Caruso v The Queen
[2012] VSCA 138
•27 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0349 | |
| PETER CARUSO | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN, NEAVE and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 May 2012 | |
DATE OF JUDGMENT: | 27 June 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 138 | |
JUDGMENT APPEALED FROM: | [2010] VSC 354 (Justice King) | |
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CRIMINAL LAW – Practice and procedure – Jury empanelment – Murder – Failure of judge to inform members of the jury panel of the name of the deceased and the date and place of death not a breach of s 32 of the Juries Act 2000 – Failure to arraign the accused before members of the jury panel not a breach of the rules of natural justice – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M J Croucher SC with Ms C A Boston | Vassis & Co |
| For the Crown | Mr B L Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA
REDLICH JA:
After a trial in the Supreme Court, the appellant was convicted on a charge of murdering his wife. The prosecution alleged that the appellant killed his wife by repeatedly striking her head with a hatchet. The appellant’s case was that his wife was killed by an unknown assailant in the course of a robbery.
The appellant has been granted leave to appeal against his conviction on the following ground:
The trial miscarried as a result of fundamental procedural irregularities, namely, the learned trial judge’s failure:
(a)to provide the whole of the jury panel with information relevant to the excuse process prior to empanelment, as required by s 32 of the Juries Act 2000; and
(b)to have the applicant arraigned in front of the whole of the panel from which the jury was struck.
Section 32 of the Juries Act (‘the Act’) requires information to be given to jury panels in order that the potential jurors may seek to be excused from acting as jurors at the trial, on the basis, inter alia, that they would be unable to consider the case impartially. The section provides:
32 Information for panel
(1)The court must inform the panel, or cause them to be informed, of the following information—
(a) the type of action or charge;
(b)the name of the accused in a criminal trial or the names of the parties in a civil trial;
(c)the names of the principal witnesses expected to be called in the trial;
(d) the estimated length of the trial;
(e) any other information that the court thinks relevant.
(2)The court must then call on persons on the panel to seek to be excused from jury service on the trial.
(3)The court may excuse a person from jury service on the trial if the court is satisfied that the person—
(a)will be unable to consider the case impartially; or
(b)is unable to serve for any other reason.
(4)Unless the court otherwise orders, a person excused from jury service under subsection (3) must return to the jury pool and may be selected or allocated to a panel in another trial.
The appellant was arraigned before the jury panel and pleaded not guilty to one count of murder. The trial judge informed the panel that excuses were heard and some members of the panel were excused, leaving only 23 potential jurors remaining. The judge directed that the panel be supplemented. Section 41 of the Act provides that if there is an insufficient number of persons available for the selection of a jury, the Court may direct the Juries Commissioner to supplement a panel by selecting a sufficient number from those qualified and liable for jury service and instruct them to attend for jury service.
Further potential jurors were brought to court from the jury pool room. Her Honour then gave the additional panel members the information specified in paragraphs (a) to (d) of s 32(1). She also told them that they must be impartial, that there were many potential grounds for excusing members of the panel from serving on the jury, such as health, the need to care for young children or elderly parents, holidays or work or the hours during which the Court would sit.
The appellant was not arraigned before the second part of the panel. The prosecutor told the trial judge of this failure and her Honour told the second part of the panel that the appellant had pleaded not guilty to a charge of murder. She did not, however, inform them of the deceased’s name, the date of death or the place of death, information which would have been conveyed to the second part of the panel had the appellant been arraigned before them.
Counsel for the appellant submitted that the deceased’s name and the place and date of death were matters that were relevant to the excuse process in that a potential juror’s memory of a connection with the crime might be jogged by hearing those details. It was submitted that the deceased’s name and the place and date of death were critical pieces of information which the judge should have thought relevant. If a potential juror knew the deceased or had heard something of the case, the juror ought to be excused. Counsel said that there had been a breach of a mandatory provision of s 32 of the Act.
Counsel submitted that the failure of counsel for the appellant at trial to object to the fact that the judge did not inform all the members of the panel of the date and place of death and the name of the deceased did not cure the defect, for the irregularity was said to be fundamental.
Counsel relied upon the decision of this Court in R v Panozzo and Iaria.[1] In that case, after the jury was selected and sworn and the accused was declared to be in charge of the court so constituted, a juror was excused and the judge ordered another juror be selected to join the existing jury. It was held that the provisions of the Act had been contravened in that the point in the process at which the member of the jury pool could seek to be excused from service had passed. The Act required that applications to be excused be dealt with prior to the empanelment of the jury. Vincent JA, with whom the other members of the Court agreed, cited a statement by the Court of Criminal Appeal in R v Hall[2] to the effect that an irregularity that related to the constitution of a jury went to the validity of the constitution of the jury as a body authorised by the Act to try issues between Crown and citizen. Vincent JA said: [3]
Whilst from time to time what have been regarded as essentially inconsequential irregularities in the processes leading up to the swearing in of the jury have been accepted as not impacting on the legitimacy of the trial, to my knowledge in no case that this was done was it considered that the trial had been conducted before an unlawfully constituted jury. In that situation, it is not appropriate to inquire as to whether an irregularity that resulted in an unlawfully constituted jury may have occasioned some other miscarriage of justice, as the defect is considered by the law to be of so fundamental a character that the trial is viewed as a nullity.
[1](2003) 8 VR 548.
[2][1971] VR 293, 298.
[3]Above, 555-6 (citations omitted). See also R v Abrahams and Bull [1948] VLR 51; R v Dooley [1972] VR 55; R v Short (1898) 19 LR (NSW) 385; R v Solomon [1958] 1 QB 203; Johns v R (1979) 141 CLR 409.
Unlike R v Panozzo and Iaria,[4] the present case does not concern a contravention of an express provision of the Act. Rather, the defect in the present case is said to be the judge’s failure to properly exercise a discretion conferred by the Act. Her Honour was said to have been required to think that the deceased’s name and the date and place of death were relevant to the excuse procedure.
[4](2003) 8 VR 548.
A threshold question is whether a judge is required to inform those who are selected to supplement a panel pursuant to s 41 of the Act of any of the matters referred to in s 32. Counsel for the respondent contended that s 32 had no application to persons selected pursuant to s 41. It was submitted that just as jurors gathered by the praying of tales at common law were not treated in the same way as individual members of a jury panel, so those selected pursuant to s 41 did not enjoy the rights of original panel members.
The position adopted by counsel for the Crown is extreme, for it denies the excuse procedure to some members of the jury panel. We are not minded to hold that a safeguard of the parties’ right to trial by an impartial jury is to be diluted unless that result is compelled by the clear words of the statute.
In our opinion, there is nothing in the Act which compels the conclusion that potential jurors are to be treated differently depending on whether they are selected as original or supplementary members of a jury panel. Rather, the provisions of the Act point in the opposite direction. Section 41(3) provides that the persons instructed to attend under the section ‘become members of the panel from which the jury for the trial has to be selected’. Section 32 requires ‘the panel’ to be given the information set out in sub-s 1.
The question becomes whether the trial judge contravened s 32(1)(e) because her Honour did not think it relevant within the sub-section to inform the jury of the name of the deceased and the date and place of death were relevant. There is however no evidence as to whether these matters were given any thought by the trial judge.
The appellant’s position is that in every case the members of the jury panel are to be informed of the name of the victim of the crime alleged to have been committed by the accused and the date on which and the place at which the crime was committed. His counsel was driven to this point because there was no evidence of any circumstances to suggest that this information was of any particular relevance to this jury panel.
In our opinion, the bare possibility that being informed of the deceased’s name and the date and place of death may have alerted a potential juror to the fact that he or she knew something about the case by jogging the potential juror’s memory did not render the failure to provide the information to all potential jurors a breach of s 32 of the Act. Many items of information were potentially capable of jogging the memory of a member of the panel, for example, the age of the deceased, the fact that she was the wife of the accused, the occupations and address of the accused and the deceased, the nature of the murder weapon and the names of any children of the accused and the deceased. In the absence of any grounds to suggest that information is relevant to a particular jury panel, we do not consider that it is a mandatory requirement that information other than that set out in paragraphs (a) to (d) of s 32(1) be provided to a jury panel. It was not an essential requirement of the law that such information be conveyed to this jury panel.
Pursuant to ground (b) counsel for the appellant submitted that the practice of arraigning the accused in front of the jury panel is performed as a matter of fairness to the accused so that observance of the manner in which the accused pleads may assist those whose task it is to decide whether the accused is guilty or not guilty. Counsel described the arraignment of an accused before the jury panel as a requirement of the rules of natural justice.
Arraignment marks the joinder of issue by the accused and his consent to trial by jury. As the Court of Appeal said in R vTalia[5]:
This process of arraignment can be traced back to the earliest origins of our law. The purpose of the procedure was to discover whether the accused disputed the matter of which he was accused, and therefore whether the matter needed resolution by a trial. Historically, the procedure was in place even before the accused had the option of electing trial by jury … Prior to the development of trial by jury, an accused had only the right to an “orthodox” trial before God, namely trial by battle, witness, compurgation or ordeal. Trial by jury was developed as an alternative to the “orthodox methods” of trial. … Strictly speaking the accused had a right to an “orthodox” trial, so his consent was needed before trial by jury might proceed. Arraignment evolved to encompass the formal giving of this consent, and this is the origin of the English courts’ traditional difficulty in dealing with prisoners who refused to enter a plea. … The words of arraignment, “By God and my country”, were to confirm the accused’s consent to trial by jury and signified that trial by jury carried with it the full force of a judgment by God as previously delivered by an orthodox trial.
[5][1996] 1 VR 462, 472.
The origins and purpose of arraignment do not suggest that it is a procedure which must be carried out before all the members of a jury panel. The effect of arraignment is that if the accused pleads ‘not guilty’, he is forthwith deemed to have put himself upon the country for trial and, accordingly, the court shall in the manner provided by law order a jury for his trial.[6] The plea establishes the need for a trial.[7] While it is general practice for at least one arraignment to take place before the jury panel,[8] at the time of this trial there was no statutory mandate that any arraignment occur before any part of the jury panel.[9]
[6]R v Nicolaidis (1994) 33 NSWLR 364, 367 (Gleeson CJ).
[7]R v Tonner (1985) 80 Cr App R 170; R v Jones [2003] 1 AC 1, [5].
[8]R v Talia, above, 465; R v McNamara (No 2) [1997] 1 VR 257, 260; R v TSR (2002) 5 VR 627, 532; R v Panozzo and Iaria, above, 549.
[9]See new s 217(a) Criminal Procedure Act 2009. As the appellant was committed for trial on 28 October 2009, prior to the commencement of chapter 5 on 1 January 2010, s 217 did not apply to this trial. (Clause 8, Schedule 4 Criminal Procedure Act 2009).
The appellant assumes it is to accord fairness that an arraignment occurs in front of the jury panel. In our opinion, the rules of natural justice are not breached if
all members of the jury do not hear the accused plead. In R v Williams, the Court of Appeal said:
Insistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea, and where the ensuing proceedings are precisely what they would have been if the accused himself had made the plea in plain terms.[10]
No unfairness was occasioned as a consequence of the fact that some of the jury panel were not present when the appellant pleaded not guilty. No request was made that he plead before the entire jury panel. The jury were able to observed the appellant throughout the trial. The jury saw and heard the appellant give extensive evidence. Further, we do not think that there was any benefit to be derived by the accused uttering two words before the jury panel. In our opinion, the failure to arraign the appellant before the entire panel did not constitute a miscarriage of justice.
[10][1978] 1 QB 273, 379.
For the foregoing reasons, we would dismiss the appeal.
NEAVE JA:
I have had the advantage of reading the draft joint judgment of Buchanan and Redlich JJA. I agree with their Honours, for the reasons they give, that the appeal against conviction should be dismissed.
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