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[2003] VSCA 184
appellant. Leave to appeal granted; appeals allowed; each conviction set aside; new trials ordered.
After a 12-person jury had been sworn, the trial judge replaced a juror who wanted to leave, while keeping the other 11. The Court of Appeal held that the statutory jury-selection process did not permit that procedure. Because the jury was not lawfully constituted, the defect was fundamental and could not be cured by the accused having agreed to the procedure or by showing no practical prejudice. Both convictions were set aside and new trials ordered.
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2,491 words · generated 28/09/2026
The Court of Appeal of Victoria considered joint applications by Richard Xavier Panozzo and Joseph Iaria following their convictions for the murder of Peter Francioli. Vincent J.A. gave the principal reasons. Buchanan J.A. agreed with those reasons and with the proposed orders at [2]; Harper A.J.A. also agreed at [114].
No linked legislation citations have been extracted yet.
The relevant events concerned the constitution of the jury, rather than the evidence in the murder trial. A jury of 12 people was selected and sworn on 29 October 2001. The foreman was announced, the applicants were placed in the jury's charge, and the judge gave preliminary instructions before adjourning the proceedings for the day [10].
After the court adjourned, one juror told the Registrar that she wished to be “excused” from service in the trial. The judge kept her separate while considering the request. His proposed procedure was to grant the request, leave the other jurors in place, and select a replacement from the panel members who had not been selected the previous day [13]. He also proposed giving each accused an additional peremptory challenge, although each had used the challenges otherwise available to him [16].
The Crown prosecutor expressed concern that the jury had already been selected, sworn, placed in charge of the court and given instructions. He suggested that the whole jury should be discharged and another jury empanelled [20]. Defence counsel supported the judge's proposed course. The judge granted the juror's request and selected a replacement without discharging the rest of the jury [24]. The jury later returned guilty verdicts against both applicants [24].
On appeal, the applicants abandoned their original grounds and advanced common grounds focused on the jury procedure. They argued that the judge should either have discharged the whole jury or allowed the trial to continue with 11 jurors, and that the replacement juror had been empanelled in circumstances that did not comply with the law [33]. The Court accepted that the procedure was invalid and ordered new trials.
The Court's reasoning began with the statutory sequence. Part 6 of the Juries Act 2000 (Vic), as described in the judgment, deals with steps from establishing a jury pool through selection and swearing. Section 32 requires the court to inform the panel about the trial and then call on panel members to seek excusal. It also empowers the court to excuse a person if satisfied that the person cannot consider the case impartially or is unable to serve for another reason [45]. Section 36 sets out the process for selecting the jury in a criminal trial after the procedures in ss 31 and 32 have been completed [49].
Vincent J.A. read those provisions as a sequential scheme. In his view, a person could seek excusal as a panel member before empanelment, but not as a way of leaving the trial jury after selection and swearing. He concluded that, by the time the jury was adjourned for the evening, the statutory steps had been completed and the applicants were in the charge of a lawfully constituted jury [62]. The point at which a panel member could seek to be excused had passed [65].
The distinction between being “excused” from the panel process and being “discharged” as a juror mattered. Section 43 allowed a judge, during a trial, to discharge a juror on specified grounds, including where the juror was not impartial or became incapable of continuing. Section 44 allowed the trial to continue with a reduced jury in the circumstances identified by the Act [57]. Vincent J.A. noted that these provisions referred to “jurors”, unlike provisions dealing with people on the panel or potential jurors. He found no authority in s 43, express or implied, to replace a discharged juror with another juror [79].
The judge had treated the juror's request as an application to be excused, rather than as a discharge under s 43. Vincent J.A. considered whether the judge might simply have used the wrong word, but concluded that the transcript showed he understood the process as an excusal and replacement [76]. Nor was there an identified legal source for the additional peremptory challenges granted to the accused. The judgment notes that the statutory challenge rights were those set out in ss 39 and 40 [79].
The Court recognised the practical appeal of keeping 11 jurors and adding one replacement. The jury had heard no evidence, and both defence counsel supported the proposal. The Crown argued on appeal that the jurors were qualified, the applicants had received extra challenges, no trial-time objection was made, and there was no demonstrated prejudice [91]. Vincent J.A. accepted that those points had practical force, but held they did not answer the legal problem: the tribunal had not been constituted in accordance with the applicable statutory provisions [82].
The Court also addressed the possibility that common law might supplement the statute. Vincent J.A. considered it highly unlikely that residual common-law power remained in relation to empanelling or discharging jurors, given the Act's provisions. He did not decide that question because, if common law did apply, the procedure still would not have been lawful [85]. The judgment describes the common-law position as generally requiring discharge of the whole jury when a juror was discharged. Where a replacement was used in earlier practice, the accused had the opportunity to challenge all jurors and the whole jury was sworn after replacement [88]. That was not what occurred here.
Finally, the defect was not one the accused could waive. The Court adopted the reasoning quoted from R v Hall: an irregularity in the jury's constitution concerns whether the jury is a body authorised by law to try the case. An accused's consent cannot confer a legal quality the tribunal lacks [94]. The Court relied also on the principle in Wilde v R that a departure from essential legal requirements going to the root of the proceedings means the accused has not had a proper trial and there has been a substantial miscarriage of justice, without needing to examine the verdict's effect [101]. Applying that reasoning, Vincent J.A. held that the convictions had to be set aside and new trials ordered [109].
The judgment presents the Juries Act 2000 (Vic) as supplying a structured sequence for jury selection. Before this decision, the particular procedure of retaining 11 sworn jurors and selecting a replacement after the jury had been adjourned for the day had been used by the trial judge on an earlier occasion, according to his statement recorded in the transcript [20]. Vincent J.A. said no authority had been identified approving that course [88].
The statutory provisions described in the judgment distinguish between a person on a panel who may seek to be excused, a potential juror undergoing selection, and a juror who has been selected and sworn. The decision treats that distinction and the order of the statutory steps as legally important. The excusal process under s 32 precedes the selection process under s 36; the powers to discharge a juror during trial are dealt with separately in s 43, with s 44 providing for continuation with a reduced jury [45], [49], [57], [65].
After the decision, the judgment's stated position is that a judge cannot use the panel-excusal process after the jury has been empanelled as a means of substituting one juror while retaining the others. The statutory discharge power does not itself authorise a replacement juror. If common law remained relevant, the Court's account was that discharge of a juror generally required discharge of the whole jury, while historical replacement procedures included renewed challenge rights and swearing of the whole jury [88]. The Court did not resolve the broader question of whether the Act excluded all residual common-law power [85].
The decision also clarifies the significance of the consequence. The Court did not treat the problem merely as an irregularity requiring proof that it affected the jury's verdict. It characterised the jury as unlawfully constituted and treated the resulting defect as fundamental. On that analysis, agreement by counsel, absence of a contemporaneous complaint, and lack of demonstrated prejudice could not validate the tribunal [94], [101].
At [65], Vincent J.A. said the point at which a panel member could seek to be excused “had passed”. In plain English, once the jury has been selected and sworn, the earlier panel-excusal procedure is no longer the applicable process.
At [79], he stated: “There is no warrant directly given by the section for the replacement of the discharged juror with another juror, nor can any be implied.” This means the statutory power to remove a juror does not automatically include a power to fill the vacancy with a new person while preserving the rest of the jury.
At [82], he concluded that “the tribunal of fact in this case was not constituted in accordance with the applicable statutory provisions.” This identifies the legal defect as the composition and authority of the jury, not an assessment of the evidence or the verdict's factual correctness.
At [94], Vincent J.A. said that accused people are “not only entitled to have their cases considered by a lawfully constituted tribunal, but are required to subject themselves to that process.” The point is institutional: trial by a properly constituted jury is not simply a personal procedural protection that an accused can waive if the legal requirements are not met.
At [101], the judgment drew on Wilde v R for the proposition that where an irregularity departs from essential requirements and goes to the root of the proceedings, the accused has not had a proper trial and there has been a substantial miscarriage of justice. The Court applied that approach to the jury's constitution rather than asking whether the replacement juror affected the verdict.
At [109], Vincent J.A. stated the result: the applications would be allowed, the convictions set aside and both applicants retried. Buchanan J.A. and Harper A.J.A. agreed [2], [114].
The decision is most directly engaged where a juror seeks to leave after the jury has been selected and sworn, and a court considers excusing that juror while retaining the rest of the jury. The central factual markers here were that the original jury of 12 was already sworn, had a foreman, was in the charge of the court, and had received preliminary instructions before the request arose [10], [13].
The case also matters where the proposed solution is to select a replacement from the remaining panel without reconstituting the whole jury. The Court distinguished the statutory power to discharge a juror and continue with a reduced jury from authority to substitute a new juror [57], [79]. It also described common-law replacement procedures as involving an opportunity to challenge all jurors and the swearing of the whole jury after replacement [88].
The judgment's reasoning turns on the statutory structure and the status of the person at the time of the request. It does not decide every possible circumstance in which a juror may become unable to serve, nor does it supply a comprehensive account of all powers under the Juries Act. It does establish that this particular post-empanelment “excusal and replacement” procedure was not authorised.
A separate trigger is where a party argues that an irregularity should be overlooked because counsel agreed to it or because no practical prejudice is shown. The judgment holds that such arguments do not cure a defect that means the jury was not constituted as a tribunal authorised by law [82], [91], [94]. That aspect depends on the defect being fundamental, not merely on the existence of any departure from procedure.
The provided judgment contains no decisions after 24 November 2003 and therefore does not establish how later courts treated R v Panozzo; R v Iaria. No conclusion about subsequent adoption, limitation, or reconsideration can be drawn from the supplied text alone.
The decision itself discusses earlier authorities. It relies on R v Hall for the proposition that a defect in the statutory constitution of a jury cannot be waived and quotes Hall's description of such a defect as going to the root of the trial [94], [105]. It applies the principle from Wilde v R that a fundamental departure can establish a substantial miscarriage of justice without analysing the effect on the verdict [101].
For the common-law background, the judgment cites R v Hambery on the requirement to discharge the whole jury when a juror was discharged, and R v Ousley concerning the statutory response to the inconvenience of that requirement [88]. It also refers to R v Beere, R v Alice Short and Brownlee v R in connection with replacement practices, challenges and swearing of the jury [88]. The judgment does not provide a detailed account of those decisions beyond the propositions for which Vincent J.A. cites them.
The judgment also identifies R v Benfield, R v Comerford and Katsuno v R as examples of cases in which some irregularities in the steps leading to the jury's swearing had been treated as not affecting the legitimacy of a trial [101]. Vincent J.A. distinguished the present case on the basis that, to his knowledge, those cases did not involve a conclusion that the trial had taken place before an unlawfully constituted jury [101]. This is the distinction made in the 2003 judgment, not evidence of how later courts have applied it.
The Court expressly left open whether the Juries Act 2000 (Vic) excluded any residual common-law power concerning empanelling or discharging jurors. Vincent J.A. considered statutory occupation of the field highly likely but said that the outcome would be unchanged even if some common law remained, because the common-law procedure was not followed [85].
The judgment does not decide how the statutory provisions would apply to every form of juror incapacity, absence, illness or other post-empanelment event. It identifies s 43's grounds for discharge and s 44's reduced-jury mechanism, but its holding is confined to the replacement procedure before it [57], [79].
It also does not determine whether, or in what circumstances, a jury could be discharged and a fresh jury empanelled after trial has begun. The judgment records the Crown prosecutor's suggestion that the entire jury be discharged and another jury empanelled, but does not decide that alternative's full legal requirements [20]. The discussion of older authorities describes features of historical replacement procedures, including renewed challenges and swearing the entire jury, without purporting to resolve every modern statutory question [88].
Finally, the supplied material does not include later cases or subsequent legislative amendments. It therefore cannot answer whether later courts have qualified the decision or whether the statutory regime has since changed.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
[ 2003] VSCA 184
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.
"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]
"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]
"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 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.
"(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."
"(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"
"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.
"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]
"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]
"... 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.)
"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]
"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]
[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.
[16] R. v. Benfield [1997] 2 V.R. 491; R. v. Comerford [1997] EWCA Crim 2697; [1998] 1 W.L.R. 191 and Katsuno v. R. [1999] HCA 50; (1999) 199 C.L.R. 40.
[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; and (1925) 19 Crim.App.R. 67.
[20] [1971] VicRp 35; [1971] V.R. 293 at 299.
Leave to appeal granted; appeals allowed; each conviction set aside; new trials ordered.