Phan v R [2018] NSWCCA 225

Phan v R [2018] NSWCCA 225

Although the judge did not err on 4 January 2016 in continuing the trial with nine jurors, after MFI #115 and the examination of Juror M and the foreperson the judge was required to reconsider whether continuing the appellant's trial would give rise to a risk of substantial miscarriage of justice. The note revealed tensions in the jury room, there was conflict between Juror M and the foreperson, the deliberations were unprecedentedly lengthy, Juror 3 had suffered a recurrence of severe anxiety disorder as a result of jury duty, and the appellant had been deprived of the views of three jurors. The judge erred by confining consideration to the likelihood of a unanimous verdict and failing...

Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Criminal Conviction Appeal / Appeal Against Conviction From the District Court of New South Wales; No Appeal Against Sentence
Outcome
Appeal upheld; conviction and sentence quashed.
Legal Topics
['attempt to Possess a Commercial Quantity of an Unlawfully Imported Border Controlled Drug' 'discharge of Jurors' 'continuation of Trial With Reduced Jury' 'jury Deliberations' 'black Direction' 'substantial Miscarriage of Justice' 'fair Trial']
['criminal Law' 'criminal Procedure' 'jury Law' 'appellate Review'] ['attempt to Possess a Commercial Quantity of an Unlawfully Imported Border Controlled Drug' 'discharge of Jurors' 'continuation of Trial With Reduced Jury' 'jury Deliberations' 'black Direction' 'substantial Miscarriage of Justice' 'fair Trial']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Appeal Against Conviction From the District Court of New South Wales; No Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the trial judge erred in ordering that the trial continue with nine jurors on 4 January 2016 following the discharge of Juror 3.' 'Whether the trial judge erred in declining to discharge the jury on 5 January 2016 following receipt of MFI #115 and examination of Juror M and the foreperson.' 'Whether the trial miscarried by reason of the duration of, and the circumstances pertaining to, the jury deliberations and delivery of the verdict.' 'Whether s 22(a)(iii) of the Jury Act 1977 (NSW) is picked up and applied by s 68(2) of the Judiciary Act 1903 (Cth) to a Commonwealth indictment in the District Court of New South Wales.']

Ratio Decidendi

Although the judge did not err on 4 January 2016 in continuing the trial with nine jurors, after MFI #115 and the examination of Juror M and the foreperson the judge was required to reconsider whether continuing the appellant's trial would give rise to a risk of substantial miscarriage of justice. The note revealed tensions in the jury room, there was conflict between Juror M and the foreperson, the deliberations were unprecedentedly lengthy, Juror 3 had suffered a recurrence of severe anxiety disorder as a result of jury duty, and the appellant had been deprived of the views of three jurors. The judge erred by confining consideration to the likelihood of a unanimous verdict and failing...

Court Disposition

Appeal upheld; conviction and sentence quashed.

Orders

  • ['Appeal upheld.' "The appellant's conviction and sentence are quashed." 'List the case for mention at the Sydney District Court on 26 October 2018 at 9.30am.']