Re Rozenes; Ex parte Burd

[1994] HCA 11

HIGH COURT OF AUSTRALIA

DAWSON J

RE MICHAEL ROZENES, DIRECTOR OF PUBLIC PROSECUTIONS, AND ANOR

(1994) 120 ALR 193

28 March 1994

Orders

Applications dismissed.

Decision

DAWSON J In these proceedings the applicants seek an order nisi for a writ of prohibition and an injunction, alternatively an order nisi for a writ of mandamus and an injunction, against the first respondent, the Commonwealth Director of Public Prosecutions. The applicants also seek an order nisi for a writ of prohibition and certiorari against the second respondent, his Honour Judge Howse of the County Court of Victoria. In addition, the applicants seek a stay of their trial before Judge Howse pending the hearing and determination of the orders nisi should their applications be granted.

2. The applicants have been presented for trial upon an "indictment/presentment" containing counts which allege offences against the Customs Act 1901 (Cth) and the Drugs, Poisons and Controlled Substances Act 1981 (Vict.). The applicants have pleaded not guilty to all charges and are to stand trial jointly before Judge Howse and a jury. A jury has not yet been empanelled. The matters which are raised in these applications were raised by the applicants before Judge Howse after their arraignment, but his Honour refused the relief sought with the result that the trial is to proceed in disregard of the applicants' objections.

3. The grounds for the applications relate, in the first place, to the mode of selection of a jury under the Juries Act 1967 (Vict.). In the second place they relate to the joinder in the one indictment/presentment of counts alleging both Commonwealth and State offences so that, following the decision of this Court in Cheatle v. The Queen ((1) (1993) 177 CLR 541.), a unanimous verdict is required in respect of the Commonwealth offences, notwithstanding that a majority verdict may now be taken in respect of the State offences ((2) Juries Act, s.47.).

4. So far as the mode of selection of a jury is concerned, the applicants put two arguments. The first is based upon a recent amendment to s.34 of the Juries Act. In place of the Crown's right to stand aside jurors until the panel is exhausted and cause must be shown, the amendment gives to the Crown a limited number of peremptory challenges ((3) Juries (Amendment) Act 1993 (Vict.), s.6.). The second argument, which is related to the first, questions the power of the Chief Commissioner of Police to provide to the Crown a list of members of the jury panel indicating any who are disqualified or whom the police regard as unsuitable to act as jurors.

5. The argument put by the applicants is that the substitution of peremptory challenges for the Crown's right to stand aside means that a jury is no longer randomly selected. That, it is said, is particularly so because the Chief Commissioner's list enables the Crown to exercise its challenges upon a basis which is unknown to the defence or, indeed, the Court. The practice of providing such a list is also challenged upon the basis that it is unfair in any event and contrary to the Juries Act ((4) cf. In the Trial of D (1988) VR 937; Reg. v. Robinson (1989) VR 289.). Random selection, it is argued, is an essential feature of trial by jury within the meaning of s.80 of the Constitution and was so regarded by this Court in Cheatle v. The Queen.

6. In relation to the requirement of a unanimous verdict in the trial of Commonwealth offences, it is argued that it is not possible, as a matter of either principle or practice, to give effect to that requirement in a trial which allows a majority verdict for State offences, without prejudice to the accused. However, the problem to which the applicants point is unlikely to arise if their trial proceeds, in view of an undertaking which the Director of Public Prosecutions, who has the overall conduct of the prosecution, is prepared to give. He is prepared to undertake that he will not seek, and indeed will oppose, in this case the exercise of the trial judge's discretion to take a majority verdict in relation to any State offence ((5) See Juries Act, s.47(2).).

7. I have set out briefly the arguments which the applicants seek to put, not to express any view as to their merit, but to indicate their nature. For I have formed the view that, notwithstanding that the grounds advanced might well be sufficiently arguable to support the grant of orders nisi, I ought to exercise my discretion against giving that relief.

8. This Court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances ((6) See e.g. Reg. v. Iorlano (1983) 151 CLR 678 at 680; Yates v. Wilson (1989) 168 CLR 338 at 339; and see also McNamara v. The Queen (1978) 20 ALR 98; Reg. v. Garrett (1988) 49 SASR 435 at 451.). As Brennan J. said in Beljajev v. Director of Public Prosecutions ((7) (1991) 173 CLR 28 at 32.), "The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial."

9. I am unable to discern the exceptional circumstances in this case which would warrant my granting these applications. In the first place, the events of which the applicants complain may never take place. The Crown may decide not to exercise its peremptory challenges, and the trial judge may decide not to invite a majority verdict in relation to a State offence. In the second place, even if either of those events does take place, it does not mean that the applicants will be convicted. And in the third place, even if either of those events does take place and the applicants are convicted, they have a right of appeal which, with special leave, may eventually be exercised in this Court. Should the applicants reach the stage where they wish to contest on appeal the matters which they now raise, it would then be possible to consider them in a factual setting - a more desirable course than considering them in the abstract.

10. It was suggested that, should the applicants be convicted, the application of the proviso under s.568(1) of the Crimes Act 1958 (Vict.) might preclude the grant of special leave to this Court. However, I am not persuaded that, should the necessary circumstances arise and should the applicants' arguments be correct, the proviso could apply. Rather the situation would be one in which the applicants had not had the trial to which they were entitled ((8) See Wilde v. The Queen (1988) 164 CLR 365; Johns (Roger) v. The Queen (1979) 141 CLR 409; Reg. v. Hall (1971) VR 293 at 299.).

11. It is undeniable that, if the applicants were ultimately to succeed upon appeal on the grounds which they now raise, they would nevertheless have suffered the expense and strain of a criminal trial. That, however, is a circumstance which is always present when it is sought to contest the ruling of a trial judge and is not of itself, in my view, an exceptional circumstance.

12. For these reasons, I would refuse the applications for orders nisi.