Wu v The Queen S22/1999 [1999] HCATrans 170 (16 June 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S22 of 1999

B e t w e e n -

MEI QIN WU

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 1999, AT 11.51 AM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court please, I appear for the appellant. (instructed by Van Houten Solicitors & Barristers)

MR T.L. BUDDIN, SC: May it please the Court, I appear together with my learned friend, MR P.G. BERMAN, on behalf of the respondent. (instructed by the Director of Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Before I open the appeal, can I invite your Honours to page 8 of my outline of contention. Between paragraphs 2.10 and 2.14 I have set out what might be described as some history concerning the word "twelve", and indeed the number 12. I hope your Honours do not consider that material as a piece of esoteric irrelevance, but nevertheless, I need to make one - - -

KIRBY J: That thought did cross my mind, that it was esoteric and irrelevant, seeing as you have raised the issue. I would have been too polite to say it but - - -

MR WENDLER: I have raised it and your Honour has described your Honour's inclination. We need not talk too much more about it, other than at point 2.11 where I have identified Professor Gullberg's book, "Mathematics - From The Birth Of Numbers" - the publication date is 1998- and in Dr Funk's book, also in paragraph 2.11, the publication date is 1978, and that quotation is taken from page 325.

KIRBY J: Mr Wendler, there are issues to be discussed in this appeal, and it just seems to me to be completely irrelevant material.

MR WENDLER: Yes; I only mention it for completeness. Your Honour may have found it irrelevant. There may be other members of the Court that found it perhaps not so irrelevant.

Your Honours, can I commence then by inviting your Honours to page 4 of the appeal book where there is set out the portion of the transcript taken in the District Court of New South Wales on 1 April 1998. There occurred on that day the following, and I propose to go through the transcript and identify the matters which are relevant to the central question in this appeal and that is whether or not, in all the circumstances, the discretionary process miscarried. Is there a demonstrable error in principle having regard to the way the trial judge exercised his undoubted discretion to discharge a juror during the course of the trial of the appellant? It commences with his Honour speaking to counsel:

You have heard the news I suppose. You two might not agree with this, or one of you might not, but I am tempted to discharge her.

Clearly at that stage his Honour had received information from a sheriff's officer and that information concerned the status of the juror who was eventually discharged by the trial judge.

GLEESON CJ: Mr Wendler, when you say that the issue in this case concerns the exercise of a discretion, that seems to assume that the power to discharge the juror existed.

MR WENDLER: Yes, it does.

GLEESON CJ: Well, then, the power to discharge the juror existed by reason of what statutory provision?

MR WENDLER: The critical sections in relation to this appeal are to be found in Part 4 of the New South Wales Jury Act. That portion of that part is reproduced in the appellant's book of authorities at tab 5.

GLEESON CJ: So this was, by hypothesis, a juror discharged through illness?

MR WENDLER: That is right. There was a message which appeared that the juror was ill on a particular day and it appeared that she would not be returning to the trial, at least that day, so far as the information that was to hand.

GLEESON CJ: So the argument is proceeding upon an acceptance of the proposition that the judge had a power to discharge her.

MR WENDLER: Yes.

GLEESON CJ: And the only issue in the appeal is whether his discretion as to whether he should exercise that power miscarried?

MR WENDLER: Yes, that is right.

HAYNE J: And is illness the sole consideration; it not a consideration that the juror was absent on that day in a trial that had already been delayed?

MR WENDLER: No, it is not; perhaps I will come to the nub of it in this way. His Honour approached the discretionary process by in effect holding that the discretion to discharge a juror was unfettered. There were no guiding principles; there were no matters that had to be taken into account in relation to the proper lawful exercise of that discretion.

GLEESON CJ: Well one matter that was staring everybody in the face was that the juror had absented herself.

MR WENDLER: There is no doubt that there was a problem in relation to the juror attending on that day.

HAYNE J: Well, problem or not, she had not; there were 11 who were about to sit in the box.

MR WENDLER: Yes, quite.

KIRBY J: And it was the tenth day of the hearing.

MR WENDLER: Yes. It is not about whether she turned up or not; it is about the legality of what his Honour had done.

HAYNE J: Why not? Why is it not about whether she turned up. That is, you have a tenth day of trial, 11 in the box, and the question is, can the judge, in those circumstances, lawfully discharge the twelfth juror who is absent?

MR WENDLER: There is no doubt about that and there is no doubt that his Honour could, or rather, was empowered to discharge the juror; it is the way he went about discharging the juror.

GLEESON CJ: Discharge for absence or discharge only for cause such as illness?

MR WENDLER: It was for absence or rather, if we identify the expression used in section 22 of the Jury Act, which reads:

Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner whether as being through illness incapable of continuing to act -

GLEESON CJ:

Or for any other reason - - -

MR WENDLER: I am going on:

incapable of continuing to act or for any other reason - - -

GLEESON CJ: Well, what about staying away, just for a start; that is not a bad reason for discharging a juror, is it?

MR WENDLER: Of course, if a juror for no reason decides that he or she will absent themselves from the trial, of course, that would come under the ambit of the statutory expression "or for any other reason". There is no doubt that section 22 provides that a trial can continue with less than the number which is mandated in section 19. It is a fact, as your Honours know, that no trial in this country can commence, no trial on indictment can commence, in this country, whether it is a State offence or a Commonwealth indictment offence, with less than 12 jurors; that would not be a trial which is a lawful trial.

It can certainly conclude with less than 12 jurors and, of course, there are provisions in some States where a trial can proceed without a jury at all, but it cannot commence with less than 12 jurors. So, the starting point is that which is mandated in section 19 and equivalent pieces of legislation throughout the Commonwealth and in so far as Commonwealth indictable offences are concerned, in the sense that section 68 of the Judiciary Act, of course, picks up and applies the relevant jury procedures according to the State in which the Commonwealth offence is being tried. If I can come back now to what occurred in the District Court and identify those features in the transcript which are essentially an exchange between the trial judge and the lawyers in the trial.

KIRBY J: Is there an affidavit which sets out the news that his Honour is referring to?

MR WENDLER: No, there is not, your Honours.

KIRBY J: How can we deal with that news which apparently related to the illness of the juror?

MR WENDLER: It is implicit in the rest of what occurred. Perhaps the next relevant statement from his Honour is this. At about line 26 his Honour says:

In determining these applications to discharge a juror, I have a pretty broad brush, have I not? The message I had from the Sheriff's Officer was that she is not well today, she might not be well tomorrow.

His Honour then proceeds to invite the prosecutor to respond to the situation and there was immediate response that the most expedient method was simply to have her discharged. Thereupon the appellant's counsel objected to that course and simply cautioned, as it were, his Honour to, in effect, make more inquiries in order to determine what the true status of this juror was. In other words, is this the first resort that we discharge the juror, or is it the last resort? Is there some obligation in the discretionary process for a trial judge to make extra inquiries in order to determine whether or not a juror would return to a trial? In fact, in so far as the information that the court had at its disposal, it appeared that the status of the juror, or her condition, was fairly vague. His Honour then said:

I am a bit pessimistic. Your approach, I think if I understand you correctly, is to the chain of possession, is that the sort of thing you are running?

Then there appears a sort of exchange in relation to some procedure in the trial. Then, at about line 57, the appellant's counsel said to the trial judge:

I would ask your Honour, instead of discharging the person at this stage, perhaps until we find out a little more. If she is going to be off three, four days, well then yes.

and his Honour responded:

What is the magic in twelve anyhow?

It is this statement, "What is the magic in twelve anyhow?" which is suggestive that his Honour was of the view, at that stage, that the number mandated in section 90 was really a titular number. It does not really mean anything.

GLEESON CJ: It means something quite different. It could merely mean that his Honour was referring to the fact that he had the power to continue the trial with 11.

MR WENDLER: Yes. It may refer to that, but reading that - - -

GLEESON CJ: Well, that is exactly the context in which he put it when he made a statement to the jury. On page 15 of the appeal book he said to the jury:

Ladies and gentlemen, there is no magic in the number 12. We can carry on with 11.

MR WENDLER: Yes, he said it twice, there is no doubt about that. Once in the absence of the jury and later when the - - -

GLEESON CJ: I do not think he was intending to be taken literally when he referred to "magic" although some of your submissions seem prepared to address that possibility.

MR WENDLER: Those submissions in the outline were put there to demonstrate the duodecimal system. Historically, it is not something that fell out of space. It has a history in mythology. It has a history in religion and cultural experience.

KIRBY J: But the only issue before us is the legal question of what the Act mandates, the history that supports that in respect of juries and what happened in this particular case.

MR WENDLER: Yes.

KIRBY J: We do not have to go into all the other magics of 12.

MR WENDLER: No, no. I am sure the appeal is not going to turn on that portion of my outline. It was simply put there to, as it were, sketch the wider picture to the extent that that was necessary.

KIRBY J: Could I ask you this question? Given the terms of section 22, is it your submission that where a question of discharge arises, that the section has mandated some particular categories such as "through illness incapable of continuing to act" and then, "or for any other reason", but that this case fell to be determined in that category which deals with "through illness incapable of continuing to act" because that was the only basis on which the matter of the absence of the juror had been suggested.

MR WENDLER: Yes.

GLEESON CJ: I do not understand that. The absence of the juror was the primary fact. That was causing the problem. Everybody was assembled to continue with the 11th day of a trial that had been going for ten days and the juror did not turn up against a background of an explanation of illness.

MR WENDLER: Quite, but that was the reason, apparently, she did not turn up.

GLEESON CJ: That was the proffered explanation.

MR WENDLER: Yes, yes. As far as anyone knew and at the stage - - -

KIRBY J: I would just like to understand for my purposes whether your submission is that where, given the proffered explanation was illness, that therefore the terms of section 22 of the Act required the judge to approach the matter on that category and that category alone which directed attention, in the case of illness, to whether the juror was incapable of continuing to act, the continuing being a suggestion of, as it were, seeing out the trial.

MR WENDLER: The expression is:

through illness incapable of continuing to act -

It is my respectful submission that those words should be read down to the extent that the expression "incapable of continuing to act" means a permanent incapacity rather than a temporary incapacity.

GLEESON CJ: Suppose this had occurred on day two of a two-day trial; the judge was about to sum up to the jury and everybody was going to go home at the end of day two. It was going to be all over. What would have been the judge's position then?

MR WENDLER: These things depend on the circumstances that - - -

GLEESON CJ: Exactly.

MR WENDLER: - - - a trial judge is confronted with at the time, and one has to make adjustments and so on and so forth. The question here is whether for the purposes of the proper and lawful exercise of the undoubted discretion that his Honour had, whether there was some obligation, and my submission is that there was, having regard to the principle, in my respectful submission, that if you commence with 12, then if it is practical to conclude with 12, one should make all those inquiries and do all those things to try and preserve that minimum number of 12, rather than act in circumstances where there is an inclination to discharge a juror immediately without further inquiries.

For instance, what if a judge discharged a juror because he did not like the fact that he was wearing a yellow tie each day, or something like that. In other words, the discretion is not unfettered. Three are principles and guidelines that must be built in before one can resolve - - -

McHUGH J: Is that the correct approach to this section at all? The section, itself, carries the implied power to discharge the single juror, because at common law there was no power to discharge a single juror, was there - you either discharged the jury or you did not.

MR WENDLER: That is right.

McHUGH J: So this section, by implication, must give a power to discharge at least two jurors, and it states the grounds upon which they can be discharged:

through illness incapable of continuing to act or for any other reason -

Once you identify the reason, is there any question of discretion? If the judge exercises his power according to, let us say, the first limb, as being through illness incapable of continuing to act, how does discretion come into it?

MR WENDLER: Sometimes a person can get ill for a couple of hours; does that mean that that person is discharged immediately? Do we construe that portion of section 22 in such a way that the minute there is a whiff of illness out goes the juror.

GLEESON CJ: It might depend on the circumstances of the particular - - -

MR WENDLER: Well, it always does in this type of situation.

McHUGH J: Well, it raises a question of fact, does it not, as to whether the illness is such that the juror is incapable of continuing to act but, if the judge makes that finding of fact, is there anything more that the judge needs to do?

MR WENDLER: In my respectful submission, it is not just a question of making that finding; it is the way that finding is made. In the circumstances of this case, his Honour did not have material before him which suggested that the illness or incapacity was of a permanent kind; it suggested at best it was incapacity to be involved in the trial for that day.

McHUGH J: I know for forensic reasons you throw the weight of your argument on the first limb, but I would have thought the second limb was the only relevant limb in this particular case.

GLEESON CJ: She was not there.

MR WENDLER: She was not there, but she was not there for a reason.

McHUGH J: And that was the reason. The judge said, "Well, that's the reason; I'm going to discharge the power". Now, unless it is arbitrary, then exercise of the power, the condition is fulfilled; what else is there to the case?

GLEESON CJ: Mr Wendler, if a juror just does not turn up on a morning, and supposing no explanation is proffered, what is the judge supposed to do about that?

MR WENDLER: Well, his Honour would at least have to make inquiries, or someone would have to make inquiries, in order to determine whether that juror is never going to turn up or whether it is realistic to expect the juror to return.

GLEESON CJ: But that seems to assume that there is some obligation on the court to wait for the juror. That, I might say, entails an obligation on the accused and on counsel and on the other jurors to wait for that juror. Why do we have to find out if a juror is never going to turn up?

MR WENDLER: Well, because if we do not, then the number 12, the 12 jurors, which is mandated in section 19, the idea of having that as the minimum body of opinion which decides or determines the verdict is, in effect, really a titular number.

HAYNE J: Well, it may be - a minimum number?

MR WENDLER: Well, I withdraw the "minimum" expression.

KIRBY J: The required number.

MR WENDLER: Yes, the required number is obviously better.

KIRBY J: You have to start from section 19 and say you are entitled by law, by the Act of Parliament, to 12; in every one there is potential advantage to an accused and, to the extent that that is diminished, you lose an entitlement of law and a potential forensic advantage. There therefore has to be a good reason to deprive you of that advantage and legal entitlement and when the Parliament dealt with that, it bifurcated the ground between cases of illness and any other reason. Now, it just seems to me that you have to argue that this was a case that had to be dealt with under the illness category and the way his Honour went about it was not the correct way of applying that provision of section 22.

MR WENDLER: The illness category in this case was also influenced not just by the fact, and I have not handled this part of it, that his Honour received information that the juror was ill, but by the fact that his Honour, in fact, had two days off for illness and the case was taking longer than expected. That was built in to the eventual decision, or influenced his Honour, to discharge the juror. Not just the fact that his Honour was of the view that this juror was ill, but his Honour was also of the view that the trial had lost time by virtue of his Honour's problems - - -

KIRBY J: But could that not be an "other" reason, "any other reason"? That is to say that taken alone, the absence of the juror on one day might not be enough, you would then have to go into the illness reasons, but given that there had been an unfortunate delay which was nobody's fault, but his Honour's illness, that that provided, with the absence of the juror, another reason that had to be considered, the convenience of the trial.

MR WENDLER: The other reason has to be reasonable to some extent. An accused has no control over a trial judge's health status, as it were. Why should an accused be deprived of a juror who may be in his or her favour by reason of circumstances totally outside the control of the accused?

McHUGH J: Because the section is giving the power to the judge to reduce the jury down to 10 and the section assumes that the judge will exercise the power rationally, and for any other reason, as long as it is not an irrational reason. If the judge says, "Well, I am going to discharge this juror because she has dyed hair - or because he has dyed hair", well, you might say, or you would say, that that was an irrational reason and the power is improperly exercised. But, that said - - -

MR WENDLER: I accept all that.

GLEESON CJ: I once discharged a juror because he could not talk any English. Now, that might or might not be a reason that other people would agree with, but it was an exercise of the power under this section.

MR WENDLER: I accept all that and we come back once again to the reality of the discretionary process involved in the discharge of a jury or a juror, that it is not unfettered.

McHUGH J: But you want to inject this argument about discretion and you build on the cases about discharging the whole jury. What I have been putting to you is that this gives the judge a power to be exercised upon one of two conditions and as long as those conditions exist, that is the end of the matter.

MR WENDLER: It is not so much identifying whether or not those conditions exist, but the discretionary process is still involved to the extent that even if those conditions, one or other of them, exists, there is still a reasoning process, a decision-making process, which is involved in determining whether one or - - -

McHUGH J: No, the section looks backwards. You see, it is couched in a strange form. It looks backwards. It says:

Where.....any member of the jury.....is discharged.....for any other reason -

So, the jury having been discharged, you ask yourself, looking backwards, was that juror discharged for, let us say, a rational reason? If so, is that not the end of the inquiry?

MR WENDLER: Your Honour has qualified the expression "for any other reason" by using the expression "good reason" or "rational reason".

McHUGH J: Only because courts have always said that if you are given a power it cannot be exercised irrationally.

KIRBY J: It has to be not irrational and for the purpose for which the power is given which presumably is the orderly and just conduct of a trial by jury, against an assumption that ordinarily the jury will be and will remain 12.

MR WENDLER: Therefore, the decision-making process is fettered to some extent. I mean, you cannot just - - -

McHUGH J: All powers. There is no such thing as an unfettered power.

MR WENDLER: In some countries there are, hopefully not in this country. We come back to what occurred - I lost the trail of the exchange, I was not being disrespectful. The expression used by his Honour "What is the magic in 12 anyhow?" is capable of being construed as an expression having regard to what went before that statement, his Honour saying "I have a pretty broad brush", "we have had time off for the fact that I have been ill" and the trial is "taking too long", coupled with the fact that his Honour did not in the circumstances take the extra step of investigating further the circumstances of that juror. That expression is - - -

KIRBY J: You do have to say, I think, that there is a magic in 12 because Parliament assessed there is a magic in 12.

MR WENDLER: Yes, quite, that is the simple one line answer.

GLEESON CJ: Yes, but it depends what you mean by "magic". Very few people who use that word are referring to the sort of things that you were referring to in part of your written submissions. Now, if that is an unfortunate or over-exuberant use of language, so be it, but what precisely do you say his Honour meant in it, and more than that "I have the power to proceed with 11"?

MR WENDLER: My respectful submission is that his Honour used that expression in such a way which undermined or did not give full effect to section 19 of the Jury Act. His Honour was in a sense suggesting, well that number in section 19 which is mandated by the Parliament is really a titular number. There is nothing special about it. I think the word "special" might be a synonym in the context, a convenient synonym in the context of that statement. If we replace it by - - -

KIRBY J: Does that mean the outcome of this appeal would be different if you were to accept, as you do not accept, that his Honour meant nothing more by that statement than, "Having regard to the relevant provisions of the Jury Act, I note that I have the power to continue with 11".

MR WENDLER: No, I do not accept that. It is my respectful submission that that expression used by his Honour in the context in which it was used was used without the full embrace of the mandate in section 19. In other words, when the decision-making process is executed according to section 22 it must be executed having regard to section 19. In other words, you do not read section 22 in isolation. You read section 19 and 22, and that is how the decision-making process lawfully is exercised, and to the extent that his Honour discharged this juror, he may have discharged the juror according to the ambit of section 22, but he discharged her without any recourse to section 19.

KIRBY J: You say that in exercising the power - not discretion - which section 22 gave his Honour, it was necessary for him to take into account the provisions of section 19 and the legal and forensic entitlement of your client to 12.

MR WENDLER: That is right.

GLEESON CJ: How do you know he did not take that into account?

MR WENDLER: Because when one looks at the overall exchange between his Honour and counsel, first, his Honour suggested right from the outset, "I am tempted to discharge her". There was already a mind-set as soon as he had heard the news.

KIRBY J: That is hardly fair. Judges are entitled to say to counsel what their tentative views are. It would be a pretty bad day when a judge cannot come on and say, "This is what I am thinking of, what do you say about that?". That is the opportunity of counsel then to respond.

MR WENDLER: Counsel did respond by urging caution; an approach which would have meant the investigative process concerning that juror's reinvolvement in the trial should take place. However, inquiries were not resolved. In fact, his Honour discharged this juror while those inquiries were still on foot, as I read it. It is in that context, coupled with the fact that his Honour was also mindful that the fact that the trial was taking too long, and days had been lost as a result of matters which had nothing to do with the appellant. So, it was a combination of all those matters - - -

KIRBY J: It may be nothing to do with the appellant, but it may not be a matter irrelevant to the exercise by a judge of the power, may it?

MR WENDLER: It may not be, depending on the circumstances.

KIRBY J: It is part of the background. It is part of a reality in which in a 10-day trial there had been earlier delays. It was nobody's fault, but that was the fact of the matter. They were into the tenth day and suddenly the juror does not turn up, reportedly for reasons of illness, and instead of his Honour, as it were, focusing on the illness provision, he seems to have leapt to the second provision for the exercise of his power, and taken in a number of considerations, banishing from his mind, you say, one matter which he may not have banished from his mind, namely that you are entitled to 12 by section 19 of the Act.

MR WENDLER: And manifest in all that is the expression "What is the magic in twelve, anyhow?". Then his Honour repeated that to the remaining jurors as page 6 of the appeal book:

Ladies and gentlemen, there is no magic in the number twelve. We can carry on with eleven. We are sorry to lose her -

and so on. Then his Honour said:

The message we got earlier from her friend is that she is sick and it could be tomorrow or the next day. I think time is running on, so we will carry on with eleven.

Although, as I understand - - -

KIRBY J: Did his Honour ever make a formal order when exercising the power in discharging the juror?

MR WENDLER: Yes, his Honour said at page 5, line 33:

I propose to discharge the juror Nicole Haddock.

I think that is suggestive of an order. It was pronounced in an open court by his Honour, and as a result of that pronunciation, that was the end of Nicole Haddock.

GLEESON CJ: It is fair, however, to add, is it not, that the background to this was not just that she was not there, which is a pretty important aspect of the background, but there seems to have been an indication that it would be difficult to investigate the matter of her illness. There was a problem about whether somebody had her home phone number.

MR WENDLER: Yes.

KIRBY J: There was an answering machine on. Was not that suggested?

MR WENDLER: Yes, but look, once again, the appellant's counsel said to his Honour or invited his Honour, perhaps, to exercise a little more restraint, to go cautiously and let those inquiries resolve themselves. I mean, that could only have been a matter of hours to understand exactly what the position was. It may well be, at the end of the day, that the position had not improved.

KIRBY J: The only reason for providing special leave in a case of this kind is not to examine, parse and analyse the spontaneous reaction of judges and the way they state things, but to look at this case and ask, is this the correct application of the powers that are provided for in section 22. Did his Honour approach this, is this the way in which that exercise of power should have been conducted? Now, what is your submission? You say it is not. What was the correct way to exercise the power?

MR WENDLER: First, his Honour should have instructed himself in relation to section 19 and the legal effect of that section. His Honour should have, in the process of discharging that juror, made it clear that he was mindful that the Parliament had mandated that there be 12 jurors and that there would be a forensic disadvantage or a forensic loss if a juror was discharged without full and detailed inquiries.

HAYNE J: Directed to what conclusion, Mr Wendler? You have, at one stage, said determination of permanent incapacity, but to what end is this inquiry directed?

MR WENDLER: To the question whether it was practical in the circumstances to maintain that jury at 12.

KIRBY J: Well, your answer has to be what the statute says. It has to be an illness such that the juror is incapable of continuing to act, ie, as a juror. It is not every illness which the Parliament has considered will warrant the exercise of the power. It is only an illness which is such as to cause the juror to be incapable of continuing and that tends to reinforce the provision of section 19.

HAYNE J: Is the incapacity there spoken of, permanent incapacity, temporary incapacity; what is the incapacity spoken of in those words of section 22?

MR WENDLER: It does not actually say, but, in my respectful submission, the expression "illness incapable of continuing to act" - it is my submission that that must be demonstrated permanent incapacity in the sense - - -

GLEESON CJ: No, no.

MR WENDLER: - - -that the juror cannot return to the trial and partake in it.

HAYNE J: Well, that is a most startling proposition, Mr Wendler. It means that a juror, who is unfortunate enough to contract glandular fever, requiring recuperation of six months, must be retained on the jury and the trial of the accused must be interrupted for six months and the trial held hanging over his or her head.

MR WENDLER: That is not the submission.

HAYNE J: Well, what is it then?

MR WENDLER: Reasonable - - -

HAYNE J: The moment you inject questions of reasonableness, what are the criteria for reasonableness, in this context?

MR WENDLER: Well, that would depend on the inquiries that are made and it may well be, in circumstances where inquiries are made, it becomes obvious that - - -

GLEESON CJ: Why does not "incapable of continuing to act" mean incapable of continuing to act right now, today, going on with the trial as everybody else is ready to go on with it? This juror was indirectly telling the court, was she not, that she was incapable of continuing to act, today?

MR WENDLER: Yes. Because that may subvert the right to maintain the 12; if it is feasible and practical to maintain the number at 12.

GLEESON CJ: The word "continuing" implies continuity, not an interruption.

MR WENDLER: If you read section 22 isolated from section 19, then that may be the result, but if you read section 22 as being inextricably associated with section 19, then that must be some break; inject some sort of break on that process.

GLEESON CJ: Mr Wendler, let it be supposed that a medical practitioner had turned up in court on this morning and had said to the judge, in evidence, "This juror is suffering from a temporary illness which will mean that it is impossible for her to attend either today or tomorrow, but she will be all right the day after tomorrow". In those circumstances, would the judge have had a power to discharge her?

MR WENDLER: Depending on the circumstances, of course his Honour would. It may well be that, having regard to everything else in the trial, and having heard counsel and so on and so forth, it may well have been appropriate. But whatever the situation is, the decision to discharge must be made mindful of the practicality, if it is - mindful of preserving the jury at 12 if possible. In other words, when we get to preserving the number 12, if possible in the circumstances of the trial. One of the authorities I have identified is the Supreme Court's decision in Basarabas v The Queen and the obiter remarks by the Supreme Court of Canada concerning the fact that a person or an accused should not be lightly deprived of a trial, a jury trial, consisting of 12 persons. Now, certainly, procedurally, sometimes situations occur when there is a discharge of a juror. But any discharge of any juror must be made mindful of the practicalities of maintaining 12 if it is at all feasible.

KIRBY J: Do you say, against the background of the history of juries, against the background of section 19 of the Act and against the forensic background of the potential utility to your client having each and every one of the 12, that what happened in this case was that the judge exercised his power on at least one basis, which was irrelevant to the exercise of the power, namely, that he could put the number 12 out of mind, whereas section 19 history and forensic considerations require that it be squarely in his mind?

MR WENDLER: That is right.

KIRBY J: And that is all that is involved in your argument here, as I understand it.

MR WENDLER: Well, that is it - - -

KIRBY J: You have to then face the question, as it seems to me, even assuming if the power was exercised on a wrong basis, whether, that notwithstanding, there has been, as you contend, a failure of the whole trial process thereafter, or whether that is a matter which did not really affect the continuance of the trial or deprive you of a trial as the law provides.

GLEESON CJ: How long did this trial last in the events that happened?

McHUGH J: 29 April.

MR WENDLER: Yes, it concluded on 29 April, so in the area of six weeks or thereabouts.

McHUGH J: Mr Wendler, the point that concerns me in the case is a point you have not taken. In my experience of when this happened, the judge always made a formal order that the remaining jurors should constitute the jury for the purpose of the trial and that seems to be the effect of the concluding words of section 22 and, so far as I can see, no order was made in this particular case. Section 22: you have the opening words:

Where in the course of any trial.....any member of the jury dies or is discharged -

so, that decision is made. Then the section goes on:

the jury shall be considered as remaining for all purposes of that trial or inquest properly constituted if:

the case of (a), (b), et cetera -

and if the court or the coroner, as the case may be, so orders.

Now, the "so orders" does not refer to the question of discharge, but to the jury being considered as remaining for all the purpose of the trial or inquest as properly constituted.

HAYNE J: The nearest we get to an order by the judge might be at page 6, line 13 "so we will carry on with 11"; that is the nearest we get, I think.

MR WENDLER: I was about to mention exactly what your Honour Justice Hayne has just read out, that that is the only expression by the trial judge in relation to the remaining number.

McHUGH J: Is that your experience? I mean, judges used to actually make a formal order - - -

MR WENDLER: My experience is that that is not the case. A formal order is not normally made in the formal language that your Honour Justice McHugh insinuates.

GLEESON CJ: One of the things that usually happens is that the judge explains to the other 11 jurors what is going on and, at least, implicit in that explanation will be an order as seems to have happened in the present case, but the judge's first practical obligation is to explain to the jurors the vacant seat.

MR WENDLER: And that, it appears, happened in this matter to the extent that it appears on page 6 of the appeal book.

HAYNE J: Does this not point to a fundamental difficulty that needs to be confronted in this appeal? Leave aside whether formal order can be deduced from "We will carry on with 11" and assume, for the purposes of argument, that that can be so interpreted, if an order is made in the terms of section 22, what then is the basis of complaint for the statute commands that the jury as thus constituted is properly constituted, where lies the appeal on that analysis?

McHUGH J: That is the importance of making the order. I mean, I struck this a couple of times when I was a junior, I think, in defamation juries of 12 and judges would discharge a juror for some reason or other and would make an order in those terms. That is my recollection. I do not know that it is wrong. That then gives significance - the statute then operates on it and you then have a jury as constituted by the Act.

MR WENDLER: Procedurally, my experience is that no formal order of that kind is generally made and apart from an - - -

McHUGH J: An earlier generation of judges may have been more concerned with these forms.

KIRBY J: Do you embrace the correctness of Justice McHugh's analysis of the section?

MR WENDLER: Yes, I do.

KIRBY J: If you do and if you intend to rely upon it for your client, you will have to seek the leave of the Court to amend, will you not, because it is not raised - it has not been raised?

MR WENDLER: It is not raised - - -

GLEESON CJ: It is not raised here, it is not raised in the Court of Criminal Appeal and not raised at the trial when, if it had been raised, it could very easily have been attended to.

MR WENDLER: That is not necessarily a legal impediment. This Court has often taken on matters of pure law, as it were, for the first time on appeal which have not been argued in an intermediate court.

KIRBY J: But is it an appealable point if it has never been raised anywhere? I mean, we are supposed to be sitting in an appeal, how can it be an appeal point if this issue has never been raised anywhere before?

McHUGH J: You also have to get special leave. The fact that the point was not taken at the trial might make it difficult to get special leave when it could have been so quickly corrected. The point of making the order is, of course, it directs the judge's mind to the whole seriousness of going on with only 10 or 11 jurors, as they case may be. It is one thing to discharge the juror, it is another matter altogether then to carry on.

GLEESON CJ: Do you make application for leave to amend your grounds of appeal and for special leave to rely on that ground?

MR WENDLER: Yes, I do.

GLEESON CJ: Is there anything you want to add to your application?

MR WENDLER: No.

KIRBY J: I suppose one consideration relevant to special leave might be that special leave, having been granted in the other matter, it causes no additional burden for the Court - leave having been granted; you being before us on appeal, to hear the issue and determine that question.

MR WENDLER: In any case, it is a matter of significant procedural importance. It may well be that the practice has fallen into disuse, and this would become a vehicle to reactivate the practice and bring it to the forefront of trial judges - to the minds of trial judges.

GLEESON CJ: By a majority the application is refused.

MR WENDLER: Yes, right. Your Honours, there was one authority which is not mentioned in my outline, and one which I want to invite your Honours to in concluding, and I have copies.

KIRBY J: Without recanvassing the question that has just been determined, I had not really, myself, thought of the point Justice McHugh raised, that is to say that there are two questions raised by section 22. The first whether you should discharge, and the second whether you can properly, in the circumstances of the case, go ahead with a jury of 11 or 10. Did his Honour ever address that second question at all?

MR WENDLER: No, not as far as I know. The authority that I have - - -

KIRBY J: He gave no reasons, did he? There was no little judgment on this issue?

MR WENDLER: No, no there was not. All that appears is that which we have before us in the appeal book. The authority that I was about to handle is the decision of Reg v Goodson (1975) 1 WLR 449. This authority is of some use. The circumstances involved the discharge of a juror after the jury had retired to consider their verdict. What occurred was that one of the jurors left the jury room to make a telephone call. During the telephone call Crown counsel observed the juror making the telephone call and reported that fact to the trial judge. There was application then to discharge that juror and that juror was indeed discharged. The English Court of Appeal allowed the appeal because there had been a jury irregularity, or an irregularity involving a juror, rather. However, the legal consequence of the irregularity was expressed in these terms at page 552 of the report, just below the letter A:

In this case, when one looks at the facts, as has been pointed out in the course of argument, it is clear that the defendant was deprived of the voice of one juror in the jury room in the consideration of the verdict from which the appeal is made.

Now, that juror never went back to the jury room and there was no evidence that that juror communicated with the rest of the jurors who were still in the process of considering their verdict.

Nevertheless, that juror was discharged and it appears that the real reason there was a miscarriage of justice is because the irregularity deprived the appellant, in that case, of the voice of one of the jurors in the jury room. In other words, it is reaffirmation again, indirectly, of the importance of this body being kept at 12.

McHUGH J: I know, but this is one of the problems now that the Court has rejected your application for special leave to appeal. It seems to me that, prima facie, at least, that 22 gives implied power to discharge a single juror and then there is another question as to whether the trial should then proceed with 12 and the judge has the power to order that it does and, at that stage, discretionary considerations come in. Interests of justice and all other matters and the fact that section 19, prima facie, requires a jury of 12 but can you rely on cases like Goodson given that you are now confined to this question of the power of discharging the juror?

MR WENDLER: I can, to the extent that one of the matters concerning the correctness of the decision-making process executed by the trial judge when he made the decision to discharge the juror was devoid of the loss of forensic advantage. The loss of one person to the case may have dispossessed the appellant of some forensic advantage. No one knows.

GLEESON CJ: You are entitled to say, I suppose, it is evident that the whole purpose of discharging this juror when she was discharged was to permit the trial to continue with 11. That is the whole reason he did it.

MR WENDLER: Yes.

GLEESON CJ: So that the trial could go on immediately.

McHUGH J: Well, it may be that that is the wrong approach to the section, that there are two separate issues; the first has got nothing to do with the continuation of the jury. The question is whether the judge ought to discharge the - - -

GLEESON CJ: May it be one reason for discharging the juror, that without discharging the juror the trial cannot continue immediately?

McHUGH J: You probably cannot divorce the two matters; they are probably interrelated to some extent in any event, although different considerations may apply at the second stage.

MR WENDLER: Yes, if the Court pleases. I am not sure whether I can press it much further.

KIRBY J: I asked earlier on the question of miscarriage of justice, because I had in mind what the Court of Appeal of Victoria said in Katsuno's Case - I think it is Katsuno - and that was appealed to this Court. That was a case where the police commissioner's vetting had led to a juror not - being disqualified. Now, the question is whether, in those circumstances, even if an error has occurred, nonetheless no miscarriage of justice has occurred by reason of the error, because of the fact that we do not know how the juror would have voted and it is all speculation and the matter just went ahead with the absence of that juror.

MR WENDLER: That is the problem. If it be demonstrated that there was an error, this is not a case where, for instance, the proviso could effectively be applied, because no one knows how that juror would have voted and what her input had been and whether others had been supporting her and then, as a consequence - - -

KIRBY J: That is one way to look at it; the other way to look at it is, because there is no reason to think on a rational basis that that juror was locked into your camp, it is entirely a matter of speculation and therefore that it cannot be demonstrated that any miscarriage of justice arises out of what happened.

MR WENDLER: Yes.

KIRBY J: Well, would you care to think about this over lunchtime, because this is not unimportant for my view of the matter.

MR WENDLER: Yes.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Just prior to the luncheon adjournment your Honour Justice Kirby invited me to consider over lunch the question as to whether or not, in all the circumstances, there has, in any case, been a miscarriage of justice.

KIRBY J: The case I mentioned was Katsuno, which was a case in the Court of Appeal of Victoria and has come to this Court and been argued and stands for judgment.

MR WENDLER: Your Honour, I think was specifically inviting me to consider the situation where we really engaged in a speculative process in relation to how that juror would have resolved the matter, either in favour of the appellant or against the appellant.

My response is this: if it can be demonstrated that there is a fundamental defect in procedure then the appellant has not had a trial according to law; and if the appellant has not had a trial according to law there has been a miscarriage of justice.

McHUGH J: You do not have to go beyond Maher's Case, do you? Maher in this Court decides that if what has happened affects the constitution of the jury then it is a fundamental defect - an interference with the fundamental process of the criminal trial, and no question of miscarriage arises. Katsuno was a case where the error was anterior to the selection of the jury, and it was alleged that an unlawful act prevented the proper jury being selected. In Maher, it was a case of somebody being indicted without the jury being resworn to hear that.

MR WENDLER: And, indeed, in the Supreme Court of Canada in Basarabas, there was a similar situation where a juror had been discharged before the appellant there had been put in charge of the jury.

McHUGH J: But if your point is right in this case, then the jury should never have continued with 11. You are required to have a jury of 12 and, in fact, you had a jury of 11.

MR WENDLER: It is legally tantamount to having arraigned the appellant and put the appellant in charge of 11 jurors. That is the equivalent of what has happened here, in my respectful submission. It is as serious as that because of the failure to have full regard to the powerful legal effect and guarantee in section 19 of the Jury Act. Finally, at page 5 in the appeal book, just prior to the trial judge discharging the juror, his Honour remarked to the appellant's then counsel - first his Honour said:

Somebody is ringing her home. The only number that the Sheriff's Department has is the work number.

Mr Glennon -

trial counsel -

you will be protected elsewhere if it comes to that. Although it would be a difficult one I imagine.

I do not know what his Honour was referring to. His Honour appears to have been referring to the fact that, "Even if I do discharge you, you will never win this on appeal". So, to the extent that that played any role in the decision-making process - - -

KIRBY J: What I cannot understand, unless this is an abbreviated transcript, is how his Honour says:

Somebody is ringing her home. The only number that the Sheriff's Department has is the work number.

Then, instead of even waiting for a few minutes to see whether or not the answer at home came through, he launches in and discharges her.

MR WENDLER: On the basis that - - -

HAYNE J: Well, do we know that the transcript reveals absolutely continuous process? Victorian transcript would read in this fashion notwithstanding that there had been a 10 minute interval in which the judge sat there quietly and had private communication with the associate.

MR WENDLER: Well, I am all for that style of reporting, your Honour.

HAYNE J: Well, what does this transcript reveal? Does it reveal continuous events?

MR WENDLER: That, as I understand it, represents a continuous situation. His Honour made a remark and then proceeded to say the appellant would be protected elsewhere and then proceeded to discharge the juror. As I understand it there was no break in that period of time.

KIRBY J: I suppose all we could do is go on the transcript as it appears unless somebody indicates that it is different.

MR WENDLER: Yes.

KIRBY J: I mean, it did vary from court to court and day to day even in the Court of Appeal. Sometimes everything was transcribed and sometimes there would be long breaks.

MR WENDLER: Yes. If the Court pleases, they are my submissions.

GLEESON CJ: Thank you. Yes, Mr Buddin.

KIRBY J: Can you help us on that last point, Mr Buddin?

MR BUDDIN: Your Honours, I know this much, that this was not sound recorded so it is down to a shorthand reporter. That particular entry that is attributed to his Honour appears, on the face of it, to contain a significant non sequitur.

KIRBY J: It certainly does.

MR BUDDIN: A little later when his Honour is explaining the circumstances in which the jury then found itself, his Honour said, "The Sheriff's Office have not got her home number." And I divine from that that, in fact, his Honour was having communications with the Sheriff's Office. It appears that his Honour, at one stage, and I am reading from the extract that appears in the judgment of the Court of Criminal Appeal, pages 14 and 15 and I appreciate that it also appears independently, his Honour sought to ascertain which juror it was in question, about line 44 page 14:

Do you know which one it is, Michael?

KIRBY J: But does this not also indicate another instance of his Honour exercising his power as it is taken to be at the bottom of page 5 at the foot of the transcript on that page:

I proposed to discharge the juror -

and that is the only possible order that he made, and then over the page he brings back the jury and tells them and then in the midst of that he says they do not have the home phone number but that is after the order of discharge.

MR WENDLER: Yes.

KIRBY J: This is not a perfect way to go about the application of the Jury Act, it seems to me.

GLEESON CJ: Mr Buddin, if you look further at page 5, there is a statement made by counsel for the appellant that seems to imply something that is not completely clear to me. He says at line 20:

My respectful suggestion would be that we adjourn then until the position with her becomes clear. If as a result of the phone call that we expect this afternoon, if as a result of that phone call it is clear -

This discussion is happening at 10 o'clock in the morning, I presume.

MR BUDDIN: Yes.

GLEESON CJ: So, the specific application or proposal that is being put forward by counsel for the appellant involves an assertion that there is an expectation of a phone call this afternoon, and a proposal that we wait until this afternoon. That is the background to the actual decision that is made. What was the basis of that statement that there was an expectation of a phone call that afternoon?

MR BUDDIN: That is the first and only reference to it in the transcript.

GLEESON CJ: Well it can hardly be ignored, because that is the proposal that was made on behalf of the appellant, that we wait until we get a further phone call this afternoon.

KIRBY J: And then the judge says, the only number we have is "the work number" and "Somebody is ringing her home", but then, without waiting to see even what the ringing of the home causes, he discharges the juror. Now that cannot be a proper exercise of the power.

MR BUDDIN: Well, if this is in fact a continuous and complete transcript, and, I must say, I have operated upon the basis that the only reasonable inference is, from a number of different pieces that emerge from the transcript, that it is not.

KIRBY J: But what else did he have to go to act on? Unless there is an affidavit on somebody's part that supplements the transcript, are we not bound to follow the transcript as it is put before us; it is the official transcript of the court.

MR BUDDIN: Well, I mean, the difficulty in part about that is this Court's natural reluctance to accept fresh evidence, and that would be in the nature of fresh evidence.

KIRBY J: But does not the Court of Criminal Appeal have rules on this, that if you want to supplement the transcript, you have to put an affidavit on? They do not have any such difficulties that we are alleged to have.

MR BUDDIN: I appreciate that the Court of Criminal Appeal could have done certain things, but it apparently was not invited to do so.

KIRBY J: But if you want to say the transcript is not an accurate record and that there were gaps or that, in fact, a sheriff's officer came to court and said "Sorry, your Honour, there is no phone number", and then he says, "Well I propose to discharge the juror", then that is an entirely different kettle of fish than what appears on pages 5 and 6. I do not want extend this unnecessarily but it just seems to me that this is a very mixed-up way of going about - first of all, you did not take the two-stage step that section 22 requires, but leaving that to one side, he seems to have jumped the gun. He did not consider the illness ground, did not proceed to question whether she was capable of sitting. He just says, "Well, I have a 10-day trial and I want to get on with it", and that deprives a person of the right that the statute gives them to a jury of 12.

MR BUDDIN: Just in relation to that, there appeared to be a number of propositions that your Honour has just advanced, but in relation to the last, can we submit this: that the force of what your Honour just put to me would be complete if section 19 stood alone. Section 19, of course, has to be read in conjunction with section 22 and that is significant in a number of respects, two only of which I seek to address, your Honours on. The first is the actual terms of 22 itself, but also the legislative history that led to the introduction of section 22. Do your Honours have - there are two tables that were annexed to the submissions. Do your Honours have those? There is a chronology and two tables. The first is entitled "Table 1".

GLEESON CJ: Yes, "Legislative history concerning jury size in New South Wales".

MR BUDDIN: Yes. New South Wales seems to have a unique legislative history so far as section 22 is concerned. In its terms it is different from every other State.

The first entry there refers to a provision that existed as at 1901. In fact, this provision, I think, was predated 1901 but it was in fairly similar terms to section 19. There have been some changes to incorporate the fact that since then there is, of course, provision for an entire jury to be waived by the accused. As of 1901, section 19, or a variant of 19 existed and, in addition, there was no provision at all if there was to be a discharge of an individual juror for that to occur without the discharge of the entire jury.

GLEESON CJ: Just pausing there, that seems to suggest that the power to discharge the individual juror was a common law power and what the statute dealt with was the consequences of the exercise of that power.

MR BUDDIN: Indeed.

KIRBY J: Was the common law, as Justice McHugh suggested earlier, that if you discharged a juror then you had to discharge the lot.

MR BUDDIN: Indeed.

KIRBY J: That tends to reinforce the importance which the common law, at least, attached to a jury of 12.

MR BUDDIN: Yes, I accept that, but then there is to be considered the legislative history in New South Wales. In 1929, for the first time, it was possible to discharge individual jurors and - - -

GLEESON CJ: No, let us be more accurate. It was always possible to discharge an individual juror, the question was the consequence for the rest of them of the discharge of an individual juror.

MR BUDDIN: Yes, I beg your pardon. It was possible for a trial to continue with as few jurors as 10 in the circumstance of a discharge of an individual juror or jurors. But at that stage it required the assent of both the Crown and the accused. That was in 1929 and that picked up an English provision that was to similar effect discussed in the decision of the Court of Appeal in Hambery which is referred to in our written submissions.

We refer to this in the written submissions and refer to what was apparently behind the particular amendments as disclosed in second reading speeches of the relevant ministers at the time. In 1974 the question of assent was removed in so far as a jury by reason of attrition going down to 10, and the amendment was that, provided there was assent in writing from both Crown and the accused, the numbers could be reduced below 10. Then in 1987 we really have the provision that now exists. That is, where a trial is to continue for more than two months without assent of either party, subject to the court so ordering, one can drop to as low as eight. If there is assent by both parties, there does not seem to be any limit to the number of jurors that constitute the jury that continues. In fact, as I indicated before, an entire jury can be waived by the accused if there is assent from the Crown.

If one looks at table 2 your Honours will see the second entry, "Provision for verdict of fewer than 12". It is just the shorthand expression. Your Honours will see if you go across that column from the entries for Victoria through to the Northern Territory, there is a similar provision in every other jurisdiction but the numbers may not reduce below 10 in any other jurisdiction, so New South Wales stands alone. One can reduce to as few as eight without assent of the parties if the trial is to go for more than two months and it can go below that with assent apparently to any number. In addition to that, the history of New South Wales is that it does not have a reserve or additional juror system.

So if your Honours were to go down to the third entry - this is still on table 2 - New South Wales, together with South Australia and the Australian Capital Territory, has no provision for reserve or additional jurors. Every other jurisdiction does have such provision. The number of additional or reserve jurors varies and there are two different types of reserve or additional juror systems. As I understand the Victorian situation, there is provision for up to 15 to constitute the jury. What happens is that all jurors are regarded as, as it were, full strength jurors and if there has been no attrition, then there is a balloting out process. I think I am right in understanding the Victorian system. The Victorian system is different.

HAYNE J: It is called, keeping the jury interested during the whole of the trial.

MR BUDDIN: Absolutely. One can readily understand why that provision was preferred.

In the other jurisdictions they have reserved jurors who are described as reserved jurors for all purposes until and if such time arises as to when they become proper jurors.

CALLINAN J: They are on the bench.

MR BUDDIN: Yes, they are there. As I understand it, they sit in the jury box.

GLEESON CJ: And take part in the deliberations?

MR BUDDIN: No; unless, of course, they take the - - -

GLEESON CJ: Unless they are called in?

MR BUDDIN: Yes; but they are there for all purposes. That means they can discuss - in fact, I think this was the subject of a special leave application some years ago, as to whether or not the reserve jury system was foreign to section 80 of the Constitution because there was the possibility of intrusion of strangers to the jury.

GLEESON CJ: And New South Wales has no provision for reserve jurors?

MR BUDDIN: No. Not only that, but as we point out in the submissions - might I take your Honours to - - -

GLEESON CJ: That means that if you have a six months trial going on and the number of jurors gets below eight, and there is no consent on the part of the accused, that is the end of it?

MR BUDDIN: Yes.

GLEESON CJ: You have to start again?

MR BUDDIN: Yes. There is quite a lengthy extract from the Attorney-General's second reading speech in 1987 - - -

KIRBY J: Which paragraph?

MR BUDDIN: It is page 9. The Attorney-General said in the second complete paragraph, and the part that is underlined:

Eight is proposed as the new minimum where a trial has extended beyond two months, as it provides a reduction sufficient to meet the potential problem of long trials, but retains a significant part of the original jury.

But what I wanted to further take your Honours to was what appears at page 10 of the submissions. The New South Wales Law Reform Commission, in its criminal procedure report - and there is a reference to the Law Reform Commission number - as part of that overall report, reported in a paper entitled, "The Jury in the Criminal Trial", the Law Reform Commission recommended that there be amendments to the New South Wales Act to enable three additional jurors to be empanelled. The Attorney-General, in the same speech to which I was just alluding to, talking about the number that the jury could be reduced to, referred to that Law Reform Commission report and indicated that the government had decided not to introduce such a system in New South Wales.

The effect of all that is, in our submission, that the legislature in New South Wales has considered this question and allied questions, and the question of the constitution of a jury at 12, and has, if you like, removed some of the magic from the number 12. We submit that is highly significant in this case.

KIRBY J: Yes, but it has left section 19 in the Act as the context in which the power under section 22 is to be exercised and here we have a judge who says there is no magic in 12, it is not going to be a matter he is going to pay regard to in the exercise of his power or he considers it is not an important consideration, whereas section 19 makes it one.

MR BUDDIN: But, with respect, why would one assume that an experienced judge has simply put to one side and, as it were, ignored section 19?

KIRBY J: Because he has twice said there is no magic in 12.

MR BUDDIN: Well, as the Court of Criminal Appeal - - -

KIRBY J: There is a bit of magic in it, so much as section 19 attaches to 12.

GLEESON CJ: We may have been a bit hard on Mr Wendler in suggesting that he originated these references to "12 gauge shot guns" and so forth. The origin of this exposition of the significance of number 12 seems to be Sir Patrick Devlin, in the speech referred to by Mr Justice Grove in Brownlee.

KIRBY J: Is that not quoted somewhere in one of the submissions, I think?

MR BUDDIN: Yes, although I think Sir Patrick Devlin referred to the fact that other numbers, 11 and 13, could also have been selected. There is no doubt that at common law it had some significance.

GLEESON CJ: As far as I can see, in a quick reading, it may be Mr Wendler who first thought up the significance of a 12-gauge shot gun in this context, but the rest of the examples seem to come from a speech that Sir Patrick Devlin made in 1956.

MR BUDDIN: Yes, but things change. I mean, other numbers have their magic; three, for example, apart from being representative of the Holy Trinity, is thought to be important in terms of the composition of intermediate appellate courts, but things change. For example, in New South Wales, for certain types of appeals, it was decided that two would be sufficient to constitute the court.

KIRBY J: A very bad day that was.

GLEESON CJ: As they say, it depends which two.

MR BUDDIN: Yes, indeed.

McHUGH J: In civil cases, since 1947 in New South Wales, you could reduce a jury of four to three and a jury of 12 to 10.

MR BUDDIN: Yes.

McHUGH J: The civil antedated the amendments to the criminal side of the jury trial.

HAYNE J: Which leads to the need, does it not, to identify with some precision what is the asserted problem? There could be, at least, three levels of problem: firstly that the accused is arraigned before a tribunal properly constituted, that is, how many jurors should be sworn to try the issues; second, how must the jury be constituted during the course of the trial; thirdly, what number of jurors is sufficient to return a verdict to which effect should be given? There seems to be some elision of those three problems by saying, as I understand the appellant to say, that the trial miscarried because a verdict of 11 was taken. That seems to run together parts two and three of the tripartite distinctions I have drawn.

MR BUDDIN: Yes.

HAYNE J: What is there, in the jury legislation, or elsewhere, that deals with subjects other than the point of arraignment and the point of verdict?

MR BUDDIN: Other than section 22.

HAYNE J: Which, at least at first blush to my eyes, seems to be concerned with point of verdict.

KIRBY J: No, 22 is in the course of the trial, is it not? That would be at any time.

HAYNE J: That is the event. That:

shall be considered as remaining for all the purposes of that trial or inquest properly constituted -

If that then is concerned with the second of the three subjects I have identified, or the second and the third, is it not a provision that is triggered in operation by the order for continuation? No occasion arises for inquiry about the circumstances for the making of that order.

MR BUDDIN: Yes, and clearly there is a distinction between the two but - - -

GLEESON CJ: Part of the significance of what Justice Hayne has just been putting to you is that there are six grounds of appeal in the present case, each of which refers, and refers only, to the decision to discharge a juror.

HAYNE J: And that the rhetoric of the magic of 12 or constitutionally constituted tribunal may perhaps obscure the question that needs to be addressed in this case.

MR BUDDIN: Well, section 22 is certainly directed to the third of the three propositions.

GLEESON CJ: So, that brings us back to the question which I originally asked in connection with the historical thing which you were taking us through, what is the origin of the power or what is the source of the power to discharge Ms Nicole Wickham - if I have her name correct? That is the exercise of discretion that is referred to exclusively in the grounds of appeal.

MR BUDDIN: I think the parties are at one on this, that it is implicit in section 22 itself.

GLEESON CJ: Implicit in it or assumed by it?

MR BUDDIN: I am not sure that I understand there to be a distinction.

GLEESON CJ: Well, it may be that section 22, by implication, confers upon a judge a discretion or a power to discharge an individual juror, or it may be that section 22 proceeds upon the assumption that at common law a judge has a power to discharge an individual juror and then addresses certain of the consequences of the exercise of that power. I have no view one way or the other but I was just interested in what your submission was.

MR BUDDIN: Well, it may be both, it is certainly the latter. There is some authority - I withdraw that.

GLEESON CJ: Is there anything in the Jury Act that specifies the grounds upon which a juror may be discharged?

MR BUDDIN: No.

HAYNE J: In particular, would it be open to a judge in the proper exercise of his or her discretion to discharge a juror on the ground that to his or her observation the juror had failed to pay any attention to the evidence that was being given?

MR BUDDIN: There is nothing specific in the Jury Act that would address that question, other than - - -

KIRBY J: But there is something specific in the case of illness, which was the nominated reason for the absence of this particular juror.

MR BUDDIN: I am sorry, I was still trying to answer Justice Hayne's question and that was "unless one so construes" or "any other cause", to embrace the type of example that your Honour - - -

HAYNE J: And the example was prompted by the Chief Justice's example of the juror whose familiarity with the English language was not great or not great enough to be able to follow the proceeding.

MR BUDDIN: And, dare I say it, that that is the sort of situation that not infrequently sees a juror discharged, and I assume that the basis is those catch-all words of "any other cause".

HAYNE J: Can I put to you an example from my own experience of discharging a juror in a civil case because that juror had a relative who was being treated by one of the specialist doctors called to give evidence, unhesitatingly discharged the juror and went on with the balance.

MR BUDDIN: Yes.

KIRBY J: One would think that if a juror simply turned to the wall or read the newspaper or did something else that would obviously be another reason. The words are "or for any other reason".

MR BUDDIN: Yes.

McHUGH J: The point was that for whatever reason you want to discharge a jury, at least in New South Wales prior to 1929, you could not continue the trial.

MR BUDDIN: Indeed.

McHUGH J: If the juror died or was discharged for some reason, the trial was aborted.

MR BUDDIN: It was a stark choice.

McHUGH J: Yes.

KIRBY J: If we are talking of elision, this is what seems to have been elided here, the step of discharge and the step of continuance.

MR BUDDIN: But, with respect, sometimes - I mean in some cases that might be extremely important; but in this case, with respect, there was only one choice to be made, not a raft of choices by which I mean the choice was - that is, confronting his Honour on 1 April 1998 - discharge this juror here and now or wait.

GLEESON CJ: Or discharge the entire jury.

MR BUDDIN: But that third option, with respect, was not properly open here. Upon what basis could the entire jury been discharged in this case?

GLEESON CJ: Why was it not opened? Leave aside the question of who might have an interest to complain about it, would the judge have had the power to discharge the entire jury? In other words, would he have been entitled to say, "I happen to attach enormous weight to the presence of 12 people to decide the guilt or innocence of this accused person. I am not going to keep these people sitting around waiting for this lady, particularly in the state of uncertainty as to her illness. I think the proper course to pursue is to discharge the entire jury." Would the judge have had the power to do that?

MR BUDDIN: I accept that he would have had the power to do that.

KIRBY J: There was an earlier step that the judge - - -

MR BUDDIN: But, of course, that concession does not carry with it the suggestion that it would have been anything other than inappropriate for him to have done so.

GLEESON CJ: Well, no, he would not have been discharging the rest of the jury on the ground of illness.

MR BUDDIN: Or any other basis in terms of the proper exercise of the power in this case, given that there are a number of other considerations to which he was properly to have regard.

KIRBY J: But does that not highlight the importance of Justice McHugh's point, that the question of whether you then make the order to go on with a jury of 11 agitates a different kind of decision, discretionary decision if you like, as to whether, having regard to the importance of 12, which is in section 19, having regard to the nature of the case, having regard to the stage reached, having regard to the disadvantage forensically that, arguably, the accused suffers by the loss of one person, that the order that is in the last part of section 22 should not be made?

MR BUDDIN: Can I indicate just in relation to that that, again, the parties are ad idem in relation to what I might indicate as the formalities of the process.

GLEESON CJ: There is no ground of appeal that raises that question.

MR BUDDIN: I appreciate that but I was just going to indicate that just in case there was any concern about this, that the parties are agreed. It is the collective experience of those of the Bar table that this never happens that such an order is formally pronounced. Whether it ought to be or not, it is certainly not the practice that anybody can recall but I simply want to indicate that to complete the - - -

GLEESON CJ: I take leave to doubt that.

McHUGH J: Well, it depends on the judge, I think. I mean, the older generation of judges who were under a strict, very strict system of pleading and particulars and everything, tended to dot every "i". My recollection is of Justice McClemens or Justice Brereton, or perhaps both of them, making such an order.

GLEESON CJ: They might have thought they had counsel in front of them who would take the point.

MR BUDDIN: Or that was going to pass on the point to younger whippersnapper counsel in the future. But if I can try and indicate where I was going with the submission in relation to the matter that your Honour Justice Kirby raised. If a juror was to be discharged on the basis that there was a possibility that the reason behind the discharge could have infected the entire juror, then the question of considering the matters seriatim would assume particular significance but, with respect, in this case the only practical question that was live for his Honour's consideration was: continue with 11 now or wait for something.

GLEESON CJ: It was an even narrower practical question, was it not, having regard to Mr Glennon's attitude?

MR BUDDIN: Yes.

GLEESON CJ: Mr Glennon, as I understand it, was saying, "Look, if she's sick for two days we're happy."

MR BUDDIN: Indeed. That was going to be the next - - -

GLEESON CJ: So the narrower question he had was: discharge her now or wait until this afternoon and see if a telephone call clears the situation up.

MR BUDDIN: Yes.

KIRBY J: And can I suggest that there is a narrowest possibility and that is you just wait until the sheriff's officer comes back and says she has not got a home phone number, which the judge did not do. He rushed in and made the order.

MR BUDDIN: Well, with respect, I mean, I appreciate that is what the - - -

KIRBY J: That is what the transcript says and there is no addition to the transcript.

MR BUDDIN: I am sorry, your Honour. I seem to be being prevailed upon by - - -

GLEESON CJ: Yes, Mr Berman can assist you to answer this question.

KIRBY J: Be very careful of Mr Wendler's help.

MR BUDDIN: That is why I went to Mr Berman first. Well, I thank my learned friends for their contributions. It does not answer the question. I have proceeded upon the assumption your Honour has indicated to me that it is an unwarranted assumption, namely, that the transcript is complete.

KIRBY J: It is complete, but I would be happy to accept that there may well have been gaps or inconsequential things not recorded. Shorthand reporters use a degree of discretion, and good shorthand reporters are very precious, but what we do have is a sequence of events where the judge says, "We're having a phone call made". He then makes what is taken to be his order of discharge, and then when he comes back he seems to say, as if it has just been given to him in the midst of talking about other things, "The juror does not have a phone number."

MR BUDDIN: But his Honour has already said that, with respect.

KIRBY J: I do not think so. He says we are checking - - -

MR BUDDIN: This is why I indicated that the entry attributed to his Honour - I am reading from page 15 of the appeal book which is the incorporation of the transcript into the judgment of the Court of Criminal Appeal.

KIRBY J: Is it not safer to look at the actual transcript which was reproduced here?

MR BUDDIN: This is verbatim.

KIRBY J: It is 4 and 5, and I think it is the same. There is no difference.

MR BUDDIN: It is verbatim.

KIRBY J: His Honour says:

Somebody is ringing her home. The only number that the Sheriff's Department has is the work number.

Then he seems to have sort of made his decision:

Mr Glennon, you will be protected elsewhere.....Although it would be a difficult one.....I propose to discharge.....

GLENNON: The court pleases your honour.

Then he goes over the page and tells the juror:

There is no magic in the number twelve - - -

and then he goes on and says:

The Sheriff's Office have not got her home number.

That looks as though that has just come to him.

GLEESON CJ: We know that that is not - - -

MR BUDDIN: The entry that appears, attributed to his Honour:

Somebody is ringing her home.

Followed by the words:

The only number that the Sheriff's Department has is the work number.

It is reasonable, in our submission, to assume that there has been something that has occurred between those two sentences. How is the person going to ring her home if they do not have the number?

KIRBY J: His Honour might have assumed they had phone home number. All we have is the transcript. Courts normally act on the record.

MR BUDDIN: I appreciate that, your Honour, but those two sentences cannot stand together. Then what he says in pronouncing the order is:

The Sheriff's Office have not got her home number.

Which is tantamount to the same thing as the only number the sheriff's department has is the work number.

KIRBY J: But we have an attack, both in this Court and in the Court of Criminal Appeal on the exercise of the power, and if it was suggested that the transcript did not reveal the full record, and that between line 29 and 30 on page 5 a sheriff's officer appeared and said, "Your Honour, we do not have a home phone number", the Crown would have put that affidavit on before the Court of Criminal Appeal.

GLEESON CJ: Where do we find the power being exercised? The power, the subject of the six grounds of appeal. Where is it exercised?

KIRBY J: I thought it was in the reasons - - -

MR BUDDIN: I am sorry.

GLEESON CJ: Where do we find the judge discharging the juror in the course of that transcript if that is a complete and accurate record of what happened?

KIRBY J: There was a question raised about this earlier to Mr Wendler, one possible answer to which was the judge never did discharge the juror but he was prepared to accept, I think in answer to the question of Justice Hayne, that that passage at 30 on page 5 is, if anything is, the order of discharge.

GLEESON CJ: There is no doubt that Mr Wendler would be happy to accept that because unless he accepts that, all of his six grounds of appeal disappear.

KIRBY J: But if he does not accept it and you cannot point to some other order, there never was a discharge of the juror and the trial is irregular.

MR BUDDIN: Well, as I understood Mr Wendler, he said that it was implicit in what his Honour said, that we can carry on with 11, that that entailed a juror having been discharged, his Honour having said that he proposed to so discharge the juror.

GLEESON CJ: Exactly, and the exercise of the power to discharge the juror and the making of the decision or an order that the trial proceed with 11 must be found on page 15 between lines 30 and 40.

MR BUDDIN: Yes.

GLEESON CJ: Now, we know that that did not run on continuously from the exchange earlier on the page and on the previous page because the exchange was in the absence of the jury. So, at least we know that something happened between line 24 on page 15 and line 30 on page 15, and what happened was the jury were brought back in. Was the exchange that is recorded on page 13 over to the first half of page 15 in court or in the judge's chambers?

MR BUDDIN: It would appear in court. I cannot answer that definitively but there is nothing to suggest that it was in chambers.

GLEESON CJ: It was in court in the absence of the jury.

MR BUDDIN: In court in the absence of the jury.

KIRBY J: All this is clear if we go on pages 5 and 6 of the appeal book because that sets out the sequence. "In the Absence of the Jury" is on page 4 at line 15, the trial is reconvened, the judge is there, the jury is not, and then are you submitting that the words on page 6 at line 15:

I think time is running on, so we will carry on with eleven -

amounts to the discharge of the juror? It does not say so. It is implicit but there is no such order. The closest you get to an order of discharge of the juror, as distinct from going on with 11 which is the second step, as Justice McHugh pointed out, is on page 5 at line 31.

MR BUDDIN: Yes, I accept that it is no higher than that but, as I understood it, the court had already made a ruling in relation to the question of the formality of this issue.

GLEESON CJ: We are dealing with the grounds of appeal which concern the exercise of a discretion to discharge the juror and we are just inquiring where that discretion was exercised? The answer seems to be: it was exercised by implication in the statement that the judge made to the jury. It may be that he also exercised another power by implication, but that is not the subject of any ground of appeal.

MR BUDDIN: Yes, that is right, he having foreshadowed what he proposed to do, in the absence of the jury and then, in the presence of the jury saying twice, we can carry on with 11. So it is by implication.

GLEESON CJ: And saying, in between those two statements, we can carry on with 11; "The Sheriff's Office have not got her home number".

CALLINAN J: Well, I could not read that statement other than as meaning, by order that we carry on with 11.

MR BUDDIN: Yes.

KIRBY J: Yes, but where is, I order that we carry on with 11 and I therefore discharge? Or I discharge juror 12 and we will carry on with 11. It just is not there, unless it is on page 5.

GLEESON CJ: Well he says, "I have the power to discharge" her "so we will carry on with 11".

MR BUDDIN: And he has already said:

I propose to discharge the juror -

GLEESON CJ: That is a different thing; that is in the absence of the jury.

MR BUDDIN: Yes, I appreciate that.

GLEESON CJ: But he says:

I have the power to discharge in these circumstances. The Sheriff's Office have not got her home number.....so we will carry on with 11.

MR BUDDIN: Yes.

GLEESON CJ: Well then it is perhaps not surprising that Mr Wendler asserts that he exercised a discretion to discharge that juror and I do not understand you to controvert that assertion.

MR BUDDIN: I do not.

GLEESON CJ: So that seems to be common ground?

MR BUDDIN: Yes.

KIRBY J: Well it may be common ground, but it is not very clear; at least it is not clear to me. I mean, it seems to me that this is a serious step, to deprive a person of a juror, historical, in the federal sphere it is constitutional, and it is statutory in New South Wales and, it seems to me, that greater formality should attend such a step than has occurred on this occasion.

MR BUDDIN: Perhaps it could have been done better - more differently and better - but that, with resect, is some distance, and, in fact, my learned friend does not seek to agitate the point any more fervently than he has already, and, with respect, the appeal, in our submission, should not turn on whether or not the words "I discharge the juror" as distinct from the clearest of implications - this was what the entire debate had been about - followed by what his Honour did and said in explanation to the juror.

KIRBY J: The only relevance of it, Mr Buddin, is to fix the time when the judge has done it and then to look at the considerations which he took into account in doing it. If you do that, what, with respect, seems to have been in his Honour's mind in the exercise of his power were three considerations. "One, we have an ill woman, we'll send out and make a phone call". But on one view he did not wait and see what the answer to that was.

MR BUDDIN: Can I just stop your Honour there.

KIRBY J: Can I just list them. "Two, I myself have been sick and that's held things up. Three, there's no magic in 12 anyhow". They are the considerations that seem to have informed his Honour's exercise of the power.

MR BUDDIN: Can I work backwards then, your Honour. First of all, as I indicated before, what magic, if that be the correct expression, there was in 12, as I have indicated, has to be assessed in terms of the legislative history and the incursions upon the number 12 and its magic. That is the first thing. The second is, as the Court of Criminal Appeal said, the expression "What's the magic in 12?" was in fact a headnote that appeared in its own unreported decision at that time in Brownlee. So his Honour simply picked up the expression. It could have been expressed more elegantly.

KIRBY J: I do not think the expression matters. I do not think judges should be held to using "magic" or if he had said, "There's nothing special in 12", given the fact that it can be reduced to 10 or even lower, but it is indicating, at least arguably - and this is what is put to us - that his Honour did not think it relevant to the exercise of the power to take into account the prima facie entitlement of the accused to 12 which is a prima facie entitlement that section 19 secures.

MR BUDDIN: Then, your Honour, might I rhetorically ask: why was it that he was prepared to embark upon the question of having inquiries made of the sick juror, or the missing juror? If his Honour was not in the slightest bit interested in the number 12, why at least set in train that course of events? It must be because he was having due regard to the provisions of section 19.

KIRBY J: But the complaint is he set it in train but really then aborted it.

MR BUDDIN: The only reasonable construction is that a judge, once having set in train something of that significance, had something brought to his attention which satisfied him that he could - and was then properly in a position to exercise the power.

GLEESON CJ: But the argument against you, whether it is right or wrong, as to which I express no view, is really very plain and can be expressed in about 30 seconds. It is that the judge failed to give adequate weight to the interests of the accused in having 12 jurors and that his discretion miscarried on that ground.

KIRBY J: Or exercise of power miscarried if it is not discretion.

MR BUDDIN: In relation to that, the reason that the chronology was provided was to provide some indication of the state of affairs as at 1 April 1998. That was the thirteenth scheduled day of a trial that was estimated to go a number of weeks. This trial did not exist in a vacuum. The preceding 12 days, that is up until the end of proceedings on 31 March, had seen six full hearing days, three days on which the court did not sit, and it is our submission that it does not matter why the court did not sit. The consequence is that the trial had become fragmented and that is what mattered.

KIRBY J: I notice later in the chronology, items 20, 21, 22 and 23 are all "Court does not sit".

MR BUDDIN: Yes.

KIRBY J: So that this was a trial which had a few interruptions, and the complaint is that his Honour, so anxious about the fact that he had been ill and that that had interrupted, as you say, fragmented the trial, was more concerned with the going on with the trial than with paying due weight to the section 19 consideration; that this overbore the exercise of his decision, or the exercise of his power.

MR BUDDIN: Well, what we submit is that there were factors as well as the section 19 consideration which his Honour was entitled to, was obliged to take into account.

GLEESON CJ: Including, presumably, the convenience of the other jurors.

MR BUDDIN: That is one of them. Not just the - - -

CALLINAN J: His Honour must have had some regard to the desirability of 12 because Mr Glennon at page 5 submitted that is the amount which is prescribed, at line 34.

MR BUDDIN: Yes. He was on notice.

CALLINAN J: So, the prescription, the statutory prescription was a matter of submission.

MR BUDDIN: Indeed.

KIRBY J: But the complaint is that his Honour was deaf ears to that submission, and that he should not have been, and that the law did not entitle him to be.

MR BUDDIN: As I have indicated, if section 19 stood alone, our position would be close to untenable, but it does not. Section 22 with a rich history exists and a rich history which includes a specific rejection by the legislature of a Law Reform Commission recommendation that there be reserve jurors which presumably is premised upon keeping the magic of 12 alive, if at all possible. Although, I add as a footnote, that even in those jurisdictions where there is provision for reserve jurors, a verdict can be returned by fewer than 12.

KIRBY J: Calling Table 1 a rich history is a little hyperbolic, is it not? In the history of juries there are rich histories and the rich history is of a history of 12.

MR BUDDIN: A rich legislative history.

KIRBY J: A rich constitutional history.

GLEESON CJ: Mr Buddin, are there no provisions at all even in civil matters for reserve jurors in New South Wales?

MR BUDDIN: I do not think there is.

GLEESON CJ: Consistent with the general importance of not making admissions, I will not say what answer I would have given if somebody asked me whether there were reserve jurors. It just cannot happen in New South Wales.

MR BUDDIN: Yes. We submit that is very significant in this case. Whatever might be the case in other jurisdictions in Australia, the New South Wales Parliament has specifically rejected an important Law Reform Commission recommendation, not lightly put to one side, considered and rejected, where the object of reserve and additional jurors, as I understand it, is to preserve the magic of 12. So, whatever might be said of what happens in other jurisdictions, New South Wales stands alone.

GLEESON CJ: I am not sure that it is to preserve the magic of 12. There are many trials in New South Wales now that continue for more than two months and the possibility of a trial like that aborting because the number of jurors has got below eight, is very obvious. I would have thought that is what reserve jurors are intended to protect against.

MR BUDDIN: Well, yes, that is also clearly pleaded against. But, notwithstanding that, the legislature decided not to act.

KIRBY J: That could show a certain traditionalism on the part of the New South Wales legislature. It is 12, in all but exceptional cases it will remain 12 and they are not going to interfere with it.

MR BUDDIN: In other States they have said, "Well, we are not going below 10", the magic of 10. I mean, my learned friend indicates that pence and shillings were very important, well, our submission is things change.

KIRBY J: They have gone decimal.

MR BUDDIN: We have gone decimal and metric and that is not being traditional. But, your Honours, in addition to the fact that the court had not - - -

HAYNE J: It seems it was amongst Anglo-Saxon swine herds, according to Mr Wendler.

MR BUDDIN: Yes, Mr Wendler has promised to tell me more about that. Your Honours can imagine that I am looking forward to that with considerable anticipation. Your Honours, in addition to not having sat for three full days - this is at 1 April - there were three short days as well. The first day the court had heard evidence for something just in excess of an hour. On day three, evidence had finished at 12.10 pm by reason of an alert juror indicating to the sheriff that an interpreter and the complainant had travelled home together on the train and arrangements were put in - I withdraw that - efforts were then made to find another interpreter and the rest of the day was lost.

On day 10, that is Friday the 27^th, there was only one witness and the transcript indicates that the evidence went for a mere nine pages. So, in total, as at 1 April, if one adds up each of those short days, and just to round the matter out allow the possibility that that added up to an additional day, then the net effect is that as at 1 April five full days had been lost - five out of 12.

KIRBY J: Yes, but you see, it may be a question of the value the law attaches to things. If you look at this as a matter of system and management, then that is a big problem. But we are not talking about witnesses and interpreters, and all the other problems - judges illnesses, and so on, we are talking about the constitution of the tribunal that will decide the fate of the accused. That is in a different class.

MR BUDDIN: But, with respect, it cannot simply be put to one side as a question of case management or bench marking, or whatever the fashionable tag of the day is - - -

GLEESON CJ: No, but we are not exercising our discretion. We are considering the exercise by the trial judge of his discretion. The question that arises for our determination is not what we would have done, not whether he has failed to take into account or give appropriate weight to a relevant consideration, namely, the importance of having 12 people there.

KIRBY J: In a sense, the matters that you are drawing attention to are Mr Wendler's first complaint. That is to say that his Honour was so overborne by all these other considerations, including his own illness, that he allowed them to blind him to the magic of 12 in this particular context.

MR BUDDIN: His Honour was entitled to consider, in addition to the magic of twelve - and I have addressed your Honours at some length about what the legislature has done in relation to the magic of 12, and I will not reagitate that matter, but his Honour was entitled to consider the interests of other parties: the complainant, witnesses, that is past witnesses, prospective witnesses, those waiting outside. They were all entitled to see the matter move forward with due dispatch. Then there is the question of all the other litigants and the associated parties in matters that were contingent upon this matter being completed. They were important considerations, and his Honour was entitled to - in fact, bound - to take them into account. Whatever else was the case, there was little doubt that the delay of this case by even a day was going to be disruptive for the other jurors.

KIRBY J: There were four more days of - the case did not proceed later in the trial.

MR BUDDIN: Quite.

KIRBY J: That was disruptive to the jurors, too. Unfortunately, once you get embarked on a trial you have the risk of disruption.

MR BUDDIN: Precisely, and that is why the legislature has provided, as it has, to make an incursion upon the so-called magic of 12. But, if there had been, and continued to be, significant fragmentation of the trial, and there was a suggestion that the jurors' concentration had been interrupted or disrupted in some way, then we might well have been met with an argument by the appellant, that because of the fragmented process that there was a miscarriage of justice.

KIRBY J: Would you submit that if a judge formed the view that a juror was not paying attention, and if the judge has an absolute power to remove the appellant's juror? It would have to be a pretty extreme case, would it not, to exercise the power?

MR BUDDIN: Why does your Honour say the appellant's juror?

KIRBY J: It is the country's jury.

MR BUDDIN: With respect, that is a significant matter. Everybody has an interest in the jury and the composition of it, the community in particular. To answer your question. As long as it was not done capriciously, I can contemplate situations in which that would be appropriate. It is certainly a matter upon which one would invite submissions from counsel, I would have thought. But, I would not exclude it as a possibility, but as long as the power was not exercised capriciously.

The reason that I hesitate is that I am not quite sure how far the notion of a disruptive juror goes. Clearly, the American authorities indicate that it is of some significance, the idea that a juror who is disrupting the otherwise harmonious balance of the jury, should, and can, see their discharge.

So by extension I embrace the possibility that a person who is wilfully disregarding their jury obligations could be ripe for discharge, but I am not sure that I would want to be drawn any further on the matter. Would your Honours just pardon me for a moment. Unless there are other things that I can specifically assist the Court with, they are the submissions.

GLEESON CJ: Thank you, Mr Buddin. Yes, Mr Wendler.

KIRBY J: Could I just ask one last question?

MR BUDDIN: Yes.

KIRBY J: Remember I asked Mr Wendler at the end of argument, concerning whether or not one could, as it were, save the outcome on the basis that, even if an error had occurred in discharge of the jury and the continuance with the rest of the jury, that no miscarriage was shown, do you not advance that argument?

MR BUDDIN: As a fall-back position, you mean, your Honour, in effect?

KIRBY J: What do you say about Maher's Case, that Justice McHugh referred to?

MR BUDDIN: I must say that it was the first time that I had heard of the case, but can I indicate this, that the proposition that his Honour indicated that Maher stood for seemed to me to be totally unexceptionable - - -

KIRBY J: And if that is so, then, if you are disturb unlawfully the constitution of the jury then that would seem not to allow the proviso to be applied and you just then have to take the consequences in law.

MR BUDDIN: Yes.

GLEESON CJ: How could we get into an argument about the proviso of this case? Speaking for myself, I have not got the faintest idea what the trial was even about. We have not got a word of evidence in front of us and nothing in the judgment of the Court of Criminal Appeal dealing with the merits of it.

MR BUDDIN: Yes.

KIRBY J: So you do not advance the proviso? You told me that it was a fall-back position, but you do not advance it?

MR BUDDIN: No, I was asking your Honour whether you meant it as a fall-back position? If there was procedural irregularity, frankly I think that is the end of it. I mean, the question of whether or not there should be a remitter to deal with the question of whether or not the transcript is complete or not, might be a separate question, but our position is, if there is found to be against our argument procedural irregularity, then I am not sure that miscarriage of justice really has a place. Is that the question - - -

KIRBY J: Yes, it seems that Maher rests on the principle that miscarriage is in the context of a trial according to law and if there has not been a trial according to law, then you do not get to any proviso questions and that seems to be consistent with the way the parties have argued it below and in this Court and, as the Chief Justice points out, the lack of any evidence that would be relevant to a proviso question.

McHUGH J: Maher's in 163 CLR, and the relevant passage is at page 233, dealing with the Queensland Code.

MR BUDDIN: I thought your Honour said that the irregularity occurred before the trial - - -

McHUGH J: No, that was Katsuno, of which - - -

MR BUDDIN: The jury vetting case.

McHUGH J: Yes. But this Court said:

A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal. In any event it involves such a miscarriage of justice as to require the conviction to be set aside.

MR BUDDIN: We have nothing to argue about; I simply did not know the name of the case that was responsible.

GLEESON CJ: Thank you. Yes, Mr Wendler.

KIRBY J: I should say, I did not know it either, Mr Buddin.

MR WENDLER: Your Honours, briefly, on page 6 of the appeal book is recorded, at line 15, following his Honour's instruction to the balance of the jury, the next witness was called at 10.11 am. So it would appear that this whole process did not take so long, assuming that that day of the trial commenced at 10 o'clock or soon after; we do not know exactly at what time it commenced.

KIRBY J: But what do you say about the point made by the Chief Justice that the trial did not really commence until the jury came back and that, therefore, all those matters in the absence of the jury were simply interlocutory debates between counsel of the court and that, therefore, when we are looking at what was the order it could only be made in the course of the trial.

MR WENDLER: Yes.

KIRBY J: And that, therefore, the order must be taken, if it exists anywhere, not to be, as was originally argued at the bottom of page 5 but to be those words:

she is sick and it could be tomorrow or the next day. I think time is running on, so we will carry on with 11.

That seems to be the place where, if anywhere, the discharge was made.

MR WENDLER: Yes.

KIRBY J: That is after the sheriff's officer has informed the judge that they do not have a home phone number.

MR WENDLER: Yes. I accept that. Nevertheless, that passage cannot be totally divorced from what occurred prior to that in the sense that the decision-making process at page 6 of the appeal book had its background in what occurred - - -

KIRBY J: Well, that is true, but it does rather cut away your argument that the judge, as it were, lurched on to discharge the jury without even bothering to wait to get the sheriff's officer's report.

MR WENDLER: Nevertheless - well, it does not really because at that time, that is in the time - the presence of the jury, his Honour still remarked or still was of the view that there was nothing special in the number 12.

KIRBY J: It leaves you with some feathers to fly but it seems to take away at least one that loomed large earlier, namely, that the judge was working within the category of illness, had sent out for the sheriff's officer and then did not bother to receive the reply. That seems to have gone down the gurgler.

MR WENDLER: Yes. Your Honour the Chief Justice mentioned Sir Patrick Devlin, as his Honour then was, I think - - -

GLEESON CJ: I was just reading from the judgment in Brownlee.

MR WENDLER: Yes, I have reproduced a portion of his speech for the Hamlyn Trust lecture of 1956 in my outline. That is what set me off on the discovery processes to where this 12 comes from. It is a unit of numeracy. It goes back to Babylonian times or Sumerian times. But when you think about it, 10, for instance, can be divided by two, five and itself, but a duodecimal system is more flexible. Twelve can be divided by two, three, four, six and itself. So, historically, these things go back into the history of mythology, really. If the Court pleases.

GLEESON CJ: Thank you. We will reserve our decision in this matter.

AT 3.32 PM THE MATTER WAS ADJOURNED