Mark Pollock v The Queen - [2020] VSCA 218

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mark Pollock v The Queen

Details

AGLC: Content removed [2020] VSCA 218
Case: [2020] VSCA 218
Decision Date: 1 September 2020

CaseChat Overview and Summary

Mark Pollock appealed against his conviction, raising the issue of the jury's empanelment in the Supreme Court of Victoria. The respondent, The Queen, was the party that had originally prosecuted Pollock. The nature of the dispute was centred on the irregularities during the jury selection process, specifically whether a replacement juror could be empanelled after the jury had been sworn in and the accused placed in their charge. The Supreme Court of Victoria heard the appeal.

The legal issues that the court had to decide involved the authority of the trial judge to empanel a replacement juror after the jury had been sworn in and the accused placed in their charge. It was also necessary to determine if this irregularity constituted a fundamental defect that rendered the trial a nullity. The court examined the provisions of the Juries Act 2000 to ascertain the powers of the trial judge in this context.

The court found that the trial judge did not have the power to empanel a replacement juror under the circumstances presented, and the Crown conceded that the jury was unlawfully constituted. This was considered a fundamental defect that made the trial invalid. Following the decision in R v Panozzo, the court held that the irregularity was significant enough to nullify the trial and that the convictions were quashed. The court ordered a retrial for Pollock. This decision underscored the importance of strict adherence to the legal procedures governing jury selection to ensure the fairness and integrity of criminal trials in Australia.

Orders