Theodoropoulos v The Queen [2015] VSCA 364

Theodoropoulos v The Queen [2015] VSCA 364 - VSCA 2015 case summary — Zoe

[156]

Callaway JA was not, in that passage, addressing the question of the admissibility of the evidence in Arundel, either generally or in the particular circumstances of that case, but rather, the significance of the introduction of two impugned questions and three non-incriminatory answers into the trial when considering the possibility that a miscarriage of justice may have occurred. He drew attention to the concerns that underpinned the decision of the High Court in Palmer, namely, first, the possibility that the failure of an accused to proffer some explanation as to why a complaint may have been made might be accepted by the jury as providing support for its truth and, second, the related potential for diminution of the burden and standard of proof implicit in the subtle suggestion of an obligation to provide such an explanation ...

His Honour formed the view that, in the circumstances of the matter before the Court, neither of these concerns could be seen to arise. What Callaway JA did not say, was that evidence of the asking of a question of the 'why would she lie' kind would be admissible in the course of a police interview in circumstances in which the question and answer possessed no probative value in the trial. Nor did he say or imply that evidence that the police proffered to an accused the opportunity to provide an explanation of the possible motives for the making of a complaint against him of itself possesses any such value. At no stage in the present matter did the prosecutor advance any basis for the admission of the evidence as relevant to any issue before the jury. As Callinan J pointed out in Graham v. R:

... questions of the kind asked could quite properly be asked by the investigating police officers as part of the investigative process. That the police officers might do so may be accepted. However, that the police officers may have asked such questions provides no basis for the introduction of this issue into evidence at the trial.

The possible motivation which may have induced a complainant to make a false allegation against an individual would naturally be the subject of attention by a careful investigator who was contemplating the laying of serious charges. In some circumstances, that matter might well be the subject of inquiry in the course of an interview with the person against whom the allegation is made. It is, I think, beyond argument that in many situations the members of a jury consider this question in making their assessment of the credibility and reliability of the complainant's evidence. As I have pointed out, those are not the processes with which the High Court was concerned in Palmer. Question 76 and the answer provided by the applicant were not admissible in the present case, simply because this evidence possessed no probative value whatever.

The question then arises, as it did in Arundel, whether their admission created a realistic potential for a miscarriage of justice in the circumstances. In my opinion the answer to that question is 'No' and for similar reasons to those given by Callaway JA. The prosecutor asked no questions about that subject in the course of his cross-examination of the accused, and made no comment or submission to the jury about it. No complaint has been advanced concerning the adequacy or correctness of his Honour's charge on the onus and standard of proof. There is no reason to suppose that the jury may have misunderstood the position or applied the impermissible method of reasoning to which Palmer was directed. When regard is had to the totality of the evidence before the Court I am far from persuaded that the applicant's prospects of acquittal have in any significant respect been impeded by the incorrect admission of this evidence.

This ground must fail, in my view.

[221]

Here, although the applicant could have exercised his right to challenge peremptorily the seventh potential juror called, the actual exercise of that right must have been affected by the errors of the associate and the judge, for the applicant knew that six jurors were yet to be empanelled and he had been told or instructed by the judge that he had only one peremptory challenge left. The erroneous statement here prevented the applicant, as was submitted on his behalf, from freely exercising his fundamental right. For him reliance was placed on the word 'allowed' in s 39(1) and it was said, correctly, in my view, that, for a period, his capacity to exercise the right to peremptory challenge was reduced. The correction did not and could not overcome or eradicate that. To put the matter another way, the judge's statement confirming the associate's warning fettered or burdened the applicant's exercise of his fundamental right. The submission for the respondent that the applicant was not denied the right to the six peremptory challenges is not correct without qualification. Whilst it is true that he was ultimately not denied the right to a sixth peremptory challenge, he was denied the right to six peremptory challenges from the time the seventh potential juror's name was called until that person took her seat in the jury box. There was for a period in the empanelling process non-compliance with a mandatory statutory provision relating to the constitution of the jury. In short, the applicant had, as a fundamental requirement of a trial according to law, the right to a jury properly selected in accordance with the Juries Act, but that right of his was restricted, constrained, impaired or interfered with, indeed for a time denied in its fullness. The defect went to the constitution of the tribunal of fact that was to pass between him and the Crown. It was not a mere or inconsequential irregularity, but 'a fundamental failure to observe the requirements of the criminal process'. The defect in the constitution of the jury went to the root of the trial and constituted a miscarriage of justice of a kind that falls outside the purview of the proviso to s 568(1).

[246]

The empanelment practice of each Australian jurisdiction affords an accused an opportunity, to a greater or lesser degree, to see the faces of potential jurors before the right of challenge expires. But, there may be considerable variation as to the distance from which the accused gets to see the faces of potential jurors and the period of time before the right of challenge is extinguished.
Only in Victoria are potential jurors ordinarily required to parade past the accused in the dock on their way to the jury box. This means that only in Victoria is the accused likely to get a 'close up' look at each potential juror.
Only in Victoria is the dock ordinarily positioned at the rear of the court behind the public gallery. This means that, if the potential jurors make their way directly to the jury box, the accused may only get a view of the back of the heads of some of them until they reach the jury box. In three jurisdictions (ACT, Qld, WA Supreme Court), the dock is positioned centrally facing the judge and in front of the public gallery. This means that, unless the accused turns around during the empanelment process, he may not get a view of the face of a potential juror until that potential juror reaches the jury box. In five jurisdictions (NSW, NT, SA, Tas, WA District Court), the dock is positioned on the opposite side of the court to the jury box, facing the jury box and in front of the public gallery. This gives the accused an opportunity to see the faces of the potential jurors as they make their way to the jury box.
The total time for peremptory challenge can vary significantly across jurisdictions, from a matter of seconds to minutes. At one end of the spectrum is the ACT where the right of peremptory challenge expires when the potential juror enters the jury box: if the potential juror is sitting close to the entrance of the jury box when called, an accused might only have a few seconds before the right of peremptory challenge is extinguished. In the middle of the spectrum are three jurisdictions (Vic, SA and the Federal Court) where the right expires when the potential juror takes their seat in the jury box. At the upper end of the spectrum are five jurisdictions, (NSW, NT, Qld, Tas[142] and WA), where the right expires when the potential juror is sworn or affirmed but there can be considerable variations in these jurisdictions in relation to the total time that the accused has to exercise the right of peremptory challenge. This is because in two of these jurisdictions (NT and Qld), potential jurors are sworn in as soon as they reach their seat in the jury box and not after all the places in the jury box have been filled (cf NSW, WA, Tas).
Across jurisdictions, the time that an accused gets to see the face of a potential juror before the right of peremptory challenge expires may be significantly shorter than the total time that an accused has to exercise his or her right of peremptory challenge. It all depends on the location of the dock and the location of members of the jury panel when their names or numbers are called and they make their way to the jury box. In the absence of a parade, the accused may not get to see the face of a potential juror until they reach the jury box.

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