with his wife and his wife’s subsequent conversation with a registry staff member amounted to an irregularity or a contravention of s 50, s 53 or s 54 of the Jury Act warranting the discharge of the jury.  I am unpersuaded that a fair-minded observer could reasonably conclude these communications could prejudice the fairness of the appellant’s trial.[45]  It follows that I do not consider the appellant’s first ground of appeal is made out.

Did the judge err in allowing the trial to continue with 11 jurors?

[42] The appellant no longer contends that the trial judge erred in discharging Juror Number 6.  That concession is rightly made as, although the judge gave no reasons, there were ample considerations to support the judge’s decision to discharge the juror under s 56.  Indeed, his apparently precarious health appeared to leave the judge with no other viable course.  The appellant contends, however, that her Honour erred in then not discharging the whole jury and in instead ordering that the trial continue with 11 jurors.

[43] In determining, after one or more jurors have been discharged, whether to order under s 57(1) that the trial continue with the remaining jurors, the starting principle is that a person charged with a criminal offence has a right to a trial by 12 jurors and only to be convicted by the unanimous verdict of those 12.  So much is clear from the terms of s 33 and Wu,[46] Roberts[47] and Hutchings.[48]  That principle continues to apply even though, since those cases were decided, the Queensland legislature has altered that fundamental right for pragmatic reasons. Trials on most Queensland offences, where a juror or jurors have been discharged under s 56, may, if the judge orders, now continue under s 57 with as few as 10 jurors.  The legislature has also now empowered a trial judge under s 59A to take a verdict after a jury of 11 jurors has deliberated for the prescribed period where at least 10 agree.  A system which allows for jury trials of this kind is not inconsistent with an accused person’s fundamental rights as identified by Gleeson CJ and McHugh J in Brownlee v The Queen,[49] citing the observations of White J in Williams v Florida.[50]  See also Jerrard JA’s observations in R v Shaw.[51]

[44] A major plank of the appellant’s second ground of appeal is that the impugned communications were irregularities which would cause a fair minded and informed observer to consider that this had infected the jury as a whole.  For the reasons I have given, I reject the contention that the impugned communications were irregularities.  For the reasons which follow, I also reject the contention that his conduct or behaviour may have infected the remaining members of the jury.  There was some evidence to suggest that the female Juror Number 10 may have been a minority juror and felt pressure, perhaps from Juror Number 6 at the end of the first day of deliberations.[52] Soon afterwards, however, she told the judge she was able to do her duty in accordance with her oath or affirmation.[53]  Significantly, there was no evidence that Juror Number 6, at the time of his discharge, rather than Jurors 1 to 5, 7 to 9, 11 or 12 was in the minority.  The judge reminded the jury throughout their deliberations of their duty according to their oath or affirmation and invited them to communicate with her if there were difficulties.  Other than the communication noted earlier from Juror Number 10, which apparently resolved soon after, no juror told the judge of any difficulties.  It follows that there was no reason to conclude that Juror Number 6’s conduct or behaviour was likely to have detrimentally impacted upon the other jurors’ deliberations.  The appellant’s contention that Juror Number 6’s previous conduct or behaviour may have infected the jury as a whole is not made out and was no reason for the judge not to order that the trial continue with 11 jurors.

[45] The appellant also contends that a reasonable, fair minded, informed member of the public might well conclude that Juror Number 6’s capacity to reason as a juror was affected from the beginning of the jury deliberations.  She argues that there was a reasonable apprehension that the appellant may not have received a fair trial as discussed in the following passage in Edwards:

“[48]Here the irregularities were so serious that in my view when the proper test was applied the conclusion was inescapable that the contraventions appeared likely to prejudice the fair trial of each of the appellants.

[49]That conclusion can be reached without considering whether the ‘deliberative capacity’ of Juror A (or indeed of any of the other jurors) was affected by the irregularities. In Davies (1991) 53 A Crim R 122 the New South Wales Court of Criminal Appeal had regard to the question whether the excessive drinking of two of the jurors might affect their ‘deliberative capacity.’  Mason CJ and McHugh J at 55 in Webb and Hay also considered whether the irregularity might support a conclusion that the state of mind of the juror in question was not compatible with the unemotional and impartial consideration of the case.  Here, given that the emotional state of Juror A and the fact that he was feeling suicidal was advanced as an explanation for his conduct, a reasonable member of the public might conclude that his ‘deliberative capacity’ was affected (or appeared to be affected) so that there was a reasonable apprehension that the appellants may not have received a fair trial.”

[46] As Edwards was not decided on that consideration, those observations are not binding.  They are also of limited utility as this case is factually very different to Edwards which was also determined under a substantially different statutory framework.  With hindsight, it is clear that Juror Number 6 should not have undertaken jury duty because of his health.  But, as the primary judge appreciated, there was no evidence that he was not well enough to, and did not conscientiously, perform jury service until shortly before his discharge.  When informed he was acting abnormally, the judge confirmed that all jurors were able to carry out their duty in accordance with their oath or affirmation.  The following morning the judge instructed them to communicate with her, individually or in a group, if there were difficulties.  Juror Number 6 did not indicate any concerns until shortly before his discharge and then only relating to his health.  As I have noted, the observations in Edwards, Roberts and Wu upon which the appellant relies must be construed in their own statutory context which, by contrast with the present case, did not provide for the jury to separate or give a majority verdict.  After the judge received Juror Number 6’s note that he was unwell, her Honour observed that he previously seemed alert and receptive.  Her Honour prudently made enquiries of Juror Number 6 in the presence of the whole jury, consistent with the approach recommended in Roberts[54] applying Orgles.[55]  There was no evidence to cause a fair minded informed member of the public to conclude that Juror Number 6 was not competently reasoning as a juror until shortly before his discharge.  This aspect of the appellant’s contentions is not made out.

[47] The appellant further contends, relying on Roberts and BG,[56] that it was improper to continue with 11 jurors after discharging Juror Number 6 as there was a reasonable perception that he was a dissenting juror in circumstances where the jury had been unable to reach a unanimous verdict.  These circumstances, the appellant contends, would cause a fair minded and informed observer to have a reasonable suspicion about the fairness of the trial: see R v GAE.[57]

[48] In BG[58] the New South Wales Court of Criminal Appeal (Adamson J, McClellan CJ at CL and McDougall J agreeing) set out three categories of case where the question may arise as to whether the trial should continue with the remaining jurors after one juror has been discharged.  These are:

“(1)Where there is no indication how the discharged juror would have voted;

(2)Where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and

(3)Where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal.”[59]

[49] Adamson J continued:

“104By and large the effect of the authorities is that it is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors if the case falls into either the second or the third categories.  In such cases, there is a risk of substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.

105What occurs in a jury room is beyond the province of the Court. Such an inquiry has long been held to be impermissible: AK v Western Australia [2008] HCA 8; 232 CLR 438 at [99] per Heydon J.  What distinguishes categories 2 and 3 from category 1 is that in those categories, something is known or can be inferred about what has transpired in the jury room such as to give rise to a substantial miscarriage of justice if the trial continues with the remaining jurors…

108The decision whether a juror’s view is sufficiently known to take the case out of the first category is a matter of judgment.

...

110The timing of the disclosure of the discharged juror’s intention is also significant.” [60].

[50] Adamson J then referred with approval to this Court’s decision in Roberts where Cullinane J, with whom McPherson JA and White J agreed, said:

“To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict, something which the law of this State does not permit.

The public perception includes as well as the general perception of the public that of the accused and the jurors concerned.

In my view the course which his Honour took has resulted in a miscarriage of justice.  The verdict should be set aside and a new trial ordered.”[61]

[51] Unlike in Roberts, Adamson J noted that in BG there was no disclosure to the judge of either the split or the views of the discharged juror and nor did the timing of the verdict or the composition of the majority verdict lead to an inference of how the discharged juror would have voted if not discharged.  This was a matter of speculation and therefore the case fell within the first category.[62]  Adamson J concluded that to allow the trial to continue with the remaining jurors did not give rise to a risk of a substantial miscarriage of justice and dismissed the appeal.  His Honour noted that the evidence, addresses and summing up had all concluded; the cost of a retrial in financial and personal terms was relevant; and there was no basis to consider that the discharge of the juror had compromised the ability of the remaining jurors to carry out their function.[63]

[52] The judge in this case correctly adopted the two-step process required by Wu,[64] first determining whether the juror should be discharged and then whether the trial should continue with the remaining jurors.  It is regrettable that Her Honour, unlike the trial judge in Shaw, did not give reasons for ordering that the trial proceed with 11 jurors.  The absence of reasons in a case like this, however, will not justify the granting of the appeal unless the resulting order has caused a miscarriage of justice: Evans v The Queen;[65] R v Metius[66] and BG.[67]

[53] A trial judge should never assume, simply because a juror is discharged under s 56, and the Jury Act allows the trial to continue with the remaining jurors, that the trial should automatically continue.  There must be reasons to justify an order to continue the trial with a reduced number of jurors. 

[54] As noted earlier, the starting point in exercising that discretion is that the appellant was entitled to be judged by 12 jurors and every juror is a potential forensic advantage.  Roberts and BG make clear that if there is evidence that the discharged juror is a dissenting juror, the trial should not continue with the remaining jurors.  The primary judge knew only that the jury were unable to reach a verdict; quite properly, she was not told how many jurors wished to convict or acquit on any count and nor did she know the view of Juror Number 6.  When the judge first learned of some friction in the jury room she enquired whether any juror felt unable to do their duty according to their oath or affirmation.  Only Juror Number 10 appeared to raise any initial concern, soon indicating that she could.[68] The impugned communications did not disclose whether Juror Number 6 was inclined to acquit or convict.  As soon as the judge learned of the impugned communications, she again reminded the jury of their duty in accordance with their oaths or affirmation to reach verdicts according to the evidence and enquired whether they felt able to do that.  The jury continued to deliberate and later requested redirections which included lengthy redirections about the evidence.  It was not until 3.16 pm the next day that they indicated they could not reach a unanimous verdict.  After the judge gave them the Black direction, in which she again reminded them of their obligation under their oath or affirmation, they still were unable to reach a unanimous verdict.  Only then, after they had deliberated for the prescribed period under the Jury Act, did the judge inform them that they could return a majority verdict if 11 of them agreed on the same verdict.

[55] Forty-five minutes later, Juror Number 6 sent the note stating he felt ill and was discharged.  As the jury had not so far been able to reach a verdict after reasonably lengthy deliberations, it was possible that the discharged juror may have been a dissenting juror holding out for an acquittal.  But this was no more likely for him than for Jurors 1 to 5, 7 to 9, 11 or 12.  About two and a half hours after the discharge of Juror Number 6 and the judge’s decision to allow the trial to continue with 11 jurors, the jury returned their guilty verdicts, including majority verdicts on counts 1 and 3.  Neither the delay between the discharge of Juror Number 6 and the return of the verdicts, nor any other facts, suggest he was a dissenting juror.  With hindsight we know there was a dissenting juror other than Juror Number 6 as majority verdicts were delivered on counts 1 and 3.

[56] Even with the benefit of hindsight, a fair minded, informed member of the public could not conclude that Juror Number 6 was holding out as a dissenting juror for an acquittal of the appellant on all or some counts and that the reason he was feeling so unwell and pressured was that he was a minority dissenting juror.  This case is therefore in the first category identified in BG: the circumstances surrounding his discharge did not preclude the judge from ordering that the trial continue with 11 jurors.  There was no reason for a fair minded, informed member of the public to perceive, even with hindsight, that allowing the trial to continue with 11 jurors has caused a substantial miscarriage of justice because the discharged juror was a dissenting juror.

[57] The following factors were also relevant to the exercise of discretion under s 57[69] and, despite the absence of clearly articulated reasons, it can be inferred that the judge fully comprehended them.  Jury Act s 57(1) gave the judge a discretion to direct that the trial continue with 11 jurors.  The appellant’s charges related to 2011 events, more than four years earlier and there is a public interest in prosecuting criminal trials with a minimum of delay.  There had already been two previous trials in which the jury had been discharged.  This trial had continued over five days and reached a very late stage.  Any further lack of finality in the proceedings would cause distress, both to the appellant and to witnesses.  There would be considerable expense involved in any further retrial.  The charges faced by the appellant were not in a category likely to arouse particular prejudice within the community: no one would approve of people making false claims on limited emergency flood relief funds but nor would they want those entitled to relief to be wrongly deprived of it or wrongly accused of seeking it. On the other hand, in allowing the trial to continue the appellant had been deprived of the chance to have 12 jurors consider her case.

[58] After carefully considering the appellant’s submissions and the unusual concatenation of circumstances in this case, I remain unpersuaded that the judge erred in exercising her discretion to order that the trial continue with 11 jurors, given the many factors I have listed supporting that decision and the paucity of evidence to support the hypothesis that Juror Number 6 was a dissenting juror or that in some other way there had been a flaw in procedural fairness resulting in a miscarriage of justice.  The second ground of appeal is not made out.

Conclusion

[59] As the appellant has not succeeded on either ground of appeal, I would dismiss the appeal against conviction.

Order

The appeal against conviction is dismissed.

[60] MULLINS J:  I agree with Margaret McMurdo P.

[61] DOUGLAS J:  I also agree with the President.