R v Theodoropoulos [2016] HCATrans 147 (17 June 2016)

Last Updated: 20 June 2016

[2016] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M18 of 2016

B e t w e e n -

THE QUEEN

Applicant

and

GEORGE THEODOROPOULOS

Respondent

Application for special leave to appeal

BELL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 17 JUNE 2016, AT 10.49 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, QC: If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the applicant. (instructed by Solicitor for Public Prosecutions)

MR J.P. DICKINSON, QC: If the Court pleases, I appear with my learned friend, MR M.D. STANTON, for the respondent. (instructed by Leanne Warren & Associates)

BELL J: Yes, Mr Silbert.

MR SILBERT: If the Court pleases, this concerns the quashing of a conviction based on what the Court of Appeal said was an invalid empanelment process of a jury and, that notwithstanding, the Juries Act 2000 governing the empanelment was scrupulously observed. The point raised by the Court of Appeal was that there was a departure from what had been seen as a practice in Victoria of potential jurors when called walking past the dock on the way to the jury box.

Now, that is a custom that has been followed for some time, but it is certainly not mandated by the legislation and, indeed, the legislation, section 36, insofar as it awards peremptory challenges to an accused, gives the right of challenge up until the time of a potential juror taking their seat in the jury box. We have set out the comparable provisions in other Australian States. There seems to be a similar provision in force in South Australia and, indeed, under the Rules of the Federal Court, although I am told it has never actually been implemented in the Federal Court.

The major difficulty is that the Court of Appeal seemed to concentrate in its decision on the length of time that elapsed between a juror being called, entering the jury box, and taking their seat, at which time the right of peremptory challenge expired. The major difficulty, your Honours – and I do not know whether your Honours have had the benefit of the DVD because the whole of the empanelment is captured on DVD from the time of the panel entering the court until the swearing of the members of the jury panel.

BELL J: I do not believe - certainly I have not seen it, Mr Silbert.

NETTLE J: No, I have not either. I have relied upon the tabulation of times taken in each case based on what was said by the solicitor in her affidavit.

MR SILBERT: Yes, your Honours. Well, the difficulty is that when one looks at the DVD, as your Honours are well aware, the practice in Victoria is for instructing solicitors to sit opposite counsel and to view the panel coming into court, rather uniquely, and when one looks at the DVD, the DVD records what went on from the moment the panel entered the court, generally walked past the dock, took their seats in the body of the court and, indeed, were in view of the instructing solicitor for something like 15 minutes before the empanelment process commenced.

BELL J: But Mr Silbert, the solicitor, as I recollected, in her unchallenged evidence - - -

MR SILBERT: Yes, your Honour.

BELL J: - - - gave an account that she had not had a sufficient opportunity to observe some of the members of the panel.

MR SILBERT: Yes.

BELL J: Now, there was no challenge to that, was there?

MR SILBERT: No, there was not and that is an obstacle we face and we recognise, your Honour, and that is the major obstacle. The difficult – effectively, notwithstanding the lack of challenge to that, the instructing solicitor can be seen for between 10 and 15 minutes observing the panel coming into court and observing – and having more than ample opportunity to observe each member of the panel as they came in, took their seats and, indeed, as the panel was called over by number and answered “present” or “excused” - - -

NETTLE J: But in the end we have a decision of the Court of Appeal based upon unchallenged findings of fact which resulted from the solicitor’s affidavit as to the lack of time which was had to observe the panel and effectively exercise the right of challenge. It is really not a question of principle; it is a question of fact. Certainly there are observations about the propriety or at least desirability of the long-established Victorian practice, but ultimately it is not on that the decision of the majority turns.

MR SILBERT: No, it is not, your Honour, and as I say I recognise as I stand here the difficulty with the position of not having challenged the affidavit of the solicitor. It should be said that there was no affidavit filed by the accused. The affidavit was solely filed by the solicitor and this is - - -

NETTLE J: Hardly surprising in the circumstances.

MR SILBERT: No. It is not a case such as Johns Case where the accused was deprived of a peremptory challenge. It is based, as your Honour Justice Nettle says, on a finding of fact based on unchallenged evidence. The difficulty, your Honour, is that the unchallenged evidence when viewed in the context of the DVD is cast in a somewhat different light.

BELL J: But we can only act on the findings below, surely.

MR SILBERT: Your Honour can, save and except in one sense is a visitation case and to the extent that the DVD is the best evidence and your Honours would conclude one way or the other having viewed it as to whether there was ample opportunity on the part of both the solicitor and accused in order to examine the visages of the members of the jury panel. Now, as I say, I accept both what your Honour Justice Bell has said and what Justice Nettle has said and there is nothing I can say to contradict that.

If they determine the matter, so be it, but, as I say, the DVD represents or casts some different light on – and the Court of Appeal viewed the DVD because they compiled this strange tabular table from what – the timing they took from the DVD. Now, obviously those moving to the back of the jury box took longer to enter the jury box than those seated closer to the judge, and the other thing, of course, was that the right of challenge existed up until the time each member of the jury took their seat.

It was said, even in the affidavit – conceding what was said by the solicitor in the affidavit, that seems to be a practice that she had not followed of challenging once a potential juror entered the jury box and prior to sitting down, which is precisely what section 36 of the Juries Act provided for. The ultimate question really is whether the provisions of the Act are trumped by some practice adopted by a solicitor in relation to the empanelment of the jury conceivably based on longstanding.

Now, as I say, the findings of facts are there. I cannot argue with them. There are, I am instructed, at least two other and possibly more appeals now on foot based upon this process of empanelment and if there is an important principle involved the principle really is whether the provisions of the Juries Act enabling a challenge – a peremptory challenge prior to sitting down – are excluded by custom, effectively, and if there is a point of principle stated conceding everything that has been said in the solicitor’s affidavit that would be the issue upon which special leave is sought.

BELL J: But putting to one side what seems to be peculiar Victorian practice in relation to empanelment, one has here findings in the Court of Appeal based on unchallenged evidence that the exercise of the peremptory challenge was frustrated by the solicitor’s inability to properly view prospective panel members. That has no implications, one would think, for the way another appeal, taking the light point, might be conducted. It would depend entirely on the evidence no doubt.

MR SILBERT: Yes, your Honour, save and except that there was a dissenting judgment from Justice Beale, which took issue effectively with the majority judgment, clearly. So it was open to interpretation as to whether it was adequate or not adequate and, as I say, conceding the findings, it is submitted that there is sufficient doubt to raise an issue warranting the grant of special leave. I am happy to take any further questions but I think I have probably conceded everything I have been asked to concede and still maintain that there remains an issue of some importance in the empanelment process in Victoria. If the Court pleases.

BELL J: Thank you, Mr Silbert. We do not need to hear from you, thank you, Mr Dickinson.

In light of the unchallenged evidence on which the majority of the Court of Appeal rested their conclusion, we do not consider the question of principle is appropriately raised. This is not a suitable vehicle in which to consider the Victorian practice respecting the empanelment of the jury. Special leave is refused.

MR DICKINSON: If the Court pleases, we seek costs.

BELL J: Yes, Mr Silbert?

MR SILBERT: No, I say nothing in opposition, your Honour.

BELL J: With costs. Adjourn the Court to 10.15 am on Tuesday, 19 July in Canberra.

AT 11.00 AM THE MATTER WAS CONCLUDED