DPP v Ivanovic

[2003] VSC 388

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS IVANOVIC

Ruling No. 1

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2003
DATE OF RULING:	15 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 388

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CRIMINAL LAW AND PROCEDURE – Murder – Empanelment of jury – Calling of jurors by number and not by name – No special or extraneous reason required – Section 31(3) Juries Act 2000.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr R. Richter Q.C. and Mr C. Rozencwajg	Theo Magazis

HIS HONOUR:

1. Learned senior counsel, Mr Richter, has submitted that I ought not exercise the power provided by s.31(3) Juries Act 2000 to direct that the jury empanelment proceed by number rather than by name. The prosecution has sought that procedure and Mr Richter has opposed it. The relevant provision is s.31(3) Juries Act 2000 which provides (in relevant part):

"If the court considers that for security or other reasons the names on a panel should not be read out in open court, the court may … direct that each person be identified by number only." 

1. What occurred on the last trial of this matter does not need to be rehearsed in detail by me in this judgment.  It appears at p.511 and thereafter of the transcript of the last trial on 5 June 2003.  The jury list was left in court by the tipstaff and it then disappeared.  Probably it fell on to the floor and was removed unwittingly by cleaning staff but no one knows what happened to it.  In making this Ruling I in no way reflect upon the propriety of the accused or any of his family or associates nor, of course, upon his legal representatives.  The fact is the last jury had to be discharged by reason of that unfortunate circumstance.  In directing that these proceedings proceed by number tomorrow, that does not involve, either overtly or by implication, any adverse reflection upon the accused or anyone associated with him or his legal representatives.

1. Mr Richter submitted that the jury panel might be adversely affected by the unusual circumstance of numbers rather than names being utilised in the calling over of the panel.  It is sometimes said that lawyers traditionally are opposed to change - I know Mr Richter does not fall in that category - but there is nothing, I would have thought, which would engage the interest or surprise of, let alone stimulate prejudice in, any modern thinking juror in the calling by numbers rather than names.  It is simply the use of a modern provision inserted in 2000.  I shall tell the jury this is a convenient new provision and we are now acting in accordance with it.  I am quite sure the jury will not think beyond the fact that it is what I say it is, a convenient new provision.

1. I am satisfied that it is prudent, given the misfortune on the last occasion, that the exercise of this recourse ought be had.  That is no reflection on the accused.  It is simply a prudent, prophylactic matter after the last misfortune.

1. Accordingly I propose to direct the jury be called by number.

1. For purposes of other trials, I think it is appropriate to say something further. Section 31(3) states:

"If the court considers that for security or other reasons the names on a panel should not be read out in open court …"

The sub-section requires there to be a reason for the use of the numeral rather than the nominal. However, I consider that no special or extraneous reason need be established in order to activate the power in sub.s.(3). The requirement of "other reason" is satisfied if the Court considers it is good management to use numbers rather than names. In my view, generally speaking it is good management to use numbers rather than names. Citizens called for jury service should be supported by the reassurance of anonymity; the administration of justice - trial by jury - is enhanced thereby; and an accused is not disadvantaged, because the juror's occupation (or last occupation) is stated. The provisions of s.31(3) should not be construed in a narrow or pedantic manner. They are facilitative.

1. Accordingly, general use of juror number rather than name for reason of good management is, in my view, consonant with the provisions of s.31(3). That indeed is the modern (and interstate) way. It underpins the fundamental of trial by jury.