Luland v R [2007] NSWCCA 64

New South Wales Court of Criminal Appeal

CITATION: Luland v R [2007] NSWCCA 64

HEARING DATE(S): 1 March 2007

JUDGMENT DATE: 16 March 2007

JUDGMENT OF: Sully J at 1; Bell J at 42; Hoeben J at 43

DECISION: Appeal against conviction dismissed

Crimes Act 1900 (NSW) LEGISLATION CITED: Jury Act 1977 (NSW) Criminal Appeal Act 1912 (NSW)

Wu v The Queen (1999) 199 CLR 99 CASES CITED: House v The King (1936) 55 CLR 499 Veen v The Queen [No. 2] (1988) 164 CLR 465

PARTIES: Bernard George Luland Regina

FILE NUMBER(S): CCA 2006/2495

COUNSEL: R. Herps - Crown A. Cook - Appellant

SOLICITORS: S. Kavanagh - Crown M. Pikett - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0088

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 17 March 2006 - amended 24/4/06

IN THE COURT OF CRIMINAL APPEAL 2006/2495

SULLY J BELL J HOEBEN J

16 March 2007 Bernard George LULAND v REGINA Judgment 1 SULLY J: In December 2005 the appellant, Mr. Luland, stood trial in the District Court at Nowra before his Honour Judge Knight QC and a jury of eleven. The appellant stood trial upon an indictment containing three counts. 2 Count 1 charged an offence of aggravated break and enter contrary to section 112(2) of the Crimes Act 1900 (NSW). 3 Count 2 charged an offence of assault occasioning actual bodily harm in contravention of section 59(1) of the Crimes Act. 4 Count 3 and Count 4 each charged an offence of robbery while armed with an offensive weapon in contravention of section 97(1) of the Crimes Act. The jury found the appellant guilty as charged on each of the four counts in the indictment. The appellant was sentenced subsequently to various terms of imprisonment but the details are not now of any moment. 5 The appellant now appeals against his convictions. There is one ground of appeal namely: "The trial miscarried as a result of a decision by the learned trial Judge to order pursuant to section 22 of the Jury Act that the trial of the appellant would continue with a jury of eleven." 6 The nature of the issue thus tendered for the decision of this Court makes it unnecessary to embark upon any extensive canvass of the competing cases at trial. It will suffice to quote the brief summary of the prosecution case at trial, as provided in the written submissions lodged on behalf of the appellant: "2. The appellant was convicted of 4 offences all said to have been committed on 11th December 2004. These offences were aggravated break enter and steal, contrary to s.112(2) Crimes Act , assault occasioning actual bodily harm on Cecil Gash contrary to s.59(1) Crimes Act and 2 offences of armed robbery, contrary to s.97(1). The victims were respectively Cecil Gash and his wife, Linnett Gash. 3. Mr and Mrs Gash operated a supermarket at Bawley Point on the South Coast of New South Wales. On Saturday 11th December 2004 Mrs. Gash worked at the supermarket until 7.00 pm. Mrs. Gash then placed the takings of the supermarket in a tin and went home. Mr. and Mrs. Gash locked the supermarket before leaving. Their address was 152 Malibu Drive. Mrs. Gash made dinner and she and her husband ate in the dining room. Sometime after dinner Mrs. Gash heard a funny sound, which she described as a screeching or moaning sound from outside the house. 4. Mrs. Gash's husband went to investigate. As he went to open the door two men entered and pushed him backwards. It was the Crown case that the first of the two men was the appellant. The second man went towards Mrs. Gash and held a knife to her neck. A demand was made for her money and handbag. Whilst this was happening the first man was assaulting Mr. Gash, having pushed him into a chair, he struck him in the face about half a dozen times with the handle of the knife he was holding. Mr. Gash's face was covered in a significant amount of blood. He was ordered to take his hands out of his pockets. 5. The second man pulled Mrs. Gash up to her feet and made a demand as to where the money was. Mrs. Gash pointed to a floral bag on the breakfast bar. There was a tin containing money in that bag. The man said that was not enough money. He pushed her down the hallway in the direction of her bedroom to get her handbag. He held a knife to the centre of her back and she could feel it. Once in the bedroom he demanded the handbag. Mrs. Gash handed it to him. Inside the bag were personal items and several hundred dollars in cash. 6. The first man robbed Mr. Gash of his wallet. It contained personal items, including a driver's licence, Medicare card and about $250 in cash. After this he was forced down the hallway of the house into the second bedroom. Mr. Gash was covered with a doona and a threat was made that if (he) moved he would be killed. 7. Mrs. Gash escaped and went next door to get help. The intruders left. Mrs. Gash made a triple O call in which she nominated the appellant as having been the first intruder. The amount of money obtained as a result of the crimes committed was substantial. The cash in the tin (the items stolen in the break and enter offence) was just under $20,000. The money robbed of Mr. and Mrs. Gash respectively was $250 and about $350." 7 The relevant procedural history is, of course, important in the adjudication of the sole ground of appeal. It will suffice, once again, to quote the succinct summary given at paragraphs 8 through 11 of the appellant's written submissions: "8. The matter had been attended by procedural difficulties. The history of the matter is set out below: 15th August 2005 The appellant was arraigned before his Honour Judge Garling DCJ. A jury was empanelled. It was later discharged when it became known that one of the jurors knew the appellant's family. The matter was adjourned to 17th August 2005 for trial. 17th August 2005 The appellant was arraigned and a trial commenced. It proceeded without difficulty. The jury was unable to reach a verdict and on the 23rd August 2005 was discharged. The matter was stood over for trial on 25th August 2005. 25th August 2005 On the appellant's behalf an application was made to vacate the trial date for the purpose of attempting to enhance a security surveillance video of the IGA Supermarket. The purpose of this was to observe images, if any, of the appellant in that store on the 11th December 2004. The application was granted and the matter was stood over for trial to the next sittings at the Nowra District Court. 28th November 2005 The appellant was arraigned before his Honour Judge Knight DCJ. A jury was empanelled and the matter was stood over to the following day. 29th November 2005 The trial was adjourned due to the illness of Mrs. Gash who was in the middle of cross-examination. 29th November 2005 The trial was again adjourned for the same reason. (sic)

30th November 2005 The trial continued. 1st December 2005 The trial continued. 2nd December 2005 The trial aborted and the jury was discharged owing to improper conduct on the part of a juror towards Mr. Luland. The conduct was apparently initiated by the juror. The matter was adjourned for trial on 5th December 2005. 5th December 2005 The trial, the subject of the appeal commenced. 9. On that day the appellant was arraigned and a jury empanelled. The trial judge made introductory remarks to the jury (T7-T12) and then allowed the jury to leave. 10. It then transpired that there had been a development in relation to one particular juror. During or after the luncheon adjournment the trial judge reconvened the court and told counsel that he had been informed by a Sheriff's Officer that one of the jurors had said that he knew a person or persons with the same name as the appellant. Evidence was taken from the juror and it emerged that the juror was a good friend of the appellant's nephew. It was the position of his Honour and both parties that it was necessary that the particular juror concerned be discharged. 11. The issue of whether the trial should continue with the remaining eleven jurors or start afresh with twelve jurors was then debated. The position taken by counsel for the appellant was that he wished to proceed with (a) jury of twelve and not eleven; T16. The position taken by the prosecution was that the matter should continue with the jury of eleven. The trial judge determined that he would order that the trial proceed with a jury of eleven pursuant to s 22 of the Jury Act . The single ground of appeal advanced by the appellant is that his Honour fell in to error in determining to direct that the trial continue with a jury of eleven. The learned trial judge gave reasons for his decision." 8 The reasons given by the learned primary Judge for his Honour's decision to continue the appellant's trial with a jury of eleven jurors are comparatively brief but, with respect, completely clear. 9 The reasons commence by noting the discretionary power conferred upon his Honour by section 22 of the Jury Act 1977 (NSW). Section 22 provides: "22. Where in the course of any trial ……… any member of the jury ……… is discharged by the court ………. whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below ten; …….. and if the court ……… so orders." 10 His Honour, having adverted to section 22 of the Jury Act, then notes briefly the competing submissions of counsel. Counsel at trial for the present appellant, (not being Senior Counsel who appeared for the appellant before this Court), submitted that the remaining eleven jurors should be discharged and that the venue of the trial should be moved from Nowra to Wollongong. The Crown Prosecutor opposed both of those applications and pressed for the trial to continue with the remaining eleven empanelled jurors. 11 His Honour then proceeds to consider, briefly, the principles laid down by the High Court of Australia in Wu v The Queen (1999) 199 CLR 99. 12 The use properly to be made, in the context of the present appeal, of the decision in Wu needs to be conditioned by an understanding of what was actually in issue in the High Court appeal. It is useful to quote in that connection the following short passage from the joint judgment of Gleeson CJ and Hayne J: "7. The grounds of appeal in this Court (and the relevant grounds in the Court of Criminal Appeal) attacked the decision to discharge the juror, not the decision to proceed with less than twelve jurors. In the course of the hearing of the appeal in this court, the appellant sought leave to amend the grounds of appeal. The proposed grounds were not formulated precisely but in effect were sought to contend either that no order had been made that the trial continue with the jury constituted by the remaining jurors or that, if an order had been made, it should not have been. No such ground was raised in the Court of Criminal Appeal and no complaint was made at the trial about these matters. In those circumstances this court, by majority, refused leave to amend." 13 In the present appellant's case, it was not contended at trial and it is not contended now that there was any error vitiating the decision of the learned primary Judge to discharge the particular juror. The essential point taken at trial, and on the hearing of this appeal, was that the particular juror having been properly discharged, the learned primary Judge ought thereupon to have discharged the remaining eleven empanelled jurors; and that his Honour should then have stood the appellant's trial over for the summoning and empanelling of a fresh jury of twelve. This issue was not a live issue before the High Court in Wu. 14 There are, nevertheless, to be found in various of the majority judgments in Wu expressions of opinion that are relevant to the issue which this Court must now determine. It is trite that such expressions of opinion, even if they be on a strict view obiter dicta, must be considered by this Court with a proper respect. 15 Thus, Gleeson CJ and Hayne J observe at paragraph 21 of their Honours' joint judgment: "It may be accepted that a criminal trial by jury in New South Wales must begin before a jury of twelve. At common law if a juror died or was taken ill a fresh jury had to be sworn ……, although it seems that sometimes the eleven remaining jurors were re-empanelled and a fresh juror sworn in the place of the disabled juror ….. . But the whole purpose of section 22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. That is, there can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings." 16 McHugh J, in paragraphs 27 through 29 of his Honour's reasons, puts the same point more discursively and as follows: "For hundreds of years the common law has insisted that no person be convicted of serious crime without the unanimous verdict of twelve jurors. If even one juror died or had to be discharged, the common law required the rest of the jury to be discharged. The trial had to re-commence with a new jury of twelve. In various jurisdictions, including New South Wales, the dictates of expense and convenience have introduced legislative change which now authorises the judge in a criminal trial, after the death or discharge of a juror, to make an order that permits a person to be convicted by a jury of less than twelve ………….. . In New South Wales, a person may not be convicted by a jury of less than ten persons ordinarily, but the judge may order that the jury be properly constituted by as few as eight persons if the trial has gone for at least 2 months or if the Crown and the accused consent to such an order. But no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than twelve is a denial of a long-standing right of those tried for serious crime under the common law system. Given the mandatory terms of section 19 of the Jury Act , some positive reason beyond the death or discharge of a juror must exist for the judge to make the order that the trial continue with less than twelve jurors. The usual reason for exercising the power under section 22 is that the trial has proceeded for some time and that it would cause significant expense to begin again with a new jury. No doubt the circumstances of individual trials will throw up other valid reasons. And there may be countervailing reasons. It may be a case dealing with matters upon which the opinion of the community is deeply divided. In such a case, despite the time that the trial has already taken, the proper exercise of the discretion may require that the accused be re-tried before a jury of twelve. Or the case may be one where the community has strong feelings against the crime in question and the risk of prejudice against the accused may be strong. In such a case, depriving the accused of the chance to obtain the vote of the twelfth juror may be a step that should not be taken." 17 The relevant reasoning of the learned trial Judge begins with a distinct acknowledgement of the proposition that: "it is certainly not an automatic decision to proceed when a juror is discharged". 18 His Honour then proceeds to state, in a general and introductory fashion, his conclusion that, "because of the history of the trial and the nature of the trial and the stage at which it is in at the present time", his Honour deems it "…..important that this trial proceeds with eleven jurors notwithstanding the opposition to that course of the accused". 19 His Honour then proceeds to a more detailed canvass of the considerations which he has thus generally introduced. The first of them is the history of the trial, which his Honour narrates to the same effect, generally, as the effect of the chronology set out previously herein. I note that his Honour, speaking of the aborting on 2 December 2005 of the trial then current, speaks of it having been Mrs. Gash who indicated to the Crown Prosecutor "that she had seen one of the jurors making gestures towards the accused when that juror was walking out of court and the accused responding to those gestures", that being the incident which caused that particular trial to abort. 20 His Honour then examines further aspects of the history of the proceedings then before him; and, summing up his Honour's view about the relevance of the history of the proceedings, his Honour says: "Given that history, and I concede that none of the delay is due to the accused, it seems to me that this is a case which if at all possible should proceed to trial. This represents in effect the fourth attempt to bring this matter to trial. I do not think it is in the interests of justice and the community that there be a further delay in relation to this matter. The community's expectation is that matters will proceed in an expeditious fashion. If I were to adjourn this matter further it means an increased delay, even if the trial were to be able to be started on Wednesday with another jury panel." 21 His Honour's reference to Wednesday is a reference to the day two days later than the day on which his Honour was giving his ruling. 22 I am, as at present advised, unable to say what his Honour actually had in mind when he said: "……… even if the trial were to be able to be started on Wednesday with another jury panel". This Court was unable to ascertain, at the hearing of the present appeal, whether in fact another jury panel would have been available on the particular Wednesday. Learned Senior Counsel for the appellant contends that any such lacuna is irrelevant because, as he put the point in oral submissions, the learned primary Judge was "…….. so beguiled by the need to expedite that he would not even countenance a one day delay". In my opinion such an inference is, to say the least, fairly available in aid of the present appeal; and I am content to proceed accordingly. 23 The reasons of the learned primary Judge proceed to refer to two other particular considerations. 24 First, his Honour adverts to the expected length of the trial then current before him. That expected length was one of "approximately three days". The significance of that consideration, in the reasoning of his Honour, was: "…….. that the likelihood of there being a further loss of a juror is low and I therefore consider the fact that it is a short trial that militates in favour of the matter proceeding rather than against it". 25 Secondly, his Honour adverts to the situation of Mrs. Gash, whom his Honour describes correctly as "…… the critical Crown witness". His Honour's reasoning then proceeds as follows: "The crucial issue in this case is the identification of the accused as one of two men who engaged in home invasion break enter and steal and robbery offences. Mrs. Gash has some continuing medical problems. They have caused her to be unable to give evidence on two days last week. She obviously is (in) a somewhat fragile state of health and I do not think it is in her interest or the interest of the community that there be any further adjournment. In my view as she has already given her evidence in chief, this will be the third occasion that she has given such evidence and it is most important that the matter now proceed as expeditiously as possible." 26 His Honour then proceeds to give the formal direction that the trial continue with a jury constituted by eleven jurors. His Honour expresses himself as so ruling "…….. not without some misgiving …….". 27 Learned Senior Counsel for the appellant summarised succinctly, helpfully and as follows the thrust of his submissions in support of the appeal: "[COUNSEL]: Just to summarise the position, it would be an exceptional case, I submit, where the given trial has just commenced in this way and you would not start again with a jury of twelve if you could start again soon. It would take a wholly exceptional case despite the sorry history of this case if it was not sufficiently exceptional in that way. [JUDGE]: Therefore the discretion miscarried. [COUNSEL]: Yes. [JUDGE]: The result of that was that the procedure, which had the appearance of a trial at law, was a nullity and that being so there is no room for the proviso and the only option is to send the matter back for fresh trial. [COUNSEL]: That's my submission." 28 It is useful to commence the discussion of the foregoing submissions by recalling some relevant principles. I take them, as is not infrequently done, from the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504, 505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." 29 I do not cite the foregoing principles because they are now in any way novel. I cite them because they emphasise the need for this Court not to interfere lightly with the exercise by the learned primary Judge of a discretion entrusted by statute to his Honour. The need for that circumspection is heightened, in my opinion, by reason of the fact that there was no attempt by those then representing the appellant to apply to this Court for leave, pursuant to section 5F(3) of the Criminal Appeal Act 1912 (NSW), to appeal against the ruling of the learned primary Judge. I observe in that connection that no explanation could be given to this Court, at the hearing of the appeal, for the failure to make such an application. 30 There were, in my opinion, a number of matters which the learned primary Judge needed to bring into a sensible and practical balance when considering whether the appellant's trial then current should continue with only eleven jurors. 31 First, his Honour was required imperatively to take account of the fact that at common law a person accused of having committed any serious crime is entitled to trial by a jury of twelve of his peers and of no less a number of them. Plainly, section 22 of the Jury Act attenuates that position; but it is always important to bear in mind that the section does not simply abrogate that fundamental common law entitlement. I do not think that a fair reading of the whole of his Honour's reasons would justify a conclusion by this Court that his Honour had not properly attended to the need to take this factor into account. 32 Secondly, his Honour was entitled to take into consideration the factor of delay. In the present appellant's particular case, that factor had a number of facets. One facet of delay was the unfortunate antecedent history of the trial. Another facet was the interest of the appellant, as a person accused of having committed a number of very serious crimes, to be tried as expeditiously as might be justly practicable, especially when he himself was not suggested by anybody to have been responsible for the antecedent delays in bringing him to trial. A third facet was the public interest, represented in every criminal proceeding by the Crown, to ensure that those who commit serious criminal offences are lawfully detected; are thereupon lawfully apprehended; are thereafter tried, with all proper expedition, according to law; and thereafter, if found guilty, are punished according to law. 33 What I have called the various facets of the factor of delay are rather like the sentencing guide-posts of which the majority judgment in Veen v The Queen [No. 2] (1988) 164 CLR 465 famously observed that they are apt to point in different directions. It must follow, therefore, that to bring such matters into a just but practical and sensible balance will entail necessarily matters of judgment, and sometimes of very nice judgment, as to which reasonable minds might reasonably differ. 34 I am not persuaded that, in the present particular case, the learned primary Judge erred in law in the way in which his Honour considered, and then resolved, the effects of the relevant aspects of delay. 35 Thirdly, his Honour was entitled, in my opinion, to have regard to the position of Mrs. Gash whom his Honour described correctly as "the critical Crown witness". His Honour was able, in my opinion, to assess Mrs. Gash's situation with the advantage of having seen and heard her, advantages which this Court does not have. I see no error in the way in which his Honour dealt with that particular aspect of his ruling. 36 The considerations which I have thus far discussed seem to me to weigh heavily, in the aggregate, against any present interference by this Court with the exercise of the learned primary Judge's discretion to continue the appellant's trial with only eleven jurors. I have but one residual misgiving, and it concerns the apparent refusal of the Judge to consider even a day's adjournment of the trial in order to summon a fresh panel of jurors and to draw from that panel a fresh jury having its full normal complement of twelve jurors. 37 I think that the only fair way of dealing with that residual misgiving is to deal with it upon the basis that it is the present appellant's burden to show that there was something so manifestly unreasonable about that attitude of the learned primary Judge as would outweigh all of the other considerations of which I have earlier herein spoken. 38 I am unpersuaded that the appellant has discharged that burden. I bear in mind in that connection that the learned primary Judge was not sitting in Sydney but in Nowra: that is to say, in a country circuit Court. Experience teaches that even in Sydney it is not always possible to discharge a jury and then, at the drop of a hat so to speak, to call up a fresh jury panel. It is, I apprehend, fair to say that it is not likely to be any easier so to procure a fresh jury panel in a country circuit town. There does not seem to have been any attempt by anybody, at first instance, to ascertain in any precise way what possibilities actually existed in connection with the summoning of a fresh jury panel. In the face of that evidentiary lacuna, I would not be prepared to say now that the residual misgiving of which I have spoken should harden into a positive finding of fact having such weight as would properly outweigh the combined effect of the other considerations of which I have earlier herein spoken. 39 On balance, therefore, I apprehend that the appellant has not made good his present challenge to his conviction. It follows that, in my opinion, his conviction appeal should be dismissed. 40 I have noted earlier herein the submission put for the appellant to the effect that, had this Court been disposed to differ from the learned primary Judge, then it must have followed that his trial was a nullity. That submission puts in issue a large question which, on the conclusion to which I have come, it is not necessary now to resolve; and I expressly reserve my position upon that question. 41 For the whole of the foregoing reasons I am of the opinion that the present appeal against conviction should be dismissed. 42 BELL J: I agree with Sully J. 43 HOEBEN J: I agree with Sully J. **********

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