R v Strawhorn
[2006] VSC 251
•21 June 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1427 of 2003
| THE QUEEN |
| v |
| WAYNE GEOFFREY STRAWHORN |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 MAY 2006 | |
DATE OF RULING: | 21 JUNE 2006 | |
CASE MAY BE CITED AS: | R v STRAWHORN | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 251 | |
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Criminal Law and Procedure – Empanelment of jury – Calling of jurors by number not name – Reasons for choice – Reassurance of anonymity – Section 31(3) of the Juries Act 2000.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC with Mr M. Tinney | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr P. Morrissey with Mr J. O'Sullivan | Galbally & O'Bryan |
HIS HONOUR:
An issue has arisen prior to the commencement of this trial concerning the method of empanelment of the jury. Mr Elston SC, who appears with Mr Tinney on behalf of the Crown, sought a direction pursuant to s.31(3) of the Juries Act 2000 that each person in the panel be identified by number only, both at the initial stage (see s.31(1) of the Juries Act) and at the selection stage (see s.36(1) of the Juries Act). This application was opposed by Mr Morrissey, who appears with Mr O'Sullivan on behalf of the accused, Wayne Geoffrey Strawhorn. Mr Morrissey submitted that the jury empanelment should proceed by name rather than number.
Section 31(3) of the Juries Act 2000 relevantly provided as follows:
"If the court considers that for security or other reasons the names on a panel should not be read out in open court, the court may … direct that each person be identified by number only."
Mr Elston first submitted that an application such as this was no longer novel. Directions under s.31(3) had been given in many trials since the Juries Act was amended in 2002 to permit the use of numbers. Secondly, he submitted that the governing words "for security or other reasons" were very broad. An individual reason or a combination of reasons would be sufficient.
Mr Elston then referred to the nature of the evidence to be led in this particular trial, where very serious allegations were made against the accused, a former high ranking member of the Victoria Police Drug Squad. There would be frequent reference to specific persons allegedly involved in very high level drug dealing in Melbourne and Sydney, such as Lewis Moran, Mark Moran, Jason Moran, Antonius Mokbel and David McCulloch and to named members of the Bandidos motorcycle gang who were also allegedly involved in drug trafficking. All three Morans had been murdered, apparently as part of the underworld gang wars, and there would be many references to violent activities being undertaken or threatened.
The application was not based on any suggestion that the jury would be subject to any threat or interference from the accused. Rather, it was simply that the general nature of the evidence in the trial had the potential to cause the jury to become concerned about their personal security. In the circumstances, Mr Elston submitted, the jury should be able to go about its task unencumbered by any extraneous concerns over personal security. The use of numbers minimised any concerns the members of the jury may have for their personal security because they could be confident of their anonymity.
Mr Morrissey submitted that the grounds put forward by the Crown for adoption of the use of numbers were insufficient. He very fairly conceded that there would be reference to the names of high profile criminals, some living, some dead, who might well be thought to feel vindictive towards the accused. However, he submitted that the Crown had not made out a case that there was a risk that such people or their associates would attempt to interfere with the jury. Mr Morrissey emphasised that the Crown had not suggested that the accused or his agents posed any sort of threat. Therefore, he submitted, there was no "security" reason to justify the use of numbers rather than names.
Mr Morrissey further submitted that if there were no "security" reason, s.31(3) required there to be some "other" reason. There was no general broad discretion conferred on the court simply to make a direction if it considered it fit. There had to be some objective basis for the use of numbers. Mr Morrissey submitted that whilst every jury might like the comfort of anonymity, there really was no basis in this case for concluding that there was any objective reason for using numbers rather than names.
Alternatively, Mr Morrissey submitted that in deciding whether or not to give a direction under s.31(3) the Court was required to balance the detriment which an accused suffered from being denied the ability to select the jury by name with the grounds relied on by the Crown in support of the application. He argued that in this case the matters put by the Crown were weak because there was no real security issue present, and the jury could be reassured that even though there might be reference to alleged high profile criminals, they really did not have any involvement in the case.
Mr Morrissey accepted that if a s.31(3) direction were made, any prejudice to the accused from the perception that there was some issue of security involving him could be dealt with to some extent by an appropriate explanation from the court. Indeed, Mr Morrissey indicated that if I were against him on the substantive point then he would seek a direction to the jury explaining the reason for the use of numbers and the fact that it was not connected with any concern about the accused.
I was referred to several previous decisions by Judges of this court on this issue. In Director of Public Prosecutions v Ivanovic, Cummins J said in respect of s.31(3) of the Juries Act 2000:
"The sub-section requires there to be a reason for the numeral rather than the nominal. However, I consider that no special or extraneous reason need be established in order to activate the power in sub.s.(3). The requirement of 'other reason' is satisfied if the Court considers it is good management to use numbers rather than names. In my view, generally speaking it is good management to use numbers rather than names. Citizens called for jury service should be supported by the reassurance of anonymity; the administration of justice - trial by jury - is enhanced thereby, and an accused is not disadvantaged, because the jurors occupation (or last occupation) is stated. The provisions of s.31(3) should not be construed in a narrow or pedantic manner. They are facilitative.
Accordingly, general use of juror number rather than name for reason of good management is in my view consonant with the provision of s.31(3). That indeed is the modern (and interstate) way. It underpins the fundamental of trial by jury."[1]
[1][2003] VSC 388 at [6] – [7]
In R v Goldman[2], Redlich J, as his Honour then was, followed the approach of Cummins J, in deciding that in the case before him, numbers rather than names should be used to identify potential jurors. His Honour also followed the approach of Nettle J, as his Honour then was, in R v Juric[3] in reaching his conclusion. Redlich J said:
"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, 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.
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, 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 involving jury service in Victoria which was referred to in the Juries Amendment Bill, Second Reading Speech. 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."[4] [Footnotes omitted]
[2](2004) 145 A Crim R 51
[3]Unreported, 13 August 2003
[4](2004) 145 A Crim R 51 at [18] – [20]
I am not persuaded that Mr Morrissey was correct in treating the Crown's case as one not based on a "security" reason. While this may not be the usual case of a "security" problem, the way in which the Crown puts its case indirectly raised security reasons. However, I do not have to decide this particular issue as I am satisfied that, however it is described, there is good reason to direct that each person on the jury panel be identified by number only. Having now had the opportunity to become considerably more familiar with the nature of the evidence to be led in this case, I am satisfied that it warrants the use of numbers rather than names so as to alleviate any concern which members of the jury might have about their security as a result of their incidental involvement in this incredible underworld scene. I do not consider it to be fanciful or unrealistic to suggest that the nature of this evidence might cause members of the jury to be concerned about their security if their names are known. They are entitled, in the words of Cummins J, to "the reassurance of anonymity".[5]
[5][2003] VSC 388 at [6]
In my opinion, after giving long and anxious consideration to this question, I have concluded that the balancing exercise referred to by Mr Morrissey clearly favours a direction that numbers not names be used in the jury empanelment, even though this may cause detriment to the accused.
Accordingly, I propose to direct that pursuant to s.31(3) of the Juries Act 2000 each person in the jury panel be identified by number only.
As requested by Mr Morrissey, I also propose to say something to the jury panel about the use of numbers. Subject to hearing from counsel, I propose to say the following:
"Members of the jury, as you may recall from the DVD 'We the Jury' which you should have just been shown over at the Juries Commissioner's Office, the empanelment of a jury can now take place by name or by number. In this case, I have decided that the appropriate and more efficient course to follow is to empanel the jury by number. I want to emphasise that I have reached this decision for reasons which are in no way connected with anything said or done by the accused, Mr Strawhorn."
Counsel might like to consider that wording overnight.
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