Regina v Ronen & Ors [2004] NSWSC 1292

New South Wales Supreme Court

CITATION : Regina v Ronen & Ors [2004] NSWSC 1292 HEARING DATE(S) : JUDGMENT DATE : 16 April 2004

JUDGMENT OF : Whealy J at 1 DECISION : I have come to conclusion that I should not accede to the application that has been made.

CATCHWORDS : Trial by Jury - Jury Act (NSW) - Is accused entitled to know names and occupations of Jurors? LEGISLATION CITED : Jury Act 1977 Jury Act No 15 of 1997 CASES CITED : Katsuno v The Queen (1999) CLR 40 at 90-91 Kingswell v The Queen (1985) 159 CLR 264 at 301-302 per Deane J Regina v Ida Ronen PARTIES : Regina v Nitzan Ronen Regina v Izhar Ronen FILE NUMBER(S) : SC 70222/03; 70032/03; 70223/03 Mr T. Game SC; Ms S. McNaughton - Crown COUNSEL : Mr R. Richter QC; Mr. N. Rosenbaum - Accused Ida Ronen Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr P. Jones - Accused Izhar Ronen SOLICITORS : Ms P. Musgrave - Cth DPP Watsons Solicitors - Accused

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

WHEALY J

FRIDAY 16 April 2004

70032/03 - REGINA v Nitzan RONEN 70222/03 - REGINA v Ida RONEN 70223/03 - REGINA v Izhar RONEN

JUDGMENT - (On application for disclosure of jury panel information; see page 931 of transcript)

1 HIS HONOUR: The joint trial of the three accused is to commence with the empanelment of a jury on Monday morning next. The present application made on behalf of the accused, which has been formulated by Mr Richter QC but I assume it is made on behalf of all accused, has come very late in the day, on the Friday before the empanelling of the jury. This is so notwithstanding that the Court has been engaged extensively in pre-trial matters since early February 2004. 2 Mr Richter's application is that the representatives of the defence should be supplied with an extract from the panel list before the empanelment process begins. He requires, as part of his application, that the extract contain the names, occupations and identification numbers of those persons who comprise the jury panel. It must be said that this is a novel application. This is so because, since 1998 the identification of panel members and jury members has, in this State been replaced by a strict system of anonymity. 3 First, Mr Richter has argued that there is no prohibition in the Jury Act 1977 which would forbid the granting of the application he makes. He put this argument in a number of ways but, in the end, it was Mr Richter's submission that upon close analysis none of the sections of the Act to which reference has been made in argument result in a situation where the supply of the names and occupations of the jury panel would be contrary to the express language of the Act or its overall intent. 4 Secondly, Mr Richter has argued that there is a good reason for this information to be provided to the defence: namely, that it may be of assistance to the defence in relation to the rights they have to challenge under the provisions of the Jury Act 1977. Put another way, he says that if the requested information is not made available there will be unwarranted restrictions in effect imposed upon the defence at the time the challenge process is undertaken. 5 In support of the application, Mr Richter has listed a number of undertakings which he would be prepared to give. These he said, were designed to ensure that information about the identity of jurors is not made available generally. Mr Richter appeared to accept that the information would, and no doubt, should be available to the accused, as their instructions would be necessary, or might be necessary, in relation to the challenge process. Senior Counsel pointed to the practice in other jurisdictions, for example, Western Australia and Victoria. The undertakings which Mr Richter proffered would prevent a situation where, at least in open Court, there would be any categorisation of panel members otherwise than by way of the identification numbers, which are allocated to them by the Sheriff pursuant to the provisions of the Jury Act. 6 Mr Cogswell SC appears for the interests of the Attorney General. As Crown Advocate, he has opposed the application that has been made on behalf of the accused. He says that the matter is determined by a proper appreciation of the provisions of the Jury Act 1977. He referred in particular to ss 29(4), 37, 48(2)(b), 67A and 68. Much debate between counsel focussed upon these individual sections and what they may or may not mean and what they may or may not prohibit. The argument on both sides also required a brief examination of the Second Reading Speech, namely the speech of the Attorney General at the time of the Second Reading of the Bill. 7 There has been little time for me to examine or reflect upon the arguments put to me, or for that matter to consider at leisure the provisions of the Jury Act 1977. However, in that brief time I have endeavoured to give proper consideration to the arguments that have been advanced before me. 8 I will turn first to examine briefly the structure of the Jury Act 1977. The definitions in the Act, s 4, contain a reference to "identification number". This is the identification number allocated to the person under s 29. The Act begins by examining the qualifications of potential jurors and liability for jury service (see ss 5, 6 and 7). There are next established jury districts and jury rolls. This appears in Part 3. This part includes the random selection of respective jurors and the preparation of supplementary jury rolls. The scheme of the Act, (for example s 14) shows that the Sheriff from time to time has the capacity to delete persons disqualified, ineligible or exempt from the supplementary jury roll, and indeed there is a provision for an appeal in favour of a person aggrieved by that determination (see s 15). The Sheriff is obliged to certify the roll and may from time to time amend it (ss 16 and 18). 9 Part 4 deals with the constitution of the jury in a trial. It is principally concerned in the case of criminal trials with establishing the number of persons who are to be on the jury for that purpose. Section 22, deals with the continuation of a trial in certain circumstances where the jury number falls below twelve. 10 The summoning of jurors is dealt with under Part 5. Section 25 enables the Sheriff to select at random from the jury roll the numbers of jurors estimated to be summoned for trial in the particular district. Section 26 deals with the manner of summoning potential jurors. Section 27 expands that aspect of the procedure by allowing the selection and summoning of additional jurors where the original numbers appear to be insufficient. Section 28 provides for the preparation of a Sheriff's return. This requires the Sheriff to make a return at each time and place at which jurors are required to be taken by summons served under the division. The return must contain certain particulars, including a panel of the names of those summoned and, if appearing on the roll or supplementary roll, the occupations of those persons. Thus, it may well be the situation that the occupation of an individual does not appear on the panel or in the return. 11 The Sheriff is required under s 28(3) to provide the names and other particulars recorded on the rolls or supplementary rolls of the persons on the panel; and also apparently on separate cards, each card being "as nearly as practicable of equal size". Section 29 requires the Sheriff, before furnishing the return and the cards referred to in s 28, to allocate a separate identification number to each person included in the panel referred to in s 28. 12 I pause there to say that I have not had the opportunity to examine in detail the provisions of the previous Jury Act. Prior to Act No 15 of 1997 (when the identification number system was introduced), my general understanding is however that it was the name of the person which was placed upon the card; and of course when the empanelment process began the names were openly made available in a public manner. This understanding is consistent with s 28. 13 To return, however, to the present scheme, s 29 introduced a significant change. It provided that the Sheriff must record a person's identification number against the place where the name of the person appears on the panel and on the card referred to in s 28(3) relating to the person. Section 29(3) requires the Sheriff to inform a person of the person's identification number when the person attends on the first day on which attendance is required. Section 29(4) stipulates that a person who is allocated an identification number is to be addressed or referred to only by that identification number when the person is present in the Court for the purpose of the relevant proceedings. 14 There is a regulation making power for the allocation of identification numbers, and the cards that are to be used in the Court, but at this stage I have not been referred to any regulations that have been promulgated pursuant to that power. 15 Section 37(1) provides as follows: "A person who is summonsed under division 1 is not required when the person attends at a trial to disclose the person's name or any other matter that identifies or is likely to lead to the identification of the person (for example, when the person requests to be excused under s 38(1)(b) or the person, while serving as a juror, is examined on oath under Part 8)." 16 Sub-section 2 of s 37 provides, however, that a person so summonsed is to provide "such information to the Sheriff" when the person attends on the first day on which the person's attendance at the trial is required in accordance with the summons, or if requested to do so by the Sheriff at any other time during the course of the trial". 17 Section 38(7) imposes a mandatory obligation on the trial judge. Before the selection of the jury at a criminal trial, the trial judge is to direct the person prosecuting for the Crown to inform the jurors on the panel the nature of the trial, the identity of the accused, and the principal witnesses to be called for the prosecution; and to call on the jurors on the panel to apply to be excused if they consider they are not able to give impartial consideration to the case. 18 I note that there was a previous s 40 which enabled inspection of the panel in certain circumstance. This however was repealed by Act No 15 of 1997. 19 Part 6 of the Act deals with challenges. Part 7 deals with the balloting of the jury in both criminal and civil proceedings. So far as the former is concerned s 48 provides as follows: "The jury for the trial of any criminal proceedings in the Supreme Court shall be selected by a ballot in open Court in accordance with this section". 20 The ballot procedure requires that the persons called to be sworn and to face challenge are called only by the identification numbers shown on the cards placed in the ballot box (s 48(2)). 21 I note that the practice that is followed, at least in the Supreme Court, is that the cards that are drawn out of the ballot box for the purpose of following the procedures set out in s 48 do not have endorsed upon them the name of the panel member or any other matter that would be likely to identify the panel member or any other detail regarding the panel member beyond the identification number. 22 Part 8 deals with procedures upon trial. It includes, for example, the power of the Court to order the jury to separate in criminal trials. 23 There are then other matters that I need not detail here. Part 9 deals with offences. There is created an offence in s 67A. It is in these terms: "(1) A person must not inspect or make available to any other person a panel or card prepared for the purpose of this Act by the Sheriff. (2) This section does not apply to anything inspected or made available to another person for the purposes of executing this Act ." 24 This section was introduced by Act No 15 of 1997. 25 The next section is s 68 and it also creates an offence, quite a serious one having regard to the maximum fine and term of imprisonment imposed. It is in these terms: " 68 Disclosure etc of identity or address of juror (1) A person shall not, except in accordance with this Act, wilfully publish any material, broadcast any matter or otherwise disclose any information which is likely to lead to the identification of a juror or former juror in a particular trial or inquest. Penalty: In the case of a corporation, $250,000; in any other case, 2 years imprisonment or 50 penalty units (or both). (2) Subsection (1) does not apply to the identification of a former juror with the consent of the former juror.