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12
Court of Criminal Appeal 10 July 2012

BG v R

[2012] NSWCCA 139

Also reported as (2012) 221 A Crim R 215
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT OFFENCES ASSESSMENT OF THE EVIDENCE AS A WHOLE JURIES DECISION TO DISCHARGE A JUROR

Citation: BG v R [2012] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 10 July 2012
Judge(s): McClellan CJ at CL, McDougall J, Adamson J (unanimous)

Background

The appellant was convicted in the District Court of two counts of aggravated indecent assault against a child under ten years of age and one count of sexual intercourse with a child under ten years of age, contrary to the Crimes Act 1900 (NSW). The offences were alleged to have been committed against his daughter in Scone in mid-2003, when she was approximately eight years old. He was sentenced to an aggregate non-parole period of six years with an additional term of three years.

The trial was conducted before Payne DCJ and a jury that was reduced to eleven members after the discharge of one juror during deliberations. The appellant sought leave to appeal against his conviction on two grounds.

  • Whether the jury's verdicts were unreasonable, or could not be supported, having regard to the whole of the evidence
  • Whether the trial judge erred in discharging one juror and allowing the trial to continue with eleven jurors, thereby causing a miscarriage of justice

Decision

Ground 1: Unreasonable verdict

Applying the test in M v The Queen (1994) 181 CLR 487, the Court was required to independently assess the whole of the evidence, both as to sufficiency and quality, and determine whether it was open to the jury to be satisfied beyond reasonable doubt. The complainant gave detailed evidence of the assault, its surrounding circumstances, and her subsequent behaviour. The Court found that the jury's verdicts were supported by the evidence and were not unreasonable. This ground was rejected.

Ground 2: Discharge of a juror and continuation with eleven jurors

Under the Jury Act 1977 (NSW), the trial judge had power to discharge a juror and, separately, to continue the trial with eleven jurors. The Court emphasised that these are two distinct decisions, each requiring separate consideration. In this case, the trial judge had addressed the discharge of the juror but had not explicitly and separately addressed the statutory question of whether continuing with eleven jurors risked a substantial miscarriage of justice under s 53C.

The Court of Criminal Appeal conducted its own assessment of that question. The sole basis for arguing a risk of miscarriage was an inference that the discharged juror may have been a dissenting juror. The Court held that inference alone was insufficient to establish such a risk, particularly given that addresses, evidence, and the summing-up had all concluded before the discharge occurred. The decision to continue with eleven jurors was found to be within a proper exercise of discretion, and this ground was also rejected.

Importance of giving reasons

Although the failure to address the two-step process explicitly did not affect the outcome here, Adamson J observed that it is highly desirable for trial judges to state reasons both for discharging a juror and for the separate decision to continue the trial with fewer than twelve jurors. In the absence of stated reasons, the Court of Criminal Appeal is left to reconstruct the reasoning from the circumstances of the trial, which is an unsatisfactory position for all parties.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The decision confirms that when a juror is discharged under the Jury Act 1977 (NSW), there are two distinct decisions requiring separate judicial consideration: the decision to discharge the juror, and the decision whether to continue the trial with the remaining jurors.
  • A bare inference that a discharged juror was a dissentient does not, without more, establish a risk of substantial miscarriage of justice sufficient to prevent the trial from continuing with a reduced jury.
  • In dismissing the appeal, the Court of Criminal Appeal applied the standard from M v The Queen to conduct an independent assessment of the evidence, confirming that an appellate court must consider both the sufficiency and quality of the evidence as a whole.
  • Trial judges are strongly encouraged to give explicit reasons for both the discharge of a juror and the separate decision to continue with fewer than twelve jurors, so that an appellate court is not left to infer what the correct reasoning might have been.
  • The financial and personal costs of ordering a retrial are relevant factors in the exercise of discretion to continue a trial with a reduced jury, as confirmed by reference to R v Metius [2009] QCA 3.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Jury Act 1977 (NSW), including s 53C
- Jury Act 1995 (Qld)
- Criminal Justice Act 1965 (UK)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- Jones v The Queen [1997] HCA 12; 191 CLR 439
- Wu v The Queen [1999] HCA 52; 199 CLR 99
- R v Derbas (1993) 66 A Crim R 327
- R v Metius [2009] QCA 3; (2009) 2 Qd R 442
- R v Roberts [2004] QCA 366; (2005) 1 Qd R 408
- The Queen v Arnott [2009] VSCA 299; 26 VR 490
- R v Fontaine 2002 MBCA 107
- R v Goodson [1975] 1 WLR 549
- R v Hahn 1995 CarswellBC 1238
- R v Latimer [1990] OJ No 401
- R v Peters 1999 BCCA 406
- White v Knowles 2011 WL 1196053 (ND Cal)