Masaharu Katsuno v The Queen M6/1996 [1997] HCATrans 185 (6 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M6 of 1996

B e t w e e n -

MASAHARU KATSUNO

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M34 of 1996

B e t w e e n -

MITSUO KATSUNO

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M39 of 1996

B e t w e e n -

CHIKA HONDA

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M40 of 1996

B e t w e e n -

KIICHIRO ASAMI

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ

DAWSON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 6 JUNE 1997, AT 10.07 AM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear on behalf of all four applicants with MR M.K. MOSHINSKY. (instructed by Slades & Parsons, Kiernan Bryant & Bourke, Wallington-Brand and by the Victorian Legal Aid)

MR B.R. MARTIN, QC: May it please the Court, I appear with my learned friend, MR R.T. BARRY, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

BRENNAN CJ: Mr Grace.

MR GRACE: In Brown, your Honour the Chief Justice stated that the jury is the fundamental institution in our traditional system of administering criminal justice and that section 80 is not concerned with a mere matter of procedure but with the constitution of a court exercising jurisdiction to try a person charged on indictment with a federal offence. In the same case, Justice Deane commented that the panel of ordinary and anonymous citizens assembled as representative for the general community to determine guilt or innocence helps ensure that the interests of the administration of justice and the community generally are pursued. The other factor that Justice Deane emphasised was that the representativeness of the jury assists the community generally in allowing it to have a perception of the administration of criminal justice being unbiased and detached. The introduction of trial by jury therefore fosters the ideal of equality in a democratic community.

Some years later in Cheatle, in a joint and unanimous judgment, all members of this Court found that the relevant essential feature or requirement of the institution of trial by jury was in 1900, and is today, that the verdict of the jury be unanimous. But in so finding, the Court stated that it is an essential feature or requirement that the jury be a body of persons representative of the wider community. The Court also postulated that there may be certain other essential features or requirements, such as that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State.

The issues in this case, your Honours, are whether, firstly, the practice currently in existence in Victoria and in other jurisdictions in Australia is one that is incompatible with the essential feature or requirement that a jury be a body of persons representative of the wider community. Secondly, whether it is an essential feature or requirement that the process of selection of the jury be fair to the accused and be seen to be fair and, thirdly, whether the current practice in Victoria and elsewhere is incompatible with that essential feature or requirement.

At the time of Federation in Victoria the accused was able to obtain a copy of the jury panel three days prior to trial. When amendments were proposed some years later by the government, first to reduce this to one day prior in 1920 and, later, to remove the right altogether, the proposals were met with fierce opposition on the grounds that it would deny the accused an important right, namely, that it treated the Crown and the accused unequally, because the Crown could have access to the list - - -

DAWSON J: What did the list show, Mr Grace? Just names?

MR GRACE: Names, addresses, occupations.

DAWSON J: Occupations?

MR GRACE: Yes. Also that the Crown's right to challenge would become more effective, therefore, or more powerful than that of the accused.

BRENNAN CJ: The Crown's right to challenge or to stand by?

MR GRACE: The right to stand by or challenge for cause, because the information would then allow the Crown to then pursue inquiries as to each individual on the panel and, as will be seen shortly when I refer to the Victorian Police Manual, your Honours will see how the practice developed to read out the names of jurors at police stations, in fact the material suggests the practice developed where at muster of the police on any particular day in every jury district where a jury panel had been assembled, the names of the panel would be read out and any policeman who knew of any name on the panel would put up his hand and come forward and state what he knew. The opposition that was - - -

BRENNAN CJ: Are you saying that by reference to what is in the application book?

MR GRACE: Yes, your Honour, it is referred to - - -

BRENNAN CJ: That is all right, so long as it does appear.

MR GRACE: Yes.

KIRBY J: You are going through an historical excursus at the moment, are you not? You have got us up to 1921, I think.

MR GRACE: 1922 now, your Honour. The amendments became law in 1922, notwithstanding the fierce opposition to the amendments at the time. Since that time, accused persons have had no access to the list of prospective jurors in Victoria.

The practice which is complained of in this case has developed in an ad hoc manner over what appears to be a period of about 40 years.

KIRBY J: Does the Crown practice continue, that is to say that the police in the district get the jury lists and the muster calls forth anybody who knows anything adverse?

MR GRACE: That has not continued. In the age of computers it is able to be effected much more expediently and the police manual sets out the procedures which are adopted to ensure that the Crown is advised of anything untoward about any member of the panel.

It is our submission that it is inconsistent with the ideal of equality as enunciated and referred to in Brown that this practice be allowed to continue and, furthermore, it gives the administration of justice the appearance of not being unbiased and detached. It may be appropriate now, your Honours, to refer to the Victorian Police Manual which your Honours have a copy of, particularly paragraph 31.7.

BRENNAN CJ: Was this an exhibit?

MR GRACE: This is a document that was tendered to the Court of Appeal and is a document that is referred to in the application book and also in the judgment of the Court of Appeal. It is not in the actual application book but is material that is common between the parties - - -

BRENNAN CJ: It was before the Court of Appeal?

MR GRACE: It was before the Court of Appeal. Could I refer your Honours to paragraph 31.7 (1). These directions contained in the Victorian Police Manual are directions which are formulated by the Chief Commissioner of Police. They have no other legal status and certainly are matters that are not in the public domain. In paragraph 31.7(1):

In special circumstances, lists of persons considered liable to be summoned for Jury service, together with a "Coversheet" which has a "Return date" endorsed thereon and that has provision for entering information regarding persons adversely known to police, and the reasons therefore, shall be forwarded to the officer in charge of each, or selected police stations or C.I. Branch Divisions in the jury district concerned for checking.

Then paragraph (2) goes on to say:

Where names and addresses extracted from a jury panel are forwarded to a police station or C.I. Branch Division for checking, the officer in charge shall cause such names and addresses to be closely checked by all members of the Force attached to the Station or C.I. Branch Division concerned. Information concerning any person who is known to be "Disqualified", "Ineligible" or "Unsuitable" and the reason therefore, together with the date of birth of the person concerned or, if this is not known, the approximate age, shall be endorsed on the "Coversheet". Persons with known antagonism to police or those associating with undesirable persons should be listed.

In 31.8(2):

In addition, the Officer in Charge, Jury Room or the officer in charge of the district concerned shall forward to the Crown Prosecutor for the court concerned, details of any persons considered to be unsuitable for jury service.

So what appears in the Chief Commissioner's manual is, in our submission, procedures which are unauthorised by the Juries Act and procedures which affect the Crown's knowledge of when to challenge or, indeed, to challenge for cause and, prior to 1994, to stand aside.

KIRBY J: The phrase "considered to be unsuitable for jury service" presumably refers back to and includes "known antagonism to police or those associating with undesirable persons".

MR GRACE: Yes. Now, at once, your Honours will be aware of Schedules 2, 3 and 4 of the Juries Act which provides the list of persons who are disqualified or can be exempted or excused from jury service. There is no such reference in that list to persons who have a known antagonism to police or who would otherwise be regarded by police as being unsuitable.

I want to give your Honours an example of the type of situation that could arise. A person charged, let us say, with a domestic murder, with no prior convictions, faces trial; defence is self-defence; he is acquitted by a jury; some years later appears on the jury panel from which a jury will be selected to try a charge of murder. That person is not disqualified by any provision under the Juries Act by no doubt the police would provide a notation on any cover sheet or document forwarded to the Crown Prosecutor, pursuant to the police manual, that that person was unsuitable because he may have a known antagonism towards the police because he was charged and faced the situation that the accused in this coming trial would face.

KIRBY J: Is there not a factual problem in this case, that even though the point you raise may or may not be a point of importance, that this was the fourth jury that was empanelled in this case and that, as I understand it, the Crown did not take advantage of or use in any way the information which had been provided in respect of this jury and that, therefore, this might not be an appropriate vehicle to allow this matter to be tested?

MR GRACE: There are two answers to that, your Honour. The first is: how will one ever get an appropriate vehicle unless the point is taken and the Crown disclose at some future date on an appeal that they have used a list.

DAWSON J: Was the point taken at the trial?

MR GRACE: Yes, it was.

KIRBY J: I thought it was taken on the first, second and third jury, and then on the fourth jury, perhaps in order to avoid this debate we are having now, the Crown did not seek to stand aside or challenge any jurors. Have I got the facts wrong?

MR GRACE: They did not challenge any member of the panel.

KIRBY J: I see. Is that because you say the panel was already expurgated?

MR GRACE: It is at page 22 of the application book. No, it was not because the panel was expurgated. At paragraph 8 on page 22 the deponent says this:

On behalf of the Crown I exercised a total of six peremptory challenges. All of these six challenges were exercised in respect of persons who had sought to be excused but had been unsuccessful.

What the deponent said in his affidavit was that he did not use the information that the Chief Commissioner of Police had provided to him, which is exhibited to that affidavit.

KIRBY J: Would it not be better for us to look at this in a case where the Crown had used the information that was supplied, as seems to have been the case in the first three empanelments?

MR GRACE: No, your Honour, because we say that one can never get a case where necessarily it will be the fact that knowledge is conveyed to the parties that the Crown has used the information. If the Crown decides not to divulge the fact that it has used that information, one cannot force it to divulge the fact. There is simply no evidence that it has used it; there is no evidence that it has not used it. But in this case we say that the Crown has used it, in any event. We say the Crown has used the information because it has used it in a negative sense. It has used it by allowing it to have the information - - -

KIRBY J: A nil return; getting a jury without any objection, and therefore it, as it were, used it negatively.

MR GRACE: Yes.

KIRBY J: I see.

MR GRACE: Possible ways the information could be used, firstly, of course, to form the basis of a challenge to a juror and, secondly, to reach a decision that a juror ought not to be challenged. That is the bone of contention between the applicant and respondent in this matter and one that your Honour's question has just canvassed. So we say it is not to the point, and that this case is an appropriate vehicle to examine the issue. One can never be certain of what case is ever going to be an appropriate vehicle unless an accused is convicted, has taken the point, it goes on appeal and the Crown decides to divulge the information at the time of the appeal process.

KIRBY J: Is the bottom line that in the selection of the jury the Crown and the accused are in an unequal position? The Crown has an inside running and has criteria used in terms so general as antagonism to the police and that is not disclosed and that therefore the Crown can affect the composition of the jury in a way that was not permitted at common law and which, as it were, biases the sample of the jury?

MR GRACE: Yes. And it is contrary to the legislature's stated intention in 1994 when it passed amendments to the Juries Act to abolish the right of the Crown in Victoria to stand aside jurors and to give the Crown the equal number of challenges that an accused person has.

DAWSON J: Do you say that that was a significant difference, do you, the abolition of stand asides?

MR GRACE: Yes.

DAWSON J: Why?

MR GRACE: Because it placed the Crown in exactly the same position as an accused at the time of jury selection and it gave the Crown exactly the same number of challenges as an accused person has. Parliament's intention, which is clear from the debates, was that the intention was to create equality between the Crown and the defence.

DAWSON J: Of course, the person stood aside went back into the panel and - - -

MR GRACE: If the panel had otherwise been exhausted.

DAWSON J: And they may become jurors then.

MR GRACE: Yes. If this practice does not create actual unfairness to an accused, it at least creates the appearance of unfairness.

BRENNAN CJ: Should the accused's solicitor also disclose to the Crown information that the solicitor has acquired on behalf of the accused?

MR GRACE: Certainly in cause situations, that has to be disclosed.

BRENNAN CJ: I am not interested in cause situations, we are talking about a criminal trial.

MR GRACE: There is no opportunity for an accused's solicitor to acquire that information.

BRENNAN CJ: Oh, Mr Grace, have you never been on circuit?

MR GRACE: Unless it occurs within the body of the court room, when the jury panel is brought in and one has a few minutes to then cast one's eyes over the panel assembled and then quickly make some decisions as to who this person might be.

BRENNAN CJ: When do you get a jury panel in a criminal trial? How long before the trial do you get the panel?

MR GRACE: The trial is virtually - - -

KIRBY J: Is it two days or - - -

MR GRACE: Instantaneous.

BRENNAN CJ: What, you mean you do not have a list of names of prospective jurors before you go into court?

MR GRACE: No. The accused does not have that.

KIRBY J: But the Crown does.

MR GRACE: The Crown does.

DAWSON J: The card is pulled out of the box and the magistrate - - -

MR GRACE: The first time the accused knows who is on the panel is when the card is pulled out of the box.

BRENNAN CJ: You do not have a list of jurors' names?

MR GRACE: No, you do not, your Honour.

KIRBY J: And for causes, you meant not causes in the sense of civil causes but challenge for cause.

MR GRACE: Challenge for cause, yes.

DAWSON J: I cannot remember, Mr Grace: is the occupation read out? It is not, is it, it is just the name that is read out when the card is pulled from the box.

MR GRACE: The occupation is read out.

DAWSON J: So it is name and occupation?

MR GRACE: Yes.

BRENNAN CJ: Let me understand the practice in Victoria correctly. Are you saying that the names of those who are summoned to serve on a jury panel are provided to the Crown but are not provided to the accused at any time before the trial?

MR GRACE: Correct.

BRENNAN CJ: That is your real ground of complaint, is it not?

MR GRACE: That goes to the equality argument, your Honour. The Act prevents the Crown and the accused from having the panel - - -

KIRBY J: You say it is something that did not happen at common law and it is essential to the integrity of the jury and therefore that raises a constitutional question but, in any case, it is contrary to the Juries Act of Victoria and the extent to which the police manual has remained the same has not, as it were, adapted to the Juries Act?

MR GRACE: Yes.

BRENNAN CJ: Mr Grace, could I understand precisely what the procedure is. I take it that the sheriff summons the panel, is that correct?

MR GRACE: Yes.

BRENNAN CJ: Then on the day of the trial, when you go into court, the Crown has a copy of that panel and the accused does not?

MR GRACE: Correct. The Crown has a copy of the list of prospective jurors, together with the report from the police - - -

BRENNAN CJ: Do not worry about the report.

DAWSON J: That is not the panel of prospective jurors. The Crown has a list of something.

MR GRACE: There is a dispute from the respondent as to what the Crown has. The Crown has at least the information supplied by the Chief Commissioner and we submit that the Crown also has a list of prospective jurors.

KIRBY J: How can the Chief Commissioner know it if this list is not made available to the Chief Commissioner which is in the camp of the Crown?

MR GRACE: The sheriff provides the names of those on the jury panel who - - -

KIRBY J: To the police.

MR GRACE: To the police for checking.

KIRBY J: And the police provide this to the Crown Prosecutor?

MR GRACE: Yes.

KIRBY J: But not to the accused.

MR GRACE: That is correct.

KIRBY J: And is this what Justice Vincent said was an inequality which should not be permitted?

MR GRACE: Yes, your Honour.

KIRBY J: And the Court of Appeal did not agree with that?

MR GRACE: That is correct.

BRENNAN CJ: I think your time has expired, Mr Grace.

MR GRACE: Yes. I seek an extension, your Honours.

BRENNAN CJ: What further do you wish to put?

MR GRACE: I wanted to refer to what Justice Vincent had to say In the Trial of D.

KIRBY J: I think we can infer what he had to say.

MR GRACE: Yes. In conclusion then, your Honours, we submit that it is unequal and unfair for this practice to be allowed to continue in this manner in Victoria, and it may well exist in other jurisdictions and this is an appropriate case for the grant of special leave.

KIRBY J: And the point was taken at the trial?

MR GRACE: Yes, it was.

BRENNAN CJ: Mr Martin.

MR MARTIN: Thank you, your Honour. May I clear up the misconception about what happens at the beginning of the trial. The sheriff provides the list of jurors, the panel, to the Commissioner of Police so that the Commissioner may make his inquiries in order to disqualify those who are not permitted to sit according to the Act.

KIRBY J: Does he also still inquire as to antagonism to police?

MR MARTIN: No, your Honour. The practice that was accepted by the Court of Criminal Appeal and was explained in Robinson's Case is that the Commissioner of Police restricts the information that is provided to the Crown to prior convictions. Although the police manual refers to antagonism to the police, that is not the practice that has been followed for some years and it was accepted in Robinson's Case and again by this Court of Criminal Appeal, page 54 of the application book about line 15, that it is restricted to prior convictions. That was the subject also of comment in Robinson's Case.

KIRBY J: And the Juries Act disqualifies - these are convictions which would disqualify the person from service?

MR MARTIN: Correct, your Honour.

KIRBY J: This is to prevent a jury being assembled which contains a disqualified person?

MR MARTIN: Yes, that is so.

KIRBY J: And that is the sole purpose of the Crown's inside running, as it were?

MR MARTIN: I am sorry, I may have misunderstood your Honour's question. The Crown gets a list of non-disqualified convictions; that is persons who have convictions that do not disqualify them pursuant to the relevant statutory provisions.

KIRBY J: But does that not give the Crown, as it were, inside running in - - -

MR MARTIN: It gives the Crown additional information. We would hesitate, with respect, to accept the expression "inside running".

KIRBY J: I withdraw the question then. It still gives them inside intelligence.

MR MARTIN: It gives them the additional information, inside intelligence, I would accept, your Honour. That is true. The situation then, to go to the next step: when it comes to the trial, however, the Crown does not have the list of prospective jurors. I need to make that very clear. My friend is quite wrong when he suggests the Crown has a list. Neither the Crown nor the defence in Victoria have a list. It is quite a different practice in other States, but neither the Crown nor the defence have the list. The only thing the Crown is provided with is the names and the convictions of those additional persons who have been identified by the Commissioner as having non- disqualifying convictions.

KIRBY J: But that can be used by the Crown for the purpose of its challenges, whereas the purpose of the Parliament of Victoria appears to have been to equalise the position of the accused and the Crown.

MR MARTIN: With respect, we suggest, and this was addressed by the Court of Criminal Appeal, that all that was sought to be done was to equalise the position with respect to the number of challenges available. Parliament did not seek to equalise the position with respect to the ability to make inquiries as to the suitability or otherwise of prospective jurors.

BRENNAN CJ: There cannot be any equality if nobody has the names, can there?

MR MARTIN: That is true, your Honour, except of course that difficult situation when you are in the court room and the persons are seated there and whether a witness or an accused knows the people on circuit, et cetera. We acknowledge that. It is a different situation in the other States, and the Court should - I am sorry, I will just give your Honours the reference. The procedure that I mentioned of not getting information about people antagonistic was discussed in Robinson's Case [1989] VicRp 24; (1989) VR 289 at 303.

BRENNAN CJ: Now, is this the situation, that the only information that the Crown has is of non-disqualifying previous convictions?

MR MARTIN: That is correct, your Honour.

BRENNAN CJ: It has that in a very large list and it can check against that list the names of any jurors whose names are called to the jury box?

MR MARTIN: It has - when your Honour says a large list, in reality, in this case the list itself - I think it appears at page 24 of the application book - your Honours will see the actual list that was provided to the Crown. If your Honours go over to page 25, for example, you see the history sheet itself, page 25 through to page 30. So that is the information the Crown receives that is not available to the defence.

BRENNAN CJ: So is this the sequence of events: the sheriff provides the Commissioner with the list of the jury panel for the courts which are sitting between particular dates?

MR MARTIN: Yes, your Honour.

BRENNAN CJ: That is the list that is vetted by the police and what is sent back is the names of those on that panel who have non- disqualifying convictions?

MR MARTIN: What is sent back first to the sheriff is the list of those who are disqualified. But in addition to that list, yes, the Commissioner provides to the Crown, be it State or Commonwealth, an additional list such as you see here.

KIRBY J: But where Parliament has taken the trouble to identify certain offences as disqualifying, then the inference, at least arguably, is that non-disqualifying citizens are citizens available for the jury panel. But if you then provide that additional data you, as it were, warp the composition of the jury because you can challenge to remove people who, though not disqualified, may be thought by the Crown to be antagonistic to its cause.

MR MARTIN: With respect, your Honour, when Parliament provided for those matters back in 1956 it was quite specifically stated by the Attorney-General in the second reading speech that the list would only be provided to the police and then the Crown, and then this practice has existed - and it was in existence at the time of the amendment in 1993 - and in Robinson's Case they had specifically said, "If the legislature regards it as unfair, then it is in the hands of the legislature now to remedy the situation." Now, Robinson's Case was in 1989. In 1993 when the legislature enacted a number of amendments, including the changes to the number of challenges, it did not see fit to specifically provide that the practice should cease, that in some way the practice was unlawful.

KIRBY J: Yes, but are we not dealing at a higher level here? A constitutional point is raised. A point is raised concerning the substantive nature of section 80. I mean, it is a rather fond belief that legislatures always pay close attention to Reg v Robinson, but experience rather suggests they do not always do so. But, in any case, we are dealing at the level of what the Constitution mandates for a jury, selected representative of the citizenry.

MR MARTIN: Can I go back to that issue, your Honour, because in our submission - - -

BRENNAN CJ: I do not know whether you can in the absence of a section 78B notice.

KIRBY J: I thought they were given, is that not correct?

MR MARTIN: They were given, as I understand it.

BRENNAN CJ: They were?

MR MARTIN: Yes, as I understand it. If I may go back to that, because we had been addressing, as I understood it, the question of the amendment to the Victorian Juries Act and whether Parliament intended by the 1983 amendments to create an equality that extended to removing the practice that existed. Our answer to that is when Parliament made some amendments in 1956 that practice was well known and the passage is referred to in the judgments here. And again in 1989 it was drawn to their attention. We go back to the constitutional question.

If the Court pleases, the feature of randomness, which is the feature upon which my learned friend hangs his application for special leave does not mean, with respect, that there is a totally unrestricted random selection. The randomness - - -

DAWSON J: It is the abolition of the stand asides which make the big difference. With the random selection, it is the randomness in the selection of the panel by the sheriff. When there were stand asides, the potential jurors who were stood aside did not cease to be part of the panel and if the panel was otherwise exhausted, they would come around again for selection. In that way, the randomness was preserved. Now the Crown does not have stand asides, it has peremptory challenges and in that way is able to select a jury which could not be done except in a modified sense by standing a potential juror aside.

MR MARTIN: Your Honour, I accept that there is that modification. However, in our submission, there has always been a modification or restriction in one form or another on the question of random selection. The Constitution does not guarantee that the jury will be totally randomly selected. The guarantee is to have an impartial jury, as far as possible, that is representative of the wider community.

KIRBY J: But if you take out of the jury a class of people who might have some reason for disaffection with police or officialdom, then you are changing the composition of the random selection. It is a sort of quasi-cause.

MR MARTIN: But the legislature also does that by disqualifying convictions applying - - -

KIRBY J: We are talking at cross-purposes. I am talking about the Constitution. You keep talking about Victorian legislation.

MR MARTIN: I understand that, your Honour, but my point is this: when section 80 was enacted there was, at that time, a restriction on the randomness of the selection. The judge at that time could make a decision that someone was not suitable for one reason or another. There was the ability of the Crown to stand aside. So the concept of randomness has always been subject to, at common law and since the enactment of section 80, a degree of restriction and the various State legislatures have, since section 80 was enacted, restricted the random nature of the selection by virtue of their procedures whereby the panel goes to the Commissioner of Police who then checks to see if they have disqualifying convictions. Now, if my learned friend is right that this practice infringes section 80, then every piece of State legislature necessarily infringes section 80 when it - - -

KIRBY J: Many States now have majority verdicts, but they just cannot have it under section 80.

MR MARTIN: I understand that, your Honour. But what follows from my learned friend's argument is that the various pieces of State legislature - - -

KIRBY J: But would that be such a bad thing, that the Constitution, by its insistence on a random jury, insisted that it should not be warped in favour of one side or the other?

MR MARTIN: The answer to it is we are not warping it in favour of one side or another.

KIRBY J: You are, if you are getting inside information.

MR MARTIN: That is not warping it, your Honour, because the role of the Crown, as explained in Robinson's Case and by the Court of Appeal here, is to ensure that we have an indifferent jury. So it is not a process which is warping, it is rather a process which is enhancing the probabilities of obtaining an indifferent jury. And that is a very key point, in our submission.

DAWSON J: Of course, the accused in exercising his peremptory challenges is choosing a jury. He will, for instance, in a case of driving offences, if the folklore is the same, challenge all drivers who are on the jury and so on.

MR MARTIN: Yes. And certainly if he is charged with an armed robbery of a bank, he will not permit a bank teller to make it to the jury, if he can avoid it.

KIRBY J: Yes, but these are random chance factors of occupations. What is being talked of here is a system that gives the Crown inside intelligence about a group of citizens who are non- disqualified, entitled to sit, in a random selection, but are removed or can be removed by challenges by the Crown.

MR MARTIN: I acknowledge that, your Honour, but we come back to the point that it is in aid of the impartiality of the jury that that process exists and that process, with respect, cannot be a breach - if that process is a breach of section 80 on the basis that it infringes the requirement, the essential feature of randomness, then every piece of State legislation that disqualifies jurors because of certain convictions must necessarily also infringe section 80 because that legislation restricts the random nature of the selection.

KIRBY J: I did not take Mr Grace to be challenging the express exclusion. What he says is it is where Parliament has troubled to exclude some people, they are the people who should be excluded, and that you should not then be excluding people who are not, by parliamentary provision, excluded.

MR MARTIN: But if I may say so, your Honour, that, with respect, is confusing two concepts. The first concept is whether this process, regardless of what the State legislatures have done, infringes section 80. If it does, then necessarily the legislation that bans people for certain convictions also infringes section 80. If it does not infringe section 80, then we come back to the question of whether the Juries Act should be interpreted in a manner that prevents this activity from occurring. In our submission, the Court of Appeal has dealt with that in very plain terms.

KIRBY J: I assume that at the time the Constitution was enacted by the common law or by legislation at that time people were excluded for certain convictions.

MR MARTIN: Your Honour, that is discussed at some length in Mason's Case, The Queen v Mason (1981) 1 QB 881 at 887 to 891. It demonstrates quite clearly that "the random selection of the jurors has always been subject to qualification". They are the words at page 887G.

KIRBY J: The question really is here, as it seems to me, whether you add to that by the provision that people who are not subject to disqualification can nonetheless, as it were, effectively be removed.

MR MARTIN: That then moves it away from, with respect, section 80 and it takes it right out - because otherwise the legislation is invalid - so it takes it right away from any special leave point, with respect, because the Court of Criminal Appeal, both in Robinson's Case and in this matter, have clearly addressed that issue of the interpretation of the Juries Act and are quite correct, in our submission, in concluding that the Juries Act does not prevent this practice from occurring and that in 1993, if Parliament had wanted to do so, it could then have quite easily achieved that purpose.

BRENNAN CJ: Mr Martin, in this case, the only information that was given to the Crown was that of previous convictions of some of those who were on the panel.

MR MARTIN: That is correct, your Honour.

BRENNAN CJ: And in empanelling a particular jury, that information was not adverted to.

MR MARTIN: It was available, but it was not used.

BRENNAN CJ: Not used. And then, if it was not used, then it could not have been instrumental in affecting the constitution of the jury.

MR MARTIN: That is correct, your Honour.

BRENNAN CJ: So that at least in this case the practice that has been adopted is one which did not affect the constitution of the jury?

MR MARTIN: That is correct, your Honour.

KIRBY J: What do you say to Mr Grace's point that it used it negatively because you had it and it was not, as it were, critical, that therefore you had the information and you did not use it because it did not need to be used in this particular case. It is the system that is defective.

MR MARTIN: When I was at university, the lecturers used to confuse me with examples like that. I still find them somewhat confusing, with respect, because the material - - -

KIRBY J: Not really; it is an attack on the system, not on the particular application.

MR MARTIN: I understand it is an attack on the system, but the fact of the matter is that there was no occasion to consider the use of the material in a positive or a negative way because the situation simply did not arise. That is the difficulty my learned friend faces. It sounds good to say it is a negative - - -

KIRBY J: The case has a number of interesting little points.

MR MARTIN: I appreciate that, your Honour. These cases often do. I appreciate that it is interesting to say, well, you use it in a negative way because you have got it there, but if the situation arises, you either use it or you do not. But the situation did not arise here and that is the problem my learned friend faces. If the Court pleases.

BRENNAN CJ: Mr Grace.

MR GRACE: Thank you, your Honour.

BRENNAN CJ: Mr Grace, in this case, if special leave were granted and you argued the appeal and it appeared that the information was not used, what order would you be seeking from the Court?

MR GRACE: A retrial.

BRENNAN CJ: On what ground?

MR GRACE: We say that there was use of the information in a negative sense. That allowed the Crown to enhance its decision-making process in the selection of the jurors.

DAWSON J: What you are complaining about is the absence of a randomly selected jury.

MR GRACE: Yes.

DAWSON J: Nothing was done to prevent the ordinary processes which give rise, you say, to randomness.

MR GRACE: Yes, your Honour, nothing - - -

DAWSON J: So you have no complaint in this particular case.

MR GRACE: Your Honour, we do have complaint because of - - -

DAWSON J: I know you do, but it is not one which would affect the outcome of the appeal.

MR GRACE: In our submission, it does.

DAWSON J: How?

MR GRACE: Because it gives the appearance that the administration of justice in this State, in this case, has been conducted unfairly.

DAWSON J: It does not, in this case, because what you complain of was not used.

MR GRACE: It is the appearance of unfairness.

DAWSON J: It is the appearance generally, but it would not be the appearance in this trial because it was not used.

MR GRACE: As I indicated earlier, your Honour, it would be very difficult indeed for this matter ever to be litigated.

KIRBY J: Would it really? Why not a case where the Crown exhausts all of its rights of challenge and you can come along and say, "Well, this point is still good, I argued it but it did not apply in the case of Katsuno but it applies here because the inference is to be drawn that the Crown used the intelligence by challenging."

MR GRACE: It gets back to the situation the Crown has not deposed in its affidavit material as to whether any of the jurors that were contained in their list of non-disqualifying prior convictions supplied to it were called.

BRENNAN CJ: You must know that, must you not? You know the names of those who were called. You know the names of those who were on the list.

MR GRACE: We had the names of those who were called and we had - - -

BRENNAN CJ: You know the names of those who were on the list.

MR GRACE: Not until the Court of Appeal.

KIRBY J: No, but you know it now.

MR GRACE: Yes.

BRENNAN CJ: Well, then - - -

KIRBY J: Were any of those called persons who were the subject of non-disqualifying intelligence?

MR GRACE: Not that we are aware of.

KIRBY J: Is there not a case going to come, pretty soon, one would think, where they were the subject of information and that challenge was made. The point will still be good. You can just save it up, Mr Grace.

MR GRACE: Yes, but only if the Crown decides to divulge that information to the defence at some stage after conviction. They certainly will not divulge it to the defence at the time of jury selection to allow the defence to use that information.

BRENNAN CJ: How would the defence use it?

MR GRACE: It could not be assumed that just because a person has a non-disqualifying prior conviction that he would either be unfavourable to the Crown or unfavourable to the - - -

BRENNAN CJ: How would the defence use it?

MR GRACE: The defence would use it as a means of enhancing its knowledge of the jury selection process.

BRENNAN CJ: What would it do? How would it affect the making of a defence challenge?

KIRBY J: Do not mess around. You would probably want such a person on the panel.

MR GRACE: Not necessarily. As Justice Vincent says, it cannot be assumed just because a - - -

KIRBY J: The Crown does not want it, you might want them. That is the very point you are objecting to, that it gives them an advantage that you do not have and that neither party should have.

MR GRACE: Yes. But it is pure speculation as to whether such a person would be favourable to an accused or unfavourable to the Crown. One just does not know.

BRENNAN CJ: But it is not a question of not knowing. If the information is information of prior convictions and the Crown want to use that as a ground of challenge, whether peremptory or for cause, they are armed with the information which allows them to make that decision. My question to you is, if you were armed with that information, how would it affect the defence decision?

MR GRACE: We may have challenged for cause.

BRENNAN CJ: On the grounds of prior conviction?

MR GRACE: Yes. And it enhances the Crown's ability to challenge for cause by having this information.

DAWSON J: And, of course, it may be that you would not challenge if you had the information, whereas if you did not have it, you may challenge. It works that way too.

MR GRACE: And if one of these persons, let us say, had been called out of the ballot box, and the Crown would have used that information to challenge or to challenge for cause - - -

DAWSON J: I just do not see how you could say that in this particular case the applicants had an unfair trial by reason of the matters of which you complain.

MR GRACE: Because we say that the applicants have a real complaint that their trial has given the appearance of unfairness; it has given the Crown an advantage in the jury selection process - - -

KIRBY J: I understand you take a higher point too, that whether it is unfair or not, it is invalid because it did not conform to the Constitution.

MR GRACE: Yes.

KIRBY J: I think we understand the points now.

MR GRACE: And could I just finally say that we join issue with the Crown as to this issue as to whether the Director of Public Prosecutions is provided with the list of those on the panel from which the jury is selected. Our researches indicate that the Victorian police do provide a complete list to the Director of Public Prosecutions of the names of all of those on the panel.

KIRBY J: But from the point of view of the Court, with a concrete case, would it not be a more concrete case to submit this to decision in a case where the Crown - you have the list, it has come before the court, and the Crown has challenged somebody on the list, non-disqualified by statute but disqualified by the extra intelligence?

MR GRACE: As I have indicated to your Honour, I cannot put it any higher. It requires divulgence by the Crown at some stage in the curial process, on appeal one would have thought, of that information.

BRENNAN CJ: Thank you, Mr Grace.

In the circumstances of this case, in which the police information was not adverted to by the prosecutor, the question of the permissibility of the practice of arming the prosecutor with that information does not arise. For that reason, this is not a suitable vehicle to consider that question. Accordingly, special leave is refused.

MR GRACE: If the Court pleases.

AT 10.55 AM THE MATTER WAS CONCLUDED