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R v Panozzo

R v Panozzo

Case [2003] VSCA 184 24 November 2003

Jury empanelment

Fundamental irregularity

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 41 of 2002

THE QUEEN
	v.
RICHARD XAVIER PANOZZO
	No. 48 of 2002
THE QUEEN
	v.
JOSEPH IARIA

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 October 2003
DATE OF JUDGMENT:	24 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 184

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Criminal Law – Practice and procedure – Jury empanelment – Juror “excused” after whole jury sworn – Remainder of jury not discharged – Further juror sworn – Fundamental irregularity – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant Panozzo	Mr. O.P. Holdenson, Q.C.	K. Clancy
For the Applicant Iaria	Mr. C.B. Boyce	Lewenberg and Lewenberg

BUCHANAN, J.A.:

I agree with Vincent, J.A. that, for the reasons he has stated, the applicants should be granted leave to appeal, the appeals allowed and new trials ordered.

VINCENT, J.A.:

The applicants were jointly presented before the Supreme Court on 9 April 2001, charged with the murder of Peter Francioli. No need exists for the purposes of the present applications to outline the background against which this occurred or the evidence adduced in the course of their subsequent trial.

The matter was set down for trial at Wangaratta on 22 October 2001 and commenced on the day appointed. After a number of preliminary matters were addressed, a jury panel was assembled and, on 29 October 2001, was brought into court. The panel was called over and applications to be excused from jury service were heard by the trial judge. Upon completion of that process the applicants were arraigned in the presence of the panel and each entered a plea of not guilty. A jury of 12 persons was selected and sworn and, at 3.08 p.m. the appointment of a foreman was announced. In accordance with normal procedure, the applicants were declared to be in the charge of the court so constituted. The trial judge then provided some necessary preliminary instructions to the jury and at 3.21 p.m. they were sent home with the proceedings being adjourned to the following day.

However, after the court adjourned, one juror informed the Registrar of a wish to be “excused” from service in the trial. On being told of the situation, the trial judge kept the juror separate from the other members until the matter was determined. In the absence of the jury he intimated to counsel that, should the application be granted, he would have the balance of the panel from which the jury had been selected return to the court. Then, without discharging the remainder of the jury, another person would be selected as a replacement.

Adverting to the fact that each of the applicants had exhausted his right to peremptory challenge, the trial judge stated:

“It seems to me as a matter of fairness as well as a matter of locus,[1] I ought to grant each accused one further peremptory challenge. That is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Panozzo

Details

AGLC: R v Panozzo [2003] VSCA 184
Case: [2003] VSCA 184
Decision Date: 24 November 2003

CaseChat Overview and Summary

The case of R v Panozzo involved the defendant, Panozzo, who was on trial for a criminal offence before the Supreme Court of Victoria. The dispute centred on the procedural irregularities that occurred during the empanelment of the jury. After the entire jury had been sworn in, one juror was excused, and the remaining jurors were not discharged. Subsequently, another juror was sworn in, leading to a concern about a fundamental irregularity in the jury process. The defendant argued that this procedural error necessitated a re-trial to ensure the fairness of the trial process.

The court was required to determine whether the procedural irregularity during the empanelment of the jury constituted a fundamental error that warranted a re-trial. The central legal issue was whether the process by which the jury was constituted was flawed to such an extent that it compromised the fairness of the trial. The court also needed to consider whether the error was so significant that it could not be rectified by any other means, thus necessitating a re-trial.

In delivering its judgment, the court held that the process followed during the jury empanelment was indeed a fundamental irregularity. The court reasoned that once the entire jury was sworn in, excusing one juror and not discharging the rest before swearing in another juror created an irregularity that undermined the integrity of the jury process. The court determined that such an error could not be remedied by any other means and, therefore, mandated a re-trial to uphold the principles of fairness and due process in criminal trials.

The final order of the court was to discharge the jury and order a re-trial for the defendant, Panozzo, to ensure that the trial was conducted in accordance with the proper legal procedures.

Orders