Katsuno v The Queen

[1999] HCATrans 42

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M88 of 1998

B e t w e e n -

YOSHIO KATSUNO

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MARCH 1999, AT 10.20 AM

(Continued from 9/3/99)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, I propose to withdraw the first sentence of paragraph 3 of my submissions.

GLEESON CJ:   That is a good start.

MR BENNETT:   Yes.  Your Honour may not say that when your Honour sees the first sentence of paragraph 3 of the previous submissions, the existing ones.  Your Honour is looking at my new submissions.

GUMMOW J:   It is welcome news, Mr Solicitor.

MR BENNETT:   Yes.  I have caused to be distributed some fresh submissions, bearing in mind that additional matter I propose to address the Court on, and I invite the Court to look at them.

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, might I start with section 67 and take your Honours to it.  What appears to have been assumed up to this moment is that the words “permits any person to have access to” in paragraph (b) relate to disclosure of the contents, and may I start by taking issue with that.

The first matter to note is that paragraph (a) deals solely with the integrity of the register.  It makes it an offence to:

causes any alteration omission insertion or misdescription in or falsely certifies to the correctness of any record of jurors summons list panel or card.

That is referring to the integrity of the original records, not to copies of them.  Let us suppose that the sheriff makes for his own lawful purposes a photocopy of a jury panel and then, no longer needing that copy, uses it as scrap paper, doodles on it and perhaps crosses off names.  Clearly the sheriff is not guilty of an offence under paragraph (a).  The paragraph is dealing with the integrity of the original register and with alterations or other matters which effect its integrity and the various sub-registers referred to, the “summons list panel or card”.

Paragraph (b) first of all, of course, must be construed noscitur a sociis – and I will come back to that looking at the other paragraphs – but (b) has the word “such” in the middle line, unlike (a).  It is referring to a “record of jurors, summons, list, panel or card” being referred to in paragraph (a), what you are forbidden to alter or affect the integrity of.  And in order to protect it, it says you must not subtract, take out a card or take something away from it, destroy – that is obvious – or permit anyone else to have access to it because that person might subtract or destroy.  It is not concerned with disclosure at all.  And one sees that even more clearly if one looks at the other paragraphs.

GAUDRON J:   Your submissions go to the point that the Commissioner of Police could, if he wished, give the same information to the accused or the defence counsel.

MR BENNETT:   Yes, your Honour, yes.

KIRBY J:   But your submissions do not attempt to grapple at all with section 21.

MR BENNETT:   My oral submissions will, your Honour, and I apologise that they are not in here.

KIRBY J:   But on your view, the Chief Commissioner could give it to the media or to anybody.

MR BENNETT:   Yes, your Honour.

KIRBY J:   Well, that seems a fantastic notion that the Act would permit that.

MR BENNETT:   Your Honour, he might then be committing a breach of the Police Regulation Act and I will take your Honour to the section there, if he was not doing it for a lawful purpose, so there might be other problems at that stage.

But there are all sorts of uses he might wish to make of it.  Suppose – I will come to this when I get to section 21 – but suppose he sees on the jury panel the name and address of a fugitive from justice, is he forbidden to use that information to send a police officer to arrest that person?  Suppose he sees a person who would clearly be subject to challenge for cause, perhaps by the accused, is he forbidden to disclose that to the accused?

But I will come to that when I get to section 21.  If I can just finish with section 67.  If one looks at the other paragraphs, they are all in the same genre.  Subsection (c) is concerned with doing things in time, (d) is concerned with excusing people from serving; placing on a panel a person whose name is not there; recording the appearance of a person who did not appear; taking any rewards for excusing, et cetera.  These are all ‑ ‑ ‑

KIRBY J:   What has (f) to do with the actual record?

MR BENNETT:   They are all concerned with the integrity of the panel.

KIRBY J:   Subsection (f) is the non-appearance of any person who is summoned.

MR BENNETT:   Yes.

KIRBY J:   So, that has nothing to do with the integrity and the record.  It is indirectly concerned with the record but it is not to do with the integrity of the record.

MR BENNETT:   It is, your Honour, because a person who does not attend is still bound to attend next time.

KIRBY J:   That does not touch the record, the piece of paper.

MR BENNETT:   It does not touch the piece of paper, no.  But what it does touch is the integrity of the procedure involving the composition of the jury and the list of names that go on it.  But (a), (b) and – well, (f) is also, of course, concerned with records, in one sense.  It is making the false entry in a record which is part of the overall system which would ‑ ‑ ‑

McHUGH J:   I do not know why you say that (b) is confined merely to protecting the integrity of the original record and not disclosure.  Why do not the words “permit any person access to any record”, why does that not deal with the question of disclosure?

MR BENNETT:   Because, your Honour, it is not the normal way statutes deal with disclosure.  When statutes deal with disclosure they talk about disclosure and, indeed, section 21 which talks about making known the names on a panel.  This language is not appropriate to that.

GLEESON CJ:   But it permits you to have access to the record, so you cannot let somebody see the record.

MR BENNETT:   No, your Honour, because that person might do something to it.

GLEESON CJ:   Well, I know he might do something with it.  He might use it as the DPP have used it in this particular case.  Supposing the DPP came down to the Commissioner’s office and said, “Let me have a look at this record”, would that be a breach of section 67(b)?  I would have thought the answer is yes.

MR BENNETT:   Your Honour, bearing in mind the purpose of 67(b) I would submit not, because the purpose is to protect the record from someone interfering with it and it is the word “such” ‑ ‑ ‑

KIRBY J:   It seems a tiny problem to so have engaged the legislature.  The real problem is the breach of confidentiality.  It seems a tiny problem that somebody – this mysterious person is going to go around and tamper with the actual piece of paper.

MR BENNETT:   Yes, your Honour.  Confidentiality is dealt with by section 21(2) and it only binds the shower and as long as the shower has sole custody of this the only other person involved is the Commissioner and the Commissioner is still subject to the same rules about the original document, if he gets them, but he is not subject to the disclosure restriction.  But I will come to that when I get to ‑ ‑ ‑

MR BENNETT:   With respect, section 67 is not.  Section 67 firstly uses the word “such”.  Why would the word “such” be necessary unless it is referring to the documents referred to in (a)?

McHUGH J:   That can be accepted.  It says:

the correctness of any record of jurors summons list panel or card ‑ ‑ ‑

MR BENNETT:   But that would not apply to a copy, your Honour.

McHUGH J:   It would be a record, would it not?

MR BENNETT:   But one does not certify to the correctness of that, your Honour.  This is talking about:

causes any alteration omission insertion or misdescription in or –

lying about what is in it.  That is a very different frame of reference, an area of discourse, than disclosure of the contents.  And (b) is then talking about “such record” and it uses a circumlocution not normally used in relation to disclosure.  Why would not the Act say if it meant it, “shall not disclose the contents of any record”?  It would be a very simple thing to have said.  But it uses an unusual phrase and the purpose of that phrase becomes quite clear when one applies both the maxim “ejusdem generis with subtract and destroy”.

McHUGH J:   But given the history of this legislation, it is quite clear why the legislature used the words “permit any person to have access to any record” because prior to 1922 anybody was entitled to inspect the panel.  In 1922 that was cut out and it was a general prohibition until 1928 when the Commissioner was given certain limited powers.  But does not 67(b) reflect the change in 22?

MR BENNETT:   No, your Honour, because in 1922 there were not photocopies, there were not multiple copies of these things lying around.

McHUGH J:   Well, I am not sure.  People could copy things; Thomas Jefferson used to keep a copy of every letter he wrote, by reason of some devise he had.

MR BENNETT:   One could, your Honour, but what people were able to inspect, no doubt then, was some original document, no doubt with a risk of that being interfered with.  This is a grab bag, if I could use the colloquial phrase, of things which could affect the integrity of the register, and one of them is, having said that you cannot do any of these things to the register, it is only natural to say, well you cannot give someone else access to it so that person could do it.

KIRBY J:   I think your stronger point is that, in the context of subtracts and destroys, which are, on the face of things, addressed to the document itself, “permits any person to have access to”, may not have the broad meaning which, if it appeared alone, it would attract.

MR BENNETT:   Yes.  Well, your Honour, we have listed five matters in paragraph (2) and I put all of them:  There is the point your Honour puts to me, which is the ejusdem generis point; there is a list with a more general phrase at the end; there is the noscitur a sociis point based on (a) and the other paragraphs of the section; there is the word “such”, which relates it back to paragraph (a) specifically; there is the fact that a circumlocution “have access to”, is used when they could well have used a far more direct phrase, and there is the known practice which we pray in aid of our construction, although Justice McHugh puts it the other way.  We would submit, in the absence of a demonstrable intent to interfere with the known practice one would not construe it that way.

KIRBY J:   I do not quite get your “such” point, because it is merely referring back to the record that is referred to earlier in the section, and that would be so whether you are concerned with the actual piece of paper or concerned with the information on the paper.

MR BENNETT:   Well, (a) is not concerned with the information on the paper and it lists them in a context where it is clearly referring to the originals or at least the – even if there is more than one original, the operative copies.  Subsection (b) when it refers – otherwise we would have no reason to use the word “such” and, yes, it was also limiting it to the original or perhaps to operative copies.  I should say the argument which I have put was accepted in Robinson’s Case and accepted by the Full Court in this case.  It is contrary to the view taken by Justice Vincent In the trial of D which was of course overruled in Robinson’s Case.  I should also mention to your Honours the Law Reform Commission Report in Victoria refers to the fact in – this is the December 1997 final report - - -

KIRBY J:   Please do not call it the Law Reform Commission.  The Law Reform Commission was abolished in Victoria.  This is a parliamentary committee.

MR BENNETT:   I am sorry, the Law Reform Committee. I apologise to your Honour. It is, yes, the Law Reform Committee’s report. In paragraph 5.18 - your Honours need not go to it – they refer to a practice existing as early as 1890 of reading the jury list at a police muster at the police station each morning, so, any police officers who knew anything about any names on the list could express their views. So, that was a practice certainly at the time of the Constitution. I will come to that later. But the practice in Victoria goes back that far. The other point I should refer to from that report is paragraph 5.30 which is of significance when one gets to the policy considerations where they say:

The committee has concluded that although it is for the Parliament through legislation to define the categories of persons who are considered unsuitable for jury service by reason of past criminal behaviour, jury vetting of non-disqualifying criminal convictions is necessary in order to protect the integrity of the jury system.  However, it should be kept to a minimum.  There is a need to ensure that persons who are unsuitable for jury service in particular cases because of non-disqualifying criminal convictions do not sit on juries.  The committee accepts that persons may be unsuitable for jury service where there is a logical nexus between the prior conviction and the nature of the offence is to be tried.

GLEESON CJ:   Is there any jurisdiction in Australia or any other comparable common law jurisdiction where jury vetting does not take place?  I mean, jury getting for people who are considered unsuitable, although they are not disqualified?

MR BENNETT:   I hear the word South Australia whispered on my left.  I do not know the answer to your Honour’s question beyond the examples that have been put in this Court in relation to England and the States of Australia.

KIRBY J:   But why in principle, if Parliament does not muster the courage to disqualify people and, on the contrary, seems to be talking about expanding the pool, should one be knocking off people who are not disqualified?

MR BENNETT:   Because, your Honour, one has peremptory challenges and there is a difference between those who are to be disqualified regardless and those who one or other party may feel are inappropriate having regard to the need for an impartial jury.

KIRBY J:   I do not know why you add the words “or other”.  It is one party, one party gets this information.

MR BENNETT:   Well, in this case it is, your Honour, but in other cases it may be the other party.  The ‑ ‑ ‑

KIRBY J:   We are moving in the French direction and putting the prosecutor in a special place a little closer to the Court, little advantages.  It is not something which has been in our tradition.

MR BENNETT:   I will deal with that, your Honour.  That is a separate argument I will deal with later.  The point we make in relation to that is that information that a jury - which may lead to the suspicion that a jury is biased against one party is only of benefit to that party and is of marginal benefit to the other party.  It can affect the other party, it can avoid it wasting a challenge, it may make a person more attractive to the other party and not to challenge; but it is less significant than it is to the party that challenges.  And that is illustrated beautifully in this case where, if there had been equal disclosure to the defence, it would have made absolutely no difference because this juror was challenged peremptorily by the prosecution.

But the real point is this, your Honour.  There is a spectrum.  It is not a matter of saying, on the one side you have those disqualified, on the other side you have those who are perfectly permitted to sit on any jury and perfectly desirable to have on any jury.  There is an intermediate group, including those who are disqualified for cause, but adding to that, those who would be challenged on a peremptory challenge as to which a party should have the opportunity of saying it is inappropriate for that person to be on this jury.  And by saying the Parliament has laid down disqualifications does not eliminate the fact that a person might well be in that group, and that is why I read that paragraph from the Law Reform Committee’s Report, because that regarded it as perfectly consistent with Parliament determining disqualifications to permit the prosecutor to exercise a discretion in relation to non-disqualifying convictions.

There have been lots of examples given in this Court yesterday.  One obvious example is a non-disqualifying conviction for drug smuggling or for something involving heroin trafficking.

McHUGH J:   Well, you might have a Mr Big on the jury who was convicted back in 1941.  He has managed to escape conviction for many, many years but everybody in the community knows ‑ ‑ ‑

MR BENNETT:   Yes, or one might have a person, as was put by the Chief Justice yesterday, who is under indictment for similar offences.  Of course there is a presumption of innocence.  Of course no one says that person is disentitled or disqualified, but a proper exercise of discretion would result in that person being peremptorily challenged from serving on the jury.  Because one says it is desirable to have a random pool, one does not take that to the logical conclusion that the random pool has to include people who are close to the border but not over it of being disqualified for cause or disqualified by the Act for a specific matter.

GLEESON CJ:   I note that this whole question of jury vetting and practices in relation to jury vetting was a matter that was the subject of a report last year by the New Zealand Law Reform Commission.

MR BENNETT:   I have not seen that one, your Honour.  There certainly are reports that have been referred to in various documents in New South Wales and Queensland.

GLEESON CJ:   This one is entitled Juries in Criminal Trials, Part 1.  It has in it a chapter or part that deals with the practice of jury vetting in various common law jurisdictions including Australia.  It seems to be a rather controversial subject.

MR BENNETT:   It is, your Honour, but the point I am making is that once one has peremptory challenges given to the Crown or the right to stand aside which existed at the time of the Constitution, there is nothing wrong with the Crown having information on which it can base a rational decision to stand aside or to challenge peremptorily.

McHUGH J:   I know you keep referring to “proper exercise of discretion” and “rational decision” but it is a peremptory challenge.  I mean, for political purposes you might want to say that the Crown only challenges peremptorily on “proper” grounds but there is no reason why the Crown cannot just ask somebody to step aside for any reason, just as the accused can.

MR BENNETT:   No, your Honour, that is so.  There may be some limits ‑ ‑ ‑

McHUGH J:   I do not know why some of the people want to run away from arguments.

MR BENNETT:   I do not run away from it.  We put it squarely on the basis that it does not depend on what the Crown does.  I mean, my learned friend could not say in this case the reason why this trial is a nullity is that the discretion which was exercised by the prosecutor was so extreme as to miscarry.  I mean, your Honours will notice he started by talking about how minor the convictions were.  That is a great debating point but it is irrelevant to the issue.  Of course the discretion may not be exercised in accordance with the reasons why it is given in every case – of course it may not.  There are lots of rules which are laid down by prosecuting authorities and the conduct of prosecutions which are based on a need for fairness which do not have the force of rules of law and one expects prosecutors to do certain things and sometimes they do not.  But it is a long way from saying that to saying that this practice is in some way a wrongful practice which goes to the extent which my learned friend has to take it.

GLEESON CJ:   Suppose that a person who was the subject of a criminal charge was a person who had been very active in political life and it came to the notice of the prosecution that one of the people on a jury panel was someone who had served actively in association with that persons political activities, would that be a proper ground of challenge?

MR BENNETT:   Well, a peremptory challenge can be based on any ground.  That was so in the case of the accused and it is so in relation to the Crown.  There may be some limitations of the type which occur in the American cases where the prosecutor attempts to exclude a particular racial group or affect the overall composition of a jury in a particular way, but it is interesting that the American cases - and I leave those to my learned friend the Solicitor for New South Wales, Mr Sexton - which take that view are all based on the Fourteenth Amendment, not on the Sixth Amendment.  They are based on the concept that it is unfair to that racial group, that it has been disadvantaged, rather than that the accused is not getting a fair trial for due process, or a trial by jury.  But I leave those to my learned friend to deal with.  There may be limitations in that area.  We are not concerned with those in this case.  This is not that type of case.

May I now come to section 21 and the significant point about section 21 is what it does not say.  I have put my submissions about what section 67 does and I have put the submission that if section 67(b) was construed the way my learned friend, Mr Grace, would construe it, then section 21(2) would be quite unnecessary; it would be a piece of mere surplusage, because what is prohibited by section 21(2) would already be prohibited by section 67(b).  It is significant that in the very section which refers to the Chief Commissioner of Police, the very section, subsection (2) is limited to the sheriff and does ‑ ‑ ‑

GLEESON CJ:   But is your proposition that subsection (2) says the sheriff has to keep this confidential, but once it goes to the Commissioner the Commissioner can do what he likes with it?

MR BENNETT:   Yes, your Honour; do what he likes, subject to the Police Regulation Act, which provides that a police officer cannot disclose matters that come to his attention, except for lawful purposes and so on.  There are restrictions of that type.  No doubt the Chief Commissioner might be in breach of the Police Regulation Act if he were to behave irresponsibly with the panel.

GLEESON CJ:   But what is the point of imposing an obligation of confidentiality on the sheriff if, in the next breath, you impose upon him an obligation to impart the information to a particular person who was under no obligation of confidentiality.

MR BENNETT:   But he is not under no obligation, your Honour.  He is under the obligation of the Police Regulation Act, the general obligation, and, if I could show your Honour that section.  I do not know if your Honours have the Police Regulation Act.  It is section 127A.  I do not think it is on anyone’s list.  It is 1958, section 127A.  It provides:

(1)      Any member of the police force who publishes or communicates, except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge or into his possession by virtue of his office and which it is his duty not to disclose shall be guilty of an offence against this Act and liable to a fine of not more than 20 penalty units.

McHUGH J:   Well, that does not help, does it, because on your argument section 21 does not impose any duty on him not to disclose?

MR BENNETT:   No, your Honour, it does not.

McHUGH J:   So there is no breach, so your argument is circular, Mr Bennett.

MR BENNETT:   Well, your Honour, he must have a duty in the course of performance of his office.  He has the general statutory duty to act responsibly and in the interests of the community in the performance of his duty.  No doubt if he were to take the jury panel and provide it to The Age, there would be a problem, but the ‑ ‑ ‑

McHUGH J:   But your argument has to be that 21(3) authorises the Commissioner to do what he likes with the panel.

MR BENNETT:   I do not need to go as far as that, your Honour.  It does not prohibit the Commissioner and the reason it does not prohibit the Commissioner from disclosing is that it was known to the Parliament that there was a practice of jury vetting which involved the Commissioner using the panel in a particular way and therefore there was no prohibition imposed on him disclosing it.

GLEESON CJ:   Suppose the very subject matter of a police investigation were an alleged attempt to interfere with jurors whose names were on the jury panels and the Chief Commissioner had the task of investigating that allegation.  What, if any, limitations would exist on the Chief Commissioner’s power to use the information that a person was on the jury panel?

MR BENNETT:   In my submission, none, your Honour.  The example I gave was a simpler one where he sees the name of a fugitive from justice with an address and he goes out and arrests him – a much simpler example.  It was simply assumed that there are various purposes for which the Chief Commissioner might wish to have the panel and it was not seen by the legislature that there was any harm in the Chief Commissioner having it, no doubt relying on the integrity of the person who from time to time holds that office to act responsibly.

GLEESON CJ:   What are the obligations of confidentiality that attach to police officers?  Is it just section 127A in Victoria?

MR BENNETT:   So far as I am aware, yes, your Honour.

GLEESON CJ:   We often assume, and rightly assume, that in certain circumstances police want to keep confidential or want to limit to as few people as possible the information that a particular person is under investigation, but the opposite may be true from time to time.

MR BENNETT:   Of course, your Honour.

GLEESON CJ:   Police no doubt go around beating the bushes and from time to time would want to disseminate information about investigations they are conducting in the hope of flushing out victims of crime, for example.

MR BENNETT:   Or they may say to a person, “Your accomplice has confessed.  Why don’t you?”, assuming that to be true.  There are all sorts of situations in which the police may need, in conducting an investigation, to disclose something to a person.  They may go to a person and say, “John Smith has been murdered.  We seek your assistance”.  The fact that John Smith has been murdered may be known only to the police.  There are all sorts of situations where the police have to disclose things to people and in some cases ‑ ‑ ‑

GLEESON CJ:   Or, more accurately, may choose to disclose things.

MR BENNETT:   Yes, or they choose to.  Your Honour has given examples of where it is desirable in the public interest.  One sees television shows today - I think “Australia’s Most Wanted” is one of them – where police officers go on television and discuss with television journalists matters concerning unsolved crimes and seek the help of the public and no doubt ‑ ‑ ‑

GLEESON CJ:   As it happens, that program was used in a murder case in New South Wales to entrap a criminal.

MR BENNETT:   It claims a success rate, your Honour.  There is no general rule which says the police must keep everything a secret.  There is section 127A of course.  But there would be no reason why the legislature would not trust the responsibility of the Chief Commissioner and make the assumption that he or she would not use the information irresponsibly but would use it in a way that was thought to be responsible and one way was to enable the Crown in prosecutions to use peremptory challenges where appropriate.

GLEESON CJ:   But this may cut both ways.  The position is that it is dangerous to assume that information which is in the knowledge of the police is confidential.  It might be more accurate to assume that information which comes to the police will be used in such a manner as the police consider expedient.

MR BENNETT:   In such a manner as they responsibly consider expedient, yes, your Honour.

GUMMOW J:   Responsibly by what criterion?  There is a lot of double talk in all of this language, Mr Solicitor.

MR BENNETT:   Your Honour, the fact that there may be irresponsible use in a particular case does not mean that one ‑ ‑ ‑

GUMMOW J:   What do you mean by “responsible use”?  That is what I am trying to find out?  Responsible by what criterion?  Some legal criterion; some moral criterion?  If moral, which particular moral criterion?

MR BENNETT:   General discretionary criteria, bearing in mind the objectives of the force.

GAUDRON J:   Let us move away from discretion.  Could the accused issue a subpoena to the Commissioner of Police to produce to him, pre-trial on the morning of the trial, the same information that has been produced to the DPP, and would the court have to give effect to that subpoena?

MR BENNETT:   There would be no express prohibition.  The question for the court would be whether the existing practices of the court in relation to access of the accused to the jury panel for the purposes of making the peremptory challenges made it appropriate or inappropriate to do that.

GAUDRON J:   Why?  What has “appropriate” or “inappropriate” got to do with it?

GUMMOW J:   This word “appropriate” has some sort of Victorian ring about it used by people that are prepared to face up to the realities of what they are in fact been moved by.

McHUGH J:   And given the history since 1922, it is impossible to believe that Parliament could ever have intended that an accused could get hold of this information by means of a subpoena or otherwise.

MR BENNETT:   That would no doubt be used as an argument as to why the accused should not have it, but the ‑ ‑ ‑

GAUDRON J:   But would it not be used really to tell you what 21(3) says about this information in the hands of the Police Commissioner, not the information about where the fugitive lives, but the information as to the names in the panel?

MR BENNETT:   Your Honour, my submission is there would be no prohibition upon that.  Whether the court would exercise its discretion ‑ ‑ ‑

GAUDRON J:   If there is no prohibition, there is nothing to stop the Commissioner from putting it in the newspaper or from giving it to some of his officers whose integrity may not be all that it should be, who could then go and tell the accused to get rid of these people who are on the jury panel.

MR BENNETT:   Well, your Honour, if that occurred it would, no doubt, be a source of justifiable criticism of the Chief Commissioner but it would not be an offence against this Act.

GAUDRON J:   Why would it be justifiable criticism?

MR BENNETT:   It would be justifiable criticism, your Honour, in the same way as any ‑ ‑ ‑

GAUDRON J:   If he is acting lawfully, he is acting lawfully.

MR BENNETT:   No, your Honour, there are many things the police could do which are not lawful which one would criticise them for doing.  If the police choose to harass a particular section of the community by devoting all their attentions to that particular section of the community – an ethnic group, for example, one might criticise them; it is not unlawful.

GAUDRON J:   It might be.

MR BENNETT:   There are other sanctions in relation to the conduct of the police, your Honour.  There are sanctions of a general nature in the various Police Regulation Act;  there are political sanctions;  the politicians can dismiss the Commissioner – there are all sorts of checks and balances which operate in that area and sometimes they are breached, but they are not to be found in section 21.

GAUDRON J:   What do you say about the rule of construction accepted in Johns?  You have to deal with that.

MR BENNETT:   Yes, I do, your Honour.  I deal with it in paragraph 6 and following of my fresh submissions.

McHUGH J:   I think her Honour is talking about not Roger Johns, but Johns v ASC 178 CLR, not 141 CLR.

MR BENNETT:   Yes, I am sorry, I misunderstood.  What we say is this, that that is a very different principle.  When one has a power to interfere with the rights of a citizen by obtaining information, by obtaining documents or causing the citizen to come and be examined or whatever, then there is a principle which was applied in that case and was applied in the two English cases which it follows, that there is a limitation on what one can do - one can only use the power for the purpose in question.  That is very different to section 21 which is mere administrative regulation.  Section 21 is merely the Commissioner, as an administrative functionary, performing an administrative task for the sheriff to enable the system to work in a particular way.  That is quite different to the sort of power which was being talked about in Johns and the two English cases.

GLEESON CJ:   The principle in Johns is analogous to, perhaps it is the principle that is applied in relation to solicitors in discovery, is it not?

MR BENNETT:   Your Honour, the rule in relation to discovery, yes, your Honour, it is.  That is an example of the other party being obliged to provide information.  You are exercising a power – in that case, a power given to a legal adviser to a party or to a party rather than to a government official.

GLEESON CJ:   The argument against you is that if you look at section 21(3) the Chief Commissioner of Police is in a situation not very different from the situation of a solicitor for whom somebody is obliged to disclose information for a particular purpose, namely, discovery.

MR BENNETT:   But the ratio of those cases, we would submit, depends not on the fact that there is disclosure of information, but on the fact that a citizen is – the power is exerted against a citizen.  This is not the Chief Commissioner exercising power against a citizen, this is one administrative functionary in the course of administration showing the document to another administrative functionary.  It is a very different context.  The only common feature is the showing of a document.

But, that is not what the principle is based on and, in my respectful submission, those cases simply have no application to section 21, especially where we know that there was a longstanding practice which was not prohibited by this Act.

GLEESON CJ:   Well, that may be the point.  It may be that you have got to understand section 21 against the background of what might or might not have been taken by the legislature to be a proper function of the Commissioner of Police.  It is like a statutory obligation to disclosure information to the Commissioner of Taxation.  You would understand that as producing the consequence that the Commissioner of Taxation could only use that for a purpose connected with the discharge of his functions.

MR BENNETT:   Yes, but one might take a different view of a government official being authorised to disclose information to another government official.

GLEESON CJ:   Well, it may be that the critical question in the present case as to the meaning of section 21 is whether you read it against the background of an understanding that one of the legitimate functions of the Chief Commissioner of Police is to vet jury panels.

MR BENNETT:   Precisely.  Well, that is the way we put it, your Honour.  That is one very strong additional argument in support of what I am putting about the section.  Can I put it in a more general way?  Let us assume that Parliament in 1922 or whenever these provisions first came in, had resolved that jury vetting shall henceforth not take place.  There were about three or four places in this Act where one could have said that.  There were various ways one could have done it.  One could have said in 21(2), “the Sheriff or the Commissioner of Police or any of their officers”.  One could have had an express prohibition of the type appearing in section 67 prohibiting anyone who - permitting any person to ascertain information or disclosing information in any documents.  One could simply say, “The Commissioner of Police shall not use the documents for any other purpose” but, instead, it is said that Parliament, seeking to override this longstanding practice, does it by hints and subtleties.

It does it because it anticipates the principle layed down in cases like Johns and says, “Oh, well, clearly when the Commissioner is given this function the court will say he is not allowed to use them for any other purpose” or that the courts will construe section 67 so that the words “have access to in the context of destruction of documents” is read to include “disclose the contents of”.  Is parliament really going to do it that way or is it going to tell us what it means, and in my respectful submission, it is extremely artificial to suggest that if Parliament had intended to do that it would have done it in the way which was done.

One also notes, of course, that one has Robinson’s Case and no reaction by the Parliament of Victoria.  One has no reaction to Mason’s Case although that, of course, is in England, not in Victoria. 

KIRBY J:   I think you are delving into fictions now.  Parliament does not sit there avidly watching everything the courts decide.

MR BENNETT:   No, it does not, your Honour.

KIRBY J:   It has lots of other things to do, things generally more interesting.

MR BENNETT:   Your Honour, the principle of jury vetting is something sufficiently well known that one would have thought that if Parliament’s view was, or if the view of the government, given time, was that the principle in Robinson or Mason was wrong and that the continuation of this practice since 1922 was contrary to some intention ‑ ‑ ‑

KIRBY J:   I take the force of your argument and I take the practicalities of jury vetting as it existed but the problem with this particular statute is that Parliament has attached so much importance to confidentiality in the hands of the sheriff up to a certain point and then, in your theory, it says, “We can just rely on the general powers and duties of the Police Commissioner” and even though that is not very aptly worded, that you then drive horse, cart and camel through the confidentiality which Parliament, at an earlier stage, has taken pains to protect.  This seems to me to be the problem in your theory of the Act.

MR BENNETT:   If one assumes, your Honour, that one of the most senior officers of the State of Victoria is going to act irresponsibly.  Your Honour, there is nothing surprising about ‑ ‑ ‑

GAUDRON J:   Well, they seem to have thought that the sheriff might.

MR BENNETT:   Well, the sheriff is not in the same level as the Chief Commissioner of Police.

CALLINAN J:   I am not too sure about that. 

McHUGH J:   I think history – the sheriff might take a different view about it.  The sheriff was historically just about the most important person.

KIRBY J:   And only the coroner.

MR BENNETT:   Of course he was, your Honour, or she was, but not today and not at the time and not really in this century.  With all respect to sheriffs around Australia, they are not government officials of the same level or degree of responsibility and importance as a Chief Commissioner of Police.  They are simply not.

KIRBY J:   But where do we draw the line now?

GUMMOW J:   One has a history in Victoria of Sir Thomas Blamey, does not one, in the 1930s, to deal with a very awkward situation that had arisen in that State.

KIRBY J:   These are not comments adverse to the Chief Commissioner incumbent or anything.  It is a matter of working out the scheme of the Act of Parliament.

MR BENNETT:   Yes, but what I am putting, your Honour, is that there is nothing surprising in Parliament taking a more generous view of the likelihood of irresponsible behaviour by the Chief Commissioner of Police than of the sheriff.

McHUGH J:   Yes, but I am not sure that really grapples with the question or that you have effectively distinguish Johns v ASC because the sheriff is obliged to keep the material confidential but the statute imposes an obligation upon him to produce the panel to the Commissioner so the Commissioner, like the ASC, receives the information as the result of a compulsory obligation imposed on the sheriff.

Now, in those circumstances, why should the Commissioner, having received the information as a result of the obligation imposed on the sheriff, then have the right to disseminate or use the information for whatever purpose he wants although the section makes it plain he gets it only for a particular purpose?

MR BENNETT:   Because, your Honour, there is a difference between providing a government official with a power to require a citizen to act to that citizen’s detriment by disclosing material, giving evidence, handing over documents, and a statute merely requiring one government functionary in the course of his duties to give a document to another.  To say there is an obligation on the sheriff to produce and there is an obligation on Mr Johns to produce to the ASC are simply not comparing like and like.  One is a real detriment imposed on a citizen by the law.  The other is someone simply handing a document to someone else as part of a government job.  The similarity is a verbal one only.

When one looks at the reason behind the rule in cases like Johns and the English cases, the reasoning is that here is a citizen subjected to compulsion of law, forced to divulge his or her innermost secrets to a government official and to hand over documents compulsorily and so on, of course the common law would imply in that situation some limitation on what can be done with them.

McHUGH J:   Does that apply to Marcel v Commissioner of Police?  Was not the information in Marcel obtained by telephone tapping?  So there was no information produced by obligation.  It was information obtained as the result of an exercise of power, was it not?

MR BENNETT:   But that demonstrates the point even more clearly, your Honour, because what that shows is that the principle is not based on the mere fact that a person discloses information; it is based on subjecting the citizen to a detriment.

GUMMOW J:   But the detriment here is a detriment to the judicial process which this Juries Act is trying to foster and protect by placing this cloak of confidentiality around the panel.  That is the detriment that is involved and that may even be a higher and more serious sort of detriment than the detriment to one individual because it is an institutional detriment.

MR BENNETT:   Your Honour, one then has to look at why the cloak of secrecy is imposed, and it is imposed to prevent corruption of jurors.  It is imposed to prevent people getting at jurors before the case and either bribing or threatening or perhaps even eliminating jurors who might be adverse.  That is the purpose of it.  That purpose is not violated by the Chief Commissioner making available either to the prosecution, or the defence, for that matter ‑ ‑ ‑

GUMMOW J:   That is not the question.  You have to say it can be put in the public domain.

MR BENNETT:   Well, putting it in the public – I do not say that, your Honour.

GUMMOW J:   You have to then assert all sorts of qualifications to it.  The answer is:  forget about the qualifications, let us just have a rule.  That is what 21(3) does.

MR BENNETT:   The legislature has taken the view, I would submit, that it is highly unlikely that the Chief Commissioner would put it in the public domain.  It has not troubled to prohibit it because it is not something likely to occur.

GUMMOW J:   The police engage in all sorts of activity, Mr Bennett.  There is a thing called the media walk we all know about.

MR BENNETT:   Of course they do, your Honour, but the legislature may trust them.  It may trust them more than your Honour does or than I do but the ‑ ‑ ‑

GUMMOW J:   It is not a question of whether I trust them or you trust them.  It is the question of the integrity of the judicial process that is involved here.

MR BENNETT:   But, your Honour, if that were so, the Act would have said so, but the Act imposes the confidentiality, we would submit, for the simple purpose of preventing jury tampering or interference of the various types I have referred to.  It is not imposed for the purpose of preventing either counsel ‑ ‑ ‑

GUMMOW J:   It puts things beyond temptation.

MR BENNETT:   Yes, but it is not imposed for the purpose of ensuring that the prosecution or the defence, but certainly the prosecution for present purposes ‑ ‑ ‑

GUMMOW J:   The Chief Commissioner does not perform these tasks; let us be realistic.  He does not sit there with every list that comes forward; it is done by his minions.

MR BENNETT:   That is a different aspect, your Honour.  Clearly “the Chief Commissioner” means him or his ‑ ‑ ‑

GUMMOW J:   You keep elevating the Chief Commissioner.

CALLINAN J:   And we have had some problems with Chief Commissioners where I come from, Mr Solicitor.

MR BENNETT:   Yes, I acted for him at one stage, your Honour.  Yes, that it true, but there is no reason to assume that the legislature was not prepared to trust the police force.  The fact that there may be all sorts of criticisms made of police forces from time to time and matters exposed does not answer the proposition that the legislature may have taken the view that the disclosure to the police is not what they are concerned about.  What they are concerned about is this information getting to someone who will in some way use it to threaten, bribe or otherwise corrupt the jury panel.  That is the reason for the secrecy.  It is not to prevent ‑ ‑ ‑

GUMMOW J:   I hear what you are saying, Mr Solicitor, but it is a quarter past eleven.

MR BENNETT:   I appreciate that.  But if I could just finish the submission.  It is not to prevent either side in the court using the information for the purpose of exercising a peremptory challenge, particularly as there may well be cases of a challenge for cause where that is eminently appropriate.

Now, continuing with my new submissions, the ones I have handed up today:  I have dealt with paragraphs (1) and (2).  The submission made in paragraphs (3) to (11) I will deal with more briefly, and that is that if there is a breach of the Juries Act, either of the implication in section 21 or of the words “provide access to” in section 67(b), then it does not automatically avoid but leaves it open for the proviso in section 568 of the Crimes Act to be applied in the normal way.  I have given your Honours section 568.  It is in familiar terms and your Honours see that:

The Court of Appeal on any such appeal….. shall allow the appeal –

and “if it is unreasonable” - - -

GAUDRON J:   Can I just interrupt you there.  Section 68(1)(c) – and maybe nothing turns on it – talks about laws with respect to the procedure for appeals.  Does the right of appeal come through section 79?

MR BENNETT:   I am sorry, your Honour.  Would your Honour just pardon me while I get the Act.

GAUDRON J:   Yes, “The laws of a State or Territory” ‑ ‑ ‑

MR BENNETT:   The Judiciary Act, your Honour?

GAUDRON J:   Yes, sorry, “respecting the” – I will read it:

the procedure for:…..

(d) the hearing and determination of appeals –

I am just wondering, does the right appeal come from section 79 of Judiciary Act and perhaps nothing turns but I ‑ ‑ ‑

GUMMOW J:   It is discussed to some extent in Peel v The Queen 125 CLR 447 which I think would support what her Honour is putting to you.

MR BENNETT:   Yes.  Uninstructed by any research on the question, it would seem that section 68(1)(d) would be the section which covers appeals because the laws of the State ‑ ‑ ‑

GAUDRON J:   It does not seem to cover the right of appeal.

MR BENNETT:   The appeal to this Court, of course, arises under ‑ ‑ ‑

GAUDRON J:   Yes, I am just wondering in terms of the application of the proviso which would come in through the state criminal appeal provision.

MR BENNETT:   Yes.  Well, your Honour, I think section 68(1)(d) would seem to have that effect, even with ‑ ‑ ‑

GAUDRON J:   It does not to me.  It does not seem to have that effect to me.  It seems that if anything has that effect it is section 79, because all section 68(1)(d) deals with is the law respecting the procedure for:

the hearing and determination of appeals –

and it does so ‑ ‑ ‑

MR BENNETT:   I see, yes.  It may be that “procedure”, certainly in relation to appeals, is used in a wider sense.  There is, of course ‑ ‑ ‑

GUMMOW J:   What Peel decided was that that section, when adapted to the Criminal Appeal Act, enables the Commonwealth Attorney-General to appeal.

MR BENNETT:   Yes.

GUMMOW J:   That is procedure, though.

GAUDRON J:   Yes.

MR BENNETT:   Yes, there may be an analogy to the Electric Light Case where one says if one confers jurisdiction on a court one accepts that court with all its procedures, including rights of appeal, so, one may get the same result through that case or through section 68, combined with Peel’s Case or it ‑ ‑ ‑

GUMMOW J:   I think it is something we should be clear about, Mr Solicitor.  We would need to know what the Commonwealth’s position, For myself.

MR BENNETT:   Would your Honour give me leave to make submissions in writing on that?

GUMMOW J:   It is not for me to give leave.

GLEESON CJ:   Yes, within seven days.

MR BENNETT:   Yes, your Honour, I will do that.  The submission which I am dealing with at the moment is the submission based on the other Johns Case and Maher’s Case which says that what has occurred is a nullity and that one cannot use the requirement in section 568 dealing with miscarriage of justice if a breach has occurred  That it is malum in se and there was no trial, and whichever word for “void” one uses, whichever synonym one uses, that is what has occurred.

GUMMOW J:   This comes down to your paragraph 10, does it not?  What you say comes down most clearly in your paragraph 10?

MR BENNETT:   Yes, your Honour.

GUMMOW J:   It is antecedent.

MR BENNETT:   It is antecedent, your Honour, and it is antecedent to the exercise of an election.  All it is doing is enabling an election to be made in a particular way.  That is very, very different from what occurred in any of the cases relied on by our learned friends.  Maher, of course, was a failure to swear the jury to try the ultimate indictment, and the phrase used is important:

A failure to comply with -

mandatory provisions governing:

the constitution and authority of the jury –

This antecedents provisions and the effect only arises through an exercise of an election.

Johns again – Johns is not quite as clear, and I have set out in paragraph 6 the different ways it was put by different members of the Court.  We give in paragraph 9 examples of how things which are unlawful may affect how a party uses it peremptory challenges.  The simplest example might be a solicitor in a country town for the defendant, who, in breach of legal professional privilege, discloses something to his present client about another client who is on the jury, and that is used to make the objection.  No one could suggest that that breach of duty in some way caused the trial to be an a nullity, or affected it, or suppose it is a police officer in breach of section 127A does the same thing for the prosecutor and wrongly, without authority of his superiors, discloses some matter, and I have given a more whimsical example, which perhaps is not such a good one, of an unlawful negligent driving by a government driver, which injures a potential juror and stops him coming to court.

The point is, the cases that talk about mandatory provisions governing the constitution and authority of the jury or the fundamental defect in the proceedings cannot go back to this far, and that is a submission we make in paragraph 10.  And we make another submission in paragraph 11, which emphasises that, and that is – it is a point made by your Honour the Chief Justice yesterday – that this is something which could have been done totally lawfully on any view of it.  Assuming unlawfulness against me, there would be nothing unlawful in the Chief Commissioner making available to a prosecuting counsel a CD Rom with the criminal convictions of everyone in Victoria on it, a laptop being in court and, as the juror’s name is called, the prosecutor, who has never heard the name before, there has been no disclosure to him of that, enters the name on the keyboard and makes his or her peremptory challenge before that juror is sworn.

Now that would achieve exactly the same result that is achieved here.  No one could suggest there is anything unlawful in that and, of course, there are many examples in this country of perfectly legitimate collection of information.  It is well known that in towns like Newcastle and Wollongong information was kept by regular defendants of jurors and what their verdicts were in civil cases so that they could be used for future objections; there is nothing surprising about that.  The solicitors in country towns are often experts on the selection of jurors, because of the number of people they know and because information can then be used.

KIRBY J:   It does not seem to be something to be encouraged, because it then is not an indifferent jury, which is the goal of our legal system.

MR BENNETT:   Your Honour, once one has peremptory challenges, it is very difficult to say that a person is not permitted to endeavour, by use of computers and other resources, to exercise them wisely.

GLEESON CJ:   Well we have not yet seen the development in this country of the profession of jury consultancy; it may not be far away.

MR BENNETT:   We have not.  If one reads John Grisham’s book, The Runaway Jury, one sees a very vivid description of that – perhaps an exaggerated description of the way that could operate in the United States.  But that is a system where both sides have access to the panel a long time before the trial and it is where juries are used in civil cases involving very large sums of money.  So, it is the confinement of jury trials to criminal cases, and the size of the panels we are concerned with here make that sort of jury vetting much harder.  But I will accept in the country towns and accept in relation to prior convictions, as to which it can be done with a simple computer.

We have said also in paragraph 11 that it could be done by asking the police to prepare a list like the one on page 39, not disclosing it to anyone but bringing it to court and then lealing forward as the names are called.  I appreciate that if your Honours are against me on section 21, that would not be a lawful alternative but if your Honours are with me on 21 and against me on 67, that is another way it could be done. 

Now, turning to my previous submissions about section 80, I can deal with this much more briefly. The starting point with section 80 is that illegality is irrelevant to section 80. Whether something is or is not a trial by jury within the meaning of section 80 does not depend on whether one complies or does not comply with the precise terms of a State statute or whether someone has done something unlawful under State law. It is concerned with broader principles. This Court has said in Cheatle – I will not take your Honours to the references, it has been referred to many times – that one has to construe section 80 as encompassing the essential features of trial by jury. We know here that the Crown has had the right to stand aside for hundreds and hundreds of years and standing aside, of course, has the same effect as a peremptory challenge unless one exhausts the panel. So, one can hardly suggest that the giving of the Crown a peremptory challenge is something not contemplated by the Constitution as a possibility or within the ‑ ‑ ‑

KIRBY J:   Is there any indication in Cheatle of how one finds those essential features, given that they do not include two features which were regarded as essential at Federation, namely, male and property ownership.

MR BENNETT:   Well, it was said in Cheatle that today those would be and the reason for that, of course, is the difference between denotation and connotation.

KIRBY J:   Really.

MR BENNETT:   What one says is the denotation of trail by jury is that it is selected from those people who are regarded as being the citizenry for relevant purposes.  In 1900 that was propertied white men, today it is all adults.

KIRBY J:   Logicians say that the justices who used this have mixed up which is denotation, which is connotation.  There is a lot of criticism of that supposed distinction.

MR BENNETT:   That is the only way one can reach the result in Cheatle which says one could not lawfully exclude women from juries today although in 1900 they were excluded. It is denotation and connotation. But what is more important about section 80 is this, that section 80 is not a general guarantee in its own right of some overall due process. One gets that most clearly from the fact that it refers to indictable offences and in the convention debates, and we have given your Honours the two pages, Mr Isaacs, on two occasions - your Honours need not go to it but it is page 352 of 31 January 98 and page 1895 of 4 March 98 – what he says in both those places is, and he is a supporter of section 80 and a supporter in its present form, he says, “Look, it does not matter because the Commonwealth can, if it wishes, say that murder is not an indictable offence”. It can completely control how far this applies by defining what is an indictable offence.

McHUGH J:   But what that not put as a criticism, not the language.  My recollection was that he did not think it went far enough, or am I wrong?

MR BENNETT:   Well, your Honour, no.  It is put in the context of saying in the overall context of the debate of resisting an amendment which would give the Commonwealth power to say there shall be no trial by jury in particular cases and in the context of resisting that he is saying we do not need to do that because they can do it anyhow through indictments.  Your Honours have the pages and, of course, the surrounding pages can be looked at.

GLEESON CJ:   Under the Victorian or any other legislation, is there an upper age limit on jurors?

MR BENNETT:   An upper age limit?  Not in the Victorian legislation, your Honour.  I do not know about the others.  It is not in the schedule to this Act.

GLEESON CJ:   Thank you.  I just wondered how it came about that you do not seem to see a lot of elderly people on jury panels.

MR BENNETT:   I think, yes - there were three schedules, your Honour, schedules 2, 3 and 4 which set out respectively persons disqualified, persons ineligible and persons entitled as of right to be excused and one of the people entitled to be excused is persons over the age of 65, so they are entitled, as of right, to be excused but if they elect to serve, if they do not make an application they can.

The schedules 2, 3 and 4 set out the three lists and that is interesting, too, because those lists again show that there is nothing absolute about saying everyone is going to be on it and they do not say you are on or you are off.  What they say is schedule 2 and schedule 3, “You are off”; schedule 2 because you are unfit and schedule 3 because you have got better things to do with your time, but schedule 4 then says, as to certain people they can be off if they want to or on, so again that is another interference with randomness which is permitted by the legislation.

I will not go through the balance of my submissions in any detail. The essential submission is whatever section 80 deals with it does not come down to this level of minutiae and the rationale of the constitutional guarantee which is discussed in Brown’s Case shows that trial by jury is not something that is just a right for the accused. It is not put there in section 80 just so the accused has this right to have a jury of his peers or her peers. It is put there also as a protection for the community and that is why in Brown’s Case, a State statute saying an accused could elect to have trial by judge was held by this Court to be invalid.

So one is looking at both purposes and I have dealt with the questions of general peremptory challenge.  We stress the point in paragraph 12 that providing the information to the defence would have been of marginal relevance to it and in that sense while, of course, there is a real matter of concern that has to be looked at in all these cases of the balance of prosecution and defence, the type of consideration your Honour Justice Kirby was putting to me, the equality unlike the European system, what one has to recognise here is that the category of information we are talking about is information which might be thought to prejudice a person against the Crown rather than against the accused – not necessarily in every case of course.

There might be exceptional cases where a reformed person who has been convicted is more righteous than the righteous.  There might well be a case like that of course, but as a matter of general perception we are dealing with a characteristic which is of concern to the Crown but not of concern to the accused except for the more limited purposes of not wasting his or her peremptory challenge and maybe if the Crown challenge ‑ ‑ ‑

KIRBY J:   No, the other side of the concern of the Crown, if there is one, is the concern that the accused may have to have a jury which includes people who have gone through a criminal process but are not disqualified.  I think - if you are saying the Crown is concerned to keep them off, we are not completely naive.  The reason the Crown wants to keep them off may be the reason why an accused wants to keep them on - people with minor criminal convictions, people with old criminal convictions, people who understand what the accused is going through and may feel some sympathy for the accused.  I mean, it stands to reason.  We must not be too other worldly here.

MR BENNETT:   If, your Honour, the Crown had no peremptory challenges or rights to stand aside, that would be a very powerful reason why my submission would have no weight but, once the Crown has a right of peremptory challenge and will exercise it, then it is irrelevant for the accused to know.  This case is the example we give because in this case it would have made absolutely no difference to my learned friend for the accused at the hearing if they had been told the information on page 39 because the Crown would make its decision and it would not affect their decision.

I have dealt with the right of fair trial in paragraphs 15 to 16.  That is really covered by the other arguments.  The final matter concerns the Judiciary Act and can I just say this – it is only one sentence really.  There is a misconception in the appellant’s submissions about the Judiciary Act.  Of course practices are not picked up by the Judiciary Act but the point about a practice is that if it is not unlawful, one may choose to do it.  For example, the State practice in relation to the listing of cases at 10 o’clock or 10.15:  the State is not bound to sit at the Commonwealth time when it does a Commonwealth offence, nor is the Commonwealth bound to have a court sit at the State time.  That is simply a matter that the court determines for itself.  It is not picked up by the Judiciary Act; it is simply that one can do either.  The same applies to practices about robing, subject to specific sections about that and where dealt with in one case and to any other practice a State court has which is not an unlawful practice.  It is not picked up but that does not mean it is not lawful to apply it.  There is a non

sequitur in the appellant’s submissions where it says on this subject at page ‑ ‑ ‑

GUMMOW J:   Page 12, is it?

MR BENNETT:   Yes.  The non sequitur is page 13, your Honour.  In paragraph 42 the appellant says:

The practice or procedure is not taken up by any other Commonwealth law so as to make it applicable –

and we accept that and we accept it is not picked up by the Judiciary Act.  And then in paragraph 43 there is a complete non sequitur:

Accordingly, the practice or procedure complained of was not permissible –

what is not expressly provided for is “not permissible”.  We would submit that once one realises that, those two pages are just completely misconceived.  They have nothing to do with the case.

GLEESON CJ:   Thank you, Mr Solicitor.

MR BENNETT:   I apologise for taking much longer than was originally estimated, but I gave the estimate before accepting the invitation given to me last night.

McHUGH J:   And before you were interrupted by questions from the Bench.

MR BENNETT:   Thank you.

GLEESON CJ:   Mr Solicitor for Western Australia.

MR MEADOWS:   May it please the Court.  On behalf the Attorneys‑General for Western Australia and South Australia we adopt and rely on the submissions of the respondent and the Attorneys-General for the State of Victoria and the Commonwealth.  We also rely on our written outline of submissions which has been lodged with the Court. 

At the outset, may I first mention that I have been asked by my learned friend, the Solicitor-General for Victoria, to provide to the Court the information which was sought by Justice Callinan yesterday relating to the Interpretation of Legislation Act 1984 of Victoria, which, in section 36(1), provides that the headings to parts of an Act form part of the Act. Your Honour Justice Callinan referred to that at page 110 of the transcript, and I understand that copies of the relevant provision have been provided to the Court.

Your Honours, while, as things have transpired, the outcome of this case may well turn on the construction of the Victorian legislation, our purpose in intervening in this case was to bring to the Court’s attention the different legislative regimes which applied in the States of South Australia and Western Australia and, indeed, across the Federation, and in particular in relation to jury vetting. So that when the Court comes to consider what might be the essential or fundamental features of a jury trial in terms of section 80, it can be seen that not only was jury vetting on the basis of police records of convictions and other bases a fact of life at the time of Federation – and this is pointed out by the respondents in their submissions at paragraph 10 – it is still widely practised today with legislative sanction in some jurisdictions in this country.

We have set out in our submissions the way in which juries are chosen in Western Australia and South Australia, and as can be seen from paragraphs 2(j) to (m) of our submissions, jury vetting does take place in Western Australia with legislative sanction.  There the jury panel is made available four days prior to the trial and the information regarding the convictions of the members of the jury panel which are not disqualifying are made available to the prosecution.

On the other hand, in South Australia, jury vetting does not occur in practice, and I refer the Court to paragraphs 3 to 5 of our submissions, although it would seem that it is not precluded.

GLEESON CJ:   Has South Australia got majority verdicts?

MR MEADOWS:   I understand so, your Honour, yes.

GLEESON CJ:   Has Western Australia got majority verdicts?

MR MEADOWS:   Yes, we do, your Honour, yes.

McHUGH J:   Yes, South Australia was the subject of the challenge in Cheatle.

MR MEADOWS:   Your Honour the Chief Justice mentioned what might be the position in other jurisdictions in Australia and what we have done is, we have prepared a booklet, which we have provided to the Court, in which we set out the practice which applies in other jurisdictions in Australia, other than those jurisdictions which have sought to intervene in this case.  The information which is in this booklet has been provided to us by the Office of the Director of Public Prosecutions in each of those jurisdictions and, in particular, we are referring to the Northern Territory, the Australian Capital Territory, Tasmania and Queensland.  In terms of jury vetting, in the Northern Territory any person with a criminal conviction is taken from the panel.  In the ACT it appears that the ‑ ‑ ‑

KIRBY J:   Yes, that means disqualified, and that is by the law of the Northern Territory.

MR MEADOWS:   It would appear so, your Honour.

KIRBY J:   Any conviction whatever and whenever.

MR MEADOWS:   Any criminal conviction is the information I have obtained.  Unfortunately, we do not have a copy of the relevant legislation, which I can provide to the Court at this moment, but I could undertake to obtain the relevant legislation from each of these jurisdictions, if it would be of assistance.  The information which I have has been provided to us, as I say, by the Office of the Director of Public Prosecutions.

GLEESON CJ:   And, would a parking offence be regarded as a criminal conviction?

MR MEADOWS:   I cannot answer that, your Honour. In the Australian Capital Territory, it appears that jury vetting does not take place and in Tasmania the procedure is very similar to that which applies in Western Australia, and in Queensland there is apparently no jury vetting at all. Regarding Queensland, it is pertinent to note that by section 35 of the Jury Act 1995 it is provided that “if a party to a criminal trial obtains information about a person summoned for jury service”, which suggests that that person is unsuitable for jury duty, “that party must disclose that information to the other party”. So far as I am aware, that provision is unique in Australia.

KIRBY J:   So the result of your inquiries is that there is no jury vetting in South Australia, the Australian Capital Territory or in Queensland?

MR MEADOWS:   Yes.

GLEESON CJ:   When was that Queensland provision about the obligation to disclose information introduced?

MR MEADOWS:   Well the Act is 1995, your Honour, so, unless it has been amended since then.  I am informed by my learned friend, Mr Grace, that it was following the Bjelke-Petersen Case.

CALLINAN J:   There was an inquiry by a criminal justice commission into allegations that a firm of solicitors had engaged inquiry agents to look into a jury and, I think, it was in consequence of that inquiry, as well as events following the Bjelke-Petersen trial, that that legislation was introduced.

MR MEADOWS:   I might say, your Honour, that certainly in the 1920s and 30s, at least according to my father, inquiry agents were used extensively in jury vetting.

CALLINAN J:   There was some evidence given in that inquiry by a former Director of Prosecutions in Queensland that it would be grossly negligent for a solicitor not to make discrete inquiries when a high profile person was on trial, provided the inquiries were made properly.

MR MEADOWS:   I do have a copy of the Jury Act 1995 and it would appear that that section 35 has not been amended at any time.

CALLINAN J:   You used to be able to get the list of jurors in Queensland as soon as a sittings began so that people who had a trial late in the sittings would not only have a list of the jurors but also would have compiled a form guide with respect to their acquittals on convictions by the time that the later trials came on.

MR MEADOWS:   There is one point in our submissions which we would wish to emphasise and that is what we have said at paragraph 12 of our submission, and this is consistent with some of the earlier exchanges between my learned friend, the Solicitor General for the Commonwealth, and the Bench, that the information about a person’s convictions is within the records of the executive arm of government, be it the police department or some other agency.  Once the names of the persons on the panel are known, it is open to the prosecution to obtain that information in order to make an informed challenge to the members of the jury panel.

GLEESON CJ:   It might depend on whether the person’s name is John Smith or Robert Meadows.

MR MEADOWS:   I hope that I do not have any record of conviction which would be relevant.  But there are many examples where this kind of information is made available between departments of government and I can think of – the most obvious example is that when the prosecution obtains that information for production to the court for sentencing purposes, and where, for example, in order to satisfy a public authority as to the fitness and propriety of a particular person who was seeking a licence of some sort.

Could I draw attention to what we say at paragraph 1.2.2 of our submissions where we set out in our submissions a passage from Blackstone’s Commentaries relating to the peremptory challenge where, in our submission, a compelling rationale is provided for that practice?  It also shows, we would say, that peremptory challenges were an accepted part of the jury system, at least in some jurisdictions, at the time of Federation.  Adverting to what my learned friend the Solicitor-General for the Commonwealth was saying, where in relation to stand asides there was no reason why they could not be made peremptorily as well, we would refer to what was said in the case of Mansell 120 ER 20 and to what was said at page 27.

Effectively, we would say that the peremptory challenge was there to be exercised where it may not be possible to show cause but there is no limit, we would suggest, on the circumstances in which a peremptory challenge can be made.  The appellant would have the prosecution challenge on an uninformed basis in relation to non-disqualifying convictions and we would suggest that implicit in that submission is that peremptory challenges would have to be exercised capriciously.  Rather than being able to base its challenge on information obtained from records, in effect, the prosecution would be left in the position where it was forced to resort to the discredited Lombrosian theory to ascertain whether or not a particular juror ought to be challenged and if one was to look around this courtroom, and I hasten to say not at the Bench, the Lombrosian theory would certainly disqualify certain people at the Bar table.

The only purpose which is served by jury vetting, in our submission, is to achieve a jury which is as far as possible indifferent to the cause.  I listened to the exchange between your Honour Justice Kirby and my learned friend the Solicitor‑General for the Commonwealth where you suggested that the juror might well be sympathetic to the accused because of their experience.  We would suggest that that juror, if that were the case, is not indifferent to the cause and that the Crown could be well entitled to challenge in those circumstances.

KIRBY J:   Yes, but it does warp the jury, you see, because you are not giving the accused a list of people of a highly religious persuasion.  You are giving one side information that warps the jury in its direction but not giving the other side, the accused, equivalent information which would adjust and give the level playing field which is the object of the law.

MR MEADOWS:   The object of the law is to achieve an indifferent jury or a jury indifferent to the cause.

KIRBY J:   Perhaps we have to go down the American way and interrogate jurors.  I mean, there have been some terrible cases, some of them reported

in the American Law Reviews, of acquittals of people in clear cases because of sheer prejudice.

MR MEADOWS:   I accept, your Honour, that ultimately you will never obtain a jury that is totally indifferent.  Nevertheless, by eliminating a juror from the panel who might be sympathetic for the reasons which your Honour advanced is not to obtain a juror on the panel who is indifferent to the cause.  We point out in paragraph 14 of our submissions that without the practice of jury vetting taking place, there is a risk of the inclusion on the jury panel of persons partial to the accused.  Certainly the risk of that happening would be increased.  We would make the point that that can hardly be in the interests of the good administration of justice.  If it please the Court.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases, we also adopt the submissions of the respondent and of the other interveners in relation to section 68 of the Judiciary Act and section 80 of the Constitution and also we rely on our written submissions which deal with both those points. Subject to one matter which is a brief reference to the American authorities, we do not propose to take the Court to further argument on those two questions.

There were two matters, however, raised yesterday by the Court in relation to New South Wales which perhaps I should deal with at the start.  Your Honour the Chief Justice said that I would explain how a jury trial was conducted in Broken Hill.  I am not sure how much I can explain of that, but can I say that the current situation in New South Wales is that there is no practice akin to that in Victoria of jury vetting.  It may be of course in some parts of New South Wales that the prosecutor has information about a juror simply from the observations given to him by persons in court who have some knowledge of that person, and that of course may be true on the accused’s side as well.  It could possibly be true in metropolitan Sydney but realistically it would be unlikely.

GUMMOW J:   So can we add New South Wales to South Australia and Queensland and the ACT?

MR SEXTON:   Yes, your Honour.  Even my learned friend Mr Bennett’s laptop would not really be of any assistance now in New South Wales because, as from, I think, late last year, jurors are now called by number and not by name in court, so that even those kinds of inquiries would not be practical.  Your Honour Justice Gaudron raised ‑ ‑ ‑

KIRBY J:   May I just ask on that, was there a system similar to Victoria that was abandoned by government decision or ‑ ‑ ‑

MR SEXTON:   Your Honour, under the existing legislation, which is the Jury Act 1977, there is a system whereby the Commissioner of Police and the Corrective Services Department, and other persons who might be prescribed, supply information to the sheriff, presumably for the purposes of disqualifications under the legislation, but ‑ ‑ ‑

KIRBY J:   It is left to statutory disqualifications.

MR SEXTON:   That is so, your Honour.  Prior to that, under the old legislation, going back to, I think, the last century, there was a system whereby justices convened and were able to strike people off the panel, in effect, by reason of a whole range of qualities or lack of qualities, including immoral character, I think, and bad reputation.

McHUGH J:   But, as a matter of practice, prior to the 1977 Act, the police compiled the jury list, did they not, in practice.  I can remember back in 1961 and 1962 a knock on the door from a police sergeant asking me whether I wanted to be on a jury and whether I wanted to go on the jury panel, and, I think, in New South Wales the police did – were they not responsible for ‑ ‑ ‑

MR SEXTON:   Your Honour, the earlier legislation is just silent, but it would be perhaps a reasonable assumption that the information that came to the justices in that exercise was supplied by the police; it is hard to imagine ‑ ‑ ‑

GLEESON CJ:   It is more than a reasonable assumption; there was a report of the New South Wales Law Reform Commission in 1986, entitled “A Jury in a Criminal Trial”, which dealt explicitly with the practice of jury vetting.

MR SEXTON:   Yes, and I think disapproved it, as I recall, your Honour, yes.

KIRBY J:   Well, can I ask you then, how does the Crown, in fact, exercise its challenge for cause?  I mean, there is still challenge for cause and there is the second of Blackstone’s explanations of peremptory challenge, not just instinctual, but for some good reason.  Now, if there is not a system of vetting, how is there a realistic opportunity for the Crown to exercise that challenge?

MR SEXTON:   Well, again, your Honour, it can only be done really by information that is available in court about a particular juror.

KIRBY J:   That will be just a fluke.

MR SEXTON:   Yes, your Honour, yes, that is right.  In effect, certainly from a prosecution side in New South Wales, there is normally no information about the jury at all.

KIRBY J:   So in Lord Denning’s words, in New South Wales and the other States, you just take the jury as it comes.  If they are disqualified they do not come; if they are not disqualified they come and they take their place by chance.

MR SEXTON:   Subject to ‑ ‑ ‑

GLEESON CJ:   Subject to the Broken Hill situation.

McHUGH J:   And the peremptory challenge.

MR SEXTON:   As your Honour says, and subject to challenges for cause or ‑ ‑ ‑

KIRBY J:   Which you have agreed with me, without jury vetting, is not really a realistic possibility, unless by chance.

MR SEXTON:   Well, there may be some scope, and there are the limited number of peremptory challenges under the legislation, which can be exercised again, perhaps for the same sorts of reasons.

GLEESON CJ:   One of the problems is that the expression “the anonymity of the jury” might express what is, in a central business district of Sydney, a practical reality, and what is, in a small country town, something that is a matter of complete chance.  It may be a desirable objective to aim for, if it is achievable, but if it creates the impression that all jurors are anonymous, then it is simply false.

MR SEXTON:   In metropolitan Sydney it is largely true, one would imagine, your Honour, but certainly ‑ ‑ ‑

KIRBY J:   Mr Grace told us yesterday that in Victoria, which is ever so much more decentralised than your State, the jurors, even from country towns, come from a wide circle and therefore that there is a positive attempt to reduce the risk of the people knowing who the jurors are.

MR SEXTON:   The Act talks about jury districts being based on electoral districts or parts of them, so it would depend on simply how those are drawn but his Honour the Chief Justice’s example of Broken Hill is presumably given because there is very little option if there is a trial in Broken Hill except to have jurors from Broken Hill.

GLEESON CJ:   I do not imagine they have jury panels made up of people who have to travel 500 or 600 miles to get there and the number of people who would live within a reasonable distance of Broken Hill would not be all that large.

MR SEXTON:   That is so, your Honour.  The second matter was that raised by her Honour Justice Gaudron concerning the question of spent convictions.  One of the two convictions in this case was a conviction in Sydney.  Victoria has no legislation, it seems, on this subject but New South Wales, as your Honour pointed out, has legislation which goes under the name, as your Honour is no doubt aware, of The Criminal Records Act 1991 which applies to convictions both from New South Wales and outside New South Wales so, in other words, within New South Wales it deals with convictions from all jurisdictions and puts them on an equal footing.

Whether or not it would apply – there are various situations in which, what is called, a spent conviction cannot any longer be taken into account.  Whether that would be so in relation to a jury vetting exercise is really a question of argument about the construction of that legislation.

GUMMOW J:   Well, then there is a full faith and credit question, is there not.

GAUDRON J:   Yes.

MR SEXTON:   I was saying, your Honour, perhaps before that it is a question of whether legislation itself even in New South Wales, would stop that taking place.  As your Honour says, if it does, then the question would be whether a Victorian court, for example, would give authority to that legislation in looking at the question in Victoria and I will not go into those vexed questions with your Honours.

KIRBY J:   Does it by its terms merely attach to the use of the information in the event that in New South Wales you are sentencing a person for a criminal offence or does it attach more generally?

MR SEXTON:   More generally, your Honour.

KIRBY J:   Well, I think we had better have a copy of the Act.  I suppose we can get it.  Criminal – which year?

MR SEXTON:   The Criminal Records Act 1991.

KIRBY J:   Yes, well if it is more generally, then the full faith and credit matter may well arise.

MR SEXTON:   It may well arise.

KIRBY J:   Because there does not seem to be anything in the Victorian system to take account of that fact.

MR SEXTON:   I will not take your Honours through the legislation in detail, but there is a real question on the construction of legislation as to whether it would affect the jury vetting situation which is a much more informal exercise than the kinds of things to which the Act is principally directed.

Now, your Honours, finally, in our submissions, your Honour Justice Kirby yesterday raised the question of the American position and the American authorities and there have been some references to it.  We have dealt with that in our submissions in some detail and I do not want to canvas all of those cases except to say that, as your Honour pointed out yesterday, the Sixth Amendment to the American Constitution gives the right to, I think, a speedy and public trial by an impartial jury.

And there were a number of cases that came before the United States Supreme Court in effect concerning the exercise of peremptory challenges, chiefly by the prosecution, designed, perhaps, to achieve a jury of a certain complexion or at least to leave some elements out of the jury.  In effect, all of those decisions really support the proposition that the peremptory challenge could be exercised, in effect, on almost any basis.  Later decisions, and I think your Honour yesterday referred to Batson v Kentucky which is the case where it was held that the Fourteenth Amendment precluded that in the cases of race, and there is a case which is referred to in our submissions, JEB v Alabama where that was extended to the question of gender, but subject to those two ‑ ‑ ‑

KIRBY J:   There is also sexual orientation has arisen in cases in California where there have been controversial verdicts in cases where homosexuals have been killed by juries which, it is alleged, were selected to exclude homosexuals and there is a Law Review article in Denver Law Review which deals with the issue - it is a recent article. But there they have the constitutional principle which has been spelt out in more detailed terms that section 80.

MR SEXTON:   Yes, your Honour, well, subject to those two matters, the cases are uniform on that question and they are perhaps best summarised and collected in Holland v Illinois (1989) 493 US 474 which in effect covers most of the earlier decisions, both ‑ ‑ ‑

GUMMOW J:   They also get caught up with wider ideas of due process, do they not?

MR SEXTON:   Due process is not an element in those particular decisions, your Honour.  It is in some of the others but not in the particular ones that we have extracted.

KIRBY J:   What, in your submission, is the lesson from the American authorities, if any, for our section 80 ‑ ‑ ‑

MR SEXTON:   From our point of view, your Honour, it is that in a sense the peremptory challenge is not a matter that is properly reviewable by the courts, that it is a matter very much in the discretion of the prosecution and of the defence, of course, and the earlier decisions even allowed it to be exercised on the basis of race and gender.

KIRBY J:   But race and gender are very obvious – …..obvious, but is there any discussion in the United States authorities of any system similar to the jury vetting that we have been told of in this case?

MR SEXTON:   Not that we were able to find, your Honour.  They were all essentially based upon the use of challenges in court – really based upon something observable about the ‑ ‑ ‑

KIRBY J:   It would be astonishing if in the United States there were not cases which had involved vetting of some kind by prosecution authorities on the basis of criminal record.

GLEESON CJ:   I thought we were told early this morning that in the United States the identities of peoples names on jury panels are made public a significant time before a hearing and are available to everybody.

MR SEXTON:   I think that is so, your Honour.  In other words, the question of convictions, for example, in the United States, it would seem from the cases, is not a matter that has to be supplied in the way that it is done in some jurisdictions in this country.  In other words, it is not the supply of the information that is in issue but the use of it.  One final point, your Honours, that we make in our submissions is that one would make an assumption, we would say, that a peremptory challenge exercised by a prosecutor who is acting for the State, or for the Crown, would be done on a rational basis in order to achieve an indifferent jury and that was a presumption that was recognised or accepted by the United States Supreme Court in the case of Swain v Alabama (1964) 380 US 202.

We have set out in those submissions, your Honours, the guidelines for New South Wales prosecutors which seem to us to reflect that

proposition and it is only one sentence or two sentences so I will simply read it to the Court:

The Crown right of challenge should only be exercised if there is reasonable cause for doing so.  It should never be exercised so as to attempt to select a jury that is not representative of the community, including as to age, sex, ethnic origin, religious belief, marital status or economic, cultural or social background.

So, that really completes, perhaps, the position in New South Wales, that although the legislation, of course, does not talk about any restrictions on the grounds it might be used for peremptory challenges, the Director of Public Prosecutions has given that instruction and one would assume that that was the basis on which they had been normally exercised, that is, there is a rational basis for the challenge in an attempt to achieve a jury that is impartial in the particular matter.  If the Court pleases.

GLEESON CJ:   Yes, thank you, Mr Solicitor.  Mr Grace?

MR GRACE:   If I could commence, your Honours, in reply in relation to the issue of the United States practice and there is a missing link in the explanation given to the Court to date as to that practice and the missing link is this:  that there is an extensive voir dire process that is employed in the United States prior to empanelment and in the voir dire process there is extensive cross-examination at times of potential jurors as to all manner and shape of things including prior convictions and other matters.  That may be the explanation as to why the issue of jury vetting has never been considered by the United States Supreme Court.  Because, not only are the names of the potential jurors on the panel a matter of public record, the question of prior convictions and whatever, are the subject of cross‑examination by both Crown and defence.

KIRBY J:   Not the Crown?

MR GRACE:   Well, of the Crown but by the State in defence.

KIRBY J:   It is true in Federal District Courts, United States District Courts?

MR GRACE:   Yes, as I understand the process, yes.

GUMMOW J:   Some of the United States cases turn on the Fourteenth Amendment, do they not, equal protection?

MR GRACE:   Yes, they do.  That is in relation to issues of ‑ ‑ ‑

GUMMOW J:   In Swain v Alabama in particular.

MR GRACE:   Yes, gender and race and so on.  Just in relation to that issue, could I highlight what is contained in the appeal book as to the information that was provided to the DPP in this case by the Chief Commissioner which includes issues concerning race, ethnic origin, nationality.  Could I refer specifically to page 43, where one will see, in relation to that prospective juror, that that person was a native of Australia, of Greek extraction with olive complexion.  Page 50 in relation to ‑ ‑ ‑

KIRBY J:   You probably would have got that from the name.

MR GRACE:   Perhaps.  Page 50, the person is described as being a native of Manchester, England and having fair complexion.  Page 51, a person described as a native of Calcutta, India, black hair, complexion dark.  Page 54 ‑ ‑ ‑

KIRBY J:   The “black” refers to the hair, not to any other skin colour?

MR GRACE:   No, it appears not.  Page 54, complexion dark, native of the Philippines; and page 58, native of Norfolk, England.  So those are examples of additional information being provided which are contained within police records.

KIRBY J:   Is your point that although there is no evidence in this case, the peremptory challenge was used for extraneous or irrelevant considerations such as excluding people on the basis of their race, that the provision of this information carries with it the risk that that might, in the hands of some prosecutors, occasionally be done.

MR GRACE:   Yes, exactly, your Honour.

KIRBY J:   That would be contrary to their directions from their directors.

MR GRACE:   Yes, but might form part of the formation of their subjective views as to whether such a person would be able to effect their duties impartially.

KIRBY J:   In case of race or gender, they would be able to do that anyway without this information.  They would just see the person come to the - - -

MR GRACE:   In terms of gender, certainly.  Race may be a more difficult matter to ascertain from time to time.

GLEESON CJ:   What would be the proper function of a trial judge if the trial judge actually observed that going on?  Suppose a presiding judge at a circuit sittings, with the same prosecutor appearing in case after case and the same judge presiding in case after case, believed that he or she observed the prosecutor exercising rights of peremptory challenge for improper purposes.  What would be the power or the function of the trial judge in that respect?

MR GRACE:   We would say that the trial judge has an inherent power to effect fairness in the course of the judicial process and this would give rise to a power to intervene to ensure that fairness prevailed.

CALLINAN J:   It would mean the judge would be participating in the selection process.

MR GRACE:   We submit that the judge ought to have the overall control of any processes that occur after arraignment.

CALLINAN J:   It is inescapable, is it not?  If he or she did that, he or she would be participating in the selection process.

KIRBY J:   The sanction may be the one that Judge Martin used in northern New South Wales that Justice McHugh referred to yesterday, and that is to say - to make a statement at the end of the trial to criticise what had happened.  That presumably led to the change of instructions to prosecutors that Mr Solicitor from New South Wales read us.

MR GRACE:   Yes, but it may not have saved the position of the accused person in that case who may have been convicted as a result of the unfair practice.

GLEESON CJ:   Would it have been a ground for an appeal against conviction?

MR GRACE:   We would submit yes.

GLEESON CJ:   You would have to say that, consistently with your argument in the present case, would you not?

MR GRACE:   Yes.  Could I just turn to the circumstances of this case in the jury selection and repeat the argument that I may not have emphasised with complete clarity yesterday, and that is this, that if one looks at the prime matters affecting the juror who was challenged by the Crown in this case, one will see that the Director’s policy was not, or arguably was not, observed.  It highlights the misuse that can be made of the information in a criminal trial.  I do not need to perhaps gainsay what was said by two members of the court in Mentink when applying Maher.  One could not say that it was not theoretically possible that if this potential juror was not challenged, the result of the trial would have been not different.  If that is theoretically possible, and was so held of course in Queensland in Mentink applying Maher, then equally so would it be possible in this case.

KIRBY J:   What do you say in answer to the statement from the Solicitor for Western Australia that just as it is the Crown’s duty to get somebody off who is partial, so the accused’s desire to keep somebody on who may not be
partial is an interference with the indifferent jury?

MR GRACE:   There is a greater issue at stake, and the greater issue at stake is that the accused, if convicted, must be satisfied that the jury that tried him, the jury of his peers, is one that has been impartially selected, one that has been randomly – as far as is possible under the Juries Act – and representative of the community of which he is a member.  So there is a greater issue at stake and if that satisfaction exists, then the convicted prisoner can have no cause for complaint.  So that if one reads Blackstone, and I think it is also contained in Holdsworth’s “History of English Law”, as to the rationale behind the peremptory challenge, one can understand why it arose in that way.  It was a protection of the accused, certainly, but also a protection for the community in general that there would not be aggrieved accused persons in gaol.

GUMMOW J:   What do you say about paragraph 10 of Mr Bennett’s written submissions this morning for the Commonwealth?

MR GRACE:   What we say is this, that the use of the information is not antecedent; it is part of the trial, it comes within the jurisdiction of the court in the exercise of judicial power, and that is the simple answer to what the Solicitor had to say.

Yesterday your Honour Justice Kirby raised the issue as to whether Hall’s Case had been argued in the Court of Appeal.  In fact I may have misled your Honour.  It indeed appears in the appeal book in the judgment of the Court of Appeal at page 95 at lines 11 to 14 where the court accepted:

that a fundamental defect in the selection of the jury may not vitiate a criminal trial –

and Hall’s Case was referred to.

The next matter I want to refer to is the matter raised by your Honour Justice Callinan yesterday concerning the privilege against self‑incrimination.  The relevant provision is section 29 of the Evidence Act of Victoria which provides that the privilege against self‑incrimination can only be exercised in respect of indictable matters.  I believe there was reference yesterday also to a provision of the Children and Young Persons Act by the Solicitor for Victoria; the relevant provision is section 274(3) which provides that after 10 years the ‑ ‑ ‑

GUMMOW J:   Yes, you gave us that section.

MR GRACE:   And that section in its operation may be contrasted with the provision of the information by the Chief Commissioner to the Director of the criminal history of that prospective juror, which is contained in the appeal book at page 42, where one will see that all the prior matters which resulted in findings of guilt were Children’s Court matters, the last one being in 1960.

In 1956 when the Government of Victoria changed the practice by which, previously, the police had been compiling jury lists and panels of jurors to the practice whereby the sheriff was to compile the panel, Mr Rylah, who was then the Attorney-General said this at page 2713 of the transcript of Parliamentary Debates of 2 May 1956 of Legislative Assembly:

This Bill proposes extensive amendments to the legislation relating to juries in Victoria.  The Government has approached the problem of jury reform with caution.  It firmly believes, as I am sure does every member of this House, that the jury system is one of the greatest bulwarks of democracy and liberty.  Accordingly, the proposals that I shall shortly outline have all been directed towards strengthening the jury system, particularly with a view to seeing that the jury rolls for every jury district shall each year contain the names of a fair cross section of the community.  In the opinion of the Government, the ideal jury panel is one that contains a sample of men and women from all stations of life and from all localities within the jury district.  To achieve this ideal is perhaps not completely possible, but I am confident that the proposals contained in the Bill will go a long way towards achieving this aim.

Now, the proposals in the Bill which was ultimately passed included the provisions that in part are replicated in the current legislation and those provisions contain within them the theme of confidentiality and the theme of restricting information.

KIRBY J:   They also contain the theme and the provision for challenge for cause.  Is not the essential weakness in your argument that the Crown has a challenge for cause but it really will be a fluke if it can ever use it effectively because though the information is there, though it is in the possession of the Chief Commissioner, though it can readily be made available and, on one view, is for the protection of an indifferent jury, it cannot be used to allow the Crown to challenge for cause in a case where cause can be shown.

MR GRACE:    That is unduly restricting, with respect, the bases for challenges for cause.  There may be a variety of reasons for challenging for cause.  There may be a simple incident of a member of the jury panel turning around to an accused person and winking or waving at that person as that person stands in the dock.  The prosecutor sees that and thereby challenges for cause.

KIRBY J:   Well, that is going to be very rare.  It does happen but it will be very rare whereas criminal convictions of a serious and recent kind are not so rare.

MR GRACE:    The exercise of the power to challenge for cause is very rare indeed and was very rare indeed prior to the amendments to the Juries Act in Victoria in 1993.  Indeed, the members of the court in both Mason in the English Court of Appeal in 1980 and in Brownlow in the same year remarked on the lack of exercise of the power to challenge for cause in recent memory in English courts.

GLEESON CJ:   Why do you challenge for cause if you have a right of peremptory challenge?

MR GRACE:    Well, exactly, your Honour.  Now there would appear to be no reason to challenge for cause in those circumstances.  However, if one builds into the process the Director’s policies then one can see that the basis for the Director’s peremptory challenge, at least in Victoria, appears to be based upon the same foundation that a challenge for cause would be based.

KIRBY J:   Well, this is not something here.  Blackstone mentioned that as his second reason for peremptory challenge.

MR GRACE:   Yes.

KIRBY J:   So, it is hundreds of years old.

MR GRACE:   That is true, your Honour, but the distinction is still there.

KIRBY J:   It is just that you would cripple the prosecution from having the data, which is readily available, upon which for serious and recent non‑disqualifying convictions to exercise a challenge for cause or a peremptory challenge for a reason.

MR GRACE:   Well, we do not concede that it cripples the prosecution.  We say that there is ‑ ‑ ‑

KIRBY J:   It may be what the Act requires but it does not seem entirely rational.

MR GRACE:   Well, we submit that it is consistent with the principles upon which the Act was passed, as Mr Rylah indicated in Parliament in 1956 and consistent with the type of approach that Lord Denning gave to the matter in Brownlow.

McHUGH J:   But if you do not have some form of jury vetting, it is inevitable that there will be a demand for majority verdicts.  That is the way England dealt with the problem.

MR GRACE:   Well, in England there is no right of peremptory challenge, now, any way.  It has not caused a revision back to unanimous verdicts.  In Victoria there are unanimous verdicts.  In most jurisdictions of Australia there are unanimous verdicts or majority verdicts in State matters, unanimous, of course, in Commonwealth, but in four of the jurisdictions that have been mentioned this morning where there are majority verdicts, there is no jury vetting.  But, what came first ‑ ‑ ‑

McHUGH J:   Do you object to the Crown making use of any information it has to stand aside jurors on the ground of, for example, non‑disqualifying convictions or association with criminals?

MR GRACE:   Yes, we do.

McHUGH J:   You do?

MR GRACE:   We do object to that.

McHUGH J:   So, if Mr Big comes on to a jury panel, who has not been convicted for 25 years, the prosecutor cannot –it is an improper use of the power to stand him aside?

MR GRACE:   It depends how the information is obtained.  If the information is obtained just through general knowledge through reading the press ‑ ‑ ‑

McHUGH J:   What if the detective in charge of the case says to the Crown Prosecutor, “That is so and so.  He is behind all the drug rackets”?

GAUDRON J:   We would submit that in those circumstances ‑ ‑ ‑

McHUGH J:   Is the Crown going to leave him on?

MR GRACE:   In those circumstances, the information should also be conveyed to the defence if that is ‑ ‑ ‑

McHUGH J:   How is it going to help the defence?

MR GRACE:   Well, the defence may want to exclude that person, also.

KIRBY J:   But, if the Crown does it for them they have not lost a peremptory challenge.

MR GRACE:   That is so but the Crown may, for a particular reason, want a person who is on the jury who may for a particular – may be being investigated but may be assisting the authorities as an informer.

McHUGH J:   But this all unreal.  I mean, the defence side of the record will not be handing over their information.  If the defence side is in possession of information that some juror is likely to be partial to them, they will not be striking them off and they will not be giving that information to the prosecution and anybody who has ever conducted a trial outside of a metropolitan area, a criminal trial, knows that only too well.

MR GRACE:    The bases for challenge are different ‑ ‑ ‑

McHUGH J:   There is Jim on the jury, he acquitted in that receiving case a couple of years ago, let us leave him on, do not challenge him.  Solicitors have been doing it for decades.

MR GRACE:    Well, that is a matter of practical reality, your Honour, but the issue here is whether one party should be placed in an advantageous position which is not warranted by legislation, which allows it to mould the jury to that different to what the legislation intended.

McHUGH J:   The point I am putting to you, Mr Grace, is what is good for the goose is good for the gander.  If the defence can use whatever information it can gather, surely the Crown is entitled to exercise its peremptory challenges – they are peremptory challenges.  Once they exhaust those peremptory challenges, then they have to move into the area of challenge for cause.

MR GRACE:    Well, if that was the intention of the legislature, they would have passed provisions that would allow that to occur.  It works both ways as your Honour says, there is no warrant for the reverse to occur in relation to the Crown’s receipt of information and it may well be that there is an obligation on the part of an accused person to convey any information that he or she may have in relation to a potential juror.  Indeed, in one of the United States authorities there is mention of a debarment of a practitioner who failed to convey information about a member on the panel who he had some knowledge of, or was a friend of, or had some relationship with, and allowed that person to sit on the panel during the course of a case.

So, there may be some professional obligation depending on what the character of the information that the accused person holds, either personally or through his counsel, presumably through the counsel, that would form the basis of conveying the information to the prosecution.

KIRBY J:   Is there any relevance to your case of the fact that we have been told that in four jurisdictions of Australia there is no vetting, in others there is, and that this is a federal offence and that, therefore, a different practice is being observed in different parts of the country?

MR GRACE:    Well, that, perhaps, gets to the issue of the exercise of judicial power of the Commonwealth in Chapter III courts and how the power should be exercised consistent with the notion of equal justice which has been recognised, of course, in various criminal cases such as Lowe and, particularly, the judgment of Justice Mason as he then was in that disparity in sentencing case, but I will come to that shortly. 

If I could just briefly reply to some of the arguments concerning the Juries Act interpretation principally raised by the Solicitor for the Commonwealth, we submit that the principles of statutory interpretation, including the principles enunciated in Johns v ASC, make it clear that section 21(3) cannot be interpreted in the way contended for by the respondent and the interveners.

There is simply no legislative warrant for the practice and as a result it cannot be picked up by section 68 of the Judiciary Act.  Further, we say that a necessary implication of the operation of section 34(1B) of the Juries Act must be that the information from which the Crown exercises its right of peremptory challenge is not obtained as a result of a breach of the Act, and I think your Honour Justice McHugh raised that issue yesterday.  The breach could be by breach of section 21(3) or by breach of section 67(B) or otherwise.  But, in relation to section 67(b), we say that it must apply to any copies made of the information.  Section 21(1) requires the sheriff to make copies of the panel.

Section 21(2) is a prohibition on disclosure by the sheriff, so that section 67(b), which is suggested to cover the field, is not replicated by section 21(2).  The Solicitor for the Commonwealth this morning made the point, well, if section 67(b) is to be interpreted in the way contended for by the appellant, then there is no room for the operation of section 21(2).  Well, in fact there is, because section 21(2) is restricted to the sheriff and section 67(b) applies to anyone.

In relation to section 80, we say that part of the essential requirements of a trial by jury under section 80, is that the jury be randomly selected, be representative and determine its verdict impartially. The juries legislation of Victoria, and other jurisdictions, admit of qualifications which affect the application of the principles of representativeness and randomness, but not of impartiality. It is not submitted that those legislative provisions or qualifications render those parts of the juries legislation in the various jurisdictions as being unconstitutional, but the practice in this case, which further qualifies the application of principles of randomness and representativeness, and therefore, to adopt the reasoning of Justice Gonthier in Biddle, adversely affects the application of the principle of impartiality, or at least the appearance of impartiality, does infringe the right to trial by jury under section 80 of the Constitution.

In relation to the issue of judicial power of the Commonwealth, we submit that it is a requirement of the exercise of judicial power by Chapter III courts that such power be exercised fairly and in accordance with the notion of equal justice.  The practice whereby the Crown is armed with inside intelligence, to be used in the process of jury selection after arraignment, is unfair and appears to be unfair and it affects the balance between the Crown and the accused, and so was held, of course, by Justice Vincent in In the Trial of D.

That practice offends the notion of equal justice which, as I said before, was identified by Justice Mason in Lowe’s Case and has been held to be the essential requirement for the administration of criminal justice.  And reference in this regard may also be made to what your Honour Justice Gaudron said in Nicholas at paragraph 74 where your Honour said:

In my view, consistency ‑ ‑ ‑

GAUDRON J:   I think I was sitting in the minority.

MR GRACE:   In Nicholas, your Honour?

McHUGH J:   I think she was in the majority and Justice Kirby and I were in the minority.

MR GRACE:   You were in the majority, your Honour.

GAUDRON J:   Thank you.

MR GRACE:   Paragraph 74:

In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law.  It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.

Could I also refer to the comments made by your Honour Justice Kirby at paragraph 201 on page 375 of the Australia Law Reports version of that report. 

Finally, could I just take up the issue of the hypothetical examples given by the Solicitor as to what would happen if the Police Commissioner or an officer was present in court with a laptop computer and was able to punch in the names as the names were called.  We say that that practice would be unfair and appears to be unfair because it creates an imbalance and the appearance of imbalance of knowledge between the Crown and the accused in the exercise of the right of challenge.  Furthermore, it is not what occurred in this case.  And it is no answer where there has been a breach of the law or the adoption of a practice which is not authorised by the law to say that the same result could have been achieved through a different way which did not involve breaking the law or not acting in accordance with the law.

The final point concerns the right of appeal under the Judiciary Act, and could I refer your Honours to section 68(2), and that may provide the answer as to the right of appeal that your Honours inquired of earlier.  Those are the matters in reply.

GLEESON CJ:   Yes, thank you, Mr Grace.  We will reserve our decision in this matter and we will adjourn until 2 pm.

AT 12.37 PM THE MATTER WAS ADJOURNED