R v Panozzo; R v Iaria [2003] VSCA 184

Court of Appeal (Vic)|2003-11-24|Before: BUCHANAN and VINCENT, JJ.A. and HARPER, A.J.A.

Criminal Law - Practice and procedure - Jury empanelment - Juror "excused" after whole jury sworn - Remainder of jury not discharged - Further juror sworn - Fundamental irregularity - Re-trial ordered.

I agree with Vincent, J.A. that, for the reasons he has stated, the applicants should be granted leave to appeal, the appeals allowed and new trials ordered.

The applicants were jointly presented before the Supreme Court on 9 April 2001, charged with the murder of Peter Francioli. No need exists for the purposes of the present applications to outline the background against which this occurred or the evidence adduced in the course of their subsequent trial.

The matter was set down for trial at Wangaratta on 22 October 2001 and commenced on the day appointed. After a number of preliminary matters were addressed, a jury panel was assembled and, on 29 October 2001, was brought into court. The panel was called over and applications to be excused from jury service were heard by the trial judge. Upon completion of that process the applicants were 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, at 3.08 p.m. the appointment of a foreman was announced. In accordance with normal procedure, the applicants were declared to be in the charge of the court so constituted. The trial judge then provided some necessary preliminary instructions to the jury and at 3.21 p.m. they were sent home with the proceedings being adjourned to the following day.

However, after the court adjourned, one juror informed the Registrar of a wish to be "excused" from service in the trial. On being told of the situation, the trial judge kept the juror separate from the other members until the matter was determined. In the absence of the jury he intimated to counsel that, should the application be granted, he would have the balance of the panel from which the jury had been selected return to the court. Then, without discharging the remainder of the jury, another person would be selected as a replacement.

5 Adverting to the fact that each of the applicants had exhausted his right to peremptory challenge, the trial judge stated:

"It seems to me as a matter of fairness as well as a matter of locus,[1] I ought to grant each accused one further peremptory challenge. That is for two reasons. This is a new development and I think as a matter of fairness each accused ought to have one further challenge, and secondly, I think as a matter of locus, each accused should have one further peremptory challenge because it may be that if this juror had applied to be excused and had been refused before the challenges were called for, one or other of the accused might have challenged this juror on the very ground that she had wanted to be excused and the fact that the accused have now exhausted their right to peremptory challenge, would deny them that locus of such a challenge. I do not consider a challenge for cause would be justified, merely because a person has been refused exemption, but I think in the circumstances, both fairness and locus warrants me giving each accused a further peremptory challenge."[2]

As I understand the situation, the members of the panel who had not been selected for service in the trial had been requested to return on that day and were situated in another room in the building. The prosecutor was somewhat troubled about the course proposed by his Honour and contended that the jury should be discharged and another jury empanelled. He submitted

"There's one aspect that troubles me, it's this, Your Honour: that we have proceeded to this point. The jury has been selected, they have chosen a foreman. The accused has been placed in charge of this jury and Your Honour has given them instructions in relation to their duties from this point on. So they're very much in charge, and that is the area I think everybody feels sensitive about, that we make adaptations rather than follow a strict line. HIS HONOUR: I think the fact that the jury is in charge is not an absolute conclusion to the question, [Counsel]. They've heard no evidence, they've heard no openings. All they've done is receive some routine but important instructions from me which I can give to the new juror if we get to that point, and they've chosen a foreman, and again the jury can reassess that if they want to now that the 12th person is there. I've done it once before and I think the jury took about 30 seconds and said, `Keep the one we've got', in relation to the foreman. So I think that's a practical matter which won't cause any jurisdictional difficulties I would - - - COUNSEL: Your Honour, can I just say this finally, that there's much force and common sense in what Your Honour is saying, the approach that you are favouring at this time. However, my instruction is to urge Your Honour to be cautious and to adopt the longer method, and that's our position."[3]

The judge then said that the procedure to be adopted would be considered further, if he found the application by the juror to be "excused" to be "persuasive". The application was heard and granted; the judge again indicated that he proposed to have the jury panel brought into the court and another juror selected to join the existing jury. Whilst the prosecutor maintained his earlier position, counsel for each of the applicants supported the approach favoured by his Honour. The replacement juror was empanelled in accordance with this process and the trial proceeded. The jury retired to consider their verdicts on 12 December 2001 and, two days later, returned a verdict of guilty against each of the applicants.

After hearing pleas in mitigation of penalty, his Honour, on 26 February 2003, sentenced each to a term of imprisonment of 20 years in respect of which a non-parole period of 16 years' imprisonment was fixed. Each, in due course, gave notice of an application for leave to appeal against both his conviction and the sentence imposed upon him.

The Notice Of Application For Leave to Appeal Against Conviction in each case asserted that there had been deficiencies in the trial. Each contended that a separate trial of his case should have been conducted and there were various complaints made with respect to the evidence and the instructions given to the jury by the trial judge.

Later, each of the applicants abandoned his application for leave to appeal against sentence and all of the grounds set out in his application for leave to appeal against conviction. However, each was granted leave by the Registrar to add further grounds, expressed in identical form. They read:

"6. The learned trial judge erred in failing either to: (i) discharge the whole jury without verdict; or, in the alternative (ii) direct that the trial of the applicant continue with a jury of 11 jurors - consequent upon granting the application to discharge one member of the jury, in turn consequent upon such an application having been made by that juror and, as a consequence, there has been a substantial miscarriage of justice. 7. The learned trial judge erred in empanelling a person as a juror, and thereby permitting that person to be a member of the jury which returned a verdict of Guilty in respect of the applicant, in circumstances where: (a) a jury of 12 had already been selected, empanelled and sworn; (b) a foreman of that jury had been selected by the members of that jury; (c) both accused (as they then were) had been placed in the charge of that jury; (d) the remaining members of the jury panel (from which the said jury of 12 had been selected, empanelled and sworn) were excused by the learned trial judge; (e) the learned trial judge had given a set of preliminary directions/instructions to that jury; (f) that jury had been `excused' by the learned trial judge until the next day; (g) at the commencement of that next day, the learned trial judge discharged one member of that jury, consequent upon such an application being made by that juror; and (h) the remaining members of the jury panel (from which the said jury of 12 had been selected, empanelled and sworn) were then brought into court and another person was selected and empanelled as a juror from the said remaining members of the jury panel - and, as a consequence, there has been a substantial miscarriage of justice."

The argument before us has been confined to the consideration of these added grounds. In other words, it was no longer contended that the trial was deficient in any other significant respect.

The central thrust of the arguments advanced before this Court can, I think, be expressed quite briefly as follows:

The process adopted by the trial judge in this case contravened the provisions of the Juries Act 2000 (Vic.). If any residuum of the common law still existed and had application in the circumstances (which I should add was not conceded), then the trial judge failed to comply with the relevant principles and practices. There was in these circumstances a fundamental defect in the constitution of the tribunal of fact which was accordingly not authorized by law to try the issues between the Crown and the applicants. This rendered the trial a nullity.

These submissions are, I consider, sound and regrettably the verdicts cannot be permitted to stand.

As the title implies, the Juries Act 2000 ("the Act") contains a number of provisions governing the conduct of trial by jury in both civil and criminal proceedings in Victoria. The provisions with which we are here concerned are located in Part 6 of the Act. The process to be followed is set out: commencing with the establishment of a jury pool (s.29), and the selection of a panel from which a required jury will be chosen (s.30). Section 31 deals, if the Court so directs, with the calling of the panel, either by name or an assigned number. Section 32 then requires that:

"(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 in 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 sub-section (3) must return to the jury pool and may be selected or allocated to a panel in another trial."

The procedure for selecting a jury in a criminal trial is set out in s.36 which reads:

"(1) After the procedures set out in sections 31 and 32 have been completed in a criminal trial, the proper officer must select persons from the panel and call out the name or number and occupation of those persons and, if there are 2 or more persons with the same name and occupation, their date of birth 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."

Sections 37, 38, 39 and 40 are concerned with the rights of the Crown and the accused to challenge or stand aside "potential jurors"

Once the jury is empanelled in accordance with the provisions of the Act, juries must, pursuant to s.42, be sworn in open court in an applicable form.

"A judge may, during a trial, discharge a juror without discharging the whole jury if - (a) it appears to the judge that the juror is not impartial; or (b) the juror becomes incapable of continuing to act as a juror; or (c) the jury becomes ill; or (d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror."

In that circumstance the judge may direct that the trial continue with a reduced jury in accordance with the provisions of s.44 of the Act. It is noteworthy that this section refers to "jurors" and not "persons" as in the sections concerned with the selection of the panel from which the jury can be chosen, or to the "potential jurors" who form part of that panel.

As counsel for the applicants contended before us, the Act sets out a straightforward sequentially ordered set of steps that, when applicable, must be followed. In the present matter, when the trial was adjourned for the evening on 29 October 2001, all of the necessary steps had been taken and the applicants were in the charge of a lawfully constituted jury.

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 5 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.

The learned trial judge, in my opinion, fell into error when he said:

"In a moment I'll have the applicant come into court and make the application to be excused. If I refuse the application, then she will take her place in the jury room and serve on the jury. As counsel appreciate, there is always some delicacy in jury applications to be excused. On the one hand, one cannot allow jury selection to descend into voluntary participation. It is a civic and lawful requirement and one can't simply permit jurors to opt out or in at their own private choice. On the other hand, no one wants disaffected persons on juries, so there is always a delicate balance to be struck. Further, I am always conscious that the parties don't have any input into the decision as to whether a juror is or is not excused and for that reason as well, I tend to err on the side of caution and excuse people, rather than require them, because I'm sensitive to the parties interest in the matter as well."[4]

When the jury panel returned to the court, his Honour stated:

"Ladies and gentlemen summoned as jurors. Thank you for being available again this morning for purposes of jury service. I am most obliged to each one of you. What has occurred is this, ladies and gentlemen, you were all present in court yesterday morning when in this case, 12 jurors randomly were selected from amongst you and I then excused you until this morning, as part of your service on the jury panel. It has turned out overnight, ladies and gentlemen, that one juror is simply unable to further attend and has been excused, so that we need to select one further person to complete the jury panel. So there will be a selection process this morning, ladies and gentlemen, in which one juror will be selected to complete the 12 on the jury. So it is really the same procedure as yesterday ladies and gentlemen. If you like mentally we are at juror number 11 and we are going to now choose juror number 12."[5]

I have considered the possibility that his Honour simply may not have expressed himself with precision in refusing to an application by the juror to be "excused" rather than "discharged", but have reached the conclusion that he did perceive the situation as the former, or at least as being equivalent to it. This, I think, can be discerned in the italicised passage above.

The judge had the power, if he considered that it was appropriate to do so, to discharge the juror from service in the trial pursuant to s.43. In that event, he could direct that it continue with the remaining jurors or discharge the jury and then empanel another. There is no warrant directly given by the section for the replacement of the discharged juror with another juror, nor can any be implied. Save that his Honour indicated that he had adopted the same course on some earlier occasion, there is nothing in the transcript that provides any indication of the basis on which he determined that he was empowered to do so. No reference was made by any of those present to the provisions of the Juries Act[6], or to any of the cases which had been concerned with the empanelment of juries, or any principles of the common law that may have been regarded as applicable in the circumstances. Similarly, although his Honour decided that it would be appropriate to allow each of the applicants one further peremptory challenge, by what authority he was so doing was simply not mentioned. I am unaware of the existence of any such power in a trial judge nor of any right of an accused to challenge apart from those set out in ss.39 and 40 of the Act.

As the prosecutor at the trial remarked when voicing his concerns, given that all involved appeared to be generally satisfied with the composition of the jury, the course of replacing a single member rather than the whole jury could be perceived as sensible. That, however, as he suggested, was not to the point. The tribunal of fact in this case was not constituted in accordance with the applicable statutory provisions.

An argument was advanced on behalf of the Crown in this Court, based upon authorities which state that earlier versions of the Juries Act were consolidations of statutory provisions and did not constitute a code. In other words, to the extent that a matter was not encompassed by some provision, the common law remained applicable. I consider that, in view of the presence of the various provisions in Part 6 of the Juries Act to which I have referred, it is highly unlikely that any residium of common law power remains with respect to the empanelment or discharge of jurors. I need not pursue this question as, if that is not the case, the position would not be affected; the appropriate procedure at common law not being followed in any event.

The authorities indicate that, at common law, where a juror was discharged, the entire jury would also have to be discharged.[7] Indeed, as I understand the position, it was by reason of the obvious inconvenience created by this requirement that statutory provisions permitting the trial to continue with a reduced number were enacted.[8] Sometimes the remaining jurors were re-empanelled with a replacement juror for the discharged member.[9] In that situation, however, the accused was entitled to the opportunity to challenge all the jurors and, accordingly, could avail himself of the full number of challenges open in the circumstances.[10] Upon the replacement juror being empanelled, the whole jury was sworn.[11] I am not aware of any case in which the course adopted by the trial judge in the present matter has been pursued or approved and none has been drawn to my attention by either counsel in their written or oral submissions. Accordingly, I know of no foundation in law for the particular course followed in this case.

Although as I have indicated Mr McArdle, who appears for the respondent, drew the attention of the Court to authorities in which it was held that earlier versions of the Juries Act were consolidations and did not constitute a code with respect to the conduct of criminal trials by jury, he accepted that the operation of the common law must be regarded as excluded by specific provisions covering the same subject matters.[12] Accordingly, the central thrust of his argument was directed to the question of whether there had been a miscarriage of justice in this case. In support of this position, he pointed to the fact that each of the counsel appearing for the respective applicants specifically endorsed his Honour's approach. They were, Mr McArdle asserted, clearly content with the general composition of the jury. Each of the applicants was given, albeit without entitlement, a further challenge. No complaint was advanced by either of them at the trial in relation to that aspect nor could there be any in the circumstances. All members of the finally assembled jury had been sworn and there is no suggestion that any were not qualified to sit as jurors. There was now no claimed deficiency in the trial and no issue arose with respect to the constitution of the jury until well after the two applicants were convicted. The present complaints were opportunistically based upon the adoption by the trial judge of an unconventional method and not from any serious possibility that a miscarriage of justice might have occurred.

In a practical sense, these propositions possess considerable force. There is, however, an insuperable obstacle lying in the path of their acceptance. Accused persons who are presented before a jury are not only entitled to have their cases considered by a lawfully constituted tribunal, but are required to subject themselves to that process. As not only the interests of the particular accused are involved but also those of the general community in ensuring that criminal trials are properly conducted according to law, it is not for the accused to decide whether or not to accept an invalidly constituted tribunal. The Court of Criminal Appeal addressed this possibility in R. v. Hall stating:

"... an irregularity which relates to the constitution of the jury cannot be waived. The defect went to the validity or the constitution of the jury as a body authorized by the Act to try the issues between the Crown and the applicant. With the incorporation of Mrs Trevine, the challenged juror, in the jury when she did not remain approved as indifferent as required by s.33 [13] of the Act, the jury, in our opinion, was simply not a body constituted as required by the Act. The applicant could not, in our view, effectively consent to be tried by a body unauthorized by law, nor could his consent confer upon the jury the constituent element it lacked. We are confirmed in this opinion by the views expressed by the members of the Full Court of New South Wales in R. v. Short, where all but one member of the jury were unsworn. We are similarly confirmed by the decision of the English Court of Criminal Appeal in R. v. Solomon, where it was held that a conviction by a jury composed entirely of talesmen was a nullity notwithstanding that the accused by his counsel had consented to trial by a jury so constituted." [14] (Citations omitted.)

The system of law under which our courts operate embraces as one of its finest achievements the development of trial by jury. Sir Patrick Devlin, in a Hamlyn Lecture, echoing the earlier words of Blackstone, once described the jury as a "bulwark" of liberty.[15] Although that "bulwark" may not seem as secure as it once was, the central role of the jury in our legal system is still accepted as it represents the determination by independent and impartial members of the general community of the issues raised by the making of an allegation of serious criminal conduct against an individual. The integrity and the perception of the integrity of that system is a matter of considerable importance. Only if the community can be entirely confident that the proper procedures have been followed will the reality and perception of integrity of the process be maintained.

Whilst from time to time what have been regarded as essentially inconsequential irregularities in the processes leading up to the swearing in of the jury have been accepted as not impacting on the legitimacy of the trial[16], to my knowledge in no case that this was done was it considered that the trial had been conducted before an unlawfully constituted jury.[17] In that situation, it is not appropriate to enquire as to whether an irregularity that resulted in an unlawfully constituted jury may have occasioned some other miscarriage of justice, as the defect is considered by the law to be of so fundamental a character that the trial is viewed as a nullity. The High Court in Wilde v. R.[18] considered the position where an irregularity has occurred which is such a departure from the essential requirements of the law that it went to the root of the proceedings and held that:

"If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice."[19]

As the Court of Criminal Appeal said in Hall:

"In the present case, as we have said, the departure consisted of the jury not being constituted in the manner required by the Juries Act 1967. There was a fundamental defect in the constitution of the tribunal to try the issues between the Crown and the applicant. Such a departure, in our opinion, is one that goes to the root of the trial and constitutes a miscarriage of justice of a kind that falls outside the purview of the proviso." (Citations omitted)[20]

That situation has regrettably arisen in this matter. I would accordingly allow the application, set aside the conviction in the case of each applicant and order that each be retried.

[1] On the assumption that the transcript accurately records what was said, I am uncertain as to what his Honour was referring by the use of this expression.

[6] I should point out that at a relatively early stage of the discussion on this matter, one of the defence counsel indicated that he had not had the opportunity of considering the Juries Act provision.

[7] R. v. Hambery [1977] 1 Q.B. 924.

[8] R. v. Ousley (1996) 87 A.Crim.R. 326 at 343, per Hayne, J.A. Southwell and Smith, A.JJ.A.

[9] R. v. Beere [1843] EngR 430; (1843) 174 E.R. 353; R. v. Alice Short (1898) 19 L.R.(N.S.W.) 385; Brownlee v. R. (2001) 207 C.L.R. 278.

[10] R. v. Edwards [1812] EngR 207; (1812) 128 E.R. 348; R. v. Lawrence (1909) 25 T.L.R. 374; Brownlee v. R. (2001) 207 C.L.R. 278 at paras 62-3 per Gaudron, Gummow and Hayne, JJ.

[11] R. v. Scalbent [1730] EngR 27; (1794) 168 E.R. 412; R. v. Edwards [1812] EngR 207; (1812) 128 E.R. 348; R. v. Alice Short (1898) 19 L.R.(N.S.W.) 385; R. v. Lawrence (1909) 25 T.L.R. 374.

[12] There is no need to address the various departures from the common law position in the Juries Act, and, as I have earlier pointed out, s.43 was introduced specifically to deal with a problem in the common law.

[13] Section 33 was the precursor of s.36 (above at [14]), and read:

"On any criminal inquest the officer shall draw cards out of the box at random and call aloud the names and occupations of the jurors and where supplied their places of residence from each card until the full number of jurors appear and remain approved as indifferent; and the jurors so drawn appearing and approved shall be the jury to try the issues on the said inquest."

[14] [1971] VicRp 35; [1971] V.R. 293 at 298 per Winneke, C.J., Little and Gowans, JJ.

[15] Trial by Jury - Steven and Sons Ltd 1966.

[17] See R. v. Abrahams and Ball [1948] VicLawRp 12; [1948] V.L.R. 51; R. v. Hall [1971] VicRp 35; [1971] V.R. 293; R. v. Dooly [1972] VicRp 7; [1972] V.R. 55; R. v. Alice Short (1898) 19 L.R.(N.S.W) 385; R. v. Dempster [1924] S.A.S.R. 299; R. v. Solomon [1958] 1 Q.B. 203; Maher v. R. [1987] HCA 31; (1987) 163 C.L.R. 221; R. v. Judge of District Courts and Shelly; ex parte Attorney-General (Qld) (1990) 48 A.Crim.R. 139; Roger Johns v. R. [1979] HCA 33; (1979) 141 C.L.R. 409 and R. v. Williams (1925) 19 Crim.App.R. 67.

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