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Court of Criminal Appeal 19 March 2001

R v Radju

[2001] NSWCCA 103

Also reported as 121 A Crim R 403
Fraud & dishonesty
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION OBTAINING A VALUABLE THING BY DECEPTION FUNDAMENTAL FAILURE OF PROCEDURE

Citation: R v Radju [2001] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 19 March 2001
Judge(s): Wood CJ at CL, Giles JA, Simpson J

Background

The appellant was convicted in the Sydney District Court on three counts of obtaining a valuable thing by deception, contrary to s 178BA of the Crimes Act 1900. The trial proceeded before eleven jurors after one juror was excused mid-trial due to urgent overseas business commitments. No party objected to the discharge or to the trial continuing with the remaining eleven.

At the conclusion of the summing-up, the trial judge allowed the jury to begin deliberations that afternoon and indicated they could leave when they wished and return the following morning, notifying the Sheriff's Officer when they did so. Again, no party raised any objection to this arrangement.

The appellant sought leave to appeal against conviction on a single ground: that procedural failures went to the root of the trial process. Specifically, the appellant argued that the trial judge had failed to make the required formal orders in express terms when discharging the juror and when permitting jury separation.

  • Whether the trial judge's failure to make an express order under s 22 of the Jury Act 1977 when discharging the juror constituted a fundamental procedural error vitiating the conviction.
  • Whether the trial judge's failure to make an express order under s 54 of the Jury Act 1977 when permitting the jury to separate constituted a fundamental procedural error vitiating the conviction.

Decision

On the first ground, the Court of Criminal Appeal held that while an express formal order under s 22 of the Jury Act 1977 would have been preferable, the trial judge had clearly turned his mind to the question of whether the juror should be discharged and whether the trial should continue with the remaining jurors. His Honour's remarks, in the circumstances, amounted to an implied order sufficient to satisfy the statutory requirement. The absence of a formal order did not render the proceeding a fundamental failure of procedure.

On the second ground, the Court reached the same conclusion in relation to s 54 of the Jury Act 1977. The trial judge's directions to the jury about leaving when ready and returning the following morning reflected adequate consideration of the separation question. Those remarks amounted to an implied order permitting separation, with the timing of separation left to the jury's convenience. The Court rejected the suggestion that the matter had been impermissibly delegated to the Sheriff's Officer.

The Court nonetheless stated clearly that, going forward, trial judges should make express orders in both situations. For juror discharge, the relevant considerations should be recorded and reflected in formal orders. For jury separation, an express order should be made in the presence of the jury so that it appears on the transcript, and the trial judge should remind jurors not to discuss the case outside the jury room.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Conviction and sentence confirmed.

Key Takeaways

  • An implied order can satisfy the requirements of ss 22 and 54 of the Jury Act 1977, provided the trial judge has demonstrably turned his or her mind to the relevant questions, even where no express formal order is pronounced.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that procedural informality does not automatically constitute a "fundamental failure of procedure" going to the root of the trial, at least where the substance of the required judicial consideration is evident from the transcript.
  • Under s 22 of the Jury Act 1977, the considerations surrounding juror discharge and continuation of the trial should be recorded and reflected in formal orders made in express terms.
  • Under s 54 of the Jury Act 1977, an express order permitting jury separation should be made in the presence of the jury so that it is captured on the transcript; accompanying the order with a reminder to jurors not to discuss the case outside the jury room was identified as highly desirable.
  • No objection by counsel at the time is not determinative, but the absence of opposition was noted as part of the overall context in which the Court considered whether a fatal procedural error had occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 178BA
- Jury Act 1977 (NSW), ss 22, 54

Cases
- Wu (1999) CLR 99 (applied on Ground 1; considered on Ground 2)
- Maher (1987) 163 CLR 99 (distinguished on both grounds)