Wai v The Queen P27/1995 [1996] HCATrans 293 (5 August 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1995

B e t w e e n -

AH POH WAI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 1996, AT 9.31 AM

Copyright in the High Court of Australia

MR S.A. SHIRREFS: If the Court pleases, I appear on behalf of the applicant. (instructed by Pryles & Defteros)

MR M. ROZENES, QC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Commonwealth))

DAWSON J: Yes, Mr Shirrefs.

MR SHIRREFS: If the Court pleases, there are two grounds upon which special leave is sought. The first is the ground which touches upon the question of reserve jurors in section 80 of the Constitution. If I could deal with that point first.

It is submitted that at the time of Federation, the entity known as a jury was a collective body of twelve persons, and that was a position both at common law, also the position in the various legislation of the colonies of Australia, and also when one looks at the Convention Debates the participants there discussed a collective body of twelve people. In the Juries Act of Western Australia, section 18(1), it says there that a jury consists of a body of twelve persons. The genesis of a jury is the process of empanelment during which an accused can challenge peremptorily. It is a collective entity selected by lot which is representative of the wider community. It is a known and identifiable group into whose charge and no others the accused is put following arraignment.

It is submitted that the system of reserve jurors as it exists in Western Australia permits people who are not part of that collective entity, but are strangers to it - - -

DAWSON J: They are not exactly strangers. They are contingently part of that entity.

KIRBY J: They are sworn, are they not? They take the oath or the affirmation at the outset. Do they sit in the - - -

MR SHIRREFS: They sit with the jury in the jury box in Western Australia in identifiable seats which are for reserve jurors. In Victoria the system is slightly different where, if there are to be reserve jurors, a jury of up to 15 is sworn in and at the end of the trial, prior to them being sent out to consider their verdict, reserve jurors are balloted off, or I should say by way of ballot the number is reduced to twelve. So the system in Victoria is different to Western Australia where you have reserve jurors who are identified as reserve jurors sitting with the jury but are not part of the jury proper, if I could use that expression.

KIRBY J: What happens when the jury goes out during adjournments of the trial? Do they go out without the reserve jurors?

MR SHIRREFS: They are with the reserve jurors for the entire time.

KIRBY J: So the reserve jurors remain with them the whole time?

MR SHIRREFS: Yes.

KIRBY J: So they hear and basically participate in the discussions?

MR SHIRREFS: All of it. They sit with the jury during the trial; they go out during retirements to have coffee breaks, whatever; they are with them during lunch; they are there to - - -

DAWSON J: What about when they finally retire to reach their verdict?

MR SHIRREFS: No, they are not.

DAWSON J: They are not, you see.

MR SHIRREFS: At the very end, if there are reserve jurors who have not been placed onto the jury proper, they are then allowed to leave. But during the course of the trial - and this is particularly so in long cases where juries are together for a long period of time, in some instances, many months - they are there to talk about the evidence; discuss the evidence and consider the evidence, and are told that they can do so with each other.

DAWSON J: And are subject to the same restraints as the jurors proper.

MR SHIRREFS: Yes, but they are not - subject to the same restraints, and those restraints are that they are not to discuss the case with people outside their number. Does their number mean the jury proper or the entire number that are there - the jury proper plus the additional jurors? They are told that they can discuss the case within their group but not outside their group. The result of that is, particularly in a long case, you have the additional jurors discussing the evidence; considering the evidence, who are not going to be present as the ultimate trier of fact at verdict.

KIRBY J: Yes, but you say they are strangers who contaminate the process and breach the rule in Cheatle. The criterion as what the trial by jury was in England.

MR SHIRREFS: Yes. They are strangers to the extent that they are able to consider and influence members of the jury who ultimately are there for the final deliberation, although they themselves are not there.

KIRBY J: I have, respectfully, some difficulty of the criterion of the common law of England because there were many requirements, such as property qualification, gender and so on which were the common law of England but which we have not accepted as part of our jury constitution.

MR SHIRREFS: That was discussed in Cheatle. I accept all of that because that is something that the Court in Cheatle said was the development of the law since the time of Federation. It is not representative of the wider community to have a jury which is solely consistent of men or a jury that relies upon particular property qualifications. To have a representative on jury, one looks at the wider community which involves non-property qualifications and both men and women on the jury. When one examines trial by jury going back to the time of Henry II, and follows it all the way through, one of the requirements - and in my submission, one of the essential features of it that has been present throughout - is that the ultimate trier of fact is not to discuss the case with others outside their number.

DAWSON J: Why? One can see it with strangers, but why on earth - it is not a mystical concept, a jury - what difference could it make in this situation?

MR SHIRREFS: The reasons have been expressed in a number of ways. One is that you can have the risk of the jury being tampered with by somebody who knows about the case and is trying to influence a decision of one of the jurors.

DAWSON J: Why? You have the same risk with a jury. These people are in the same situation up till the time that the jury retires as the other jurors. What difference is there?

MR SHIRREFS: The difference is that they are able to influence members of the jury by being there and permitted to discuss the case with them throughout the course of the trial.

DAWSON J: But jurors can do that amongst themselves during the course of the trial.

MR SHIRREFS: Yes, but those jurors are there as the ultimate trier of fact. That is part of their process. That is part of the process of trial by jury, where throughout the trial they are permitted to discuss and consider the evidence, and that continues right through the process of evidence, the addresses, the judge's summing up, the judge's charge, through to the final process of deliberation.

DAWSON J: There can be no harm in that. There is no contamination if they are not trying improperly.....the jurors who ultimately retire. I mean, after all, counsel put argument to the jurors too.

MR SHIRREFS: Contamination was only part of it. The - - -

DAWSON J: That is not contaminating them, is it?

MR SHIRREFS: The contamination was only part of it, your Honour. Another part of it was that jurors were not to be influenced in any way about the evidence by people who were not to be there at the end for the final deliberation.

DAWSON J: Not to be influenced by people who are not part of the trial process. But if the reserve jurors are part of the trial process, what harm can come from it? How does it cut across the essentials of the jury system?

MR SHIRREFS: Because it ultimately means that when the jury of twelve are finally deliberating, they, in the course of the process, if the reserve jurors are not present, have the input of those reserve jurors throughout the trial which may up until that point - - -

DAWSON J: Of course they do. They have the input of counsel; they have an input of the judge; they have the input of all those people who have participated in the trial. It is the inference of people outside the trial process that would be a contamination.

KIRBY J: Your point has to be, as I understand it, one of integrity. You say the jury is the jury and you cannot have strangers taking part who are not ultimately the jury, that that was not what the common law of England was and was not what is contemplated by section 80 of the Constitution.

MR SHIRREFS: That is one of the arguments.

KIRBY J: It is either a good point or a bad point; it is a very short one.

MR SHIRREFS: There are two arguments to the point, your Honour. The first is that the jury is the jury proper and no other, as recognised by the common law of England at the time of Federation; and the second - - -

KIRBY J: That apparently did not impress the US Supreme Court because they have had these alternative juror systems since 1932.

MR SHIRREFS: Since 1932, yes. The other point is - - -

KIRBY J: That is a strike against you, I think.

MR SHIRREFS: It is a hard one to argue against, except to say this, that the US Supreme Court has also being raising questions as to unanimous verdicts in recent times as opposed to majority verdicts, and that was touched upon in Cheatle.

DAWSON J: It is a question of what are the essentials of the jury system. You cannot have all the attributes which have existed through the centuries. We say that unanimity is an essential, whatever the number of the jury. But, is what you are talking about essential?

MR SHIRREFS: The essential requirement that I submit exists is that jurors are not to be influenced by anybody outside their number. By that it means - - -

DAWSON J: I have been putting to you that cannot be correct because there is a conscious effort to influence them during the course of the trial process by a number of people.

KIRBY J: I think you must draw a distinction between the outside influences and the internal deliberations and cogitations which you say have to be integral to the jury as the Constitution envisages.

MR SHIRREFS: The influences in the course of the trial - just dealing with Justice Dawson's point - from counsel on both sides and the judge are part of the trial process; part of the adversarial procedure.

DAWSON J: That was my point, that by swearing in the reserve jurors and making them part of the trial process, you cannot any longer regard them as being outside.

MR SHIRREFS: The point of departure is that at the end those who were there as reserve jurors, and were able to influence the jury proper in the course of the trial, do not take part in the final procedure - the final deliberation.

DAWSON J: That is all right. As long as there are no improper - and you can have that even with jurors without reserve jurors, as long as there is no improper communications it cannot matter.

MR SHIRREFS: In my submission, your Honour, it does matter, and it is the reason why this feature has existed in trial by jury for many centuries. By way of example: if, for instance, a juror had sitting in court a member of his family who sat there for the entire time and heard all the evidence and saw the same evidence unfold as the family member in the jury, it would be improper for that juror to discuss the case with that family member during adjournments.

DAWSON J: But that family member is not sworn and is not subject to the same directions as are the jurors who are going to eventually take part in deciding the case.

MR SHIRREFS: The fact that the juror is sworn, in practical effect, really makes no difference.

DAWSON J: It certainly does. You say it makes no difference: it would make no difference to those who actually finally deliberated.

MR SHIRREFS: The fact is those who are sworn on the jury discuss the evidence that they hear, as would this family member discuss the evidence that they have heard in the same way that the juror has heard. The point of departure is that in the course of the trial you will have jurors who are not part of the ultimate body who tries the facts at the end, discussing the case with jurors and being able to exert their influence and point of view and opinion on them.

DAWSON J: I think we take the point you make.

MR SHIRREFS: Yes. The second point, your Honour, if I could move on, deals specifically with the interpretation - - -

KIRBY J: Why would we grant special leave in that point, given that you raise no objection and, indeed, as I think it is said, rather embraced the course that his Honour took? This is a Western Australian statute. It is a particular provision, the Court of Criminal Appeal has decided it, and you lay quiet.

MR SHIRREFS: Your Honour, the point is this, that the interpretation that was placed by the Court of Criminal Appeal on this section is not open. It is read into section 633 a power that does not exist. The only power that existed in the Criminal Code to discharge the juror in these circumstances was the power in section 646 of the Act. The judge, in discharging the juror in question, did not purport to discharge under that section because he recognised, himself, that had he had to consider whether that juror was incapacitated or incapable of continuing to act, he would not have discharged him. He does not indicate what source of power he used to discharge him. Whether or not there was an objection or a consent to it, in my submission, matters not. If the discharge of the juror was beyond the power of the court, the - - -

KIRBY J: I think the point you make is distinctly arguable, but it does not seem to me to be a special leave point. It is a Western Australian statute.....passed on it and you remain quiet whilst this happened.

MR SHIRREFS: Your Honour, the special leave point is this: the interpretation that had been placed on section 633 by the Court of Criminal Appeal is not open. It has read into a section a power that does not exist. As far as special leave points are concerned, it means for the future, that Commonwealth trials being conducted in Western Australia may have juries which are invalidly constituted by virtue of a discharge of a juror without power.

KIRBY J: Well, they will not be invalidly constituted under the law as pronounced by the Court of Criminal Appeal of Western Australia. If that is what the court says the statute means - a local statute - that is it. It is enough for your purposes, is it not, if the Court grants special leave on the constitutional point? You want to argue the other point, but you can win on the constitutional point.

MR SHIRREFS: Your Honour, if I am successful on the constitutional point, I get special leave, but having argued, as I have to date, I am not so hopeful that I am going to get special leave on that point. I may or may not. But, in my respectful submission, the second point is an equally valid point, where the power that was exercised by the trial judge to discharge a juror was beyond the power of the court, with the result that you have a Commonwealth trial which was conducted in Western Australia which is a nullity, to which a verdict was returned that should not have been returned in a Commonwealth matter. That, of itself, in my respectful submission, should warrant a grant of special leave, where you have a miscarriage of justice because of a nullity, being the verdict. I should say the verdict being a nullity by virtue of the fact that the discharge was beyond the power of the court.

The Court of Criminal Appeal in Western Australia, in my respectful submission, its interpretation is just not open on any version of the construction of section 633. I take your Honours point with respect to that, that the court in Western Australia has said this is what the section is capable of being interpreted as. In my respectful submission, it is contrary to principles of law to interpret it in that way. It reads a power into a section that does not exist. Quite clearly, that section, section 633, was only to operate up until the time prior to the commencement of the trial proper.

KIRBY J: But if we sat here trying to resolve appeals on every point of statutory construction which is open or arguable, the Court simply could not survive. That is why there is the special leave - - -

MR SHIRREFS: I am acutely aware of that, your Honour.

KIRBY J: We simply cannot deal with every case where there is a distinctly arguable point of statutory construction. In the nature of things, by the time they get here, that is generally the case.

MR SHIRREFS: In my respectful submission, this is more than something which is distinctly arguable. This, in my submission, is clear error on the part of the Court of Criminal Appeal, and the effect of it, in reading the way in which the court has dealt with it, it seems to be arguable that the power to discharge a juror for any reason may only exist in circumstances where you have reserve juries, because they rely upon section 18(5) of the Juries Act, and the presence of reserve jurors then gives this extended meaning to section 633. With respect, if I am right in my submission that this power does not exist within the Code to discharge in circumstances, as the judge here discharged this particular juror, and the verdict is a nullity, it means for the future, in Commonwealth trials in Western Australia, similar verdicts may well result. That, in my submission, is a matter which should attract special leave, for the administration of justice in the country, particularly in Western Australia in Commonwealth trials. If the Court pleases.

DAWSON J: Thank you, Mr Shirrefs. Mr Rozenes.

MR ROZENES: May it please the Court. The first point, the section 80 point, depends upon a holding that the empanelment of reserve jurors introduces a stranger to the jury so as to infringe what is said to be one of the essential features of trial by jury, namely, that once empanelled the jury must not discuss the evidence with anyone other than themselves. That either is an essential feature of trial by juror - it is not, but it is arguably so, and certainly the judges in the Court of Criminal Appeal identified it as such.

The purpose of the requirement, we would submit, that jurors not discuss the evidence with persons other than their own number is to ensure, firstly, that they act upon the evidence before the court and not upon material that is given to them by persons who may either know something about the trial that is not known by the jury or, alternatively, have views that are not known by the jury. Secondly, in order to ensure that their decision-making process is completely free and uninfluenced by persons outside the court, in other words, not tampered with by the court.

We would submit that the reserve juror system, whether it be the one in Western Australia or the one in Victoria, does not infringe any essential feature of trial by jury, firstly because the reserve jurors have the same qualifications as any other member of the jury, namely, they have to satisfy the same test of not knowing anything about the parties, not having any preconceived view about the evidence, et cetera, so they do not come from a contaminated source. Secondly, they have the same knowledge of the case because they sit with the jury in the jury box, attentively, one hopes, listening to the evidence, hearing - - -

KIRBY J: That is the question, your phrase, "one hopes". You see, they are contingently jurors. The problem I have with the point is that the Constitution contemplates a jury. No statute can change that. Under the common law of England it did not comprise reserve jurors. It would be convenient if there were this provision. In the United States there is. But, it contemplates "a jury" and the problem is if you have some other person coming in who does not have the commitment, who does not have the clear obligation, and who might be a powerful personality that affects the discussion and then departs, you really have contaminated the process.

MR ROZENES: I was going to deal with the issue of the party to party, your Honour, because that is a point that is made specifically by our learned friend. There is no difference, in our submission, between a reserve juror not participating in the final process in circumstances where that juror may have been a powerful personality and exerted argument on the balance of the jury panel, and then be absent for the deliberative stage. That is no different to a normal jury where there is a powerful personality who participates strongly in argument and debate with the jury during the course of the trial, and then is discharged.

KIRBY J: There is a very important difference. That person is one of twelve who has gone. The other persons are additional and they are contingent, and they may not have, as you say, the same commitment or attention.

MR ROZENES: I did not want to say that, your Honour.

KIRBY J: You said, "one hopes".

MR ROZENES: One hopes that they concentrate as much as any juror concentrates. I would not want to be hung on that concession, to say that they treat the trial in any less concentration than the other jurors do. But, they are charged with the same task. They are told that they may be jurors. One assumes that they will participate in the trial like any other juror will participate: listen attentively to the evidence and take on board any instructions given by the trial judge.

DAWSON J: They are told to do so, are they not?

MR ROZENES: Yes.

DAWSON J: And one must assume, sitting in a court like this, that they obey the directions which they are given. You have to make that assumption with all jurors.

MR ROZENES: One ought to assume so, yes. The second point we put is that they have the same knowledge as the rest of the jury; listen to the same evidence, hear the same charges and they take the same oath or affirmation. They are given the same warning about communication with outsiders and they are also told not to consider the matter until such time as the conclusion of the evidence and the charge by the trial judge. So that all jurors, whether they be reserve or otherwise are, in fact, told in Western Australia, as they are elsewhere in the Commonwealth, that they ought not to embark upon a deliberative process until such time as they have been given formal instructions by the judge.

They are not in the position, we would say, to deal with the other limb of the principle that lies behind the essential rule, namely, they are not there to tamper. They have got no interest to influence the jury other than as part of the usual jury discussions that take place. So, we would say that even if it is accepted that this is an essential feature of a jury, we would submit that that essential feature is not in any way compromised where the party participating in the discussion about the evidence, is a special party such as a reserve juror, and it cannot be said that that person becomes a stranger to the jury such that a communication by that person might be so dangerous as to infringe the essential principle that the juries do not discuss the evidence with strangers.

Secondly, I would submit that there are good policy reasons why we should have a system of reserve jurors, and they are set out in some detail in paragraphs - - -

KIRBY J: But there were good policy reasons for having non-unanimous verdicts.

MR ROZENES: A big difference, in my submission, your Honour. The non-unanimous verdict really does stand out as a - - -

KIRBY J: It goes to the heart of it.

MR ROZENES: It does and this does not.

KIRBY J: What can be more to the heart of it than the actual constitution of the decision makers?

MR ROZENES: The interesting point that Cheatle made was that Cheatle, whether intentional or otherwise, limited its consideration to the unanimity question of those jurors empanelled at the time when the jury - - -

KIRBY J: You are latching onto a phrase that was used without contemplation of this application.

MR ROZENES: Except it had to have contemplated the possibility - - -

KIRBY J: That was clearly addressed to the case of retired jurors or jurors who have to go off. We are talking here of adding people to the twelve. The twelve based on the apostles. We are talking of a completely ahistorical change.

MR ROZENES: Yes, but the significance, in our submission, of a juror not being present for deliberation who was present during the whole of the trial is no different whether that juror is a member of the original jury or a member of the reserve jury, provided they have the same qualifications, and we would submit they clearly do.

KIRBY J: What is agitating me is that your point may ultimately succeed but that the constitutional issue is an important one and is one which would attract special leave.

MR ROZENES: We would, of course, submit that it does not attract special leave because it is so far removed from interfering with this essential element of jury that we would say has no prospects of succeeding this appeal. Ultimately, the court will decide, and must decide that reserve jurors are an obvious, simple, safe and desirable development of the jury to ensure that long trials are not frustrated, either to the disadvantage of the Crown, but just as importantly, to the disadvantage of the accused, with jurors dying, becoming ill or otherwise becoming incapable of acting, so that trials that run for three or four months simply become discharged and have to start again. That is in nobody's interest.

KIRBY J: I think in most parts of Australia, now, simple, safe, non-unanimous verdicts are also there to prevent frustration of long trials.

DAWSON J: That has been held, of course, to be quite the antithesis of the jury system.

MR ROZENES: And I would not be heard to argue to the contrary now, your Honour, even though I was obliged to do so before.

DAWSON J: Unsuccessfully.

MR ROZENES: Unsuccessfully, yes. But, this is a substantial difference, in our submission. It is not just that we find it here in Australia. Of course, as your Honour pointed out, it has been in America since 1932. The interesting argument in the United States today is not whether there is something of concern about alternate jurors, but whether you can replace an original juror with an alternate juror once the jury has retired to consider its verdict.

DAWSON J: That is a very different matter, is it not?

MR ROZENES: That is a very different matter. Whilst we are on very different matters, might I raise one small issue in this case which does cause a little concern, and that is his Honour Chief Justice Malcolm, in delivering his judgment, in what clearly is obiter, made the observation, having gone through the history of people not talking to jurors said, "Whatever is the position with the jury before it retires to consider its verdict, there is certainly a golden rule that says they cannot be separated once they have retired to consider their verdict". Yet, in this State there is now legislation which permits the jury to separate once it has been charged. In New South Wales there is a practise in all but, I think - - -

KIRBY J: His Honour was no doubt speaking of the common law in Western Australia, not statutory modifications.

MR ROZENES: I hope so, because it will concern Commonwealth cases in New South Wales and Victoria whether judges should be asked not to - - -

DAWSON J: They do not separate in Western Australia at all, do they?

MR ROZENES: No.

DAWSON J: Which was the system here until very recently.

MR ROZENES: Yes. Do your Honours wish to hear me in relation to the second point? We would simply say that is a construction point that has no substance at all.

DAWSON J: No, we need not trouble you about that, Mr Rozenes.

MR ROZENES: If it please the Court.

DAWSON J: Mr Shirrefs?

MR SHIRREFS: Very briefly, the only matter that I seek to address your Honours on in reply is the distinction to be drawn between a situation where a juror has retired or is ill and has been discharged from the body of twelve. The old common law of England, at the time of Federation, you could not have jurors discharged. If one juror was unwell and could not continue with the trial the entire jury was discharged. It was only a development into this century by legislation that permitted juries of less than twelve to retire to consider its verdict and return a verdict.

McHUGH J: But the whole jury process has been evolving over six or seven centuries. I mean, the jurors began as witnesses, then they became people who were oblivious to the facts. You had no women on; now you have women on. You had property qualifications, now you do not. Why is this not just an evolutionary development?

MR SHIRREFS: Your Honour, the development from people in the neighbourhood who knew about the facts and you required twelve to have a decision, to a situation where the reverse became the case at the time of Henry II where jurors were to know nothing about the case at all, and you required a unanimous verdict of twelve. Since that time, up until the time of Federation, as I submitted before, one of the essential features is that they are not to discuss the case outside their number. When you have a situation as we now have in a number of the States of this country, except New South Wales and South Australia - - -

DAWSON J: But, you see, that was outside their number, but the way in which the reserve juror system operates is they are not outside their number, except in a technical sense as they may not - - -

MR SHIRREFS: They are to this extent, they are not the jury proper. They are not the collective entity that ultimately goes out to consider the verdict. They are there as contingent.

DAWSON J: They are, in a sense, you see, because the group who go out to deliberate and reach a verdict, which is the important process, has participated up till that stage upon the same basis.

MR SHIRREFS: Yes, and they have been able to have their input into that process and exert their view, their opinion, their considerations on the ultimate trier of fact, although they are not there for the final deliberation. That is where, in my submission, the system of reserve jurors is in conflict with trial by jury under section 80 of the Constitution. If your Honours please.

DAWSON J: By a majority the Court is not persuaded that the Western Australian Court of Criminal Appeal was in error in reaching the conclusion, which it did, that the participation of reserve jurors did not infringe any requirement of section 80 of the Constitution.

The Court is unanimously of the view that the point raised with respect to the construction of section 633 of the Criminal Code in Western Australia does not raise any question of principle which would warrant the grant of special leave. Special leave is accordingly refused.

AT 10.05 AM THE MATTER WAS CONCLUDED