R v Smith

[2004] VSC 99

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT SHEPPARTON
CRIMINAL DIVISION

No. 1402 of  2004

THE QUEEN

v

BARRY ANTHONY SMITH

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JUDGE:	HARPER J
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	9 MARCH 2004
DATE OF RULING:	9 MARCH 2004
CASE MAY BE CITED AS:	R v SMITH
MEDIUM NEUTRAL CITATION:	[2019] VSC 99

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Ruling – Practice and procedure – Empanelment of jury – Authorisation of Associate to empanel – Juries Act 2000, s.30(4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	OPP
For the Accused	Mr A. Lewis	Victoria Legal Aid

HIS HONOUR:

1. Since the empanelling of the jury in this case I have had drawn to my attention subsection (4) of s.30 of the Juries Act 2000. That subsection provides that the trial judge must authorise a person to assist in the calling of the panel and the selection of the jury, and the names of the persons constituting the panel must be delivered to that person.

1. In this case I had, before the trial began, authorised a person to assist in the calling of the panel and the selection of the jury.  That person was and is my associate.  The fact of the authorisation has not been challenged either by the prosecution or by the defence.  Accordingly it seems to me that there has been compliance with the first part of the provision. 

1. The second part requires that the names of the persons constituting the panel must be delivered to the person so authorised.  In this case the names of the persons constituting the panel were delivered to my associate.  Accordingly it seems to me that there has also been compliance with the second aspect of the provision.

1. It was submitted on behalf of the Crown that compliance in the manner to which I have just referred is not sufficient.  It was submitted that in addition to that which the Act explicitly requires there is an implied requirement, namely that the judge must announce the authorisation in open court.

1. In my experience such an announcement is not something which is regularly done.  My experience is, of course, limited to those cases in which I have been the trial judge.  I have never in any trial in which I have presided announced the authorisation in open court so as to satisfy what it is submitted is the implied requirement of the subsection.

1. Although it is of no particular moment, I have in fact inquired over the last few minutes of one of my colleagues; and he has informed me that although he is a judge who has, during the course of a long judicial career, presided over many criminal trials including, of course, many murder trials, he has not made the announcement which it is submitted should be made in open court.

1. That gives me some comfort in my conclusion that it is not required by the section that the judge announce the fact in open court of the authorisation of the person who is in fact authorised. I am somewhat strengthened in that conclusion by the circumstance that in his book on Victorian Criminal Procedure 2002 Professor Richard Fox does not cite s.30 of the Juries Act.

1. The fact that the section is not cited is not of itself authority for anything.  It is, however, of some comfort to me that the learned author of a very well regarded book on criminal procedure has not seen fit to refer in his work to the requirement that, it was submitted this morning, is one that now binds me.

1. For these reasons it seems to me that there has been no infringement of the provisions of the Juries Act in relation to the summoning of the panel and the calling of the names of the persons constituting the panel.  Accordingly it seems to me that the empanelment of the jury itself has proceeded in accordance with law.  That being the case, it would be wrong of me, in my opinion, to discharge this jury and re-empanel another.

1. I add that I did in addressing the jury panel this morning refer on several occasions to my associate. I did so in terms which, albeit by implication, left no doubt that she was authorised to fulfil the functions to which s.30(4) refers.

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