Regina (Cth) v Ronen; Regina

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 70032/03; SC 70222/03; SC 70223/03 FILE NUMBER(S) : LOWER COURT Whealy J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60177/04 60178/04 60179/04

IPP JA GROVE J HOWIE J

Friday 11 June 2004 IDA RONEN v REGINA (CTH) IZHAR RONEN v REGINA (CTH) NITZAN RONEN v REGINA (CTH)

The issues in the appeal 2 This appeal raises two issues. The first is whether, as a matter of construction, the Jury Act 1977 (NSW) precludes an accused person from being supplied with the names and occupations of the members of the jury panel prior to the selection of the jury. The second is whether, if the answer to the first question is in the affirmative, the provisions of the Jury Act that have that preclusionary effect, infringe s 80 of the Commonwealth of Australia Constitution Act (Cth) ("the Constitution"). 3 These questions arose at the commencement of the trial of the appellants in which they were charged with conspiracy to defraud the Commonwealth (in particular, the Commissioner of Taxation) of income tax between 1992 and 2001 in the sum of $14,512,206.95, contrary to ss 86A and 86(2) of the Crimes Act 1914 (Cth). 4 The appellants applied to Whealy J for an order "that the representatives of the defence should be supplied with an extract from the panel list before the empanelment process begins". His Honour noted that the appellants required, as part of their application, that the extract "contain the names, occupations and identification numbers of those persons who comprise the jury panel". 5 The appellants contended that the Jury Act does not prohibit the supply of this information to the jury. They contended, in the alternative (if this contention were to be wrong) that the provisions of the Jury Act that prevent this information from being given to the accused were invalid in so far as they purported to apply to a trial by jury in federal jurisdiction. The appellants submitted that these provisions breached the constitutional guarantee contained in s 80 of the Constitution, which is in the following terms: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes." 6 The appellants submitted that, just as an accused facing trial by judge alone is entitled to know the identity of the judge, so also is an accused facing a trial by jury entitled to know the identity of the jurors. 7 Whealy J, in a carefully reasoned decision, held that the answer to the first question was in the affirmative and the answer to the second question was in the negative. The appellants appeal against both these decisions.

The first issue: the findings of the trial judge 8 At the trial, the appellants accepted that s 29(4) of the Jury Act prevented a panel member (or one who is subsequently sworn as a juror), present in court, from being addressed or referred to otherwise than by his or her identification number. The appellants also accepted that s 37 was to like effect and protected panel members and jury members from having to disclose their identity. The appellants submitted, however, that there was no prohibition in ss 29 and 37 that prevented the trial judge from ordering the sheriff to make an extract of the names, occupations and numbers of those on the panel, and providing the extract to the defence. 9 Whealy J dealt with this argument as follows: "One of the mischiefs clearly aimed at by the legislation was to prevent jury tampering and the avoidance of threats and actual danger to jury members. These mischiefs would be ever present in circumstances where the accused knew of the identity of the panel members and subsequent jurors. Mr Richter eschewed any desire to be appraised of the addresses of panel members, but it is plain that, in less scrupulous hands, possession of the name and occupation of a juror is but a simple step removed from discovering a residential address or place of work."

His Honour went on to say: "The relevant legislative intention is, in any event, made clear, in my view, because of the terms of s 67A. There is, in absolute terms, a prohibition on a person inspecting or having access to the information held by the sheriff which provides the names and occupations of panel members. I do not consider that the legislature envisaged that the sheriff might lawfully contravene the obvious intent of this section by preparing an extract from the panel or cards and making it available for inspection." 10 His Honour considered that the matter was put beyond doubt by s 68. He said: "It is clear, however, that s 68 is postulated upon an express statutory assumption that the sheriff will not (otherwise than as provided in sub-section (4)) disclose information which is likely to lead to the identification of a juror in a particular trial. The language is wide enough to extend to a panel member who subsequently becomes a juror. Moreover, the assumption is that the information will not be disclosed, for example, to a court or prosecuting or investigatory bodies such as the Director of Public Prosecutions or the Australian Federal Police. If the sheriff is prohibited from disclosing information likely to lead to the identification of a juror to the court and the DPP, it seems hardly likely that it was intended that the information could be provided nevertheless to the accused or his or her legal representatives."

And observed: "In my view, the purpose of the legislation, that is Act No 15 of 1997, was to preserve the anonymity of persons called to form the panel from which a jury would be selected in a criminal trial and to preserve that anonymity throughout the trial." 11 Whealy J concluded that it would be "contrary to the express language of the legislation and its overall spirit and intent were the present application to be granted".

The first issue: discussion 12 The principal submissions on behalf of the appellants were made by Mr Richter QC (who together with Mr Rosenbaum appeared for the appellant Ida Ronen). Mr Hill QC (who together with Mr Power appeared for the appellant Nitzan Ronen) and Mr Van de Wiel QC (who together with Mr Jones appeared for the appellant Izhar Ronen) adopted these submissions. 13 Mr Richter reiterated before this Court the arguments the appellants put before Whealy J. He pointed out that ss 67A and 68 of the Jury Act do not preclude the sheriff from supplying to the judge the names and addresses of the panel members and argued that the judge could supply that information to the accused. He submitted that, until the 1997 amendment to the Jury Act, traditionally, the names of jurors were always called in New South Wales. 14 The Jury Amendment Act 1997 (NSW) inserted the new ss 29 and 37 in the Jury Act. These sections came into force on 1 July 1998. 15 There can be no doubt that the legislature, in passing those amendments, intended to preserve the anonymity of jurors or prospective jurors and to provide that, during legal proceedings, they would not be required to give their names or any other details that might identify them (unless the person requesting the information were to be the sheriff). This intention is manifest from the Second Reading Speech and the Explanatory Note to the Jury Amendment Bill 1997 (NSW). 16 In the Second Reading Speech to the Jury Amendment Bill, the Attorney General explained that a large number of complaints had been received from former jurors concerning the practice of jurors being required to provide details of their names and addresses in open court. The Attorney General stated that jurors had become concerned about their security, which they believed was being placed in jeopardy by this practice. He gave examples of former jurors being harassed and, in one case, threatened. 17 The Explanatory Note stated that the objects of the Bill were as follows:

(a) To provide that jurors or prospective jurors: · are to be addressed during proceedings by the identification number allocated to them so that their anonymity is maintained, and · are not required during those proceedings to give their names or any other details that may identify them (unless the person requesting the information is the sheriff),

(c) to repeal the provision that allows for the inspection of jury panels containing the names of prospective jurors in civil trials,

(d) in relation to the offence of soliciting information from or harassing a juror or former juror: · to omit the limitation that the information must be solicited for the purposes of publication or broadcasting, and · to increase the maximum penalty for the offence to seven years imprisonment (currently the maximum penalty for the offence is $5,000 in the case of a corporation and $2,000 in any other case),

(e) … " 18 Before examining the new ss 29 and 37, as introduced by the 1997 amending legislation, it is relevant to note that, by s 28(1), the sheriff is obliged to return a panel of the names of the jurors summoned and their occupations (if the occupations appear on the roll or supplementary roll from which the summonses were prepared). By s 28(3) the sheriff must also provide, with the return, the names of those summoned (and other particulars recorded on the roll or supplementary roll of the persons on the panel) on separate cards. 19 Section 29(1) provides that, before furnishing the return and the cards, the sheriff is required to allocate a separate identification number to each person included in the panel. By s 29(2) the sheriff must record a person's identification number on the card. By s 29(4), a person who is allocated an identification number is to be addressed or referred to only by that identification number when present at the court (for the purposes of the relevant proceedings). 20 Thus, the cards provided by the sheriff with the return must contain the names and other particulars of the person on the panel. Each such person on the panel is given an identification number that is to be recorded on the card. Such a person is to be addressed or referred to only by that identification number during the court proceedings. 21 The new s 37(1) provides expressly that a person who is summoned as a potential juror is not required, when attending the trial, "to disclose the person's name or any other matter that identifies or is likely to lead to the identification of the person". Section 37(2) provides, however, that, under stipulated circumstances, a person so summoned is to provide such information to the sheriff. 22 Section 52(1) provides that jurors' cards must be kept apart from the cards relating to other persons summoned as potential jurors for the trial. Section 52(2) provides that, after all the jurors for a trial are sworn, the cards relating to the persons who were summoned and who were called, but not sworn, are to be returned to the sheriff. 23 Section 67A provides that a person must not inspect or make available to any other person a panel or a card prepared for the purposes of the Act by the sheriff. Section 68(1) provides that a person shall not, except in accordance with the Act, wilfully publish any material or otherwise disclose any information likely to lead to the identification of a juror. A penalty is imposed for the contravention of this section. 24 Whealy J noted that the practice that was followed, at least in the Supreme Court, was that: "[T]he cards that are drawn out of the ballot box for the purpose of following the procedure set out in s 48 do not have endorsed upon them the name of the panel member or any other matter that would be likely to identify the panel member or any other detail regarding the panel member beyond the identification number."

Mr Richter submitted that this practice contravenes s 28(3) of the Jury Act . I think he is correct in this respect. It does not seem to me, however, that this error in practice is presently material. 25 Mr Richter also made submissions based on s 47A of the Jury Act which provides: "The judge presiding at the trial of any criminal proceedings may discharge the jury that has been selected if, in the opinion of that judge, the exercise of the rights to make peremptory challenges has resulted in a jury whose composition is such that the trial might or might appear to be unfair".

He submitted that Whealy J had wrongly taken the view that no one, not even the judge, is permitted by the Jury Act to know the names of the jurors, and had thereby demonstrated a fundamentally wrong view of the provisons of the Act. 26 I accept that the judge is entitled to have this knowledge (it might assist, for example, in making a decision under s 47A, and there is no reason in policy to prevent the judge from acquiring this information). In my view, however, this does not advance the argument of the appellant. The question is not whether the judge should know the names and occupations of the jurors or potential jurors, but whether the accused should acquire that knowledge. 27 The point, as Whealy J observed, is that, generally, the Act "prohibits and makes illegal the furnishing by the sheriff of an extract from the panel and from the cards of details of the names and occupations of the members of the jury panel". In particular, the legislation does not allow the sheriff to prepare an extract from the panel or cards, reflecting the names and occupations of potential jurors, and to make the extract available to the accused person. The entire tenor of the Act is contrary to the sheriff being permitted to act in such a way. As Whealy J observed, the objects of preventing jury tampering, and the avoidance of threats and actual danger to jury members, could not be achieved if the accused were to be informed of the identity of the panel members and subsequent jurors. In my opinion, his Honour made no error in his construction of the Act. 28 Before this Court, Mr Richter submitted that the Jury Act must be construed on the basis that a right to a jury trial would be negated by a failure to provide names and occupations of potential jurors. This argument, while advanced in support of the appellants' submissions in regard to the first issue, lies at the heart of the appellants' submissions in regard to the second issue. I deal with it, accordingly, when discussing the second issue.

The second issue: the parties' arguments 29 The essential proposition put forward by Mr Richter in arguing the second issue was that the right to challenge was an irreducible element of the right to trial by jury and the right to challenge (both peremptorily and for cause) was materially negated by the omission to provide the accused person with the names and occupations of the potential jurors. 30 The other parties to this appeal did not dispute that the right to challenge was an essential element of the right to a jury trial. What was in issue was whether the omission to provide the names and occupations of potential jurors nullified or materially detracted from the right to challenge. 31 In the way the argument was so presented, the issue did not directly concern primary elements of a jury trial such as the need for a representative and impartial jury (although certain of the arguments raised sought to draw strength from these elements). The fundamental issue raised was the content of the right to challenge. 32 Mr Richter accepted that jury members should be anonymous to the community at large, but submitted that there should be no anonymity from the accused person. He submitted that since time immemorial accused persons had had the right to know the names of the jurors who were to determine whether they were guilty or not. He said that the basic proposition was that "one should know one's judges". 33 Mr Richter submitted that from the names an accused person might believe that potential jury members might not be impartial. Mr Richter submitted that, for example, from the names the accused might come to believe that he or she could detect the ethnicity and religion of the potential juror. Although he accepted that this could not be done objectively or with any certainty, he said: "It is how an accused feels which is why an accused has a peremptory challenge. We are not talking about a rational progression to a conclusion but what an accused is entitled to have which is his own or her own prejudices about prospective jurors." 34 Mr Richter submitted that the accused should have the right to exercise a challenge whether he or she does so on rational or irrational grounds. He said: "Peremptory challenge has nothing to do with what the accused decides is in fact justifiable objectively." 35 Mr Richter submitted that accused persons are entitled to know enough "to disqualify people who for their own reasons they consider will not render a fair judgment". He argued that the prohibition against the provision of names and occupations of potential jurors meant that accused persons were deprived of that right. He submitted that, without the names and occupations of potential jury members, the challenges, both peremptory and for cause, could not properly be exercised and therefore, without that information, a proper jury trial according to law would not take place. 36 Mr Hammerschlag SC (who together with Ms McNaughton, appeared for the Commonwealth Crown) and Ms Pepper (who appeared for the Attorney General for New South Wales, intervening) submitted, in effect, that the provision of names and occupations of jurors was not "an inviolate constituent part of the right to challenge". 37 Mr Hammerschlag argued: "What is critical is an accused person's opportunity adequately to see and observe the jurors: Johns (Roger) v The Queen (1979) 141 CLR 409 at 418 per Barwick CJ."

He submitted that knowledge of the names and occupations of jurors was not integral to the exercise of the right to challenge. 38 Ms Pepper's submissions were to the same effect. She submitted, in addition, that the ambit of the right established by s 80 of the Constitution (which provides a constitutional guarantee of trial by jury with respect to an indictable offence against any law of the Commonwealth) cannot be determined solely by reference to the scope of the institution as it existed at the time of the enactment of the Constitution: Brownlee v The Queen (2001) 207 CLR 278. Ms Pepper submitted that current circumstances justified those changes to the Jury Act that provided for the anonymity of jury members anonymous. She submitted that the changes were necessary to protect jury members from threats and harassment. She argued that they preserved the basic integrity of the jury trial.

The reasons of the trial judge in regard to the second issue 39 Whealy J rejected the submissions made on behalf of the appellants principally on the following grounds:

(a) There is nothing in the Jury Act that prohibits the right of challenge; his Honour said in this regard: "The Act preserves the right of challenge both to the array and to the polls of jurors (s 41). Both peremptory challenges (s 42) and challenge for cause are available (ss 43 and 44)."

(b) His Honour was of the view that the fact that jurors are referred to by identification numbers rather than by name did not curtail in any significant manner or, at all, the exercise of the right of challenge (Whealy J regarded the names and occupation of the jurors as being unimportant and even possibly misleading as regards their relevance to the right of challenge).

(c) His Honour said that it had not been established that, at the time of federation, the identification of potential jurors by name and occupation was a matter integral to the knowledge necessary to inform an effective decision to challenge; he concluded: "[I]n New South Wales, inspection of the jury panel was never available as of right in a criminal trial. In addition, it does not appear to have been the custom for occupations to be made available or read out in open court during the empanelment of the jury in a criminal trial. Until the amendments made in 1997, it was customary however for potential jurors in criminal trials to be called, for the purposes of empanelment by name. This procedure, no doubt, alerted the accused to the names of potential jurors."

(d) His Honour remarked that the Constitution is an instrument of government that needs to respond to changing circumstances and conditions over time and referred to Brownlee v The Queen at 285 and 291; he considered that the changes in the 1997 Act represented adaptations, in accordance with contemporary concerns, of the procedures to be utilised in a modern jury trial (he said that the changes "may be properly described as an incident of procedure in relation to the right of challenge"). 40 Whealy J did not accept that the anonymity of members of the jury was material to the accused's right of challenge. His Honour said: "A jury is selected randomly, impartially and is intended to be generally representative. This is a totally different process to the allocation of a judge in a judge alone trial. Selection by the jury process does not entitle the accused, as a constitutional matter, to know the name and occupations of the jury members. This is not to say however that the members of the jury are unknown to the accused. They appear openly as part of the panel. Assuming they survive challenges, again an open procedure, they take their place in the jury box. They are present, at all relevant times, throughout the proper processes of the trial. They remain, at all relevant times, within the purview and observation of the accused. They are, in every relevant sense, selected by the accused and known to the accused even though they are not identified by name and their occupations are not known."

The variability of the content of the right of challenge 41 I have noted that it is common ground that the power of challenge is an essential element of trial by jury. There is strong authority in this country to that effect. In Johns (Roger) v The Queen (1979) 141 CLR 409 Barwick CJ discussed the nature of a peremptory challenge, saying (at 418): "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."

The Chief Justice went on to say (at 419): "[I]t 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". 42 The right of challenge is very old. Stephen J in Johns (Roger) v The Queen described the accused's right to challenge a potential juror peremptorily as "both ancient and important, being fundamental to our system of trial by jury" (at 429). In McEldowney, "'Standby for the Crown': an Historical Analysis" [1979] Crim LR 272, the learned author says (at 273):

"It is clear from earliest authority that challenging jurors was coeval with the institution of jury trial itself." 43 As I will attempt to demonstrate, however, the content of the right of challenge has, nevertheless, varied substantially over time; it is not immutable. It has changed over the years in New South Wales, in other States and Territories in Australia and in England.

The content of the right of challenge: numbers of challenges 44 The number of peremptory challenges that has, over time, been allowed is an example of changes that have been made to the content of the right of challenge.

45 In Blake, "The Case for the Jury", published in Findlay & Duff (eds), The Jury Under Attack (Butterworths, 1988), the learned author, writing of the position in England, states (at 146-147): "The right to challenge jurors is as old as jury trial itself. Both the prosecution and the defence can challenge for cause in which case specific reasons have to be given. Usually nothing is known about a juror by the defence, and as we have seen the Lord Chancellor in 1973 reduced the little that was known. So it is practically impossible for the defendants to challenge an individual juror for cause. But in addition there has always been a defence right to challenge peremptorily, that is to say without the burden of having to give a reason which would be decided on by the judge. Until 1949 the defence could challenge 35 jurors, but thereafter the number was reduced to 7, just over half the total of 12 jurors sworn. Where the prosecution tried several people at once there were 7 challenges per defendant." 46 Since then, the right to challenge jurors without cause has been abolished in England by the Criminal Justice Act 1988, s 118(1). There, challenges for cause may still be made either by the prosecutor (Juries Act 1825, s 29) or by the defendant (Juries Act 1974, s 12(1)). 47 Thus, in England, the number of peremptory challenges available to the defence has diminished over time from 35 to seven to nil. 48 In New South Wales, by the Jury Act 1912 (NSW), s 55, the number of peremptory challenges allowed was eight, except that in cases of capital offences or murder 20 challenges were allowed. The same numbers were allowed by s 42 of the Jury Act 1977, and this situation endured until 1988. Then, by sched 12, cl (3) of the Statute Law (Miscellaneous Provisions) (No 3) Act 1988 (NSW), the right of peremptory challenges available to an accused person in New South Wales was reduced to three (see s 42 of the Jury Act). 49 The position in the other States and Territories can be seen from the following table:

Jurisdiction Section of the relevant Act Number of peremptory challenges allowed in criminal trials Victoria s 39, Juries Act 2000 (Vic) 6 where one person is arraigned, 5 per person where 2 people are arraigned and 4 per person where 3 or more people are arraigned Western Australia s 38, Juries Act 1957 (WA) 5 ACT s 34, Juries Act 1967 (ACT) 8 Northern Territory s 44, Juries Act (NT) 12 for capital offences, 8 otherwise Queensland s 42, Jury Act 1995 (Qld) 8 South Australia s 61, Juries Act 1927 (SA) 3 Tasmania s 54, Jury Act 1899 (Tas) 6

50 The disparity in numbers of challenges speaks for itself. It illustrates the varying content of the right of challenge.

The content of the right of challenge: whether, historically, there has been any "right" to juror's names and occupations 51 In Hill v Yates (1810) 12 East 229, a father's name was called but the son answered and served on the jury. A new trial was refused. Lord Ellenborough CJ said that the issue was a discretionary matter and the Court would exercise its discretion by refusing to interfere with the jury's decision. 52 In The Case of a Juryman (1810) 12 East 231, Robert Curry, who served upon the jury, had answered to the name of Joseph Curry in the sheriff's panel, and had been sworn by that name. The Court of King's Bench held that "this was no ground of objection" and the jury's decision stood. 53 These cases are to the effect that, at that time, the accused had no right to be given the names of jurors. The errors that had occurred in regard to the identity and names of the jurors concerned were merely irregularities; the fact that the accused in each case had been misled in regard to the correct name of a juror did not, automatically, lead to the trial being a nullity. It was within the discretion of the Court to determine whether an injustice had occurred. 54 In R v Dowling (1849) 7 St Tr (NS) 381, Erle J expressed the opinion (at 385) that no person upon a trial for felony had a right to have the panel of the jury read over. This was so despite the fact that at that time it was the practice of the Court for the panel to be called over at the beginning of the sessions and the names of those on the panel would be ticked off: R v Cuffey (1848) 7 St Tr (NS) 467 at 469. 55 In R v Mellor (1858) 1 Dearsley & Bell 468, the question before the Court of Criminal Appeal was whether a new trial should be ordered in circumstances where a person named "Joseph Henry Thorne" had answered to the name "William Thorniley" and served on the jury. Fourteen judges sat, many being amongst the most notable judges of the Victorian era. Six held that there had been a mistrial, six held to the contrary and the remaining two held that the Court lacked jurisdiction to interfere. Thus, the application for a new trial failed. I shall refer to certain of the passages of the various judgments that have particular relevance to the present question before this Court. 56 I will mention, firstly, those who considered that there had been a mistrial. Lord Campbell CJ said (at 474): "[T]his is not a case of mere misnomer, where, there being some mistake upon the panel in the name of a juryman regularly summoned and sworn, it may still be truly said, ' constat de persona . ' Joseph Henry Thorne, whose name was called and who did not appear, was an existing person and a different person from William Thornley, who did appear, who was sworn, and who served. Upon principle, therefore, there seems to me to have been a mistrial, as much as if all the twelve jurors who served had been different persons and had different names from the jurors called …"

Martin B (in language not dissimilar to the argument advanced by Mr Richter) said (at 505): "I think the prisoner is entitled to have the names of the jury who try him correctly called in open Court, in order that he may know the name of every one by whom he is tried, and in my judgment without this privilege the challenging of jurors would be an idle ceremony."

Cockburn CJ, Wightman J and Coleridge J were of the view that there had been a mistrial, as was Watson B, who agreed with the judgment of Lord Campbell CJ.

57 I turn now to those who considered that there had been no mistrial. Erle J (who had delivered the judgment in R v Dowling) said (at 500): "[Previous cases] show that if a person not upon the panel answers to the name of a person on the panel, such personation may or may not be ground of new trial, according to the discretion of the Court. They do not support the notion that if a juryman on the panel by mistake answered to the name of another juryman thereon, it would be ground of new trial".

Byles J said (at 522): "No prejudice appears to have been suffered by the prisoner, but it is suggested that in such a case a prejudice might possibly happen. I am of opinion that there has been no mistrial.".

Crowder J referred to The Case of a Juryman and found (at 516), on that authority, that there had been no mistrial. Willes J, Crompton J and Channell B agreed that, on the authority of Hill v Yates and The Case of a Juryman , there had been no mistrial. 58 Pollock CB and Williams J were of the opinion that the Court did not have the power to order a new trial under the relevant Act. 59 The effect of Mellor's case, therefore, was that the rule established in Hill v Yates and The Case of a Juryman continued to stand. See Archbold's Pleading and Practice in Criminal Cases, 19th ed (1878) at 164. 60 In R v Wakefield [1918] 1 KB 216 a man named Toley had been summoned to serve on the jury. Toley did not answer to his name, but a man named Clark did, and served on the jury to the end. Clark was not qualified to sit on the jury at all. The Court of Criminal Appeal held that a mistrial had occurred. Darling J, delivering the judgment of the Court (the other members of the Court being Lawrence and Sankey JJ), said (at 217): "A defendant is entitled to be tried before a duly authorised judge and twelve men qualified to be jurors to try him. Many cases have decided that mere irregularity in calling together the jury - mere misnomer of a jury man - is not sufficient to avoid the proceedings. But this case is not of that character, for it is admitted by the Crown that Clark, who presented himself when Toley, a qualified juror, was called, and who served in his place, was not upon the panel and was not qualified to serve as a juror. Our judgment is limited to this case, where all the circumstances apply. But here Toley, a man duly summoned and also qualified to serve, was personated by a man who was in neither case, and so the accused was deprived of his legal right of peremptory challenge and of trial by twelve qualified persons." 61 According to the 1922 (26th) edition of Archbold's Pleading and Practice in Criminal Cases (at 179), Mellor's case and The Case of a Juryman stated the then current law. This observation is consistent with R v Wakefield. Archbold also stated (at 188) that, in cases of felony or misdemeanour, an accused had no right to a copy of the jury panel. R v Dowling (and other cases) was cited as authority for this proposition. 62 R v Baum (1927) 27 SR (NSW) 401 concerned an appeal against conviction, the first ground of which read: "An application by [the applicant's] counsel for inspection of the jury panel before the trial began was refused, and it is submitted that this was a denial of a right to which as an accused person he was entitled as of right."

Street CJ said of this ground (at 402): "I do not think that he had any such right. I am told by my two brother judges who are sitting with me, and who have had much more experience of criminal procedure than I have had, that, so far as they aware no such right has ever been conceded in New South Wales …"

Street CJ referred then to the Jury Act 1912 (NSW) and concluded that no right to inspect the jury panel arose from that statute. His Honour referred (at 403) to R v Cripps (1885) 1 WN (NSW) 112 and said that the decision of Windeyer J in that case was: "[A] clear authority that he and the other members of this Court as it was then constituted were of opinion that inspection of the jury panel by an accused person or his legal advisors could only be had by permission, in the exercise of a discretionary power, and not as of right".

Street CJ went on to say (at 403): "That is really sufficient to dispose of the point, but, as it was submitted by Mr Spender that the right claimed had existed for a very long time under the law in England, I wish to point out that that is not so, and that English law and practice in this respect are the same as ours." 63 His Honour proceeded to refer (at 404) to the then English rule that, in cases involving indictments for treason, an accused is entitled to inspect the jury panel; see also Archbold's Pleading and Practice in Criminal Cases, 26th ed, at 188. This exception to the usual practice appears to have stemmed from frequent complaints of jury-stacking in political cases that were made in England in the first part of the 19th century: Cornish, The Jury (Penguin Books, 1971) at 51; McEldowney op cit at 279-280. 64 R v Baum is powerful authority contrary to the appellants' proposition that accused persons in New South Wales have had a long-standing right to be given the names of potential jurors. 65 The appellants sought to obtain support from the statement of Barwick CJ in Johns (Roger) v The Queen (which I have quoted in [41] above) where his Honour spoke (at 418) of a peremptory challenge representing "no more than [the accused's] personal objection to be tried by the person whom he sees before him and whose name he has heard".

66 Barwick CJ observed (also at 418), immediately after his reference to the name of the juror: "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 …" This observation demonstrates the primacy that Barwick CJ placed on the accused person's physical view of the jurors - a part of the right of challenge that is not affected by the relevant sections of the New South Wales Jury Act .

67 It must also be borne in mind that Johns (Roger) v The Queen came to the High Court from Western Australia, where, at the time, the Western Australian Juries Act 1957 did not prohibit the inspection by the accused and his solicitor of a copy of the panel of jurors summonsed.

68 In my opinion, when understood in context, the remarks of his Honour should not be taken as an indication that an accused person has (or had) a right to the names of potential jurors, or that the provision of such names is an essential part of an accused's right of challenge. 69 From the above material, I conclude that, historically, at least since the beginning of the 19th century, an accused person has not had a right to the names of the jurors, in England or in Australia. There has, in the past, been a practice of allowing the accused person to inspect the jury panel, but there has not been a right of inspection. Where the names of jurors have been read out, and an error has been made in regard to a juror's name, a mistrial would not necessarily follow (unless what occurred resulted in a non-qualified juror sitting on the jury). 70 Thus, there is nothing in the history of the jury that supports the argument that the provision to the accused of the potential jurors' names is an essential element of the right to challenge and, hence, fundamental to a jury trial. 71 I have not been able to find any authority in support of the submission that an accused person was entitled to be told the occupations of the potential jurors. Mr Richter said in this regard: "[U]ntil the prohibition his Honour found existed as a result of the 1997 amendment one always knew the name. As to whether or not one always knew the occupation is more debatable because it is said by the Attorney that occupations have not been known since about 1947 in New South Wales and we are not going to quarrel with that but so far as names are concerned right up to 1 July 1998 people were called up by name." 72 I do not think that it is necessary to say more on the question of the occupations of jurors than that, if there is no right to know the names of jurors, there could hardly be a right to know their occupations. 73 In Cheatle v The Queen (1993) 177 CLR 541 the High Court accepted (at 557-558) that there were essential features of trial by jury that were guaranteed by s 80 of the Constitution, but there were non-essential features that, in effect, were not. See also Brownlee v The Queen (at 284, [5] and 288-289, [21] per Gleeson CJ and McHugh J). 74 In Brownlee v The Queen Gaudron, Gummow and Hayne JJ (at 298) referred with approval to an article by Professor A W Scott ("Trial by Jury and the Reform of Civil Procedure" 31 Harv Law Rev 669 (1918)) in which the learned author wrote (at 671): "Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree. The question, it is submitted, should be approached in a spirit of open mindedness, of readiness to accept any changes which did not impair the fundamentals of trial by jury. It is a question of substance, not of form."

Their Honours observed (also at 298) that the distinction "between the essential and inessential has been drawn by Cheatle into the constitutional doctrine respecting s 80 of the Constitution" and proceeded to say: "In the present case, the question becomes whether a reduction, for cause shown to the satisfaction of the court, in the number of jurors from twelve to no fewer than ten and the permission for the jury to separate after they had been charged to consider their verdict involve changes to the details of the conduct of jury trial mandated by s 80 or destroy an essential feature or fundamental thereof. Classification as an essential feature or fundamental of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves." 75 As was said in the article, Stellios, "Brownlee v The Queen: Method in the Madness" (2001) 29 FL Rev 319 (at 326): "Thus, as stated by Gaudron, Gummow and Hayne JJ [in Brownlee v The Queen ], the classification of essential features of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves. In other words, to perform that function in a constitutionally compatible manner, the institution must be characterised by certain essential functional attributes. History reveals the ends or purposes sought to be achieved by the institution and that its essential attributes might be achieved by different rules of practice and procedure depending on the social context. Rules which may be seen at one time to be indispensable to the achievement of the essential objectives of the institution might, at a later time, not be characterised as central to, or even compatible with, those essential objectives." [emphasis in original, footnotes omitted] 76 The history of the practice regarding the provision of names of jurors, and the long-standing authority that an accused person did not have the right to the names, are strong - if not conclusive - reasons for deciding that the provision of names (and occupations) of jurors is not an essential feature or fundamental of the institution of trial by jury.

The value to the accused of the names and occupations of potential jurors 77 In Katsuno v The Queen (1999) 199 CLR 40 Gaudron, Gummow and Callinan JJ (at 65, [51]) referred to the object of having a panel that is randomly and impartially selected. Their Honours then said: "It is at the next point, the point of selection of the jury to serve in a particular trial, that the defence, at least, will strive to achieve a jury that he or she believes will be susceptible to the submissions of the defence, or indeed even perhaps to such unlikely matters as the voice, the hairstyle or the appearance of the accused person. There are many theories and claims, some apocryphal and all untested in this country, about the susceptibilities of juries and the matters which should guide counsel in deciding whether to make a peremptory challenge. No matter how eccentric or illogical such theories may be, there is nothing in law to prevent prosecutors and defence counsel from giving effect to them in making peremptory challenges." [footnote omitted] 78 Kirby J, in Katsuno (at 76, [83]), explained that, historically, two reasons were assigned to justify peremptory challenges: "The first was the 'sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another' and 'how necessary it is, that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him'. The second reason was to cover the case of a challenge for cause where the reason assigned proved insufficient to set aside the juror but where the bare questioning of his indifference might have provoked resentment on the juror's part." 79 I accept that the names and occupations would assist the accused in exercising the right to challenge peremptorily. But the assistance would be relatively slight and, in addition, likely to be unreliable. 80 In the Canadian case of R v Sherratt [1991] 1 SCR 509 L'Heureux-Dubé J said that it was impossible to postulate rigid guidelines as to what would breathe an "air of reality" into a challenge for cause (at 535-536). 81 Professor Findlay, in Jury Management in New South Wales, (The Australian Institute of Judicial Administration Incorporated, 1994), noted (at 50-51): "[T]he overall impression was that, even where the peremptory challenge was used with some identifiable motive, it was an extremely imprecise tool, relying upon questionable and crude social stereotypes."

He explained: "The main problem presented by the peremptory challenge system is not so much that it is discriminatory or pernicious, but rather that, for the purposes of detecting bias and securing an 'impartial' jury composed of the accused's peers, it is inaccurate and arbitrary, to the point of being apparently without use." And commented (at 52): "The peremptory challenge is constructed largely of superfice, devoid of much logical 'substance', and this superfice is clearly arbitrary. There is no reliable evidence to suggest that individual jurors reach verdicts according to those visual characteristics which they happen to display in the courtroom, and which counsel happen to notice … Even if such evidence could be found, it would still be more difficult to show that a jury, after having been subjected to the operation of the peremptory challenge, was in any meaningful sense more 'impartial', or any more representative of the accused's 'peers' than the same jury before the peremptory challenges had been made by each party." 82 Nevertheless, there are benefits to an accused in exercising his or her subjective prejudices, devoid of substance and reliability as they may be. These were explained in the article by McCrimmon, "Challenging A Potential Juror For Cause: Resuscitation or Requiem?" (2000) UNSW Law Journal 127 (at 131-132): "[The peremptory challenge] 'provides a ready corrective for errors by a trial judge in refusing to grant a challenge for cause' ( R v Sherratt [1991] 1 SCR 509 at 532-3, per L'Heureux-Dubé). It allows for the summary removal of a juror who has survived a challenge for cause but who, in the opinion of the challenger, may harbour resentment or bias ( Katsuno at 181 per Kirby J …). Finally, it permits counsel 'to choose jurors before whom they feel comfortable trying the case' … In other words, it allows counsel to choose a jury that will be receptive to counsels' case theory …"

But, as the author goes on to point out (at 132): "Critics of the use of the peremptory challenge paint a less salutary picture. One advocate for the abolition of the peremptory challenge maintains that, 'claims extolling the value of the peremptory challenge are predicated on nothing more than baseless speculation and courthouse apocrypha. The evils it propagates, however, are well-documented. The peremptory challenge is habitually employed to discriminate against citizens on the basis of invidious and atavistic classifications. It is used to affix marks of inferiority on historically disenfranchised groups. Its exercise subverts the representativeness of the petit jury … In short, it stands as an anti-democratic artifact that countermands a century of civil rights legislation and without substantial justification. In each of these ways, the peremptory challenge undermines not only the appearance of justice, but the cause and ends of justice itself (R Broderick, "Why the Peremptory Challenge should be Abolished" (1992) 65 Temple Law Review 369 at 370-1)." 83 So far, what I have said concerns peremptory challenges. In my view, the matters mentioned do not suggest that the provision of names and occupations of potential jurors to the accused is an essential element of the jury system 84 The comments I have made apply, to some degree, to challenges for cause as well. I recognise however, that there may be cases where occupations, and even names, of jurors will reveal grounds for objections on the grounds of cause. The possibility of this arising, small as it may be, is reduced by s 38(7) of the Jury Act which provides: "Before the selection of the jury at a criminal trial, the judge must, subject to the regulations: (a) direct the person prosecuting for the Crown to inform the jurors on the panel of the nature of the charge and the identity of the accused and of the principal witnesses to be called for the prosecution, and (b) call on the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case." 85 Mr Richter submitted that s 38(7) was an inadequate safeguard against bias on the part of potential jurors. I find it difficult to accept that proposition. After all, the community relies on jurors to find accused persons guilty or not guilty of the crimes with which they are charged. It would be going far, then, to assert that they cannot be relied on to comply with s 38(7).

86 But, despite the safeguards brought about by s 38(7), there may well be occasions, though relatively few in number, where an accused will be assisted, rationally, by the names and occupations of jurors in making challenges for cause. That, in my view, does not make the provision of these matters an essential element of the trial by jury.

The importance of protecting the jury from intimidation 87 While the jury is of fundamental importance to our society because it guards the liberty of the accused, it has a wider purpose and function. This was made clear in Brown v The Queen (1986) 160 CLR 171 where Brennan J, after commenting that trial by jury was "the chief guardian of liberty under the law", said (at 197) that it was "the community's guarantee of sound administration of criminal justice". Deane J, in the same case, said (at 202): "That essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached."

His Honour commented (also at 202) that the institution of trial by jury: "[C]onstitutes an element of the structure of government and distribution of judicial power which were adopted by, and for the benefit of, the people of the federation as a whole."

Dawson J said (at 209): "No doubt the section confers a benefit on every person charged on indictment under a Commonwealth law, but its benefits extend beyond the individual and its guarantee is more than personal." 88 It is common knowledge that at the turn of the 20th century the addresses of jurors and the identities and addresses of members of their families were not readily available to inquiring members of the public. Today, however, information of this kind is easily accessible through the internet and detailed directories of all kinds. Once the names (and occupations) of jurors are given to an accused person, the jurors are likely to believe that the accused will easily be able to find out where they live and the names and addresses of members of their families. This is not a comfortable situation for jurors, particularly in circumstances where trials involving members of criminal gangs and other participants in organised crime (who are not at all averse to interfering with violence in the lives of ordinary citizens) are a frequent occurrence. It is not unknown, in trials of this kind, for gang members, clearly identifiable as such, to pack the courtroom, day after day. Their presence is likely to be regarded, at least by some, as intimidatory (and may well be intended to have that effect). 89 I have pointed out that the prospect of intimidation of jurors being a real factor, and deserving of legislative attention, is made plain in the Second Reading Speech relating to the 1997 amendments to the Jury Act.

90 The High Court, in Brownlee v The Queen (2001) 207 CLR 278, expressly recognised that the jury system is required to respond to current conditions, particularly with regard to the security of jurors. Gleeson CJ and McHugh J said (at 286, [12]): "One of the most significant aspects of the history of trial by jury before, and up to, the time of Federation is that it shows that the incidence of the procedure never have been immutable; they are constantly changing".

See also at 287, [17]. 91 Their Honours went on to say (at 290, [27]): "One aspect of the jury system that must be capable of changing, and adapting to the circumstances of the time, is the measures that are taken to guard against the danger of jurors being subjected to improper outside influence. That is because the danger itself changes with varying social conditions and methods of communication." 92 Gaudron, Gummow and Hayne JJ (at 302, [66]) noted that in modern times the law has tended to place more reliance upon the capacity of jurors to resist outside influences. Their Honours stated (at 302, [67]): "We agree with the manner in which the current position was expressed by Grove J in the Court of Criminal Appeal. His Honour accepted the proposition that it is an essential feature of the jury system that the jury should deliberate upon its verdict uninfluenced by an outsider to the trial process." 93 Their Honours went on (at 302, [67]) to approve the following further remarks of Grove J in the Court of Criminal Appeal (R v Brownlee (1997) 41 NSWLR 139 at 145-146): "In my view an understanding and construction should be given to the words in s 80 that the framers of the constitutional guarantee intended that a jury exercise its function without fear or favour and without undue influence in the context of community standards and expectations as current from time to time." 94 Statements to similar effect, emphasising the need to protect the anonymity of jurors, have been made by members of the High Court in other cases; see, for example Kingswell v The Queen (1985) 159 CLR 264 (per Deane J at 301-302) and Ng v The Queen (2003) 77 ALJR 967 (per Kirby J at 978, [68]). 95 It is self-evident that the institution of trial by jury requires the protection of jury members from threats and intimidation. It would be a disaster for the institution if jurors were to be susceptible to intimidation that could influence their findings. For the jury to remain "the community's guarantee of sound administration of criminal justice", it must be protected from outside intimidatory influences.

The clash between the protection of jurors and the benefits of providing the accused with their names and occupations 96 There is a conflict between the need to protect jurors from intimidation and the desire of accused persons to learn the names and occupations of potential jurors for the purposes of exercising their right of challenge. 97 The provisions of the Jury Act that prohibit the disclosure of the names and occupations of potential jurors, in my view, are merely incidental to the achievement of the legitimate (that is, non-infringing) purpose or object of protecting juror anonymity (cf Cunliffe v The Commonwealth (1994) 182 CLR 272 at 324 per Brennan J). Those prohibiting provisions protect an essential feature of the jury system, namely, "that the jury should deliberate upon its verdict uninfluenced by an outsider to the trial process" (Brownlee v The Queen at 302, [67] per Gaudron, Gummow and Hayne JJ). The provisions protect the very integrity of the system. 98 I have pointed out that the content of the right to challenge has never been fixed in any absolute sense, and has frequently changed. In particular, there has never been an absolute right to know the names and occupations of potential jurors. The provision of the names and occupations of potential jurors has merely been, from time to time, part of the procedures of the jury system. These are procedures of the kind described by Gleeson CJ and McHugh J in Brownlee v The Queen as "never hav[ing] been immutable" and as "constantly changing" (at 286, [12]). 99 In my view, the provisions of the Jury Act that do detract from the accused person's right of challenge do not impinge on any incident that is fundamental, inherent in and of the essence of the system of trial by jury. Those provisions, in my view, as a matter of substance, do not impair the fundamentals of trial by jury. See Brownlee v The Queen at 298, [54] per Gaudron, Gummow and Hayne JJ. 100 Moreover, for the reasons I have given, in reality the provisons in question have little practical impact on the right of challenge. As Whealy J observed, the Jury Act preserves the right of challenge both to the array and to the polls of jurors (s 41). Both peremptory challenges (s 42) and challenges for cause are available. I do not agree that the Jury Act, in the respects submitted, contravenes s 80 of the Constitution.

Conclusion 101 I would dismiss the appeal. 102 GROVE J: I have had the advantage of reading the judgment of Ipp JA in draft form. I agree with it and wish only to make some brief observations concerning procedures which have been adopted following the coming into force of amendments wrought by the Jury Amendment Act 1997. 103 S 28(3) provides: "(3) The sheriff must also provide with the return the names and other particulars recorded on the roll or supplementary roll of the persons on the panel on separate cards, each card being as nearly as is practicable of equal size." 104 S 29(2) provides: "(2) The sheriff must record a person's identification number: (a) against the place where the name of the person appears on that panel, and (b) on the card referred to in section 28(3) relating to the person." 105 The balloting procedure is laid down in s 48 which, relevantly, provides: "(2) At the trial the presiding judge or an officer of the court shall: (a) place in a box provided for that purpose the cards provided under section 28(3) in respect of that trial, (b) draw out of that box those cards, one after another, and call out the identification numbers on those cards, until 12 persons appear ……" 106 As Whealy J observed (Judgment of 16 April 2004), in practice the cards supplied for the purpose of ballot do not comply with the requirements of s 28(3) in that cards are prepared exhibiting only the identification number rather than a card prepared in compliance with s 28(3) upon which that number has been endorsed. I add that my own experience as a trial judge is confirmatory of Whealy J's observation. 107 I conclude that the cards bearing only endorsement of identification number have been prepared in the circumstance of an administrative failure to appreciate the precise mandate of the statute in that regard. 108 There is a discernible potential benefit in the particulars of panel members whose cards have been drawn being available to the presiding judge. As Ipp JA has commented, such knowledge may assist a presiding judge to form an opinion as to the appearance of unfair composition of the jury as contemplated by s 47A which vests a power to discharge a jury if such opinion is formed. 109 Mr Richter QC contended that references by Whealy J to the introduction of s 68, in particular the specification of circumstances in which the sheriff may disclose information to "a court" indicated a view that a trial judge himself or herself could not access the particulars of the jurors. There is no inconsistency between a requirement for express authority for disclosure to a court in s 68 and the availability of particulars to the judge presiding at trial. The situations are, I suggest, self evidently distinguishable. 110 I agree with Ipp JA that the apparent contravention of the Jury Act in the administrative preparation of the ballot cards is not material to the issues to be determined in the appeal. The sheriff should rectify the situation and bring practice into compliance with the Act. 111 I agree that the appeal be dismissed. 112 HOWIE J: I agree with Ipp JA and the additional comments of Grove J. **********

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