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Brooks (a pseudonym) v The King

Brooks (a pseudonym) v The King

Case [2024] VSCA 305 11 December 2024

Inconsistent Verdicts

Criminal Law

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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…

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 Brooks (a pseudonym) v The King

Details

AGLC: Brooks (a pseudonym) v The King [2024] VSCA 305
Case: [2024] VSCA 305
Decision Date: 11 December 2024

CaseChat Overview and Summary

The appellant, identified as Brooks, was convicted by a jury of multiple counts of sexual offences against children under the age of 16. Brooks appealed against his convictions on two grounds. The first was that the judge had no power to excuse a member of the jury panel after the process set out in section 36 of the Juries Act 2000 had begun, and the second was that the jury's verdicts were inconsistent. The appeal was heard by the High Court of Australia.

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