Johns v The Queen [1979] HCA 33

Johns v The Queen [1979] HCA 33

The trial was a nullity because the applicant's personal right to peremptory challenge a juror was denied, and counsel had no authority to override or withdraw this challenge without the applicant's specific instruction. Denial of such a fundamental right vitiates the proceedings and conviction; thus, the conviction must be set aside and a new trial ordered.

Jurisdiction
Australia
Procedural Posture
Criminal / Application for Special Leave to Appeal, Treated as Appeal From Conviction and Sentence
Outcome
Appeal allowed; conviction quashed; new trial ordered
Legal Topics
['peremptory Challenges' 'jury Selection' 'right of Accused' 'withdrawal of Challenges' 'role of Counsel' 'mistrial' 'new Trial Procedure']
['criminal Law' 'jury Procedure'] ['peremptory Challenges' 'jury Selection' 'right of Accused' 'withdrawal of Challenges' 'role of Counsel' 'mistrial' 'new Trial Procedure']

Case Brief

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Procedural Posture

Criminal / Application for Special Leave to Appeal, Treated as Appeal From Conviction and Sentence

Legal Issues

  1. 1 ['Whether an accused person represented by counsel retains the personal right to exercise a peremptory challenge to a juror' "Whether the denial of an accused's peremptory challenge vitiates the trial and conviction" "Whether counsel has authority to withdraw an accused's personal challenge without instruction" 'Whether a new trial can be ordered where there has not been a trial according to law']

Ratio Decidendi

The trial was a nullity because the applicant's personal right to peremptory challenge a juror was denied, and counsel had no authority to override or withdraw this challenge without the applicant's specific instruction. Denial of such a fundamental right vitiates the proceedings and conviction; thus, the conviction must be set aside and a new trial ordered.

Court Disposition

Appeal allowed; conviction quashed; new trial ordered

Orders

  • ['Application for special leave granted' 'Time for appeal enlarged' 'Conviction set aside' 'New trial ordered on the indictment' 'Applicant at liberty to apply for bail to Supreme Court of Western Australia']