//
[2005] VSCA 89
General information, not legal advice.
Court of Appeal (Vic)
2005-04-11
BATT, CHERNOV and VINCENT, JJ.A.
Original judgment source is linked above.
CRIMINAL LAW - Procedure - Trial - Jury - Empanelment - Erroneous statement by Associate and judge that only one peremptory challenge remained - Next potential juror selected - Then error corrected - Whether fundamental defect vitiating trial - Juries Act 2000, s.39(1)(a).
1 An earlier jury having been empanelled and discharged on 5 August 2004, the applicant, Anthony Norman Cherry, pleaded not guilty on arraignment in the County Court at Melbourne on the following day to a count of causing the taking of a drug for the purpose of sexual penetration, contrary to s.53(b) of the Crimes Act 1958, and an alternative count of causing the taking of a substance capable of interfering with bodily functions, contrary to s.19 of that Act. The alleged victim in each case was the former wife of the applicant. The maximum penalties for the offences were imprisonment for ten years and five years respectively.
2 There followed the empanelling of a jury, to the details of which it will be necessary to refer later. The applicant's trial proceeded. The judge rejected a submission made at the close of the Crown case that there was no case to answer. The applicant neither gave nor called any evidence. On 19 August 2004 the jury returned a verdict of guilty on count 1. The applicant had no previous convictions or findings of guilt. After hearing a plea in mitigation of penalty on 30 August, her Honour on 1 October 2004 sentenced the applicant to be imprisoned for four years and six months and fixed a non-parole period of two years and six months.
3 On 11 October 2004 the applicant gave notices of application for leave to appeal against conviction and against sentence. It is unnecessary to refer further to the latter application. With regard to the former application, the Full Statement of Grounds, filed on 13 January 2005, contains five grounds, of which the fifth, alleging non-direction, was not pursued. The other grounds read (omitting particulars):
"1. The trial miscarried on account of an improper and/or unlawful empanelment process employed in the selection of the jury in that for a period of the empanelment, the applicant was incorrectly instructed by the learned trial judge that he had only one peremptory challenge remaining when in fact he had two such challenges, thus denying or restricting the applicant effectively from making peremptory challenges to the prospective jurors as drawn by Her Honour's Associate during the said period.
and, as a consequence, there has been a substantial miscarriage of justice.
As particulars of each of grounds 2, 3 and 4 the applicant referred to and repeated the respective ground or grounds preceding it.
4 I return to the empanelment. After her Honour had heard and dealt with applications to be excused from jury service, her Associate, as the proper officer, addressed the applicant as follows:
"Accused at the Bar, the names you will now hear called out are of the jurors who are to pass between our sovereign lady the Queen and you upon your trial. If you wish to challenge them or any of them, you may do so as their names are called before they take their seats in the jury box and you shall be heard. You have the right to challenge six jurors without showing any cause, and in addition you may challenge any potential juror if you can show good cause for your challenges."
As required by s.39(3) of the Juries Act 2000, the person instructing counsel for the applicant was permitted by her Honour to assist the applicant in his peremptory challenges. After addressing the prosecutor about standing jurors aside and the members of the jury panel as to what was required of them if their names were called, the Associate commenced to select persons from the panel and to call out their names and occupations. By the time ten names had been called the applicant had challenged four potential jurors, the Crown had stood aside none and six jurors had been selected. At that point the Associate, addressing the applicant, said, "You have now challenged five jurors. You have the right to challenge one more." The person recorded as "Counsel", being apparently the instructing solicitor of the applicant's counsel, not the prosecutor (who is recorded elsewhere by his name), queried with the judge whether that was right, saying, "I counted four". Her Honour said that she thought it was the fifth. Counsel for the applicant said that his instructing solicitor had four and that he himself had not been counting. Her Honour said that she thought it was four too, did a "double check" and said that it was five, "That's the fifth". The Associate then called the next name and the occupation of that person, "bank officer". That person was not challenged and became the seventh juror. Her Honour then interposed to apologise and to say that the Associate had incorrectly recorded as challenged the ninth person whose name had been called and that the number challenged was four. Counsel for the applicant thanked her Honour. The empanelment proceeded without further challenges until the eleventh juror had been selected, when the next potential juror, the sixteenth, was challenged. Thereupon the Associate warned the applicant that he had the right to one more challenge. The next potential juror was not challenged and became the twelfth juror. The jurors were then sworn and the trial proceeded as already mentioned.
5 Thus, in respect of one, but only one, potential juror, who ultimately became a juror empanelled, the applicant as accused made his decision whether or not to exercise his right of peremptory challenge in the context of a warning by the Associate, confirmed by the judge's ruling, instruction or at any rate determining of a query raised by the applicant's solicitor, that the applicant was entitled to only one further peremptory challenge; and the warning and confirmation were erroneous but were submitted to on behalf of the applicant. The error was corrected before the next potential juror's name was called.
6 The question is: what was the consequence of the erroneous warning and confirmation of it? The answer depends on how the error and its seriousness are characterised. Counsel could find no case in Anglo-Australasian and North American jurisdictions that was right in point.
7 The applicant contends that there was a miscarriage of justice within the third limb of s.568(1) of the Crimes Act and that the conviction must be quashed.
8 The respondent, however, contests that, contending that the only detriment to the applicant was that he made a strategic decision not to exercise his right of challenge in respect of the eleventh potential juror. It was said, correctly, that he could have done so, using what he had been told was his last right of challenge, but, it was said, for tactical or other reasons, he chose not to do so. According to the respondent's submission, the most that can be said is that the strategic decision-making of the applicant in respect of the exercise of a peremptory challenge in relation to one potential juror may have been adversely affected by the trial judge's error. I pause to say that the word "adversely" is not without significance. However, the submission continued, more is necessary for a miscarriage of justice than speculation as to whether the applicant was discouraged from exercising a right of challenge which he might otherwise more readily have wielded. The applicant was not, it was submitted, denied the right to the statutable six peremptory challenges. He exercised five of them and could also have exercised a challenge in respect of the eleventh potential juror. For there to be a miscarriage of justice in respect of jury selection there needs to be, it was submitted, a fundamental defect in the constitution of the tribunal to try the issues between the Crown and the accused, going to the root of the trial.[1] Put another way, the question is whether there had been "a fundamental failure to observe the requirements of the criminal process"[2], such as occurs where there is a failure to comply with a mandatory provision relating to the constitution and authority of the jury. That, it was submitted, had not occurred in this case: all that had taken place was that in respect of the potential challenge to one juror the applicant laboured by reason of an error under the misapprehension that he had only one challenge remaining to be exercised, whereas in fact he had two.
9 It was accordingly submitted for the respondent that what occurred by reason of the trial judge's error was essentially an inconsequential irregularity in the processes leading up to the swearing in of the jury and that that should not be regarded as impacting on the legitimacy of the trial or the lawfulness of the constitution of the jury: and R. v. Panozzo and Iaria[3] was compared. It had been open to counsel for the applicant to make submissions about the number of challenges and to have the tape played back to support his belief that there had been only four. But he failed to do so. Further, when the judge corrected the position after the seventh juror had taken her seat in the jury box, counsel, rather than seeking to have the seven persons seated in the jury box discharged (as occurred in R. v. Dooley[4]), simply thanked the trial judge. Whilst it was acknowledged that a fundamental irregularity cannot be waived by counsel, where (as it was submitted was the case here) an irregularity was of lesser consequence the failure of counsel to take exception to it was relevant to the question whether an appellate court should interfere with a jury decision.
10 For the reasons which follow, those submissions for the respondent cannot be accepted. By s.39(1)(a) of the Juries Act, where only one person is arraigned in a trial that person is "allowed" to challenge peremptorily six potential jurors. The fundamental nature of the right of peremptory challenge and its non-amenability to infringement, interference or limitation was re-stated by the High Court in Roger Johns v. The Queen[5]. Barwick, C.J. stated[6], "The right of challenge, and particularly the right of peremptory challenge, lies at the very root of the jury system as it now exists." Similarly Stephen, J.[7], describing the right to peremptory challenge as both ancient and important, said that it was "fundamental to our system of trial by jury". Barwick, C.J. also said[8] that it was incontestable that "the denial of the applicant's right of challenge" (which had occurred there) vitiated the proceedings on the indictment, for it was "settled that if an accused's challenge is improperly disallowed or not given effect, the subsequent proceedings cannot yield a lawful conviction" since there had not been "a trial according to law". The Chief Justice also said[9]: "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 interpose that the applicant put considerable weight on the last clause in that passage and drew a contrast with what occurred in this case. Gibbs, J. (with whom Mason, J. agreed), having said[10] that if a peremptory challenge is wrongly disallowed there is a mistrial and the conviction will be quashed, spoke[11] a little later of "the gravity with which we must view any denial of the rights of an accused person in empanelling a jury". In Katsuno v. The Queen[12], Gaudron, Gummow and Callinan, JJ. referred to the importance and mandatory nature of the respective legislative provisions relating to the constitution and authority of the jury that were considered in Johns and in Maher v. The Queen[13].
11 Here, although the applicant could have exercised his right to challenge peremptorily the eleventh potential juror called, the actual exercise of that right must have been affected by the errors of the Associate and the judge, for the applicant knew that six jurors were yet to be empanelled and he had been told or instructed by the judge that he had only one peremptory challenge left.[14] The erroneous statement here prevented the applicant, as was submitted on his behalf, from freely exercising his fundamental right. For him reliance was placed on the word "allowed" in s.39(1) and it was said, correctly, in my view, that, for a period, his capacity to exercise the right to peremptory challenge was reduced. The correction did not and could not overcome or eradicate that. To put the matter another way, the judge's statement confirming the Associate's warning fettered or burdened the applicant's exercise of his fundamental right. The submission for the respondent that the applicant was not denied the right to the six peremptory challenges is not correct without qualification. Whilst it is true that he was ultimately not denied the right to a sixth peremptory challenge, he was denied the right to six peremptory challenges from the time the eleventh potential juror's name was called until that person took her seat in the jury box. There was for a period in the empanelling process non-compliance with a mandatory statutory provision relating to the constitution of the jury.[15] In short, the applicant had, as a fundamental requirement of a trial according to law, the right to a jury properly selected in accordance with the Juries Act, but that right of his was restricted, constrained, impaired or interfered with, indeed for a time denied in its fullness. The defect went to the constitution of the tribunal of fact that was to pass between him and the Crown. It was not a mere or inconsequential irregularity, but "a fundamental failure to observe the requirements of the criminal process".[16] The defect in the constitution of the jury went to the root of the trial and constituted a miscarriage of justice of a kind that falls outside the purview of the proviso to s.568(1).[17]
12 Accordingly grounds 1 to 4 set out earlier are established. The application for leave to appeal against conviction must be allowed, the appeal taken to be instituted and heard instanter and allowed, the conviction on count 1 of the presentment quashed and the sentence passed thereon set aside and a new trial of the appellant on counts 1 and 2 directed to be had.
13 I make two concluding comments. First, this case serves to illustrate the importance of the functions Associates discharge in trials and to show the need for care and accuracy in their discharge.[18] Secondly, it may be noted for the future that an easy method of speedily removing the doubt raised or curing the subsequently acknowledged error lay to hand: the persons selected could have been discharged back into the panel and empanelment of a fresh jury commenced. The time and cost of an appeal and a new trial would have been avoided.
14 In my view, for the reasons given by the learned presiding judge, the error here was not an inconsequential irregularity as the Crown submitted, but, as a matter of proper characterisation, is of a fundamental nature, amounting to a denial of the applicant's undoubted right to have six peremptory challenges to potential jurors. This went to the root of the empanelling process of the jury and of the trial, and thus, for the reasons given by his Honour, I agree that the application should be disposed of as he proposes.
15 I agree with the disposition of this matter proposed by Batt, J.A., and I do so for the reasons advanced by him.
16 The order of the Court is as follows:
THE COURT ORDERS THAT:
1. The application for leave to appeal against conviction is allowed.
2. The appeal is taken to be instituted and heard instanter and is allowed.
3. The conviction sustained by the appellant in the County Court at Melbourne on count 1 of presentment No. Q01274605 is quashed and the sentence passed
thereon is set aside.
4. A new trial of the appellant on counts 1 and 2 of the presentment be had.
5. The appellant is remanded in custody pending the new trial, without prejudice, however, to any application for bail.
"OTHER MATTERS" will record that an indemnity certificate was granted to the appellant under s.14 of the Appeal Costs Act 1998, such certificate to include any additional costs that the appellant will pay, or will be ordered to pay, as a consequence of the order for a new trial.
[1] R. v. Hall [1971] VicRp 35; [1971] V.R. 293 at 299 and R. v. Panozzo and Iaria [2003] VSCA 184; (2003) 8 V.R. 548 at 556.
[2] Katsuno v. The Queen [1999] HCA 50; (1999) 199 C.L.R. 40 at 61.
[3] At 552 [29].
[4] [1972] VicRp 7; [1972] V.R. 55.
[5] [1979] HCA 33; (1979) 141 C.L.R. 409.
[6] At 418.
[7] At 429.
[8] At 419.
[9] At 418.
[10] At 429.
[11] At 429.
[12] At 60 [34] and [35].
[13] [1987] HCA 31; (1987) 163 C.L.R. 221.
[14] This is not to consider or speculate as to what the appellant would have done if the error had not been made, for, as the Full Court said in R. v. Hall at 299, speaking of the proviso to s.568(1), "In considering the application of the proviso it should be borne in mind that it is a provision that contemplates proceedings in a lawfully constituted tribunal in which some error or irregularity not amounting to a substantial miscarriage of justice has occurred. Where a departure from regular and duly recognised process of law is involved, the question of miscarriage of justice depends not upon the effect of the departure on the verdict, but upon whether there has been a serious departure from the essential requirements of the law."
[15] Cf. Katsuno at 60-62 [34] [35] [41] [43].
[16] Katsuno at 61 [41], per Gaudron, Gummow and Callinan, JJ. Compare the expression in Maher v. The Queen at 234, "failure to observe the requirements of the criminal process in a fundamental respect".
[17] R. v. Hall [1971] VicRp 35; [1971] V.R. 293 at 299.
[18] Similar functions are the endorsing of the presentment with a record of proceedings and, especially, any sentence, and the keeping of the exhibits.
R
Cherry [2005] VSCA 89