R v Badenoch

[2001] VSC 409

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1473 of 2000

THE QUEEN

v.

FARREN BADENOCH

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JUDGE:	COLDREY, J
WHERE HELD:	MILDURA
DATE OF HEARING:	9 OCTOBER 2001
DATE OF RULING:	9 OCTOBER 2001
CASE MAY BE CITED AS:	R. v. BADENOCH
MEDIUM NEUTRAL CITATION:	[2001] VSC 409

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CATCHWORDS:      Ruling – Challenge to the array – Aboriginal accused – No Aboriginal jurors on panel – Principles enunciated by authorities discussed – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr. McDermott	Ms. McRickard Office of Public Prosecutions
For the Accused	Mr. O'Doherty	Mr. Drazetic Victoria Legal Aid

HIS HONOUR:

1. Prior to the selection of the jury in this matter, the accused made an objection to the jury panel on the basis that he could not observe any indigenous people as part of its number and therefore did not accept that it was a fair panel.

1. That objection, I think, might best be characterised as a challenge to the array. In the course of discussing the submission, I indicated that I doubted its validity as a matter of principle in that the jurors summonsed were all Australians, whether of indigenous or other decent.

1. Further, I made the observation that since this was not a cross-cultural killing, no prejudice was likely to be engendered by the composition of the panel.  Moreover there was nothing inherently Aboriginal in the killing or the circumstances surrounding it.

1. Quite apart from those general comments, the authorities on this matter are clear. 

1. The leading case is that of R v. Grant [1972] V.R.423. This was a ruling given by His Honour Justice McInerney. It is unnecessary to go into detail as to the facts of the case. It is sufficient to note that one of the accused was an Aboriginal person and both the accused were labourers by occupation.

1. The objection was that the jury (by then in fact empanelled), was not representative of the community or  upon which the accused had placed themselves for their trial. The basis of this assertion was essentially that the panel did not contain any Australian aboriginals or any persons following the occupation of labourer.

1. In any event, in rejecting the application, McInerney J observed that to establish a challenge to the array in a criminal trial, that is a challenge to the whole panel of persons summoned for jury service, some default of duty by the Sheriff in respect of the panel must be established. In coming to that conclusion His Honour was, in effect, confirming the earlier decision of  R v. Thomas [1958] V.R.97. That is not the situation in the present case.

1. In more recent times a similar application has been the subject of consideration (and like result),in the case of R v. Greer (1996) 84 A.C.R.482. There is also a discussion of this topic to be found in Fox: Victorian Criminal Procedure, the 2000 Edition, at pp.244 and 245.

1. Putting aside questions of the form of the challenge; (for example, the older authorities suggest it should be in writing;) the challenge must fail on the basis of the authorities I have cited.

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