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In this case, the Court of Appeal considered whether a trial judge’s comments during a jury empanelment regarding the number of male and female jurors had the capacity to influence the peremptory right of challenge and thus to undermine confidence in the perception of the integrity of the jury selection process so as to give rise to a miscarriage of justice. Their Honours unanimously found the comments had led to a miscarriage of justice.
Sofronoff P and Morrison and Philippides JJA
23 October 2020
The appellants were charged with the rape of a 16 year old complainant. On appeal, they raised the following issues:
- whether comments made by the trial judge during the empanelment process resulted in a miscarriage of justice;
- whether the trial judge erred in failing to discharge the jury pursuant to s 60 of the Jury Act 1995 (the Act);
- whether the trial judge erred in failing to exclude certain evidence as inadmissible; and
- whether the conviction of one appellant was unreasonable. .
The outcome of the appeal turned on the first two grounds. Relevantly, the first issue concerned a comment made by the trial judge during the empanelment process. After five male and one female jurors had been selected, the trial judge interrupted the process and made the following comment in the presence of both the selected jurors and remaining jury panel:
“Counsel for the prosecution and all the defendants, I want to remind you that I have a discretion under section 48 of the Jury Act 1995, to discharge all the persons selected to serve as jurors if I consider that the challenges made by the persons selected on the jury or as reserves have resulted in a jury of a composition that may cause the trial to be, or appear to be, unfair. I would consider a jury entirely comprised of men or almost entirely comprised of men to be a jury of a composition that may cause the trial to appear to be unfair. I indicate that at this stage. Thank you.” .
At the trial, there was no application for the discharge of the jury and the empanelment process continued. .
The appellants’ submissions
On appeal, the appellants submitted that the comment had the effect of restricting or interfering with the right to peremptory challenges in s 42(3) of the Act. The comments were said to have negatively impacted the community’s perception of the integrity of the “process and regularity of procedure in the jury system”. .
The appellants submitted that the error resulted in a defect in the constitution of the jury. It was contended that there had been a fundamental failure to observe the requirements of the criminal process which had resulted in a substantial miscarriage of justice. .
The respondent’s submissions
The respondent submitted that the jury had been constituted in accordance with the Act. It was further contended that caution should be exercised before an error was found in circumstances where there was “an absence of authority” on s 48 of the Act. .
The respondent ultimately accepted in the course of oral argument that, if the comments were found to give rise to an apprehension concerning the right to challenge then, irrespective of evidence of an actual influence on the right to challenge, there would be a substantial miscarriage of justice to which the proviso did not apply. .
The Court of Appeal’s decision
The Court of Appeal considered that the key issue raised by the case was whether the comments made by the trial judge had “the capacity to influence the peremptory right of a challenge and thus undermine confidence in the perception of the integrity of the jury selection process so as to give rise to a miscarriage of justice”. .
In considering s 48 of the Act, their Honours noted the absence of reported decisions on the nature of the power under the section. However, the Court declined to embark on such analysis in this case. Their Honours did reject the “assumption” that a jury comprised almost entirely of men may cause the trial to be unfair. .
The Court noted, citing Katsuno v The Queen (1999) 199 CLR 40, that it was clear that a wrongful denial of the right to a peremptory challenge would be a fundamental defect in the proceedings. . The Court further considered that it was significant that the trial judge’s comment provided an “advance intimation before the completion of the selection process, of what challenges would, in her Honour’s view, enliven her discretion to discharge under s 48”. .
Their Honours confirmed that “both the fact and the perception of integrity in the selection process are the utmost of importance”. The Court considered that the comments were “reasonably capable” of being perceived as intending to influence the exercise of the peremptory right of challenge. The Court considered it difficult to see any other purpose for which the comments would have been made. .
Their Honours considered that the parties’ failure to seek the discharge of the jury did not mean the appellants had waived their right to a fair trial. The Court distinguished civil cases where it was said parties “are masters of their fate” from criminal cases where the community was said to have “an ineradicable interest” in the system’s integrity. . Therefore, the Court of Appeal found the trial judge had erred in interrupting the empanelment process. The comments had resulted in a miscarriage of justice and a fundamental defect in the composition of the jury to which the proviso did not apply. The Court ordered that the convictions should be set aside and a retrial ordered. .
The Court also found that the trial judge erred in failing to discharge the jury pursuant to s 60. The Court unanimously allowed the appeal, set aside the convictions and ordered a re-trial on all counts. .