Damien Aubrey Platt v The Queen - [2018] VSCA 276

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0054

DAMIEN AUBREY PLATT	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	TATE, WHELAN and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2018
DATE OF JUDGMENT:	1 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 276
JUDGMENT APPEALED FROM:	DPP v Platt (Unreported, County Court of Victoria, Judge McInerney, 22 February 2018)

---

CRIMINAL LAW – Application for leave to appeal – Refusal to discharge juror – Association between relative of applicant and relative of juror – Questioning of juror – Juror ignorant of association – No apprehended bias – Webb v The Queen (1994) 181 CLR 41, Dupas v The Queen (2010) CLR 237, R v Hood [1968] 1 WLR 773 applied – Najibi v The Queen (2016) 260 A Crim R 491, Wu v The Queen (1999) 199 CLR 99 considered – Juries Act 2000 (Vic) s 43.

---

APPEARANCES:	Counsel	Solicitors
APPLICANT	Mr D N McGlone	Mike Wardell Barristers & Solicitors
RESPONDENT	Mr B L Sonnet	Mr John Cain, Solicitor for Public Prosecutions

TATE JA

WHELAN JA
NIALL JA:

On 6 December 2017 the applicant was convicted following a six day trial in the County Court at Ballarat of one charge of recklessly causing injury, two charges of rape, and one charge of reckless conduct endangering the safety of a person. He was acquitted of other charges. He was sentenced on 22 February 2018 to a total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years.

The applicant now seeks leave to appeal on a single ground which is that the trial judge erred in not discharging a juror. The application gives particulars of the ground as follows:

The learned trial judge erred in failing to discharge a juror whose family-owned business previously employed the Applicant’s mother.

Relevant events at the trial

The trial began and the jury was empanelled on Tuesday 28 November 2017. As is common practice, prior to the empanelment the prospective jurors were given what was described as ‘a list of witnesses and/or persons mentioned’. The judge observed that his practice was to have the tipstaff give the document to each of the panel members ‘to ensure they don’t know anyone’.[1] The judge’s instructions to the panel were not transcribed. On the hearing before us counsel for the applicant, who was counsel at the trial, told us that the judge had followed the course usually followed by trial judges in this State, in telling the panel members that they should apply to be excused if they knew the accused, or one of the people involved in the case, or something about them, or something about the case.[2] The Court was required by s 32 of the Juries Act 2000 (‘the Act’) to provide members of the jury panel with information about the type of charge, the name of the accused, the names of the principal witnesses, and any other relevant information, and then call on persons…

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.

Keep reading for free

Create a free CaseChat account to read Damien Aubrey Platt v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSCA 276
Decision Date: 1 November 2018

CaseChat Overview and Summary

In the case of Damien Aubrey Platt versus The Queen, the applicant sought leave to appeal against the refusal by the trial judge to discharge a juror. The relationship between the applicant’s relative and the juror's relative was the focal point of the challenge. The Supreme Court of Victoria presided over the proceedings. The central issue before the court was whether the association between the relative of the applicant and the juror could potentially influence the juror's impartiality, and if so, whether the refusal to discharge the juror was an abuse of the court's discretion.

The court meticulously examined the circumstances to determine if the juror had any bias or prejudice towards the applicant. It noted that the juror was unaware of the association, and there was no evidence to suggest that the juror was influenced in any way. The court considered precedents such as Webb v The Queen, Dupas v The Queen, and R v Hood, which underscore the importance of impartiality in jurors. Additionally, the court referred to statutory provisions under the Juries Act 2000 (Vic) section 43, which outlines the criteria for discharging jurors. The applicant's arguments were weighed against these legal standards, culminating in the court's conclusion that there was no basis for the juror to be discharged.

In reaching its decision, the court held that the trial judge did not abuse his discretion by refusing to discharge the juror. The applicant's challenge did not meet the threshold for demonstrating any apprehended bias. Consequently, the court denied the applicant's application for leave to appeal. The refusal to discharge the juror was upheld, maintaining the integrity of the trial process.

Orders