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

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 Papas v The Queen

Details

AGLC: Papas v The Queen [2002] WASCA 252
Case: [2002] WASCA 252
Decision Date: 6 SEPTEMBER 2002

CaseChat Overview and Summary

In the case of Papas v The Queen, the appellant was convicted by a jury of various criminal offences. The central issue before the court was whether the appellant was denied a trial by a jury that had been selected according to law. The dispute arose from the process of empanelling and swearing in the jury, particularly the sequence in which jurors were sworn in and the use of peremptory challenges by the defence counsel. The presiding judge had foreshadowed the intention to swear in twelve jurors before any reserve jurors, but the defence counsel used their peremptory challenges in the process of selecting the twelve jurors, leaving them with no challenges remaining when four reserve jurors were subsequently sworn in. The appellant argued that this process denied him a trial by a jury selected according to law.

The legal issues before the court involved the interpretation of the relevant statutory provisions governing the selection and swearing in of jurors, and the extent to which certain steps in the process are left to the discretion of the trial judge. The court had to consider whether the process followed in this case was in accordance with the law, and whether the appellant's rights were thereby prejudiced. The defence argued that the appellant was denied a fair trial by the jury as selected according to law, while the Crown contended that the process was within the discretion of the trial judge and did not result in a miscarriage of justice.

The court determined that the process of empanelling and swearing in the jury, while not ideal, did not result in a miscarriage of justice or a denial of the appellant's right to a trial by a properly selected jury. The court held that certain steps in the process, including the sequence of swearing in jurors and the allocation of peremptory challenges, are within the discretion of the trial judge. The court found that the trial judge did not abuse this discretion and that the appellant was not prejudiced by the process followed. The application to discharge the jury was accordingly refused.

The court made no orders regarding the conviction and sentence of the appellant, as it found no basis to discharge the jury or to otherwise affect the outcome of the trial. The appeal was dismissed, and the conviction and sentence of the appellant were upheld.

Orders