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Carson (a pseudonym) v The Queen

Carson (a pseudonym) v The Queen

Case [2019] VSCA 317 20 December 2019

Appeal

Judicial Review

Substantial miscarriage of justice

Trial irregularity

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0202

DAVIN CARSON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	NIALL, T FORREST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 November 2019
DATE OF JUDGMENT:	20 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 317
JUDGMENT APPEALED FROM:	DPP v Carson (a pseudonym) (Unreported, County Court of Victoria, Judge C Ryan, 20 September 2019)

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CRIMINAL LAW – Appeal – Conviction – Historical sexual offences – Whether trial judge erred by refusing application to discharge jury – Whether irregularity of trial process occurred by reason of trial judge failing to inform parties of communications between tipstaff and juror – Whether trial judge erred by allowing jury access to recorded evidence during deliberations – Substantial miscarriage of justice – Serious departure from the prescribed processes for trial – High degree of need to discharge whole jury – Leave to appeal granted – Appeal allowed – Convictions quashed – Retrial ordered – R v Stretton [1982] VR 251, Baini v The Queen (2012) 246 CLR 469, Farha v The Queen [2018] VSCA 310, Saricayir v The Queen [2018] VSCA 319 referred to – Criminal Procedure Act 2009 ss 223, 276.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr with Mr C Grant	Williams Winter Pty Ltd
For the Respondent	Mr R L Gibson QC with Ms C J C Parkes	Mr J Cain, Solicitor for Public Prosecutions

NIALL JA:

I have had the advantage of reading, in draft, the reasons for judgment of T Forrest JA. I agree, for the reasons his Honour gives, that leave should be given on grounds 1 and 1A and that the appeal should be allowed. I would also refuse leave to appeal on ground 2 for the reasons his Honour gives.

I wish to add the following in relation to ground 1A.

Ground 1A

The failure by the judge to bring to the attention of the parties the communication between Juror 21 and the tipstaff that occurred on 5 August 2019 constituted a denial of procedural fairness.

The content of the communication from the juror to the tipstaff was one of substance. Juror 21 conveyed to the tipstaff what he believed had occurred a week earlier, on 29 July 2019, in the confines of the jury pool room. The fact that the juror delayed a week to relay his concerns gave rise to the real likelihood that, as he observed the applicant’s support person during the first week of the trial, he became more certain of the association between the photographer and the applicant and more concerned to the point that he felt he needed to raise it with the Court. The gravamen of the juror’s concerns was that a person associated with the applicant was illegitimately interfering with…

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 Carson (a pseudonym) v The Queen

Details

AGLC: Carson (a Pseudonym) v The Queen [2019] VSCA 317
Case: [2019] VSCA 317
Decision Date: 20 December 2019

CaseChat Overview and Summary

Carson (a pseudonym) appealed his conviction for historical sexual offences, arguing that the trial judge had erred in several respects, leading to a substantial miscarriage of justice. The appeal was heard in the Court of Appeal, which granted leave to appeal. The central issues for the court were whether the trial judge erred by refusing to discharge the jury after an application was made, whether an irregularity occurred due to the trial judge's failure to inform the parties of communications between the tipstaff and a juror, and whether the trial judge erred by allowing the jury to access recorded evidence during their deliberations.

The Court of Appeal considered these issues in light of the criteria for discharging a jury and the principles governing the handling of communications between the court staff and jurors. The court found that the trial judge's refusal to discharge the jury was not an error, as the application did not meet the stringent conditions required for such a discharge. However, the court identified a significant irregularity in the trial process due to the judge's failure to inform the parties about communications between the tipstaff and a juror, which could have affected the fairness of the trial. Additionally, the court held that allowing the jury to access recorded evidence during deliberations constituted a serious departure from prescribed processes, potentially compromising the integrity of the jury's decision-making. Given these findings, the court concluded that a substantial miscarriage of justice had occurred, necessitating a retrial.

The Court of Appeal allowed the appeal, quashed Carson's convictions, and ordered a retrial. The court's decision emphasised the importance of maintaining the integrity of the trial process and ensuring that any irregularities or procedural errors that could impact the fairness of the proceedings are appropriately addressed. The court's ruling underscores the necessity for trial judges to meticulously adhere to procedural standards and communicate effectively with all parties involved in the trial.

Orders