Allen v The King - [2024] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0200

JUDD ALLEN	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR, LYONS and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2024
DATE OF JUDGMENT:	11 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 128
JUDGMENT APPEALED FROM:	DPP v Allen (Unreported, County Court of Victoria, 28 March 2023, Judge Bayles)

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CRIMINAL LAW – Conviction – Sexual penetration of a child under 16 – Applicant denied offending in record of interview – Applicant did not give evidence – Section 41 Jury Directions Act 2015 and Liberato directions requested – Liberato direction given – By oversight s 41 direction not given – No exception taken – Whether error may have affected the result of the trial – Whether conviction inevitable – Whether substantial miscarriage of justice – Appeal allowed.

Jury Directions Act 2015, ss 12, 16, 41.

Baini v The Queen (2012) 246 CLR 469, Karam v The King [2023] VSCA 318 followed.

Awad v The Queen (2022) 275 CLR 421, The Queen v Al Qasim [2009] VSCA 192, Saricayir v The Queen [2018] VSCA 319, Carson (A Pseudonym) v The Queen [2019] VSCA 317 referred to.

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Counsel
Applicant:		Mr R Edney with Mr L McMahon
Respondent:		Ms S Lenthall
Solicitors
Applicant:	McMahon Criminal Defence Lawyers P/L
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
LYONS JA
T FORREST JA:

Introduction and overview

Following a six day jury trial in the County Court, the applicant was, on 28 March 2023, convicted of two charges of sexual penetration of a child under 16 years. Each charge was a course of conduct charge.
At trial the applicant’s record of interview, in which he denied the alleged offending, was played as part of the prosecution case. The applicant did not give evidence.
Pursuant to s 12 of the Jury Directions Act2015 (‘JDA’) counsel for the applicant requested a direction under s 41 of the JDA and a modified Liberato direction. The judge indicated that he would give both directions. During his charge the judge gave the Liberato direction but, through oversight[1], failed to give the s 41 direction. No exception was taken by either counsel.
[1]The judge’s report made plain that the absence of the direction was an oversight.
The applicant sought leave to appeal against his conviction on a single ground:
A substantial miscarriage of justice has occurred because of the failure of the trial judge to give, when requested, a direction pursuant to s41 of the Jury Directions Act 2015 (Vic).
At the hearing of the application, the Court made orders granting the application for leave to appeal, allowing the appeal, setting aside the convictions and ordering a new trial. These are the reasons for those orders.

The prosecution case

The prosecution allegations may be stated shortly.
Between February and October 2014 the applicant was a boarder in the home of the complainant’s father. The complainant was then 5 to…

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 Allen v The King

Details

AGLC: Allen v The King [2024] VSCA 128
Case: [2024] VSCA 128
Decision Date: 11 June 2024

CaseChat Overview and Summary

The appellant, Allen, was convicted of sexually penetrating a child under 16. Allen did not give evidence in his own defence, nor did he call any witnesses. The applicant was given a Liberato direction, which is a direction regarding the assessment of the credibility of an accused’s account in the context of a contested trial, but he was not given a direction under section 41 of the Jury Directions Act 2015, which requires a direction about the jury not speculating about the accused’s silence in giving evidence. The error in not giving the section 41 direction was not objected to at trial. Allen appealed against his conviction, arguing that the failure to give the section 41 direction might have affected the outcome of the trial. The Court of Appeal held that it was open to the jury to conclude that the prosecution had not proved the applicant’s guilt beyond reasonable doubt and that the failure to give the section 41 direction might have affected the outcome of the trial. The Court of Appeal allowed the appeal and quashed the conviction.

The Court of Appeal was required to determine whether the failure to give the section 41 direction might have affected the outcome of the trial, and whether the failure to give the direction constituted a substantial miscarriage of justice. The Court of Appeal considered the significance of the failure to give the direction in the context of the trial as a whole, including the evidence presented by the prosecution, the directions given to the jury, and the overall strength of the prosecution case. The Court of Appeal held that the failure to give the direction might have affected the outcome of the trial because the jury’s assessment of the accused’s account, which was in the record of interview, could have been influenced by impermissible reasoning about the accused’s silence in giving evidence. The Court of Appeal held that the failure to give the section 41 direction constituted a substantial miscarriage of justice because it was open to the jury to conclude that the prosecution had not proved the applicant’s guilt beyond reasonable doubt, and the failure to give the direction might have affected the outcome of the trial.

The Court of Appeal allowed the appeal and quashed the conviction. The Court of Appeal held that the failure to give the section 41 direction might have affected the outcome of the trial and constituted a substantial miscarriage of justice. The Court of Appeal held that it was open to the jury to conclude that the prosecution had not proved the applicant’s guilt beyond reasonable doubt, and the failure to give the direction might have affected the outcome of the trial. The Court of Appeal allowed the appeal and quashed the conviction, ordering that the applicant be discharged without conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 41 of the JDA is in the following terms:Direction on accused not giving evidence or calling witness(1)If the accused does not give evidence or call a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.(2)In giving a direction referred to in subsection (1), the trial judge must explain—(a)the prosecution’s obligation to prove that the accused is guilty; and(b)that the accused is not required to give evidence or call a witness (as the case requires); and(c)that the jury should not guess or speculate about what might have been contained in—(i) the evidence that was not given by the accused; or(ii)the evidence that might have been given by a witness who was not called—as the case requires; and(d)that the fact that the accused did not give evidence or call a witness (as the case requires)—(i) is not evidence against the accused; and(ii) is not an admission by the accused; and(iii)must not be used to fill gaps in the evidence adduced by the prosecution; and(iv)does not strengthen the prosecution case.NoteSection 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so. The four parts of the direction required by s 41(2)(a) to (d) are in reference to ‘that fact’ in s 41(1) – that is the fact that the accused did not give evidence. It requires a judge to direct the jury about all four matters specifically in relation to the fact that the accused did not give evidence (or call a particular witness). It is therefore no answer to the failure to give the direction that some of the matters in s 41(2)(a) to (d) have formed part of the directions about matters other than the fact that the accused did not give evidence. By its terms s 41 contemplates that directions about the burden of proof, always given generally, will be repeated specifically when directing the jury not to reason impermissibly about the fact that the accused did not give evidence. The s 41 direction and the Liberato direction are kindred but not equivalent directions. They each have separate but interacting work to do. In a situation where an accused has given an account in a record of interview, that account forms part of the prosecution case. The Liberato direction instructs the jury that their assessment of the accused’s account must be done consistently with the burden of proof. The jury are instructed that a preference for the version of the complainant or a non-acceptance or disbelief of the accused’s version is an insufficient basis to determine that the prosecution has proven guilt beyond reasonable doubt. The s 41 direction protects the accused from the jury speculating that his or her failure to give sworn evidence was for reasons adverse to him or her or, in some manner, assists the prosecution case. Both directions are separately important because, in the absence of the s 41 direction, the jury might reason that the version given by the accused in the interview is less credible or has less weight because it was not repeated as sworn evidence. That is, in following the Liberato direction and determining whether the accused’s version should be accepted – and therefore that the accused should be acquitted – the jury’s decision to reject and put aside the accused’s version might be influenced, perhaps determinatively, by impermissible reasoning. The jury’s subsequent determination of whether the prosecution case has, on the accepted evidence, been proven beyond reasonable doubt might too be affected by impermissible reasoning as to the accused’s silence before them.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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