Mark Pollock v The Queen
[2020] VSCA 218
•1 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0076
| MARK POLLOCK | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2020 0090
| JAKE RODNEY CAMERON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF ORDERS: | 31 July 2020 |
| DATE OF JUDGMENT: | 1 September 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 218 |
| JUDGMENT APPEALED FROM: | [2020] VCC 263 (Judge Carmody); [2020] VCC 286 (Judge Carmody) |
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CRIMINAL LAW – Appeal – Conviction – Jury empanelment – Irregularities – Jury empanelled and sworn – Accused placed in charge of jury – Juror then discharged and replacement juror empanelled – Whether trial judge had power to empanel replacement juror – Crown concession – Jury unlawfully constituted – Fundamental defect – Trial a nullity – Appeals allowed – Convictions quashed – Retrial ordered – R v Panozzo (2003) 8 VR 548; [2003] VSCA 184 applied – Juries Act 2000 pt 6.
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| REPRESENTATION: | Counsel | Solicitors |
For the Applicant Pollock | Ms G Connelly | Valos Black and Associates |
| For the Applicant Cameron | Mr P J Smallwood with Mr T J Bourbon | Kylie Moloney Legal |
| For the Respondent | Mr D A Glynn | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
PRIEST JA
WEINBERG JA:
Summary
The applicants, Mark Pollock and Jake Cameron, were charged with aggravated burglary, intentionally causing serious injury in circumstances of gross violence and recklessly causing serious injury in circumstances of gross violence. Each pleaded not guilty. Their trials were conducted together before a jury.
On 15 November 2019, the jury found Pollock guilty of aggravated burglary and intentionally causing serious injury in circumstances of gross violence.[1] On the same day, the jury found Cameron guilty of aggravated burglary and intentionally causing serious injury.[2]
[1]DPP v Pollock [2020] VCC 263, [1]–[3].
[2]DPP v Cameron [2020] VCC 286, [1]–[3].
The applicants sought leave to appeal their convictions on the basis that the jury was not lawfully constituted. They contended that their convictions should therefore be quashed and a re-trial ordered. The respondent conceded in the written case that the jury was not empanelled according to law, that this amounted to a fundamental defect in the trial and that, as a result, it was necessary that the convictions be quashed and a new trial ordered.
We concluded that the concession was correctly made and that no oral argument was required. On 31 July 2020, we made orders granting leave to appeal, allowing the appeals, quashing the applicants’ convictions and ordering a re-trial. These are the reasons for those orders.
The empanelment of the jury
On 24 October 2019 the applicants were arraigned in the presence of a jury panel. Both entered pleas of not guilty.
The judge informed the members of the jury panel that they could ask to be excused from sitting on the jury in the trial. Excuses were then taken from 16 jury panel members. All were excused.
The names of potential jurors were then called. Each applicant made two peremptory challenges. No challenges for cause were made by either applicant. A jury of 12 was empanelled and the applicants were declared to be in the charge of the court so constituted. The jury were then sent out to select a foreperson, and the balance of the jury panel was discharged.
Subsequently, one of the jurors (‘AB’) sought to be excused. All counsel agreed that the juror should be discharged, and another juror selected in his place. The judge discharged AB from the jury. The jury panel was then brought back into court, the empanelment process was reopened, and a new juror empanelled to replace AB.
The judge asked counsel whether they were satisfied that the jury had been properly empanelled and all counsel confirmed that they were. Nevertheless, the applicants now argue that a substantial miscarriage of justice occurred when the judge discharged AB and empanelled a replacement juror.
Their submission is that the judge, having discharged AB, had only two alternatives: either discharge the whole jury without verdict, or direct that the trial continue with a jury of 11 jurors. They submit that his Honour had no power to empanel the replacement juror in circumstances where the jury had already been empanelled, the applicants placed in the charge of that jury and the remaining members of the jury panel excused.
According to the applicants, the course taken had the effect that the jury was unlawfully constituted when it returned the verdicts on 15 November 2019. As already noted, the respondent accepts that this is the case.
Fundamental defect in the trial
There is no dispute that the original jury was empanelled according to law. This was complete once the 12 jurors had been selected following the process of challenges for cause and peremptory challenges.[3]
[3]Juries Act 2000 s 36(2).
Once the jury was empanelled, the judge had the power to discharge a juror under s 43 of the Juries Act 2000, which provides:
A judge may, during a trial, discharge a juror without discharging the whole jury if—
(a) it appears to the judge that the juror is not impartial; or
(b) the juror becomes incapable of continuing to act as a juror; or
(c) the juror becomes ill; or
(d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
As the respondent concedes, however, having discharged AB the judge had no power to add the replacement juror to the existing jury. That proposition was authoritatively established by the decision of this Court in R v Panozzo (‘Panozzo’),[4] on which all parties rely.
[4](2003) 8 VR 548; [2003] VSCA 184.
The circumstances of that case were not materially different from those in the present case. There, after the jury had been empanelled and sworn, the judge sought to excuse one juror and to empanel a replacement juror. This course was taken with the concurrence of defence counsel, but over the prosecutor’s objection.
In holding that the jury had not been properly empanelled, Vincent JA (with whom Buchanan JA and Harper AJA agreed) stated:[5]
The judge had the power, if he considered that it was appropriate to do so, to discharge the juror from service in the trial pursuant to s 43. In that event, he could direct that it continue with the remaining jurors or discharge the jury
and then empanel another. There is no warrant directly given by the section for the replacement of the discharged juror with another juror, nor can any be implied.
[5]Ibid 553 [22] (emphasis added) (citations omitted).
As the present applicants correctly submit, once AB had been discharged, only two courses were open to his Honour: discharge the whole jury without verdict, or direct that the trial continue with a jury of 11 jurors, pursuant to s 44 of the Juries Act 2000.
As the respondent properly concedes, the empanelment of the replacement juror created a fundamental defect in the trial, as a result of which the jury which delivered the verdicts was not constituted according to law. The trial of each applicant was therefore a nullity.
As Vincent JA said in Panozzo:[6]
… it is not appropriate to inquire as to whether an irregularity that resulted in an unlawfully constituted jury may have occasioned some other miscarriage of justice, as the defect is considered by the law to be of so fundamental a character that the trial is viewed as a nullity. The High Court in Wilde v R considered the position where an irregularity has occurred which is such a departure from the essential requirements of the law that it went to the root of the proceedings and held that:
If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.
[6]Ibid 556 [29] (citations omitted).
This conclusion is not affected by all trial counsel having accepted during the trial that the jury had been properly empanelled. A fundamental irregularity cannot be waived, as Vincent JA explained in Panozzo:[7]
[7]Ibid 555 [27] (citations omitted).
Accused persons who are presented before a jury are not only entitled to have their cases considered by a lawfully constituted tribunal, but are required to subject themselves to that process. As not only the interests of the particular accused are involved but also those of the general community in ensuring that criminal trials are properly conducted according to law, it is not for the accused to decide whether or not to accept an invalidly constituted tribunal. The Court of Criminal Appeal addressed this possibility in R v Hall stating:
... an irregularity which relates to the constitution of the jury cannot be waived. The defect went to the validity or the constitution of the jury as a body authorized by the Act to try the issues between the Crown and the applicant. … The applicant could not, in our view, effectively consent to be tried by a body unauthorized by law, nor could his consent confer upon the jury the constituent element it lacked.
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