Papas v The Queen - [2002] WASCA 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PAPAS -v- THE QUEEN [2002] WASCA 252

CORAM: PARKER J
HASLUCK J
FITZGERALD AJ

HEARD: 20 AUGUST 2002

DELIVERED : 6 SEPTEMBER 2002

FILE NO/S: CCA 55 of 2000

BETWEEN: ANASTASIS DARCY PAPAS
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Juries - Mode of empanelling and swearing in jury where reserve jurors are to be sworn - Presiding Judge foreshadowed intention to have 12 jurors sworn - Peremptory challenges used up by defence counsel in the course of 12 jurors being sworn - 4 reserve jurors then sworn - Application to discharge the jury refused - Whether appellant denied a trial by a jury that had been selected according to law - Whether certain steps in the process are left to the decision of the trial Judge - No miscarriage of justice demonstrated

Legislation:

Criminal Code

Juries Act 1957, s 18(2), s 18(3), s 18(4), s 18(5), s 18(7), s 32, s 35, s 36(1), s 36(4), s 38(1), s 38(3)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Ms J G Fordham
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Judith Fordham
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Cheatle v The Queen (1993) 177 CLR 541
R v Glennon (1994) 70 A Crim R 459
Ireland v The Queen; Easterday v The Queen; unreported; CCA SCt of WA; Library No 940233; 6 May 1994
Johns v The Queen (1979) 141 CLR 409
Newell v The Queen (1936) 55 CLR 707
Wilde v The Queen (1988) 164 CLR 365

PARKER J: I have had the advantage of reading in draft the reasons to be published by Fitzgerald AJ. I agree with those reasons and that the appeal should be dismissed.
HASLUCK J: I agree with the reasons for judgment of Fitzgerald AJ and with the proposed order that the appeal be dismissed. There is nothing I wish to add.
FITZGERALD AJ: On 23 March 2000, the appellant, Anastasis Darcy Papas, was convicted in the District Court of 66 offences of dishonesty after a trial that extended for a little more than seven weeks. He has appealed against his conviction on two grounds that are solely concerned with the selection of the jury that returned the guilty verdicts.
Section 32 of the Juries Act 1957 provides that the Court before which, or the Judge before whom, a jurors' panel is returnable may excuse any person whose name is included in the panel from attendance on a ground specified in the Third Schedule. The Judge who presided at the appellant's trial "stood aside" 10 members of the panel whom her Honour was prepared to excuse if they were not required. The appellant did not object to this course at the time and the 10 persons "stood aside" were excused after his jury was selected.
Section 35 of the Juries Act requires the names of the jurors on a jury panel to be put into a ballot box to be used in accordance with the provisions of Pt VI. Subsections 36(1) and (4) provide:
"(1) (a) On any criminal trial the proper officer shall in open court agitate the ballot‑box sufficiently to intermix the cards in the box, and shall then according to the practice of the Court proceed to draw cards one after another out of the box and call aloud the name on each card.
(b)Where a person whose name is called is present he or she shall indicate his or her presence.
(c)The proper officer shall continue thus until persons to the full number necessary to constitute a jury after excluding those who are challenged or excused, are present to serve as jurors at the trial.
…

(4)The full number so drawn and present on being duly sworn shall be the jury to try the issues on the trial."

Provision is made for reserve jurors in s 18 of the Juries Act. Subsections 18(3), (5) and (7) provide:
"(3) Reserve jurors —
(a)shall have the same qualifications;
(b)shall be called and empanelled in the same manner;
(c)shall be subject to the same challenges and liability to discharge;
(d)shall take the same oath; and
(e)shall have the same functions, powers, facilities, and privileges,
as jurors and for that purpose the law in respect of jurors shall apply to and in relation to reserve jurors with such modifications as are required by this section.
…
(5)Reserve jurors in the order in which they are called shall replace jurors, who, prior to the time the jury retires to consider its verdict, die or become incapable of, or disqualified from, or discharged from, performing their duties and section 646 of The Criminal Code does not apply prior to that time if there are sufficient reserve jurors to have a jury of 12 persons including replacements.
…
(7)Immediately before the jury retires to consider its verdict, a reserve juror who has not replaced a juror shall be discharged."
By subs 38(1), the appellant was entitled to challenge eight jurors peremptorily. The number of peremptory challenges was not increased because reserve jurors were called: subs 18(4). Subsection 38(3) provides:
"(3) A right to challenge a juror must be exercised before the officer of the Court who is administering the oath, has begun to recite the words of the oath to the juror or where the juror reads the words of the oath from a card before the juror begins to recite those words, but not afterwards."
Jurors are not sworn immediately after their names are called under subs 36(1)(a) and they indicate their presence under subs 36(1)(b). The process of swearing in the jury does not commence until at least 12 persons whose names have been called have indicated their presence. Those persons are then sworn in in the order in which their names were drawn from the ballot box until one of them is challenged in accordance with subs 38(3). If a right to challenge is duly exercised, the name of another person is drawn out of the ballot box and that person is immediately sworn in unless he or she is challenged. The process is then repeated in relation to the next person in the order in which names were originally drawn out of the ballot box. The process continues "until persons to the full number necessary to constitute a jury after excluding those who are challenged or excused, are present to serve as jurors at the trial": subs 36(1)(c).
After deciding, pursuant to s 18(2), that there should be four reserve jurors, her Honour decided to "select and swear in the 12 jurors first". The appellant did not object to that course at the time. The process of swearing in jurors commenced after 12 persons were called and indicated their presence. The appellant exercised all his challenges before 12 persons were sworn in. Four reserve jurors were then called and sworn in. The appellant could not challenge any of the reserve jurors.
After the jurors were sworn in, but prior to the prosecutor's opening address, counsel for the appellant raised a concern based on a misapprehension that also grounded the appellant's argument in this Court; namely, that if 16, not 12, persons had been called and indicated their presence before the process of swearing in jurors commenced, the four reserve jurors would have been among those 16 persons and would have been available for inspection before any challenges were exercised. Indeed, in later statements, counsel seems to have assumed that all potential jurors would have been available for inspection before any challenges were exercised if 16, not 12, persons had been called and indicated their presence before the process of swearing in the jury commenced.
When he first referred to the matter, counsel said:
"Your Honour, I am still thinking about this but I just really want to place on record my concern that the procedure adopted of choosing and swearing in the 12 jurors before then choosing and swearing the reserve jurors has effectively prevented me from challenging what could be the jury that decides this matter. It took me by surprise, and I may have suggested it, but had they all been chosen then I would have had the whole 16 people in which to think about and challenge them before they arose.
…
I raise it now just for the sake of completeness."
Subsequently, the appellant's counsel applied "to have the present jury discharged because it has not been empanelled according to law and there is an element of unfairness in certain aspects of it". His argument in support of that application contained the following statements:
"The colour of a person's hair is sufficient. In most cases my practice is to wait for the jury to be empanelled and then to survey it and make my challenges and in this case I used the eight challenges for good reason as I saw it.
…
The next four reserve jurors - two of them I would have challenged. I don't say which ones.
…
There were two jurors which I would definitely have challenged and I would have challenged those in preference to any of the other challenges I had made in the other eight. If the procedure which was followed in this trial is followed, the problem is that counsel has to decide how he will allot his eight challenges, or her challenges .. has to decide, 'Will I expend the eight on the 12 and take the risk that there will be no challengeable jurors in the four? Will I allocate six and two or four and four?'
Then if in fact there are to be no challenges of the reserves, his effective right to challenge has been reduced by that number of challenges. The way, with respect, it should be done is to empanel the 16 jurors. Counsel looks at them and then challenges, seeing the whole panel.
… they should all be empanelled and they should all be sworn at the same time.
… the entire panel should be viewed because one of the elements of a challenge can frequently be just their appearance.
… it is important that the panel be there and be viewed.
…
So that's the first part of the application. The rest is that there has been I think another irregularity.
…
The last thing any counsel would want is a disgruntled juror sitting on a jury because they have got other things to do and all that sort of thing. Your Honour stood aside some half dozen or more jurors and I can find no reference to any power in either the code or the Juries Act which allows a judge of her own volition to stand jurors aside.
…
The crown did not pray for any order to stand aside and I can find no reference to any power which gives a judge to do that, no matter how well‑intentioned and desirable it might have been as, indeed, it was in this case, but nevertheless the fact that they have gone, albeit stood aside, the end result effectively was that they were discharged.
… as far as the challenging process went they were not returned to the ballot box so they were out of reach as far as the defence was concerned. There was one juror on there who had qualifications which may have assisted the defence. He had indicated where he worked and what he did and that was in line with this and it may well have been that, while the crown was saying 'This is the procedure in this particular industry' that person may have known that there are departures from it and he may have assisted the defence.
Similarly it is said that we are entitled to a jury of our peers and I am not sure that we get that. There are very few people with tertiary education in any jury pool and I think at least two of the people who were stood aside had tertiary education and would have been far preferable from the defence's point of view to some of the other occupations which are indicated by the jury list.
…
What I am saying is, given that the whole business of challenging jurors is governed by the Juries Act and the code, there is no provision for a juror to be stood aside by a judge. If that's the case, then they should not have been stood aside.
… if you don't have the power in the act, then you can't stand aside without a prayer from the crown and you can only stand aside four. In this case there was no prayer and more than four were stood aside."
The appellant's application to discharge the jury was refused. All reserve jurors participated in the appellant's trial in accordance with subs 18(3) until one was excused. Two more were discharged when the jury retired to consider its verdicts. Prior to the jury retiring, the other reserve juror replaced one of the original 12 jurors and participated in the guilty verdicts.
Although the Court's inquiries elicited a little information, the appellant made no attempt to prove any disadvantage or to support his appeal by authority other than general statements that emphasise the fundamental importance of an accused's rights to trial by jury and to challenge potential jurors in accordance with the applicable legislation. The appellant's case is that there was a substantial miscarriage of justice because he was denied a trial by a jury that had been selected according to law.
The trial Judge's decision to "select and swear in the 12 jurors first" affected the order in which jurors were sworn in or challenged. Twelve persons, "A" to "L", were called and indicated their presence before the process of swearing in jurors commenced. The first four replacements, as challenges were duly exercised, were persons "M" to "P". If 16 persons had been called and indicated their presence before the swearing‑in process had commenced, the extra four persons would have been persons "M" to "P". None of the four reserve jurors, "W" to "Z", would have been among those 16 persons. None of persons "W" to "Z" would have been called and indicated his or her presence or been available for inspection until most of the jurors had been sworn in. Persons "W" to "Z" would not have been sworn in or challenged until immediately before persons "M" to "P", who would not have been sworn in or challenged until after 12 other persons had been sworn in. If, but only if, the appellant had not used all his challenges by the time persons "W" to "Z" had been called and indicated their presence and were to be sworn in, he could have challenged one or possibly more of them. Although the course adopted by the trial Judge might, theoretically, have affected the membership of the appellant's jury, there is nothing to indicate that it did so.
The appellant submitted that the course adopted by the trial Judge contravened s 18(3) of the Juries Act. However, s 18(3) relevantly provides only that reserve jurors shall be called and empanelled "in the same manner" as the jury of 12 persons required by s18(1) and "… for that purpose the law in respect of jurors shall apply to and in relation to reserve jurors with such modifications as are required by this section." Section 18(3) is not directed to the order in which, but the manner in which, jurors and reserve jurors are called and empanelled. The course adopted by the trial Judge affected the order in which persons on the jury panel were sworn in as jurors and reserve jurors but did not differentiate between the manner in which jurors and reserve jurors were called or empanelled.
There is no legal requirement, or uniform practice, that 12 or any other number of jurors must be called and indicate their presence before any juror is sworn in. Further, the law does not prescribe that, if a right to challenge one of a number of persons who have been called and indicated their presence is duly exercised, the name of another person must be drawn out of the ballot box and that person must be immediately sworn in unless he or she is challenged. A number of steps in the process of swearing in a jury, including any reserve jurors, are not the subject of specific prescription in the Juries Act or the Criminal Code but are left to the decision of the trial Judge or the practice of the Court. Different practices are adopted in relation to the issue raised in this appeal. The trial Judge's decision to "select and swear in the 12 jurors first" differs from the practice in this Court but is sometimes adopted in the District Court. No course meets all possible objections.
In summary, although the appellant might have preferred a different course so that he could have inspected more potential jurors before exercising his rights of challenge, he has failed to demonstrate that the trial Judge's decision to "select and swear in the 12 jurors first" denied him a fair trial according to law.
The appellant's other complaint can be disposed of briefly. If he had objected to the course the trial Judge adopted, her Honour could either have directed that the names of the persons she "stood aside" be added to the ballot box or excused them immediately instead of waiting to do so until the jury had been selected. Her Honour effectively excused those persons provisionally before the jury was called and sworn and formalised that decision after the jury was sworn in. The appellant acquiesced in that course. Any technical flaw in the course adopted had no effect on the appellant's trial.
The appeal should be dismissed.