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Supreme Court 10 May 2007

R v Petroulias (No 17)

[2007] NSWSC 499

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW DISCOVERY OF THIS FACT DURING TRIAL

Citation: R v Petroulias (No 17) [2007] NSWSC 499
Court: Supreme Court of New South Wales
Date: 10 May 2007
Judge(s): Johnson J

Background

The accused faced trial on three charges under the Crimes Act 1914 (Cth), including defrauding the Commonwealth and offences related to his conduct as a Commonwealth officer. The trial was a retrial, following an earlier jury that had been unable to reach a verdict. By day 25 of the retrial, the Crown case was well advanced, with significant witness evidence already on the record.

On the morning of day 25, one juror failed to appear. Inquiries by the Sheriff's Office revealed that the juror had been arrested over the preceding weekend and refused bail. Further investigation uncovered that this juror had been disqualified from driving by court order and was subject to ongoing disqualification until 2015, making the juror a person disqualified from jury service under Schedule 1 of the Jury Act 1977.

The question immediately arose as to what consequences followed from a disqualified person having sat on the jury throughout the trial to that point. The parties advanced opposing positions: the accused submitted the trial was a nullity, while the Crown submitted it could and should continue with the remaining eleven jurors under s 22 of the Jury Act 1977.

  • Whether the presence of a disqualified person on the jury from the outset rendered the entire trial a nullity.
  • If the trial was not a nullity, whether the disqualified juror should be discharged under s 22 of the Jury Act 1977.
  • If discharged, whether the trial could lawfully continue with the remaining eleven jurors under s 22.

Decision

Johnson J held that the presence of a disqualified juror did not render the trial a nullity. The court reasoned that the disqualification provisions in the Jury Act 1977 are directory rather than mandatory in their effect on the validity of the trial itself, such that non-compliance does not automatically void proceedings. The High Court's approach in cases such as Brownlee v The Queen and Wu v The Queen informed this analysis, confirming that trials by jury for Commonwealth offences may proceed with fewer than twelve jurors in defined circumstances.

The court then considered whether s 22 of the Jury Act 1977, which permits discharge of a juror and continuation of the trial with the remaining jurors, was available in these circumstances. Johnson J concluded that it was. The section's language and purpose were broad enough to cover the situation of a juror who was disqualified at the time of empanelment, not merely one who became unable to continue after the trial commenced.

On the question of whether s 22 ought to be exercised, Johnson J found it appropriate to do so. The Crown case was substantially advanced, the evidence of major witnesses had already been given, and a retrial would cause considerable expense and inconvenience. Proceeding with eleven jurors was consistent with established authority and served the interests of justice in the circumstances.

A non-publication order was also made in relation to the circumstances of the absent juror's removal. The court noted that media reporting linking the juror's arrest to the trial could distract the remaining jurors and undermine the administration of justice.

Orders Made

  • The disqualified juror was discharged under s 22(a) of the Jury Act 1977.
  • The remaining eleven jurors were ordered to be considered, for all purposes of the trial, to be properly constituted as the jury, pursuant to s 22(a) of the Jury Act 1977.
  • A non-publication order was made prohibiting publication of the matters revealed during proceedings on 8, 9 and 10 May 2007 concerning the absent juror, the reasons for his absence, and the reasons for his discharge, until further order of the Court.

Key Takeaways

  • The Supreme Court held that a jury trial does not become a nullity merely because one juror was, from the outset, disqualified from jury service under Schedule 1 of the Jury Act 1977.
  • Section 22 of the Jury Act 1977 provides a power to discharge a juror and continue the trial with eleven jurors; the court found this power extends to a juror disqualified at the time of empanelment, not only to those who become unable to continue after selection.
  • Where a trial is substantially advanced and important evidence has been taken, the interests of justice may strongly favour exercising the s 22 power rather than declaring a nullity and requiring a retrial.
  • Under s 22, the remaining jurors are treated as properly constituting the jury for all purposes of the trial once the discharge order is made.
  • Courts retain implied or inherent power to make non-publication orders to protect the administration of justice where publicity risks distracting jurors or undermining ongoing proceedings.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), including ss 6, 22 and Schedule 1
- Crimes Act 1914 (Cth), ss 29D, 70, 73
- Evidence Act 1995
- Juries Act 1974 (UK)

Cases
- Wu v The Queen (1999) 199 CLR 99
- Brownlee v The Queen (2001) 207 CLR 278
- Maher v The Queen (1987) 163 CLR 221
- Cheatle v The Queen (1993) 177 CLR 541
- Ng v The Queen (2003) 217 CLR 521
- Katsuno v The Queen (1999) 199 CLR 40
- Brown v The Queen (1985-1986) 160 CLR 171
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- R v Brown & Tran (2004) 148 A Crim R 268
- Swansson v R [2007] NSWCCA 67
- R v Halmi (2005) 62 NSWLR 263
- R v Janceski (2005) 64 NSWLR 10
- R v Ronen [2004] NSWCCA 176
- Williams v Florida (1970) 399 US 78
- R v Petroulias (No 1) [2006] NSWSC 788