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Court of Criminal Appeal 14 September 2012

Le v R

[2012] NSWCCA 202

Theft & propertyFirearms & weapons
CRIMINAL LAW PROCEDURE JURIES DISCHARGE AND EXCUSING FROM ATTENDANCE INDIVIDUAL JURORS THE JURY IN CRIMINAL PROCEEDINGS

Citation: Le v R [2012] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 14 September 2012
Judge(s): McClellan CJ at CL, Hall J, R A Hulme J (judgment by R A Hulme J, with whom the others agreed)

Background

The appellant was convicted by jury of larceny and discharging a firearm with intent to resist arrest, receiving a total sentence of seven years' imprisonment with a five-year non-parole period. The trial ran longer than originally estimated, and during jury deliberations one juror raised a pressing commitment: he was scheduled to travel to Malaysia on the Monday following the Friday on which deliberations were continuing, with significant financial consequences if he could not give his customers certainty.

The trial judge, with the support or non-opposition of both the Crown and the applicant's own counsel, managed the situation by reassuring the juror, then later discharging him and directing the trial to continue with the reduced jury under the relevant provisions of the Jury Act 1977. The jury subsequently returned guilty verdicts.

On appeal, new counsel (who had not appeared at trial) raised three grounds challenging the trial judge's handling of the juror discharge process. None of those grounds had been raised at trial, and the decisions now impugned had either been actively supported by trial counsel or passed without objection.

  • Whether the trial judge erred in commencing the discharge process before the statutory precondition in s 53B(d) of the Jury Act 1977 was engaged
  • Whether, in the alternative, the trial judge incorrectly exercised the discretion to discharge the juror under s 53B(d)
  • Whether the trial judge misapplied ss 53C(1)(a) and (b) when directing the trial to continue with a reduced number of jurors

Decision

The Court of Criminal Appeal refused leave to appeal, finding no merit in any of the three grounds. R A Hulme J characterised the grounds as technical complaints that ignored the practical realities of the trial, particularly the fact that each decision challenged had been either actively supported by trial counsel or allowed to pass without objection.

The Court reiterated its longstanding disapproval of so-called "armchair appeals," where appellate counsel raises technical points with no apparent regard for how competent trial counsel conducted the case and where a remedy was readily available at the time. Rule 4 of the Criminal Appeal Rules requires leave to raise points not taken at trial, and the Court treated that requirement as a genuine constraint rather than a technicality.

On the substance, the Court found the trial judge's reasons, while "barely adequate," were sufficient for the Court to understand the bases for her decisions. R A Hulme J acknowledged the prevailing circumstances were not conducive to extensive reasoning, and noted that the absence of opposition from trial counsel likely encouraged an economical approach. Nevertheless, the judgment observed that, in future, trial judges would benefit from announcing formal orders and providing brief reasons when discharging jurors or directing a trial to continue with a reduced jury.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal reaffirmed its disapproval of "armchair appeals," where new appellate counsel raises technical grounds that were never ventilated at trial and where trial counsel either supported or did not oppose the decisions under challenge.
  • Under r 4 of the Criminal Appeal Rules, leave is required to raise grounds not taken at trial; the Court treats this as a substantive requirement, not a formality.
  • A trial judge's reasons for discharging a juror under s 53B(d) of the Jury Act 1977 and directing continuation under s 53C need not be extensive, but should be sufficient for an appellate court to understand the basis of the decision.
  • No error was established in the trial judge's approach to managing a juror's personal commitment that emerged during deliberations, where both parties' counsel actively participated in, and did not oppose, the course taken.
  • Consistent with the observations in Wu v The Queen, the Court noted the value of trial judges making explicit orders and conducting adequate inquiry before reducing jury numbers, both to create an unambiguous record and to focus attention on whether the trial should abort or continue.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53B, 53C
- Jury Amendment Act 2008 (NSW)
- Criminal Appeal Rules, r 4

Cases:
- BG v R [2012] NSWCCA 139
- Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
- House v R [1936] HCA 40; (1936) 55 CLR 499
- R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166
- Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99