and Neil Raymond Jose v The Queen - [2014] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0146
NEIL RAYMOND JOSE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2014
DATE OF JUDGMENT:	6 May 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 90
JUDGMENT APPEALED FROM:	DPP v Jose (Unreported, County Court of Victoria, Judge Gucciardo, 9 July 2013)

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CRIMINAL LAW – Conviction – Aggravated burglary and intentionally cause serious injury – Jury – Jury question as to ‘intent’ following long deliberations – Subsequent directions by trial judge – Whether demeanour and tone of directions such as to ‘overawe’ jury – Whether directions amounted to a ‘comment’ and judge ‘stepped into the arena’ – Appeal dismissed – B v The Queen (1992) 175 CLR 599, R v Halse (1971) 1 SASR 327, R v Mathe [2003] VSCA 165 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Tehan QC	Slades & Parsons
For the Crown	Ms K Argiropoulos	Mr Craig Hyland, Solicitor for Public Prosecutions

NETTLE JA:

Following a trial in the County Court at Melbourne, the appellant was convicted of one charge of aggravated burglary (Charge 1) and one charge of intentionally causing serious injury (Charge 2). On 29 May 2013, the appellant was granted leave to appeal against the conviction of Charge 2 on the sole ground that:

The trial on charge 2 miscarried by reasons [sic] of the Learned Judge’s Directions, in particular:
a)The Learned Judge’s demeanour and tone when answering a question from the Jury, relating to the intent of the Complainant at the relevant time, overawed the Jury,
b)The manner in which the Learned Judge delivered his direction, and the language used, amounted to a comment on the evidence, and no acknowledgement was made that it was such.

The Crown case at trial

At the time of the offending, the appellant was staying ‘on and off’ at Grant Wratt’s flat in an apartment block in St Kilda. The complainant, Dion William Blanch, was living with his partner in another flat in the same apartment block. The appellant had known the complainant as a friend for ‘a few months, perhaps longer’ and they occasionally drank together. They had not fought before.

On 26 January 2010 the appellant and Wratt spoke to another resident of the flats, Kate Lenne. The appellant told Lenne that, if she heard the complainant making any noise, she was not to call the police. He said that he wanted to kill the complainant.

Later that night, the complainant was alone in his flat watching television when he heard a knock on his door. He opened the door but it was dark and he could not see anyone outside. He asked three times, ‘who is it?’, but received no reply. Then, as he reached towards the light switch, the appellant, who was wearing a balaclava, hit the complainant on the left side of his face, entered his flat and continued to hit him.…

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.

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Details

Case: [2014] VSCA 90
Decision Date: 6 May 2014

CaseChat Overview and Summary

The appellant, Neil Raymond Jose, was convicted by a jury of aggravated burglary and intentionally causing serious injury. The appeal against conviction was heard in the Supreme Court of Victoria. The central legal issue revolved around whether the trial judge's subsequent directions to the jury, following their extended deliberations, were such that they could be seen as a comment on the evidence or as a step by the judge into the jury's domain. Specifically, the appellant's counsel argued that the manner and tone of the judge's directions may have overawed the jury, thereby impacting their ability to reach a verdict.

The court examined the circumstances under which the judge provided directions to the jury. The appellant contended that the trial judge's demeanour and tone during these directions amounted to an improper comment on the evidence or a step into the jury's domain. The court considered precedents such as B v The Queen, R v Halse, and R v Mathe to assess whether the judge's directions had the effect of influencing the jury unduly. Ultimately, the court found that the judge's directions were within the proper scope of judicial guidance, did not overawe the jury, and did not constitute an improper comment on the evidence.

The appeal was dismissed. The Supreme Court of Victoria held that the judge's directions were appropriate under the circumstances and did not constitute an improper influence on the jury's decision-making process. The court confirmed that the judge's role in providing guidance to a deliberating jury is an integral part of the judicial function, and the manner in which the directions were given did not overstep the boundaries of judicial intervention. The decision underscores the importance of maintaining judicial impartiality while ensuring that juries are properly guided in their deliberations.

Orders