Theodoropoulos v The Queen [2015] VSCA 364

CRIMINAL LAW - Evidence - Record of interview - Investigators raise question of motive of complainant to lie - Whether answers were of probative value - Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, distinguished - R v Arundel [1992] 2 VR 228; R v O'Neill [2003] VSCA 204; (2003) 7 VR 408; R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501, considered.

CRIMINAL LAW - Rape - Conviction - Appeal - Unsafe and satisfactory - Verdict reasonably open to jury.

CRIMINAL LAW - Rape - Resentencing on multiple counts.

PRACTICE AND PROCEDURE - Legal Practitioners - Duty to the court and client - Obligation to raise irregularities in procedure with Court.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 After a trial, the applicant was found guilty of five charges of rape. He now appeals against conviction.

Proposed grounds of appeal against conviction

2 The applicant seeks leave to appeal against conviction on five grounds:

1. The trial miscarried on account of an improper/unlawful empanelment process being employed in the selection of the jury in that the applicant was not allowed nor afforded a proper or adequate opportunity to make an assessment of any and all potential jurors and thus was not afforded the necessary and reasonable opportunity to exercise his right to make a peremptory challenge;

2. The jury:

(a) was not empanelled in accordance with the law; and

(b) was not constituted according to law;

3. The verdict of the jury is a nullity;

1. The learned trial judge erred in acceding to the prosecutor's submission to delete from the applicant's record of interview questions and answers in which the applicant proffered to police a possible motive that the complainant might have to make a false complainant against him; and

5. The convictions are unsafe and unsatisfactory.

3 The complainant, Laura,[1] was 19 years of age at the time of the alleged offending. The applicant was 43 years of age at that time. Laura and the applicant were known to each other, having previously met through her boyfriend, James Peters ('Peters').[2] Peters and the applicant were business associates.

4 On 11 August 2012, the day before the alleged offending took place, the applicant invited Laura and Peters to attend his son's 18th birthday party. The party was held at the home of the applicant's former partner, Stella. The applicant was accompanied by his current partner, his mother and his younger son.

5 During the course of the evening, the applicant, Laura and Peters were seen going into the bathroom. It became clear that the three of them were smoking ice and taking ecstasy tablets, and all consumed some alcohol. The applicant had a fight with his partner, and Laura and Peters were asked to leave the party.

6 The applicant, Laura and Peters eventually left the party, and around 5 am on Sunday 12 August, the applicant paid for a hotel room in a nearby suburb where the three of them continued to drink and smoke ice. At some point, Peters went to bed and slept for some time, and the applicant left to pick up Stella. He brought her back to the hotel room. The applicant, Laura and Stella took more ecstasy tablets.

7 Later, the applicant drove Stella home. When the applicant returned, Laura was asleep on the bed, and Peters was awake and up. Peters then went out to try and get some more ice, and to buy some food.

8 Laura had taken her clothes off and was naked under the covers on the bed.

9 The Crown alleged that when Laura woke up, she discovered that she was lying on her side and the applicant was holding her hip and performing oral sex on her. Laura was in shock and going in and out of consciousness (Charge 1 - Rape). The applicant then penetrated Laura's vagina with his penis (Charge 2 - Rape). Laura was awake enough to tell the applicant to stop, however he did not. This act of penetration ended when the hotel phone rang. The applicant answered. The caller was Peters, who wanted to know what takeaway food the applicant wanted. After the call ended, the applicant went back to Laura, and digitally penetrated her vagina (Charge 3 - Rape). The applicant then penetrated her vagina with his penis before ejaculating onto her back (Charge 4 - Rape). The applicant then inserted his fingers into Laura's vagina for a second time (Charge 5 - Rape). This caused her pain and she rolled over to stop the applicant from doing this.

10 During the conduct that made up Charges 2 to 5, Laura kept telling the applicant to stop, and saying no, but the applicant continued.

11 Eventually, Peters returned to the room, and ate some food with the applicant. Laura got dressed under the blankets. The group left the room at midnight. Laura and Peters left in a taxi and went to Peters' mother's home. The applicant drove away in his own car.

12 Once home, Laura rang her ex-boyfriend, 'Fraser', and told him that she had been raped. She told her ex-boyfriend that she was not sure what Peters' role had been but shortly after she also told Peters that the applicant had raped her.

13 At about 5am on 13 August, Laura made a formal complaint to police and was later medically examined at a hospital.

14 Following the completion of her statement on 1 September, Laura agreed to participate in pretext telephone calls with the applicant, which were recorded. During two of those calls, the applicant admitted to having sex with Laura, but stated that it was consensual.

15 The applicant was arrested and interviewed some days later. During his record of interview, the applicant admitted having sexual intercourse with Laura but maintained that it was consensual. The applicant stated that he and Laura had kissed, performed oral sex on each other and had penile vaginal sex twice.

16 Grounds 1 to 3 of the application for leave to appeal relate to the way in which the jury was empaneled.

17 We would allow the appeal on grounds 1 to 3. In our opinion, the material before the Court establishes that the procedure which was adopted for the empanelment of the jury deprived the applicant of a reasonable opportunity to exercise his right of peremptory challenge, and a substantial miscarriage of justice was thereby occasioned. The unchallenged evidence was that the applicant did not have an adequate opportunity to view the faces of prospective jurors before they entered the jury box. The applicant's solicitor also deposed to there being insufficient time to decide on an attitude to a challenge after a potential juror has entered the jury box. In our opinion, although it is likely that the applicant would have had some opportunity to view the faces of some, perhaps all, potential jurors after they entered the jury box, the evidence of that opportunity is insufficiently clear or strong to displace the evidence of the solicitor. For that reason, we conclude that the time available to challenge prospective jurors as they moved to their seats after entering the jury box was also inadequate to enable the applicant to exercise his right of peremptory challenge.

18 On the afternoon before the trial was due to commence, the judge's associate sent an email to the solicitors for the parties in respect of arrangements for the trial. Among many things covered in the email, it stated that the judge had certain practices for empanelment. The email stated that the judge

does not require prospective jurors to parade past the dock when their number is called. They simply stand and make their way to the jury box, unless challenged or directed to stand aside.

The email stated that the parties could raise any issue that they had with any of the matters referred to in the email.

19 On the morning of the empanelment, the judge's tipstaff, in the presence of the applicant and his legal representatives, directed the jury panel that when their number[3] was called they should walk directly from their seated position in the body of the court to the jury box without passing in front of the dock. That direction was consistent with the judge's practice as foreshadowed in the email.

20 Thereafter, members of the panel, who were seated in the court with their backs to the applicant and his solicitor, stood when their numbers were called and walked directly to the jury box. None of the prospective jurors walked past the dock. Each of them walked towards the jury box, either directly from the row in which they had been seated, or by walking towards the bar table, then turning and passing in front of the seats to the jury box. The applicant exercised his right to peremptory challenge in respect of six prospective jurors.

21 The prospective juror, upon reaching the jury box, would walk up some stairs into the jury box and move to one of the six seats in the front or rear row. During some or all of this period, the juror would be moving towards the back of the court, and hence, the dock where the applicant and his solicitor were standing. It is likely that the applicant would have been able to see the faces of some, maybe all, of the jurors as they did so. However, it is also possible that one or more jurors may have looked elsewhere, or moved sideways along the row of seats, and therefore not given the applicant a clear view of their face.

22 No objection was raised at any time prior to the appeal as to the procedure that was followed. Senior counsel who now appears for the applicant, informed the Court that when he was briefed to draw the grounds of appeal, the applicant's solicitor raised concerns as to the empanelment process that was followed. Following a viewing of the video of the empanelment procedure, the grounds of appeal were formulated.

23 The applicant was given leave to file an affidavit by the solicitor who had assisted him in the jury selection process at the trial. The solicitor, an experienced legal practitioner, deposed to a number of material facts, each of which we shall consider in more detail, including the lack of opportunity to view the faces of jurors as they walked to the jury box, her practice not to challenge jurors once they entered the jury box because there was insufficient time to do so, and her belief that she did not have the right to object to the process which the trial judge proposed to follow. Both parties were granted leave to file further submissions as to the matters set out in the solicitor's affidavit. The Crown advised the Court in its further submission that it did not wish to cross-examine the deponent.

24 As discussed further below, there are a number of issues raised on the appeal which bear upon whether the applicant had an adequate opportunity to exercise his right to peremptory challenge. First, did the applicant have a reasonable opportunity to view the prospective jurors as they walked to the jury box? Second, if not, did the applicant's opportunity to view them upon their entry to the jury box and before they took their seats, taken with such earlier view of the potential jurors as the applicant had, provide a reasonable opportunity to exercise his right of peremptory challenge? Third, what follows from the applicant's failure to raise any objection to the process that was followed?

25 We consider the evidence before the Court and the appropriate findings and inferences that should be made later in these reasons.

Juries Act 2000 and common law antecedents of the right of peremptory challenge

26 An analysis of the grounds of appeal, which contend that the procedure adopted by the trial judge deprived the applicant of his right of peremptory challenge, must commence with a consideration of the relevant provisions of the Juries Act 2000.

27 By s 36, the jury is selected by calling out the name (or number) and occupation of prospective jurors in the jury panel until the required number is selected, after allowing for all challenges. Section 39 then relevantly provides:

(1) Each person arraigned is allowed to challenge peremptorily -

(a) 6 potential jurors, if only 1 person is arraigned in the trial; or

(2) In a criminal trial, each peremptory challenge must be made as the potential juror comes to take his or her seat and before he or she takes it.

(3) On the application of a person arraigned, the court must permit a legal practitioner who represents the person, or the clerk of the legal practitioner, to assist the person in making a peremptory challenge.

28 Section 39 can be traced at least as far back as The Juries Statute 1865, s 37 of which provided that every peremptory challenge 'shall be made as the juror or assessor comes to take his seat and before he takes it'. The same form of words is found in each subsequent iteration of juries legislation in Victoria.[4]

29 While the specific procedures by which juries are empanelled have differed in other jurisdictions, as explained further below, the right of peremptory challenge enshrined in s 39 is deeply rooted in the common law. The right of peremptory challenge by an accused is recorded at least as far back as the writings of Fortescue in the fifteenth century.[5] In the seventeenth century, Coke wrote that a 'peremptory' challenge by an accused is so called 'because he may challenge peremptorily upon his own dislike, without shewing of any cause'.[6]

30 The peremptory challenge by an accused appears to have traditionally been made in the moments after the prospective jurors are called and before they are sworn,[7] as it remains in most jurisdictions today. The practice is at least six centuries old, with Fortescue recording the following: '[u]pon their appearance in Court, as they come to the Book to be sworn, before they are sworn, the person accused may challenge them'.[8] A record of the 1680 trial of the Earl of Castlemaine for high treason similarly records an instruction to the accused on the empanelment of the jury that 'if you challenge any of them, you are to speak as they come to the Book to be sworn, and before they are sworn'.[9] Blackstone reports that an essential aspect of the peremptory challenge was the opportunity given to the accused to view prospective jurors:[10]

As every one must be sensible, what 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 law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.

31 In the early social conditions of jury trials in England, it could have been expected that an accused would have knowledge about some or most of the prospective jurors' reputations.[11] Today, however, an accused is likely to know no more about a prospective member of the jury than their name (or number), sex, address, occupation and, of course, their appearance. But the scope of that information varies between jurisdictions. In practice, the accused's opportunity to challenge jurors centres upon those whom the accused 'does not like the look of'[12] or otherwise recognises.[13]

32 In the common law of Australia, the accused's right to challenge the selection of a juror is personal and irrevocable:[14] 'an accused must always effectively retain the right, if he wishes, personally to exercise his peremptory challenges until they are exhausted'. It follows that the opportunity for the accused to view prospective jurors is essential to the accused's right to challenge:[15] 'he may prefer his own instinctive reaction to the person he sees to the experience or theories of [his counsel]. It is his peculiar right to follow his own impressions and inclinations.' In Johns v The Queen, Barwick CJ said:[16]

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 or be a reason to overbear the accused's reaction engendered by it.

For my part, it is of the upmost importance in the trial of accused persons that they not only have adequate opportunity to see and observe the jurors but that they are adequately informed of their personal right of challenge.

33 Barwick CJ further suggested that counsel should stand near the dock to assist the accused in exercising his or her right to challenge.[17] In Victoria, the availability of legal advice to an accused is secured by s 39(3) of the Juries Act 2000.

34 In R v Gee,[18] the South Australian Court of Criminal Appeal considered whether the common law permitted a trial to be both commenced and run in the absence of an accused. The majority (Gray and Sulan JJ) held that it did, in limited respects, including the voluntary absence of the accused. Peek J, in dissent, concluded that while a trial might continue in the absence of an accused, the accused's presence was essential at its commencement. In reaching that conclusion Peek J made observations about the empanelment process:[19]

The defendant's right to challenge jurors ... requires the defendant's presence in the courtroom at the time of empanelment. Only in this way will a defendant be able to recognise a person with whom he has previously had some dealing which would lead to a wish to exercise a challenge. On a closely related aspect of trial by jury, a juror must also be able to see the defendant to determine whether he or she should apply to be disqualified from sitting as a juror. If the empanelling process does not occur in the defendant's presence it cannot be assumed that a fair trial will follow, quite possibly for reasons that will never emerge due to the very fact of the defendant's absence at this critical stage of the proceedings.

35 In Ronen v The Queen,[20] the New South Wales Court of Criminal Appeal rejected a challenge to the withholding, under the Jury Act 1977 (NSW), of the names and occupations of the members of the jury panel prior to the selection of the jury. Having regard to s 80 of the Commonwealth Constitution and the minimum essential features of a jury trial,[21] the Court concluded that an accused had no right to the names and occupations of prospective jurors, and the withholding of that information did not diminish the accused's right to make peremptory challenges.[22] It was said that the right was protected, in a significant respect, because the accused retained the opportunity to physically view prospective jurors.[23]

36 The procedure for peremptory challenges of prospective jurors in Australian jurisdictions has the common origins and purposes described above, but it differs significantly in practice.

The Victorian 'parade' and visual inspection of prospective jurors at common law

37 In Victoria, on the calling of the name (or number) and occupation of a prospective juror,[24] there has been a longstanding practice that the prospective juror 'parades' in front of the accused: the juror stands and walks before the accused and then on to the jury box, even if this requires the taking of a circuitous route. The practice is standard in Victoria, although it is not provided for in the Juries Act 2000. The practice is not shared in other Australian jurisdictions.[25] Nor, except in South Australia and provisions introduced in 2009 into the Federal Court of Australia Act 1976 (Cth), is the provision replicated whereby the time for peremptory challenge expires when the prospective juror takes his or her seat.[26]

38 The 'parade' is an instance of a longstanding historical practice of ensuring that an accused has an opportunity to inspect visually the members of the jury panel. There are reports from the eighteenth and nineteenth centuries of the practice of requiring prospective jurors to be called to the dock for inspection by an accused. In 1795, Hawkins wrote:[27]

[B]efore any juryman is brought to the book, the prisoner by leave of the Court may have the whole panel once called over in his hearing, that he may take notice who do and who do not appear, in order the better to enable him to take his challenges.

39 In his 1843 treatise On the Admissibility of Confessions and Challenge of Jurors in Criminal Cases in England and Ireland, Joy described the following practice:[28]

Before the prisoner is put to his challenges the court will allow the whole panel to be called over if he desire it, that he may know who appear and who do not, and thus be prepared to take his peremptory challenges.

40 Hawkins and Joy both cite as authority Mr Townly's Case decided in 1746, a report of which provides:[29]

His counsel moved, that, before any juryman should be brought to the book, the whole panel might be called over once in the prisoner's hearing, that he might take notice who did and who did not appear: which they said would be a considerable help to him in taking his challenges. This was done by order of the Court, and the attorney-general did not oppose it.

41 The report of Townly's Case itself states that the practice 'was done in Layer's case, after a much longer debate than the matter deserved'.[30] Hawkins relied on this case also. In R v Layer, in 1722, it is reported that after the jury was called:[31]

The prisoner thereupon moved, that the panel might be called over, that he might know who appeared, and who not, which, after some opposition, was done.

42 Joy further describes the practice in Ireland as requiring the jury and prisoner to look upon each other before a challenge is made.[32] Citing R v Hughes, Joy records that the judge in that case said:[33]

[A]ccording to the practice in Ireland the proper time to challenge a juror is after he has taken the book, and before the officer commences the oath, 'you shall well and truly try,' &c.; that the taking of the oath is not considered to have commenced until the clerk of the crown has repeated the formal words, 'juror look on the prisoner, prisoner look on the juror'.

43 In another report of R v Hughes, the judge said:[34]

In England the oath is considered to be commenced when the juror takes the book in his hand; in Ireland it has been generally held that the oath has not been commenced until after the Clerk of the Crown has said, 'juror look upon the prisoner; prisoner look upon the juror'.

44 The origins of the Victorian 'parade' are obscure. However, the notion of jurors 'passing' between the Crown and the accused, in a non-physical sense, is of long standing. The traditional practice in England has been to inform an accused of his or her right to challenge prospective jurors before the jury is empanelled. In the nineteenth century texts, the instruction is described in generally the same form of words:[35]

These good men, whose names you shall hear called, and who do appear, are the jury who are to pass between our Sovereign Lady the Queen and you upon your respective trials: if, therefore, you would challenge them, or any or either of them, your time is as they come to the book to be sworn, and before they are sworn, and you shall be heard.

45 The reference to 'passing' between the Sovereign and the accused appears to describe the institution and task of the jury: the jury is an impartial group of persons standing between the power of the Sovereign and the freedom of the accused, and who are tasked with trying the issue of the accused's guilt or innocence.[36]

46 This notion also appears in the jurors' oath reported in the nineteenth century texts:[37]

You shall well and truly try, and true deliverance make, between our Sovereign Lady the Queen and the prisoners at the bar, whom you shall have in charge, and a true verdict give according to the evidence.

An oath in broadly similar terms remains today in Victoria in sch 3 of the Juries Act 2000.[38]

47 The early accounts all emphasise the importance of a visual inspection by the accused of members of the jury panel. Whatever the origins of the 'parade', its purpose is to provide the accused with an opportunity to see the prospective jurors.

Australian practice regarding peremptory challenges

48 In other Australian jurisdictions, while there is no 'parade', various procedures provide for the identification or inspection of a prospective juror.

49 In New South Wales, prospective jurors are announced by number, not name, and are requested to take a seat in the jury box. There is no allowance for the provision and inspection before trial of the name, address and occupation of prospective jurors.[39] The right to challenge is, in effect, 'to be exercised on appearance alone'.[40] For that purpose, while there is no parade before the accused, once prospective jurors are seated in the jury box, each is required to stand, one at a time and for several seconds, before being sworn. Peremptory challenges are then required to be made in the moments before the Bible is placed in the hands of the prospective juror.[41] Counsel therefore has some opportunity to inspect the prospective juror before making a challenge,[42] as does the accused.[43] However, the New South Wales Law Reform Commission has said that the process 'theoretically allows the defendant to have an involvement in the empanelment'.[44] The accused's opportunity to make a challenge is very limited in practice:[45]

In accordance with current NSW practice, and in order to preserve the anonymity of jurors, the parties know neither the names, residential addresses nor occupations of those people within the jury pool whose names are drawn at random during the empanelment procedure. They or their counsel have only the short time available between the time of the number of potential jurors being called, and the brief moment when that person is asked to stand for the purpose of the exercise of the challenge in order to determine whether to avail themselves of that right. In practice, the decision whether or not the defence will make a challenge rests with counsel, who rarely consult with the accused on the question.

50 In Queensland, at the empanelment, each prospective juror, who is sitting at the back of the courtroom,[46] is called by name (or by number if the judge directs that identification should be by number).[47] When the person is called they are required to walk to the bailiff to be sworn.[48] Challenges must be made before the bailiff begins to administer the oath or affirmation.[49] The Queensland Law Reform Commission has noted that, while there is 'formal' participation of an accused in making challenges, as in New South Wales, in practice, 'the decision about whether to make a challenge is made by the defence counsel'.[50]

51 In Western Australia, prospective jurors are called by number,[51] and the person walks to the jury box to be sworn. Peremptory challenges are made at this time, before the court officer begins to administer to the juror the oath or affirmation.[52] Section 103 of the Criminal Procedure Act 2004 (WA) requires that the accused be informed of his or her right to challenge at this time.

52 The Law Reform Commission of Western Australia has emphasised the importance of physical observation of a prospective juror by the accused:[53]

[It is] entirely appropriate for defence counsel (or the instructing solicitor) to stand near the dock during empanelment so that the accused can have direct input into the juror selection process. It is also noted that prior to empanelment, defence counsel will have already met with the accused and discussed the jury pool list. If the accused recognises a name on the list, he or she may instruct counsel to challenge that particular juror if selected. However, it is important for the accused to be able to advise counsel if he or she recognises a juror by sight or notices mannerisms or behaviour that suggest possible bias or a lack of competence.

53 In South Australia, a challenge is to be made before the prospective juror takes his or her seat in the jury box.[54] It appears, as Beale AJA explains, that the dock is ordinarily positioned in front of the public gallery, giving the accused the ability to see the faces of potential jurors as they walk towards the jury box.

54 In Tasmania, prospective jurors are called by name (or number)[55] and asked to take their place in the jury box.[56] Once all of the prospective jurors have taken their place in the jury box, the accused is invited to make any challenge.[57] Again, as Beale AJA explains, the layout of the court appears to give the accused the ability to see the faces of prospective jurors as they walk to the jury box.

55 In the Australian Capital Territory, challenges are to be made before the prospective juror enters the box.[58] Beale AJA explains in his reasons that the potential juror walks directly to the jury box upon being called. The potential juror stands for a moment at the entrance to the jury box and faces the accused. If there is no challenge, then the potential juror enters the jury box.

56 In the Northern Territory, the names of jurors are called out in open court during empanelment.[59] There is no legislative stipulation as to the time by which a peremptory challenge must be made.

57 It is apparent that the legislation and practice in each of the Australian states and territories provides for an opportunity for an accused to view a prospective juror before deciding whether to exercise his or her right of peremptory challenge. The length of time during which the accused can see the face of each potential juror will vary, but plainly there is some opportunity to do so in all jurisdictions. There is no mandatory requirement for a 'parade', in Victoria or elsewhere. A parade is only one way in which it can be ensured that an accused has the necessary opportunity. But the common thread across all jurisdictions is that there must be that opportunity. The primary question in the present case is whether such opportunity as the applicant was afforded was adequate to enable him properly to exercise his right of peremptory challenge.

Was there an adequate opportunity to view the prospective jurors as they walked to the jury box?

58 In her affidavit, the applicant's solicitor dealt discretely with each prospective juror who had been called during the empanelment process. She deposed as to how each juror, upon their number and occupation being called, walked from their position in the courtroom directly to the jury box without passing in front of the dock. In respect of 12 of the 19 prospective jurors called during the process, she deposed that neither she nor the applicant was able to properly assess 'characteristics such as age range, country of birth, attitude to being chosen and attitude to the applicant'.

59 Depending upon the position in the courtroom in which each prospective juror was seated, the solicitor deposed that she either had no view of the prospective juror's face, or a partial or side view of the juror's face, before they reached the jury box. In five cases, she stated that she could only see the back of the juror's head. She deposed that some jurors were challenged because of their occupation or because they appeared to be older than the demographic which had been discussed with the applicant as the type of juror he wished to have on the jury. With respect to two of the jurors who were the subject of peremptory challenge, she deposed that had she had an opportunity to see their face she may have reassessed her decision to challenge them.

60 The solicitor, who had the benefit of a video recording of the jury empanelment, was also able to identify those prospective jurors who walked quickly to the jury box or who were wearing clothing which further obscured any partial view of their face. The solicitor set out the observations that could be made of each prospective juror whose number and occupation was called. For example, she said of prospective juror No 11 (a gaming worker):

This juror was seated in the middle of the front row. He also walked quickly into the jury box. I was unable to see this juror's face and had a back view only of this juror, partially obscured by the hood on his jacket. I had little time to assess him and little information upon which to make an assessment. I was unable to properly assess characteristics such as age range, country of birth, attitude to being chosen and attitude to the applicant.

61 In the case of each prospective juror called, the solicitor either explicitly stated that she was unable to properly assess the characteristics of that prospective juror, or described the nature of the observation that could be made of that juror, from which it could be inferred that she was unable to observe their face at all.

62 The Crown elected not to cross-examine the applicant's solicitor. Her evidence as to the observations that could be made of the prospective jurors as they made their way to the jury box was unchallenged. It was not suggested that it was contradicted by what could be observed on the video recording.

Did the applicant's opportunity to view prospective jurors upon their entry to the jury box and before they took their seats provide further opportunity to exercise his right of peremptory challenge?

63 It was not in issue that the prospective jurors were required to enter the jury box from the side of the jury box closest to the bench. As we have said, in alighting the stairs to the jury box and in walking to a vacant seat, the prospective juror would (unless they shuffled sideways to their seats or looked in a different direction) have been facing the rear of the court and the applicant in the dock. Ordinarily, a juror entering the jury box will be expected to move along the jury box to the furthest vacant seat from the point of entry to the jury box. The time available to an accused and those assisting him or her to view the juror after the juror has entered the jury box will depend upon the seat which the juror takes. As no seat is designated as the seat which the prospective juror must take, the juror might take the first vacant seat available to him or her rather than move along the line of vacant seats to the furthest vacant seat.

64 The Crown submitted that there was no requirement in the Juries Act 2000 that prospective jurors pass in front of the dock. The Crown submitted that the period of time afforded to the applicant and his solicitor to view the prospective jurors as they entered the jury box and before taking their seat provided the applicant with a reasonable opportunity to challenge each prospective juror.

65 The applicant's solicitor relied upon the video recording of the empanelment process. The Court reviewed the video of the empanelment process, which captures a view of the jury panel seated in the body of the court. The video shows that when a prospective juror's number was called, the juror, in accordance with the direction the panel had been given, moved directly towards the jury box. The video does not capture the jury box, and so the prospective juror disappears from view upon commencing to enter the jury box. However, the sounds of each potential juror's tread on the steps of the jury box can be heard on the recording.

66 Following oral submissions, a table was prepared by the Court and provided to the parties, based upon the video recording. In it, an estimate was made of the period of time that the applicant and his solicitor may have been able to observe the face of each prospective juror from the time they alighted the stairs and entered the jury box and made their way to their seat until they were seated. It was assumed that the juror had taken his or her seat shortly before the time when the judge's associate could be heard to begin to shake the ballot box before drawing out the number of the next prospective juror. A table in the following form was provided to the parties reflecting the maximum time that may have been available to the applicant to challenge a prospective juror before he or she took their seat.

Table of the maximum time to challenge jurors (challenged and stood aside jurors not included)

Maximum time for challenge (after juror exit from screen)

67 Having been provided with a copy of the table, the parties were requested to provide a further written submission addressing the opportunity the applicant may have had to view the faces of prospective jurors once they commenced to enter the jury box and made their way to their seats. The parties were asked whether that period provided adequate time for the applicant and his solicitor to decide whether to exercise the right to challenge that juror. The request of the parties also noted that the solicitor's affidavit did not address those issues, other than to say that it was her practice that any prospective challenge should occur prior to the prospective juror entering the jury box as there was insufficient time remaining to assess and decide on an attitude to a challenge. The Court noted that the Crown had not sought to cross-examine the applicant's solicitor.

68 The applicant's supplementary submission stated that it was not known whether any prospective juror on entry to the jury box ever faced the applicant and his solicitor. He submitted that, even assuming that the table correctly sets out the time available to the applicant and his solicitor from the time the juror was on the steps of the jury box,

there are at least two potential jurors (6 and 12) that afforded only four seconds for viewing, appreciation and decision, exclusive of consultation with the assisting solicitor.

Regardless of the burden [of proof] these two, at least, were empanelled without the applicant being afforded the opportunity spoken of by Barwick CJ in Johns.

The same observation can be made in regard to potential jurors 2, 3 and 5 and perhaps to all.

As noted, whether or not the potential juror on entry to the jury box ever faced the applicant is problematic at best.

69 The Crown in both its oral and written submissions, contended that the time between a prospective juror entering the jury box and taking his or her seat was adequate to challenge the juror and in any event was to be considered as only part of the time during which the applicant could have exercised his right to challenge that prospective juror.

The practice of not challenging a prospective juror once he or she has entered the jury box

70 The applicant's solicitor further deposed as follows:

Prior to the commencement of the jury selection process we had discussed the details of that process and the applicant had given the right of challenge to me subject to him being able to overrule such right at any time. The applicant understood that he was required to verbally challenge those jurors who we did not wish sitting on the jury. I advised the applicant that it was my practice that any prospective challenges should occur prior to the potential juror entering the jury box as there is insufficient time remaining to assess and decide an attitude to a challenge. I also advised the applicant that no challenge could occur once the juror had taken their seat in the jury box. I further advised the applicant to notify me immediately if he recognised any of the potential jurors.

71 As provided by s 39(2) of the Juries Act 2000, a challenge must be made before the juror takes his or her seat. A practice of exercising the right to peremptory challenge prior to the prospective juror entering the jury box is thus one commonly followed by experienced members of the legal profession, who assist accused persons in the jury selection process. Senior counsel who appeared for the applicant on the appeal advised the Court that he invariably followed that practice. The practice had evolved for the reasons given by the solicitor in her affidavit, namely, because there would be insufficient time after the juror enters the jury box to determine whether that juror should be challenged and uncertainty as to how quickly the juror would take their seat.

72 The Crown submitted that the practice of the applicant's solicitor not to challenge the prospective juror once he or she had entered the jury box was a choice made by the applicant who effectively waived his opportunity to consider the view of the juror's face at that time.

The absence of any objection to the procedure

73 On the day prior to the listing of the trial for hearing, the trial judge's associate sent the email to which we have referred to the solicitors for the applicant and the Office of Public Prosecutions. We should refer to its content in more detail. In that email, the associate identified the various documents which were on the file concerning the trial and requested advice as to what the pre-trial issues were. The relevant part of the email concerning the empanelment of the jury was in these terms:

Also, in anticipation that we will be empanelling tomorrow, please note that her Honour has the following practices for empanelment:

• Her Honour empanels by number.

• Her Honour will identify counsel and instructing solicitors by name and ask them to stand and face the jury prior to empanelment, so that the panel are able to determine whether they recognise any of you.

• Her Honour does not require potential jurors to parade past the dock when their number is called. They simply stand and make their way to the jury box, unless challenged or directed to stand aside.

74 The parties were requested, prior to empanelment, to email details of the names of instructing solicitors and any information concerning the trial that her Honour should detail to the jury panel. The email then continued with further advice as to various practices that her Honour followed during the course of the trial. The email concluded with the following:

Please don't hesitate to raise any issues that you have with any of the above.

75 In her affidavit the solicitor referred to the receipt of the email. She deposed that she viewed it as a 'directive as to the process which was going to occur' and stated that she did not think it was open to her to challenge the practice the judge had outlined. The solicitor was not challenged as to this evidence.

76 The Crown submitted that the Court can determine what meaning to ascribe to the paragraph of the trial judge's email which informed the practitioners that they could raise issues with the matters set out in the email. It relied upon the absence of any objection to the empanelment process as supporting the inference that the applicant's solicitor, who was very experienced in criminal law practice, had no serious concerns with the empanelment process. Further, the mode by which the applicant exercised his right to make peremptory challenges was procedural and did not give rise to any fundamental error which affected the validity of the trial. The onus lay upon the applicant to demonstrate that there had been a failure to observe the fundamental requirements of a criminal trial.

77 Blackstone described trial by jury as a 'bulwark' of liberty.[61] Within our legal system, the jury is still recognised as representing the determination by independent and impartial members of the general community of the issues raised by the making of an allegation of serious and criminal conduct against an individual.[62] The applicant had, as a fundamental requirement of a trial according to law, not only the right to a jury but to one that was properly selected in accordance with the Juries Act 2000. Section 39 of the Juries Act 2000 confers upon an accused the right to challenge, peremptorily, six prospective jurors.

78 As the Court recognised in R v Su,[63] there has always been a tension between the objective of obtaining a jury which is randomly selected and representative of the community, on the one hand, and the desire to ensure that such a jury is impartial and indifferent to the cause, on the other. The operation of peremptory challenges in the selection of a particular jury from the panel is calculated to diminish, to an extent, the representative capacity of the panel. As our review of the history of peremptory challenges indicates, they are employed in an endeavour to shape the jury to accord with the accused's impressions as to what sort of jury would best suit his or her interests.[64] But as Blackstone put it, the interests of justice require that an accused 'should have a good opinion of his jury'.[65] It being a peremptory challenge, the accused need not justify his or her challenge, it representing no more than the accused's personal objection to being tried by the person he or she sees put forward as a juror. The justification for the accused's right of peremptory challenge remains the same now as it was six centuries ago, namely to provide the accused with a safeguard against being judged by a juror who, from the accused's point of view, might not stand indifferent to the accused's cause or might otherwise not be fit to serve upon the jury.[66] Recent Law Reform Commission reports recognise this continuing important role for peremptory challenges.[67]

79 The fundamental nature of that right and its protection from impairment was, as we have mentioned, reaffirmed in Johns v The Queen,[68] where Barwick CJ stated that the right of peremptory challenge 'lies at the very root of the jury system as it now exists'.[69] Similarly, Stephen J described the accused's right to peremptory challenge as 'both ancient and important', and 'fundamental to our system of trial by jury'.[70] If the right to peremptory challenge is so impaired that the accused is no longer able to adequately exercise that right, the defect would go to the constitution of the tribunal of fact which is to pass between the accused and the Crown. It would not then be a mere or inconsequential irregularity but a failure to observe the requirements of the criminal process in a fundamental respect.[71]

80 That an impairment of the right constitutes a fundamental defect in the trial process was recognised in the joint judgment of Gaudron, Gummow and Callinan JJ in Katsuno v The Queen.[72] The joint reasons refer to the judgments in Johns v The Queen,[73] and the wrongful denial of the right to a peremptory challenge which Barwick CJ held to be a 'fundamental [defect] in the proceedings' with the result that 'there had not been a trial according to law'.[74] Stephen J did not characterise the defect in the proceedings, but said that 'the orders made by [the] Court followed as a necessary consequence'.[75] The joint judgment in Katsuno v The Queen further observed that a conviction cannot stand if there is a failure to observe the requirements of the criminal process in a fundamental respect.[76]

81 The right of peremptory challenge requires that the accused be afforded an adequate opportunity to physically view each prospective juror's face. Speaking of the practice of requiring the juror to parade past the dock, the Victorian Law Reform Commission in its 2014 report states, '[i]t appears that the purpose of this practice is to allow the accused to see the prospective juror so he or she can decide whether to challenge the prospective juror'.[77] The Commission noted that there was at least one Victorian judge who did not require prospective jurors to parade in front of the accused in that way. That judge instead required the prospective juror to simply turn and face the accused if balloted.[78] The Commission concluded that while it is reasonably necessary for the accused to have the opportunity to see the prospective jurors, the parade was an unnecessary way to achieve that.[79] The Commission referred to the alternative approach of having the balloted juror stand and face the accused before walking towards the jury box.[80] The Commission concluded that prospective jurors should not be required to parade in front of the accused, but judges should ensure that the accused and their legal representatives 'have the opportunity to see prospective jurors as their names are balloted, and have a reasonable period of time in which to exercise their challenges.'[81]

82 The practice followed by the trial judge in the present case, requiring the prospective jurors to walk directly to the jury box without passing in front of the dock, involved a significant and unexplained departure from the long-accepted process followed in criminal trials in this State. Neither did her Honour adopt the alternative approach recommended by the Victorian Law Reform Commission of having the balloted juror stand and face the accused before walking towards the jury box.

83 Whether the opportunity to exercise the right of peremptory challenge is adequate will depend upon the circumstances of each case. The applicant's solicitor has deposed to the limited extent to which the applicant was able to view each prospective juror's face before they entered the jury box. She has further asserted as a matter of general experience that, after a juror enters the jury box, there is insufficient time to assess and decide an attitude to a challenge. Her evidence, which did not describe the whole of the period between the calling of each juror and the taking of their seat in the present case, is not challenged by the Crown. On the state of the uncontested evidence, we are driven to conclude that the applicant did not have an adequate opportunity to exercise his right of peremptory challenge before the prospective jurors reached the jury box, at least in respect of some of those prospective jurors that he did not challenge and in respect of some prospective jurors that he did challenge. As his solicitor deposes, he may not have challenged some prospective jurors that he did challenge, if he had been given the opportunity to view their faces. In some cases, the applicant and his solicitor saw only the back of the prospective juror prior to the time that they reached the jury box. For others, they observed only a fleeting side view of the prospective juror.

84 The approach taken meant that, at least before the potential jurors entered the jury box, the applicant did not have a clear view of their faces, such as is essential under the common law and provided under the procedures used in all Australian jurisdictions. The question then becomes whether, since the opportunity for challenge subsisted until the potential juror took his or her seat, there was sufficient time available once the period during which the potential juror was in the jury box is taken into account.

85 As we have mentioned, the solicitor's affidavit contained a general assertion that after the jurors entered the jury box there was 'insufficient time' available in which to decide an attitude to a challenge. In our view, the Crown's contention that, none the less, observations that could have been made of the jurors after they entered the jury box, or the combination of those observations with those made earlier, afforded the applicant an adequate opportunity to challenge cannot be sustained. At least for some of the jurors, there was very little time to challenge them before they took their seat. As mentioned, the applicant's solicitor has deposed to a common practice that if there is to be a challenge to a prospective juror it must take place before they enter the jury box because there is insufficient time to make such an assessment after they enter the jury box and before they take their seat. In a jurisdiction where the right to challenge is lost upon the juror taking their seat, the practice of challenging the juror before they enter the jury box rests upon the sound view that it is too late and risky to wait until they are in the jury box to challenge them.

86 Even if it could be assumed that the table set out earlier in these reasons accurately reflects the time available to challenge the prospective jurors upon entering the jury box and before they took their seats, it is apparent that the time available to make an assessment and challenge those jurors who would take seats closest to the point of entry to the jury box, in particular, would be very short. For example, with respect to the sixth juror to be sworn, it is our view that the applicant did not have an adequate opportunity to view his face before he took his seat. The evidence was that this juror walked quickly across the front of the court to the jury box, during which time the solicitor had only a side view of his face and could not determine his individual characteristics other than the colour of his hair and an estimated age range. At most, four seconds elapsed from the time when this juror stepped onto the stairs to the jury box until he took his seat. During that brief time the juror would have been essentially in the process of sitting down.

87 Moreover, and in any event, the table by itself provides an insufficient basis for drawing the inference that, contrary to the solicitor's general assertion, adequate time was available in the present case to decide on an attitude to a challenge after each potential juror entered the jury box. It cannot be concluded with any confidence that potential jurors walked directly to their seats while facing the back of the court, rather than (for example) shuffling sideways along the row or looking towards the associate or the judge. Further, the estimates of time do not make allowance for any space of time between a juror taking their seat and the ballot box being shaken to select the next juror. It is not difficult to imagine the associate pausing and turning around after the juror sat down, before shaking the box. And it is not clear at what point after mounting the stairs a juror's face may have come into view. For all these reasons, and because the solicitor has deposed, uncontested, to there being insufficient time to make a challenge during the relevant period, the contents of the table must be viewed with considerable caution.

88 The Crown also submitted that the opportunity to evaluate the potential jurors extended to the period when they were sitting as part of the panel before their number was called. In some other jurisdictions, where a panel of jurors is assembled in the jury box after their names or numbers have been drawn or the faces of potential jurors can be seen from the dock before they are called, an accused will have a useful opportunity to view the group and form assessments about individuals within it. In the present case, a large group of potential jurors was assembled in the body of the court and they were seated with their backs to the applicant while waiting for the ballot to proceed. As such, the opportunity for assessment which this provided did not add meaningfully to that which the applicant had after a potential juror's number was called.

89 Accordingly, even if, as the Crown contends, the solicitor should have modified her practice in the light of the process that the trial judge intended to follow, the opportunity afforded to the applicant to challenge remained inadequate.

90 We turn to the submission that the applicant waived any objection to the procedure that was followed. Again, it is necessary to refer to the circumstances of this case as established by the evidence. The applicant's solicitor deposed that she viewed the trial judge's practice for empanelment 'as a directive as to the process which was going to occur'. It is evident from the entire content of the email sent by the trial judge's associate that this was a practice that her Honour had been following for some time. As the solicitor is an experienced criminal law practitioner, it may be inferred that she was aware that this was, as the email stated, the trial judge's practice. The applicant's solicitor may have assumed that the trial judge had given careful consideration to this practice before departing from the customary practice followed in other trial courts in this State. What is not explicitly stated is that she believed that it was not open to her to object even if she thought the process was impairing her client's right to challenge. But the Crown left unchallenged her opinion that it was not open to her to object to the process that was followed.

91 It is evident from the solicitor's affidavit that she found the opportunity to evaluate each prospective juror less than satisfactory. As we have said, she was sufficiently concerned with the process to raise her concerns with senior counsel who was briefed to draw the grounds of appeal. We are not however in a position to say whether she or trial counsel considered, at the time of the trial, that the process adopted by the judge for empanelling the jury was so deficient as to constitute an impermissible impairment of the applicant's right of challenge. Obviously, if defects which go to the root of the criminal process are only raised for the first time by the accused after his conviction, and were known to be such defects by the accused's legal representatives at the time of their occurrence, the administration of justice is brought into disrepute. The applicant's solicitor and counsel were obliged to draw the empanelment process to the trial judge's attention and to raise objection to it if they were of the opinion that the applicant's right to peremptory challenge was substantially impaired. It mattered not what view they thought the judge held as to the adequacy of the process. Their duty as officers of the court, and their independent duty to their client, obliged them to fearlessly raise their concerns with the trial judge. If they perceived that the process denied the applicant an adequate opportunity to assess whether a potential juror should be challenged, and even if they were uncertain whether the process involved a serious irregularity that would constitute a fundamental defect in the trial process, they should have raised their concern with the trial judge. Any apprehension that they could not object to it was misplaced. That said, the absence of any challenge to the solicitor's evidence foreclosed any conclusions on these issues beyond the matters that she asserted in her affidavit and what could be discerned from the video recording.

92 In any event, we do not accept, as the Crown submitted, that the failure of the applicant to object to the process amounted to a waiver of what, on the facts we are bound to find, constituted a fundamental irregularity in the jury empanelment. If the jury was improperly empanelled, this was not an irregularity capable of being waived.[82] Nor, in the face of the evidence, could it be inferred that, because no objection was taken, the applicant's representatives considered that his right to challenge had not been impaired.

93 We should not leave unstated what should be apparent from these reasons. Trial judges in Victoria should follow a practice that provides the accused with a reasonable opportunity to see the prospective juror's face, before they enter the jury box. There is no prescribed practice. The opportunity may be provided by employing the traditional practice of a 'parade' by the prospective jurors past the dock or by directing prospective jurors, whose name or number is called, to stand up and turn to face the accused in the dock before proceeding to enter the jury box, or by some other procedure which satisfies the objective of enabling a visual inspection of the potential jurors.

95 Under ground 4, the applicant submits that the trial judge erred in acceding to the prosecutor's submission to delete from the applicant's record of interview questions and answers in which the applicant proffered to police a possible motive that the complainant might have to make a false complainant against him.

96 The applicant was asked by the investigators during his record of interview why he thought the complainant might be making the allegation of rape against him. He said he did not know. However, he referred to the fact that the complainant had another boyfriend in the Port Melbourne/South Melbourne area and that he had been asked to drive Peters there on an occasion when the complainant was already there having a fight with her former boyfriend (who the evidence established was Fraser). The applicant said Peters jumped out of the car and as the situation looked 'dodgy' to the applicant he told Peters that he was leaving. The applicant then said he left Peters and the complainant with Fraser. The applicant further told the investigators that the complainant 'has this thing' with Peters but still loves 'the other guy'. The applicant said he did not know whether the complainant was 'playing' Peters. The applicant further said:

this plays through my mind ... why she's actually put me in there ... I can't understand it either unless she's trying to get back at him - Peters ... I know that she's involved with someone else I don't know his name ... there's a bit of an issue between the three of them happening there because I think Peters met Laura while they were still dating. They'd had a fight and then you know somehow Peters started dating her and yeah this guy still wants Laura and you know I don't know I hadn't really got into that side of it ... I've been sitting asking myself why I've been stuck in the middle of this.

97 The prosecutor applied to have these answers excluded from the applicant's record of interview on the ground that their admission into evidence was contrary to the propositions stated in Palmer v The Queen.[83] The defence informed the trial judge that it intended to explore the motive advanced by the applicant during the trial. Defence counsel submitted that to adduce the evidence of the applicant's answers in the record of interview would not infringe the principles in Palmer's case. The trial judge ruled that the impugned questions and answers should be excluded from the record of interview before it was tendered in evidence. Her Honour said that those questions and answers were not admissible because they improperly invited speculation from the accused as to what might be in the complainant's mind. Her Honour said she would deliver reasons for that ruling as soon as she could. It was accepted on appeal that the trial judge did not provide any further reasons in support of her ruling.

98 Both at trial and on appeal it was contended by the applicant that the motive which he suggested in his record of interview was based upon his observations of the complainant and Peters and Fraser interacting and the various things that they had said about each other. He submitted that Palmer's case has no application.

99 The respondent submitted that the applicant's assertions that the relationship between the complainant, Fraser and Peters might afford the complainant a possible motive to lie were irrelevant. It said they were no more than mere speculation and were inadmissible as opinion evidence. It relied upon Palmer as precluding questioning which would have the effect of reversing the onus of proof and creating unfairness for the applicant.

100 The complainant was cross-examined about her relationship with Fraser and Peters, as were Peters and Fraser. All of the facts upon which the applicant's supposition was based were introduced into evidence through cross-examination. In cross-examination of the complainant, it was suggested that the complainant had made up the complaint of rape to Fraser so as to engender his attention and sympathy, to enable her to get out of the relationship with Peters and resume her relationship with Fraser. That motive was different to the motive suggested by the applicant in his interview that she was possibly 'playing Peters' or 'trying to get back at him'.

101 The judge gave the jury a conventional direction concerning motives to lie. No complaint is made about that direction.

102 The respondent finally submitted that, in any event, the exclusion of the relevant questions in the record of interview could not have resulted in a substantial miscarriage of justice.

103 A witness's motive to lie, if established, is a relevant factor of potential substantial probative value in relation to the witness's credit. The witness may be cross-examined to establish such a motive. The joint reasons in Palmer make clear that the accused may not be cross-examined in order to demonstrate that he or she cannot provide a motive as to why the witness would lie. Such cross-examination would diminish the standard of proof borne by the Crown. Further, the accused's lack of knowledge does not enhance the witness's credibility and is irrelevant.[84] The joint reasons also referred to the observation of Hunt CJ at CL in Uhrig,[85] that this principle should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of a motive to lie which has been asserted in relation to a witness in the particular case.

104 At least three decisions of this Court since Palmer make clear that answers given by an accused in response to questions asked by an investigator in an interview as to whether he could provide a motive for the complainant to lie do not necessarily attract the reasoning in Palmer. In each of those decisions the accused's answers were admitted into evidence. In two of the decisions, the accused could provide no motive. On appeal it was said those answers therefore had no probative value, but their admission did not give rise to a miscarriage of justice.

105 First, in R v Arundel,[86] Callaway JA said in response to the defence argument that the applicant's answers, in which he said he could offer no motive, had been wrongly admitted into evidence and contravened Palmer: [87]

In my view the ... argument, although superficially attractive, should be rejected. It gives the three answers in the record of interview an importance out of all proportion to their real significance. There were simply two questions by the investigating police that gave the applicant an opportunity to suggest a motive if he wished. That is quite different from cross-examination designed to insinuate that it bolsters the complainant's credit that an accused person cannot suggest a motive for her to lie. The reasoning that Palmer's case shows to be impermissible was not deployed by the prosecutor in his final address. Neither the burden nor the standard of proof was impliedly diminished.

106 The second case is R v O'Neill,[88] another case where the accused, in answer to the investigator's questions, was unable to suggest any motive. The trial judge had relied upon the above observations of Callaway JA in Arundel to admit the evidence over the accused's objection. Vincent JA (with whom Winneke P and Eames JA agreed) said: [89]

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.

107 Third, in R v MMJ,[90] certain questions and answers of the accused were admitted into evidence over objection, in which the applicant had proffered a motive for the complainant to lie. In cross-examination, defence counsel put the alleged motive to the complainant. In his closing address, counsel for the prosecution referred to the questions from the record of interview without criticism or comment. On appeal it was submitted that the prosecutor had contravened the principle in Palmer. Warren CJ distinguished Palmer in a number of respects, two of which are presently pertinent. First, the accused had not been cross-examined, as he had in Palmer, as to whether he could provide a motive. Second, in Palmer, the accused said in answer to the prosecutor's questions that he could provide no motive. The very motive advanced by the accused was the subject of cross-examination of the complainant, and was relied upon by the defence in closing. Her Honour concluded that the principle in Palmer did not apply. After referring to the joint reasons in Palmer, Warren CJ referred to R v Somers.[91] There, in a joint judgment, Phillips and Kenny JJA cautioned against overstating the consequences of Palmer. As was observed in Somers, wrongful admission of evidence, even if it occurred in such circumstances, would not amount to a miscarriage where, inter alia the trial judge expressly charged the jury that the defence did not have to prove motive.

108 In the present case, the answers by the applicant in the record of interview suggested a motive, although the applicant made it clear was speculation on his part. That said, they were answers given on the first occasion he was asked such questions. The defence made plain that it intended to pursue that motive during the trial, and wanted the answers to be admitted into evidence. Though the answers were excluded, the facts from which the motive was to be derived were placed before the jury. The evidence of the complainant, Peters and Fraser, established that the complainant did not immediately complain to Peters that she had been raped, but rang Fraser when she returned to Peters' home. After speaking to Fraser she commenced packing, and informed Peters that she was leaving him. The relationship between the complainant, Fraser and Peters was extensively explored. The earlier incident when he observed the complainant speak with Fraser in the presence of Peters, which he described in his interview as 'dodgy', was also established.

109 The defence raised a motive in cross-examination of the complainant. As we have mentioned, it was suggested to the complainant that she made the allegations to further her wish to resume her relationship with Fraser. That suggestion was flatly rejected by the complainant. Although the motive suggested was not precisely the same as that suggested by the applicant in his interview, it was said to arise out of the complex relationship which the complainant had with Fraser and Peters.

110 In our opinion, the propositions enunciated in Palmer did not apply. The answers should have been admitted into evidence. Although the applicant's asserted possible motive had minimal probative value, the principles discussed in Palmer did not require its exclusion. That said, the applicant's speculation as to a motive was based on facts all of which were placed before the jury. The defence chose to advance a motive, different to the one suggested by the applicant, but based upon those facts. In those circumstances it is very clear that the exclusion of the applicant's speculation did not give rise to a miscarriage of justice. It was not the motive relied upon in the trial. Its admission into evidence could have made no difference to the outcome of the trial. The applicant's prospects of acquittal were not in any way impeded by the incorrect exclusion of the evidence.

112 Under ground 5, the applicant submits that the conviction was unsafe and unsatisfactory because the case was 'word against word' and there was no supporting or corroborative evidence. The applicant relies upon the fact that the complainant was affected by extensive use of ice, ecstasy and alcohol, and that the version of events given in the applicant's record of interview was exculpatory and plausible, as were his responses in the pretext calls. The applicant further relies upon inconsistencies between the complainant's evidence and the complaint made to Fraser. In that complaint, she had said that she was awoken with somebody on top of her having sex with her. That was to be contrasted with her evidence that she was awoken by someone licking her vagina.

113 In order to make out this ground, the applicant must demonstrate that on the evidence the jury must have entertained a doubt about the applicant's guilt.[92]

114 The complainant told both Fraser and Peters that she had been raped by the applicant. When she made her complaint to Fraser she was crying and upset. Although there were some inconsistencies in the account given to Fraser, the substance of her account was consistent. She complained that she had been woken from sleep and had not been able to move properly. The real issue in the case was whether the complainant had been asleep when sexual activity began. She had consistently maintained that she was. In our opinion, there was no inconsistency in her account which compelled the jury to acquit the applicant.

115 The fact that the case was based on the complainant's word against the applicant's word did not preclude a finding of guilt. No corroboration was required of the complainant's account. The respondent submits, with some force, that it was open to the jury to have found that the applicant was untruthful about the extent of his own drug use and about other matters in his interview. The jury was not bound to entertain a reasonable doubt as a consequence of the applicant's record of interview, or his responses in the pretext calls. The applicant had been told by Peters that the complainant was going to the police to report the offences. At the time of the pretext calls he was aware of that fact, and commented in his interview to the effect that he thought Peters was behind the pretext calls. There was ample basis upon which the jury could be satisfied beyond reasonable doubt that the applicant's account in his record of interview and pretext calls should be rejected.

117 For the above reasons, we would grant leave to appeal on grounds 1 to 3 and allow the appeal, quash the applicant's convictions and order that a new trial be had.

118 For the sake of completeness we will briefly address the application for leave to appeal against sentence.

119 Following a plea hearing, the applicant was sentenced as follows:

[Crimes Act 1958 s 38(1)]

[Crimes Act 1958 s 38]

• Sentenced as a serious sex offender in respect of charges 3 to 5
• Disposal Order

120 The applicant seeks leave to appeal against sentence on three grounds:

1. The sentences (the individual and total effective) imposed are manifestly excessive as is the minimum term to be served before the applicant is eligible for parole;
2. The learned sentencing judge erred in ordering excessive cumulation and/or failed to properly apply the principle of totality; and
3. The learned sentencing judge took into account, adversely to the applicant, a consideration unsupported by evidence.

121 Under ground 3, it is contended that the learned sentencing judge took into account matters that had not been raised on the plea in mitigation and which were unsupported by evidence.

122 In her sentencing remarks, the sentencing judge said: [94]

There was a significant power imbalance between the two of you. You were more than twice her age, and she was only a year older than the son whose 18th birthday party you had invited her to. Her maturity and life experience was more akin to that of your son's than yours. We know the brain does not fully mature until age 25. The difference between someone under 20 and someone over 40, in terms of life experience and maturity is likely to be far greater than, say, the difference between a 25 year old whose brain has fully matured and a 50 year old. You were a customer of her boyfriend's business. She was consuming drugs that you, or he, or both of you, were sharing with her and appear to have supplied to her. Her boyfriend had left her asleep, and clearly substance-impaired, in the room when he left to go and get drugs and food. There is no suggestion that he had any reason to believe that she would not be safe.

123 The reasoning in the above paragraph was attacked by the applicant on a number of grounds. First, it was submitted that there was procedural unfairness in making such findings as the question of 'power imbalance' had not been raised at any time during the course of the plea in mitigation. Second, it was submitted that there was no evidence upon which her Honour could properly have concluded that 'the brain does not fully mature until age 25'.

124 The respondent in its written case conceded that the offending in this case was not made possible because of a power imbalance between the offender and the complainant as that term is conventionally understood. Although it accepted that there was no discussion of a power imbalance on the plea, reading the impugned paragraph, the reference to 'power imbalance' should be understood as a reference to the complainant's vulnerability and the fact that the applicant exploited that vulnerability.

125 The sentencing judge was fully entitled to sentence the applicant on the basis that he exploited the complainant's vulnerability. That said, it appears that her Honour's reference to power imbalance was intended at least in part to refer to that concept as it is conventionally understood and is so often found to be present in offending of this kind. As the risk of such a finding did not inhere in the facts before her Honour,[95] the sentencing judge should have raised the possibility of such a finding with counsel who appeared for the applicant on plea.

126 The respondent conceded there was no evidence to support her Honour's finding concerning the age at which the brain fully matures. Her Honour gave no forewarning that she was intending to rely upon such a fact for the purpose of sentence. For these reasons, the applicant has demonstrated that her Honour fell into error. The errors raised under this ground are made out. It is unnecessary to deal with grounds 1 and 2.

127 In the course of the applicant's submissions with respect to the other grounds of appeal against sentence, senior counsel for the applicant conceded that he took no issue with the individual's sentences of five years for the rapes the subject of charges 2 to 5. In our opinion, that was an appropriate concession. Had the application for leave to appeal against conviction been refused, we would have imposed the same sentences on charges 2 to 5. We would impose the same sentence of four years and six months on charge 1. However we have concluded that a different total effective sentence should be imposed. Treating charge 2 as the base sentence, we would cumulate three months' imprisonment on each of charges 1, 3, 4 and 5, making a total effective sentence of six years. We would have fixed a non-parole period of four years.

128 I have had the benefit of reading, in draft, the joint judgement of Redlich and McLeish JJA. I adopt their summary of the facts and agree with their reasons and conclusions in relation to all proposed grounds, except in relation to proposed grounds 1, 2 and 3 which concern the validity of the jury's empanelment. In relation to those proposed grounds, I am of the view that the applicant has not demonstrated, on the balance of probabilities, that the accused's right of peremptory challenge was impaired by the unorthodox empanelment process followed by the trial judge. Consequently, I do not consider the trial was a nullity. I would grant leave to appeal on those proposed grounds but would dismiss the appeal.

Proposed grounds 1, 2 & 3 of the conviction appeal - jury empanelment

129 It is convenient to deal with proposed grounds 1, 2 and 3 together. The fundamental issue in relation to these proposed grounds is whether the unorthodox jury empanelment process at the applicant's trial impaired his right of peremptory challenge.

130 The orthodox empanelment process in Victoria - which is not prescribed by either statute or the common law - involves each potential juror, after their name or number is called, parading past the dock on their way to the jury box, even though this may require them to take a circuitous route to the jury box.

131 The 'parade' affords an accused, and the accused's solicitor, who is usually in the dock assisting the accused with his or her challenges, with the opportunity to see potential jurors relatively close up. It also means that the accused and the solicitor have at least a few seconds after a potential juror parades past the dock, and before the potential juror reaches the jury box, to decide whether to challenge that potential juror. Even though the right of peremptory challenge does not expire until a potential juror takes their seat in the jury box, it is customary for peremptory challenges to be made before a potential juror enters the jury box. I will say more about this custom later.

Unorthodox empanelment process at applicant's trial

132 At the applicant's trial, the trial judge did not follow the orthodox empanelment process. A video of the empanelment process, on which the applicant relies, shows the jury panel entering the court and taking their seats in the body of the court. Before the trial judge comes onto the bench, the tipstaff can be heard instructing the potential jurors to make their way directly to the jury box when the time comes. The video shows each potential juror, once their number was called, walking from their seat in the body of the court directly to the jury box. In respect of at least some of the potential jurors who were sworn in as jurors, it appears from the video that the applicant and his solicitor, Ms Leanne Warren, an experienced trial lawyer who was in the dock assisting the applicant with his challenges, would not have been able to see the face of the potential juror as they headed towards the jury box.

Opportunity for applicant to see faces of potential jurors

133 Although one cannot see the jury box on the video, there is no dispute that the entrance to the jury box in the relevant court room[96] is on the side of the jury box closest to the judge. Consequently, when each potential juror neared the entrance to the jury box they had to turn, and, as they entered the jury box, move in the direction of the rear of the courtroom in order to take their seat. The dock was at the rear of the courtroom.

134 It is likely that as each potential juror entered the jury box, the applicant and Ms Warren, would have been able to see their face from the dock. It is also likely that as each potential juror moved along the jury box towards their seat, the applicant and Ms Warren had a further opportunity to see their face, or at least the side of their face if they shuffled sideways. Of course, the period of time during which this opportunity existed to view the face, or side of the face, of each potential juror varied according to where they took their seat in the jury box.

Length of time to see faces of potential jurors entering the jury box and moving to their seats

135 On the video, one can hear the judge's associate call out each potential juror's number as well as see that potential juror move towards the front of the court before they disappear off screen. Shortly after they disappear off screen, one can hear the sound of each potential juror mounting the steps to the entrance of the jury box. Several seconds then pass before one hears the sound of the associate shaking the ballot box. One can then hear the associate calling out the number of the next potential juror. In relation to the last potential juror to be empanelled, one can hear the sound of the potential juror mounting the steps at the entrance of the jury box and then, shortly after, one sees Ms Warren exit the dock, consistent with the last juror having taken his seat in the jury box.

136 Based on the video, and in particular the sounds just described, it is possible to calculate the approximate length of time that the applicant and Ms Warren were probably able to see the faces of the potential jurors from when they mounted the steps until they took their seats in the jury box. The following table, a draft of which was supplied to the parties after oral submissions and to which they were invited to respond by written submissions, sets out the relevant calculations.

137 I will deal later with the significance of the times set out in the last column of the table.

Applicant's lawyers forewarned of unorthodox empanelment process

138 In her report to this Court, the trial judge provided a copy of an email sent by her associate to the parties on 11 March 2015, six days before the jury was actually empanelled. In her report, the trial judge notes that 'amongst other things, the email sets out the practice proposed for empanelment and invites the parties to raise any issue they had with the proposed procedure. No issues were raised by the defence. The email also sets out the reply from the applicant's instructing solicitor, which indicates she had read and was aware of the contents of the email'.

139 In the email of 11 March 2015 from the trial judge's associate to the parties, this appears:

Also in anticipation that we will be empanelling tomorrow,[99] please note that her Honour has the following practices for empanelment:

- Her Honour empanels by number.

-Her Honour will identify counsel and instructing solicitors by name and ask them to stand and face the jury prior to empanelment, so that the panel are able to determine whether they recognise any of you.

- Her Honour does not require potential jurors to parade past the dock when their number is called. They simply stand and make their way to the jury box, unless challenged or directed to stand aside.

140 After dealing with some other matters that are not relevant to the current issue, the email from the trial judge's associate concluded, '[p]lease don't hesitate to raise any issues that you have with any of the above.'

141 The applicant's solicitor, Ms Warren, replied to this email on the same day. As noted in the trial judge's report to this court, Ms Warren, in her email, did not raise any issues regarding the proposed empanelment process. Neither did she, or the applicant's counsel, raise any issues with the trial judge's empanelment process at any later stage during the proceedings in the County Court.

142 Despite Ms Warren's failure to object to the trial judge's empanelment process, the applicant's counsel - who was not trial counsel - informed us that Ms Warren had expressed concern to him about the empanelment process when he first discussed the appeal with her. This court permitted Ms Warren to file an affidavit[100] dealing with whether she considered that her ability to assist the applicant with his challenges was impaired by the empanelment process that was followed and, if so, why she did not raise the issue with the trial judge.

I assisted Mr Theodoropoulos in the jury selection process on the 17th of March 2015. Prior to the commencement of the jury selection process we had discussed the details of that process and the Applicant had given the right of challenge to me subject to him being able to overrule such right at any time. The applicant understood that he was required to verbally challenge those jurors who we did not wish sitting on the jury. I advised the applicant that it was my practice that any potential challenges should occur prior to the potential juror entering the jury box as there is insufficient time remaining to assess and decide an attitude to a challenge. I also advised the applicant that no challenge could occur once the juror had taken their seat in the jury box. I further advised the applicant to notify me immediately if he recognised any of the potential jurors.

Once I entered the dock to assist the applicant in the jury selection process, both the applicant and myself essentially had the same view of each potential juror.

144 Ms Warren went on to describe the view that she and the applicant had of each potential juror as they walked to the jury box.

145 In relation to the potential jurors who were not challenged and became jurors, Ms Warren swore in her affidavit that as they made their way to the jury box, she could only see:

• The back of the heads of potential jurors 351[101], 224[102], 181, 271, 189, 131.
• The side of the face of potential jurors 269, 240, 6, 204, 308, 252.

146 Ms Warren swore that because of the limited view of these potential jurors as they walked to the jury box, and the short space of time which she and the applicant had to challenge, she was unable to properly assess the characteristics of these potential jurors such as their age range, country of birth, attitude to being chosen and attitude to the applicant.

147 Ms Warren said nothing in her affidavit of the view she had of each potential juror from the point where they entered the jury box until they took their seat. It would appear Ms Warren did not consider that opportunity to view the faces of potential jurors as relevant having regard to her practice that 'any potential challenges should occur prior to the potential juror entering the jury box as there is insufficient time remaining to assess and decide an attitude to challenge.' Whether Ms Warren was correct to disregard the opportunity to see potential jurors entering the jury box and moving to their seats is a matter to which I will return.

148 In relation to the six potential jurors who were challenged by the applicant, Ms Warren swore they were challenged on the basis of:

• her estimate of their age (191, 289, 154);
• their occupation (267, 157);
• her estimate of their age, and their occupation (324).

149 In relation to two of those challenged (324, 191), Ms Warren swore that she was only able to see the back of their heads and that if she 'had had an opportunity to see their faces [she] may have re-assessed [the] decision to challenge.'[103]

150 As regards the email sent by the trial judge's associate which forewarned the parties of the trial judge's empanelment process, and which concluded '[p]lease don't hesitate to raise any issues that you have with any of the above', Ms Warren swore:

[7] Upon receipt of the email from her Honour Judge Hampel's Associate concerning her Honour's practices for empanelment, I viewed this is as a directive as to the process which was going to occur. I did not think that it was open to challenge the practice the judge outlined.

151 The respondent indicated that it did not seek to cross examine Ms Warren in relation to her affidavit.

152 It is convenient at this point to turn to the law in relation to jury empanelment and, in particular, peremptory challenges. Jury empanelment in Victoria is governed by both statute and the common law.

• the arraignment of the accused in front of the jury panel;[104]
• the information to be given to the members of the jury panel about the case and the persons involved in it;[105]
• the power of the court to excuse potential jurors;[106]
• the power of the court to direct that empanelment occur by number, rather than names;[107]
• the number of challenges without cause for both the prosecution[108] and the accused.[109] The latter are referred to as peremptory challenges, the former 'stand aside(s)';
• the time for challenges without cause to potential jurors by both prosecution and the accused,[110] which, in either case, is after each potential juror is called and before they take their seat in the jury box;
• the details to be read out in relation to each potential juror called (name or number, occupation and, in rare circumstances, date of birth);[111]
• the right of an accused to be assisted in exercising their challenges by their legal practitioner or the clerk thereof.[112]

154 Statute does not prescribe the route which each potential juror is to take on their way to the jury box when their name or number is called. Nor does it deal with the opportunity to be given to an accused to physically view potential jurors before they take their seats in the jury box, at which point the right of peremptory challenge is extinguished.

155 As mentioned, the common law also governs jury empanelment in Victoria. The leading case on the right of peremptory challenge is Johns v The Queen,[113] a decision of the High Court. The case originated in Western Australia, where it is customary for counsel to exercise the accused's right of challenge. During empanelment, the accused in the dock called out 'challenge' to a potential juror. Shortly after, and without consulting the accused, defence counsel indicated that there was no challenge to that potential juror, who was subsequently sworn in as a juror. No objection was taken at trial to the jury's empanelment. Nonetheless, the High Court decided that there had been a fundamental irregularity in the trial - by defence counsel countermanding the accused's challenge and the trial judge allowing the challenged juror to be a member of the jury - and that the trial was a nullity. Whilst the issue in Johns was a narrow one, there is, in the various judgements of the Court, some discussion of what the right of peremptory challenge entails. Barwick CJ, in particular, emphasised the importance of an accused being afforded a reasonable opportunity to see potential jurors: [114]

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.

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 or be a reason to overbear the accused's reaction engendered by it.

For my part, it is of the utmost importance in the trial of accused persons that they not only have adequate opportunity to see and observe the jurors but that they are adequately informed of their personal right of challenge.

156 An accused could hardly be said to have enjoyed the opportunity spoken of by Barwick CJ if the empanelment process did not afford them a reasonable opportunity to view the face of each potential juror and a reasonable time to decide whether to challenge. This need not be a lengthy period, given the nature of peremptory challenges. An accused who thinks to himself 'I don't like the look of him' can make that judgement in a matter of seconds.

157 Barwick CJ's observations concerning the right of peremptory challenge were applied by the Victorian Court of Appeal in R v Cherry.[115] In that case, the trial judge's associate miscounted the number of peremptory challenges exercised by the accused and told him, when there were still six jurors to be empanelled, that he only had one peremptory challenge left when in fact he had two left. The trial judge initially endorsed what the associate said. The next potential juror was called and took her seat in the jury box. The mistake was then picked up and corrected, the accused was informed that he still had two challenges left but nothing was done about the juror who had just taken her seat. No objection was raised at trial to the jury's empanelment. On appeal, Batt JA, with whom Chernov and Vincent JJA agreed, rejected the Crown's submission that the irregularity was inconsequential, saying: [116]

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).

158 In the present case, no objection was taken at trial to the jury's empanelment but it is clear from Johns and Cherry that if the right of peremptory challenge was impaired, that is irrelevant: there will have been a fundamental irregularity rendering the trial a nullity.

159 Where an unorthodox empanelment process has been followed, is it for the applicant to show that his right of peremptory challenge was impaired or for the respondent to show that it was not?

160 Proposed grounds 1 and 2 of the application for leave to appeal against conviction effectively assert that there was an error or irregularity in the trial, thus invoking s 276(b) of the Criminal Procedure Act 2009. The consequence of that error or irregularity, the applicant submits, is that the trial was a nullity (proposed ground 3). Section 276 provides:

(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the applicant satisfies the court that -

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.

161 In oral argument, the applicant submitted that 'the onus is on the Crown to show that this was a trial conducted according to law' essentially because there had been 'a major departure from the ingrained accepted [empanelment] practice', that is, no parade. The applicant likened his burden to no more than an evidential burden which, he submitted, he had discharged based on what the video showed of the jury empanelment process.

162 In further written submissions, the applicant put his submission regarding the burden of proof in this way:

The grounds 1-3 of the application and the evidence in support, namely the video of the process and the affidavit material [from Ms Warren], show at least the following:

(a) A significant and unexplained departure from the engrained and long accepted practice.

(b) Evidence that for most, if not all, potential jurors the objective evidence supports the grounds.

(c) The objective evidence does not support the respondent's contentions in opposition.

(d) The failure alleged in the process goes to a fundamental aspect of the trial process.

In these circumstances it is submitted that it is for the respondent to demonstrate compliance with the basic requirements of jury selection.

163 The applicant did not rely on any authority for his oral or written submissions on this point.

164 The applicant's submission that the respondent bears the burden of proof cannot be sustained. It is clear from the language of s 276 - 'if the applicant satisfies the court' - that it places the burden of proof on the applicant to satisfy the court of at least one of the matters referred to in s 276 if the applicant is to succeed. Further, the plurality in the High Court case of Baini v The Queen,[117] observed that under s 276 'the applicant bears the ultimate burden of persuasion.' [118]

165 It follows that the first step under s 276(b) is for the applicant to persuade the court that there was an error or irregularity in the trial. It does not do that by simply showing that the empanelment process followed by the trial judge was unorthodox. It must satisfy this court, on the balance of probabilities, that the applicant's right of peremptory challenge was impaired.

166 Before returning to the facts of the present case, it is instructive to consider empanelment processes elsewhere in Australia. A few points should be made by way of introduction. First, each jurisdiction provides for the right of peremptory challenge although the number of challenges vary. It is unnecessary, for present purposes, to descend into the detail of the number of peremptory challenges per jurisdiction. Secondly, there is considerable variation in the configuration of Australian courts and the location of the dock in particular. This can significantly affect the opportunity that the accused has to see the faces of potential jurors before the right of challenge expires.

167 In the Australian Capital Territory, the time for challenge is after the potential juror has been called but before they enter the jury box.[119] When called, the potential juror walks directly to the jury box. The potential juror stands for a moment at the entrance to the jury box and faces the accused. If there is no challenge, then the potential juror enters the jury box. If the potential juror is challenged, the Sherriff's officer directs them to return to the public gallery of the Court. This process is repeated until the requisite number of jurors have entered the jury box. The jurors are then sworn or affirmed. As regards the configuration of the court, ordinarily the accused is seated on a chair centrally positioned in front of the public gallery: there is no physical dock. The bar table is located in front of the accused. The jury box is to the front of and to the side of the bar table.[120] This configuration means that, unless the accused turns around during the empanelment process, he may not get to see the faces of potential jurors until they are about to enter the jury box.

168 In New South Wales, the time for making a peremptory challenge is after the potential juror has been called to be sworn and before he or she is sworn.[121] Once called, the potential juror walks directly to the jury box and takes a seat. That process is then repeated until the required number of potential jurors are in the jury box. The associate then informs the accused:

[Accused], the numbers which you will now hear called are those of the jurors by whom you are to be tried. If you have any objection to them or to any of them, you must challenge them as they come to the book to be sworn and before they are sworn you shall be heard.

169 The associate instructs the potential jurors to stand up when their number is called again. The associate then calls each potential juror's number, pausing between each one to allow for challenge. If there is no challenge, the potential juror resumes his or her seat in the jury box. If any of the potential jurors are challenged, they are asked to leave the jury box. The associate then draws further cards from the ballot box and the required number of replacement potential jurors take their seats in the jury box. As before, the number of each replacement potential juror is called again and they stand to allow for a challenge. Once the required number of unchallenged potential jurors are in place in the jury box, they are sworn. As regards the configuration of the court, ordinarily the dock is positioned on the opposite side of the courtroom to the jury box, in front of the public gallery.[122] This gives an accused the opportunity to see the faces of potential jurors as they make their way from the public gallery to the jury box. This is in addition to the opportunity that the accused has to see their faces in the jury box before they are sworn.

170 In the Northern Territory, the time for peremptory challenge is not legislatively prescribed[123] but, in practice, it is before a potential juror is sworn or affirmed. Once called, the potential juror walks directly from the body of the court to the jury box. If the potential juror is not challenged, he or she will then be sworn or affirmed. This procedure is then repeated until the requisite number of jurors have been sworn. As regards the configuration of the court, ordinarily the dock is positioned on the opposite side of the court to the jury box, in front of the public gallery.[124] This configuration gives an accused the opportunity to see the faces of potential jurors as they make their way from the public gallery to the jury box.

171 In Queensland, the time for challenge is before a potential juror is 'sworn.'[125] In relation to peremptory challenges, this is defined to mean before the officer assigned by the court to administer the oath or affirmation begins to recite the words of the oath or affirmation to the person challenged.[126] Once called, the potential juror walks directly to the jury box. If unchallenged, the potential juror is sworn in at that time.[127] This procedure is then repeated until the required number of jurors have all been sworn in, one at a time.[128] As regards the configuration of the court, ordinarily the dock is centrally located in front of the public gallery.[129] The bar table is in front of the dock. The jury box is off to the side of the bar table. This configuration means that, unless the accused turns around in the dock during the empanelment process, he may not see the faces of potential jurors until they are about to enter the jury box.

172 In South Australia,, the time for challenge is, like Victoria, before the potential juror takes his or her seat in the jury box.[130] Once called, the potential juror walks directly to the jury box and takes their seat, unless challenged. Once the required number of jurors are empanelled, the accused is then put in the charge of the jury. As regards the configuration of the court, ordinarily the dock is positioned on the opposite side of the court room to the jury box, and in front of the public gallery.[131] This configuration gives an accused the opportunity to see the faces of potential jurors as they make their way from the public gallery to the jury box.

173 In Tasmania, there is no legislated time for peremptory challenge[132] but, in practice, it is before the potential juror is sworn or affirmed.

174 As the jury panel is kept in the jury panel room which is separate to the courtroom, the associate informs the potential jurors over an intercom that when their names are called they should enter the court and take their seats. When called, the potential juror, enters the court and takes their seat in the jury box. This process is then repeated until the requisite number of jurors are in the jury box. Once all potential jurors are in the jury box, the associate asks the Crown if they wish to have any of the jurors stood aside.[133] Once all the persons stood aside have left the jury box, but before they are replaced, the accused is then asked if they wish to challenge anyone. Once both parties have been given an opportunity to challenge, the stood aside or challenged jurors are replaced and the process above is repeated until there are no more persons stood aside or challenged, and the requisite number of jurors is reached. The jury are then sworn in. As regards the configuration of the court, ordinarily the dock is positioned across from the jury box, and in front of the public gallery.[134] This configuration gives an accused the opportunity to see the faces of potential jurors as they make their way to the jury box.

175 In Western Australia, the time for challenging potential jurors is before they are 'sworn.'[136] This is defined to mean before the court officer who is administering the oath or affirmation begins to recite the words to the potential juror or the potential juror begins to recite the words of the oath or affirmation from a card.[137] Once called, the potential juror walks to the jury box and, if not challenged, takes the next available seat in the jury box. Once the potential juror is seated, the next card is drawn and the number called. This is repeated until the requisite number of potential jurors are in the jury box. The clerk of arraigns then informs the potential jurors of the swearing in process and the potential jurors are sworn in one by one by the orderly. It is not unusual for jurors to be challenged as the orderly approaches them to swear or affirm them. If a juror is challenged at any time prior to the potential juror beginning to read the words of the oath or affirmation from the card provided then another potential juror card is drawn out of the ballot box and a replacement is called and sworn in, unless also challenged. As regards the configuration of the court, in the District Court the dock is positioned across from the jury box, in front of the public gallery.[138] This gives an accused an opportunity to see the faces of potential jurors as they make their way from the public gallery to the jury box. In the Supreme Court a different layout is used, the dock is positioned in the centre rear of the court facing the judge, in front of the public gallery.[139] This means that, unless the accused turns around during the empanelment process, the accused may not see the faces of potential jurors until they are near the jury box.

176 In the Federal Court, the time for challenge is, like Victoria, after the potential juror has been called but before he or she sits in the jury box.[140] Once the required number of potential jurors are seated in the juror box, the jurors are sworn or affirmed.[141]

177 The legislation does not prescribe a procedure for empanelment. In Victoria, no practice has evolved in relation to the empanelment of a Federal Court criminal jury because, according to the Melbourne registry, there have been no Federal criminal trials here.

178 From this review of jury empanelment processes around Australia a number of features stand out.

• 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.

Whether opportunity to view potential jurors entering jury box and moving to their seats is relevant

179 Returning now to the facts of the present case, it will be recalled that Ms Warren, in her affidavit, when speaking of the view that she and the applicant had of potential jurors, disregarded the opportunity to see the faces of potential jurors when they entered the jury box and made their way to their seats. Ms Warren's approach was consistent with the fact, also referred to earlier, that it is customary in Victoria for challenges to be made before potential jurors enter the jury box, even though the right of challenge does not expire until a potential juror takes their seat. There may be a variety of reasons for this custom. Ms Warren's reason was that 'there is insufficient time remaining to assess and decide an attitude to a challenge.' By comparison, the applicant's counsel remarked during oral submissions that he advises clients and solicitors not to challenge after a potential juror enters the jury box because it is 'dramatic.'

180 This custom of challenging before a potential juror enters the jury box has no doubt evolved because the orthodox empanelment process with its 'parade' affords an opportunity to the accused and his or her solicitor to see the faces of potential jurors close up, and leaves some time thereafter for the applicant and his solicitor to decide whether to challenge before the potential juror reaches the jury box.

181 In further written submissions by the applicant, after the court had provided both parties with the above mentioned table, the applicant stated:

The question is whether or not the applicant had an adequate opportunity to form an opinion and then express it based on a physical view of each potential juror. A distant and a fleeting view which does not afford this opportunity will not suffice. The mean times in the table are in one sense irrelevant.

182 In other words, it was suggested that the opportunity to see the faces of the potential jurors entering the jury box and moving to their seats should be disregarded by this court because, during that period of time, the potential jurors were too far from the applicant and his solicitor and there was too little time in which to decide whether to challenge.

183 I am not satisfied that the applicant's view of the faces of potential jurors entering the jury box was such a distant or fleeting view as to be considered irrelevant or insignificant. There is nothing to suggest that there was anything wrong with the eyesight of the applicant or Ms Warren.

184 The fact remains that the right of peremptory challenge is not extinguished until a potential juror takes their seat in the jury box. When considering in a particular case whether the right was impaired, it would be a curious approach to ignore a portion of the process during which a challenge could have been made. If, particularly in circumstances where the defence has been forewarned that there will be no parade, an accused and his solicitor choose to ignore, in relation to the exercise of the right of peremptory challenge, the opportunity to see the faces of potential jurors when they enter the jury box and move to their seats, they do so at their own peril.

185 In any event, the applicant was not labouring under the mistaken belief that he could not challenge potential jurors after they entered the jury box and before they sat down. As appears from Ms Warren's affidavit, the applicant was correctly informed by her that his right of challenge subsisted up until the time that a potential juror sat down in the jury box. And, as can be heard on the video, this advice was reinforced at the commencement of the empanelment process by the trial judge's associate informing the applicant that he must challenge before the potential jurors took their seats in the jury box.

Additional time to see the faces of some potential jurors

186 As the table at [136] shows, the shortest period of time available to the applicant and his solicitor to view the faces of potential jurors once they mounted the steps at the entrance of the jury box until they took their seat was as follows:

• Potential jurors 204 and 252 - four seconds;
• Potential juror 6 - six seconds;
• Potential jurors 351 and 131 - seven seconds.

187 In relation to potential juror 204 (4 seconds), who was the sixth juror to take his seat, the four seconds before he sat down in the jury box was not the only opportunity that the applicant and his solicitor had to see his face. Potential juror 204 made his way towards the jury box from the opposite side of the court, that is, from the left side of the court viewed from the dock. He passed between the bar table and the front row of seats as he walked towards the jury box. As he did so, the applicant and his instructor were able to see the right side of his face[143] for approximately three to four seconds. The total time that the applicant and his solicitor had to view the face of this potential juror before he sat down in the jury box was therefore approximately seven to eight seconds.

188 In relation to potential juror 252 (four seconds), who was the twelfth juror to take his seat, the applicant had exhausted all six of his peremptory challenges by the time his number was called.[144]

189 In relation to potential juror 6 (six seconds), who was the fifth juror to take his seat, the six seconds before he sat down in the jury box was not the only opportunity that the applicant and his solicitor had to see his face. Like potential juror 204, he made his way towards the jury box from the opposite side of the court. He passed between the bar table and the front row of seats as he walked towards the jury box. As he did so, the applicant and his solicitor were able to see the right side of his face for about four seconds.[145] The total time that the applicant and his solicitor had to view the face of this potential juror before he sat down was approximately 10 seconds.

190 In relation to potential juror 351 (seven seconds), who was the third juror to take her seat, when her number was called, she was seated in the back row of the body of court, almost directly in front of the applicant's solicitor. It is likely that the applicant and her solicitor did not get to see her face until she reached the jury box and turned to enter it.

191 In relation to potential juror 131 (seven seconds), who was the eleventh juror to take his seat, he was also seated in the back row of the public gallery but further to the right (from the applicant's perspective). It is likely that the applicant and his solicitor did not get to see that juror's face until he reached the jury box and turned to enter it.

192 In summary, the shortest period for which the applicant and his solicitor probably got to see the face or side of the face of a potential juror prior to that juror sitting down in the jury box was seven seconds.

193 The burden of proof is on the applicant to show that the right of peremptory challenge was impaired. Although potential jurors did not parade past the dock, it is likely that there was an opportunity for the applicant, and his solicitor, to see their faces as they entered the jury box and moved to their seats. The right of challenge was not extinguished until each potential juror took their seat in the jury box. I am not persuaded that the opportunity this presented to see the faces of potential jurors was so distant and fleeting that it should be treated as irrelevant or insignificant. While the applicant and his solicitor did not enjoy the opportunity of a close up view which the orthodox empanelment process provides, I am not satisfied that the applicant and his solicitor did not have a reasonable opportunity to see the faces of potential jurors and a reasonable amount of time thereafter to exercise the right of challenge. I am not satisfied that the right of peremptory challenge was impaired.

194 I would grant leave to appeal on proposed grounds 1, 2 and 3 but would dismiss the appeal on those grounds.

[1] 'Laura' is the pseudonym used by the sentencing judge in her sentencing remarks.

[2] We have used the pseudonym James Peters to protect confidentiality.

[3] No issue was raised in respect of the judge's 'practice' of having prospective jurors called by number. A direction to that effect is provided for under Juries Act 2000 s 31(3).

[4] Without being exhaustive, see for example: The Juries Statute 1876 s 65; Juries Act 1890 s 67; Juries Act 1915 s 69; Juries Act 1958 s 37(2).

[5] J Fortescue, De Laudibus Legum Angliae (F Gregor trans, 1874) ch xxxvii, 94. See also J F Stephen, History of the Criminal Law of England (1883) 302.

[6] Coke, The First Part of the Institutes of the Lawes of England, or, a Commentarie upon Littleton (1628) ch 12, s 234, 156b.

[7] W Forsyth, History of Trial by Jury (1852) 232; J F Stephen, History of the Criminal Law of England (1883) 302.

[8] J Fortescue, De Laudibus Legum Angliae (F Gregor trans, 1874) ch xxxvii, 94 (original emphasis).

[9] T Salmon and S Emlyn, A Complete Collection of State-Trials and Proceedings upon High Treason, and Other Crimes and Misdemeanours (2nd ed, 1730) vol 3, 37.

[10] Blackstone, Commentaries on the Laws of England (1769) bk IV, 346-7; see also Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40, 76 [83] (Kirby J).

[11] W R Cornish, The Jury (1968) 47.

[13] Peremptory challenges were abolished in the United Kingdom in 1988: Criminal Justice Act 1988 (UK) s 118. An accused now retains the right to challenge jurors in criminal proceedings only with cause. Prior to the abolition of peremptory challenges, the Juries Act 1974 (UK) provided in s 12(3) that a challenge to a juror was to be made 'after his name has been drawn by ballot ... and before he is sworn'. The prospective juror was named in open court, and the parties were (and are still today) 'entitled to reasonable facilities for inspecting the panel from which the jurors are or will be drawn': Juries Act 1974 (UK) s 5(2). See further, P J Richardson (ed), Archbold: Criminal Pleading, Evidence and Practice (2014) [4-274]; P Murphy (ed), Blackstone's Criminal Practice (15th ed, 2006) 1500-1, 1507. The provision in s 12(3) for the opportunity to make a peremptory challenge, prior to 1988, can be traced back to the nineteenth century commentary referred to earlier: that a challenge be made as each juror 'comes to the book to be sworn, and before he is sworn' (W Forsyth, History of Trial by Jury (1852) 232; J F Stephen, History of the Criminal Law of England (1883) 302), and through earlier iterations of juries legislation to s 11 of the Juries Act 1729, 3 Geo 2, c 25. See further Juries Act 1825, 6 Geo 4, c 50 s 26; Criminal Justice Act 1948, 11 & 12 Geo 6, c 58 s 35(3).

[14] Johns v The Queen [1979] HCA 33; (1979) 141 CLR 409, 430 (Stephen J).

[18] (2012) 113 SASR 372.

[20] [2004] NSWCCA 176; (2004) 211 FLR 320.

[21] See further Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278.

[22] Ronen v The Queen [2004] NSWCCA 176; (2004) 211 FLR 320, 333 [69], [71] (Ipp JA, Grove and Howie JJ agreeing).

[23] Ibid 332 [65]. See also R v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11, 45 [144]-[145].

[24] Juries Act 2000 s 36.

[25] Victorian Law Reform Commission, Jury Empanelment, Report No 27 (2014) [3.52].

[26] See Federal Court of Australia Act 1976 (Cth) s 23DX; Juries Act 1927 (SA) s 64.

[27] W Hawkins, A Treatise of the Pleas of the Crown (7th ed, 1795) vol 4, 389.

[29] (1746) Foster 7, 7; [1746] EngR 776; 168 ER 4, 4.

[31] (1722) 8 Mod 82, 86; 88 ER 64, 68 (original emphasis).

[32] H H Joy, On the Admissibility of Confessions and Challenge of Jurors in Criminal Cases in England and Ireland (1843) 123-4.

[33] Ibid 123; citing R v Hughes (1842) 1 Ir Circ Reports 422 (emphasis added).

[34] (1842) 2 Craw & D 396, 397 (citation omitted).

[35] W Dickinson, A Practical Guide to The Quarter Sessions (4th ed, 1838) 464. See also C Cottu, On the Administration of Criminal Justice in England (1822) 74; H H Joy, On the Admissibility of Confessions and Challenge of Jurors in Criminal Cases in England and Ireland (1843) 123; J F Archbold, A Complete Practical Treatise - Criminal Procedure, Pleading and Evidence, in Indictable Cases (8th ed, 1880) 509.

[36] The impartiality of the jury was also implicit in the question formerly asked of an accused after pleading not guilty as to how he or she will be tried, to which the answer was, or was taken to be, 'by God and his country', referring to trial by jury rather than by ordeal or combat; see C Cottu, On the Administration of Criminal Justice in England (1822) 73-4.

[37] W Dickinson, A Practical Guide to Quarter Sessions (4th ed, 1838) 471. See also J F Archbold, A Complete Practical Treatise - Criminal Procedure, Pleading and Evidence, in Indictable Cases (8th ed, 1880) 509-10.

[38] 'You (or, if more than one person takes the oath, you and each of you) swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that you will faithfully and impartially try the issues between the Crown and [name of accused] in relation to all charges brought against [name of accused] in this trial and give a true verdict according to the evidence'" (emphasis added). The oath can be traced back through iterations of juries legislation to The Juries Statute 1865 sch 7: '"You and each of you shall well and truly try and true deliverance make between our Sovereign Lady the Queen and all persons whom you or any of you shall have in charge and a true verdict give according to the evidence' (emphasis added).

[39] See generally Ronan v The Queen [2004] NSWCCA 176; (2004) 211 FLR 320.

[40] NSW Law Reform Commission, Jury Selection, Report No 117 (2007) [10.26].

[41] NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report No 48 (1986) [4.57].

[42] See J Horan, Juries in the 21st Century (2012) 27.

[43] See K J McKimm, Criminal Procedure and Practice in New South Wales (1968) 38.

[44] NSW Law Reform Commission, Jury Selection, Report No 117 (2007) [10.28] (emphasis added).

[46] Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011) [10.52]; Queensland Courts, Serving on a Jury (5 November 2015) .

[47] Jury Act 1995 (Qld) s 41.

[48] Queensland Courts, Serving on a Jury (5 November 2015) .

[49] Jury Act 1995 (Qld) s 44.

[50] Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011) [10.112].

[51] Juries Act 1957 (WA) s 36(1).

[52] Criminal Procedure Act 2004 (WA) ss 102, 104(2); Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors, Report No 99 (2010) 18.

[53] Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors, Discussion Paper (2009) 29.

[54] Juries Act 1927 (SA) s 64.

[55] Juries Act 2003 (Tas) s 29(4) and (7).

[56] Tasmanian Department of Justice, Issues Paper: Review of Jury Act 1899 (1999).

[57] Juries Act 2003 (Tas) s 29(8). The accused is also informed of this process in advance of the empanelment: s 29(2)(b).

[58] Juries Act 1967 (ACT) s 35.