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Court of Criminal Appeal 16 March 2007

Luland v R

[2007] NSWCCA 64

Assault & violenceTheft & property

Citation: Luland v R [2007] NSWCCA 64
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2007
Judges: Sully J (principal judgment), Bell J, Hoeben J (agreeing)

Background

The appellant was tried in the District Court at Nowra on four counts arising from a violent home invasion at Bawley Point in December 2004. The offences included aggravated break and enter, assault occasioning actual bodily harm, and two counts of armed robbery. The victims were a husband and wife who operated a local supermarket. The trial had a troubled history, having been the subject of multiple adjournments and two prior jury discharges before the trial the subject of this appeal finally commenced on 5 December 2005.

Shortly after empanelment, it emerged that one juror was a close friend of the appellant's nephew. All parties agreed that juror had to be discharged. The question then became whether the trial should proceed with the remaining eleven jurors or begin again with a fresh panel of twelve.

The trial judge, Knight DCJ, exercised his discretion under section 22 of the Jury Act 1977 (NSW) to continue with eleven jurors, over the appellant's objection. The jury convicted the appellant on all four counts. The appellant appealed against conviction on the sole ground that the judge erred in making that order.

  • Whether the trial judge erred in exercising his discretion under section 22 of the Jury Act 1977 (NSW) to continue the trial with eleven jurors rather than discharging the jury and commencing afresh with a full complement of twelve.
  • Whether, if error were established, the consequence would be that the trial was a nullity.

Decision

Sully J (with Bell J and Hoeben J agreeing) dismissed the appeal. The Court found that section 22 of the Jury Act confers a discretionary power on the trial judge to order that a trial continue with a reduced jury where a juror is discharged mid-trial. The standard for appellate interference with such a discretionary decision is that established in House v The King (1936) 55 CLR 499: error must be demonstrated in the exercise of the discretion itself, not merely that the appellate court might have decided differently.

The Court identified several factors that weighed in favour of the judge's decision. The trial had already been subject to a long and troubled procedural history, including multiple abortions and adjournments. Proceeding with eleven jurors was supported by the Crown, and the discharged juror had been removed at the very outset of the trial, before any evidence had been given. In those circumstances, the Court found no error in the judge's exercise of discretion.

Sully J acknowledged one residual concern: the judge appeared not to have considered even a short adjournment to summon a replacement juror, which would have preserved the full twelve-person jury. However, Sully J held that the burden remained on the appellant to show the refusal to consider that option was so manifestly unreasonable as to outweigh all other considerations. The Court noted that Nowra is a country circuit town, where summoning a fresh jury panel at short notice is not straightforward, and that no attempt had been made at first instance to ascertain whether a replacement panel could in fact be assembled. In the absence of any evidence on that point, the appellant could not discharge his burden.

The Court expressly reserved its position on whether, had error been found, the trial would have been a nullity. That question was unnecessary to decide given the appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • Under section 22 of the Jury Act 1977 (NSW), a trial judge holds a discretion to order that a criminal trial continue with a reduced number of jurors after one juror is discharged. The discretion is not confined to any single set of mandatory considerations.
  • Appellate interference with that discretion requires demonstrated error in the exercise of the discretion itself, applying the House v The King standard. A difference of view on the merits is insufficient.
  • Relevant factors in assessing whether to exercise the section 22 discretion include the stage of the trial at which the juror was discharged (here, before any evidence), the procedural history of the matter, and the positions of both parties.
  • No error was established in the trial judge's failure to adjourn to summon a replacement juror where no evidence existed at first instance about the practicability of doing so, and where the proceedings were in a regional circuit court rather than a metropolitan centre.
  • The Court of Criminal Appeal expressly left open the question of whether, had error been made out, the consequence would have been that the entire trial was a nullity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 97(1), 112(2)
- Jury Act 1977 (NSW), s 22
- Criminal Appeal Act 1912 (NSW)

Cases
- Wu v The Queen (1999) 199 CLR 99
- House v The King (1936) 55 CLR 499
- Veen v The Queen [No. 2] (1988) 164 CLR 465