Citation: R v Jenkins; R v Clayton [2013] NSWDC 208
Court: District Court of New South Wales
Date: 26 September 2013
Judge: Marien SC DCJ
Background
Two accused were on trial together in proceedings that had run for approximately four weeks. After retiring to deliberate, the jury left the courthouse the same afternoon without any order having been made by the trial judge permitting them to separate under s 54(1)(b) of the Jury Act 1977 (NSW).
The departure resulted from a misunderstanding by a court officer. A juror emerged from the jury room asking for mobile phones back and indicating the jury was ready to leave. The court officer, unaware that deliberations were underway, believed the presiding judge had already directed the jury to go home for the afternoon.
The trial judge came onto the bench at 4:02pm intending to offer the jury the option of continuing deliberations or going home. CCTV footage showed the jury had already exited the building four seconds before he spoke. Counsel for both accused applied to discharge the jury on the basis that the separation constituted a fundamental procedural irregularity going to the root of the trial.
Legal Issues
- Whether the jury's departure without any order under s 54(1)(b) of the Jury Act 1977 constituted a procedural irregularity going to the root of the trial process, rendering it a nullity.
- Whether the trial judge could make a retrospective separation order under s 54(2) once the jury had already left the courthouse.
- Whether, if an irregularity had occurred, the proviso could nonetheless be applied so as to refuse the discharge application.
Decision
The trial judge found that no order, express or implied, had been made under s 54(1)(b) before the jury separated. Although he had intended to permit the jury to go home, his statement to that effect was uttered seconds after the jury had already left. He therefore declined to characterise his words as an implied order made in time.
His Honour also rejected the Crown's argument that a retrospective order could be made under s 54(2). Drawing on the Second Reading Speech to the amendment introducing that subsection, the court interpreted s 54(2) as permitting a separation order to be made without the jury being physically present in the courtroom, but only while the jury remains within the courthouse or its precincts. Once the jury had left the building, that power was spent.
On the discharge application itself, the court reviewed the relevant authorities. The High Court in Wilde v The Queen (1988) 164 CLR 365 confirmed that where a procedural irregularity is so serious as to go to the root of the trial, no proviso can save it. However, his Honour drew on Tennant v R [2006] NSWCCA 208, where the Court of Criminal Appeal had assumed a jury separation occurred without a s 54(1)(b) order and nonetheless found no miscarriage of justice. In that case, factors including the presence of a sheriff's officer and the jury's directions not to discuss the case were considered relevant.
Applying the same reasoning, the trial judge concluded that the irregularity in this case, though real, was not one going to the root of the trial process. The jury had been repeatedly directed not to discuss the case except among themselves in the jury room, and the court was entitled to proceed on the assumption the jury complied. The judge also noted he would have made a separation order had one been sought. Accordingly, the application to discharge the jury was refused.
Orders Made
• Application to discharge the jury is refused
Key Takeaways
-
The District Court held that s 54(2) of the Jury Act 1977 does not empower a trial judge to make a retrospective separation order once a deliberating jury has physically left the courthouse. The subsection permits an order to be made in the jury's absence, but only while the jury remains within the court building or its precincts.
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A procedural irregularity under s 54(1)(b) does not automatically render a trial a nullity. Whether it goes to the root of the trial depends on the circumstances, including the nature of the breach, whether a sheriff's officer accompanied jurors, and whether the jury had received and could be assumed to have followed directions not to discuss the case.
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Under the framework established in Wilde v The Queen and applied here, the proviso cannot cure an irregularity that is truly fundamental to the trial process. Where, however, the irregularity falls short of that threshold, the court may decline to discharge the jury even if the breach of the Jury Act is established.
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An implied order for jury separation is sufficient to satisfy s 54(1)(b), following R v Radju and R v Phan, but the implied order must precede the actual separation. A statement made seconds after the jury has already departed cannot operate retroactively as an implied order.
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The fact that a trial judge would have made a separation order had one been requested is a relevant, though not determinative, consideration when assessing whether an unauthorised separation has caused a miscarriage of justice.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 54(1)(b), 54(2)
Cases
- Maher v The Queen (1987) 163 CLR 221
- Wilde v The Queen (1988) 164 CLR 365
- R v Ketteridge [1915] 1 KB 467
- R v Phan [2001] NSWCCA 29
- R v Radju (2001) 53 NSWLR 471
- Tennant v R [2006] NSWCCA 208