R v Cavkic, Athanasi & Clarke

[2007] VSC 47

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.  1497 of 2002

THE QUEEN

v

SUDO CAVKIC, COSTAS ATHANASI AND JULIAN MICHAEL CLARKE

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 FEBRUARY 2007
DATE OF RULING:	19 FEBRUARY 2007
CASE MAY BE CITED AS:	R v CAVKIC, ATHANASI AND CLARKE
MEDIUM NEUTRAL CITATION:	[2007] VSC 47

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Ruling – Application of section 29(4A) of the Juries Act 2000 – Capacity of Juries Commissioner to make inquiries of jury pool members as to availability for long trials – Lack of power of Juries Commissioner (or jury pool supervisors) to adjudicate on excuses proferred by such pool members - Legislative intent of amendment not reflected clearly in provisions of the Act.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tovey QC with Ms G. Cannon	Angela Cannon, Solicitor for Public Prosecutions
For the First Accused	Mr C. Lovitt QC	Victoria Legal Aid
For the Second Accused	Mr L. Hartnett	Clarkson & Socio
For the Third Accused	Mr T. Danos	Vines Lawyers

HIS HONOUR:

1. In the course of obtaining a jury panel for this trial, members of the jury pool were informed by the Juries Commissioner (or a pool supervisor) that this trial could last eight weeks.  Those pool members who asserted that they could not make themselves available for that length of time were invited to seek to be excused.  The Juries Commissioner or a pool supervisor then heard the excuses proffered.  As a result, some pool members were excluded from any jury pool which might have formed the basis of the jury panel in this case, whilst some others were not.

1. Having announced to counsel that a "culling" process was occurring, concern was expressed by them and, as a result, the Juries Commissioner explained to the Court the nature of the process which was occurring.  Legal argument followed and, ultimately, I formed the view that the procedure adopted was not (or at least arguably not) in conformity with the provisions of the Juries Act 2000 (the Act), and that a new jury pool would be required.  I will briefly set out the reasons for this conclusion. 

1. At the outset, it will be appreciated that there is a distinction between a jury pool and a jury panel.  The pool is defined under s.3 of the Act as:

"… a group of persons attending for jury service that is constituted in accordance with section 29 and from which a panel may be constituted;"

Whilst the definition of panel is in these terms:

"… a group of persons attending for jury service that is selected or allocated in accordance with section 30 and from which a jury may be struck;"

1. The method of handling persons constituting a jury pool is set out in s.29 of the Act.  Essentially such persons are under the control of the pool supervisors being the Juries Commissioner, the Deputy Juries Commissioner, or persons appointed by the Juries Commissioner pursuant to s.3(2) of the Act. 

1. When a pool supervisor is notified by a Judge that a panel is required by the Court such supervisor must either select from a pool or pools, a sufficient number of persons to empanel a jury for that trial or, to allocate all of the pool for that purpose (see s.30 of the Act).

1. The manner of selection and the requirements to be taken into account are spelled out in regulation 9 of the Juries Regulations 2001.

1. The process of calling over a panel by the Judge's Associate, and the procedure for taking excuses, are set out in ss.31 and 32 of the Act. 

1. None of these provisions provides a legislative warrant for pool supervisors to question a pool member about his or her availability for a long trial and then rule upon the acceptability or otherwise of any reason given for unavailability.  However, in a recent amendment to the Act (which I am informed came into operation on 17 October 2006), the following sub-section was added to "s.29 Jury Pool" in these terms:

"(4A)The Juries Commissioner or a pool supervisor may enquire of persons called to a pool as to their availability for particular lengths of trials."

1. It was the argument of counsel that this provision did not provide justification for the hearing of, or the granting or refusing of, excuses.  If that be so, the question arises as to the purpose of the sub-section and its ambit of operation. 

1. Defence counsel submitted that, at its highest, the provision gave the pool supervisor a means of calculating the number of pool members required to be allocated to a jury panel for a long trial.  Depending on the number of pool members who claimed an incapacity to sit, the size of the pool from which empanelment is to occur may need to be augmented.

1. In my view, s.29(4A), read in conjunction with s.30, certainly goes that far. As the Explanatory Memorandum to the amending legislation (Justice Legislation (Further Amendment) Bill) makes clear, the purpose of the legislative amendment was to streamline the empanelment process.  Arguably, it could enable the pool supervisor to create a pool of persons who have indicated their capacity to serve on long trials, having culled them from those who have indicated an incapacity to do so.

1. The Crown expressed some disquiet that a process such as the one I have just enunciated would enable a potential juror to avoid service on a long trial as a result of his or her untested out of court assertion. No doubt it was to avoid this situation that the pool supervisors, in this case, decided to adjudicate upon the excuses advanced by pool members. However, it is my view that, whatever the amplitude one ascribes to s.29(4A), it does not, in its current terms, enable the pool supervisor to exercise power to excuse, or refuse to excuse, a pool member from being part of a pool from which a panel will ultimately be chosen.

1. One argument tentatively advanced was that this power resided in s.8 of the Act.  However, a reading of that section indicates that, in general terms, it is directed to excusing a potential juror from the whole or part of the "jury service period" (defined in s.3 of the Act as being the period for which the jury roll is prepared). 

1. In my opinion, the power to excuse a potential juror from participation in a particular trial by excluding such person from the relevant jury pool, cannot be found in this section. 

1. Given the strictness with which the provisions of the Act are construed by Appellate Courts, and the uncertainty as to the limits of the powers bestowed upon pool supervisors by this legislation, I concluded that all the members of the original pool should be regarded as capable of forming the panel and that all excuses, including those relating to the duration of the trial, should be heard in open court. 

1. In the instant circumstances, however, since those whose excuses had already been refused may have felt dissuaded from applying anew to this Court, and disgruntled if selected on the jury, I formed the view that the safest course was to commence afresh with a new jury pool.

1. For completeness I should add that the Juries Commissioner and his staff acted in this matter with the utmost propriety and in accordance with their view of the difficult provisions of the Act.  Their actions were designed to effect the undoubted purpose of the legislative amendment which was to streamline the process of jury selection for trials of long duration.

1. It seems to me that what is urgently required is legislation which clearly sets out the object sought to be achieved and the powers which may be exercised in order to attain it.

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