R v Georgiadis [No 2]

[2001] TASSC 48

[2001] TASSC 48

CITATION:              R v Georgiadis [No 2] [2001] TASSC 48

PARTIES:  R

v
GEORGIADIS, John
THEODOSIS, Julie
BELBIN, John
LAMONT, Andrew Wayne
KELLY, Paul Edward
BOSTOCK, John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  237/1999

251/1999

DELIVERED ON:  27 April 2001
DELIVERED AT:  Hobart
HEARING DATES:  27 April 2001

JUDGMENT OF:  Underwood J

Edited edition of reasons for judgment delivered orally

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Juries - Striking and empanelling - Challenges - Challenge for cause - Non disclosure of jurors' occupations not a sufficient cause for challenge.

Aust Dig Criminal Law [761]

Jury - The jury in criminal proceedings - Challenges - Challenge for cause - Non disclosure of jurors' occupations not a sufficient cause for challenge.

Aust Dig Jury [29]

REPRESENTATION:

Counsel:
           Crown:  D G Coates and H Virs        
           Accused (Georgiadis and Theodosis):    A J Glynn
           Accused (Belbin):  R A Browne
           Accused (Lamont):  W M Hodgman QC
           Accused (Kelly):  G D Wendler QC
           Accused (Bostock):  D J Gunson

Solicitors:
           Crown:  Director of Public Prosecutions
           Accused (Georgiadis and Theodosis):    H Drakos and Company
           Accused (Belbin):  Legal Aid Commission of Tasmania
           Accused (Lamont):  Milton & Meyer
           Accused (Kelly):  Butler McIntyre & Butler
           Accused (Bostock):  Gunson Pickard & Hann

Judgment Number:  [2001] TASSC 48
Number of Paragraphs:  22

Serial No 47/2001
File Nos 237/1999

251/1999

THE QUEEN v JOHN GEORGIADIS, JULIE THEODOSIS,
JOHN BELBIN, ANDREW WAYNE LAMONT,
PAUL EDWARD KELLY, JOHN BOSTOCK (NO 2)

REASONS FOR JUDGMENT  UNDERWOOD J
(DELIVERED ORALLY)  27 April 2001

1. A question has arisen with respect to the copy of the jury panel supplied to counsel for the accused persons pursuant to the provisions of the Jury Act 1899 ("the Act"), s30.  Although the panel shows the names of the jurors, it does not show their occupations.  Counsel have requested that I enquire of each juror in order to ascertain their occupation.  The object of the request is to ascertain whether any juror has an occupation in, or connected with the Fishing Industry to enable counsel for the accused persons to better consider whether his client should or should not exercise the right of peremptory challenge.

1. The Criminal Code, s361, provides that upon a plea, other than guilty, or one that goes to the jurisdiction of the Court, the issue thereby raised shall be tried by a jury. 

1. The Act, s39 provides that all criminal issues joined in the Supreme Court shall be tried "by a jury consisting of 12 persons qualified as jurors according to this Act".

1. The Act, s4, provides in a general way, that every person who is less than 65 years of age and who is enrolled on the "State roll is qualified to serve as a juror and liable to serve".

1. Sections 6 - 7C inclusive, deal with exceptions to that general qualification for jury service.  Section 8 defines a "jury district" and ss9 and 27 - 32 inclusive, prescribe the mechanism for providing a jury to try criminal issues.  That mechanism is:

1    The Sheriff prepares a jury list for each jury district.  This list is current for one year.  The list is to contain such number of persons as the Sheriff considers "adequate" (for what is not explained) selected in the manner prescribed from those enrolled on the State roll but excluding those not qualified to act as jurors or exempted from jury service.  The list is selected at random.

2    The Act, s69(2)(b) empowers the Governor to make regulations (inter alia) for the selection of names for a jury list.  Regulation 4(1) requires the Sheriff to place on a "provisional jury list" the "name, address, occupation and date of birth" of the persons he has randomly selected to go on the list. 

3    In accordance with reg4(1)(d) the Sheriff strikes from the provisional jury list those who are exempt or not qualified and, by virtue of reg4(2), "the names of persons remaining on the provisional jury list … form the jury list for that jury district". 

4    Section 27 requires a judge to issue a precept to the Sheriff requiring him to summon "so many jurors as the judge may think sufficient for the occasion". 

5    Next, the Act, s28, requires the Sheriff to summons the number of jurors that he is required to summons by virtue of the precept.  It may be noted that the section requires him or her to do this "in accordance with the Regulations" but there appears to be no regulation dealing with this matter.  By virtue of s28(2), the number summonsed are to be selected at random, from the names on the jury list, excluding therefrom those who have previously been summonsed.

6    Enigmatically, the Act, s29, immediately proceeds to direct that "the Sheriff shall, after the cards have been drawn as aforesaid, … issue a summons to the several jurors required to be summoned …".  There is no previous reference to "cards", and prima facie, the section is very difficult to understand.  Clearly, the intent is that the Sheriff summons those jurors who have been randomly selected from the jury list in order to form a panel of jurors as directed by the precept.  It appears that the reference to "cards" is a reference to the now repealed s25 which required the Sheriff to make a card with a number on it for every juror whose name appears on the jury list.

7    Section 32 requires the Sheriff to return the precept "into the Court" on the day that the jurors are summonsed to appear, and to annex to it "a panel" "containing the names of the persons summoned by him in pursuance of the said precept".  The Act, s32, also requires the Sheriff to "furnish to the clerk of the Court cards containing the names of the persons so summoned".

1. The Act, s30, provides that a copy of every panel shall be made by the Sheriff two days before the precept is returnable, and a copy shall be delivered to any person on payment of the sum of one dollar.

1. From the foregoing statutory analysis it seems to me that there is no statutory requirement to show the occupations or the addresses of the jurors who, by virtue of a summons issued in accordance with the judge's precept form the panel for the trial of an issue or issues.  Although the jury list, from which each panel is randomly selected, is required to show the names, addresses, occupations and dates of birth of the jurors, no such requirement is specified with respect to the panel that the Sheriff returns to the Court and supplies to persons upon payment of $1.  No doubt the requirement that the list disclose more than the names of potential jurors is to enable the Sheriff to satisfy his statutory obligation to "cull" the list to remove therefrom persons ineligible for jury service by reason of age occupation and the like.

1. Leaving to one side for the moment the statutory difficulties arising out of the reference to "cards", it appears to me that the panel annexed to the precept is only required to show the names of the persons summoned by the Sheriff in accordance with the precept.  No other information is required by the statute to be disclosed.  I note in passing, that the panel annexed to the precept is to contain the names of persons summoned (served in accordance with the Act, s29(2)) and not merely a list of persons whom the Sheriff considers have received the summons.

1. An accused has a right to challenge a jury panel or an individual juror.  The right  is conferred by the Code, s364.  It is conferred by reference to the Act, s52, which provides that a challenge to the array and to an individual (or polls) shall be allowed "in such and the like form and manner, and under and subject to such like laws, rules and regulations, in every respect as by law are established, used, and practised in like cases in the High Court of Justice in England at the commencement of this Act".

1. The Act commenced on 1 January 1900.  At that time, the High Court of Justice in England permitted the challenge of an individual juror for cause.  See Archbold, Criminal Pleading Evidence and Practice (1905) 23 ed 201 et seq.  Relevantly, a ground of challenge to a juror was allowed for propter affectum, ie, a ground of some presumed or actual partiality in the juror.  Such a challenge might be a principal challenge or a challenge "to the favour".  The former arose in the case of prima facie malice or favour, such as the juror is related to a party, or a servant of a party or has an interest in the cause.  A challenge to the favour arose where the party had no principal challenge but "objects only some suspicion, as acquaintance, and the like;" per Blackstone, Laws of England Vol III 363.

1. A challenge is to be made before the taking of the oath commences.  It appears that in 1900, the procedure adopted in the case of a challenge to the polls was to appoint two triers, often two jurors who had been previously sworn, to try the issue of propter affectum.  See Blackstone (supra) at 363.  However, it may be noted that in R v Power [1920] VLR 88, the issue raised by the challenge to the poll was tried by the trial judge with the consent of both counsel. According to a current note in the Argus Law Reports for 1918, 24 ALR (CN), 1, the issue of propter affectum was tried by the trial judge and not triers, but there is no explanation in the note as to why this was done. 

1. From the cases noted in Archbold, it appears that the burden of a challenge for cause is on the person who makes it and he is not entitled to question a juror before challenging him.  The learned authors proceed at 205:

"When the challenge has been made, the trial proceeds by witness called to support or defeat the challenge; the juror objected to may also be examined on the voir dire at [sic] to his qualification, or the leaning of his affection.  But he cannot be interrogated as to matters which tend to his own discredit, as whether he has been convicted of felony etc, nor, as it seems, whether he has expressed a hostile opinion as to the guilt of the defendant."

1. Must any challenge to the favour of the polls be made with prima facie evidence or material to sustain it?  R v Edmonds (1821) 4 B & Ald 470: 106 ER 1009 contains a detailed dissertation by Abbott CJ on the subject of challenge to the polls and the array. From that case, it appears that the procedure adopted at that time, and presumably also followed in 1900, in the case of a challenge to the polls, was for the challenger to assert some basis for his or her challenge to the favour. With respect to this Abbott CJ said at 490:1016

"It does not appear, distinctly, in what precise form the question was propounded; but, in order to make the answer available to any purpose, if it could have been received, it must have been calculated to shew an expression of hostility to the defendants, or some of them, a preconceived opinion of their personal guilt, or a determination to find them guilty; anything short of this would have been altogether irrelevant."

1. It is clear from the following passages of the judgment that the challenger must show cause for challenge.  It is not possible to simply state that there is a challenge to the poll propter affectum  and then have that issue tried.  The cause must be stated and if it appears that the cause is a good ground for standing the juror aside and issue is joined upon it, that issue must be tried (absent agreement to the contrary) by two triers.  This seems to have been the procedure followed in R v Geach 9 Car & P 499: 173 ER 929. See also R v Swain & Ors (1838) 2 M & Rob 112: 174 ER 232.

1. At the time of Murphy v R (1989) 167 CLR 94 the Jury Act, 1977 (NSW), s46, simply provided that "A challenge for cause shall be tried by the presiding judge at the trial".  In their joint judgment, Mason CJ and Toohey J said at 103 - 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."

1. Stated briefly, the Crown case against each of the six accused presently before the Court, is that they were a party to one or more conspiracies.  The alleged conspiracies all related to the taking and processing of abalone in excess of the quantity permitted by law.  Counsel for some, if not all the accused, have complained that some one, or more of the jurors may be professional fishers or engaged in the fish processing industry or might be closely related to such persons and they have a right to be aware of whether this is so or not. 

1. It seems to me that firstly, the existence of the possibility that such persons may be on the jury panel is not sufficient cause to challenge the poll.  Secondly, even if in fact such a juror was on the panel and that was the stated cause for challenge, that cause, is not sufficient to challenge the poll for the mere fact that the juror is engaged in the fishing industry, or closely related to someone who is so engaged, is no reason to suspect that such juror will show malice or favour to either side. 

1. The real complaint of counsel is that if the occupation of the jurors were known to them, they could object to any such juror thereby eliminating the risk of malice, but as the jury panel returned with the precept does not show the occupations (as such returns commonly used to) they cannot do so.  There is no reason to suppose that a juror who is or was a professional fisher or processor, or who is closely related to such a person, will have any pre-conceived ideas about the guilt or innocence of any of the accused, nor that he or she will bear malice towards any of the accused, nor that he or she will not obey the requirements of the juror's oath.  There is no reason to suppose, absent specific statements or other evidence, that a farmer will not impartially try another farmer charged with stealing cattle.  For that matter there is no reason to suppose that a householder who has been the victim of a burglary, will bear malice to an accused charged with that crime.

1. It seems to me that if, as I have held, there is no requirement in law for the panel to show the jurors' occupations, and if the matters of complaint to which I have referred are not a lawful cause for a challenge to the poll, there is nothing that I can or should do about the matter.  The case would be different if there were some specific evidence or other material for supposing that any of the accused would not receive an impartial and fair trial in accordance with law.

1. After the above was written I heard further submissions from counsel.  I was informed from the Bar Table that, by virtue of an amendment to the Electoral Act 1985 there no longer is any requirement to record the occupation of a person enrolled on the State roll and consequently, that information is no longer supplied to the Sheriff. It seems to me that this change to the State roll makes the compilation of a jury list difficult as no information is received by the Sheriff with respect to the occupation of those on the list.

1. The Act, s7A exempts certain persons who are described in Schedule I or who come within any class or description of persons prescribed as being exempt from serving as jurors.  Schedule I contains quite a long list of persons so disqualified.  In obedience to the statutory duty imposed upon him by the Act, s9 to prepare an annual jury list the Sheriff is obliged to exclude from the list drawn from the State roll "the names of persons known to the Sheriff not to be qualified for serving as jurors…"  It is curious that the Act, s7A refers to the persons identified by Schedule I as "exempt" from jury service, but s9 only requires the Sheriff to exclude persons who are not qualified to serve as jurors.  The word "exempt" is also used with reference to persons who have a special reason for not serving upon a particular panel such as a pressing family responsibility.  It seems unlikely that the persons identified in Schedule I are to be treated on the same footing as persons exempted pursuant to the provisions of the Act, ss7B and 7 C.  Whatever might be the proper interpretation of these various sections, it seems hardly satisfactory if the Sheriff is forced to adopt a stance that he has no information about the occupations of persons and therefore he does not know which, if any, of the persons on the list are disqualified from serving as jurors.  It seems possible that this may be cause to challenge the array although I accept that the Act does not expressly impose upon the Sheriff any obligation to make any inquiry.  It is however, quite clear that the Act requires some urgent consideration and amendment.

1. In the present matter I have decided to take a pragmatic approach in all the circumstances.  The trial is estimated to last about 8 weeks.  Seven counsel are engaged in it.  Fourteen jurors will be empanelled.  Considerable public expense has been and will be incurred.  It seems foolish to raise the spectre of some appeal upon the ground that the jury panel was not prepared in accordance with law notwithstanding the provisions of the Act, s56 which provides that want of qualification shall not be a ground of appeal after the juror has been sworn.  I propose to have Court staff enquire of each juror if he or she is willing to disclose his or her occupation.  Those occupations that are disclosed will be entered onto the jury panel and a copy of that panel will be handed to each counsel.