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9
Court of Criminal Appeal 16 May 2007

PETROULIAS v R

[2007] NSWCCA 134

Also reported as (2007) 73 NSWLR 134
Fraud & dishonestyPublic order & justice offences
CRIMINAL PRACTICE TRIAL BY JURY COMMONWEALTH CONSTITUTION S 80 TRIED ACCORDING TO LAW DECISION TO DISCHARGE JUROR DECISION TO DISCHARGE JURY

Citation: Petroulias v R [2007] NSWCCA 134
Court: New South Wales Court of Criminal Appeal
Date: 16 May 2007
Judge(s): McClellan CJ at CL; Simpson J; Hoeben J

Background

The appellant was on retrial in the Supreme Court, facing Commonwealth charges of defrauding the Commonwealth, corruptly agreeing to receive a benefit as a Commonwealth officer, and unlawfully publishing documents held by virtue of that office. The jury had been empanelled on 26 March 2007 and the trial was well underway by day 25.

On day 25, a juror failed to appear. Inquiries revealed that he had been arrested over the preceding weekend and charged with a series of driving and related offences. Critically, further investigation disclosed that the juror had been the subject of court-ordered driving disqualifications since 2002 and remained disqualified from driving until 2015.

Under section 6(a) and Schedule 1 of the Jury Act 1977 (NSW), a person currently subject to a disqualification order is not qualified to serve as a juror. The juror had therefore been ineligible from the moment of empanelment. The appellant applied to have the entire jury discharged; the Crown opposed this and sought to continue with the remaining 11 jurors under section 22. The trial judge accepted the Crown's position and discharged only the disqualified juror, ordering the trial to proceed with 11. The appellant appealed that ruling to the Court of Criminal Appeal.

  • Whether a jury that included, from the outset, a person disqualified from jury service was lawfully constituted under section 19 of the Jury Act 1977, which requires the jury to consist of 12 persons returned and selected in accordance with the Act.
  • Whether section 22 of the Jury Act 1977, which allows trial to continue after a juror is discharged "for any other reason," could be invoked to remedy the irregularity by simply discharging the disqualified juror and proceeding with 11.
  • Whether section 73 of the Jury Act 1977, which provides that a verdict is not invalidated merely because a juror was disqualified, had any bearing on the availability of section 22 during the trial.
  • Whether the continuation of the trial with an 11-person jury constituted a breach of section 80 of the Commonwealth Constitution, which guarantees trial by jury for indictable Commonwealth offences.

Decision

The majority (Simpson J, with whom Hoeben J agreed, and McClellan CJ at CL separately concurring in the outcome) held that the trial judge's orders could not stand and that the jury had to be discharged.

The central reasoning was that section 19 of the Jury Act imposes a mandatory requirement that the jury consist of 12 qualified persons. Because the disqualified juror was never a lawful member of the jury, the trial had in substance commenced with only 11 qualified jurors from the outset. Section 22, which permits a trial to continue after a juror is discharged during its course, addresses the situation where a properly constituted jury is later reduced, not a situation where the jury was never properly constituted to begin with. The section could not be stretched to cure a fundamental defect that existed at empanelment.

The court addressed the respondents' argument based on section 73, which provides that a verdict is not invalidated merely because a juror was disqualified. The majority accepted that section 73 would operate to protect a verdict already returned in such circumstances, but concluded it said nothing about whether section 22 could be used to continue a trial once the disqualification was discovered before verdict. The two provisions addressed different stages and different problems.

On the constitutional question, the court was not persuaded that section 80 of the Commonwealth Constitution required a jury of exactly 12 members. Relying on the High Court's reasoning in Brownlee v The Queen, the court confirmed that the essential constitutional requirement is the mode of trial, not a specific number of jurors, and that a jury of fewer than 12 could in principle satisfy section 80 if local law so provided. The constitutional argument therefore failed, but the statutory argument succeeded, and the appeal was allowed on that basis.

Orders Made

  • The judgment of Johnson J of 10 May 2007 was vacated.
  • The jury empanelled in the trial of R v Petroulias was discharged.

Key Takeaways

  • Section 19 of the Jury Act 1977 (NSW) was treated as a mandatory requirement: a jury must consist of 12 persons who are qualified under the Act, and a person disqualified from the outset was never lawfully a juror at all.
  • Section 22, which allows trial to continue with a reduced jury after a juror is discharged, operates in respect of a jury that was properly constituted when the trial began. It does not extend to remedy a defect in composition that existed from empanelment.
  • Section 73, which shields a verdict from challenge on the ground that a juror was disqualified, addresses the position after a verdict is returned. The Court of Criminal Appeal held it does not enlarge the scope of section 22 during a trial.
  • Hoeben J noted in a qualifying observation that section 22 could operate to save a trial where a juror becomes disqualified after empanelment but before verdict, a scenario distinct from the one before the court.
  • Under section 80 of the Commonwealth Constitution, the Court of Criminal Appeal confirmed, consistently with Brownlee v The Queen, that the constitutional guarantee of trial by jury does not mandate a jury of exactly 12. The flaw in this trial arose from the NSW statutory framework, not from any constitutional requirement.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 6, 19, 22, 73, Schedule 1
- Crimes Act 1914 (Cth), ss 29D, 70, 73
- Criminal Appeal Act 1912 (NSW), s 5F
- Judiciary Act 1903 (Cth), s 78B
- Commonwealth Constitution, s 80

Cases
- Brownlee v The Queen (2001) 207 CLR 278
- Cheatle v The Queen (1993) 177 CLR 541
- Katsuno v The Queen (1999) 199 CLR 40
- Wu v The Queen (1999) 199 CLR 99
- Wilde v The Queen (1988) 164 CLR 365
- Maher v The Queen (1987) 163 CLR 221
- Johns v The Queen (1979) 141 CLR 409
- Swansson v R; Henry v R [2007] NSWCCA 67
- R v Brown and R v Tran (2004) 148 A Crim R 268