Citation: R v Geoffrey William Leonard (No 2) [2008] NSWDC 197
Court: District Court of New South Wales
Date: 4 September 2008
Judge(s): Berman SC DCJ
Background
The accused, a 74-year-old self-represented man with a history of heart problems, was on trial before a jury. He had been remanded in custody at the conclusion of proceedings the day before. On the morning of the verdict, while in the custody of corrective services officers, he was taken seriously ill and transported to hospital by ambulance. Ambulance officers assessed his illness as genuine and significant.
The jury had already informed court staff that they had reached a verdict. Within less than a minute of the judge being notified of the verdict, the accused's illness was also reported. The question immediately arose as to what the court should do: take the verdict in the accused's absence, or hold the jury until the accused could return.
The accused had no legal representation, so no one was present to advocate for his interests or to monitor the process of taking the verdict for any irregularity.
Legal Issues
- Whether a court may take a jury's verdict when an accused is absent not through voluntary absconding, but through genuine illness
- Whether the existing authorities on voluntary absence applied to involuntary absence at the verdict stage
- Whether section 54 of the Jury Act 1977 (NSW) permitted separation of the jury in these circumstances, given the jury had already reached (but not yet delivered) its verdict
- Whether the accused's general right to be present throughout trial extended to the moment of verdict delivery where he had no active role remaining
Decision
Berman SC DCJ acknowledged that the well-established authorities on accused persons absenting themselves, including R v McHardie and Danielson [1988] 2 NSWLR 733 (a case involving escaped accused persons), addressed voluntary absence only. None of the cases considered squarely addressed involuntary absence through illness at the precise moment a verdict was reached. The Crown and the court were unable to locate any authority directly on point.
The court noted the statement in Archbold (2005 edition, and traceable back to at least the 1949 edition) that the presence of the defendant is "not essential at the return of the verdict." Berman SC DCJ treated this statement cautiously, reading it as likely directed at voluntary absence rather than the involuntary situation before the court. It was not treated as a definitive answer either way.
The most significant concern driving the decision was the integrity of the verdict already reached. Leaving the jury unsequestered overnight created a real risk that jurors might research the accused's background, including what the judgment described as his extensive internet and YouTube presence, and be influenced to depart from a verdict they had already agreed upon. Locking the jury up overnight without delivering the verdict was the only alternative, and the court found that an unacceptable outcome.
Berman SC DCJ held, with expressed discomfort, that where a jury has actually reached its verdict and the accused's active role in the trial has concluded, the accused's absence does not prevent the verdict from being taken. The decision rested on the need to protect verdict integrity and on the court's reading of section 54 of the Jury Act 1977. The court directed the jury to deliver its verdict.
Orders Made
- The jury was directed to deliver its verdict notwithstanding the accused's absence due to illness.
Key Takeaways
- The District Court held that an accused's right to be present at trial is principally directed at participation in proceedings, including cross-examination, objections, and addresses to the jury, rather than the passive act of hearing a verdict announced.
- A distinction exists between voluntary and involuntary absence: the established authorities on taking verdicts in an accused's absence concerned voluntary absconding, and this decision addressed a gap in the law regarding genuine illness.
- The integrity of a jury's verdict, once reached, is a weighty consideration. Delay in returning a verdict creates the risk of jurors reconsidering their conclusion or being exposed to extraneous material.
- Under section 54 of the Jury Act 1977, the question of whether a jury may be separated after reaching (but before delivering) a verdict is not straightforward; the court treated the Crown's argument on this point as a factor, though verdict integrity was the more important basis for the ruling.
- Berman SC DCJ described the decision as "the best of two quite bad alternatives," signalling that the ruling was made on the particular and unusual facts before the court rather than as a confident statement of settled principle.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), s 54
Cases
- R v McHardie and Danielson [1988] 2 NSWLR 733
- R v Cornwell [1972] 2 NSWLR 1
- The Queen v Thomas Castro (1879) 5 QB 490
- R v Mokbel [2006] VSC 520