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Alec (a pseudonym) v The King

Alec (a pseudonym) v The King

Case [2023] VSCA 208 5 September 2023

Appeal

Jurisdiction

Miscarriage of Justice

Open Justice

Apprehension of Partiality

Criminal Law

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SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2022 0086 S EAPCR 2022 0135
RAMSAY ALEC (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, WALKER and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2023
DATE OF JUDGMENT:	5 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 208	First Revision: 6 September 2023
JUDGMENT APPEALED FROM:	DPP v Alec (a pseudonym) (County Court of Victoria, Judge Doyle, 15 March 2022) (Conviction); [2022] VCC 569 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Incest and associated offences involving stepson – Judge met privately with child complainant – No objections to meeting from counsel – No record of meeting – Whether substantial miscarriage of justice because of private meeting – Principle of open justice requires court proceedings to be open to scrutiny – Apprehension of partiality – Meeting occasioned substantial miscarriage of justice – Appeal allowed – New trial ordered.

Criminal Procedure Act 2009 s 276.

Re JRL; Ex parte CJL (1986) 161 CLR 342, R v Caine (1990) 48 A Crim R 464, Carson (a pseudonym) v The Queen [2019] VSCA 317 applied; R v Dunne (1929) 21 Cr App R 176, R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122, City of St Kilda v Evindon Pty Ltd [1990] VR 771 discussed.

CRIMINAL LAW – Appeal – Conviction – Jury allowed to separate prior to verdict – Jurors reconvened in jury room at different times prior to time for recommencement of deliberations – Some jurors left jury room unaccompanied by jurykeeper and returned prior to recommencement of deliberations – Jury asked question about whether they could read transcript and other material while in jury room prior to recommencement of deliberations – Jury instructed they could look at exhibits and other material – Jury ‘deliberating’ when discussing, debating or considering issues with view to reaching a decision – Reading of transcript and exhibits do not of themselves constitute deliberations – No substantial miscarriage of justice – Ground dismissed – Guidance regarding reconvening provided by Court.

Juries Act 2000 ss 49, 50.

Youssef v The Queen [2019] VSCA 240, Papazoglou v The Queen (2014) 45 VR 457, R v Young [1995] QB 324 discussed.

CRIMINAL LAW – Appeal – Conviction – Evidence of uncharged acts – Not relied on to establish tendency – Defence counsel sought direction dealing with use of ‘other misconduct’ evidence – No warning regarding tendency evidence sought – Whether substantial miscarriage of justice because trial judge did not warn against impermissible use of evidence as tendency evidence – Forensic choice made by defence counsel – No substantial miscarriage of justice – Ground dismissed.

Juries Directions Act 2015, ss 27, 29, 30.

CRIMINAL LAW – Appeal – Conviction – Incest and associated offences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alec (a pseudonym) v The King

Details

AGLC: Alec (a pseudonym) v The King [2023] VSCA 208
Case: [2023] VSCA 208
Decision Date: 5 September 2023

CaseChat Overview and Summary

The appeal in Alec v The King concerned the conviction of the applicant on charges of incest and associated offences involving his stepson. The case was heard in the Victorian Court of Appeal. The appeal presented several grounds, including whether the trial judge's private meeting with the child complainant, the jury's conduct prior to reconvening, and the handling of uncharged acts evidence constituted substantial miscarriages of justice.

The primary legal issue was whether the private meeting between the judge and the child complainant, without objections from counsel and without a record, resulted in a substantial miscarriage of justice. Another issue was whether the jury's conduct, including separating and reconvening at different times, constituted a substantial miscarriage of justice. Additionally, the court had to determine if the trial judge's failure to warn against the use of uncharged acts evidence as tendency evidence constituted a substantial miscarriage of justice.

The court held that the private meeting between the judge and the child complainant did indeed occasion a substantial miscarriage of justice, as it contravened the principle of open justice. The court found that the apprehension of partiality arising from the private meeting was significant enough to warrant a new trial. Regarding the jury's conduct, the court held that the jury was not in the process of deliberating when they separated and reconvened, and therefore, there was no substantial miscarriage of justice. The court also found that the failure to warn about the use of uncharged acts evidence did not result in a substantial miscarriage of justice, as the choice to introduce such evidence was a tactical decision by the defence counsel.

The court ordered a new trial due to the substantial miscarriage of justice caused by the private meeting. The other grounds of appeal were dismissed, and no further orders were made regarding the jury's conduct or the handling of uncharged acts evidence.

Orders