Citation: R (Cth) v Petroulias (No. 32) [2007] NSWSC 1302
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 14 November 2007
Judge(s): Johnson J
Background
This decision arose as a procedural ruling during an ongoing criminal trial. On 12 November 2007, the jury sent a note to the trial judge advising that it had chosen a new foreperson. The change followed some personal tensions within the jury room, which had already been the subject of remarks made by the judge to the jury in open court.
When the jury returned to the courtroom, the new foreperson was observed seated in the position traditionally occupied by the foreperson. Counsel for the accused drew the court's attention to a 1915 Victorian decision suggesting that foreperson replacement required good cause and the consent of the outgoing foreperson. The Crown did not press that older case as stating the applicable principles.
Johnson J confirmed the change and indicated he would provide short written reasons, particularly in light of the Victorian precedent that had been raised.
Legal Issues
- Whether a jury in a criminal trial may replace its foreperson during the trial without demonstrating good cause to the trial judge
- Whether the consent of the outgoing foreperson is required before a replacement may occur
- What, if any, step the trial judge must take when notified of such a change
Decision
Johnson J began by noting that the role of foreperson has no statutory foundation in New South Wales under the Jury Act 1977. The foreperson functions solely as a spokesperson for the jury and holds no authority beyond that of any other juror, as confirmed in R v Fowler [2000] NSWCCA 352.
The 1915 Victorian decision of R v Lonsdale (1915) VLR 269, which the accused's counsel raised, was carefully examined. Johnson J concluded that the case was not true authority for the proposition that good cause and the outgoing foreperson's consent are prerequisites for replacement. The trial judge in that case had merely allowed the change in circumstances where those conditions happened to be present; he did not hold them to be requirements.
More directly on point were two statements from the High Court in Ng v The Queen (2003) 217 CLR 521. McHugh J stated that there is nothing to stop jurors changing their foreperson as often as they like. Kirby J similarly observed that the jury may decide to select a replacement foreperson during the course of a trial, and that the reasons behind such a change are private to the jury and unknown to the judge, the parties, and the community.
Johnson J concluded that the only step required of the trial judge is to note that a change has occurred. No inquiry into the reasons for the change, and no order, is necessary. The selection and replacement of the foreperson remains entirely a matter for the jury throughout the trial.
Orders Made
No orders were made in this decision.
Key Takeaways
- A jury in a criminal trial in New South Wales may replace its foreperson at any time during the trial without providing reasons and without the trial judge being satisfied that good cause exists.
- The outgoing foreperson's consent is not a prerequisite for replacement; the decision rests entirely with the jury as a whole.
- R v Lonsdale (1915) VLR 269, despite its headnote, was held not to establish good cause and consent as mandatory conditions. The trial judge in that case merely permitted a change where those circumstances were present, not because they were legally required.
- The foreperson's role under the Jury Act 1977 (NSW) carries no statutory foundation and confers no authority beyond that of a spokesperson, which underpins the jury's freedom to change that role at will.
- Johnson J noted, as an aside, that the forthcoming Jury Amendment Act 2007 would introduce a statutory provision (s 55G of the Jury Act 1977) protecting the foreperson from being balloted out when an expanded jury is reduced to a verdict jury of 12, with the word "foreperson" in that provision referring to whoever holds the role at the time the ballot occurs.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW)
- Jury Amendment Act 2007 (NSW) (passed but not yet commenced at time of decision)
Cases
- R v Lonsdale (1915) VLR 269
- R v Fowler [2000] NSWCCA 352
- Ng v The Queen (2003) 217 CLR 521