The case law
48 In Tuckerman v Tuckerman and Hogg (1932) 32 SR (NSW) 220, the following passage appears (at 242):
The Courts have always set themselves against the granting of new trials for what may be termed irregularities in composition of the jury. As early as the time of Lord Ellenborough it was held that the fact that a man whose name was not on the panel had served as a juror was not sufficient reason for setting aside a verdict. In Hill v Yates (12 East 229) the judgment of the Court is set out in these words: "Lord Ellenborough, CJ, after adverting to the motion which had been made and to the two cases which were then mentioned, observed that in the latter of them, the Court appeared to have considered the application as a matter within their discretion and that no injustice having been done, they had refused to interfere. His Lordship then said that he had mentioned this case to all the Judges and they were all of the opinion that it was a matter within their discretion to grant or refuse a new trial on such a ground; and that if no injustice had been done, which was not pretended in this instance, they would not interfere in this mode, but would leave the party to get rid of the verdict as he might. That if they were to listen to such an objection, they might set aside half the verdict given in every assizes where the same thing might happen from accident or inadvertence and possibly sometimes from design, especially in criminal cases. …"
49 A stricter approach has since been adopted in this country. In Maher (1987) 163 CLR 221, two charges were added to the indictment after the jury had been sworn. The jury was not resworn. The appellant was convicted on one of the added charges. It was held that there was a failure to comply with mandatory provisions governing the constitution and authority of the jury. The conviction charged in the added count was set aside. In their joint judgment, Mason CJ, Wilson, Brennan, Dawson and Toohey JJ said at 233-4:
The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s 604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor . In any event it involves such a miscarriage of justice as to require the conviction to be set aside. Thus, in Reg. v Smith a trial was regarded as a nullity because a challenge for cause had been wrongly determined by the judge and not by the jurors. The converse situation arose in Reg. v Hall where the trial judge directed jurymen to try a challenge for cause when the relevant statute required the judge to try any challenge. The conviction was set aside. A similar view was taken in Reg. v Short . There a juryman was taken ill and the remaining jurymen were discharged but did not leave the jury-box. Another juryman was called and sworn but the other eleven jurymen were not resworn. Judgment against the prisoner was reversed for error on the record. Again, in R v Dempster , when it appeared that one of the jurors while duly empanelled and chosen had not been sworn, the court directed the record to be amended by expunging all entries subsequent to the plea of not guilty.
[Footnotes omitted]
50 In Johns (1978) 141 CLR 409, the accused challenged a juror. His counsel withdrew the challenge, purportedly overriding the accused's decision. The juror was not stood aside and was included in the jury. It was held that the accused had been denied his right to challenge, the jury had accordingly not been constituted according to law and the trial was a nullity.
51 Katsuno (1999) 199 CLR 40 involved a practice under which the Victorian Police provided the Director of Public Prosecutions with advance information concerning persons listed on jury panels for the purpose of assisting the Director in relation to peremptory challenges. The legislation provided for such information to be supplied to the Director but at a later time. Supply of the information in advance was unlawful. A majority of the court Gaudron, Gummow and Callinan JJ held that the unlawful supply of such information vitiated the trial. Statements of principle were made in the course of the joint judgment.
[35] At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the Court in Maher, they are concerned with "failure to observe the requirements of the criminal process in a fundamental respect" of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect.
[41] The question in this case is whether there was a fundamental failure to observe the requirements of the criminal process. As Maher and Johns show, there will have been a failure of that kind if there was a failure to comply with a mandatory provision relating to "the constitution and authority of the jury". However, not every legislative provision is a mandatory one. In this context, it is convenient to return to the Act. For example, it hardly seems likely that a minor arithmetical error by the Sheriff in notifying the Electoral Commission of the number of persons required for jury service, or an error as to the exact location of a juror's residence within 32 km of a relevant court house pursuant to s 8, would invalidate the process for which that section makes provision. Nor would an omission to send a questionnaire as required by s 10(2) to every person recorded on a jury list be likely to render a nullity a verdict given by a jury selected from a panel which might have been a little more numerous had all questionnaires been sent as required.
[42] Part IV of the Juries Act in which s 21 appears is concerned, as the heading states, with the summoning of jurors. Some of its provisions are clearly mandatory (eg , ss 14 and 17, dealing with the number of jurors, and ss 20 and 23, dealing with random selection). It is true that any jury will have to be constituted from a panel prepared pursuant to Pt IV and after the processes referred to in s 21 are complete.
[43] In this case, however, the jury was constituted from such a panel. The complaint in this case is not that the jury panel was not properly constituted but that a particular person was not a member of the jury finally chosen. This is not a case, as was the situation in Maher , Short and Dempster , where there was non-compliance with legislative provisions or mandatory procedures which resulted in a person or persons sitting on the jury when not entitled to do so. Rather, it is a case involving the exclusion of a potential juror who, as already pointed out, could have been excluded by peremptory challenge for any reason, whether good or bad.
[Footnotes omitted and emphasis added]