Regina v Ronen

[2004] NSWSC 1292

CITATION:	Regina v Ronen & Ors [2004] NSWSC 1292
HEARING DATE(S):
JUDGMENT DATE:	16 April 2004
JUDGMENT OF:	Whealy J at 1
DECISION:	I have come to conclusion that I should not accede to the application that has been made.
CATCHWORDS:	Trial by Jury - Jury Act (NSW) - Is accused entitled to know names and occupations of Jurors?
LEGISLATION CITED:	Jury Act 1977 Jury Act No 15 of 1997
CASES CITED:	Katsuno v The Queen (1999) CLR 40 at 90-91 Kingswell v The Queen (1985) 159 CLR 264 at 301-302 per Deane J
PARTIES :	Regina v Ida Ronen Regina v Nitzan Ronen Regina v Izhar Ronen
FILE NUMBER(S):	SC 70222/03; 70032/03; 70223/03
COUNSEL:	Mr T. Game SC; Ms S. McNaughton - Crown Mr R. Richter QC; Mr. N. Rosenbaum - Accused Ida Ronen Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr P. Jones - Accused Izhar Ronen
SOLICITORS:	Ms P. Musgrave - Cth DPP Watsons Solicitors - Accused

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

FRIDAY 16 April 2004

70032/03 - REGINA v Nitzan RONEN
70222/03 - REGINA v Ida RONEN
70223/03 - REGINA v Izhar RONEN

JUDGMENT - (On application for disclosure of jury panel information; see page 931 of transcript)

1 HIS HONOUR: The joint trial of the three accused is to commence with the empanelment of a jury on Monday morning next. The present application made on behalf of the accused, which has been formulated by Mr Richter QC but I assume it is made on behalf of all accused, has come very late in the day, on the Friday before the empanelling of the jury. This is so notwithstanding that the Court has been engaged extensively in pre-trial matters since early February 2004.

2 Mr Richter's application is that the representatives of the defence should be supplied with an extract from the panel list before the empanelment process begins. He requires, as part of his application, that the extract contain the names, occupations and identification numbers of those persons who comprise the jury panel. It must be said that this is a novel application. This is so because, since 1998 the identification of panel members and jury members has, in this State been replaced by a strict system of anonymity.

3 First, Mr Richter has argued that there is no prohibition in the Jury Act 1977 which would forbid the granting of the application he makes. He put this argument in a number of ways but, in the end, it was Mr Richter's submission that upon close analysis none of the sections of the Act to which reference has been made in argument result in a situation where the supply of the names and occupations of the jury panel would be contrary to the express language of the Act or its overall intent.

4 Secondly, Mr Richter has argued that there is a good reason for this information to be provided to the defence: namely, that it may be of assistance to the defence in relation to the rights they have to challenge under the provisions of the Jury Act 1977. Put another way, he says that if the requested information is not made available there will be unwarranted restrictions in effect imposed upon the defence at the time the challenge process is undertaken.

5 In support of the application, Mr Richter has listed a number of undertakings which he would be prepared to give. These he said, were designed to ensure that information about the identity of jurors is not made available generally. Mr Richter appeared to accept that the information would, and no doubt, should be available to the accused, as their instructions would be necessary, or might be necessary, in relation to the challenge process. Senior Counsel pointed to the practice in other jurisdictions, for example, Western Australia and Victoria. The undertakings which Mr Richter proffered would prevent a situation where, at least in open Court, there would be any categorisation of panel members otherwise than by way of the identification numbers, which are allocated to them by the Sheriff pursuant to the provisions of the Jury Act.

6 Mr Cogswell SC appears for the interests of the Attorney General. As Crown Advocate, he has opposed the application that has been made on behalf of the accused. He says that the matter is determined by a proper appreciation of the provisions of the Jury Act 1977. He referred in particular to ss 29(4), 37, 48(2)(b), 67A and 68. Much debate between counsel focussed upon these individual sections and what they may or may not mean and what they may or may not prohibit. The argument on both sides also required a brief examination of the Second Reading Speech, namely the speech of the Attorney General at the time of the Second Reading of the Bill.

7 There has been little time for me to examine or reflect upon the arguments put to me, or for that matter to consider at leisure the provisions of the Jury Act 1977. However, in that brief time I have endeavoured to give proper consideration to the arguments that have been advanced before me.

8 I will turn first to examine briefly the structure of the Jury Act 1977. The definitions in the Act, s 4, contain a reference to "identification number". This is the identification number allocated to the person under s 29. The Act begins by examining the qualifications of potential jurors and liability for jury service (see ss 5, 6 and 7). There are next established jury districts and jury rolls. This appears in Part 3. This part includes the random selection of respective jurors and the preparation of supplementary jury rolls. The scheme of the Act, (for example s 14) shows that the Sheriff from time to time has the capacity to delete persons disqualified, ineligible or exempt from the supplementary jury roll, and indeed there is a provision for an appeal in favour of a person aggrieved by that determination (see s 15). The Sheriff is obliged to certify the roll and may from time to time amend it (ss 16 and 18).

9 Part 4 deals with the constitution of the jury in a trial. It is principally concerned in the case of criminal trials with establishing the number of persons who are to be on the jury for that purpose. Section 22, deals with the continuation of a trial in certain circumstances where the jury number falls below twelve.

10 The summoning of jurors is dealt with under Part 5. Section 25 enables the Sheriff to select at random from the jury roll the numbers of jurors estimated to be summoned for trial in the particular district. Section 26 deals with the manner of summoning potential jurors. Section 27 expands that aspect of the procedure by allowing the selection and summoning of additional jurors where the original numbers appear to be insufficient. Section 28 provides for the preparation of a Sheriff's return. This requires the Sheriff to make a return at each time and place at which jurors are required to be taken by summons served under the division. The return must contain certain particulars, including a panel of the names of those summoned and, if appearing on the roll or supplementary roll, the occupations of those persons. Thus, it may well be the situation that the occupation of an individual does not appear on the panel or in the return.

11 The Sheriff is required under s 28(3) to provide the names and other particulars recorded on the rolls or supplementary rolls of the persons on the panel; and also apparently on separate cards, each card being "as nearly as practicable of equal size". Section 29 requires the Sheriff, before furnishing the return and the cards referred to in s 28, to allocate a separate identification number to each person included in the panel referred to in s 28.

12 I pause there to say that I have not had the opportunity to examine in detail the provisions of the previous Jury Act. Prior to Act No 15 of 1997 (when the identification number system was introduced), my general understanding is however that it was the name of the person which was placed upon the card; and of course when the empanelment process began the names were openly made available in a public manner. This understanding is consistent with s 28.

13 To return, however, to the present scheme, s 29 introduced a significant change. It provided that the Sheriff must record a person's identification number against the place where the name of the person appears on the panel and on the card referred to in s 28(3) relating to the person. Section 29(3) requires the Sheriff to inform a person of the person's identification number when the person attends on the first day on which attendance is required. Section 29(4) stipulates that a person who is allocated an identification number is to be addressed or referred to only by that identification number when the person is present in the Court for the purpose of the relevant proceedings.

14 There is a regulation making power for the allocation of identification numbers, and the cards that are to be used in the Court, but at this stage I have not been referred to any regulations that have been promulgated pursuant to that power.

15 Section 37(1) provides as follows:

"A person who is summonsed under division 1 is not required when the person attends at a trial to disclose the person's name or any other matter that identifies or is likely to lead to the identification of the person (for example, when the person requests to be excused under s 38(1)(b) or the person, while serving as a juror, is examined on oath under Part 8).”

16 Sub-section 2 of s 37 provides, however, that a person so summonsed is to provide “such information to the Sheriff” when the person attends on the first day on which the person's attendance at the trial is required in accordance with the summons, or if requested to do so by the Sheriff at any other time during the course of the trial”.

17 Section 38(7) imposes a mandatory obligation on the trial judge. Before the selection of the jury at a criminal trial, the trial judge is to direct the person prosecuting for the Crown to inform the jurors on the panel the nature of the trial, the identity of the accused, and the principal witnesses to be called for the prosecution; and to call on the jurors on the panel to apply to be excused if they consider they are not able to give impartial consideration to the case.

18 I note that there was a previous s 40 which enabled inspection of the panel in certain circumstance. This however was repealed by Act No 15 of 1997.

19 Part 6 of the Act deals with challenges. Part 7 deals with the balloting of the jury in both criminal and civil proceedings. So far as the former is concerned s 48 provides as follows:

“The jury for the trial of any criminal proceedings in the Supreme Court shall be selected by a ballot in open Court in accordance with this section”.

20 The ballot procedure requires that the persons called to be sworn and to face challenge are called only by the identification numbers shown on the cards placed in the ballot box (s 48(2)).

21 I note that the practice that is followed, at least in the Supreme Court, is that the cards that are drawn out of the ballot box for the purpose of following the procedures set out in s 48 do not have endorsed upon them the name of the panel member or any other matter that would be likely to identify the panel member or any other detail regarding the panel member beyond the identification number.

22 Part 8 deals with procedures upon trial. It includes, for example, the power of the Court to order the jury to separate in criminal trials.

23 There are then other matters that I need not detail here. Part 9 deals with offences. There is created an offence in s 67A. It is in these terms:

"(1) A person must not inspect or make available to any other person a panel or card prepared for the purpose of this Act by the Sheriff.
(2) This section does not apply to anything inspected or made available to another person for the purposes of executing this Act ."

24 This section was introduced by Act No 15 of 1997.

25 The next section is s 68 and it also creates an offence, quite a serious one having regard to the maximum fine and term of imprisonment imposed. It is in these terms:

“ 68 Disclosure etc of identity or address of juror
(1) A person shall not, except in accordance with this Act, wilfully publish any material, broadcast any matter or otherwise disclose any information which is likely to lead to the identification of a juror or former juror in a particular trial or inquest.
Penalty: In the case of a corporation, $250,000; in any other case, 2 years imprisonment or 50 penalty units (or both).

(2) Subsection (1) does not apply to the identification of a former juror with the consent of the former juror.

(3) A reference in this section to the identification of a juror or former juror includes a reference to the disclosure of the address of the juror or former juror. "

26 Sub-section (4) provides that sub-s (1) does not apply to the disclosure of information by the Sheriff to any of a number of bodies or persons “for the purpose of an investigation or prosecution of a contempt of Court or an offence relating to a juror or a jury." The list of bodies or persons includes “a Court” and also includes bodies such as the New South Wales Crime Commission, The Director of Public Prosecutions, Police Service and Australian Federal Police.

27 Mr Richter has argued that s 29(4) of the Jury Act prevents a panel member (or one who is subsequently sworn as a juror) from being addressed or referred to otherwise than by the relevant identification number, when the person is present at the Court for the purposes of the relevant proceedings. But, he argued, it does no more than that. Similarly, senior counsel argued that s 37 is likewise restricted to protecting panel members and jury members from disclosing their identity (or other matters likely to lead to their identification) when they are present at trial. There is, he argued, no prohibition contained in these sections that would prevent the trial judge from ordering the Sheriff to make an extract of the names, occupations and numbers of those on the panel; and providing the extract to the defence.

28 I remarked during the course of the argument, and it is still my view, that it would make something of a mockery of these provisions if Mr Richter’s views were to prevail. On the one hand, the panel members and subsequently sworn jurors, might well be confident throughout the proceedings that their identity was not known and unlikely to be known; on the other hand, the true situation (unknown to them) would be that at all relevant times the accused and their representatives had a list of the jurors’ names and occupations. One of the mischiefs clearly aimed at by the legislation was to prevent jury tampering and the avoidance of threats and actual danger to jury members. These mischiefs would be ever present in circumstances where the accused knew of the identity of the panel members and subsequent jurors. Mr Richter eschewed any desire to be appraised of the addresses of panel members, but it is plain that, in less scrupulous hands, possession of the name and occupation of a juror is but a simple step removed from discovering a residential address or place of work.

29 The relevant legislative intention is, in any event, made clear, in my view, because of the terms of s 67A. There is, in absolute terms, a prohibition on a person inspecting or having access to the information held by the Sheriff which provides the names and occupations of panel members. I do not consider that the legislature envisaged that the Sheriff might lawfully contravene the obvious intent of this section by preparing an extract from the panel or cards at making it available for inspection.

30 There is of course, an exception in s 67(A)(2)(a). The section does not apply to anything inspected or made available to another person “for the purposes of executing this Act”. I do not agree, as Mr Richter has argued, that these words are apt to enable the preparation of an extract from the panel or the cards to assist the defence (or the prosecution for that matter) to determine whether to make a challenge to panel members. The expression in question is apt, however, to describe an administrative function carried out for the purposes of the Act. (See, for example, the provisions in s 29(5); s 37(2)(a) and (b); s 38(1)(a) and s 38(6); s 48(2)(a) and (b); s 50(2)(a) and (b); and s 52(1) (2) and (3)). Arguably, in relation to the execution of functions under each of these sections it may be necessary for the Sheriff to make available the panel or cards or information contained therein to another person. In my opinion, the exception does not operate to assist Mr Richter’s application. Rather, it lends weight and support to the contrary proposition.

31 The matter is put beyond doubt by s 68. This section was introduced later than the earlier provisions brought into existence by Act No 15 of 1997. It may be accepted that it had a broader purpose than those earlier sections. It is clear, however, that s 68 is postulated upon an express statutory assumption that the Sheriff will not (otherwise than as provided in sub-s 4) disclose information which is likely to lead to the identification of a juror in a particular trial. The language is wide enough to extend to a panel member who subsequently becomes a juror. Moreover, the assumption is that the information will not be disclosed, for example, to a Court or prosecuting or investigatory bodies such as the Director of Public Prosecutions or the Australian Federal Police. If the Sheriff is prohibited from disclosing information likely to lead to the identification of a juror to the Court and the DPP, it seems hardly likely that it was intended that the information could be provided nevertheless to the accused or his or her legal representatives.

32 In my view, the purpose of the legislation, that is Act No 15 of 1997, was to preserve the anonymity of persons called to form the panel from which a jury would be selected in a criminal trial and to preserve that anonymity throughout the trial. This was in marked contrast to the situation that existed prior to the passage of the 1997 legislation.

33 Mr Richter has argued, particularly having regard to the Second Reading Speech, that the evil to be avoided by the legislation was the naming of the jurors in open Court, particularly in the presence of the accused; but in my opinion the very sections I have referred to, either considered separately or as a whole, reveal a more fundamental legislative intent: that is an intent to keep out of the trial arena altogether the names and identified details relating to the jurors.

34 In place of the previous system there has been instituted a system of identification by number only. I believe it would be contrary to the express language of the legislation and its overall spirit and intent were the present application to be granted. In my view, the Act does not permit the present application to be made. Rather, on its proper construction, it prohibits and makes illegal the furnishing by the Sheriff of an extract from the panel and from the cards of details of the names and occupations of the members of the jury panel, if that extract is to be made available to the accused and the defence representatives. It would also be an offence were it to be made available to the trial judge, the Crown or the DPP, save in the limited circumstances mentioned in s 68(4).

35 Secondly, I do accept that any substantial handicap, or for that matter any unreasonable restriction, is placed upon the accused if they were not to be provided with the information that has been sought.

36 I agree with the submission of the Crown Advocate that as the Second Reading Speech makes clear on page 2, the withholding of a juror's name and the withholding of it from the accused will not undermine the trial process or impinge upon the rights of an accused person by limiting his or her right to make a peremptory challenge. This is so because of the requests of s 38(7).

37 I accept that it is, in theory, possible that in some cases identification of a person by name, perhaps by occupation, may be of some assistance in helping the accused by his or her counsel to form an assessment as to whether a peremptory challenge should be made; but equally it may be said that information of that kind may be quite unhelpful and capable of being positively misleading. Be that as it may, the trial Judge, as I have already indicated, is now obliged under the present legislation to draw certain matters to the jury panel's attention before empanelment; and to call upon people to come forward and seek to be excused if for any reason they are unable to give impartial consideration to the case. It is my belief that the form of such a direction to the jury panel should be a robust one and one which leaves the jury panel members in no doubt that, if there is any matter at all that would lead to a possible situation where impartiality may not be able to be maintained, then those persons must come forward and seek to be excused. Indeed, I would, in the present matter, welcome any suggestions from both the Crown and the accused as to the form of any such exhortation to the members of the jury panel.

38 Mr Richter, for example, referred to the fact that his clients are in the clothing or garment manufacturing business. He used a well-known colourful phrase, "the rag trade". It seems to me that, if he wishes, the form of the remarks to the jury pursuant to the terms of s 38 sub-s 7 can encompass that situation.

39 He also mentioned the ethnicity and religion of panel members. I must say for my part I would be very reluctant to raise such a matter, but I have an open mind on it. If Mr Richter thinks that a person, for example, of the Hebrew faith might make a satisfactory juror from his client's point of view, or an unsatisfactory one for that matter, these are matters that can be explored, before settling on the final form of the statement to panel members.

40 We are in danger of dealing, it seems to me, as the Attorney General said in the Second Reading Speech, in stereotypes when we come to some of these aspects of the matter. But in any event may I conclude this particular portion of my decision by simply repeating that I believe that a robust direction should be given and I am open to any suggestions that either counsel may give me to assist in what should be put to the jury panel.

41 That really leaves only one final point. That is Mr Richter's argument that unless he knows the occupation of people, then it may be the position that somebody who has an interest or experience or a qualification as an accountant, for example, will pass by with or without challenge but again whether that is or is not a desirable thing seems to me to be highly speculative and very much a matter of stereotyping. Moreover, the entire process of jury selection in this State is one based on random selection and is intended to result in a representative selection.

42 I can accept in theory that the statement of a person's occupation might in some instances be helpful to the accused but on the other hand it may in practice be simply a hindrance and quite misleading. The nature of a peremptory challenge is, of its nature, likely to be based on appearance and immediate perception (see Kirby J in Katsuno v The Queen (1999) CLR 40 at 90-91). Challenge for cause is in a different category but the onus falls on the person making the challenge and, in any event, I am by no means persuaded that knowledge of a name and occupation would, in such a case, provide any real benefit in that regard.

43 Two things are quite clear. One is that we have not resorted to the position in jury selection in New South Wales, of conducting a wide-ranging inquiry into the background of panel members. Secondly, we have in fact gone a long way in the opposite direction because of the legislation to which I have referred. The modern legislation has in my view, endeavoured to achieve, and in fact has achieved, a very notable degree of anonymity for jurors. This result is clearly desirable in preventing jury tampering and providing a measure of privacy to jurors. In the end, these protections are not merely for the benefit of jurors and potential jurors but are, as well, important bulwarks for the administration of justice generally. Hence, they operate in that sense, ultimately for the benefit of all accused persons facing jury trial (see Kingswell v The Queen (1985) 159 CLR 264 at 301-302 per Deane J).

44 For all those reasons, I have come to the conclusion that I should not accede to the application that has been made.

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Last Modified: 07/16/2007