| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0169 |
| PATRICK BROOKS (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McLEISH, BOYCE and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 October 2024 |
| DATE OF JUDGMENT: | 11 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 305 |
| JUDGMENT APPEALED FROM: | DPP v Brooks (a pseudonym) (County Court of Victoria, 27 May 2024 (Conviction), Judge Hassan) |
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CRIMINAL LAW – Conviction – Appeal – Practice and procedure – Jury empanelment – Judge excused panel member after commencement of procedure for selecting jury in s 36 of Juries Act 2000 – Whether judge had power to excuse panel member – No statutory power to excuse panel member after commencement of s 36 process – Whether power at common law – Common law power to excuse panel member before sworn as juror – Juries Act 2000 not excluding common law power – No irregularity in course taken by judge – Leave to appeal granted – Appeal dismissed.
CRIMINAL LAW – Jury verdicts – Sexual penetration of child under 16 – Indecent act with child under 16 – Four guilty verdicts and two not guilty verdicts – Offending covering distinct events – Whether verdicts inconsistent – Not guilty verdict explicable by reference to conflicting evidence – Leave to appeal refused.
Juries Act 1904, s 2; Juries Act 1967; Juries Act 2000 ss 32, 36.
Pell v The Queen [2019] VSCA 186; Mansell v The Queen (1857) 8 E & B 54; 120 ER 20; R v Cullen [1951] VLR 335; R v Abrahams [1948] VLR 51; R v Searle [1993] 2 VR 367; R v Lewis (2000) 1 VR 290; R v Panozzo (2003) 8 VR 548, discussed; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, applied.
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| Counsel | |||
| Applicant: | Ms CA Boston SC with Mr L McPhie | ||
| Respondent: | Mr J Dickie | ||
Solicitors | |||
| Applicant: | Doogue and George | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MCLEISH JA
BOYCE JA
KAYE JA:
Introduction
On 27 May 2024, following a trial by jury in the County Court, the applicant was convicted of four charges of sexual penetration of a child under 16 with aggravating circumstances (being the fact that the child was under 10 years old). The applicant was acquitted of one charge of indecent act with a child under 16 (charge 1) and one charge of sexual penetration of a child under 16 (charge 7). A no case submission was upheld in respect of another charge of indecent act with a child under 16 (charge 2).
The circumstances of the offending are described later in these reasons. The applicant was a teenager at the time. Following a plea on 27 June 2024, he was sentenced on 12 July 2024 to a total effective sentence of 2 years’ imprisonment, 15 months of the sentence being suspended with an operational period of 12 months.
Grounds of appeal
The applicant…
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- AGLC
- Brooks (a pseudonym) v The King [2024] VSCA 305
- Case
- [2024] VSCA 305
- Decision Date
CaseChat Overview and Summary
The legal issues that arose in the appeal were whether the judge had the statutory or common law power to excuse a jury panel member after the selection process had commenced and whether the jury's verdicts were inconsistent. The court found that the judge did not have the power to excuse a panel member after the commencement of the selection process under section 36 of the Juries Act 2000. However, the court held that the power to excuse a panel member existed at common law before they were sworn in as a juror, and that the Juries Act 2000 did not exclude this common law power. The court also found that there was no irregularity in the course taken by the judge and dismissed the appeal on this ground. The court further held that the jury's verdicts were not inconsistent, as the not guilty verdicts could be explained by reference to conflicting evidence.
The High Court found that the appeal against the convictions was without merit. The court held that the judge had the power to excuse a panel member before they were sworn in as a juror, and that there was no irregularity in the course taken by the judge. The court also found that the jury's verdicts were not inconsistent, as the not guilty verdicts could be explained by reference to conflicting evidence. The appeal was therefore dismissed. The court did, however, grant leave to appeal on the question of whether the judge had the power to excuse a panel member after the commencement of the selection process under section 36 of the Juries Act 2000.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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