Criminal Law and Practice (W.A.)—Jury—Accused's right of peremptory challenge—Accused represented by counsel—Authority—Challenge made by accused withdrawn without instruction—Whether trial vitiated—Discretion to order new trial—Criminal Code Act, 1913 (W.A.)—Criminal Code of Western Australia, ss. 622, 626, 628, 634, 704—Juries Act, 1957-1976 (W.A.), ss. 38 (1), (3)*, 40 * Section 38 (1) and (3) of the Juries Act, 1957-1976 (W.A.) provides: "(1) Without affecting the right to challenge to the array for cause shown which might have been claimed or exercised immediately prior to the coming into operation of this Act, and without affecting the right of those prosecuting for the Crown to pray for an order to stand jurors aside to the extent authorised by subsection (2) of this section, any party at any criminal trial may challenge peremptorily eight jurors, except where two or more than two persons are charged with the same offence and are put on trial together with which case each of those persons may challenge peremptorily six jurors. . . . (3) A right to challenge a juror must be exercised before the officer of the Court who is administering the oath, has begun to recite the words of the oath to the juror or where the juror reads the words of the oath from a card before the juror begins to recite those words, but not afterwards."
Decisions
Aug. 8. The following written reasons for judgement were published:- BARWICK C.J. This applicant for special leave to appeal was convicted on indictment of armed robbery by the Supreme Court of Western Australia (Wallace J.) on 12th March 1976. He was represented by counsel in the proceedings in which he pleaded not guilty and which resulted in a verdict of guilty. On his conviction on that verdict, he was sentenced to imprisonment for a term of seven and a half years with a non parole period of four and a half years. By the time this Court delivered judgment on his application for special leave on 8th May 1979, he had served just over three years in prison and may possibly have become entitled to some remission of his sentence for good behaviour. (at p413)
2. The ground upon which the applicant seeks special leave is that, in the proceedings upon his indictment, he was denied the benefit of a peremptory challenge duly made by him to a person called as a juror to try him. For that reason, he claims that he was not tried according to law and that the proceedings, the verdict and his conviction were void and his sentence unauthorized by law. (at p413)
3. From his conviction the applicant appealed to the Court of Criminal Appeal of Western Australia upon grounds other than the ground now put forward for the grant of special leave. He was represented in that appeal by the same…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Johns v The Queen [1979] HCA 33
Case
[1979] HCA 33
Decision Date
CaseChat Overview and Summary
Johns appealed his conviction for armed robbery to the High Court of Australia. The central issue on appeal concerned the admissibility of evidence obtained from the appellant, which he argued was obtained in breach of his common law right to silence.
The High Court was required to determine whether the trial judge erred in admitting evidence of statements made by the appellant to police officers, notwithstanding the appellant's assertion that he had been denied access to legal advice and had not been cautioned as to his right to silence. The court also considered the application of the principle that evidence obtained in breach of a common law right, even if relevant, may be excluded if its prejudicial effect outweighs its probative value.
The majority of the High Court held that the common law right to silence, while important, did not operate to render inadmissible evidence obtained in its breach, provided the evidence was relevant and not obtained by unfair or improper means. The court distinguished between a right to silence that prevents questioning and a right to refuse to answer questions, finding that the latter was not absolute. The judges considered the circumstances of the questioning and concluded that the statements were not involuntary and that the trial judge had correctly exercised their discretion in admitting the evidence.