1. The applicant submitted that the trial miscarried as a result of a fundamental procedural irregularity, in that the judge excused a member of the jury panel after the selection of the jury had commenced. It was submitted that the judge had no power to do so.
2. The jury panel had assembled in the courtroom and the judge had provided the panel members with the information required by s 32 of the Juries Act 2000. A number of members of the panel sought to be excused at that point and were so excused.
3. Empanelment of the jury then commenced, the judge's associate randomly selecting cards from the empanelment box and calling the relevant panel member's number. As each potential juror was called, the applicant, assisted by his solicitor, decided whether to use one of his three peremptory challenges under s 39 of the Act. He had used one such challenge, and four panel members had been empanelled, taking their seats in the jury box, when the associate selected the card of panel member 24 from the box and called her number. Panel member 24 immediately sought to be excused, in the following exchange:

JUROR 24: Can I be excused? I know it's too late.

HER HONOUR: Sorry, you want to be excused?

JUROR 24: Yeah, sorry. I recognise the - - -

HER HONOUR: All right. Do you want to tell me or do you want to write your reason down?

JUROR 24: No, I - I recognise the accused.

HER HONOUR: You recognised the accused. Just take a seat, madam.

JUROR 24: Sorry.

HER HONOUR: Counsel satisfied with what's taken place doesn't constitute an irregularity? Take a seat, madam, you're excused.

JUROR 24: Sorry.

[PROSECUTOR]: The prosecution agree she should be excused.

HER HONOUR: I have excused her. Has what occurred doesn't constitute an irregularity in your - - -

[PROSECUTOR]: No, Your Honour.

HER HONOUR: Mr [defence counsel]?

[DEFENCE COUNSEL]: No, Your Honour.

HER HONOUR: Yes, all right, thank you. She's excused, yes.

(Jury empanelment continues.)

ASSOCIATE: We have 12 jurors, Your Honour.

1. It can be seen that the judge excused the panel member without inviting submissions from counsel. She then asked counsel whether what had taken place amounted to an irregularity and counsel indicated their view that it did not. The empanelment process continued until a jury of 12 was selected.

1. The applicant submitted that the process adopted contravened that mandated by ss 32 and 36 of the Juries Act 2000. Those provisions are in the following terms:

32 Information for panel

(1) The court must inform the panel, or cause them to be informed, of the following information -

(a) the type of action or charge;

(b) the name of the accused in a criminal trial or the names of the parties in a civil trial;

(c) the names of the principal witnesses expected to be called in the trial;

(d) the estimated length of the trial;

(e) any other information that the court thinks relevant.

(2) The court must then call on persons on the panel to seek to be excused from jury service on the trial.

(3) The court may excuse a person from jury service on the trial if the court is satisfied that the person -

(a) will be unable to consider the case impartially; or

(b) is unable to serve for any other reason.

(4) Unless the court otherwise orders, a person excused from jury service under subsection (3) must return to the jury pool at the completion of the swearing in of the jury, and may be selected or allocated to a panel in another trial.

...

36 Procedure for selecting jury in criminal trials

(1) After the procedure set out in section 32 has been completed in a criminal trial, the proper officer must select persons from the panel and call out -

(a) the identifying number and occupation of those persons; or

(b) if a direction has been made under section 30A(2), the name and occupation of those persons and, if there are 2 or more persons with the same name and occupation, their identifying number -

until the required number, after allowing for all challenges for cause that have been upheld and each arraigned person's right of challenge under section 39, is selected.

(2) The persons selected are the jury to try the issues in the trial.

1. The applicant submitted that these provisions make clear that the process for excusal must be completed before the selection procedure in s 36 commences. Once that procedure has commenced, the applicant submitted, there is no provision for the court to excuse a panel member and still to empanel the jury from the same panel. The applicant submitted that the only legitimate options for removing a panel member from the panel once the procedure in s 36 has commenced are for the Crown or the person arraigned to challenge for cause under s 37, for the Crown to stand aside the panel member under s 38, or for the person arraigned to use a peremptory challenge under s 39. Otherwise, it was said, the panel member becomes a member of the jury and can only be removed by the judge discharging the panel, after which it would be necessary to recommence the empanelment procedure with a fresh panel.
2. Counsel for the applicant submitted that the provisions set out a comprehensive sequential procedural framework for empanelling a jury. Section 36 provided for challenges to individual potential jurors and commenced with the words 'After the procedure set out in section 32 has been completed', making it clear that the provisions operated sequentially. In turn, s 36(2) provided that, once the process in s 36 was complete, the persons selected 'are the jury'.
3. These provisions were submitted to form part of a larger sequential process, running from before a potential juror even attends court, through to the time of the trial. It was argued that this process addressed various ways in which a person could avoid jury service, while advancing the purpose of the legislation to spread the obligations of jury service equitably across the community and to make juries more representative of the community: s 1. For example, ss 8-12 provide for a person to be excused from jury duty for a period; s 29 provides for a person to be excluded from a jury pool when it is assembled; the jury is then empanelled pursuant to the provisions already mentioned; and jurors may be discharged under s 43 during the ensuing trial.
4. The applicant submitted that it was unclear whether there ever was a common law power for a judge to excuse a juror. Different views on the point were expressed in Abrahams,[8] Cullen[9] and R v Searle,[10] on the one hand, and R v Panozzo,[11] on the other. The Juries Act 1904 had made statutory provision for such a power, on the basis that none otherwise existed. A similar provision was now found in s 12, which applied at an earlier stage altogether.
5. Irrespective of whether a power existed at common law, the applicant submitted, there was no room for the continued existence of such a power after the enactment of the Juries Act 2000. For example, it was submitted that if a common law power to excuse a juror still existed, nothing in the statute enabled such a person to be returned to the jury pool for potential selection in another trial, whereas s 32(4) provides for that course when the statutory power is exercised. This was said to be an anomalous outcome that was inconsistent with the purpose of the statute.
6. More generally, it was submitted, the continued existence of common law powers was inconsistent with the legislative purpose of clarifying the court's powers and providing clear legislative criteria for the exclusion of potential jurors. In particular, s 32(3) would have no purpose if a common law power survived.
7. The applicant submitted that there was a fundamental defect in the constitution of the jury and the irregularity was fundamental to the trial, irrespective of whether there was any impact on the ultimate verdict.[12] The irregularity was said to be fatal to the convictions entered following the verdict of the irregularly constituted jury.[13]
8. The applicant submitted that it is immaterial that neither counsel objected to the process adopted, because an irregularity which relates to the constitution of the jury cannot be waived.[14] The composition of the jury, it was submitted, could have been different if not for the irregularity. If s 32 had been complied with, the card for panel member 24 would not have been in the empanelment box because she would already have been excused.
9. The applicant submitted that it was not possible to assume that the Crown would have stood panel member 24 aside or challenged her for cause.

1. In response, the respondent submitted that there was no fundamental procedural irregularity in the course taken by the judge. It was submitted that the Juries Act 2000 does not prevent the excusal of a potential juror after the process of empanelment has commenced. Even if it did, the respondent submitted that any irregularity was not such as to render the present trial a nullity.
2. The respondent submitted that, if there was any doubt as to whether the common law allowed a judge to excuse a person from serving on a jury, s 2 of the Juries Act 1904, and similar provisions in subsequent Juries Acts, have clearly permitted a judge to exercise such power.[15]
3. The respondent submitted that, in enacting s 32 of the Juries Act 2000, Parliament did not intend to confine the power of a court to excuse a panel member to the period before the proper officer selects the first person's number or name from the empanelment box. It is submitted that s 32 does not limit the powers of the court. The respondent submitted that the better view is that the common law permits the court to excuse a panel member at any stage before empanelment is complete as part of its function of ensuring a fair trial. The respondent acknowledged that different views have been expressed on this question.[16]
4. The respondent observed that s 32 is headed 'Information for panel', rather than 'Power to excuse'. The respondent submitted that the heading is consistent with the provision being focussed primarily on ensuring that, before excuses from the panel members are specifically called upon, the panel is alerted to information that might be relevant to a panel member's ability to consider the case impartially or their being unable to serve for other good reason. The respondent submitted that nothing in s 32(1) prevents a court from excusing a person prior to the panel being informed of these matters, or prior to the panel members being formally called upon to seek to be excused. Nor does it prevent a court from excusing a person after the selection process commences but before the person enters the jury box and is sworn or affirmed as a member of the jury.
5. The respondent relied on s 32(3) as providing a statutory power for the court to excuse a person from jury service if satisfied that the person will be unable to consider the case impartially or is unable to serve for any other reason. As indicated, the respondent submitted that this provision operates at any time before the person enters the jury box and is sworn or affirmed as a member of the jury.
6. The respondent also submitted that, notwithstanding that s 36(1) requires the proper officer to embark on the selection process '[a]fter the procedure set out in section 32 has been completed', this does not mean that the court is prohibited from subsequently excusing a person who is not a juror and who is clearly unable to fulfil that role.
7. The respondent submitted that, once panel member 24 indicated that she recognised the applicant, it was plain in light of the earlier instructions to the panel that she would be excused. Prosecuting counsel and defence counsel agreed that she should be excused and it is evident, the respondent submitted, that if the panel member had not been excused on the court's own motion, the prosecution would have challenged for cause and that challenge would have been upheld. In the circumstances, the respondent submitted that the jury was constituted in accordance with the applicable statutory provisions and there was no serious departure from the central requirements of the law.[17] The respondent submitted that the jurors who tried the applicant were eligible and properly sworn or affirmed and that there were no defects in the process of selecting the jury that had not been able to be made good.

1. The respondent submitted that the judge in the present case exercised either of two statutory powers to excuse panel member 24, namely the power to excuse in s 32(3), and the power in s 12. However, neither of those provisions was available in the circumstances of this case.
2. As to s 32(3), it is plain that the time for exercise of the statutory power is before the process of selection commences. That is apparent from the word 'After' with which s 36 commences. Section 36(1) requires selection to take place after the procedure in s 32 has been 'completed'. It follows that where, as here, the process of selection has commenced, the procedure in s 32 has been completed and the powers the section confers are no longer available. That includes the power to excuse a potential juror under s 32(3).
3. As to s 12, which is a successor provision to s 2 of the Juries Act 1904, it provides for the court to excuse a person from jury service for the whole or part of any jury service period (being the period for which the jury roll is prepared), for a longer period, or permanently. It is evident from its terms that this general power does not extend to the particular situation where a person is excused from jury service for a given trial. Within the context of the statute, that is dealt with instead by s 32(3).
4. No other statutory source of power was suggested. If the judge had power to excuse panel member 24, therefore, that power must derive from the common law.
5. In addressing the issue whether such a common law power exists, the first question is whether, prior to the enactment of the Juries Act 2000, a trial judge, in the exercise of the court's inherent or implied power to ensure that a fair trial is conducted, had the power to stand aside or excuse a person whose name was called from the panel of potential jurors so as to prevent that person becoming a member of the jury.[18]
6. In the leading decision of Searle, to which we will return, Marks and McDonald JJ referred to a number of earlier decisions. The first was that of Lord Campbell CJ, delivering the judgment of the Court of Queen's Bench in Mansell v The Queen.[19] In that case, a person who had entered the jury box declared an objection to capital punishment and was permitted to withdraw from the jury, not having yet been sworn. The Court held that a judge has a duty to prevent the scandal and perversion of justice which would arise from permitting a person unfit to be a juror to serve on a jury.[20] Mansell was followed in other cases, including R v Burns,[21] Abrahams and Cullen. In Burns, Stawell CJ confirmed the power of a judge to 'prevent the scandal which would arise in the administration of justice if a person who was not competent was allowed to act as a juror'.[22]
7. Abrahams concerned another provision of the Juries Act 1928 which required a potential juror's card to be returned to the box, this time after being stood aside by the prosecution: s 67. The Court cited Mansell as authority for the proposition that, where the juries legislation 'either expressly or impliedly makes no provision on a matter in relation to juries, the common law still applies'.[23] In Abrahams, however, the statute was mandatory and there was no room for the operation of the common law power identified in Mansell.
8. In Cullen, a jury was discharged during a trial and the judge excluded the 12 jurors from the panel from which a fresh jury was to be selected. Section 79 of the Juries Act 1928 required that, if a jury was discharged while other proceedings remained to be tried, the cards of the jurors were to be returned to the empanelment box. The Court held that, because the judge had a duty to refuse to allow a juror to be sworn if the judge was satisfied that justice so required, and that condition was met in respect of the 12 jurors in this case, s 79 had not been contravened by the judge not returning the jurors' cards to the box. The judge could have brought about the same result by returning the jurors' cards to the box as s 79 stipulated, and standing them aside if they came forward again.[24]
9. Marks and McDonald JJ in Searle also referred to R v Greening,[25] a decision of the New Zealand Court of Appeal recognising a common law power to exclude a juror from the panel if satisfied that justice required that the juror not be allowed to be sworn. Their Honours described another decision of the same court, in which 'the juror in question had almost certainly been sworn', as 'not satisfactory'.[26]
10. In Searle, it emerged after 12 jurors had taken their seats in the jury box that one of them was a person known to the solicitor for the accused. The jurors had not yet been sworn. The juror in question was discharged and another person empanelled in her place. After canvassing the above authorities, and others, Marks and McDonald JJ held that

a trial judge in exercise of the inherent power that he possesses to ensure that a fair and just trial is conducted may of his own motion stand aside a person whose name is called from the panel of jurors so as to prevent that person becoming a member of the jury to try an accused.[27]

1. That power was able to be exercised at any time before the members of the jury were sworn. It followed that the judge had the power to stand aside the potential juror in the circumstances that had arisen in Searle.[28] The judge also had power to discharge the whole jury, but was not obliged to take that course.[29]
2. Hampel J dissented in Searle. He accepted that there was 'no doubt that a trial judge has inherent power to stand aside a person so as to prevent such a person from acting as a juror'.[30] However, because the jury had been selected, s 33 of the Juries Act 1967 applied to provide that the jurors selected 'shall be the jury'. The accused was, in his Honour's view, entitled to be tried by the jury so selected and the judge ought to have discharged the whole jury.[31]
3. These authorities confirm the power of the court at common law to excuse a potential juror, before that person has been sworn as a juror, in order to ensure a fair trial. The next question is whether that power is excluded by the provisions of the Juries Act 2000.
4. The Juries Act 1967, which was in force at the time of the decision in Searle, did not contain any provisions that were the equivalent of ss 32 and 36 of the Juries Act 2000. Instead, the Juries Act 1967 provided for the sheriff to deliver a copy of the panel to the proper officer of the court (s 31), for the proper officer to call aloud the names of the potential jurors (s 32), for the proper officer then to draw cards out of a box at random and call out the names and occupations of the potential jurors, for the prosecution to stand aside any such person before that person was empanelled (s 33)[32] and for every person arraigned to be permitted to challenge peremptorily up to eight jurors (subsequently reduced to six) before the juror took his or her seat (s 34).
5. Lewis concerned a trial conducted under the Juries Act 1967. The judge in that case took excuses from potential jurors in writing, and determined them in his chambers. He then returned to court and stated which jurors he excused. It was contended that this procedure failed to comply with s 13(2) of the Juries Act 1967. That provision empowered the court to excuse a potential juror from attendance, on proof on oath or by affidavit or statutory declaration, 'or otherwise in writing', that the person had good reason for not having applied to the sheriff to be excused and ought to be excused by reason of illness, incapacity or any other matter of special urgency or importance. The judge was said to have erred in not applying this provision, and it was submitted that there had been a miscarriage of justice as a result.
6. The Court rejected the argument. It held that the words 'or otherwise in writing' did not require the application to be supported by material binding the conscience of the applicant, in the nature of an oath. It does not seem to have been in issue whether the applicants had complied with the requirement to provide good reason why they had not sought to be excused by the sheriff. Nor was there any reliance on a non-statutory source of power.[33] The argument was instead that the accused was deprived, by the procedure the judge adopted, of information concerning those who had unsuccessfully sought to be excused, which might bear on subsequent exercise of his rights of challenge. That argument failed, principally because there was no evidence that the judge had rejected any potential juror's application to be excused.
7. In the course of going on to consider whether the power to excuse jurors had to be exercised in open court, the Court in Lewis made the following observations:

There were, it seems, doubts whether the common law allowed a judge to excuse a juror from serving. Section 15 of the Juries Procedure (Ireland) Act 1876 recognised the doubts and, in order expediently to remove them, declared that:

• ... it shall be lawful for the judge, if he shall so think fit, of any court before which any person may be summoned as a juror, to discharge in open court such person from further attendance on such court, or to excuse such person from attendance for any period during the sittings of such court.

That provision evidently inspired s 2 of the Juries Act 1904, as the side-note attests. The section clearly enough authorised the judge to grant excusal in open court, and that was the position under the corresponding provisions of the 1915 and 1928 consolidations of the Juries Act. The Juries Act 1956, however, which newly consolidated and amended the law relating to juries, by subs (1)(a) of s 9 - the forerunner of s 13 of the 1967 Act - conferred power on the sheriff to excuse a person who had been summoned as a juror, and to do so at any time before he was required by his summons to attend in court. Clearly enough, the sheriff's power was exercisable out of court and at a time before a person seeking to be excused had had anything to do with any particular accused person. Subsection (1)(b) of s 9 of the 1956 Act conferred power on a judge identical to that conferred by s 13(2) of the present Act - save for the words 'or otherwise in writing'. Notably, there was no requirement, as formerly there had been, that the power be exercised in open court; and like the sheriff, the judge was empowered to exercise it 'at any time'.[34]

1. The Court in Lewis appears not to have been referred to Searle and the cases preceding it. That is unsurprising, given the narrow scope of the issues argued in the case. No issue as to the common law power arose. The Court's observation that there were doubts as to the existence of a common law power of a judge to excuse a juror from serving must therefore be read as extending no further than the doubts that were implicitly held by the legislatures that enacted s 15 of the Juries Procedure (Ireland) Act 1876 and s 2 of the Juries Act 1904, the latter of which provisions adopted the former in Victoria.
2. In Panozzo, a jury panel was assembled and applications to be excused from jury service were heard by the trial judge. The accused persons were then arraigned in the presence of the panel and each entered a plea of not guilty. A jury of 12 persons was selected and sworn, and the accused were declared to be in the charge of the court as so constituted. The judge gave some preliminary instructions to the jury before adjourning the court. A juror informed the registrar after the court adjourned of a wish to be excused from the jury. On the next day, the judge heard argument before hearing and granting the juror's application. The judge then had a replacement juror selected from the jury panel that had been formed the previous day.
3. The applicants in Panozzo contended that the judge erred in failing to either discharge the whole jury or to direct that the trial continue with a jury of 11, and erred in permitting the trial to continue with a jury that included a person other than the members of the jury of 12 which had been selected, empanelled and sworn, in the charge of which jury the accused had been placed. The Court upheld the appeals.
4. The leading judgment was delivered by Vincent JA, with whom Buchanan JA and Harper AJA agreed. The 'central thrust' of the argument that was accepted was that the process contravened the Juries Act 2000, and that 'if any residuum of the common law still existed and had application in the circumstances', which was not conceded, the trial judge had failed to comply with the relevant principles and practices.[35]
5. Vincent JA set out relevant provisions of the legislation and stated that the Act 'sets out a straightforward sequentially ordered set of steps that, when applicable, must be followed'.[36] He continued:

The situation in law was, I think, quite clear. The point in the process at which a member of the jury pool (referred to in s 32 as a 'person') could seek to be excused from service in the trial had passed. It is, I consider, apparent, not only from the sequence of the provisions contained in Part 6 but the various terms employed to identify the status of individuals called for jury service at the different stages of the process, that applications to be excused must be called for and dealt with prior to the empanelment of the jury. There are several other reasons for reaching this conclusion on which I need not dwell as I do not believe that any other interpretation can be sensibly argued. I do not understand counsel who appears for the Crown in this court to have contended otherwise.[37]

1. It appears from this passage that it was not contended in Panozzo that any common law power to excuse a potential juror survived the enactment of the Juries Act 2000. Instead, the case turned largely on the absence of any power, whether statutory or otherwise, for the judge to appoint a replacement juror in the circumstances that had arisen. In that context, the Crown had argued that the common law remained applicable to the extent that the relevant subject matter was not encompassed by any statutory provision. Vincent JA considered, in response to that submission, that 'it is highly unlikely that any residuum of common law power remains with respect to the empanelment or discharge of jurors'.[38] However, he stated that he 'need not pursue this question' because the appropriate procedure at common law had not been followed in any event - no common law case had been cited by which the judge could empanel a replacement juror after discharging a member of the jury.[39]
2. Despite some observations made in passing that were not necessary to the determination of the critical point in the case, Panozzo therefore does not determine the question now under consideration.
3. The present issue is one of statutory construction. It is important in that regard to remember that, where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred.[40] In particular, clear and unambiguous language is needed before a court will find that the legislature has intended to repeal or amend the fundamental principle that a criminal trial be fair.[41] It follows that the Juries Act 2000 will not be construed as repealing the common law power with which we are concerned, which is directed at ensuring a fair criminal trial, unless that result appears by express words or necessary implication.
4. The Juries Act 2000 does not expressly exclude the capacity of the judge to ensure that the process of empanelment of a jury is conducted in a manner which is fair and just to both parties. Nor does it do so by necessary implication. While s 32 provides for a statutory power to excuse a person from jury service on a particular trial, and s 36 provides for the jury to be selected '[a]fter' that procedure has been completed, those processes and that sequence are readily capable of coexisting with the common law power. Nothing in s 36 requires that the process for selecting the jury take place after the exercise of any other power to excuse a juror.
5. It is possible that the provision in s 36(2) to the effect that the persons selected 'are the jury' serves to preclude a juror being excused, including by exercise of the common law power, after 'the jury' has been selected (that is, after all jurors have taken their seats), and possibly earlier, after the relevant juror is 'selected' and takes his or her seat).[42] If so, the common law power would no longer subsist until the point where a juror is sworn, but would lapse when the jury (or juror) has been selected. It is unnecessary to decide that question, as the process had not reached that stage in the present case.
6. It is true that a juror excused by the exercise of the statutory power in s 32(3) is, unless the court otherwise orders, returned to the jury pool and may be selected or allocated to a panel in another trial: s 32(4). Exercise of the common law power to excuse a juror at this stage of the process would have the same effect as the court ordering 'otherwise' so as to exclude that operation of s 32(3). As such, s 32(4) creates no necessary inconsistency with the common law power. It would not be permissible, however, for the court to return a person to the jury pool having exercised the common law power to excuse that person from the jury. There would be no warrant for such an alteration of the statutory process of empanelment.
7. At the same time, this difference between the operation of the common law power and s 32(3) reveals that, contrary to the applicant's submission, s 32(3) is not rendered otiose by the survival of the common law power. It remains part of a statutory scheme which enables a person's name to be returned to the jury pool after being excused.
8. The common law power is therefore consistent with the text of the statute and the sequential process for which it provides. In these circumstances, resort to the purpose of the legislation is of limited assistance. The common law power is not incompatible with the purposes of the Juries Act 2000 as expressed in s 1, to equitably spread the obligation of jury service among the community and to make juries more representative of the community. The fact that exercise of the common law power does not enable the potential juror's name to be returned to the pool (which is not mandatory under s 32 in any event) does not undermine the purposes of the Act in any way. The common law power is available to ensure a fair trial. The provisions of the Juries Act 2000, and its purposes, are subservient to that fundamental object.
9. It follows that the Juries Act 2000 does not, expressly or by necessary implication, exclude the common law power of the court recognised in Searle. That power survives the enactment of the Juries Act 2000. We would add that judges should only exercise that power where the exigencies of the occasion so require.
10. The result is that there was no irregularity in the course taken by the judge in the present matter. It is therefore unnecessary to decide whether there would have been a substantial miscarriage of justice had the judge acted without power. The respondent submitted that, had the posited absence of power been identified, it would have been the responsibility of the prosecutor to seek to have panel member 24 stood aside for cause, or to stand her aside in reliance on s 38. It was submitted that, in order to ensure a fair trial, the judge would have had to accede to that application. As a result, it could not be said that the constitution of the jury could have been affected by any irregularity which took place in the way in which panel member 24 was excluded from the jury.[43] There was therefore, it was submitted, no substantial miscarriage of justice.
11. There is much to be said for the view that, because the prosecutor agreed that panel member 24 ought not sit on the jury and the prosecutor could have challenged for cause or stood her aside, the judge's excusing of panel member 24 without power would have amounted to an inconsequential irregularity in the process for swearing in the jury which could not possibly have affected its ultimate constitution. Indeed, in the circumstances, if the judge had not intervened and excused her, it would have been the responsibility of the prosecutor, as a minister of justice, to have challenged panel member 24 for cause. Panel member 24 would thus have been excused in any event, and jury selection would have continued. If that were accepted, then there could have been no substantial miscarriage of justice on account of the manner in which the jury was selected, even if the common law power which we have found the judge to have been exercising did not exist. We do not need, however, to decide that question.
12. Since the judge had the power to excuse panel member 24 in the circumstances that arose, ground 1 of the application for leave to appeal against conviction cannot succeed.

1. The second ground concerns an alleged inconsistency between the guilty verdicts returned by the jury on charges 3 to 6 and the acquittal on charge 7.[44]
2. It is necessary to refer to the specific charges and the evidence in relation to them in order to evaluate this proposed ground of appeal.

1. The applicant and Todd Johnson,[45] the complainant, are cousins. The applicant was aged 15 to 18 at the time of the offending, which took place in 2006 to 2008. Todd was five to seven years old.
2. At the relevant time, Todd lived with his mother Laura and older siblings, Rebecca and half-brother Jason near Geelong.[46] The applicant lived nearby with his mother and sisters. The two families were very close. The applicant would regularly babysit Todd and Rebecca at their home when their mother was working.
3. While babysitting, the applicant was alleged to have offended against Todd on five occasions at his home whilst Laura was at work, as set out in further detail below.
4. Todd's family moved to the Bendigo region in 2009. In 2010 to 2011, the applicant moved to the Bendigo region, initially living with Todd's family before settling in Eaglehawk. The applicant was alleged to have sexually penetrated Todd's anus with his penis on an occasion when Todd stayed at the applicant's house.
5. The charges were summarised by the Crown as follows:

(a) One day in 2006 the applicant (aged about 16) was babysitting Todd (aged about 5) and Rebecca. He entered Todd's bedroom and locked the door. The applicant showed him sexual images on his mobile phone depicting naked males sitting on each other (Charge 1 - Not guilty).

(b) On one occasion the applicant was fondling Todd's penis in his bedroom (Charge 2 - No case). The applicant was on his knees in front of Todd who was standing. The applicant put Todd's penis into his mouth (Charge 3 - Guilty).

(c) On a separate occasion, the applicant put his erect penis in Todd's mouth (Charge 4 - Guilty).

(d) On a separate occasion, the applicant entered Todd's room and inserted his penis into Todd's anus (Charge 5 - Guilty).

(e) On a separate occasion, Todd gave in to the applicant pestering him and let the applicant put his penis inside his anus (Charge 6 - Guilty).

(f) In Bendigo, after the applicant had moved to Eaglehawk, Todd stayed over. The applicant penetrated Todd's anus with his penis (Charge 7 - Not guilty).

1. Todd gave evidence that when the family lived near Geelong, the applicant would often babysit him and his sister Rebecca when their mother was at work.
2. The evidence given by Todd as to the actual offending differed from the Crown summary in various respects. His evidence is briefly set out below.
3. The first incident occurred when the applicant was babysitting. Todd was playing PlayStation in his bedroom on the floor. He was five years old. The applicant entered the bedroom to see what he was doing. He lay on his bed. The applicant said words to the effect of 'Come here, I've got something to show you'. The applicant showed him 'gay porn' on his phone, an image of naked men 'taking part in ... male insertion' (charge 1). Todd responded 'that's gay' and the applicant replied 'It's normal, everyone does it, including my brother and his brothers'. Todd gave evidence that the applicant was trying to convince him to take part in such activity.
4. Another incident occurred when Todd was aged five or six. He was in his room playing PlayStation. The applicant entered and was being very pushy. The bedroom door was closed. Todd gave evidence that the applicant was under the bed covers trying to get an erection. He told Todd to get into the bed and lie on his side. The applicant pulled down his pants and inserted his penis into Todd's anus (charge 5). Todd recalled it was painful and told the applicant words to the effect of 'Stop, it hurts'. This lasted around three minutes and the applicant had to 'finish' by masturbation. Todd could not remember if there was any further touching on this occasion but it was the first time he engaged in anal penetration.
5. On another occasion when Todd was aged five or six, the applicant was babysitting Todd and Rebecca. Rebecca was in her bedroom. The applicant entered Todd's bedroom and masturbated his penis to erection. Todd gave evidence that the applicant was trying to get him to perform oral sex on him. Todd didn't want to but eventually gave in. He was lying on the bed and the applicant was on his knees at the end of the bed. The applicant pulled his pants down and put Todd's flaccid penis into his mouth (charge 3). The applicant then asked, 'do you want to try it on me?'. He took his penis out and Todd performed oral sex on him (charge 4).
6. Another incident occurred, also in Todd's bedroom. This was after the first incident but Todd could not recall exactly when. He was six years old. The bedroom door was closed and Rebecca was in her room. Todd was naked, lying face down on the bed. The applicant was on top of him, straddling him from behind. He penetrated Todd's anus with his penis (charge 6). He was holding Todd down by his shoulders. Todd recalled that the applicant spat in his hands prior to penetration. This incident lasted approximately five minutes. Todd was in pain. The applicant masturbated to ejaculation afterwards.
7. Todd gave evidence that the family moved to Bendigo in 2008 and the applicant moved into a shared house in Eaglehawk shortly thereafter. After that, Todd and his mother Laura met with the applicant to go grocery shopping. The applicant asked Todd to sleep over at his place, which he did. At around 6 pm, they were watching a movie and eating snacks. The applicant was persistently asking Todd for anal sex. He gave in and lay on his side and the applicant pulled his pants down. The applicant penetrated Todd's anus with his erect penis (charge 7). The incident lasted five minutes. Todd asked to go home, and the applicant called Todd's mother. She picked him up and asked if the applicant was doing anything to him. Todd said no because he was embarrassed.
8. Todd first made a complaint to a friend in around 2015. He told his best friend in 2020.
9. During cross-examination, Todd denied that he was making details up as he went along. He was sure about 'most things' in his evidence even though there was 'intricate detail' he could not recall. He confirmed that the chronological order differed from the evidence he gave at the committal and there were some departures from his statement. Todd agreed that he could not say for certain whether Rebecca's bedroom door was closed during the incidents.
10. Todd agreed that his memory was blurry and 'not picture perfect' but he could otherwise remember the offending. He agreed that his autism affected his memory and there could be 'wrong bits and pieces' in his recollection, but when the allegations were put to him by counsel for the applicant he confirmed that the offending did occur. Todd denied having made the complaint for attention or money.
11. Todd's mother gave evidence that she had never collected Todd from a share house in which the applicant resided. Nor had Todd ever stayed at the applicant's share house.

1. The applicant submitted that there was a factual or logical inconsistency between the relevant verdicts returned by the jury, such that no reasonable jury that had applied their minds properly to the facts of the case could have arrived at the conclusion they did. As a result, the verdicts were unreasonable.[47]
2. The applicant submitted that the prosecution case in relation to all charges depended upon the reliability and credibility of Todd. It was submitted that no reasonable jury could have made a distinction between his reliability and credibility in respect of charge 7, on the one hand, and charges 3 to 6 on the other. There was no forensic, medical or eyewitness evidence in relation to any of the charges, and no specific complaint evidence. There was no difference in the quality of Todd's evidence in respect of the various charges. It was submitted that the verdict represented an affront to logic and common sense which strongly suggested a compromise of the jury's verdicts.[48]
3. The respondent submitted that the ultimate question under this proposed ground was the reasonableness of the jury's decision in the particular circumstances of the trial.[49] The applicant was on trial for specific offences and convictions on the relevant charges did not depend on the jury accepting beyond reasonable doubt the entirety of Todd's evidence. Evidence in support of the charges differed, notwithstanding that it came from the same witness.
4. The respondent noted that charge 7 was alleged to have been committed at a later date than, and in a different location from, the offending in charges 3 to 6. Todd gave evidence that the offence alleged in charge 7 occurred on a day when his mother insisted that he stay with the applicant in his share house and that, after the offending, Todd asked the applicant to contact his mother and she picked him up from the applicant's home. His mother gave contrary evidence, to the effect that Todd had never stayed at the applicant's share house or been picked up by her from there. The jury was addressed at length in the defence closing address about the specific day in question and the conflict in the two accounts. The respondent submitted that the jury might well have given the applicant the benefit of the doubt in those circumstances.
5. The respondent noted that the judge properly instructed the jury to consider each charge separately. Prosecuting counsel emphasised that there were six trials and that each charge had to be considered separately. The jury were directed that although they might reject one part of the evidence of a witness that did not mean they should reject other parts of it.
6. The respondent also submitted that the jury might have considered that justice was met by convicting the applicant on charges 3 to 6 and taken a merciful view of the facts.[50]

1. In MacKenzie, the High Court identified the principles which govern inconsistency of verdicts as a ground of appeal. Gaudron, Gummow and Kirby JJ said that where 'inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness'.[51] The appellate court should be slow to ascribe different verdicts to irrationality on the part of the jury. The Court explained:

[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply 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, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. ...

It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.[52]

1. In MFA, these principles were affirmed in circumstances relevant to the present case. The appellant in MFA had been found guilty of two counts of sexual abuse, but was acquitted of a further seven counts. The sexual acts in question were alleged to have occurred on four separate occasions. The counts upon which the appellant was convicted related to one such occasion. The appellant argued that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence, and could not be reconciled with the verdicts of not guilty on the other counts. It was submitted that the acquittals must have involved the jury not accepting the complainant's evidence. It was submitted that this necessarily affected the complainant's evidence with respect to the guilty counts.
2. In rejecting that argument, Gleeson CJ, Hayne and Callinan JJ articulated the following principles:

Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, ... every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. ... A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman,[53] and referred to in later cases:[54] it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.[55]

1. Applying these principles, the different verdicts in the present case are readily explicable. The fact that the jury did not accept the evidence of Todd in respect of charge 7 does not mean that they found him to lack credibility or reliability as a witness more generally. Charge 7 differed from the other charges in that there was independent evidence which conflicted with a material aspect of Todd's testimony, in so far as his mother denied having collected Todd from the applicant's share house, or that the applicant had ever stayed at such a house. Although the telephone call and the collection from the house were peripheral to the alleged offence, they were obviously closely connected events. Todd gave evidence that he had asked the applicant to call his mother so she could collect him straight after the offending occurred. In light of Todd's mother's evidence that she had not collected him, and her denial that he had ever stayed at the house where the offence was said to have taken place, the jury could quite reasonably have entertained a reasonable doubt as to Todd's whole account of that occasion and acquitted the applicant on charge 7 accordingly. That doubt need not have flowed through to the other offences, alleged to have been committed on different occasions, and in a different location, in respect of which there was no such conflicting evidence.
2. In the circumstances, it has not been established that the jury acted unreasonably in delivering the different verdicts. Leave to appeal on this ground should be refused accordingly.

1. Leave to appeal should be granted on ground 1 but refused on ground 2. The appeal must be dismissed.

[1] The application for leave to appeal was filed five weeks out of time. An application is therefore made for an extension of time within which to file an application for leave to appeal. In light of the length of time involved, which has been satisfactorily explained, that application should be granted.

[2] R v Panozzo [2003] VSCA 184; (2003) 8 VR 548, 556 [29] (Vincent JA, Buchanan JA agreeing at 548 [1], Harper AJA agreeing at 556 [32]) ('Panozzo').

[3] R v Clarke [2002] VSCA 184; (2002) 5 VR 480, 484 [17] (O'Bryan AJA, Winneke P agreeing at 481 [1], Eames JA agreeing at 481 [2])).

[5] [2019] VSCA 186.

[6] Jones v The Queen [1989] HCA 16; (1989) 166 CLR 409; R v Chai (2002) 76 ALJR 628; [2002] HCA 12.

[7] The applicant referred to R v Abrahams [1947] VicLawRp 68; [1948] VLR 51, 52 (Herring CJ, Lowe and Fullagar JJ) ('Abrahams'); R v Cullen [1950] VicLawRp 71; [1951] VLR 335, 336 (Gavan Duffy J) ('Cullen'); Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221, 233 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ); Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40, 59 [32] (Gaudron, Gummow and Callinan JJ); Crane v Public Prosecutor [1921] 2 AC 299.

[8] [1947] VicLawRp 68; [1948] VLR 51, 52 (Herring CJ, Lowe and Fullagar JJ).

[9] [1950] VicLawRp 71; [1951] VLR 335, 336-7 (Gavan Duffy J), 339-40 (O'Bryan J, Dean J agreeing).

[10] [1993] VicRp 80; [1993] 2 VR 367, 370-6 (Marks and McDonald JJ) ('Searle').

[11] [2003] VSCA 184; (2003) 8 VR 548, 554 [24] (Vincent JA, Buchanan JA agreeing at 548 [1] and Harper AJA agreeing at 556 [32]) ('Panozzo').

[12] Panozzo [2003] VSCA 184; (2003) 8 VR 548.

[13] R v Hall [1971] VicRp 35; [1971] VR 293 ('Hall'); Abrahams [1947] VicLawRp 68; [1948] VLR 51; R v Dooley [1972] VicRp 7; [1972] VR 55; R v Short [1898] NSWLawRp 78; (1898) 19 LR (NSW) 385; R v Solomon [1958] 1 QB 203; Johns v The Queen [1979] HCA 33; (1979) 141 CLR 409; Pollock v The Queen [2020] VSCA 218.

[14] Hall [1971] VicRp 35; [1971] VR 293, 298 (Winneke CJ, Little and Gowans JJ); Panozzo [2003] VSCA 184; (2003) 8 VR 548, 555 [27] (Vincent JA, Buchanan JA at 548 [1], Harper AJA agreeing at 556 [32]).

[15] The respondent referred to the comments regarding the position at common law in R v Lewis [2000] VSCA 140; (2000) 1 VR 290, 324-5 [89] (Winneke P, Tadgell JA and Hedigan AJA) ('Lewis').

[16] Abrahams [1947] VicLawRp 68; [1948] VLR 51, 52 (Herring CJ, Lowe and Fullagar JJ); Cullen [1950] VicLawRp 71; [1951] VLR 335, 336-7 (Gavan Duffy J), 339-40 (O'Bryan J, Dean J agreeing); Searle [1993] VicRp 80; [1993] 2 VR 367, 370-6 (Marks and McDonald JJ); Panozzo [2003] VSCA 184; (2003) 8 VR 548, 554 [24] (Vincent JA, Buchanan JA agreeing at 548 [1], Harper AJA agreeing at 556 [32]).

[17] Hall [1971] VicRp 35; [1971] VR 293, 299 (Winneke CJ, Little and Gowans JJ).

[18] See, as to inherent and implied powers, Grassby v The Queen (1989) 168 CLR 1, 15-17 (Dawson J).

[19] [1857] EngR 701; (1857) 8 E & B 54; 120 ER 20 ('Mansell').

[20] Ibid 30 (Lord Campbell CJ, Wightman, Erle and Crompton JJ).

[21] (1883) 9 VLR 191 ('Burns').

[22] Ibid 196; see also 193 (Higginbotham J).

[23] Abrahams [1947] VicLawRp 68; [1948] VLR 51, 52 (Herring CJ, Lowe and Fullagar JJ).

[24] Cullen [1950] VicLawRp 71; [1951] VLR 335, 339-40 (O'Bryan J, Dean J agreeing at 340). Gavan Duffy J agreed in the result, but had some doubt whether the power extended to the case at hand: at 336-7.

[25] [1957] NZLR 906, 915 (Greeson J).

[26] Searle [1993] VicRp 80; [1993] 2 VR 367, 374, citing R v Bell [1958] NZLR 449.

[27] Ibid 374. See also R v Bunting (No 9) [2003] SASC 257; (2003) 139 A Crim R 562, 565 [13] (Martin J); [2003] SASC 257; R v Rawcliffe [1977] 1 NSWLR 219, 222 (Street CJ), 227 (Taylor CJ at CL), 246 (Lee J) (declining to find a miscarriage of justice after two potential jurors were stood down because they were not wearing coats).

[30] Ibid 380, citing Burns and Cullen.

[32] The prosecution's power to stand aside a juror under s 33 was eventually repealed by s 6 of the Juries (Amendment) Act 1993.

[34] Ibid 324-5 [89] (Winneke P, Tadgell JA and Hedigan AJA) (citation omitted).

[35] Panozzo [2003] VSCA 184; (2003) 8 VR 548, 551 [11].

[37] Ibid 552 [18] (emphasis in original).

[40] Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625, 635-6 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

[41] Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 298 [28] (McHugh J).

[42] The 'selection' to which s 36(2) refers is the selection referred to at the end of s 36(1), after the opportunity for challenges, not the selection of the name by the proper officer referred to earlier in s 36(1). The persons selected by the proper officer are not necessarily 'the jury', for the very reason that selection as a juror depends on the potential juror not having been successfully challenged.

[43] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421; Karam v The King [2023] VSCA 318 [216] (Beach, McLeish and Kennedy JJA).

[44] The applicant originally asserted an inconsistency also with the acquittal on charge 1, but this argument was abandoned at the hearing of the application for leave to appeal.

[47] King v The Queen [2012] VSCA 206 [32] (Maxwell P, Bongiorno and Coghlan AJA); MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 ('MacKenzie').

[48] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 366-8 (Gaudron, Gummow and Kirby JJ).

[49] MFA (2002) 213 CLR 606 ('MFA'); GAP [2011] VSCA 173 [39] (Neave, Redlich and Hansen JJA) ('GAP'); Andrew v The Queen [2013] VSCA 333 [42]-[45] (Weinberg JA, Whelan JA agreeing at [59], Lasry AJA agreeing at [60]); Crofts v The Queen [2018] VSCA 197 [84] (Hargrave JA); Landale v The Queen [2022] VSCA 121 [39]-[57] (Kyrou, T Forrest and Walker JJA); Schliefert v The King [2024] VSCA 197 [37]-[47] (Priest, Taylor and Boyce JJA).

[50] GAP [2011] VSCA 173 [39] (Neave, Redlich and Hansen JJA); MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 351).

[51] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 366. See also Sriranganathan v The King [2024] VSCA 257 [33]-[37] (Niall and Taylor JJA, Priest JA agreeing at [1]).

[52] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 367-8 (citations omitted).

[53] (1987) 44 SASR 591, 593 (Olsson J agreeing at 593, O'Loughlin J agreeing at 593).

[54] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 367-8 (Gaudron, Gummow and Kirby JJ).

[55] MFA (2002) 213 CLR 606, 617 [34]; see also 632 [89] (McHugh, Gummow and Kirby JJ).