Citation: Ken TAN v REGINA [2007] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 19 July 2007
Judge(s): Spigelman CJ, Kirby J, Latham J
Background
The appellant was convicted in the District Court of possessing firearms and possessing prohibited weapons. Following conviction, a significant procedural irregularity in the constitution of the jury came to light.
One juror summoned for jury duty in October 2006 mistakenly attended court in September 2006 instead. By an unusual coincidence, that juror's call number shared its last three digits with a different juror who had been summoned for September but did not appear. This coincidence set in motion a chain of events that resulted in the wrong-day juror being selected onto the jury panel that ultimately convicted the appellant.
The appellant appealed on a single ground: that the trial was a nullity because the jury had been constituted in breach of the Jury Act 1977 (NSW).
Legal Issues
- Whether the presence of a juror who attended court on the wrong date, due to a clerical coincidence, constituted a fundamental irregularity in the constitution of the jury
- Whether that irregularity rendered the trial a nullity and the conviction invalid
Decision
The Court of Criminal Appeal held, unanimously, that the irregularity was fundamental and that the trial was a nullity. The Crown conceded the point and accepted that the earlier decision in R v Brown (2004) 148 A Crim R 268 was directly applicable and could not be distinguished.
Spigelman CJ emphasised that the criminal justice system depends on the complete randomness of jury selection. The rules governing that process are designed to be self-executing, so that no individual needs to assess whether a particular departure from those rules was materially significant in any given case.
His Honour acknowledged it was regrettable that what might appear to be a technical error had such a serious consequence. However, the Court found that outcome was inevitable on the existing authorities. Once the jury selection process is compromised, the integrity of the verdict cannot be sustained regardless of the apparent innocuousness of the departure.
Kirby J and Latham J agreed without further elaboration.
Orders Made
- Conviction quashed
- A new trial to be held
Key Takeaways
- The Court of Criminal Appeal confirmed that a breach of the jury selection rules under the Jury Act 1977 (NSW) is capable of rendering an entire trial a nullity, even where the irregularity arose from an innocent mistake.
- Complete randomness in jury selection is treated as a foundational requirement of the criminal justice system, not merely a procedural preference.
- Where a juror is not validly selected under the applicable statutory rules, no inquiry into whether the error caused actual prejudice is required; the irregularity itself is sufficient to invalidate the verdict.
- The decision applies and follows R v Brown (2004) 148 A Crim R 268, confirming that principle remains good law in New South Wales.
- Upholding the conviction in such circumstances was not open to the Court, and the appropriate remedy was a new trial rather than simply quashing the conviction without retrial.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW)
Cases:
- R v Brown (2004) 148 A Crim R 268