SUPREME COURT OF QUEENSLAND

CITATION:	R v Hurlstone [2023] QCA 15	
PARTIES:	R
v
HURLSTONE, Victor
(appellant)	
FILE NO/S:	CA No 53 of 2022
DC No 159 of 2022	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 25 February 2022 (Jackson KC DCJ)	
DELIVERED ON:	14 February 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	4 November 2022	
JUDGES:	McMurdo and Dalton and Flanagan JJA	
ORDER:	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the jury returned verdicts of guilty on two counts of assault, one count of grievous bodily harm and one count of rape but returned verdicts of acquittal on two separate counts of rape – whether the verdicts of acquittal were an affront to logic or commonsense – whether the verdicts of acquittal showed the jury was confused or had compromised – whether the difference between the verdicts of guilty and verdicts of acquittal had a rational basis in the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – JURY – NUMBER OF JURORS – where on day 5 of trial, one juror indicated she was in pain and could not continue – whether trial judge erred in discharging juror who became incapable of continuing
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where trial judge determined to proceed with 11 jurors after discharging 1 juror – whether miscarriage of justice occurred in proceeding with and taking a verdict from 11 jurors
Jury Act 1995 (Qld), s 33, s 67, s 57, s 59A
BG v The Queen (2012) 221 A Crim R 215; [2012] NSWCCA 139, distinguished
R v Blackmore [2016] QCA 181, cited
R v CX [2006] QCA 409, followed
R v Goodson [1975] 1 WLR 549, considered
R v Latimer [1990] OJ No 401, considered
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, followed	
COUNSEL:	K V Juhasz for the appellant
C W Wallis for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	McMURDO JA:  I agree with Dalton JA.
[2]	DALTON JA:  This is an appeal against one of four convictions entered after a jury trial.  The appellant pleaded not guilty to an eight count indictment on the first day of his trial, 21 February 2022.  The facts upon which the eight counts were based took place in a continuous course on 2 September 2016.  They were acts of violence and sexual violence by the appellant upon his girlfriend.
[3]	The Crown case was that the complainant had been in a sexual relationship with the appellant for three or four months, and lived at his house.  A week before the offending she had left his house and was staying with a neighbour across the road.  On the evening of the offending he called out to her to come back home.  He was apparently affectionate towards her, and some consensual sexual activity took place until she began to object and then asked the appellant to take a shower.  The Crown case was that this caused the appellant to become angry and he kicked her, knocking her off the bed and onto the floor (count 1, unlawful assault).  He then went to the bathroom and there was the sound of water running.  The appellant returned to the bedroom, grabbed the complainant by the hair and dragged or manhandled her into the bathroom.  He forced her, or she fell, into the bath, whereupon he forced her head under water (count 2, grievous bodily harm).  After the offending the complainant was taken to hospital and found to have water in one of her lungs.  She suffered from pneumonia so severe she required ventilation.
[4]	The appellant continued by grabbing the complainant’s hair, dragging her out of the bath and punching her to the body and face (count 3, unlawful assault occasioning bodily harm).  The appellant then forced the complainant to her knees and forcibly penetrated her mouth with his penis to the point of ejaculation (count 4, rape).  The appellant then forcibly moved the complainant back to the bedroom where he sat astride her on the bed, striking her chest (count 5, assault occasioning bodily harm).  He is then said to have again forced his penis into her mouth (count 6, rape).  He then struck her around the head and back (count 7, unlawful assault causing bodily harm).  Lastly he anally raped her (count 8, rape).
[5]	The trial was not without its complications.  The complainant had died before trial (not of the injuries she received from the appellant).  Under the Evidence Act 1977 (Qld) the Crown proved recordings of her voice made by police officers who attended after the offending, and a written statement made by the complainant to police once she had sufficiently recovered from pneumonia to speak to them.  As well as the obvious difficulty that the complainant could not give oral evidence, the complainant had a long history of drug abuse, and prescription drug use, and she suffered from schizophrenia.  The oral statements given to police on the day of the offending were not entirely logical and coherent.
[6]	Counts 4, 6 and 8 on the indictment were violent rapes occurring one after the other.  Between these rapes the Crown case was that the appellant violently struck the complainant and these strikings were charged as unlawful assaults causing bodily harm at counts 5 and 7 of the indictment.  On day four of the trial, immediately before he addressed the jury, the prosecutor asked for the return of the indictment and entered a nolle prosequi in relation to counts 5 and 7.  There was no explanation given by the prosecutor for this course.  On appeal we were told it was likely taken because the assaults between the rapes were not shown on the evidence to be particularly distinct from the course of violent sexual offending which the Crown relied upon as the basis for the rapes themselves.
The jury
[7]	Covid-19 was making a resurgence at the time of the trial, so 12 jurors and two reserves were empanelled.  At the beginning of day four of the trial, before addresses, one juror was excused as family members had tested positive for Covid-19.  The first reserve juror became part of the jury.  After the summing-up, the second reserve juror was excused; that was at about 1.30 pm on day four.  At 4.16 pm that day the judge consulted the jury about what they would prefer to do.  They said that they would prefer to break and come back at 10.00 am in the morning.  The court adjourned on that basis.
[8]	At 12.23 pm on day five of the trial, a Friday, the court resumed in the absence of the jury.  Two communications had been received from the jury.  The first was: “We require advice on how to proceed with count 8 as we are not able to reach a unanimous vote”.  The second was: “Juror 11 is feeling unwell and may need to be excused”.  The matter was discussed and the court adjourned briefly so that defence counsel could take instructions from her client.  After doing so, she expressed the view that it would be best to establish whether there were unanimous verdicts on all counts but count 8, and to ascertain how sick juror 11 was.  Defence counsel asked that these matters be clarified, and that she then be able to take further instructions from her client.
[9]	The jury was brought in at 1.16 pm.  They had reached a unanimous verdict on the five counts other than count 8.  Of her condition, juror 11 said, “It’s not sick, it’s painful”.  The judge asked whether they could “go on for a little while yet?” and juror 11 enquired, “what’s a little while?”  The judge replied it may be a short while and juror 11 replied, “yeah”.  The jury was sent back to their room.
[10]	The jury was brought back to the courtroom at 1.22 pm, and the trial judge said that he would ask them to try for a little longer “to listen to each other’s point of view on that other count on which you’re currently unable to agree, and explore whether, having done that, you might be able to come to a unanimous position on it. … But please, juror 11, let me know if it gets to the point where you think you simply cannot go on.”
[11]	At 2.17 pm the court resumed to discuss another note from the jury:
“1.	Juror 11 is feeling unwell and needs to go home.
2.	We are closer to reaching a unanimous vote.
3.	Some jurors need to move their cars.”
The last request is to be interpreted as relating to the need to attend to metered parking requirements.
[12]	The prosecutor suggested that an option to be canvassed was whether or not juror 11 might be in a position to continue on Monday morning.  Defence counsel said that ideally she wanted to see 12 jurors remain, and indicated that 11 jurors created a “significant uncertainty, and I would probably see my client being, you know, prejudiced …”.  She agreed with the prosecutor’s submission that maybe the matter should be adjourned until Monday.  She said, however, that she had commitments in the Federal Circuit and Family Court on Monday.  The judge said that he had other criminal matters scheduled for Monday.  Discussions were had as to whether or not others could take over the Monday matters, and there was a brief adjournment.
[13]	When the court resumed, defence counsel reported that it was unlikely that anyone could take over her matters for Monday and the judge said that he could not obtain an answer as to whether the matters before him on Monday could be reassigned.  The judge said that it was his view that a verdict ought to be taken on the five counts upon which the jury were unanimous, and both counsel agreed with this.  The matter was stood down for another short time while defence counsel obtained instructions.  At 2.41 pm she said that her instructions were to ask that the jury give verdicts on the counts on which they were unanimous, and for the trial to proceed thereafter with 11 jurors.
[14]	At 2.42 pm the jury returned guilty verdicts on counts 1, 2 and 3; verdicts of not guilty were returned on counts 4 and 6.
[15]	The trial judge then said:
“All right.  Thank you.  Juror 11, thank you in particular and sorry to have kept you here when you’re feeling unwell.  So I’ll let you go.  Well, in fact, nothing else, counsel, I should do now?  I let the jury go out and juror 11 can leave?”
[16]	The prosecutor replied in terms encouraging the primary judge to make formal orders and give some reasons.  He said:
“Well, only that in letting juror number 11 go your Honour would have to have formed the view, of course, that juror number 11 because of illness is not able to continue and she would be formally discharged such that---”
[17]	The primary judge replied as follows:
“HIS HONOUR:  Yes yes.
MR FINCH:  Yes.
HIS HONOUR:  Yes.
MR FINCH:  Thank you, your Honour.
HIS HONOUR:  Yes.  I’ve – you can take it I’ve found all of that and proceeded under section 56 of the Jury Act.
MR FINCH:  Yes.  That being so, the remaining members of the jury can continue their deliberations ---
HIS HONOUR:  Yes.
MR FINCH: --- on count 8.
HIS HONOUR:  So that’s what’s going to happen for those of you who remain.  We’re going to ask the remaining 11 of you to keep trying, please.  So I’ll let you all go with the bailiff now.”
[18]	The jury left the courtroom at 2.46 pm.  At 3.45 pm the court reconvened, as the jury had reached a verdict.  The verdict was guilty on count 8.
Grounds of appeal
[19]	By an amendment with leave at the commencement of the hearing, there were two grounds of appeal.  The first was that the verdict on count 8 was inconsistent with the acquittals on counts 4 and 6, rendering it unreasonable.  The second ground was that there was a miscarriage of justice occasioned in proceeding with, and taking a verdict from, 11 jurors.  During the hearing of the appeal, counsel for the appellant was given leave to further amend the notice of appeal so as to challenge the decision to discharge juror number 11.  Written submissions as to this new ground were received after the oral hearing.
Inconsistent verdicts
[20]	It is necessary to set some more details of the offending, and to identify the origins of the evidence from the complainant.
[21]	A neighbour of the appellant gave evidence that on the evening of 2 September 2016 he had returned home to find the complainant in wet clothes in the appellant’s yard calling out for help.  She was not able to get out, because the gate was locked.  He could not help her, but called to his grandsons, who did.  He described the complainant as wearing “soaking wet” clothes and having “a bit of blood”.  She told him that she had been thrown into the bathtub.  He rang triple 0.
[22]	Police and ambulance attended.  A Constable Hendricks recorded a relatively short, and somewhat confused, interaction with the complainant on his body-worn camera, which recording did not seem to be of the greatest quality.  The conversation he had with the complainant was interrupted by another police officer, and also an “unidentified male” who seems to have been an ambulance officer.  Nonetheless, from this recording it can be discerned that the complainant said the appellant grabbed her, punched her, was trying to kill her, put her head in a bucket of water so she could not breathe; had anal sex with her, punched her in the head, and threw her into the bath with all her clothes on.  He then pushed her underwater and tried to drown her again.  The constable remarks that the complainant was in wet clothes at the time of this recording.
[23]	A further recording was made by a female officer, Constable McLeod, on her body‑worn camera.  In it the complainant can be heard saying that the appellant threw her into the bath – she was gasping and could not breathe.  The complainant says that, “he did that in the bucket first, put me in the bucket, first.  He just did it to teach me a lesson and he got me in the bath.  He wanted me to suck him on the dick. … I wanted him to have a shower first. … That’s when he just started punching me.  He pulled pants down, and just, really hurt, the backside.”  She said he was kicking her.
[24]	A Constable McDonald says to her that she had blood coming from her nose; a big swelling on her cheek and that she was going to have a black eye.  The complainant said that the appellant punched her several times to the face.  The complainant said that the appellant kicked her off the bed after she told him to have a shower.  She says that she was going to have bruises all over her on the side of her body.  She complained that every breath she took hurt.  Constable McLeod questioned the complainant for some time, trying to obtain a comprehensive account of what went on.  The complainant made other allegations and gave further information which are not the subject of charges.  The complainant repeated that the appellant had sex with her “backside” and clarifies on questioning that he inserted his penis in her anus and she screamed.  She says that the appellant ripped out big chunks of her hair.
[25]	Constable McDonald gave evidence that the complainant’s clothing was wet and that her shirt was ripped.  He observed redness and swelling around her face.  Photographs were tendered.  The same officer gave evidence that the floor in the hallway between the bedroom and bathroom was wet, and that there was water all over the bedroom and bathroom floors, including carpet.  Photographs were tendered.  The bath was full of what the officer described as dirty water and there was a bed sheet in the bath.  There was hair found in the bath.  A photograph was tendered.  The bedding was wet in the bedroom adjacent to the bathroom.  Photographs were tendered.
[26]	A medical examination was made of the complainant’s perianal and anal area on 7 September 2016.  There was no evidence of bruising or swelling or lacerations.  The medical evidence was that this said nothing about whether or not there had been consensual or non‑consensual penetration five days earlier.  Swabs were taken from the appellant’s genitals, but the DNA samples from them were either inconclusive or not probative of the complaints; essentially that evidence was neutral.
[27]	The complainant was taken to hospital on 2 September 2016.  Her condition deteriorated, she developed pneumonia and had to be intubated and ventilated whilst in an induced coma.  Police took a written statement six days later; it was taken at the hospital because the complainant was still not well enough to be released.
[28]	The written statement taken in hospital was short, but much more organised than the versions given in the body-worn camera recordings.  The complainant says that she and the appellant were engaging in some consensual sexual activity when he requested that she perform fellatio.  She said that he should have a shower or bath first.  This caused him to get angry, kick her in the back and knock her from the bed to the floor.  He went to the bathroom, and she put her clothes back on.  She remembers seeing water all over the carpet in the hallway.  The appellant then came into the bedroom, grabbed her by the hair and dragged her to the bath.  He threw her into the bath full of water with her clothes on.  She remembered falling backwards and that her legs were hanging over the edge of the bath.  She said that the appellant then grabbed her by the ears and held her head underwater.  She could not breathe and thought she was going to die.
[29]	After that the statement records that the appellant pulled the complainant up by her hair so that she was on her knees and punched her with his fists to the body and face.  She says that he grabbed her by the hair with one hand and with his other hand grabbed his penis and put it “in my face”.  He forcibly pushed his penis into her mouth and ejaculated.
[30]	The appellant then dragged the complainant from the bath by her hair and threw her onto the bed.  He continued to punch her with his fists to her body.  She was screaming in pain and calling for help.  He sat on top of her chest.  She could not move and had trouble breathing.  He again forcibly inserted his penis into her mouth.  After that he punched her a few more times to her upper back and head.  She was feeling dizzy and her whole body hurt from being punched so many times.  After that he pulled down her clothes and had anal sex with her.  When she was able to leave, she went outside and called for help.  She asked the neighbours to call police.  She did not remember much after that.
[31]	As to the law about inconsistent verdicts, in R v CX Jerrard JA stated:
“1.	Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.
2.	Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?
3.	Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.
4.	The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.
5.	Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.
…” – (citations omitted).
[32]	In this case the jury acquitted on the two counts of oral rape.  The factual basis for these counts was given in the complainant’s written police statement, but not mentioned by the complainant when she spoke to police on the evening of the offending.  This was despite her giving detail of the other offences alleged by the Crown, and despite Constable McLeod, in particular, trying very hard to extract from the complainant all the details of the offending when she spoke to the complainant on the evening of the offending.  This is one obvious way in which the evidence supporting counts 4 and 6 was different to, and weaker than, that supporting the other counts.  The written statement was given six days later, and after the complainant had been very ill indeed.  It was written and, compared to the information on the body‑worn camera recordings, very organised.  The jury may have thought that what was on the body‑worn camera recordings was contemporaneous and genuine, and may have had doubts about the two offences not mentioned on the recordings, but described in the written statement.  Because the complainant was dead by the time of trial, the jury only heard her voice describing the subject matter of the other counts; in relation to counts 4 and 6, there was only a written statement.
[33]	In these circumstances the verdicts of acquittal on counts 4 and 6 are not an affront to logic or commonsense.  They do not suggest that the jury was confused or had compromised.  To the contrary, the difference between the verdicts of acquittal on counts 4 and 6 and the verdicts of guilty on the other counts has a rational and obvious basis in the evidence.
Miscarriage of justice
[34]	The starting point for any consideration must be s 33 of the Jury Act 1995 (Qld).  That section provides: “The jury for a criminal trial consists of 12 persons”.
[35]	Secondly, the decision to discharge a juror is a separate decision from a decision to proceed with less than 12 jurors.  Sections 56 and 57 of the Jury Act provide as follows:
“56	Discharge or death of individual juror
(1)	If, after a juror has been sworn—
(a)	it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial; or
(b)	the juror becomes incapable, in the judge’s opinion, of continuing to act as a juror; or
(c)	the juror becomes unavailable, for reasons the judge considers adequate, to continue as a juror;
the judge may, without discharging the whole jury, discharge the juror.
(2)	If a juror dies or is discharged before the trial begins, the judge may direct that another juror be selected and sworn.
57	Continuation of trial with less than full number of jurors
(1)	If a juror dies or is discharged after a trial begins, and there is no reserve juror available to take the juror’s place, the judge may direct that the trial continue with the remaining jurors.
(2)	However, a civil trial can not continue with less than 3 jurors and a criminal trial can not continue with less than 10 jurors.
(3)	The verdict of the remaining jurors has the same effect as if all the jurors had continued present.”
Decision to discharge juror 11
[36]	The decision to discharge a juror is not one to be made lightly.  In Wu (above) Gleeson CJ and Hayne J said:
“It is plainly desirable that a judge exercising the power to discharge a juror and the power to proceed with a jury of less than twelve members does so in unmistakable terms.  Ordinarily that will be done by the trial judge making two separate orders: an order discharging the juror and an order that the trial proceed before the jury constituted by the remaining jurors. …
The decision to discharge a juror may require consideration of difficult questions of fact and degree. …” – [8]-[9].
[37]	In the same case Callinan J said:
“… It is appropriate that a trial judge, confronted with a situation in which he or she has to make a decision about a reduction in the number of jurors not do so hastily, without as full an inquiry as is practicable and reasonable, and without making explicit orders as [the NSW analogue to s 56] requires, as to the reduction in number and the continuation of the trial with the reduced number. …” – [103].
[38]	Lastly, McHugh J said:
“But no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than twelve is a denial of a long-standing right of those tried for serious crime under the common law system. Given the mandatory terms of [the NSW analogue to s 33] of the Jury Act, some positive reason, beyond the death or discharge of a juror, must exist for the judge to make the order that the trial continue with less than twelve jurors.
…
Furthermore, although two stages are involved in the making of a [the NSW analogue to s 56] order, the first stage cannot always be separated from the second stage. Before the judge discharges a juror for illness or ‘any other reason’, the judge will usually need to consider whether exercising the power of discharge has implications for the continuation of the trial with the remaining jurors. In the case of the temporary illness of a juror, the proper course will ordinarily require the temporary adjournment of the trial rather than the discharge of the jury and the making of the [NSW analogue to s 56] order.” – [28]-[30].
[39]	Section 56 of the Jury Act gives a trial judge power to discharge a jury in widely defined circumstances.  By 2.17 pm on the fifth day of trial, [11] above, the power had arisen in the trial judge in terms of s 56(1)(b): juror 11 was incapable of continuing to act as a juror.  The reason was that the juror was in pain.  She reported this, and the judge accepted it; he remarked soon after 1.17 pm on day five that juror 11 “didn’t look very comfortable”.
[40]	The power to discharge the juror having arisen, the question is whether or not the trial judge erred in exercising it to discharge juror 11.  I analyse this question in the traditional terms of appellate review of a discretionary decision, according to the principles in House v The King.  No reasons were given for the discharge of the juror which is undesirable from the perspective of this Court, but also from the point of view of the defendant, and the public, understanding what was occurring during the trial: BG v The Queen.
[41]	It was day five of the trial, and the jury had been considering the verdict for around five hours.  It was nearly 3.00 pm on a Friday afternoon.  The jury had reached a decision on five of the six counts before them, and while they had indicated they were struggling to reach a unanimous verdict on the last count, their most recent communication in that respect was that they were “closer to reaching a unanimous vote”.  Juror 11 had told the trial judge that she was not sick, but was in pain.
[42]	From the remove of this Court, it seems to me that the better decision in all those circumstances would have been to let the entire jury go home for the weekend and start deliberating again on Monday morning.  As part of that, consideration should have been given to making enquiries of juror 11 as to whether she thought she would be in a position to continue on Monday morning.  That may have influenced the decision-making process.
[43]	It seems that issues as to defence counsel’s availability on Monday, and the judge’s own schedule for Monday, influenced the decision to discharge juror 11 and continue with 11 jurors on Friday afternoon.  In Wu, Gleeson CJ and Hayne J did accept that the potential for interruption to other criminal work of the court was a relevant consideration in exercising the discretion to discharge a juror and continue with less than 12 jurors – [19].  Such a consideration must be weighed with all the facts in any given case.  In my view, in this case, priority ought to have been given by both counsel and the trial judge to properly finalising the jury’s deliberations.  If it were proper for the trial to run on until Monday, then that ought to have happened, no matter that other arrangements had been made on the assumption that it would not do so.
[44]	Having said that, the discretion was one which rested with the trial judge.  While no reasons were given for the decision to discharge juror 11, various matters were discussed with counsel, including whether or not the jury ought to be kept intact and resume deliberating on Monday.  There was no certainty that juror 11 would have been able to continue on Monday.  There was also uncertainty created by Covid-19: there was a possibility that had the matter been adjourned until Monday, another juror might have been affected either through catching Covid-19 themselves, or having a family member contract Covid-19.
[45]	Another relevant consideration was that the appellant’s counsel asked the judge to take the course he did.  The appellant’s counsel asked the trial judge to take that course before the jury returned verdicts on the five counts they agreed upon.  I cannot regard it as a tactical choice taken for a forensic advantage.  
[46]	Lastly as to the exercise of the discretion, at the time there was no indication that the failure of the jury to reach a unanimous verdict on the final count was as a result of juror 11’s dissent.  
[47]	In these circumstances, having regard to the test in House v The King, I am not prepared to find that the trial judge’s discretion to discharge juror 11 miscarried.
[48]	For completeness I would add that no point was raised on appeal as to the propriety of the trial judge taking five verdicts from the jury of 12 before discharging juror 11 with a plan to allow a verdict from the remaining 11 jurors.  There was no dissent from that course at trial.
Proceeding with 11 jurors
[49]	Neither the primary judge, nor counsel appearing before him, treated this as a separate decision, requiring separate consideration from the decision to discharge juror 11 – Wu, above, [6] and [28].  Notwithstanding this, it was not part of the appellant’s case in this Court that the primary judge erred in deciding to proceed with 11 jurors after he had discharged juror number 11.  Instead, the appellant contends that a miscarriage of justice occurred without error on the part of the trial judge.  The argument was based on the analysis in BG v The Queen (above):
“On my analysis of the cases, there are three categories of case in which the question arises whether the trial should continue with the remaining jurors when one juror has been discharged. These are:
(1)	Where there is no indication how the discharged juror would have voted;
(2)	Where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and
(3)	Where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal.
By and large, the effect of the authorities is that it is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors if the case falls into either the second or the third categories. In such cases, there is a risk of a substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.” – [103]-[104], per Adamson J, with whom the other members of the court agreed.
[50]	The appellant’s argument was that this case fell within the third category identified by Adamson J because the jury returned its verdict so quickly after juror 11 was discharged.
[51]	The transcript records that juror 11 was discharged at 2.46 pm on Friday afternoon, and that the jury retired to consider its verdict again.  The bailiff announced in court at 3.45 pm that the jury had reached a verdict.  This was, at most, a period of just under an hour.  There had also been a period of about 20 minutes deliberation after the jury’s 2.17 pm note, before they delivered their first five verdicts.
[52]	There was an indication in the jury note received at 2.17 pm, that some of the jurors needed to move their cars.  There was no evidence before this Court that that did in fact happen, but had it happened, the time the jury spent deliberating after delivering their first five verdicts, might have been as short as half an hour.
[53]	The question is whether or not there is an inference fairly open from the jury having given a verdict on count 8 so soon after juror 11 was discharged, that it was juror 11 who was the sole dissentient in relation to count 8.
[54]	In R v Goodson a jury spent only five minutes deliberating after the discharge of a juror.  In R v Latimer a jury in Ontario returned a verdict 25 minutes after one juror was excused.  In both cases new trials were ordered.
[55]	Even if the jury did separate for some time while some of the jurors went to move their cars, it seems that there was still half an hour of deliberation before the verdict on count 8 was agreed upon.  There had been an additional period of about 20 minutes deliberation after the 2.17 pm note was received by the court.  The jury had by then been deliberating for about six hours over two days.  The jury had experienced difficulty coming to a unanimous verdict on count 8, but had reported at 2.17 pm that they were closer to a unanimous vote than they had been.  That report of progress in their deliberations is an indication against juror 11 having a view which was the sole obstacle to a unanimous verdict.  In all the circumstances, I am not prepared to infer that juror 11 was the sole dissenting juror, and that it was her discharge which enabled the jury to reach a verdict of guilty on count 8.  That is, I am not prepared to infer that, with the discharge of juror 11, the appellant lost his chance of an acquittal on count 8.  In my view, the appeal should be dismissed.
[56]	Although it is strictly unnecessary, given my conclusion above, I wish to say something about an argument advanced by the Crown on appeal.  The Crown argued that because the jury were close to the statutory time when a majority verdict could have been received then, “even if juror 11 was the sole dissenter, a majority verdict of 11 would have been properly received” had juror 11 stayed on the jury.  In those circumstances it was argued that the appellant was not denied a chance of acquittal, but was only denied “the opportunity to wait for a majority verdict”.  I reject this argument.  If an inference could be drawn that juror 11 was the sole dissenter, her influence in the jury room during the continued deliberations may well have persuaded others on the jury to her way of thinking before the time came for a majority verdict.  In fairness, I think the Crown conceded the difficulty associated with this argument in written submissions filed after the hearing.
[57]	FLANAGAN JA:  I agree with Dalton JA.