DPP v Selway (Ruling no 12)

[2007] VSC 248

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1524 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID MAXWELL SELWAY

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Ruling No. 12

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2007
DATE OF RULING:	13 March 2007
CASE MAY BE CITED AS:	DPP v Selway
MEDIUM NEUTRAL CITATION:	[2007] VSC 248

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Criminal law and procedure – murder – application for discharge of jury on ground that jury empanelment by number rather than name connects this case to a notorious case – considerations applicable to jury empanelment by number - s.31(3) Juries Act 2000 – application refused.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Gamble, SC Ms S Pillai	Office of Public Prosecutions
For the Accused	Mr P Faris, QC Mr I Hayden	Rainer Ellinghaus

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HIS HONOUR:

1. I have an application by learned senior counsel for the accused that the jury be discharged without verdict.  The basis for the application is an article in yesterday's Herald Sun headed "Mokbel Judge's Jury Fear" on p.2 which in part reads - and this, as I understand it, is the real vice relied upon by Mr Faris - "Justice Bill Gillard was so concerned about the risk that he ordered potential and selected jurors be identified by number rather than name".  In this case I conducted the jury empanelment by number and not by name.  Thus the suggested prejudice to this accused. 

1. In my view, the application to discharge ought be refused. There is ample power in s.31(3) of the JuriesAct 2000 for jurors to be selected by number. That subsection relevantly provides:

“(3)  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, either before or after the panel is present in the court, direct that each person be identified by number only.”

The power is plenary.  Only once, I think, in the last seven years have I done it by name rather than number and there was a very specific reason for that.   When the panel was in court I told them that this was the modern way of doing things (T.693) and they all nodded appropriately and, in my view, it is the modern way of doing things.  Jurors are entitled to personal anonymity.  Jurors certainly prefer personal anonymity.  Jurors are coercively and randomly chosen from the community and in my view the very great benefit to the administration of justice of their participation ought be enabled by all proper means.  Absolutely no prejudice, in my view, would flow to the accused from the process being conducted in that way.  Of course, the power is there under the Act and no doubt that is why the process was not objected to.

1. What is now relied upon is that in another case unconnected with this case, and demonstrably unconnected with this case in every way, another judge has apparently expressed, so the Herald Sun reports it - accurately or otherwise, I do not know - a particular concern in relation to that case.  I consider there is no rational likelihood or possibility that the jury would connect the case of Mr Mokbel with this case before the court.  The jury has been directed to put aside extraneous material and I am quite sure they will.  Accordingly, I refuse the application.

1. I am prepared to say to the jury, if defence counsel wish me to, a word or two more about what I said to them originally, namely this is the way we do things these days, or at least this is the way I do things.  I think it might be best if defence counsel perhaps give that some thought during the day rather than in any precipitate way make a decision.  It may be better to leave the thing completely alone.  However, if defence wishes me to, subject to hearing the prosecution, I will certainly accede to the defence request.

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