R v Bunting & Wagner (No 9) No. Sccrm-01-205

R v BUNTING & WAGNER (NO 9)
[2003] SASC 257
Criminal: Reasons for Rulings

MARTIN J John Justin Bunting and Robert Joe Wagner are jointly charged with eleven counts of murder alleged to have been committed between December 1995 and May 1999. In addition, Bunting is charged with a further count of murder alleged to have been committed in 1992 with Mark Ray Haydon and Wagner is charged with Assisting Offenders in connection with that crime of murder. Haydon has been granted a separate trial with respect to that and to other charges of murder. The facts are set out in detail in R v Bunting and Others(No 3) [2003] SASC 251.
As the facts alleged by the Crown demonstrate, this matter is an exceptional case in a number of respects. Some of the allegations are horrific. It is likely that members of the jury will find some of the evidence distressing. The case has been attended by an exceptionally large amount of publicity and the intensity and quantity of publicity is likely to continue throughout the trial. The nature of the case and the publicity accompanying it have given rise to considerable speculation and rumour within the community. It is estimated that the jury will be engaged in the trial for approximately six months.
Against that background, the accused submitted that I should question all potential jurors either by written questionnaire or in person or by both means about a number of matters which the accused said were relevant to the ability and suitability of each potential juror to sit as a juror in the trial. I refused the application and I now set out my reasons.
The matters about which the accused contended each juror should be asked are conveniently set out in Bunting’s Rule 9 Notice filed for the purposes of the pre-trial applications. The relevant paragraphs of the notice are as follows:
“2. That the questionnaire or questioning include enquiries of each potential juror about:
(a)Whether he/she has a family member or friend who is or has been a member of the police force;
(b)Whether he/she, his/her spouse or member of his/her family has ever been the victim of violent assault;
(c)Whether he/she, his/her spouse or member of his/her family has ever been the victim of a sexual assault;
(d)Whether he/she has in the past or does now suffer from any psychological or psychiatric condition;
(e)Whether he/she holds strong views that are either favourable or unfavourable towards homosexuals;
(f)Whether he/she holds strong views that are either favourable or unfavourable about the punishment of paedophiles or people convicted of sexual offences against minors.
3.   That each potential juror be asked about his/her emotional state and his/her ability to endure a long trial (on the assumption that the potential jurors will be informed as to the best reasonable estimate for the trial that they will be undertaking).
4.   That each potential juror be asked whether he/she has formed any opinion as to the guilt or innocence of the accused men as a result of information obtained from any source and particularly any information obtained from television, radio, newspapers or any other electronic form of media. If so, that the Court be informed in brief about the opinions held by the potential juror and the source of any information leading to those opinions.
5.   That each potential juror be asked about his/her general physical health.
6.   That each potential juror be asked to identify whether he/she has any impairment that might affect the performance of his/her jury duty for the duration of this trial, hearing or sight impairment, back condition etc.
7.   That each potential juror disclose his/her level of education.
8.   That each potential juror disclose his/her level of literacy to determine whether the person has sufficient skills to cope with the amount of evidence likely to be presented during the trial.
9.   That each potential juror be asked such other questions as the Court considers appropriate in order to elicit the necessary information to enable the accused (and the Prosecution) to make informed decisions about challenges for cause and to make informed decisions about the use of the peremptory challenges.”
In essence, it was submitted that the extraordinary circumstances of the case justify the introduction of new methods of obtaining additional information from jurors. Counsel argued that the right to challenge a juror either for cause or by peremptory challenge is illusory unless the accused and their legal advisers have sufficient relevant information about the potential juror to facilitate an informed decision.
The Crown opposed the course suggested by the accused. In essence, the Crown argued that this trial should not be treated differently from other trials and that the circumstances attending the trial do not justify the exceptional course proposed. Reference was made to a number of problems associated with individual topics and concern expressed about privacy issues related to the circumstances of individual jurors.
Unlike the situation in Queensland where s 47 of the Jury Act 1995 (Qld) directs that a judge may in specified circumstances permit questioning of jurors, there is no provision in the South Australian Juries Act 1927 (“the Act”) which provides any assistance. Part 3 of the Act is directed to qualification to serve as a juror. Section 12 deals with disqualification and s 13 with ineligibility. If a person is medically or physically unfit to carry out the duties of a juror or has insufficient command of the English language to carry out those duties, that person is ineligible for jury service. Section 16 provides that a judge or the Sheriff may, on application by or on behalf of a person summonsed to render jury service but not serving on a jury in the course of a criminal trial, excuse the person from attendance or further attendance in compliance with the summons. The grounds upon which such a person may be excused include ill health, a matter of special urgency or importance or for any reasonable cause.
Section 20 of the Act directs the Sheriff to prepare an annual jury list before 31 December in each year. The names of the persons to be included in an annual jury list must be drawn from the names appearing on the rolls for electoral subdivisions in relevant jury districts. The annual jury list comes into force on 1 January next after the preparation of the list.
Pursuant to s 25 of the Act, at any time after the preparation of an annual jury list, the Sheriff may send to any person whose name appears on the list a questionnaire relating to matters contained in the Act. It is an offence for a person who receives the questionnaire not to respond in the absence of a reasonable excuse. In my view, however, the power in s 25 is not directed to the circumstances under consideration and the Sheriff has no power to issue a questionnaire of the type requested by the accused. In addition, even if the power of the Sheriff extended to issuing such a questionnaire, in my view it would be inappropriate for the Sheriff to exercise that power in the circumstances with which I am concerned.
The Act imposes a duty upon the Sheriff to summon such jurors as are necessary for the purposes of criminal trials commencing in each jury district in a particular month. Rule 6 of the Juries Rules 1996 provides that where a trial of an accused is to commence, the Sheriff shall ensure that a panel of not less than 20 potential jurors attends for the purpose of selection of the jury. If the trial is of more than one accused, the panel must be not less than 20 plus not less than three extra jurors in respect of each additional accused person. Section 42 directs that the Sheriff deliver to the Court a list containing the names of jurors on the jury panel for a particular trial. It is a matter for the Sheriff how a particular panel for a trial is selected from the total number of jurors summoned for the month. There is nothing in the Act or the rules governing the manner in which the Sheriff carries out that administrative function.
Until recently the Act required that a jury consist of 12 persons. In October 2000, s 6A was enacted to provide that if the Court thinks there are good reasons for doing so, the Court may order that up to an additional three jurors may be empanelled for a criminal trial. No alteration was made to the number of peremptory challenges available to each accused. That number remains at three: s 61. A peremptory challenge above three is void and the trial is to proceed as if no such challenge is made: s 63.
Section 66 provides that a juror may be challenged on the ground that the juror is ineligible to act or is disqualified from acting. The power to challenge for cause is retained and, where a juror is challenged for cause, if necessary the matter will be tried by the presiding judge: s 68.
Apart from the power in s 16 to excuse a person summonsed from compliance with the summons, the Act does not specifically empower a trial judge to exclude members of a panel from sitting on a particular trial. However, the existence of an inherent power to do so is well recognised: R v Gillen [1914] SALR 195; R v Rawcliffe [1977] 1 NSWLR 219; R v Searle [1993] 2 VR 367. As a matter of practice in this State, the power is regularly exercised at the commencement of a trial and before the names of individual jurors are drawn from the ballot box. It is a power that is exercised in the interests of the administration of justice with a view to ensuring that an accused receives a fair trial and that the verdict is based upon the evidence properly considered by an impartial jury. Judges regularly question jurors who seek to be excused concerning reasons advanced for being excused.
Bearing in mind the objects sought to be attained by the exercise of the inherent power, I am inclined to the view that it is not beyond the scope of that power to invite jurors to answer oral or written questions delivered by the Judge to each juror for the purposes of ascertaining information relevant to the exercise of the duties of jurors in a particular trial. Exceptional circumstances would be required to justify such a course. In practical terms, such questioning would not be far removed from the procedure of challenge for cause.
The special or exceptional nature of the circumstances required to justify a challenge for cause is illustrated by the facts and judgments in Murphy v The Queen (1989) 167 CLR 94. The appellants were charged with murder. There had been “extreme media publicity” concerning the killing, the hunt for the killer or killers, the arrest of the appellants and the committal proceedings. The first jury was discharged because of prejudicial publicity. The discharge was accompanied by publicity to the effect that the discharge occurred because of publication of the description of an appellant as an unemployed prison escapee of no fixed address. When the trial resumed a week later, the trial judge declined to adjourn the trial and refused to permit counsel to challenge jurors for cause.
In a joint judgment, Mason CJ and Toohey J referred to the decision of Lawton J in R v Kray (1969) 53 Cr App R 412 in which Lawton J permitted a challenge for cause by reason of publicity following the convictions for murder in March 1969 and before a further trial for murder in April 1969. Between the trials, newspapers had published discreditable allegations about those convicted which were publicised over a wide area. Lawton J concluded that there was “such a prima facie case of probability of prejudice” that the examination of jurors should be permitted. As Mason CJ and Toohey J noted, the trial judge “was at pains to stress that the combination of facts which had brought about the situation before him was wholly exceptional” (103).
After referring to the decision of the Queensland Court of Criminal Appeal in R v Stuart and Finch [1974] Qd R 297 in which the Court regarded the ruling in Kray as having turned on its own special facts, their Honours said (103 and 104):
“It is beyond question that some foundation must be laid before an application to challenge for cause will succeed. Ordinarily, this will take the form, at least initially, of an affidavit relating to the disposition of a particular juror or jurors. There may be cases where a reading by the trial judge of offending material, where it has been published in circumstances that justify an inference that members of the jury are likely to have read it and to have been influenced against the accused, will be enough to justify acceding to an application to question potential jurors. But they are exceptional cases. There is still a need to provide a sufficient foundation of fact to justify acceding to the application.” (my emphasis)
Mason CJ and Toohey J then observed that the media publicity in Murphy did not bind the trial judge to conclude “that there was such a prima facie case of probability of prejudice that counsel for the accused should be permitted to question potential jurors.” Their Honours concluded that it had not been shown that the trial judge erred in refusing to grant the adjournment and added (104):
“Indeed, we consider that his decision and the manner in which he implemented it by giving suitable directions to the jury were the appropriate steps to take in all the circumstances.”
Deane and Dawson JJ agreed with the judgment of Mason CJ and Toohey J in respect of the question of challenge for cause. Brennan J expressed reservations that a challenge for cause is an appropriate safeguard against the empanelling of biased jurors. His Honour noted that the procedure “may lead the jurors to think that the community’s confidence in their impartiality and sense of responsibility is heavily qualified” (123). He added that a juror who would not voluntarily seek to be excused because of bias would not readily confess to that bias under questioning if challenged for cause.
On the assumption that I have the power to adopt the course proposed by the accused, in my opinion it is not appropriate to do so. I share the concerns expressed by Brennan J. It is likely that, with considerable justification, jurors would regard some of the proposed questions as infringing on their rights to privacy. In my view the circumstances to which I referred do not justify the questioning of jurors in the manner suggested. Nor do they justify a challenge for cause directed to each juror.
The features attached to this case will require careful direction prior to empanelment. As a group, potential jurors will be invited to carefully consider a number of matters capable of impacting upon their capacity both to sit as impartial jurors and to give proper consideration to the evidence and their verdicts. Experience has demonstrated that jurors take their duties very seriously, including the duty to raise with the trial judge any reason why they should not sit on a particular trial.
For these reasons the application to question potential jurors was refused.

[2003] SASC 257

29 October 2003