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Judgment handed down in Cook v The Queen

28 September 2016

The law in Victoria provides that in a trial by jury, during the empanelment process the accused may ‘challenge’ up to six potential jurors without giving any reason. This is known as his or her right to ‘peremptory challenge’.

The Court of Appeal today quashed a County Court conviction because the applicant did not have a reasonable opportunity, during the empanelment process, to view the faces of prospective jurors. Thus his right to peremptory challenge was effectively denied.

During the empanelment process, the trial judge directed that when a jury member’s number was drawn from the ballot the juror was to stand up and walk directly to the jury box to take his or her seat. They were not required to walk past the accused in the dock. The process here adopted contrasted with the long standing practice in Victoria where, upon the name or number and occupation of the prospective juror being called, the person will walk past the accused in the dock before entering the jury box.

The applicant’s solicitor, who assisted the applicant during the empanelment process, gave evidence that the way in which the empanelment had proceeded meant that neither she nor the applicant had been given an adequate opportunity to observe the prospective juror’s face from the time that their number had been called until the moment that they entered the jury box.

The Crown cross-examined the solicitor and challenged her evidence. It submitted that the applicant had been afforded an adequate opportunity to inspect the faces of prospective jurors when one took into account the time during which they were in the jury box, immediately before taking their seat, as well as the side profile view of the jurors that the applicant would have had whilst they were making their way to the jury box.

However, on the accepted evidence of the solicitor, once a juror had entered the jury box, it was difficult to make an assessment as to whether to challenge that juror or not. It was not known, at that stage, which seat they might take. In addition, their faces were often turned down whilst finding their seat.

The Court of Appeal confirmed that in order to decide whether to exercise the right of peremptory challenge, an accused must have a reasonable opportunity to visually inspect each prospective member of the jury. The right to peremptory challenge had existed at common law, and now by statute, for many centuries. That right should not, in any way, be eroded.

The Court held that if the opportunity to challenge up until the time a juror entered the jury box was inadequate, the few seconds available to view that juror while he or she was in the jury box would not alter that state of affairs.

The Court accepted that, in the particular circumstances of this case, the evidence demonstrated that the opportunity to view the jurors before they entered the jury box was wholly inadequate. As the time available to view them from the moment they entered the jury box until they took their seats did not overcome that deficiency, it followed that the applicant was not afforded an adequate opportunity to exercise his right of peremptory challenge. Accordingly, there was a fundamental irregularity in the empanelment process that went to the root of the trial. The convictions could not be permitted to stand.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

Read the full judgment here on AustLII (External link)

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