36. The judge’s decision was upheld in the Court of Appeal.

The Court examined a large

number of authorities, including Commonwealth authorities. The Court found particularly
instructive the judgment of Ritchie CJ in the Supreme Court of Canada in Morin v R [1890]
18 SCR 407:

“Until a full jury is sworn there can be no trial, because until

that is done there is no tribunal competent to try the prisoner.
The terms of the jury member’s oath seem to show this… all
that takes place anterior to the completion and swearing of the
jury is preliminary to the trial. How can a prisoner be tried until
there is a court competent to try him? And how can there be a
court until there is a judge on the bench and a jury in the box
duly sworn? Until there is a court thus constituted there can be
no trial, because there is no tribunal competent to try him. But
when there is a court duly constituted the prisoner being present
and given in charge to the jury this trial in my opinion
commences, and not before.”