Johns v The Queen

High Court of Australia|1979-07-01|Before: Murphy JJ, Wallace J

The applicant, as I have indicated, pleaded not guilty upon his arraignment. Section 622 of the Code provides in such a case that the accused is "by such plea, without any further form, deemed to have demanded that the issues raised by such plea shall be tried by a jury and is entitled to have them tried accordingly".

When an accused person has demanded to be tried by a jury, the proper officer of the Court is to inform him in open Court that the persons whose names are to be called are the jurors to be sworn for his trial, and is further to inform him that if he desires to challenge any of them he must do so before they are sworn.

Section 628, in providing for challenges to the qualifications of a juror or for cause, expressly preserves the right of peremptory challenge.

Section 30 of the Juries Act, 1957-1976 W.A. provides for the inspection by the accused and his solicitor of a copy of the panel of jurors summoned for the relevant sitting of the court for criminal trials. This provision is not reflected in the relevant legislation of all the States, though it is in some.

The Juries Act provides for the exercise by an accused of peremptory challenge to the persons called as jurors at his trial:

(1) Without affecting the right of challenge to the array or for cause shown which might have been claimed or exercised immediately prior to the coming into operation of this Act, and without affecting the right of those prosecuting for the Crown to pray for an order to stand jurors aside to the extent authorised by subsection (2) of this section, any party at any criminal trial may challenge peremptorily eight jurors, except where two or more than two persons are charged with the same offence and are put on trial together in which case each of those persons may challenge peremptorily six jurors.

(3) A right to challenge a juror must be exercised before the officer of the Court who is administering the oath, has begun to recite the words of the oath to the juror or where the juror reads the words of the oath from a card before the juror begins to recite those words, but not afterwards.

The law in the case of criminal trials respecting notice to an accused person of his right of challenge, and challenge to the array and to individual jurors for cause, and the ascertainment of facts as to challenge, and the swearing of the jury and informing them of the charge, and the discharge, death, or incapacity of a juror and the separation and confinement of the jury, and view by the jury, and special and general verdicts, and the discharge of the jury, is that which is set forth in The Criminal Code.

Section 634 of the Code provides for representation of an accused by counsel:

Every person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined and cross-examined by his counsel.

The term "counsel" includes any person entitled to audience as an advocate.

The Court, on the argument of this application, was informed by counsel for the Crown that there is a long-standing practice in Western Australia for counsel to "exercise the right of challenge". I gather that a like practice exists in Queensland and, indeed, now in the United Kingdom. In some other States, the practice is for the accused personally to exercise the right of challenge assisted in at least one of those States, by leave of the trial judge, by counsel or instructing solicitor.

What happened in relation to the challenge of the jury in the proceedings upon the indictment of the applicant is beyond dispute. There is before us a portion of the transcript taken in the proceedings which evidences the empanelling of the jury. It is as well that I set out the relevant parts of that transcript. Mr. Cannon was counsel for the accused and Mr. Seaman, Crown Prosecutor:

Clerk of Arraigns: Roger James McGregor Johns, the persons whose names you will now hear called are the jurors who are to decide between our Sovereign Lady the Queen and you upon your trial.

If therefore you wish to challenge them or any of them, you must do so as they come to be sworn and before they are sworn and you shall be heard.

Members of the jury, answer to your names and take the box as you are called.

Clerk of Arraigns: Number 44, Judith Anne Lowes. Number 38, Peter David Fraser. Number 22, Therese Veronica Ryan.

Clerk of Arraigns: Number 30, Bernard Victor Ransom.

[Inaudible conversation between Mr. Seaman and Mr. Cannon]

Mr. Cannon: The last witness is not challenged, sir.

Wallace J.: The last one. That is 22, Therese Veronica Ryan.

Clerk of Arraigns: Number 30, Bernard Victor Ransom. Number 40, Marian Elizabeth Waddell. Number 9, Kevin William Pryer. Number 47, Joan Margaret Peacock. Number 17, Frederick George Mogridge. Number 18, Marion Dorothy London. Number 1, Betty Videon Williams. Number 3, Terence John Carter.

Clerk of Arraigns: Number 32, Frederick John Winnett.

Judith Anne Lowes, will you please stand and read the oath?

Juror Lowes: I swear by almighty God that I will faithfully try the several issues joined between our Sovereign Lady the Queen and the accused and give a true verdict according to the evidence.

Juror Fraser: I swear by almighty God that I will faithfully try the several issues joined between our Sovereign Lady the Queen and the accused and give a true verdict according to the evidence.

Juror Ryan: I swear by almighty God that I will faithfully try the several issues joined between our Sovereign Lady the Queen and the accused and give a true verdict according to the evidence.

Though not included in the portion of the transcript before this Court, the Court was informed, and it may be accepted, that after the arraignment of the accused, his counsel announced to the trial judge that he would exercise the right of challenge, a statement which apparently the trial judge accepted as a matter of course.

The applicant filed an affidavit in support of his application in which, apart from explaining the delay in making the present application, he said that he had not authorized the withdrawal of his challenge or acquiesced in the juror whom he challenged being sworn: and that, after he had challenged the juror, his counsel approached him where he stood in the dock and berated him for attempting to interfere in the conduct of the trial. The applicant in his affidavit said that, later, when addressing the jury, his counsel informed them that he followed the practice of never challenging a juror. There was no denial of the applicant's affidavit. I mention these facts for a purpose which will later appear.

Counsel for the Crown advanced an argument based upon what he claimed was the precise order of events in relation to the conversation by the counsel with the accused. In my opinion, this conversation probably took place after counsel had purported to withdraw the challenge to the juror and probably after the challenged juror had been sworn. But, in any case, and whenever it occurred, I would not for a moment accept the Crown's argument founded on what had taken place between counsel and the applicant, either that the accused then authorized, or acquiesced in, the withdrawal of the challenge.

In my opinion, the simple fact of the matter is that the applicant duly challenged the juror. The challenge must have been heard by the presiding judge. It is evident that the judge allowed that juror to be sworn only because of counsel's statement of the withdrawal of the challenge as recorded in the transcript. In the result, that juror was sworn and the applicant's challenge ignored. This must, in my opinion, in no small part have been due to what, as I shall point out, was a fundamental misconception of the authority of counsel. I cannot think that, but for the practice of which I have spoken and this misconception, a trial judge would not have given full effect to the accused's personal challenge. It could only be because the judge was diverted by that practice and the acceptance of the view that counsel could lawfully override the wishes of his client that the judge failed to realize the fundamental error of not giving effect to the challenge.

The right of challenge, and particularly the right of peremptory challenge, lies at the very root of the jury system as it now exists. That the challenge is peremptory means that the accused need not in any wise justify his challenge. It need represent no more than his personal objection to be tried by the person whom he sees before him and whose name he has heard. No doubt, in deciding whether or not to exercise the right of challenge, an accused may profit by the views of counsel. But, even so, he may prefer his own instinctive reaction to the person he sees to the experience or theories of the advocate. It is his peculiar right to follow his own impressions and inclinations.

When a prior view of the panel of jurors summoned for the sittings is allowed, some guidance in the exercise of the challenge may be gained from the knowledge of the names, addresses and occupations of those named on the panel. But, in my opinion, this advantage cannot displace the importance of a physical view of the jurors or be a reason to overbear the accused's reaction engendered by it.

For my part, it is of the utmost importance in the trial of accused persons that they not only have adequate opportunity to see and observe the jurors but that they are adequately informed of their personal right of challenge. I hold the view that the traditional admonition of the clerk of arraigns, statutory in Western Australia by virtue of s. 626 of the Code, does not sufficiently inform the accused of his rights, e.g. as to the extent of peremptory challenges and as to his right to challenge for cause. If the accused is represented by counsel it may be taken that counsel is not only himself aware of these rights but that he has apprised his client of them in due time to enable the accused effectively to exercise them. If the accused is unrepresented, the usual formula used by the clerk of arraigns should, in my opinion, be supplemented by the trial judge to ensure that the accused is fully aware of his right of challenge. Incidentally, the obligation to inform the accused of his right of challenge is, as I have said, statutory in Western Australia and not merely required as a matter of practice. It may therefore be doubtful if the decision in Reg. v. Berkeley [19] is applicable in that State.

To return to the particular facts of this case, it is incontestable that the denial of the applicant's right of challenge vitiates the proceedings on the indictment. It is settled that if an accused's challenge is improperly disallowed or not given effect, the subsequent proceedings cannot yield a lawful conviction: they are said to be absolutely void: Halsbury's Laws of England, 4th ed., vol. 2, par. 260, e.g. R. v. Edmonds [1] , per Abbott C.J., and R. v. Williams [2] . Thus, there never has been a trial of the indictment in this case according to law. The conviction consequent on these proceedings must therefore be set aside.

(1821) 4 B. & Ald., at p. 473 [106 E.R., at pp. 1010-1011]. 2. (1925) 19 Cr. App. R. 67.

It remains for me to deal with two matters: first, the need for safeguards when and where there is a practice under which counsel is allowed to exercise the accused's right of challenge, and secondly, whether where there has not been a trial according to law, the court, having regard to the terms of the Code, can quash the conviction and, in its discretion, direct a trial.

I have referred to s. 634 of the Code which gives the accused a right to counsel at his trial. It may be doubted, in my opinion, whether the expression "to make his defence" in that section is apt to include the exercise of the right of challenge to the jury. But, whatever the correct view of those words, the trial judge, in my opinion, can allow counsel who is authorized to do so to exercise for the accused his right of challenge. For reasons to which I will refer, I think it necessary for care to be take to ensure that the accused has given that authority and that the accused understands that the grant of this authority has not displaced his personal right of challenge.

In my opinion, a retainer or instruction to defend the accused does not automatically carry such an authority. It must, in my opinion, come specifically from the accused, either expressly or by clear implication; preferably, in my opinion, expressly. In my opinion, it is of the utmost importance that his delegation to counsel of his right of challenge should be specific and certain. In any case, that authority cannot be irrevocable or authorize the withdrawal of the accused's personal challenge when made, or be understood to displace the accused's ability personally to challenge.

If the profession understands that counsel needs such specific authority, counsel's statement to the trial judge that he is to challenge the jury may in general be accepted by the trial judge as an assertion by counsel that he has the accused's authority to exercise his right of challenge. Counsel could be expected to be scrupulous in this regard.

But, as I have said, the authority to counsel cannot be irrevocable. The accused clearly retains his right of personal challenge on the view of the jurors. Thus, in this case, assuming that his counsel had the accused's authority to challenge for him, the accused's personal challenge was none the less effective. Without further specific authority from the accused, counsel could not countermand or withdraw the challenge personally made by the accused.

When the practice of counsel exercising the right of challenge is allowed and the counsel's statement with its implication of specific authority is made and accepted, it would still be proper, in my opinion, for the presiding judge to ensure that the accused is given to understand that, notwithstanding the authority given to counsel, he retains the right personally to challenge. This should be done, in my opinion, just after the clerk of arraigns tells the accused that he must challenge the jurors as they come to the book to be sworn - a statement which incidentally is made to the accused even in places where the practice of allowing counsel to challenge obtains. The traditional formula is emphatic that it is the accused who has the right to challenge.

If the authority of the accused to challenge for him is accepted by counsel, it seems to me that counsel should be careful to defer to the wishes of the accused. In the instant case, counsel had his own view as to whether any challenge should be made: with him it was a matter of general policy not to challenge any juror. There may be some who would agree with this policy but, in my opinion, many, if not most, would doubt its wisdom. But, however that may be, adherence to such a policy would leave little or no room for the accused's own choice: and, after all, it is the accused who is in jeopardy, not his counsel or his counsel's reputation.

The possible division of the challenge between counsel and the accused has obvious dangers besides that which this case illustrates. For example, it could happen that counsel exercising the challenge may exhaust the limited right of peremptory challenge and the accused later wish to challenge a juror. There is much to be said for the practice of calling twelve persons to the jury box where they can be seen by the accused and thereafter an interval allowed between their placement there and the taking of any step to swear any of them. To ask the accused to challenge severally as each card is drawn and the juror comes forward may result in the exhaustion of the right before all intending jurors have been inspected.

Because of the dangers which I think attend the practice of counsel challenging, it is my opinion that the practice of allowing counsel or instructing solicitor to assist the accused in challenging is preferable. It is said that the practice of the challenge by counsel is desirable because an accused may be incapable for one reason or another of deciding on the challenge. But, if the accused is fit to plead (and s. 631 of the Code provides for the determination of that fact), the accused, in my opinion, is fit to challenge. After all, and with due respect to some of the theories advocates may have as to the choice of a jury, the expression of objection to be tried by a person standing before him or her must be one of the simplest things a person can be asked to do. If the accused lacks confidence in this task, the assistance, rather than the dominance, of counsel should provide the remedy. Permission to counsel to assist should, of course, be immediately forthcoming.

Then it is said that, by standing near the dock to assist the accused, counsel's dignity is compromised. I regret profoundly to differ. I do not believe it is in the least undignified, demeaning, or undesirable for counsel to be proximate or to be seen to be proximate to an accused when assisting him with the challenge. But I do think that a practice of the exchange of signals between bar table and accused in the course of the challenge lacks dignity and is far less acceptable than the presence of counsel near the dock when assisting the accused in the challenge.

There remains the question raised by counsel for the Crown, namely, whether s. 704 of the Code prevents the court ordering a venire de novo where there has been no trial, the court being confined to ordering a new trial consequent on finding a miscarriage of justice.

In my opinion, s. 704 of the Code has not produced this result. It was held in Crane v. Director of Public Prosecutions [3] that the Court of Criminal Appeal could under the Criminal Appeal Act, 1907 (7 Edw. 7, c. 23) (which contains a counterpart section to s. 704), direct the trial of an indictment where, because of fundamental defects in the proceedings, there had not been a trial according to law, notwithstanding the fact that the Court of Criminal Appeal under that Act, unlike in this respect the Court of Criminal Appeal under the Code, could not order a new trial upon a miscarriage of justice. It seems to me that the reasoning leading to this decision is applicable in Western Australia. Accordingly, in my opinion, the Court of Criminal Appeal can order the trial of an indictment when the proceedings thereon are held to be void.

It has been held in England that, when setting aside a conviction because of a mistrial, the Court of Criminal Appeal is not bound to order a trial but may merely quash the conviction: see R. v. Gee [4] and Reg. v. Gash [5] . In my opinion, the decision and its reasoning warrant the conclusion that the Court of Criminal Appeal of Western Australia is not bound to order a trial of an indictment where there has been none according to law.

[1936] 2 K.B. 442. 2. [1967] 1 W.L.R. 454; [1967] 1 All E.R. 811.

Accordingly, the Court considered in this case whether, having regard to the period already spent in gaol by the applicant and the circumstances of the case, a trial should be ordered. It concluded, none the less, that there should be a trial and ordered accordingly.

This was an application for enlargement of time within which to seek special leave to appeal, and for special leave to appeal, from a judgment of the Supreme Court of Western Australia given on 12th March 1976 convicting the applicant of the offence of armed robbery and from an order of that Court made on 26th August 1976 sentencing him to a term of imprisonment for that offence.

This Court, after hearing argument, enlarged the time for making the application, granted special leave to appeal from a judgment of the Court of Criminal Appeal of Western Australia given on 2nd August 1976 dismissing an appeal from the conviction, treated the application as the hearing of the appeal, allowed the appeal, quashed the conviction, and ordered a new trial. The Court announced that the reasons for taking this course would be given later.

At his trial, which commenced on 11th March 1976, the applicant was represented by counsel. We are told - although the transcript is silent on this matter - that when counsel announced his appearance, he announced also that he would be exercising the applicant's right of challenge. The transcript records the applicant's plea of not guilty and the names of counsel representing the Crown and the applicant, and thereafter records the proceedings verbatim. The clerk of arraigns informed the applicant in the usual way that if he wished to challenge any of the jurors, whose names were about to be called, he must do so as they came to be sworn and before they were sworn. The clerk then commenced to call the jurors. Two jurors were called; no challenge was made, and the jurors entered the jury box. When the clerk called the name of the third juror, "No. 22, Therese Veronica Ryan", the applicant said, "I challenge". The transcript does not show what Therese Veronica Ryan did, but the clerk proceeded to call the name of another juror. According to the transcript, there was then an inaudible conversation between counsel, after which counsel for the applicant said, "The last witness [sic] is not challenged, sir." The learned trial judge then said: "The last one; that is 22, Therese Veronica Ryan." Counsel for the Crown replied, "Yes sir". Neither the judge nor counsel said anything further, and the clerk went on to call the names of other jurors. It may be inferred that Therese Veronica Ryan entered the jury box after the exchange between the judge and counsel had been concluded, because, after twelve jurors in all had entered the box, the oath was administered in turn to each of the twelve, including Therese Veronica Ryan. The trial then proceeded.

The applicant swore in an affidavit which was uncontradicted that a few minutes before he had been called upon to plead to the charge, and just before the learned trial judge had entered the court, he had been standing near the dock at the rear of the courtroom and had overheard a group of prospective jurors conversing. Because of what he heard and the general impression made upon him by the person later identified as Therese Veronica Ryan, he decided that he did not wish her to be a member of the jury, but before he could communicate with his counsel the learned trial judge entered the room and the proceedings commenced. He said that without any reference to him his counsel informed the judge that there was no challenge of Ryan, and again without reference to him the judge allowed Ryan to be sworn.

Before us, counsel for the Crown criticised some statements in the applicant's affidavit. The applicant said: "Nothing was said by my counsel to the Court or me to indicate that he proposed to exercise any right of challenge on my behalf." Counsel for the Crown pointed out that this statement could not be correct if, as appears to be admitted, counsel had announced his intention to exercise on behalf of the applicant his right of challenge. The applicant further swore: "My conclusion that I had no personal right of challenge was reinforced shortly after Ryan was sworn when my counsel approached me in the dock in the presence of the jury thus sworn and whilst further jurors were being called rebuked me for "interfering"." Counsel for the Crown submitted that this statement also was inaccurate, since Therese Veronica Ryan was not sworn until all the other jurors had been called into the box. Notwithstanding these criticisms, it is not in doubt either that the applicant audibly stated in open court that he challenged the juror or that, as a result of the intervention by his counsel, and without reference to him, no effect was given to the challenge. Nor is it in contest that counsel for the applicant, in his address to the jury, commented on the fact that he had not challenged any juror and said that it was his policy and philosophy not to challenge.

After his conviction, the applicant appealed to the Court of Criminal Appeal on a number of grounds, but did not then raise the contention that the trial was defective by reason of the disallowance of the challenge to the juror. He swore - and again his evidence was uncontradicted - that he was advised by counsel that this circumstance did not constitute a ground of appeal. On 2nd August 1976 the appeal to the Court of Criminal Appeal was dismissed. Subsequently, on 26th August 1976, he was sentenced to a term of imprisonment which he was still serving when the present application was made.

In September 1976 the applicant formed the opinion, as a result of something which he read in a book borrowed from the prison library, that in fact there had been a defect in his trial as a result of the disallowance of his challenge. He made various attempts to raise this matter for consideration. He twice petitioned His Excellency the Governor - on 12th May 1977 and 31st January 1978 - but neither petition was granted. In June 1978 he brought proceedings for a writ of habeas corpus but his application was dismissed. Finally, after an initial refusal, he obtained legal aid to make the present application. It should be added that during this time the applicant was asserting his innocence of the charge of which he was convicted.

By s. 38 (1) of the Juries Act, 1957 W.A. as amended, it is provided, inter alia, that "any party at any criminal trial may challenge peremptorily eight jurors". Before Therese Veronica Ryan was called, no juror had been challenged by or on behalf of the applicant, and the applicant's right of peremptory challenge still remained available. It is clear that the applicant attempted to exercise that right. The traditional manner of indicating that a juror is challenged is to use the word "challenge", as the applicant did. However, on behalf of the Crown it was submitted that in the circumstances of the present case, where counsel had authority to conduct the proceedings on behalf of the applicant, the right of challenge could be exercised only by counsel and not by the applicant himself. It was pointed out that it has for very many years been accepted by the courts of Western Australia that counsel appearing for an accused person may exercise the right of challenge on his behalf, and that in practice, when an accused person is represented by counsel, it is counsel who makes the challenge. The courts of New South Wales and Victoria adhere to what is perhaps an even older practice, and require the accused person himself to make the challenge, although permission is usually given to his counsel (or, in Victoria, his solicitor) to assist him in doing so. However, Western Australia is not alone in allowing counsel to exercise the right of challenge; the courts of Queensland, South Australia, and Tasmania take the same course, as do the courts in England (see Archbold's Pleading, Evidence and Practice in Criminal Cases, 39th ed. (1976), par. 421, and Harris, Criminal Law, 22nd ed. (1973), p. 731). Nor is the practice novel: the report of R. v. Parry [6] reveals that at that trial challenges were made by counsel for the prisoners, and it is not there suggested that this was anything out of the ordinary. In New Zealand, counsel is reported to have exercised the right of challenge in R. v. Davis and Haines [7] again, apparently, as a matter of course.

(1837) 7 Car. & P. 836, at pp. 837-838 [173 E.R. 364, at p. 365]. 2. (1910) 12 C.L.R. (N.Z.) 700, at p. 705.

There are, in my opinion, strong arguments in favour of the practice which exists in Western Australia. An accused person who is mentally defective, illiterate, unable to speak English, or merely inarticulate or generally ill-equipped, could not be expected to make an effective use of his right of challenge if called upon to exercise it himself. And, as is said in the statement of the General Council of the Bar cited in Archbold, op. cit., par. 421: "It is equally not desirable, and undignified, for counsel to stand by the defendant, prompting him as to what to say and when to say it, with whispered instructions and advice passing to and fro." Perhaps an argument in support of the view that an accused person should personally exercise the right of challenge is that the accused might recognize someone whom he did not wish to have on the jury only when that person was called to the jury box, but in most jurisdictions the legal representatives of the accused are entitled to inspect the panel of jurors before the trial and in any case, for reasons which I shall go on to state, the accused himself can, as a last resort, make a challenge if his counsel fails to do so.

But whatever may be said as to the benefits and demerits of the respective practices, there can be no doubt that that which obtains in Western Australia is permitted by the law. It is true that the right of challenge is in terms conferred by statute on the accused: see s. 38 (1) of the Juries Act; ss. 626-628 of the Criminal Code of Western Australia. However, those provisions do not evince an intention that the right of challenge should be exercised by the accused himself; they do not derogate from the general principle that a party to legal proceedings may entrust the conduct of those proceedings to his legal representative. There are many other sections of the Criminal Code which in terms confer rights on an accused person, but which do not appear to be intended to require that the rights must be exercised personally. For example, it could hardly be suggested that counsel for the accused cannot be heard to make any of the applications referred to in ss. 577, 608, 609, 613, 614, and 624, or that a motion for arrest of judgment under s. 655 must be made by the convicted person himself. In the present case, the authority of counsel to represent the applicant at the trial extended to such incidental matters as challenging the jurors.

The fact that counsel had authority to exercise the right of challenge on behalf of the applicant did not mean that the applicant could not himself exercise that right. Clearly, the applicant could have withdrawn the authority of his counsel and then made the challenge but it was not necessary that he should go to that extent. No doubt, if the learned trial judge had thought it necessary to ensure the orderly conduct of the trial, he might have insisted that the applicant either conduct the proceedings himself or leave their conduct to counsel, but, in that event, counsel, if continuing to appear, would have been bound to persist in the challenge; his alternative, if he did not wish to act on his client's instructions, would have been to return his brief. However, the learned trial judge did not intervene and the challenge made by the applicant was, in my opinion, an effective exercise of his right; it was a valid challenge.

Then the question arises whether the challenge thus made was effectively withdrawn. It is by no means clear that a challenge once made can be withdrawn. The learned author of Joy, On Peremptory Challenge of Jurors (1844), said, at p. 88 : "If a prisoner challenge a juror peremptorily, it seems he must abide by the challenge; he cannot afterwards withdraw it for the purpose of challenging another juror instead." Authority for the latter part of that statement, that a challenge cannot be withdrawn for the purpose of challenging another juror instead, is provided by R. v. Parry. The more general statement that a prisoner must abide by a peremptory challenge once made seems to be supported by the old case of Viccaridge v. Gelse [8] . On the other hand, the Full Court of the Supreme Court of Queensland in R. v. Kearley [9] seems to have proceeded on the view that a trial judge has a discretion to allow a peremptory challenge to be withdrawn. This authority would appear to be consistent with the statement of the law in the United States, contained in 50 Corpus Juris Secundum (tit. "Juries"), par. 284, p. 1080:

After a peremptory challenge has been made, a party has no right to withdraw it. The court may, however, in its discretion allow the challenge to be withdrawn where no prejudice will result. 1. (1611) 1 Bulstrode 121 [80 E.R. 817]. 2. [1907] Q.W.N. 50.

It is unnecessary to decide whether the learned trial judge had a discretion to allow the challenge to be withdrawn, because, assuming that he had such a power, he does not appear to have exercised it. Counsel for the applicant did not in terms ask leave to withdraw the challenge; in stating that the juror (as of course he meant) was not challenged he appears to have been expressing the view that the attempted challenge by the applicant was a nullity. The learned trial judge gave no express ruling and his action in silently allowing the juror to be sworn is more consistent with the view that he accepted that no valid challenge had been made than with the view that he gave permission to withdraw a challenge effectively made. Moreover, in my opinion, the applicant's counsel had no authority to withdraw the challenge which his client had made. It was not simply unwise for counsel to attempt to override his client's action as he did, but his general authority did not enable him, without obtaining instructions from his client, to reverse a step deliberately taken by his client in the course of the trial. In my opinion, no withdrawal of the challenge was effected.

The present case is distinguishable from Reg. v. Harrington and Hanlon [10] . The facts of that case, so far as they are relevant, are stated in the judgment as follows, at p. 2:

When the tenth or eleventh juryman came to be sworn, junior counsel for the appellant Harrington had undertaken the burden of exercising the right of challenge not only on behalf of his client, but on behalf of another defendant as well. When that juryman had risen, taken up the book and begun reading from the card with which he had been provided, it seems that Harrington intimated that he wanted to challenge that juror. Apparently he uttered the word "challenge" but it does not seem to have been audible beyond the confines of the dock, but counsel, as was his duty, pursued the matter and repeated the challenge audibly at the stage when the juryman had spoken the words: "I swear by Almighty God", while holding the book, as he had been told to do. The learned trial judge held that the challenge was too late to be effective. The Court of Criminal Appeal dismissed an appeal, holding that the strict rule, that the time for challenging a juror is before the swearing of that juror begins, is still in force and that the relaxation of that rule is a matter of discretion. It does not appear to have been argued at any stage that the prisoner himself had made an effective challenge, and no doubt this is explained by the fact that his utterance was not audible beyond the confines of the dock. 1. (1976) 64 Cr. App. R.1

The right of challenge has existed from very early times. The right of a prisoner accused of felony to challenge peremptorily no less than thirty-five jurors was established at least by the fifteenth century, for it is mentioned by Fortescue (see Stephen: History of the Criminal Law of England (1883), vol. 1, p. 302). The number of challenges has been limited by statute, but the right remains. Over the centuries, eminent lawyers have constantly asserted the importance of the right of challenge, which, as was said in Forsyth, History of Trial By Jury (1852), p. 175, "is almost essential for the purpose of securing perfect fairness and impartiality in a trial". According to Coke, "the end of challenge is to have an indifferent trial, and which is required by law; and to bar the party indicted of his lawful challenge, is to bar him of a principal matter concerning his trial": 3 Inst. 27, c. 2 (cited in Joy, op. cit., p. 1). In Mansell v. The Queen [11] Lord Campbell C.J. said that without the power of challenge "it is quite obvious that justice could not be satisfactorily administered; for it must often happen that a juror is returned on the panel who does not stand indifferent, and who is not fit to serve upon the trial, although no legal evidence could be adduced to prove his unfitness". That reason remains convincing today. More recently Lord Devlin has said (in Trial by Jury, p. 31):

Trial by jury will be useless as a safeguard for the subject, as it has proved useless in the past, if it means trial by a packed jury. Therefore the precautions which the law takes to secure that a jury is unbiased and independent must be preserved and understood. There is good reason for the rule, which is established by the authorities, that if a peremptory challenge by an accused person is wrongly disallowed there is a mistrial and the conviction will be quashed: see Gray v. The Queen [12] ; Levinger v. The Queen [13] ; R. v. Williams [14] ; Reg. v. Page [15] . In such a case, under the old procedure, a venire de novo might have been ordered, and in Crane v. Director of Public Prosecutions [16] it was held that the power to order a venire do novo passed to the Court of Criminal Appeal in England. However, in Western Australia the proper course, if a conviction is quashed in these circumstances, and if it is considered that the accused should not be discharged, is to order a new trial. Section 704 of the Criminal Code, like s. 20 of the Criminal Appeal Act, 1907 Eng. considered in Crane v. Director of Public Prosecutions abolished writs of error and the existing powers of the Supreme Court in respect of new trials, but the Criminal Code, unlike the Criminal Appeal Act, gave the Court of Criminal Appeal power to order a new trial in any case in which it allowed an appeal against conviction (s. 689 (2)) and this, in Western Australia, was the substitute for the procedure which was abolished. If, within time, the applicant had appealed against his conviction on the ground that his right of challenge had been wrongfully denied, the appeal should have been allowed, but, in the circumstances, a new trial should have been ordered. 1. (1857) 8 El. & Bl. 54, at p. 71 [120 E.R. 20, at p. 27]. 2. (1844) 11 Cl. & F. 427 [8 E.R. 1164]. 3. (1870) L.R. 3 P.C. 282. 4. (1925) 19 Cr. App. R. 67. 5. [1965] Crim. L.R. 444. 6. [1921] 2 A.C. 299.

The failure of the applicant to raise this matter when he appealed to the Court of Criminal Appeal in 1976, and the delay that has since occurred, were serious obstacles in his path to a successful application for enlargement of time and the grant of special leave to appeal. However, in the circumstances which I have mentioned, which provide some explanation for his failure and delay, and having regard to the gravity with which we must view any denial of the rights of an accused person in empanelling a jury, it was appropriate to exercise our discretion in favour of the applicant, to treat his application as an appeal from the judgment of the Court of Criminal Appeal, to allow the appeal, quash the conviction and order a new trial.

An accused's right to peremptory challenge is both ancient and important, being fundamental to our system of trial by jury. As became very apparent in argument on the present application, variations exist from jurisdiction to jurisdiction in Australia concerning both the precise mode of its exercise and the extent (if any) to which an accused is assisted in its exercise by being supplied with information about the composition of the jury panel in advance of the trial. Opinions may differ upon such procedural aspects. There can, however, be no doubt that an accused must always effectively retain the right, if he wishes, personally to exercise his peremptory challenges until they are exhausted. When exercised by him the court must give effect to them. Since that did not occur in the present case, as appears from the circumstances of the trial as recounted in other judgments, the orders made by this Court followed as a necessary consequence.

I am in agreement with the reasons for judgment prepared by Gibbs J.

Mr. Johns applied for special leave to appeal against a judgment of the Supreme Court of Western Australia (Court of Criminal Appeal) dismissing his appeal on 2nd August 1976. His application was well out of time and he relied solely on the ground that his trial and conviction before the Supreme Court on 12th March 1976 was a nullity because his right to challenge a juror was denied him. The applicant did not take this point at his trial or on his appeal to the Supreme Court, but raised it in the first of his petitions of mercy under s. 21 of the Criminal Code Act, 1913 W.A. which was denied, as was the second, and also on his application to the Supreme Court for habeas corpus which was dismissed.

An accused's ancient right of peremptory challenge to a number of jurors is given statutory force by s. 38 of the Juries Act, 1957 W.A. as amended, which provides:

(1) any party at any criminal trial may challenge peremptorily eight jurors, except where two or more than two persons are charged with the same offence and are put on trial together in which case each of those persons may challenge peremptorily six jurors.

On his trial the applicant duly challenged a prospective juror. Without authority from the applicant, his counsel informed the trial judge that the juror was not challenged. The juror was then sworn and participated in the verdict of guilty.

An accused may conduct his trial through counsel but the right to challenge is his, not counsel's. The respondent claimed, and the applicant conceded, that on announcing his appearance for the applicant, counsel stated that he would exercise the right of challenge, but such an arrangement, even if accepted by the court, cannot prevail against the applicant's right to challenge. Counsel did not challenge any prospective juror and in his address to the jury stated that it was his policy not to challenge jurors. It would be improper for counsel, if he had such a policy, to obtain authority to exercise the right of challenge on behalf of an accused unless he had informed the accused that he did not intend to exercise the right. Counsel may be authorized to exercise the right on an accused's behalf, but not to the exclusion of the accused, who cannot be deprived of his right by any prior agreement with, or instructions to, counsel.

A judge should permit a challenge to be withdrawn in the same way that he should permit a plea of guilty to be withdrawn if made in mistake. In order to avoid mistakes and to ensure that the right may be effectively exercised, an accused (and his counsel) should have full opportunity to observe and identify jurors before the accused is required to exercise his right of challenge.

The trial was a nullity. For this reason, I agreed to the order that the application for special leave should be granted, the appeal allowed, and a trial ordered.

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy JJ. Johns v The Queen [1979] HCA 33

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