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9
Court of Criminal Appeal 30 September 2004

R v Brown & Tran

[2004] NSWCCA 324

Also reported as (2004) 148 A Crim R 268
Public order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION EFFECT OF NON

Citation: R v Brown & Tran [2004] NSWCCA 324
Court: NSW Court of Criminal Appeal
Date: 30 September 2004
Judge(s): Mason P, Sully J, Sperling J

Background

Two appellants were jointly tried in the District Court on serious charges arising from a series of offences committed in the early hours of 5 April 2001, including break-and-enter, robbery in company, and malicious damage. Both were convicted on all counts and each received an effective sentence of six years' imprisonment with a four-year non-parole period.

After the jury had been empanelled and the Crown prosecutor had opened the case, a significant irregularity came to light. A person referred to as "Ms Smith" had been summoned to attend for jury service on a later date but mistakenly attended court on an earlier date and was included in the jury pool from which the trial jury was drawn. She was not lawfully summoned to attend on the day in question.

The irregularity was apparently entirely innocent. Nothing suggested Ms Smith had deliberately presented herself for jury service on the wrong date in order to sit on this particular jury. Nevertheless, both appellants pressed the ground that the trial had been conducted with a jury that was not selected in accordance with the Jury Act 1977, rendering the proceedings invalid.

  • Whether a person who attends for jury service on a date other than the date on which they were summoned to attend is lawfully empanelled as a juror
  • Whether non-compliance with the mandatory jury empanelment provisions of the Jury Act 1977 rendered the trial, verdicts, and convictions a nullity
  • Whether the saving provision in s 73 of the Jury Act 1977 preserved the validity of the empanelment and the resulting verdicts
  • Whether the verdicts were otherwise unsafe and unsatisfactory (additional grounds not ultimately decided)

Decision

The Court of Criminal Appeal, with all three judges in agreement, held that the empanelment of Ms Smith was invalid and that the trial was a nullity. Sperling J delivered the principal reasons, with Mason P and Sully J each agreeing.

Sperling J analysed the relevant provisions of the Jury Act 1977, including ss 19, 25, 26, 27, 28 and 29, which govern the process of summoning and selecting jurors. His Honour concluded that those provisions are mandatory in nature: a person must be summoned to attend on the specific day of the empanelment. Ms Smith had not been summoned for the correct date, and her presence in the panel was therefore not authorised by the Act.

The Court then considered whether s 73 of the Jury Act 1977, a saving provision designed to prevent procedural irregularities from automatically invalidating proceedings, could rescue the empanelment. The Court found that s 73 did not apply in these circumstances. The section's scope did not extend to curing the fundamental defect of including in a jury panel a person who had no lawful authority to be there on that date.

Mason P added that one function of the random jury selection system is to prevent the possibility of jury composition being manipulated. Even where, as here, the juror's presence was entirely innocent, thorough investigation of such incidents would be difficult and the interrogation of jurors problematic. Those practical realities reinforced the conclusion that the relevant provisions of the Act are mandatory, and that non-compliance renders the empanelment invalid and ineffective. Because the trial was a nullity, the Court declined to finally determine the remaining grounds of appeal, though Sperling J noted his strong inclination that the evidence against one appellant on certain counts may not have been sufficient to support guilty verdicts.

Orders Made

In each appeal:
- Appeal allowed
- Verdicts set aside and convictions quashed

Key Takeaways

  • Non-compliance with the mandatory jury empanelment provisions of the Jury Act 1977 (NSW) rendered the entire trial a nullity, even where the irregularity arose from an entirely innocent mistake by the juror concerned.
  • The saving provision in s 73 of the Jury Act 1977 does not have unlimited reach: it could not cure the fundamental defect of including in a jury panel a person who was not lawfully summoned to attend on the relevant date.
  • A person summoned for jury service is only authorised to participate in the empanelment process on the date specified in their summons; attendance and inclusion on a different date falls outside the Act's framework.
  • The Court of Criminal Appeal confirmed that the purpose of random jury selection extends beyond procedural regularity: the system also guards against the risk of improper influence over jury composition, a risk that would be difficult to investigate after the fact.
  • Where a trial is found to be a nullity, the question of whether a retrial should occur is a matter for the prosecuting authority, not the appellate court.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 19, 25, 26, 27, 28, 29, 73
- Crimes Act 1900 (NSW), ss 97, 112, 117, 154A, 195
- Juries Act 1974 (UK, England and Wales), s 18

Cases:
- Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
- Katsuno v The Queen (1999) 199 CLR 40
- Maher v The Queen (1987) 163 CLR 221
- Johns v The Queen (1978) 141 CLR 409
- Dempster [1924] SASR 299
- Short (1898) 19 LR(NSW) 385
- Tuckerman v Tuckerman & Hogg (1932) SR(NSW) 220