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and H M v The Queen

Case [2013] VSCA 100 3 May 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0072
H M	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and WHELAN JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2013
DATE OF JUDGMENT:	3 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 100
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v H M (Unreported, County Court of Victoria, 17 December 2010)

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CRIMINAL LAW – Appeal against conviction – Majority verdicts – Procedural fairness – Trial judge given a note from the jury which revealed jury voting numbers – Judge informed counsel of the content of the note without revealing the numbers – Whether trial judge erred in failing to reveal voting numbers and failing to exercise her discretion to discharge the jury – Whether necessary to disclose voting numbers to counsel where numbers relevant to a question not yet determined – No established principle precluding disclosure – R v Townsend (1982) 74 Cr App R 218; R v Gorman [1987] 1 WLR 545; R v Black (2007) 15 VR 551; Burrell v The Queen (2009) 196 A Crim R 199; R v Yuill (1994) 34 NSWLR 179; MJR v The Queen [2011] VSCA 374 distinguished – LLW v The Queen [2012] VSCA 54 considered – Procedural fairness required disclosure – Non-disclosure could have affected outcome – Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492; Stead v State Government Insurance Commission (1986) 161 CLR 141 applied – Observations concerning undesirable course of inviting bench of three judges not to follow recent considered decisions of this Court – Juries Act 2000 – Appeal allowed – Conviction quashed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr I M Hayden	Ellinghaus & Lindner
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
KAYE AJA:

The central question raised by the appeal is whether the requirements of procedural fairness obliged the trial judge, before determining whether to discharge the jury or permit a majority verdict, to disclose to counsel the precise content of a jury note provided by the jury to the judge which set out the jury numbers for and against a verdict.

We have had the benefit of reading in draft the reasons of Whelan JA in which he has set out the relevant passages of the transcript that are germane to this appeal. We agree with Whelan JA that the trial judge sought to act in conformity with the statements made in a number of the cases, that a trial judge should not reveal to counsel the details of the jury numbers, which have been disclosed to the judge by the jury. His Honour concluded that the appeal should be dismissed because in his opinion those cases authorised the trial judge to withhold disclosure of the voting numbers of the jury. We respectfully disagree. The authorities to which his Honour has referred do not preclude the conclusion that where…

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 and H M v The Queen

Details

AGLC: and H M v The Queen [2013] VSCA 100
Case: [2013] VSCA 100
Decision Date: 3 May 2013

CaseChat Overview and Summary

The case of H M v The Queen involved an appeal against the conviction of the appellant, H M, following a jury trial in the Supreme Court of Victoria. The dispute centred on the fairness of the trial process, specifically whether the trial judge's handling of a note from the jury, which disclosed the voting numbers on the verdict, was procedurally fair. The jury had reached a majority verdict, and the note revealed that the jury had voted 11 to 1 in favour of the conviction. The trial judge informed counsel of the content of the note but did not disclose the voting numbers. The appellant argued that the trial judge should have disclosed the voting numbers and should have exercised her discretion to discharge the jury.

The legal issues before the court were whether the trial judge erred in not revealing the voting numbers from the jury's note and whether she should have exercised her discretion to discharge the jury. The court considered whether the principle of procedural fairness required the disclosure of the voting numbers to counsel and whether non-disclosure could have affected the outcome of the trial. The court distinguished and applied several precedents, including R v Townsend, R v Gorman, R v Black, Burrell v The Queen, R v Yuill, MJR v The Queen, and LLW v The Queen, to determine that there was no established principle precluding disclosure of the voting numbers. The court also considered Ucar v Nylex Industrial Products Pty Ltd and Stead v State Government Insurance Commission to determine that the non-disclosure could have affected the outcome.

The Court of Appeal held that the trial judge's failure to disclose the voting numbers and exercise her discretion to discharge the jury was a breach of procedural fairness. The court observed that it would be undesirable for a bench of three judges to invite itself not to follow recent considered decisions of the Court. The appeal was allowed, the conviction was quashed, and a re-trial was ordered.

Orders