R v Goldman
[2004] VSC 166
•5 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1504 of 2003
| THE QUEEN |
| v |
| MICHAEL GOLDMAN |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2004 to 24 March 2004 | |
DATE OF RULING: | 5 March 2004 | |
CASE MAY BE CITED AS: | R v Goldman | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 166 | |
Ruling No. 2
Calling through of jury panel – Selection of jury – Whether by name or number – s.31 and s.36 Juries Act 2000 – Security of jury – Reassurance of anonymity.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Chadwick | Slades & Parsons |
HIS HONOUR:
The Crown made application for an order that the jury panel for the trial of Mr Goldman be called through by number and not by name as permitted by s.31(3) Juries Act 2000 and that the jury be selected by number as permitted by s.36(1) Juries Act 2000. Such directions may be made if the court considers for reasons of security or for other reasons that members of the jury panel and jurors selected should be identified by number only.
On Wednesday, 3 March 2004, following my direction that such a procedure should be utilised, a jury was selected by that process for the trial of Mr Goldman. Before I could give reasons for so ruling, it became necessary to discharge that jury at the conclusion of the openings by the Crown and the Defence. The reasons for the discharge are not relevant to the present application.
Both for reasons of security and for other reasons I gave the direction that I did. I remain of the view that the persons on the jury panel and the jurors to be selected should be identified by number and not by name.
The accused is charged with the attempted murder of Alexander Kudryavstev on 10 July 2002. It is the Crown case that the victim, the accused and other persons were together involved in multiple burglaries and thefts spanning some years. The accused and two of those other persons have been charged with multiple counts of burglary and theft and are awaiting trial in the County Court on a date yet to be fixed.
The principal witness for the prosecution in the County Court trial is Alexander Kudryavstev. The Crown case in the trial before me is that the motive of the accused was to eliminate Mr Kudryavstev as an informer or potential witness.
Evidence was placed before me of threats on the life of Mr Kudryavstev made by the accused and other persons since the date of the accused's arrest for attempted murder. Further, one of the accused in the County Court trial, together with another person, attended at the hospital at which Mr Kudryavstev was recuperating to inquire as to his whereabouts. I was invited to infer that their visit was for a sinister purpose. Evidence was also placed before me of threats made to some of Mr Kudryavstev's family overseas for the purpose of discouraging Mr Kudryavstev from further co-operating with the Victoria police. One Nikolai Radev, described during submissions by Counsel for the accused as a notorious criminal in Melbourne whose murder last year remains unresolved, was an associate of the accused. The depositional material shows that the surveillance squad who were following Mr Kudryavtsev were briefed to anticipate a meeting between Mr Kudryavtsev, Mr Radev and the accused. On the basis of this material, three police officers have testified that Mr Kudryavstev is at risk of being harmed if he were to testify in person before the jury.
As a consequence of those circumstances, the Crown made application for Mr Kudryavstev to give evidence via video link pursuant to s.42E Evidence Act 1958. I acceded to that request and I have given reasons for so doing.
The Crown submitted that the procedure of identification of potential jurors by number and not name should be followed for reasons of security. The learned prosecutor submitted that I should be satisfied that there was a risk that there would be an attempt to interfere with one or more members of the jury having regard to the nature of the Crown case against the accused and the other evidence to which I have already referred.
The Crown alleges that there are persons, other than the accused and his co-accused in the County Court trial who may have an interest in trying to affect the outcome of this trial. The learned prosecutor referred to the fact that only one of the two men who attended at the hospital where Mr Kudryavstev was recuperating is in custody.
Counsel for the accused opposed the Crown's application. Mr Chadwick submitted that any juror who has had previous jury experience will know that the names of jurors are normally used and will draw an adverse inference against the accused if jurors are identified by number alone. He submitted that the use of numbers for the identification of jurors has only been used in sensational cases or where evidence established a high degree of need to take such a course. He suggested, however, during the course of argument in support of an application that I prohibit publication of this trial, that this case could be described as sensational.
Nettle J in R v Juric[1] directed that the jury members be identified by number alone. Evidence had been placed before his Honour that the accused had attempted to influence potential witnesses by threats before a previous trial. His Honour, without determining the veracity of the allegations, adopted the procedure of having the jurors identified by number to avoid the risk of any interference with the jury.
[1]Unreported 13 August 2003.
The present circumstances raise similar concerns. The very nature of the Crown case against the accused is that he attempted to remove Mr Kudryavtsev as a potential source of information or as a witness against him or his criminal associates. There is a risk that the accused and others would avail themselves of any further opportunity to achieve that outcome. My direction that Mr Kudryavstev should be permitted to give evidence via video link was, in part, based upon the existence of reasonable grounds for the belief that there was a real risk that the accused or his associates were intent upon a course designed to interfere with the administration of justice.
Since so ruling, the Defence case has been opened to the previous jury. It was stated in the opening that when the accused shot Mr Kudryavtsev the accused's will had been overborne by Nikolai Radev. That the accused may have acted at the direction of a criminal associate does not in any way diminish the risk that is said to exist.
The application by the Crown fell to be considered on the basis of these facts and alleged facts.
Mr Chadwick submitted that the benefits of the accused's ancient and undoubted right of peremptory challenge depended upon access to the few pieces of information provided to an accused before the jury is selected. One of those pieces of information is the juror's name. Such information may reveal the origins of the juror. Because this case is concerned with a few members of the Russian community within Melbourne, he submitted it may be a matter of special concern that a potential juror was of Russian, Slavic or Balkan extraction. The accused may care to challenge any member of the panel who is of such origins.
Finally, Mr Chadwick pointed to the fact that there was no suggestion that the civilian witnesses who identified the accused as the person who shot Mr Kudryavstev had been intimidated in any way. He submitted that there is no present reason to be concerned about the security of witnesses or the jury.
As the Defence opening to the previous jury has revealed, the accused does not dispute that he shot Mr Kudryavstev. The civilian identification evidence is therefore not contentious and I can draw no particular inference from the fact that those witnesses have not been the subject of intimidation.
The benefits accruing to an accused from his right of peremptory challenge have been clearly affected by the introduction of the amendments to the Juries Act 2000. While those provisions which alter the accused's rights at common law should be construed to do so only so far as is necessary to give them effect[2], Parliament has expressed the clear intention that for security or other reasons the accused may be denied the benefit of the names of the members of the jury panel.
[2]R v Panozzo; R v Iaria 2003 VSCA 184.
Recourse to the Parliamentary debates permitted by s.35(b)(ii) Interpretation of Legislation Act 1984 reveals that a primary motivation for the introduction of such legislation was the need to provide jurors with security and that the calling out of names was regarded by Parliament as unnecessary.
In R v Juric[3] Nettle J, in giving reasons for directing that jurors be identified by number rather than name concluded that Parliament must have appreciated in enacting such legislation that the calling of a panel by numbers would pro tanto affect an accused's ability to exercise peremptory challenges. With that, I entirely agree. His Honour made reference to the Law Reform Committee Report[4] involving jury service in Victoria, which was referred to in the Juries Amendment Bill Second Reading Speech.[5] His Honour noted that one of the conclusions expressed in that report was that the use of peremptory challenges to exclude persons on the basis of their ethnicity would arguably amount to discrimination constituting a breach of the Racial Discrimination Act 1975 (Commonwealth) and Australia's obligations under the International Covenant on Civil and Political Rights. Nettle J viewed these considerations as relevant both as a matter of common law statutory interpretation technique and under s.35(b)(iv) Interpretation of Legislation Act 1984.
[3]Supra Footnote 1.
[4]Law Reform Committee: Victoria. Parliament (1996-1997) Jury Service in Victoria. Final Report Vols. 1- 3, Melbourne, Government Printer at Vol.3 Chapter 3, ‘The Jury in a Multi-Cultural Society’.
[5]Hansard Council, 8 October 2002 at 55.
This is a case in which some jurors may become concerned about their personal safety and such possible concerns and their effects should be minimised. The jury will inevitably discover during the course of this trial that this court is being conducted as a secure court. The jury will learn as a consequence both of the Crown case and the defence case that the accused, whether voluntarily or at the command of others, shot an informer and potential witness. He thereby interfered with a police investigation and attempted to pervert the course of justice. The accused was involved in criminal activity with other associates who may be similarly motivated. In such circumstances, the anonymity of the jury may facilitate the jury's capacity to focus upon the issues and reach a proper verdict.
I think it unlikely that the jury will appreciate that a decision to use numbers rather than their names has been made. But in any event I will, in accordance with my normal practice, direct the jury shortly after they are selected as to their responsibility to decide the case fairly and impartially on the basis of the evidence alone. The jury may well be aided in that task by the security of anonymity described by Cummins J in DPP v Ivanovic[6] as the re-assurance of anonymity.
[6][2003] VSC 388.
This view accords with the approach taken by Nettle J in Juric's case.
Cummins J in DPP v Ivanovic also considered that no special or extraneous reason need be established in order to make such directions under s.31 or s.36 Juries Act 2000 as the criterion "other reason" permits this course if the court considers it is good management to use numbers rather than names.
As there is a risk of interference with the jury and as the nature of both the Crown and the Defence case is one which may possibly cause jurors to be concerned about their safety, it is appropriate that the procedure be employed of identifying potential jurors and those selected by number alone. It is to meet circumstances such as the present that these amendments to the Juries Act were introduced. Although there may be no substance whatsoever to the allegations upon which these fears are based, and although jurors selected may not be concerned about their safety, this procedure should be utilised to avoid or minimise such risks and concerns.
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