R v Platen[2005] QDC 432

[2005] QDC 432

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No 754 of 2003

Dist-3386/03(1) QWIC

THE QUEEN

v.

BRIAN ROBERT PLATEN

BRISBANE

DATE 25/11/2005

REASONS FOR ORDER

HIS HONOUR: Consistently with the decision advised to counsel yesterday evening, I have discharged juror number 9 under section 56(1)(a) of the Jury Act on the basis that he ought not to be allowed to act as a juror in the trial. This should not be taken as any kind of a censure against him. He didn't know that such a step was contemplated. He had no opportunity to present a case that it should not happen. Yesterday afternoon, the juror appeared unsettled and distracted.

The Prosecutor felt it appropriate to enquire, in the course of his closing address, whether he was all right to continue, attracting an affirmative response. The situation became more concerning during the summing up, when the juror was muttering audibly but indecipherably what may have been private comments on the summing up or remarks to other jurors, including some in the row behind to whom he turned. He appeared to drop something which the bailiff - or it may have been the Prosecutor - later suggested was cigarettes. He was making a tapping motion with a cigarette lighter, it seems.

At 5.30 p.m., he exhibited huge satisfaction when told, in response to his own enquiry, that the jury could go home. He was heard to say, "Oh, what a feeling."  He appeared to have been consulting his watch on and off for some while. The jury were let go at that time, which was the limit of the likely extended sitting hours that the full jury panel was warned of before any juror was empanelled. No-one took up the opportunity, which was offered, to raise any difficulty about sitting until 5.30.

The late sitting seemed appropriate to me in unusual circumstances, including unavailability of both counsel this morning and the necessity to begin the trial all over again with a new jury, after the jury on the previous day had to be discharged, if the trial was to be completed this week. There were other relevant considerations such as the complainant's having come to Brisbane from Mackay. The jurors did have a long day, which inevitably began early to accommodate the jury orientation program which started at 8.45 a.m. No-one had to come in especially early for the listed trial time of 9.15. In the end, the panel were not available until about 9.30.

It is better that participants in a trial be at ease, rather than anxious about being taken to task for doing something judged inappropriate. My usual practice is to extend latitude to everyone in the courtroom to succumb to ordinary human proclivities, including displays of emotion, rather than insist on strict decorum - which might have the effect of confining and disadvantaging people brought here to carry out their particular roles. There was no question of letting the juror's conduct pass once the defence counsel drew attention to it and suggested the Court should act under section 56(1)(a).

I agree with Mr Richards' description of the observable behaviour of the juror which went far beyond simply dropping something and trying to retrieve it. Mr Andrew was not disposed to differ from Mr Richards' summary, although he was ambivalent about whether the juror should be discharged. The situation is nothing like that in Roberts [2004] QCA 366, where the jury had embarked on their deliberations before the trial Judge was asked to, and did, intervene to discharge one juror rather than all 12. There is no reason here to think that there are any difficulties or differences within the jury, least of all about getting agreement on any verdict.

I might add there is no reason to think that juror number 9 was inclined either towards the prosecution or the defence. Mr Richards' point is that the juror appears to have disabled himself from performing his sworn duty by inattention to the summing up which - given the nature and age of, and limited evidence to support, the charges - was replete with warnings which decisions of appellate courts require be incorporated. In my opinion, if any conviction were to be forthcoming, an appeal on the basis that the juror failed to appreciate the content and importance of all of those warnings would be likely to succeed.

There is an unacceptable risk that he would be deliberating in ignorance of the legal rules and principles he was sworn to apply. It is unfortunate that the jury separated yesterday before Mr Richards raised his point. There was no opportunity to look into matters with the juror privately or, as Roberts indicates is preferable, with the jury as a body. It would seem totally inappropriate to quiz the juror to ascertain his understanding of my directions, in which he seemed to take little interest. The bailiff reported, during a discussion with counsel, that the juror had been desperate for a cigarette at the end of Court.

If anything, that information confirms the approach I've taken. It's consistent with the gentleman's agitated demeanour which, at times, suggested physical discomfort. The last session of the day ran from about 3.55 p.m. to 5.30 p.m. In retrospect, it's unfortunate that the juror did not have the opportunity - I don't think he sought one - for a smoko in the lengthy break before that session which followed the defendant's evidence.