Sun v R

1. [1]

   KIRK JA: The applicant, Young Hoon Sun, was convicted of two drug supply charges following a trial by jury in the District Court in March to May 2021 in the midst of the Covid pandemic. He was sentenced to an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years. He was also ordered to pay $22,600 by way of confiscation of the proceeds of crime. He now seeks leave to appeal both his conviction and sentence. He was represented on the conviction appeal but acted for himself with respect to the sentence.

2. [2]

   His one ground of appeal in relation to his conviction is that the trial judge “erred by discharging 3 of the 15 jurors, and by relying upon sections 53B(d) and 55G of the Jury Act 1977 to do so”. The decision to discharge the three jurors was made on the morning of the second day of the trial after it became apparent that the jury facilities could not safely accommodate 15 jurors in a manner consistent with then current Covid protections.

3. [3]

   This cannot be said to be a ground of any immediate attraction in circumstances where the trial judge, Bennett DCJ, chose to discharge the three jurors after initially suggesting that the whole jury be discharged. The applicant’s then counsel opposed the judge’s suggestion and consented to the judge instead discharging the three jurors. The applicant, through new counsel, now says that there was no power to discharge the three jurors and if anyone was to have been discharged it should have been the whole jury. The applicant thus now complains that the trial judge did not do the very thing that his Honour had proposed to do until the applicant had opposed it. Nevertheless, the ground raises some issues of significance which must be addressed on their legal merit regardless of the applicant’s inconsistency on the issue.

4. [4]

   The applicant’s ground on his conviction appeal appears to invoke the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) to the effect that there was a miscarriage of justice, although it might also be argued to a wrong decision on any question of law within the second limb. The appeal may well raise “a question of law alone” such that leave to appeal on this ground is not required pursuant to s 5(1)(a) of that Act. In any event, to the extent that leave to appeal is required it should be granted in light of the significance of the matters raised.

5. [5]

   Two substantive legal issues arise. Was the order discharging the three jurors within the power conferred by s 53B(d) of the Jury Act 1977 (NSW)? If not, was there no substantial miscarriage of justice such that the proviso in s 6(1) of the Criminal Appeal Act is engaged so as to save the conviction (as the Crown contends)? I have concluded on the first issue that the order did fall within s 53B(d). There was therefore no error of law or miscarriage of justice and there is no need to consider the proviso. In what follows below I first set out the relevant facts then address the issue of construction.

6. [6]

   As for the applicant’s sentencing appeal, I agree that leave should be granted but the appeal dismissed, for the reasons given by Hamill J. I agree with the orders proposed by his Honour.

Background

1. [7]

   The applicant was indicted on two charges: (1) supplying methylamphetamine between 4 September 2018 and 10 September 2018 contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and (2) supplying methylamphetamine for reward on three or more occasions between 17 September 2018 and 26 September 2018 contrary to s 25A of that Act. The jury returned verdicts of guilty for both counts on 5 May 2021.

2. [8]

   The trial had commenced on Thursday 11 March 2021. A jury of 15 were empanelled, the trial judge having indicated to the parties on the day before the trial that “I’m going to empanel 15 so we don’t run out halfway through”. Neither party objected to that course. The trial judge presumptively made an order to that effect under s 19(2) of the Jury Act 1977 (NSW) (the Act). That provision authorised the Court to order that up to three additional jurors be selected for the jury if satisfied that: (a) the trial was of a kind prescribed by the regulation, being a trial likely to run for more than four weeks; (b) the selection of additional jurors was an appropriate means of ensuring that there would be sufficient jurors remaining on the jury when the jury was required to consider its verdict; and (c) that “appropriate facilities to accommodate the additional jurors are available”.

3. [9]

   On the Thursday the jury of 15 were empanelled, the trial judge made some introductory remarks, the Crown Prosecutor opened, counsel for the applicant made some short opening remarks, and the Crown’s first witness – one of the investigating police detectives – commenced giving evidence.

4. [10]

   Shortly after the hearing had finished for the day the trial judge’s associate sent an email to the parties which read as follows:

5. [11]

   Counsel for the applicant responded by email opposing the jury being discharged.

6. [12]

   Precisely what occurred the next morning is not entirely clear. The Court has been provided with what is entitled a “revised ex tempore judgment” dealing with the issue. The transcript suggests that this was delivered at the beginning of the day, but it can be inferred that what occurred is that the trial judge made some remarks raising the possibility of proceeding to discharge three jurors under s 53B(d) and then asked for the views of the parties. Transcript records counsel for the applicant saying that “[m]y view strictly is we can go with the 15, but going to the 12 is also sensible in the circumstances”. The Crown Prosecutor expressed doubt that the power was available in the circumstances. She then sought instructions from the chambers of the Director of Public Prosecutions, and returned to say that “[w]hilst the Crown’s not convinced [of] the applicability of 53B(d)”, it would agree to the trial proceeding and “doing the ballot under 55G”. The applicant maintained his position, including making no objection to such a ballot being employed. The trial judge indicated that he would proceed accordingly and that he would give a judgment the following week dealing with the issue. It seems that the judgment was an expanded version of his Honour’s initial remarks on the Friday morning.

7. [13]

   The jury was recalled, the situation was explained, and a ballot was conducted to identify and remove three of the 15 jurors. The process provided for in s 55G was followed save in one respect. That section, which deals with how to reduce an expanded jury down to 12 when it comes time for the jury to deliberate, provides as follows:

8. [14]

   The one respect in which it was not followed is that shortly before the jury was recalled the judge noted that he had been told that the jury had selected a foreperson. Nevertheless, consistently with an earlier suggestion by the Crown, the foreperson was not excluded from the ballot, the judge having noted that the provision did not strictly apply to the context they were dealing with. As it turned out, the person who had been selected as foreperson was not excluded by the ballot.

9. [15]

   In his judgment the trial judge explained the situation that had arisen:

10. [16]

    His Honour explained that other possibilities had been explored but found to be unavailing. He then referred to the Covid public health order that then applied to restrict public gatherings. He noted his reading of the order was that it did not restrict gatherings at courts, but he had been told (implicitly by the District Court list judge) that the District Court had decided, in consultation with the Supreme Court, to abide by the restrictions as to spacing in any event. After elucidating the context further, and having quoted s 53B, his Honour said:

11. [17]

    His Honour proceeded as he did having obtained the consent of the parties to taking that course.

12. [18]

    No complaint is made about the fairness of the trial. Nor is there any suggestion that the jury was not randomly selected from eligible members of the community. The complaint is a purely technical one. However, that complaint falls to be resolved as a matter of statutory construction, which does not depend on the particular facts of this case.

Did s 53B(d) of the Jury Act authorise the discharge?

1. [19]

   The applicant’s argument is addressed to the extent of the powers available to the trial judge, specifically arguing that what occurred did not fall within either ss 53B or 55G of the Act. The applicant did not otherwise attack any aspect of the judge’s decision. As for the Crown, it only sought to rely on s 53B. It did not argue that there was some other power available to support the trial judge’s decision to discharge the three jurors.

2. [20]

   Section 55G was not an available source of power here. It only addresses the situation that arises for an expanded jury “immediately before the jury is required to retire to consider its verdict”. That was not this case; the trial had barely commenced. The trial judge here did not purport to invoke s 55G as a source of power to discharge the three jurors. His Honour only referred to it as a guide as to how to go about identifying which jurors should be discharged.

3. [21]

   This case thus falls to be determined by reference to the scope of s 53B(d). The issue of statutory construction must be resolved by reference to issues of text, statutory and historical context, and purpose.

4. [22]

   Section 53B is contained within Pt 7A of the Act, which is headed “Discharge of jurors”. The section provides as follows (none of the sections relevant to this case have been amended since the trial was conducted):

5. [23]

   There was here, in the view of the trial judge, a “reason affecting the juror’s ability to perform the functions of a juror” for the three jurors discharged. The jury facilities were not compliant with then applicable Covid protocols for a jury of 15 and, although those protocols may not have been binding, the trial judge was not prepared to continue with a jury of 15 in those circumstances. The duties of a juror “ordinarily require the juror to attend from day to day during ordinary court hours until the jury is discharged”: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [14] per Gleeson CJ and Hayne J, with McHugh J agreeing at [24]. A juror who is unable to enter a jury room, and spend time there during legal argument and the like, will not in practice be able to perform the functions of a juror.

6. [24]

   There was thus a reason which in the view of the Court affected the ability of each and all of the jurors to perform their functions as jurors, namely the absence of suitable facilities. None of them could continue in the circumstances as they stood. Unsurprisingly, the applicant has not challenged the reasonableness of the trial judge’s conclusion that the situation could not continue. The problem could be cured by reducing the number of jurors. The provision was therefore available to deal with this situation as a matter of the ordinary meaning of the words employed.

7. [25]

   Whilst the section speaks of “the juror” in singular terms, a reference to a word in the singular form in general includes a reference to the plural form: Interpretation Act 1987 (NSW), s 8(b). For example, it would be open to a court to discharge two jurors at the same time under s 53B(a) if they both became so ill as to be unlikely to be able to continue to serve as a juror. In any event, each discharge of an individual juror involves a distinct exercise of power, even if done at the same time as another individual juror is discharged. There is no basis for arguing that the power can only be exercised once per jury; jurors may, for example fall sick at different times.

8. [26]

   The argument of the applicant is, however, that the provision should be understood as only addressing circumstances where there is something specific to a particular juror or jurors affecting their individual ability to perform their functions as such. Here, there was nothing particular about the three jurors discharged as regards their ability to perform the functions of a juror, as compared to the other members of the jury. As a consequence, the applicant argued, if anyone was to be discharged the whole jury had to go.

9. [27]

   This argument can be seen as involving a reading down of the provision, but there is some textual support for it. The chapeau to the section refers to discharging “a juror”, and paragraph (d) refers to the court or coroner concluding that “the juror should not continue to act as a juror” in light of a reason “affecting the juror’s ability”. These words reflect the fact that the section is directed to discharge of individual jurors as opposed to the whole jury. Although it is not a necessary construction, it is open to read these words as referring to something specific to the particular juror or jurors in contrast to the other members of the jury.

10. [28]

    That narrower reading gains some support from the preceding three paragraphs in the section, each of which addresses some issue arising for particular identifiable jurors, namely that they have become ill, their impartiality is compromised, or they are refusing to take part in deliberations. This point can be seen as a type of ejusdem generis argument, where the character of the residuary criterion is construed as of a kind with the preceding criteria. The argument can also be seen as invoking the maxim noscitur a sociis, that is, that a thing is known by its associates. Like many such principles of construction, these maxims are a guide to construing words in their context, and should not be elevated beyond that understanding: note eg Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at 647-649; [1947] HCA 17; Laemthong International Lines Co Ltd v BPS Shipping (1997) 190 CLR 181 at 192; [1997] HCA 55.

11. [29]

    Here, such maxims do not advance things much beyond saying that there is some contextual support in the section for the reading proposed by the applicant. The counter-argument – as with many invocations of the maxims in this type of case – is that the Parliament intended the residuary criterion in (d) to deal with a range of unforeseen circumstances beyond those addressed by the paragraphs (a)-(c), so one should be wary of reading it down by reference to what has preceded it. The key to resolving these arguments is by consideration of the Parliament’s likely purpose in enacting the provision, which is addressed below.

12. [30]

    There is a related, contextual point to be made. Section 53B, to quote its heading, deals with the “[d]iscretionary discharge of individual juror”. Section 53A is headed “[m]andatory discharge of individual juror”, and sets out three grounds on which the court or coroner must discharge a juror, namely that the juror was mistakenly or irregularly empanelled, has become excluded from jury service, or has engaged in misconduct. Again, each of those criteria address something specific about a particular juror or jurors. Whilst that might again offer some support for the applicant’s argument, it also reinforces the point that the residuary criterion in s 53B(d) only arises if none of the other six circumstances addressed in ss 53A and 53B apply. It might well be thought that having addressed a range of circumstances that could be foreseen, the Parliament intended the residuary criterion to cover other possibilities which were not foreseen. That consideration weighs against a narrower reading.

13. [31]

    As for the heading to s 53B, that can be taken into account as a matter of context: note Interpretation Act, ss 35(2)(a), 35(5) and 34; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; [2020] HCA 29 at [17] (footnote). However, it does not advance matters either way, as it serves to differentiate the discharge of individual jurors – as opposed to the whole of the jury – on one of the identified discretionary bases. That is what occurred here. The heading addresses the nature of the power, not the nature of the criteria which govern its exercise.

14. [32]

    There is a further principle of construction which militates, at least to some extent, against the applicant’s construction. Section 53B grants a power to courts. It is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”: Owners of Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54 (citations omitted). Or, as the point was expressed in PMT Partners Pty Ltd (in liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 at 313, [1995] HCA 36, “a provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit”. The power here is also granted under s 53B to coroners, who may be sitting with a jury in undertaking coronial proceedings concerning the investigation of a death, suspected death, fire or explosion: note Coroner’s Act 2009 (NSW), ss 46-48. Nevertheless, the Shin Kobe principle offers some, limited, guidance here. It manifests the view that where courts are granted powers – to be exercised judicially and in light of the circumstances of particular cases – it is unlikely that Parliament would have intended those powers to be hedged in with unstated limitations. It is likely that the Parliament would also have expected and intended that coroners would exercise the power only after due deliberation on the circumstances. Thus the nature of the decision-makers and of the power weighs in favour of construing the provision according to its ordinary meaning.

15. [33]

    The applicant argues that the absence of a procedure in the Act to select which jurors are to be excluded in a situation where the inability to perform their functions affected all jurors equally is a significant factor counting against the power being available. A contrast was drawn with the procedure provided for in s 55G which addresses how a jury containing more additional jurors is to be reduced down to 12 prior to be retiring to consider their verdict.

16. [34]

    There is some force in this point. The fact that some process of selection is required but not provided for – where it has been provided for at the end of the trial process – can be argued to be an indicator that the Parliament was not intending for s 53B(d) to encompass this type of situation. But the point is not as weighty as suggested by the applicant, for reasons which echo the Shin Kobe principle. Criminal trials can throw up a wide variety of circumstances in which the presiding judge has to make particular decisions in order to seek to ensure that the deliberations of the jury are not prejudiced and that the defendant has a fair trial: note Jago v District Court (NSW) (1989) 168 CLR 23 at 56-57; [1989] HCA 46; Dietrich v The Queen (1992) 177 CLR 292 at 300, 363-364; [1992] HCA 57. And “every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial”: Dietrich at 364. No doubt similar issues may confront coroners from time to time. The exercise of such powers are varied and myriad. They include, for example, making orders that the sheriff provide transportation for jurors to and from court in an appropriate manner necessary for a fair trial in light of media publicity and past attempts to interfere with the jury (R v Richards & Bijerk [1999] NSWCCA 114), or considering whether to change the venue of a trial in response to alleged threats made to jurors (R v Lamb [2002] NSWSC 322).

17. [35]

    Trial judges are thus expected to be flexible, resourceful and fair. The trial judge’s decision in this case to employ the type of balloting mechanism provided for in s 55G was manifestly fair and illustrates the point. That the situation was one of some novelty does not mean, of itself, that the Parliament would not have intended a trial judge or coroner to be capable of dealing with it in an appropriate manner.

18. [36]

    Moreover, s 53C(1) is important here. It relevantly provides that if the court or coroner discharges a juror in the course of a trial or inquest then a further issue must be considered. If the court or coroner “is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice”, then the whole jury must be discharged. If the court or coroner if of the opinion that there is no such risk, and subject to s 22 (which provides for a minimum number of jurors), then the court or coroner must order that the trial or coronial inquest continue with a reduced number of jurors. The Parliament has thus carefully built in a baseline protection for a defendant from the consequences of any decision to discharge a juror. It applies regardless of the reasons for which the juror has been discharged. The fact that the Parliament has so provided tends to reduce the force of the applicant’s point about the absence of express provision of some fair procedure. If no appropriate procedure can be adopted then the whole jury must be discharged.

19. [37]

    In some instances the law does take an exacting approach to compliance with legal formalities in the criminal context. A notable example is R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281, in which this Court overturned a conviction because the indictment had been signed by counsel at the private bar who did not fall within the category of persons authorised to sign indictments under s 126 of the Criminal Procedure Act 1986 (NSW). The issue was whether or not Parliament should be taken to have intended that such non-compliance with the provision would invalidate any subsequent conviction. Howie J said the following (at [224]; see similarly Spigelman CJ at [98]):

20. [38]

    A technical approach can be seen in some decisions of this Court relating to juries. In R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324 the Court overturned a conviction where the jury included a juror who mistakenly turned up a month early, having been summoned not for the jury panel in question but for the following month. The legal problem was perceived as being that the jury had not been returned and selected in accordance with the Act, as required by s 19: see at [22]-[30] and [54]. The main focus of inquiry was on whether this failure of compliance could be saved by s 73 of the Act, which indicates that certain irregularities do not invalidate verdicts. In R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134 one juror had been discharged during the trial after it was discovered he was not eligible due to a prior driving disqualification. This Court held by majority, in an interlocutory appeal, that the whole jury needed to be discharged as it had never consisted of 12 people returned and selected in accordance with the Jury Act, as required by s 19.

21. [39]

    Such authorities offer little assistance to the applicant. The issue currently being addressed is not the significance of non-compliance with some recognised procedural requirement, as was the case in Janceski, Brown and Petroulias. It is possible that those cases would have some relevance if it became necessary to consider application of the proviso. The issue here is a logically prior one: the interpretation of a power given to courts and coroners. The authorities referred to do not require that all provisions relating to the conduct of criminal trials be read strictly or through formalist goggles. Indeed, it would be surprising were that the case when, as regards provisions creating substantive legal offences, “[t]he old rule, that statutes creating offences should be strictly construed, has lost much of its importance”: The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [52].

22. [40]

    Any remaining inclination to strictness is undermined by two factors. First, as just explained, the Parliament has inserted a protective mechanism for any exercise of the power in s 53B in the form of s 53C. The broad safeguard that the trial must not proceed with reduced jurors if to do so would give rise to the risk of a substantial miscarriage of justice answers any imperative that might otherwise have arisen to construe the grant of power narrowly so as to avoid causing any injustice to a defendant.

23. [41]

    Secondly, one of the oddities of the legal context here is that the Act does not provide a general power to discharge a whole jury prior to the end of a trial. Yet the Act does provide for the early discharge of the whole jury in certain limited situations: ss 47A, 53C. A wider power of discharge in cases of evident necessity was recognised by the common law by the time of the decision in Winsor v The Queen (1866) LR 1 QB 390; see further the discussion by Kirby J in Wu v The Queen at [40]-[43]. The courts routinely exercise a power to discharge juries where fairness requires that that occur: note eg Crofts v The Queen (1996) 186 CLR 427 at 440-441; [1996] HCA 22. It has not been suggested that the provision of specific powers of discharge of a jury in the Act means that that there is no broader power of discharge. The ongoing recognition of that broader power tells against approaching the provisions of the Act relating to discharge of members of juries with excessive technicality.

24. [42]

    The applicant made the further argument that the “situation which had arisen was one which was envisaged by the legislature in that the Court was required to be satisfied [under s 19(2)(c)] that appropriate facilities to accommodate the additional jurors was available”. The argument is unavailing. Circumstances can change, as can a court’s knowledge of the circumstances. Facilities that were appropriate may become unsuitable for any number of reasons, including flooding or plumbing or other building problems. There may be other facilities available but which can only accommodate a jury of 12. Here, as the trial judge made clear in his judgment, he only learned of the inadequacy of the facilities after the trial had commenced. That fact may be unfortunate but it does not alter the unchallenged conclusion that the facilities were in fact not appropriate. There is no reason to infer that the Parliament would have intended that a ruling made under s 19(2) could not effectively be revisited by the trial judge if matters changed. Indeed, the applicant’s argument (now) that the whole jury should have been discharged is inconsistent with any such suggestion.

25. [43]

    The legal context in which s 53B was enacted is important to understanding its purpose and effect.

26. [44]

    As noted above at [41], the common law had recognised a power to discharge juries prior to verdict by the mid-nineteenth century. But “when a ‘case of evident necessity’ involving one or more jurors did occur, the whole jury had to be discharged”: Reg v Hambery [1977] 1 QB 924 at 927 (CA); note also Wu v The Queen at [41]-[42]. That was so because “there was no jurisdiction to try a criminal case otherwise than with a jury of 12”: Hambery at 928. It seems that in some cases if a problem arose with one juror, such as illness, the remaining 11 members of the jury were re-sworn along with an additional juror: note R v Short (1898) 19 LR (NSW) 385, where this practice had been employed but found wanting on the basis merely that the original 11 jurors had not been re-sworn.

27. [45]

    In 1929 the Jury Act 1912 (NSW) was amended, modelled on a 1925 amendment in the United Kingdom, to allow the discharge of up to two jurors with the trial to continue before the remaining jurors: Wu v The Queen at [43]. The provision to that effect in the Act as it applied from 1990 up until the enactment of the Jury Amendment Act 2008 (which introduced ss 53A-53C) was s 22, which stated as follows (emphasis added):

28. [46]

    The section went on to address the minimum number of remaining jurors. Kirby J suggested in his dissenting judgment in Wu v The Queen that this provision did not confer a power to discharge an individual juror but rather simply set out what the consequences of doing so would be, namely that the trial could continue: at [54]-[55]. On another view, the section’s presupposition of such a power also acted to confer it, in circumstances where the common law had not recognised such a power: note, analogously, Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 301-302; [1985] HCA 70; Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 at [16]. The grant of an implied power was suggested at [11.5] by the New South Wales Law Reform Commission in its report number 117, Jury Selection, in 2007. The issue is not of great consequence.

29. [47]

    Either way, the criterion specified in s 22 delimited when the power to discharge an individual juror was available. And the criterion was very broad, referring to the incapability of a juror to continue to act because of illness “or for any other reason”. The English Court of Appeal said of the equivalent English provision that “[w]e infer that Parliament intended that judges should exercise their newly given powers to discharge a juror or for the same reasons as they had exercised their powers to discharge a jury”: Hambery at 930. The common law power hinged upon evident necessity. The wide reach of the notion was illustrated by the conclusion in Hambery itself, upholding the decision of a trial judge to discharge a juror who had wanted to go on a holiday of unspecified duration.

30. [48]

    The breadth of the criterion is what matters for current purposes. In Petroulias, Simpson J said that “[t]he basis upon which a decision to discharge a single juror may be made is as wide as it can be possibly be”: at [59], with the agreement of Hoeben J at [83]; see similarly R v Reardon (2002) 186 FLR 1; [2002] NSWCCA 203 at [96]. That criterion would certainly have encompassed the situation facing the trial judge in this case.

31. [49]

    Chapter 11 of the 2007 Law Reform Commission report was headed “Discharging jurors for cause and irregularities in empanelment”. The report said the following (citations and subheading omitted):

32. [50]

    The report then went on to refer to cases involving jurors who were excluded from being eligible, jurors excused for individual personal cause, inappropriate juror conduct and cases of bias. The Commission’s recommendation 52 was that courts “should be given an express power to discharge a juror without discharging the whole jury in circumstances where the court is satisfied” that the juror met one of various criteria. The last criterion was that the juror “should not be required to continue to serve for any other reason that the judge considers sufficient”. That language is encompassing and not limited to something specific to the juror.

33. [51]

    The Commission referred at [11.7] to a desire to “identif[y] more precisely the circumstances in which that power may be exercised”. Reading the discussion as a whole, the Commission was not suggesting that the power should be more limited than it was under the criterion in s 22 of the Act as it then stood. That would be inconsistent with the breadth of its suggested residuary criteria, along with its statement at [11.7] that the power should be “broadly in line with the provisions in other Australian jurisdictions”. Those provisions were discussed at [11.6] and, by and large, were similarly encompassing to the s 22 criterion. The concern of the Commission seems to have been twofold: to provide a clear and express power to make the order, where at that stage the power was only implied at best; and to provide some guidance as to the sorts of reasons that would suffice to discharge a juror.

34. [52]

    The Jury Amendment Act 2008 sought to give effect to the recommendation of the Commission, as Attorney-General Hatzistergos stated in his second reading speech (Hansard, Legislative Council, 15 May 2008). That statement suggests that whilst the particular language employed in s 53B(d) may have been different from the words employed in the Commission’s recommendation, that was simply a matter of drafting rather than a deliberate choice to employ a narrower residuary provision.

35. [53]

    The Attorney noted that ss 53A and 53B “will give judges express legislative powers to discharge jurors”. After describing s 53A he went on to say the following (emphasis added):

36. [54]

    The second reading speech, like the Law Reform Commission report, does not suggest an intention to narrow the grounds on which a juror might be discharged. The Attorney went on to explain that some of the amendments – including in particular changes to ss 19-21 and the terms of ss 53A and 53C – were directed to overturning R v Brown and Petroulias (as discussed above at [38]). Again, these amendments do not suggest there was an intention to restrict the powers of courts; on the contrary.

37. [55]

    The Attorney concluded his speech as follows:

38. [56]

    The comments favour a broader rather than a narrower reading of the power granted in s 53B. A broader reading makes it less likely that a trial will need to be aborted or a conviction overturned on technical grounds.

39. [57]

    In this case the inconvenience of discharging the whole jury would have been slight, given that the difficulty arose on the first day. But in other cases the problem may only emerge towards the end of what may be a very long trial. In Petroulias, for example, the issue only became apparent on day 25 of a case that was itself a retrial.

40. [58]

    It is not only victims and witnesses who may be distressed or disadvantaged by the need for a trial to start again. There is a waste of court resources. And there can be disadvantage to others, including defendants themselves, as Gleeson CJ and Hayne J explained in Wu v The Queen at [19] (citation omitted):

41. [59]

    What emerges from the review of this material is, in sum, that: the provision in place relating to discharge of a juror prior to the enactment of s 53B was very broad and would have authorised what occurred here; neither the Law Reform Commission nor the Attorney-General’s second reading speech manifested any intention to narrow the power; the Commission’s recommendation included a broad residuary clause which was not limited to matters particular to a juror, and the different language employed in s 53B(d) appears merely a matter of drafting; and the Attorney’s speech suggested an intention to avoid technical arguments and to reduce the extent to which trials need to be aborted. These considerations militate strongly against the construction put by the applicant.

42. [60]

    My conclusions can be summarised as follows:

    1. (1)

       The circumstances here fall within the ordinary meaning of the words in s 53B(d). For each of the three jurors discharged – together with the other 12 – there was a reason affecting their ability to perform the functions of a juror. The reference discharging “the juror”, singular, can extend to more than one juror. The question is whether the paragraph should be read down such that the reference to “the juror” should be taken to mean that the “other reason” affecting their ability to perform their functions should be something specific to them, as opposed to other members of the jury.

    2. (2)

       There is some contextual support for that narrower construction in light of the terms of the preceding paragraphs of s 53B. However, that point is subject to consideration of whether the Parliament intended the residuary paragraph to cover a range of other circumstances not confined by the kinds of circumstance identified in the other paragraphs or in s 53A. There is also some limited force in the argument that the Parliament might have been expected to provide for some procedure to deal with this type of situation. However, such arguments are significantly undercut by the points that the provision was intended to deal with unforeseen circumstances; that trial judges are used to dealing with various challenges in running a trial and seek to do so fairly; that the Parliament is taken in general to intend that grants of powers to courts not be hedged in with limitations; and by the fact that the Parliament built in a safeguard mechanism in s 53C of considering whether there was any risk of a substantial miscarriage of justice.

    3. (3)

       Although some cases manifest a strict approach to compliance with the legal requirements relating to the constitution of juries, those decisions do not require that a narrow reading be taken to a grant of power to courts of the kind at issue here.

    4. (4)

       The legislative history is significant. The applicant’s construction would suggest that the Parliament intended to narrow the previously available power available to discharge an individual juror, but that is not supported by the extrinsic materials. Rather, there is good reason to conclude that the Parliament did indeed intend the residuary criterion in s 53B(d) to be broad and flexible.

43. [61]

    There are thus limited points in support of the applicant’s construction and significant factors of text, context and purpose militating the other way. The better view is that s 53B(d) is not limited to issues arising that are specific to the particular juror or jurors. It was available to the trial judge here to discharge three jurors to reduce the number down to 12. There was no irregularity in the conduct of the trial. No question about the possible application of the proviso then arises.

44. [62]

    Since preparing the above reasons in draft I have had the benefit of reviewing the draft reasons of Hamill J, who takes a different view of the correct construction of s 53B(d). The core difference between us appears to be that his Honour considers that the ordinary meaning of the words employed is the narrower construction (at [93] and [103]) and, relatedly, that the provision is not ambiguous (at [119]). On that basis his Honour downplays the significance of purposive considerations and the Shin Kobe principle.

45. [63]

    The relevant words employed in the subsection are “for any other reason affecting the juror’s ability to perform the functions of a juror”. As addressed above, there was a reason here affecting the ability of each juror to perform their functions. That the reason affected all of them does not change the fact that it affected each of them. His Honour says at [120] that the words of the provision, read in context, “contain a limitation on the discretionary power to discharge a juror, namely, that the relevant reason for discharge must be specific to that juror by ‘affecting the juror’s ability to perform the functions of a juror’” (emphasis added). The italicised words illustrate that the narrower reading involves reading in a contextual limitation which does not appear on the face of the text. As I have accepted above, that is a reasonably open construction. To my eye it is not the natural one. It is certainly not the only one.

46. [64]

    In any event, it is artificial to set up a threshold of perceived ambiguity in order to reduce the significance of contextual and purposive considerations, as was explained in the following passage from CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (citations omitted), which continues regularly to be cited by the High Court:

47. [65]

    His Honour also suggests at [112] that to adopt the construction put by the respondent would promote disharmony with the rest of s 53B, which is said to contain matters logically incapable of enlivening the discretionary discharge of individual jurors if they apply to all members of a particular jury indiscriminately. That the residuary provision in s 53B(d) covers types of situations requiring discharge of jurors additional to the other categories is the point of the provision.

48. [66]

    His Honour refers at [128] to the broad words “for any reason” in the previous statutory iteration of the criterion in s 22, and says that those words are clear and nothing in the extrinsic materials adds to those clear words. The previous words are indeed clear, and broad, and would have extended to encompass this type of case. Nothing in the extrinsic materials suggest any intent to narrow the scope of the power; on the contrary.

49. [67]

    In my view leave to appeal the applicant’s conviction should be granted (to the extent necessary) but the appeal on conviction should be dismissed.

50. [68]

    BUTTON J: I have had the benefit of reading two – with unfeigned respect – very learned draft judgments about a question of statutory interpretation of the Jury Act 1977 (NSW). The question is a narrow one, about which reasonable minds may readily differ: when s 53B(d) of the Jury Act speaks of discharging a juror “for any other reason”, is that confined to a reason pertaining to the individual juror personally? Or is Parliament speaking of something broader?

51. [69]

    In one sense, my view is of little moment, because Kirk JA and Hamill J agree that the appeal against conviction should be dismissed. And it is convenient for me to state now that, even if the ground were upheld, for the reasons given by Hamill J, I would apply the proviso and dismiss the appeal.

52. [70]

    Like His Honour, but for the recent considered decision of this Court in Fantakis v R [2023] NSWCCA 3, I might have regarded the wrongful discharge of a juror as being an error not amenable to the proviso. But for the same reasons as Hamill J, I consider that there is binding authority of this Court that the proviso can be applied here, and I accept that it should be even if error is established, not least because of the considered concession of counsel about the evidence in the trial.

53. [71]

    That means that all three members of the Court agree that the appeal against conviction should be dismissed, and my answer to the anterior question is in no sense dispositive.

54. [72]

    Even so, I think I should provide my own answer to it, with brief reasons, not only because of its importance, but also to provide the guidance of this Court to trial judges faced with the same question in the future.

55. [73]

    The question is finely balanced, as the judgments certainly show. But generally for the reasons given by Hamill J, I consider that s 53B(d) should be read narrowly. I provide the following reasons for that view very largely by way of emphasis, in generally descending order of importance.

56. [74]

    First, the words within s 53B(d) itself connote to me a reason for discharge of a juror that pertains to that individual juror (or, of course, those individual jurors) personally.

57. [75]

    Secondly, in my opinion the immediate context argues strongly for the narrow reading. To my mind, the whole of the rest of s 53B is focusing upon reasons for discharge that pertain to an individual juror personally. To express an archaic language in plain English, I believe that the paragraph under consideration can indeed be known by its companions.

58. [76]

    Thirdly, the absence from the Jury Act of a mechanism for random or “de-personalised” discharge in these or similar circumstances suggests to me that it is not the objective intention of Parliament to permit discharge of a juror without a reason pertaining to that juror personally (except of course for the explicit procedure for reduction of an enlarged jury just before retirement).

59. [77]

    Fourthly, before the amendment inserting s 53B commenced in 2008, I do not consider that it was the law that a juror could be discharged for a reason that did not pertain to that individual juror. I accept that there was authority at that time that the power to discharge a juror was broad, but I consider that it was confined—perhaps implicitly in some discussions of it--to attributes of a juror personally.

60. [78]

    In accordance with the reasons of Hamill J, the contrary is not my reading of the Jury Act as it stood then, nor of the cases about its operation, nor of the extrinsic materials, nor – if I may say so – my own experience.

61. [79]

    It follows that I do not consider that the narrow reading is counter-intuitive in the context of the Jury Act and its operation as it stood before the amendment.

62. [80]

    Fifthly, I accept that the narrow reading may lead to inconvenient, unattractive, and undesirable results. But criminal law is indeed an area of law in which “formalities” remain important; in the qualification, empanelment, constitution, and discharge of jurors, they remain very important. In other words, aspects of the operation of the criminal justice system generally provide a context that inclines me to the narrow view.

63. [81]

    Sixthly, I think that trial by jury was introduced into New South Wales in the 1830s, the Jury Act was enacted in 1977, and it remains in place in 2023, in a significant context. That context recognises not only the right to be tried by a jury for a serious criminal charge as perhaps the most important right in our criminal justice system. I also think that an important part of that system is the right of a properly qualified citizen to sit on a jury, and concomitantly not to be discharged individually, unless there is a good reason for that discharge that pertains to that individual juror.

64. [82]

    I appreciate the ready counter-argument that, here, the narrow reading would have required all jurors to have been discharged, with the result that all of them would not have been permitted to continue to serve as a juror. But in a way that I must say I find difficult to express, I consider that that is a somewhat different thing from what occurred here, whereby three qualified jurors, who were ready willing and able to serve, were not permitted to do so, for reasons nothing to do with them personally, and yet the trial otherwise continued without them.

65. [83]

    That is my sketch of the reasons that I find most compelling in resolving this question. I consider that the learned trial judge was in error in adopting the course taken, and continuing with the trial.

66. [84]

    Separately and finally, I endorse the statement of Hamill J that this finding is no criticism of Bennett SC DCJ; quite the contrary.

67. [85]

    Turning to the application for leave to appeal against sentence, I agree with the proposed orders and reasons of Hamill J.

68. [86]

    HAMILL J: I enjoy the considerable advantage of having read the reasons for judgment of Kirk JA as they were circulated in draft. I agree with the orders proposed by his Honour. However, my reasons for favouring those orders are different to those of the presiding Judge. I find myself in respectful disagreement with his Honour’s construction of s 53B(d) of the Jury Act 1977 (NSW) and the proposition that the section authorised the discharge of three randomly selected members of the expanded 15-member jury. It follows that, unlike Kirk JA, I would uphold the single ground of appeal against the conviction raised by the applicant. However, because of the strength of the prosecution case and the nature of the error considered in the light of relevant authorities, I would apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). In other words, while I would find in the applicant’s favour on the points raised by his ground of appeal, I would dismiss the appeal because I consider that no substantial miscarriage of justice actually occurred.

69. [87]

    I gratefully adopt Kirk JA’s summary of the events as they unfolded at the trial and his Honour’s survey of the relevant legislative provisions and issues raised by the appeal. However, there will be some repetition of those matters as I expose my reasons, and trust the repetition will save the reader the need to jump back and forth between the judgments.

The proper construction of s 53B(d) of the Jury Act 1977 (NSW)

1. [88]

   The sole ground of appeal involves the scope of the trial Judge’s power to discharge a juror (or jurors) under s 53B(d) of the Jury Act. Section 53B provides:

2. [89]

   The question for this Court is whether s 53B(d) authorised the trial Judge to discharge three jurors because of matters entirely divorced from their individual qualities and ability to perform the functions of a juror. The question arose because the court complex where the trial was held did not have the capacity to accommodate the 15-member jury that had been empanelled a day earlier. That information came to the trial Judge after the “expanded jury” had been empanelled. Had the Court been able to accommodate the expanded jury of 15, as the trial Judge must have believed when it was empanelled, [1] none of the three jurors would have been discharged because none of them were unable to perform the functions of a juror. Conversely, the 12 jurors who were not discharged were equally unable to perform the functions of the juror, but through no quality of their own.

3. [90]

   Before embarking on my reasons for concluding that the trial Judge was not authorised to discharge the three jurors in the way he did, I should say two things about the way events unfolded at the applicant’s trial. First, the trial Judge’s initial response was that he should discharge the whole jury and commence the process again the following day. His Honour’s initial response was correct. However, counsel then appearing for the applicant (who did not appear on the appeal) objected to that course. Secondly, the Prosecutor at trial raised strong questions as to whether the process that was undertaken was authorised by the relevant provisions of the Jury Act. Again, the Prosecutor’s misgivings were well founded.

4. [91]

   In determining the scope of the discretionary power vested in a trial Judge to discharge an individual juror, the words of s 53B(d) of the Jury Act are the starting point in the process of construction. This accords with well-established principles. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (“Consolidated Media”), the High Court unanimously held:

5. [92]

   This statement does not serve to undermine the relevance of context in the process of statutory construction. However, it identifies that the express words of the text are a limitation to a consideration of contextual matters. Care must be taken not to place excessive reliance on contextual matters, particularly where the terms of the statute are clear. As Kiefel CJ and Keane J observed in R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [34]–[36] (“A2”), a wide consideration of context concurrently with consideration of the text:

6. [93]

   Consideration of contextual matters – including legislative history, extrinsic material and a trial Judge’s common law powers – does not displace the ordinary meaning of the words in s 53B(d). Rather, excessive reliance on those matters is apt to “derive a very different meaning from that which could be drawn from the [words] of the provision” (to use the words of Kiefel CJ and Keane J). Those words “clearly enough convey” the intended operation of s 53B(d) by expressly contemplating the “discharge of [an] individual juror” for “any … reason affecting the juror’s ability to perform the functions of a juror” (my emphasis). The power in s 53B(d) is enlivened where the relevant “reason” affects the subject juror themself and compromises that juror’s ability to perform the functions of a juror.

7. [94]

   In the present case, the relevant reason for the discharge of three individual jurors was the court’s lack of capacity to accommodate a 15-member jury because of social distancing requirements applicable at the time. That reason affected all 15 members of the expanded jury equally and indiscriminately. The trial Judge erred in exercising the power by discharging three randomly selected jurors. As I have said, the preferable course, and perhaps the only safe course (from a health perspective), was to discharge the whole expanded jury and commence the process again by empanelling a jury of 12. (As I have said, and wish to stress throughout, this was precisely what Judge Bennett had in mind to do when the problem was brought to his attention). Another possible course was to continue with the jury of 15 until the occasion arose, pursuant to provisions of the Jury Act, to reduce the “expanded jury” to a “verdict jury” of 12. [2] However, in view of the health regulations in place at the time, and the advice his Honour received from the court administrators, this may not have been a safe course.

8. [95]

   In Owners of Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 (“Shin Kobe Maru”) the High Court emphasised (at 421) that “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words” of those provisions.

9. [96]

   This principle does not mean that there is a default position under which the text of a power-conferring provision should be construed as broadly as possible irrespective of “context, purpose or consequences”: see P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [9.700] (“Interpretation”). The authors of Interpretation described the import of the principle as counselling “against imposing limitations on a provision conferring jurisdiction on or granting powers to a court, without a basis in the text of the statute considered as a whole and in context” (emphasis added). This is consistent with the reasoning of the High Court, in favour of narrower constructions of power-conferring provisions, in three recent cases:

10. [97]

    The approach adopted in those three cases reflects Brennan CJ, Gaudron and McHugh JJ’s formulation of the principle in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36 at 313, where it was said that “a provision conferring power to be exercised judicially should be construed as liberally as its terms and context permit”. That formulation was echoed by Keane, Nettle and Gordon JJ in ABCC at [103]:

11. [98]

    These cases demonstrate that the Shin Kobe Maru principle does not of itself allow for a construction of s 53B(d) of the Jury Act which transforms the power granted by the provision into a power broader than the terms and context of the section permit. By analogy to the principle that “beneficial legislation is to be construed beneficially”, the Shin Kobe Maru principle is “a manifestation of the more general principle that all legislation is to be construed purposively”, such that the resolution of a particular matter does not “turn on applying a broad construction simply because the provision is remedial”: Cf Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [97] per Leeming JA (“Sydney Seaplanes”).

12. [99]

    Nor can the Shin Kobe Maru principle be considered in isolation from the text and context of s 53B(d). Rather, to paraphrase Keane, Nettle and Gordon JJ in ABCC at [103], the starting point of the process of construction must be the text of s 53B(d) read in the context of the Jury Act as a whole, including the fact that the provision confers a power upon courts. Again, to borrow the language of ABCC at [103], the “first and most immediate point of significance” is the terms in which s 53B(d) empowers a court to “discharge a juror … for any other reason affecting the juror’s ability to perform the functions of a juror”. Just as that conferral of power is not to be “artificially limited”, it is not to be “artificially broadened”, for example by applying the Shin Kobe Maru principle without recourse to “limitations [or implications] found in the express words” of s 53B(d).

13. [100]

    This brings me back to the text and immediate context of the power conferring provision in s 53B(d) of the Jury Act.

14. [101]

    The text of s 53B is set out at by Kirk JA at [22] and by me at [88]. I will not repeat it other than to reinforce the fact that sub-s (d) grants a court or coroner with the discretionary power, in the course of any trial or coronial inquest, to “discharge a juror if … it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror” (emphasis added).

15. [102]

    Sub-section (d) differs from (a), (b) and (c) by generally providing that any reason may give rise to the “discretionary discharge of [an] individual juror”. However, the reason must affect the impugned juror’s ability to perform the functions of a juror. Sub-section (a) is concerned with the situation where a juror has become too ill, infirm or incapacitated to serve as a juror and/or poses a risk to the health of other jurors. Sub-section (b) addresses the risk of juror bias, partiality or conflict of interest, based on “the juror’s own statements or from evidence before the court or coroner”. Sub-section (c) enlivens the discretion where “a juror refuses to take part in the jury’s deliberations”.

16. [103]

    The following features of s 53B are clear from the text:

17. [104]

    These features of the sub-section suggest strongly that the section is directed to the discharge of an individual juror rather than the whole jury and were the focus of the applicant’s written submissions. The argument was put as follows:

18. [105]

    The issue was refined in oral argument, with the focus shifting from whether s 53B could apply to multiple jurors in the event that a particular reason affected each of their respective abilities to perform the functions of a juror. For example, as the presiding Judge points out at [25], it would be open to a trial judge to discharge two jurors at the same time under s 53B(a) if they both became so ill as to be unable to continue to serve as a juror. While this may be accepted, to invoke s 53B in those circumstances would still require a trial judge to make separate and independent inquiries into the health of each individual juror, and the effect their ill-health would have on their ability to perform the functions of a juror. The example provides no basis to construe s 53B(d) as granting a power to discharge multiple jurors for reasons unrelated to their qualities bearing upon their ability to perform the function of a juror.

19. [106]

    As it is put succinctly by Kirk JA at [26], the applicant’s argument is that s 53B(d) should be “understood as only addressing circumstances where there is something specific to a particular juror or jurors affecting their individual ability to perform their functions as such” (see above at [26]). There were no such circumstances in the present case. If one (or three) of the jurors were unable to perform the functions of a juror because of the public health orders and the court’s inability to assure safe social distancing, all 15 were similarly afflicted. The trial Judge acknowledged this at [17] of his reasons on the discharge application, when he said “at least three of these jurors ... that I have before me are, on present arrangements, unable to continue as a juror”.

20. [107]

    This formulation of the issue draws an important contextual matter into sharp and immediate focus; that is, the effect of the preceding sub-sections of s 53B on the textual argument. “The maxim ejusdem generis (‘of the same kind’) means that where there is a list of things that are specific instances (species) of a class or category (genus), general words following the list are restricted to species of that genus”. [4] The maxim is a specific application of the wider principle noscitur a sociis (“a thing is known by its associates”) under which the meaning of a word can be discerned from “its associated words”. [5] These maxims, with their mysterious Latin names, are simply aspects of the requirement that a particular statutory provision must be construed in context, including the “immediate context supplied by other provisions in [the] statute”: see, for example, Sydney Seaplanes at [30]; see, also, Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [31], citing Project Blue Sky at [69]–[70]; Western Sydney University v Thiab [2023] NSWCA 57 at [113].

21. [108]

    To similar effect are the words of Leeming JA in 2 Elizabeth Bay Road Pty Ltd v Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [82]:

22. [109]

    The same may be said of the words “for any other reason affecting the juror’s ability to perform the functions of a juror” in s 53B(d). The meaning of the sub-section is informed by the preceding paragraphs of the section.

23. [110]

    The impact of the nature and terms of sub-ss (a), (b) and (c) on a proper understanding of s 53B(d) is considerable and provides a strong indicator that, on its proper construction, the power in sub-s (d) is engaged by “any other reason” that is specific to a particular juror or jurors, as opposed to circumstances where every juror’s ability to perform the functions of a juror is equally compromised.

24. [111]

    Each of the matters set out in sub-ss (a), (b) and (c) is a matter specific to a particular juror or jurors. Those are the types of matters with which the Parliament was concerned in enacting s 53B. Although sub-s (d) is drafted in very general terms, and as a “catch-all” provision, it purports to catch all of the various reasons that may compromise a particular juror’s ability to perform their function; it does not purport to catch a particular reason affecting all of the jurors who might then be discharged by means of a random ballot of the kind undertaken in this case, and which is also not authorised by the Jury Act.

25. [112]

    To construe s 53B(d) in the manner contended for by the respondent would promote disharmony with the rest of s 53B, which contains matters logically incapable of enlivening the “discretionary discharge of individual juror[s]” if they apply to all members of a particular jury indiscriminately (for example, illness, infirmity or incapacitation; inability to approach the case impartially; or refusal to take part in deliberations). If the entire jury were afflicted by one of these circumstances – each juror became too ill to continue or the whole jury was exposed to prejudicial material – the proper course of action would be to discharge the entire jury. This was exactly what Judge Bennett thought he should do when he became aware of the problem.

26. [113]

    This position is fortified by reference to s 53A(1), which operates in a similar manner to s 53B, albeit that it provides for the mandatory discharge of a juror where that juror was “mistakenly or irregularly empanelled”, “excluded from jury service”, or “has engaged in misconduct in relation to the trial or coronial inquest”. Again, it is clear the reasons for mandatory discharge are necessarily specific to a particular impugned juror. The provision could not operate reasonably where all members of a particular jury were affected by one of those reasons. Instead, the only available solution would be to discharge the whole jury.

27. [114]

    Reference to the discharge of the entire jury directs attention to s 53C(1) of the Jury Act, the final provision of Pt 7A (titled “discharge of jurors”). That section protects an accused from any risk of a substantial miscarriage of justice that may have been created by the death or discharge of a single juror under s 53A or 53B, irrespective of the specific reason for that discharge. Not much can be gleaned from the terms of s 53C and it is probably a neutral factor in terms of the construction of s 53B(d). However, the chapeau in s 53C(1) once again speaks in terms of the situation where an individual juror has been discharged.

28. [115]

    The narrower construction of s 53B(d) is fortified by the absence of a relevant procedure within the Jury Act to facilitate the course taken in the applicant’s trial. There is a procedure in s 53G but on no sensible view was it properly engaged in the present case. Section 53G is the procedure whereby an “expanded jury” is reduced to 12 members who then comprise the “verdict jury.” The procedure is peculiar because it requires the Court to ballot on, rather than off, and insists that the “foreperson” be excluded from the ballot. The process is to take place “immediately before the jury is required to retire to consider its verdict”. While the trial Judge, in the absence of any other process, adopted this procedure (except that the foreperson was not excluded and it did not occur immediately before the jury retired to consider its verdict), it cannot sensibly be suggested that s 53G was enacted to facilitate the random reduction in the jury’s constitution in the middle of the trial.

29. [116]

    The absence of a facilitative provision in s 53B or Part 7A to reduce the number of jurors randomly and without a reason associated with the jury’s ability to perform their task is another strong indicator that Parliament did not intend for s 53B(d) to enable a reduction in the size of an expanded jury where the entire jury’s ability to perform the functions of a juror was uniformly compromised.

30. [117]

    Whilst it is true that “every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in [a] trial” (Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 at 300, 363–364; [1992] HCA 57), that principle is of little relevance to the construction of a specific power granted to a trial judge, such as the discretion to discharge an individual juror in s 53B(d). Nor can it reasonably be argued that what happened in this trial was calculated to “prevent unfairness”. Rather, the balloting off of three jurors was considered necessary because the court could not accommodate the expanded jury that the Judge had decided to empanel.

31. [118]

    A matter raised by the presiding Judge at the hearing of the appeal, and referred to by his Honour at [25]-[26] concerns the application of s 8(b) of the Interpretation Act 1987 (NSW). The section provides that (b) “a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form”. I am unable to see how this provision works to transform s 53B into something it is not. That is because the question is not really whether multiple jurors may be discharged under s 53B(d), but whether those (particular) jurors’ ability to perform the functions of a juror are affected by a reason specific to them.

32. [119]

    While it is unnecessary to decide the point, it is arguable that s 53B(d), read with the Jury Act as a whole, evinces an intention contrary to s 8(b) of the Interpretation Act (see Blue Metal Industries v Dilley (1969) 117 CLR 651 at 656; [1969] HCA 23). That intention may be gleaned holistically, from factors including the use of the definite article in referring to “the juror” in s 53B (see, for example, Thompson v Duffin (2009) 105 SASR 181; [2009] SASC 270 at [48]); the heading to the provision referring to the “discretionary discharge of [an] individual juror” (emphasis added); the lack of a provision expressly providing for the discharge of multiple jurors (cf, the entire jury) other than in accordance with the s 55G balloting procedure, and the broader trend in the Jury Act to employ express and careful use of the singular juror or the plural jurors (see, for example, ss 19 and 22 of the Jury Act).

33. [120]

    These matters, and the immediate context of s 53B(d), provide considerable support for a construction of that provision whereby the reason for the discharge of a particular juror must be specific to that juror, rather than affecting all members of the jury uniformly. This approach does not involve a “reading down” of the words of the provision, contrary to the Shin Kobe Maru principle. Rather, the express words of s 53B(d), read with Pt 7A and the Jury Act as a whole, contain a limitation on the discretionary power to discharge a juror, namely, that the relevant reason for discharge must be specific to that juror by “affecting the juror’s ability to perform the functions of a juror”. There is no ambiguity in the provision, and I doubt recourse to the legislative history and extrinsic material is warranted. However, in deference to the respondent’s submissions, and matters contained in the judgment of Kirk JA, I will delve briefly into that material.

34. [121]

    In both written and oral submissions, the respondent referred to the legislative history of the discretion to discharge “any member of the jury … as being through illness incapable of continuing to act or for any other reason” (see the former s 22 of the Jury Act, prior to the commencement of the Jury Amendment Act 2008 (NSW) on 1 July 2008), in addition to extrinsic materials, including the former Attorney-General’s second reading speech [6] and the New South Wales Law Reform Commission’s Report No 117, on Jury Selection, which was delivered in January 2008.

35. [122]

    The respondent submitted that these resources support the proposition that the purpose of s 53B(d) is to provide “specified powers for a judge to exercise discretion to discharge a juror, so as to enable the trial to continue with a lesser number of jurors”. It was submitted that “even if the reason [for discharge] is not peculiar to a particular identified juror”, that would not be inconsistent with the purpose of s 53B(d) because it would “allow the trial to continue and avoid delays to the accused and to the community” (emphasis added).

36. [123]

    This submission involves placing a gloss on the statute that is not supported by the text. Nor is it supported by the legislative history, noting the observations of Simpson J (as her Honour then was), in R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134 at [58]–[59], that the former s 22 of the Jury Act implicitly enlivened “the power or discretion to discharge a single juror”, albeit on a basis “as wide as it can possibly be – for incapacity caused by illness ‘or for any other reason’” (emphasis added).

37. [124]

    I am unable to accept the respondent’s argument concerning the lack of inconsistency between its asserted construction and “the statutory purpose of the provision”. Preference should be afforded to a construction that actively promotes the purpose or object underlying the Act or statutory rule: Interpretation Act, s 33. Further, the submission that the purpose of s 53B(d) includes “enabl[ing] the trial to continue with a lesser number of jurors” is undermined by the presently applicable form of s 22 of the Jury Act. It provides for the “[c]ontinuation of trial or inquest on death or discharge of juror” in the following terms:

38. [125]

    Section 22 in its current form facilitates the continuation of trials with a lesser number of jurors, following the death or discharge of a juror. The purpose of s 53B(d) is different and creates a power for the discretionary discharge of an individual juror in the first instance, thus obviating the need to discharge the whole jury.

39. [126]

    Reference to extrinsic materials, including the former Attorney-General’s second reading speech when introducing the Jury Amendment Act 2008 (NSW), does not advance the respondent’s construction. Rather, it provides support for the applicant’s construction. The former Attorney stated that:

40. [127]

    The Attorney explicitly indicated that the amendments, including Pt 7A, were directed to circumstances affecting “one or two jurors” and, therefore, circumstances specifically enlivening the discharge of one or two jurors. The second reading speech provides no support for the application of s 53B(d) to the circumstances which arose at the applicant’s trial.

41. [128]

    Nor do the extrinsic materials provide much assistance to the respondent’s submission that s 53B was not intended to narrow the discretion that was previously implied by s 22 of the Jury Act. The breadth of the words “for any other reason” is clear from the text. Nothing in the extrinsic material adds to those clear words. The real question is whether those reasons are particular to the individual juror who is to be, or was, discharged. The extrinsic material does not advance the respondent’s submissions on that issue.

42. [129]

    Paragraph [11.8] of the Law Reform Commission Report (reproduced by Kirk JA at [49]) is focused on broadening the scope of “any other reason” on temporal or practical bases, rather than allowing for the discharge of a randomly selected juror, or randomly selected jurors, where the reason for discharge affects every member of the validly empanelled jury. The Report states that “[i]t has been suggested that [‘any other reason’] may encompass more than simply the inability of a juror to continue, but may include the delay caused by some temporary condition affecting the ability of a juror to attend court, and the effect of the delay on the accused and others involved in the trial … as well as on other trials waiting to proceed in the same court” (emphasis added).

43. [130]

    Furthermore, all of the extrinsic material to which reference was made speaks with a singular voice: that s 53B applies to empower the discharge of “a juror”: see, for example, the extract from the second reading speech extracted by the presiding Judge at [53] and [11.8] of the Law Reform Commission Report, which recommends that courts “should be given an express power to discharge a juror without discharging the whole jury in circumstances where the court is satisfied that the juror has met one of various criteria”.

44. [131]

    Finally, the existence of a broad discretionary power at common law to discharge the whole jury prior to the end of a trial, in cases of apparent necessity or to achieve a fair trial, [7] and the absence of such a power in the Jury Act, does not support a construction of the power in s 53B(d) that allows “any other reason” to encompass reasons that have nothing to do with the ability of an individual juror to perform their task.

45. [132]

    The Shin Kobe Maru principle must be considered in the context of the jurisdiction or power vested in a trial Judge by s 53B(d). However, the critical question is precisely what power s 53B provides to a trial Judge and what are the limits of that power.

46. [133]

    In my opinion, the correct construction is that a trial judge is granted a power to discharge an individual juror based on that juror’s capacity to perform the function of a juror. This is not to “read down” the breadth of the words “for any other reason affecting the juror’s ability to perform the functions of a juror” in s 53B(d). Rather, it is to read paragraph (d) in conformity with paragraphs (a), (b) and (c). Resort to the history of the amendments to the Jury Act and the extrinsic materials does not justify a construction that a trial judge was granted an unfettered power to select three members of a 15-member “expanded jury” randomly and to discharge those three jurors despite the absence of any quality in any one of those individual jurors which compromised their ability to perform the functions of a juror.

Error is established

1. [134]

   If that interpretation of s 53B is correct, it follows that the trial Judge fell into error. I would decide the points raised by ground 1 in favour of the applicant. That is not the end of the matter. The question then becomes whether the proviso to s 6 of the Criminal Appeal Act should apply with the result that the appeal should be dismissed.

The availability and application of the proviso

1. [135]

   The proviso to s 6(1) is in the following terms:

2. [136]

   I record my agreement with Kirk JA’s observation that the sole ground of the applicant’s conviction appeal raises an unattractive case, in circumstances where the applicant now takes issue with the trial Judge’s failure to adopt the very course of action that his Honour initially proposed to take, but for the terse objection on the part of the applicant’s trial counsel. However, there is a serious question as to whether the kind of error identified in this case is one where a conviction can be saved by resort to the proviso.

3. [137]

   The question is whether the error is of a kind that cannot be cured because there was a “failure to observe the requirements of the criminal process in a fundamental respect”: Maher v The Queen (1987) 163 CLR 221 at 234; [1987] HCA 31 (“Maher”); see also R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 and R v Chaouk (1986) 23 A Crim R 463; [1986] VR 707. In other words, the error may have been so fundamental to the trial process that the there is no room for the operation of the proviso.

4. [138]

   Such errors were described by Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 373; [1988] HCA 6 (“Wilde”) in the following terms:

5. [139]

   Their Honours went on to caution that “[t]here is no rigid formula to determine what constitutes such a radical or fundamental error.”

6. [140]

   In Weiss v The Queen (2005) 224 CLR 300 at 317; [2005] HCA 81 (“Weiss”) the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said:

7. [141]

   Of course, there can be no question of the application of the proviso “unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty”: Weiss at 317 [44].

8. [142]

   In Wilde, the dissentients, Deane and Gaudron JJ, in separate judgments made important observations to the effect that intermediate courts of appeal ought not to usurp the role of the jury by too readily applying the proviso. Deane J said at 375:

9. [143]

   To similar effect, Gaudron J said at 382:

10. [144]

    In approaching this aspect of the applicant’s case on appeal, I have kept the words of Deane and Gaudron JJ firmly in mind. But in a case like this one, the anterior question is whether the error which infected the trial process is such as to have denied the applicant a trial according to law altogether. Unguided by authority I may have reached that view. However, a recent decision of this Court, and an older decision of the High Court, have persuaded me that the ground of appeal is amendable to the application of the proviso if it is otherwise engaged.

11. [145]

    Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50 (“Katsuno”) was a case involving “jury vetting” by a Prosecutor who had access to information provided by the Victorian police. It was not a case determined by reference to the common form proviso but provides significant insight into the circumstances where an issue concerning the constitution of the jury might be considered to have gone to the root of the trial process. A majority of the High Court held (at 57 [24]) that the practice undertaken at the applicant’s trial, and specifically in the course of selecting the jury, was unlawful.

12. [146]

    Gaudron, Gummow and Callinan JJ turned to consider the consequences of the unlawfulness at 61-62:

13. [147]

    Their Honours continued at 62:

14. [148]

    Finally, at 65, their Honours observed:

15. [149]

    The factual situation in Katsuno may be contrasted with cases where it has been held that the “authority and constitution” of the jury was impacted by the error or unlawfulness which infected the integrity of the trial proceedings. I refer to these cases to demonstrate that errors of a seemingly technical nature have been held to render the trial, in effect or in fact, a nullity. As Spigelman CJ said R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 in at [90]:

16. [150]

    In Maher, where the High Court overturned the appellant’s conviction, the jury was sworn to try the applicant on 19 counts contained on an indictment. The applicant was later re-arraigned on an additional two counts and placed in the jury’s charge. The court held that the re-arraigning of the accused “did not alter the issues which the jury had been sworn to try”, that is the 19 original counts.

17. [151]

    In R v Brown; R v Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324 a juror came to court on the wrong day and was mistakenly included in the panel from which the jury who tried the accused was selected. This Court (Mason P, Sully and Sperling JJ) held the jury was not selected in accordance with the Jury Act and the trial was a nullity.

18. [152]

    I will not recount the facts of the cases, but for further examples, see R v Smith [1954] QWN 49, R v Hall [1971] VR 293, R v Short (1898) 19 LR (NSW) 385, R v Dempster [1924] SASR 299 and Johns v The Queen (1979) 141 CLR 409; [1979] HCA 33.

19. [153]

    I turn then to this Court’s recent decision in Fantakis v R [2023] NSWCCA 3 (“Fantakis”).

20. [154]

    In Fantakis, the trial was conducted with an expanded jury and had reached the point where the jury was to retire to consider its verdict. A ballot was held pursuant to s 55G of the Jury Act. The section required (clearly but inexplicably) that the foreperson be excluded from the ballot. Contrary to those provisions, the foreperson was included in the ballot. The Court held that there was an error in the manner in which the ballot was conducted and turned to consider the consequences of the error (Ward ACJ at [378]). There is a helpful discussion of the authorities from [363] to [388]. Ward ACJ concluded that decisions such as Maher did “not preclude the application of the proviso in this case.” After a thorough review of the authorities, with some focus on the distinctions between the decision of the High Court in Maher and Katsuno, Ward ACJ said:

21. [155]

    Both Rothman and Dhanji JJ agreed with the Acting Chief Justice.

22. [156]

    Without the guidance of the decision in Fantakis I may have come to a different view as to whether the error in the present case involved the failure to comply with a mandatory statutory requirement relating to the constitution and authority of the jury: Katsuno at [41]. However, while the factual circumstances are different, I can see no basis in law upon which to distinguish this case from Fantakis. Unless I concluded that Fantakis was (plainly) wrongly decided, I must follow the previous and reasoned decision of this Court. I am unable to say that the decision in Fantakis is plainly wrong. Nor can I see any basis in principle upon which the decision in Fantakis can legitimately be distinguished. Like that case, the jury which heard the applicant’s case was randomly selected and each member of the jury was lawfully empanelled following their answering a jury summons.

23. [157]

    Accordingly, with those expressed misgivings, I proceed on the basis that the error which occurred at the applicant’s trial was not of the kind that that is so fundamental that the proviso to s 6(1) cannot be invoked.

24. [158]

    The respondent submitted that, if error was established, the Court should apply the proviso. The submission was based on the nature of the error and the strength of the prosecution case. Counsel for the applicant submitted the proviso would not be applied because of the fundamental nature of the error. I have dealt with that submission and concluded to the contrary.

25. [159]

    Counsel for the applicant very properly conceded that, if the proviso was available, he could not submit that it should not be applied “based upon the state of the evidence in relation to the convictions of the appellant.” [8] Upon questioning from the bench, counsel confirmed that he did not “seek to make any factual answer to the proviso as raised by the [Respondent]”.

26. [160]

    Having reached the conclusion that the proviso may apply to the error established by the applicant, I have concluded that it should, in fact, be applied in the facts and circumstances of this case. My reasons for concluding that no substantial miscarriage of justice actually occurred are essentially two-fold.

27. [161]

    First, while the erroneous application of s 53D may have affected the make-up of the jury and reduced its number to 12 precipitously, the fact remains that the applicant was tried by a representative and randomly selected jury, each member of whom was eligible and properly summoned under the Jury Act.

28. [162]

    Secondly, on my review of the record of trial, the prosecution case against Mr Sun was extremely strong. As has been seen, counsel did not contend to the contrary. Counsel for the respondent summarised the prosecution case as follows:

29. [163]

    I have borne in mind the caution urged by Justices Deane and Gaudron in Wilde v The Queen. However, bearing in mind that I consider myself bound by the decision in Fantakis, this case fits within that category of case described by Deane J at 377:

30. [164]

    For those reasons, I would dismiss the appeal against conviction.

Appeal against sentence

1. [165]

   The applicant also appeals against the sentence imposed by Judge Bennett SC on 13 August 2021. His Honour’s sentencing judgment is published on legal websites: R v Sun [2021] NSWDC 515. The reasons which follow assume the reader has access to and is familiar with that judgment. The applicant was sentenced to aggregate term of imprisonment of 7 years commencing on 23 November 2020 with a non-parole period of 5 years which will expire on 22 November 2025.

2. [166]

   The applicant, who appeared for himself on the sentence appeal, raised six grounds of appeal:

3. [167]

   The applicant was convicted by the jury of one count of supplying an indictable quantity of methylamphetamine (count 1) and one count of the ongoing supply of the same drug for financial reward (count 2). The first count carried a maximum penalty of 15 years imprisonment, and the second exposed the applicant to a maximum sentence of 20 years.

4. [168]

   The sentencing Judge made findings of fact based on the evidence adduced at the trial and these were not disputed on the appeal. The applicant was involved in the supply of drugs with a person known as Witness A, a woman known as “Louise” and Song Han, a person with whom the applicant was in a relationship. Count 1 involved the supply of a total of 55.77 grams of methylamphetamines to Louise in the course of two transactions, the first on 4 September 2018 (supplying 27.9 grams of methylamphetamine with a purity of 78%) and the second on 10 September 2018 (supplying 27.87 grams of methylamphetamine with a purity of 71.5%). The ongoing supply offence involved the following transactions of methylamphetamine:

   1. (1)

      17 September 2018 – 25.5 grams with a purity of 77%.

   2. (2)

      19 September 2018 – 24.78 grams with a purity of 79%.

   3. (3)

      24 September 2018 – 28 grams with a purity of 79.5%

   4. (4)

      26 September 2018 – 55.5 grams with a purity of 79.5%.

5. [169]

   The applicant did not deny that he was involved in the transactions and the evidence of his involvement was overwhelming. After various communications between the applicant and Witness A, in which the applicant asked whether Witness A knew anybody “who wants to buy anything”, police set up a controlled operation on 3 September 2018. Both Witness A and “Louise” were authorised to act as “civilian participants”. Louise was provided with cash by the police and used that money to purchase the drugs from the applicant. Witness A was described as the “middle-man” in the first two transactions (the subject of count 1) but played no further role in the deals that took place after 10 September 2018. After that date, Louise and the applicant communicated directly by text messages. At one stage the applicant became “paranoid” (which he wrote in a text message) and organised a meeting between Louise and an associate (Ms Han), which the applicant observed, in what was described as “counter surveillance”. The transactions encompassed by count 2 were organised between the applicant and Louise by various means of communication including encrypted messages. The police observed the meetings and there was also CCTV footage and electronic surveillance which supported the accounts given by Louise and Ms Han at the trial. The applicant sourced the drugs from his own supplier and received the money provided to Louise by police in exchange for the drugs.

6. [170]

   The applicant’s defence at the trial was that he was acting under duress in the form of threats made by Witness A. The jury obviously rejected that defence and the trial Judge found that both the applicant and a witness he called to support his defence were untruthful in the evidence they gave at the trial. His Honour found that there was no duress of any kind.

7. [171]

   The offences were not particularly sophisticated but involved some planning and attempts at subterfuge. For example, the applicant absented himself from some of the transactions and the co-offender (Ms Han) instead exchanged the drugs for money. Significantly, the sentencing Judge found that the offences were committed, not in response to his psychological difficulties, but for “commercial purposes and financial gain”.

8. [172]

   Ms Han was arrested with the applicant. She pleaded guilty and gave evidence in accordance with the statement of facts upon which she was sentenced. Her role was said to be allowing her premises to be used for the transactions. She was sentenced in relation to five discrete offences of supply and there was no offence of ongoing supply. Judge Bennett SC said there was a “slight contrast” between the offences she was charged with when considered next to the offences faced by the offender, but his Honour said that contrast was of “marginal” significance.

9. [173]

   Ms Han was sentenced in the Local Court to an aggregate sentence of 2 years to be served by way of an Intensive Corrections Order. The indicative sentences were 8 months, 12 months, 14 months, 18 months and 15 months.

10. [174]

    Judge Bennett rejected a submission that the applicant “should suffer a comparable outcome” to Ms Han and noted that she pleaded guilty, was dealt with in the Local Court with significantly lower maximum penalties for individual offences of supply, under s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW).

11. [175]

    There is no ground of appeal suggesting his Honour erred in his approach to parity and given the differences between the cases, such a ground would have little merit.

12. [176]

    A body of evidence was tendered on the applicant’s behalf on sentence. Judge Bennett referred to it in some detail: R v Sun [2021] NSWDC 515 at [61]-[128]. Unless it is necessary in dealing with the grounds of appeal, I do not propose to repeat his Honour’s detailed analysis except to note the following more significant aspects of the applicant’s personal history:

    1. (1)

       The applicant was 47 at the time of the offence and was to turn 50 in the year of his sentence.

    2. (2)

       In 2014 he committed an offence of supplying a commercial quantity of a prohibited drug along with another less serious supply offence. He was sentenced by the late Judge Toner SC on 30 June 2017 to an effective (or aggregate) sentence of five years with a non-parole period of three years commencing on 20 February 2015. The non-parole period expired on 19 February 2018 and the total sentence was to expire 19 February 2020.

    3. (3)

       The applicant was on parole for the earlier drug offences when he committed the offences of which the jury found him guilty.

    4. (4)

       His Honour found the applicant was “capable of rehabilitation but has demonstrated no desire to achieve it.” At the time of the offences, he was engaged in what were considered by a Community Corrections officer to be engaged in “appropriate interventions.”

    5. (5)

       The tragedy of Mr Sun’s case lay in his obvious intelligence and professional work history, which collapsed as a result of his drug addiction. He came to Australia from South Korea when he was 15, excelled at school and went on to achieve a degree in medicine from the University of Sydney. He studied dental surgery and other specialities, training in both South Korea and the United States. He had an established practice in Sydney. However, his registration was suspended in September 2014, before the 2015 offences. The NCAT judgments relating to his suspensions were before the sentencing Court and the details are set out in his Honour’s judgment, as were the reports of various mental health experts. After losing his professional career he became homeless and depressed but not suicidal.

    6. (6)

       Mr Sun was assaulted while in custody and there was some evidence that he was “stood over” by other inmates. It was during his first period in custody in 2015 that he came to be associated with Witness A.

    7. (7)

       There was no evidence of contrition or remorse and reports tendered on sentence showed the applicant maintains his innocence.

    8. (8)

       While Judge Bennett approached the evidence with a degree of scepticism, his Honour accepted some of the diagnoses of depression, drug dependence and what was described as a “compelling evidence of the sequence of grief [and] depression” which commenced when the applicant’s brother died in 2010.

    9. (9)

       Judge Bennett noted that the applicant’s spiral into drug dependence and criminality came late in life, namely when Mr Sun was in his late thirties. However, as I have said, his Honour was of the view that the applicant’s involvement in the offending was motivated by financial gain and was not attributable to his grief, depression and drug use.

13. [177]

    I turn then to consider the grounds of appeal

14. [178]

    As the respondent submitted, there was very little evidence tendered in the sentencing hearing that went to the conditions of incarceration or the impact on those conditions of the Covid-19 pandemic. However, the difficulties faced by prisoners during that period are well known to this Court and to sentencing judges. Judge Bennett made a finding of special circumstances, although he did not say much about the conditions of incarceration and the adjustment to the non-parole period was modest.

15. [179]

    His Honour did observe at [104]:

16. [180]

    While I accept his Honour might have said more about this issue, it was not the focus of the evidence or submissions at the sentencing hearing.

17. [181]

    Again, his Honour might have made a more substantial adjustment upon the finding of special circumstances, particularly in view of the partial accumulation on the earlier sentence. However, I am not persuaded that his Honour ignored the existence of the pandemic and its impact on the conditions of incarceration on all inmates held in custody during that time. The observation I referred to above makes it clear that Judge Bennett was aware that the pandemic meant that there were difficulties in prisoners having contact visits.

18. [182]

    Because there was no detailed evidence on the impact of the pandemic on the applicant, I do not accept that his Honour’s failure to refer to the issue in more detail constituted legal error. The sentencing judgment was quite detailed and focused on the issues which were raised, and which were subject to evidence, by the applicant at the hearing.

19. [183]

    I would reject ground 1.

20. [184]

    There is no substance to the argument that Judge Bennett failed to take into account the applicant’s mental health issues of which there was a substantial body of evidence for. On the contrary, his Honour analysed this evidence in considerable detail and accepted parts of it. However, he was not persuaded that it was a significant contributing factor to the offending. He found, as was clearly open on the evidence before the Court, that the applicant’s motive in committing the offences was financial gain.

21. [185]

    I would reject ground 2.

22. [186]

    Again, the sentencing Judge analysed the evidence concerning the applicant’s experiences in custody including that he was subject to at least one assault and that he asserted he was stood over by other prisoners. However, he found the evidence (which was largely based on the applicant’s reports to others) was contradictory. His Honour made the following observations about the applicant’s problems in gaol:

23. [187]

    Putting aside the “tension” in the reporting, to adopt the expression employed by counsel for the respondent, the respondent also noted that the applicant chose to leave protective custody. When he consulted with Mr Watson-Munro, the psychologist who prepared the report for sentencing, the applicant was a mainstream prisoner. That is, he was not in protection.

24. [188]

    Furthermore, his Honour was required to analyse the applicant’s claims alongside the fact that his defence at the trial was based on his evidence that he was stood over by Witness A and that he acted under duress. That assertion was rejected both by the jury and by the sentencing Judge.

25. [189]

    Insofar as Judge Bennett accepted the evidence, for example when it was supported by the records of Lithgow gaol, his Honour took the matter into account.

26. [190]

    I would reject ground 3.

27. [191]

    Ground 4 complains of the degree of notional accumulation within the aggregate sentence. The basis of the complaint is that the six separate incidents of supply were all part of the one criminal enterprise and sequence of events. This is, as far as it can be taken, true. There was only a small temporal gap between the two transactions which were rolled up into count 1 (4-10 September 2018) and the four transactions that encompassed the ongoing supply offence (17-26 September 2018).

28. [192]

    The indicative sentences were 4 years for count 1 and 6 years and 3 months for count 2. This means there was a degree of “notional accumulation” of 7 months to produce the aggregate sentence of 7 years.

29. [193]

    The applicant submitted that he was “punished twice for the same conduct” because the “s 25A offence had as part of its factual matrix two additional supplies” [being those which were rolled upon into count 1]. There is no merit to the applicant’s contention. It is true that the six transactions were all part of the same sequence of events, involved similar criminality and, in that sense, were part of a connected “factual matrix”. It is also true that it would have been open to the prosecuting authority to charge the six discrete transactions as particulars of one count of ongoing supply. However, there was a slight factual distinction in that Witness A ceased to be an intermediary after the first two transactions.

30. [194]

    More importantly, as the respondent submitted, the question was whether the sentence for the second offence could encompass the criminality of both offences. It was open to his Honour to conclude, as he obviously did, that it could not. Count 1, as charged, involved two additional transactions by which around two ounces of methylamphetamines was sold for financial gain. Further, Judge Bennett quite correctly made the two indicative sentences largely (and notionally) concurrent.

31. [195]

    I would reject ground 4.

32. [196]

    Ground 5 essentially complains about the commencement date of the sentence.

33. [197]

    There was a complication involved in choosing the commencement date because the applicant breached parole and his parole was revoked. Between his arrest and the date of sentence, he was in custody for a period which was referable both to the present offences (for the period bail was refused) and for the earlier commercial supply offence (for which he was serving the balance of parole). The applicant cited a portion of his Honour’s remarks on sentence but the whole passage must be considered:

34. [198]

    His Honour correctly stated the relevant principles. The respondent pointed out that his Honour was called upon to make a discretionary judgment. Accordingly, before this Court could properly intervene, the applicant must demonstrate that his Honour took into account extraneous considerations, failed to consider relevant matters, mistook the law or the facts, or that the decision was so unreasonable as to bespeak some kind of latent error. [9] No such error is demonstrated. It was not known whether the applicant was likely to be, or would have been, granted parole between the period of his arrest (and the revocation of parole) and the date that the earlier sentence would have expired. Judge Bennett correctly stated the latest date upon which the sentence he imposed could have commenced (that is, 23 January 2021).

35. [199]

    His Honour appreciated, and considered, the various matters relevant to the exercise of the discretion, including the onerous conditions of bail, and settled upon 23 November 2020 as the appropriate commencement date. That was not a generous decision from the applicant’s perspective. Judge Bennett could have selected a date several months earlier and not fallen into error. That is particularly so, given the modest adjustment made as a result of the finding of special circumstances. However, these were discretionary judgments, and his Honour did not fall into the kind of error which would enable this Court, in the proper exercise of its strictly appellate function, to intervene.

36. [200]

    Ground 5 must be rejected.

37. [201]

    The final ground of appeal concerns the drug proceeds order made pursuant to s 29 of the Confiscation of the Proceeds of Crime Act 1989 (NSW).

38. [202]

    All relevant formalities of the Act, and all of the statutory pre-requisites, were fulfilled. The only issue raised on the appeal concerned the finding of fact that the applicant derived the benefit which was the subject of the order. The applicant argued that it was not open to his Honour to make this factual finding, essentially because he (the applicant) was not present at the time of the relevant transaction. However, all of the evidence pointed to the applicant as being behind the transaction, not Ms Han, and there was evidence from the officer in charge of the investigation that he believed the applicant had derived the monetary benefit of $22,620 (20 dollars more than the final order) from the transaction. His Honour presided over the trial and was well seized of the issues, the credibility of the witnesses, and the nature of the relationship between the various parties. It is not unusual for the person who organises a drug deal to absent themselves from the transaction when the drugs and money are exchanged.

39. [203]

    I would not interfere at this distance with his Honour’s finding of fact and would also reject ground 6.

40. [204]

    I would grant leave to appeal against the sentence but dismiss the appeal.

Orders

1. [205]

   For those reasons, I would make the following orders:

   1. (1)

      If necessary, grant leave to appeal against conviction.

   2. (2)

      Dismiss the appeal against conviction.

   3. (3)

      Grant leave to appeal against the sentence.

   4. (4)

      Dismiss the appeal against the sentence.