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Court of Criminal Appeal 21 June 2023

Sun v R

[2023] NSWCCA 147

Drugs

Citation: Sun v R [2023] NSWCCA 147
Court: Court of Criminal Appeal, NSW
Date: 21 June 2023
Judge(s): Kirk JA at [1]; Button J at [68]; Hamill J at [86]

Background

The applicant was convicted of two drug supply offences following a jury trial in the District Court conducted during the COVID-19 pandemic. A jury of 15 was empanelled, as was permitted under the expanded jury provisions of the Jury Act 1977 (NSW). Shortly after adjournment on the first day of trial, the trial judge's associate notified the parties by email that the jury room did not meet government COVID-19 requirements for 15 jurors.

The trial judge initially proposed discharging the entire jury and empanelling a fresh one the following week. The applicant's then-counsel objected to that course. With the consent of both parties (the Crown consenting somewhat reluctantly), the trial judge instead discharged three jurors by purporting to exercise the power in s 53B(d) of the Jury Act. Three jurors were selected for discharge by a ballot process modelled on the procedure in s 55G (which ordinarily applies to reduce an enlarged jury just before the jury retires), except that the foreperson was not excluded from the ballot.

The trial proceeded with the remaining 12 jurors. The applicant was convicted and sentenced to an aggregate term of seven years' imprisonment with a non-parole period of five years. He was also ordered to pay $22,600 under a drug proceeds order. He appealed against both conviction and sentence.

  • Whether the trial judge had power under s 53B(d) of the Jury Act 1977 (NSW) to discharge three jurors where the reason (an inadequate jury room) affected all 15 jurors equally, rather than pertaining to any individual juror personally.
  • If the discharge was beyond power, whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied so that the conviction could be upheld despite the error.
  • Whether the sentencing judge erred by failing to adequately account for the impact of the COVID-19 pandemic on the conditions of the applicant's imprisonment.
  • Whether the sentencing judge erred in his treatment of the applicant's mental health history as a factor in sentencing.
  • Whether the sentencing judge erred by failing to adequately consider the applicant's vulnerability to harm in custody.
  • Whether the applicant was punished twice for the same conduct.
  • Whether the sentencing judge erred in fixing the commencement date of the sentence.
  • Whether the drug proceeds order was made in error.

Decision

On the power to discharge jurors under s 53B(d)

The majority (Button J and Hamill J) held that the discharge order was not within power. Section 53B(d) authorises discharge of a juror where a reason affects "the juror's ability to perform the functions of a juror." Both Button J and Hamill J concluded that this language requires the reason for discharge to pertain to the individual juror personally, not to a circumstance affecting all jurors equally and indiscriminately. Hamill J applied the ejusdem generis principle: the preceding paragraphs of s 53B each address circumstances specific to a particular juror, which indicates that the residual power in paragraph (d) is similarly confined. Button J noted that the Jury Act contains no mechanism for random or "depersonalised" discharge in such circumstances, which supports a narrow reading. Kirk JA dissented, reasoning that the inadequate jury room did constitute a reason affecting each of the three jurors individually, and that courts should not be taken to have powers hedged by unstated limitations.

On the application of the proviso

With Kirk JA not deciding the point, Button J and Hamill J agreed that the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied. The proviso is unavailable where there has been a failure to observe the requirements of the criminal process in a fundamental respect. The majority found that this error did not reach that threshold. The 12 jurors who determined the applicant's guilt were all eligible, properly summoned, and randomly selected. No juror was improperly included; rather, three were improperly excluded. The prosecution case was also described as extremely strong. Accordingly, the conviction was upheld.

On sentence

The Court (Hamill J, Kirk JA and Button J agreeing) dismissed the sentence appeal in its entirety. There was insufficient evidence before the sentencing court about the specific impact of COVID-19 on the applicant's conditions of imprisonment, so the sentencing judge's omission to address it in detail was not a legal error. The sentencing judge considered the mental health evidence in detail but was not satisfied it was a significant contributing factor to the offending. The sentencing judge also took account of evidence of the applicant's past assault in custody to the extent that gaol records supported it. No error of double punishment was established, as it was open to the sentencing judge to conclude that the sentence on one offence could not encompass the criminality of both. No error was demonstrated in the commencement date of the sentence. As to the drug proceeds order, all statutory prerequisites under the Confiscation of the Proceeds of Crime Act 1989 (NSW) were met, and the factual finding that the applicant derived the relevant monetary benefit was well supported by the evidence.

Orders Made

  • Leave to appeal against conviction granted (if necessary); appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal against sentence dismissed.

Key Takeaways

  • Section 53B(d) of the Jury Act 1977 (NSW), per the majority, requires the reason for discharging a juror to pertain to that individual juror personally. A circumstance that affects all members of an enlarged jury equally and indiscriminately does not enliven the power, even if it affects each juror's ability to perform their functions.
  • A genuine disagreement among the judges reflects the interpretive difficulty here: Kirk JA took the view that a reason affecting every juror still "affects" each of them individually within the ordinary meaning of the provision, while the majority favoured a narrower, contextual reading informed by ejusdem generis and the structure of the legislation.
  • The proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) may apply to cure an improper discharge of jurors, provided the error does not amount to a fundamental failure to observe the requirements of the criminal process. The relevant distinction is between improperly excluding jurors from a properly constituted pool (curable) and including ineligible or improperly summoned persons on the jury (potentially not curable).
  • No error in sentencing was established merely because a sentencing judge did not elaborate at length on the impact of COVID-19 on prison conditions, where the evidentiary foundation for such a finding was thin.
  • Under the Confiscation of the Proceeds of Crime Act 1989 (NSW), a drug proceeds order may be made against an accused even where they were physically absent from the transaction, provided the evidence supports a finding that they derived the relevant benefit.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 19, 22, 53A, 53B, 53C, 55G
- Jury Amendment Act 2008 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Confiscation of the Proceeds of Crime Act 1989 (NSW), s 29
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Interpretation Act 1987 (NSW), ss 8(b), 33, 34, 35(2), 35(5)
- Criminal Procedure Act 1986 (NSW), s 126

Cases
- Fantakis v R [2023] NSWCCA 3
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31
- Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22