Queensland’s highest court has ruled that a Brisbane man was denied the right to a fair trial for a serious indictable offence by a jury of 12 peers in a “small regional town” almost a year ago.
The Queensland Court of Appeal in Brisbane this week set aside the conviction and ordered a retrial in the District Court for a man, identifiable only as SDL, to answer a charge of maintaining a sexual relationship with a child over a six-year period between 2011 and 2017.
The court was told SDL had been convicted of the offence after a three-day trial in the small Central Queensland town of Emerald in March last year, but that there had been a miscarriage of justice when he was denied the right to be tried by a jury of 12 people.
Justice Debra Mullins, in a written eight-page decision, said SDL appealed his conviction on two grounds, the main one being that he suffered a miscarriage of justice when the presiding trial judge discharged one juror and proceeded to verdict to with only 11-jurors.
“There are two grounds of appeal,” Justice Mullins said. “The first is that a miscarriage of justice occurred due to the learned trial judge discharging a juror and proceeding with a jury of 11.
“Before the jury was empanelled, (SDL’s) trial counsel raised with the trial judge that (SDL) recognised the names of 11 members of the panel and requested the trial judge to excuse those persons from the trial.
“The trial judge declined to do so and left it to counsel to challenge for cause. Of those potential 11 jurors who had already been identified by the appellant, 10 were challenged for cause. The eleventh person on the list was ultimately not challenged for cause and was empanelled as juror number 4.”
The court was told that shortly after the trial commenced the prosecution requested the jury be discharged and a new panel chosen when they learned that SDL recognised Juror 4 as the brother of an associate.
Justice Mullins said: “The trial judge raised the possibility of proceeding with a jury of 11 members only after discharging juror number 4.
“(However) the prosecutor raised … concerns that it was early in the trial and (SDL) had a right to a trial by 12 jurors. That was also the stance of (SDL’s) trial counsel who joined in seeking the discharge of the jury.
“The trial judge then considered that the size of the pool may not be sufficient to provide a fresh panel for a new trial, if those who had been challenged for cause and the present jury members were excused from the pool.
“Juror number 4 was brought into the courtroom (in the absence of the other members of the jury) for the purpose of the trial judge asking some questions about his knowledge of (SDL). Juror number 4 said he did not believe he knew (SDL and) did not believe there was any reason why he could not be impartial.”
The Court of Appeal was told the trial judge then incorrectly made the decision to dismiss Juror 4 and allowed the remaining panel of 11-jurors to continue and later deliver a verdict of guilty.
Justice Mullins said: “The trial judge took into account that (SDL’s) trial had only just started, but considered there would be additional expense or delay arising from the trial being transferred to the larger regional centre.
“It was apparent to the trial judge that juror number 4 had no personal acquaintance or knowledge of (SDL and) the jury had been instructed not to discuss the case with anybody else, so the trial judge should have proceeded on the basis that juror number 4 would not have been discussing the case with his brother who was the associate of (SDL).
“The mere fact that juror number 4 had a brother who was an associate of (SDL) was not a sufficient connection in the circumstances to give rise to an apprehension by a fair-minded lay observer that the juror might not bring an impartial mind to the question of whether the appellant was guilty or not guilty of the charge.”
The court, in a unanimous 3-0 decision, found there had been a miscarriage of justice in denying SDL the right to be tried by a jury of 12 people, that his appeal should be allowed, the conviction set aside and a retrial ordered.
Justices Ann Lyons and Philip Morris agreed with Justice Mullins’ orders.
Read the decision.
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