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In this recent matter the Court of Appeal had cause to consider the jury empanelment process and particularly in what circumstances a challenge will be effective. This issue arose out of the appellant’s conviction by a jury for unlawful assault occasioning bodily harm – the appellant appealing this condition on the ground (amongst others) that the jury was not empanelled according to law.
Pursuant to the Jury Act 1995, in a criminal trial the defence is entitled to eight peremptory challenges and that these challenges may be made by the defendant or their representative and “must be made before the [bailiff] begins to recite the words of the oath to the person challenged”. Jury Act s 44, see also –. In this case the Court order sheet relevantly recorded only that the jury was empanelled, and the official transcript recorded that before the jury was empanelled the appellant was informed of his right of challenge. The transcript does not record that the appellant personally challenged the empanelment of any juror. .
The appellant’s argument upon this ground depended upon fresh evidence in the form of an affidavit of defence counsel and an affidavit by the defendant. Leave to adduce this evidence was not opposed by the respondent. The effect of these affidavits was that during the later stages of the empanelment process whilst a potential juror approached the bailiff the appellant called out “challenge” or a word or words to that effect loud enough for someone seated in the trial judge’s position to hear. The appellant was advised by his counsel to keep quiet and at a later stage the appellant’s counsel sought and was granted an adjournment to speak with the appellant.
During the appeal the recording of the relevant part of the empanelment was played. When the relevant potential juror was called the word “challenge” could “just” be heard as a whisper. . This was closely followed by a conversation which was difficult to hear (consistent with it being a conversation between the appellant and his counsel) and subsequently defence counsel asks to speak with his client and the dock microphone is covered. The microphone is uncovered and the empanelment process continues. The transcript also records an exchange between defence counsel and the trial judge (whilst the jury is not present) to the effect that defence counsel would remind the appellant that “unless he’s called upon directly, I am [defence counsel] his mouthpiece in this trial”. . A report from the trial judge received by the Court stated that her Honour did not hear the appellant challenge the juror, but did recall him being agitated in the dock. .
The appellant contended the jury was not empanelled according to law because during the selection process the appellant personally exercised his right to challenge a juror, that this challenge was validly made and his counsel had no authority to withdraw that challenge. The appellant alleged that the swearing-in of this juror, notwithstanding the appellant’s challenge, was an irregularity which resulted in the conviction being tainted by a miscarriage of justice, see Johns v The Queen. . In reply, the respondent submitted that the appellant had not made an effective challenge because it was not audible to the court, but did concede that if an effective challenge had been made the jury had not been empanelled according to law and that, as a consequence, there was a fundamental error such that a retrial ought be ordered. , see Criminal Code s 668E(1)A; Johns v The Queen; Wilde v The Queen.
The sole issue before the Court was whether or not the appellant made any effective challenge to the juror in question. The Court considered that given the requirement of s 39(b) of the Jury Act that the defendant or their representative “make the challenge before the person is sworn as a juror” necessarily implied that the “intended challenge is … made in a way which is sufficient to bring to the Court’s attention before the juror is sworn that the appellant challenges the juror”. . Thus, for the appellant’s challenge to have been effective it must have been “audible to the court”. , see also Hopestill Tyndal’s Case; R v Harrington and Hanlon. The question was thus whether, on the evidence before the Court, the word “challenge” spoken by the appellant was audible to the court. . The Court considered that the recording did not support the affidavit evidence that the appellant’s speech was loud enough for the trial judge to hear. –. For this reasons the Court concluded that the appellant did not make an effective challenge and dismissed this ground of appeal. .
R M Derrington QC
Editor: Queensland Reports