Doyle v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0093

HAYDEN DOYLE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2024
DATE OF JUDGMENT:	31 May 2024
DATE OF REASONS:	5 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 120
JUDGMENT APPEALED FROM:	DPP v Doyle [2023] VCC 596 (Judge Doyle)

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CRIMINAL LAW – Appeal – Conviction – Recklessly cause serious injury – Juror falling asleep – Whether fundamental irregularity – Whether a failure of process – Whether substantial miscarriage of justice – Appeal allowed.

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Counsel
Applicant:		Mr CK Wareham
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Adrian Dessi Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

On 5 October 2021, a jury empanelled in the County Court to try him found the applicant guilty of recklessly causing serious injury (charge 3, as an alternative to charge 2), but acquitted him of making a threat to kill (charge 1) and intentionally causing serious injury (charge 2).[1]
[1]On 3 April 2023, the trial judge sentenced the applicant to four years and nine months’ imprisonment, with a non-parole period of two years and eight months.
There was no dispute between the parties that, at various times during the trial, one of the twelve jurors appeared to be asleep. In this Court, the applicant contended that so much occasioned a substantial miscarriage of justice, but the respondent demurred.
The applicant’s proposed ground of appeal was formulated as follows:
A substantial miscarriage of justice occurred as a consequence of a fundamental irregularity occurring in the applicant’s trial where:
(a) a juror repeatedly fell asleep during parts of the evidence, and
(b) the learned trial judge failed to discharge the jury.
At the conclusion of oral argument in this Court on 31 May 2024, we made orders that the application for leave to appeal against conviction be granted; the appeal be allowed; the conviction be set aside; and a new trial be had. These are our reasons for those orders.

Evidence and issues in the trial

On 26 October 2019, the complainant, Alex Van Staveren, attended the ‘Deck Bar’ in Frankston. Separately, the applicant and a group of his friends also attended the Deck Bar. The applicant and Mr Van Staveren did not know each other, but they had a mutual acquaintance, Matthew Luisetto, who had gone to the Deck Bar with the applicant and others. In the course of the evening, Mr Van Staveren saw Mr Luisetto — whom he had not seen for years — at the venue, and the two had a conversation before parting.
The next morning, at about 2.00 am, Mr Van Staveren went to a lavatory. As he came out, he saw two males, one of whom was Brad Jenkins. Mr Van Staveren asked Mr Jenkins about a large scar on the side of Mr Jenkins’ face, and the conversation became heated. After Mr Van Staveren and Mr Jenkins parted, the applicant spoke to Mr Jenkins, before walking to where Mr Van Staveren was situated with a group of friends. The prosecution claimed that the applicant then made a threat to kill (charge 1, of which the applicant was acquitted).
At approximately 2:33 am, the applicant approached Mr Van Staveren’s wife. Security staff then ejected him from the venue. He initially waited outside but moved on and sat on the venue’s steps near the intersection of Nepean Highway and Davey Street.
Not long afterwards, at about 2.42 am, Mr Van Staveren and his wife left the venue. They walked past the applicant, who was sitting outside, towards the fast-food outlets. The applicant recognised them, and he and his group followed Mr Van Staveren, his wife and their group. There was a brief altercation between the two groups which ended after security staff from the venue separated them. Both groups then crossed Davey Street, before a further altercation took place between the applicant and Mr Van Staveren outside the Grand Hotel. At various points during the altercation, each was restrained by Mr Luisetto.
While Mr Van Staveren was speaking to Mr Luisetto, the applicant struck him to the head with a closed fist. As a result of the blow, Mr Van Staveren fell, hit his head on the footpath, and suffered a fractured skull and bleeding on the brain (this being foundational of charges 2 and 3).
The applicant was identified via a ‘Facebook’ post. On 31 October 2019, a warrant was executed at his address and items of clothing were taken. The following day, 1 November 2019, the applicant attended the Frankston police station by appointment and was arrested and interviewed.
There was no dispute at trial that the applicant struck Mr Van Staveren, causing him serious injury. The circumstances surrounding the blow were, however, hotly disputed. On the prosecution case, the applicant was the principal aggressor, and delivered an entirely unprovoked blow to Mr Van Staveren whilst he was engaged in conversation with Mr Luisetto. The ‘defence’ was twofold. First, the applicant asserted that he had acted in self-defence, in that Mr Van Staveren had been aggressive throughout the night, and, when they had the altercation outside the Grand Hotel, Mr Van Staveren moved towards the applicant and the applicant struck him. Secondly, the applicant asserted that he did not have an intention to cause serious injury — or injury as a lesser included alternative — and that he was not reckless as to causing serious injury.

A sleeping juror

For reasons not presently relevant, a first trial of the applicant resulted in the jury being discharged without verdict on 16 February 2023. A second trial commenced the next day, 17 February 2023, when a second jury was empanelled. The evidence in the second trial commenced on 20 February 2023, with the video and audio recorded evidence of the complainant from the first trial being played to the jury.
Part way through the playing of Mr Van Staveren’s evidence, defence counsel sought to raise a matter in the absence of the jury. There was then an exchange between counsel and judge, in which defence counsel informed the judge that a female juror had ‘been asleep’ — ‘on and off’ — for ‘the last 20 minutes’. Counsel said that the juror is ‘able to pay attention for maybe 30 seconds or so’, but then ‘you can see her eyes close and then she drops her head’. The prosecutor told the judge that she had ‘real concerns’, because the juror ‘appears not to be conscious’, ‘dropping off and then coming to’, and there was a ‘lot of detail’ in the case. Defence counsel then asked the judge to discharge the jury, but the judge refused, observing that ‘We’ve been going about 20 minutes so far’. Significantly, the prosecutor then added that the informant ‘formed the same view, that [the juror] appeared not to be awake’, and she said that the juror ‘didn’t appear to me to at all be coping … giving the attention that was required to any case, let alone a case like this’, where there was ‘hours and hours of [CCTV] footage’. The judge then said he would ‘keep [his] eye on her’.
The jury then returned to court and Mr Van Staveren’s evidence continued, during which both his recorded evidence from the first trial was played and he gave additional oral evidence. When lunchtime was reached, and the jury were sent away, there was further discussion between the judge and counsel concerning the juror, during which defence counsel sought a discharge of the jury. The discussion included the following:[2]
[2]Emphasis added to this and following exchanges.
HIS HONOUR: She was all right — thanks. Look, I thought for most of that time, the juror was concentrating. There was a period right at the end there, right at the end, where she appeared to get sleepy. Yes, I don’t know. I mean, she concentrated for most of that time, in my observation. I’m not staring at her the whole time - - -
[PROSECUTOR]: I know. I tried to have a few, and I agree. She seemed better. However, at the end there, to me there were — and I can’t quite remember exactly where it was, to me she appeared to fall asleep. Nod off and come up and I’m not trying to be difficult, Your Honour, but I don’t think most — being able to concentrate for most of the time is really appropriate.
HIS HONOUR: All right. Well, what are you saying I should do? Start again?
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I’ll think about it.
[PROSECUTOR]: And this is sort of unrelated, but in hindsight, and it’s not - - -
HIS HONOUR: Yes, I know. I know. Should have stood her aside.
[PROSECUTOR]: No. I mean, in - - -
HIS HONOUR: I think you should have, because I watched that juror very, very slowly - - -
[PROSECUTOR]: I didn’t see her - - -
HIS HONOUR: - - - make her way around the court - - -
[PROSECUTOR]: I couldn’t see, Your Honour.
HIS HONOUR: - - - and sometimes it’s better to challenge someone like that.
[PROSECUTOR]: No, I - - -
HIS HONOUR: Well stand them aside.
[PROSECUTOR]: Yes. The only other thing is — if I can just confer with my learned friend. Just very briefly.
HIS HONOUR: But I have to discharge the jury if I — that’s what we do.
[PROSECUTOR]: The other thing is, in hindsight, and I know Mr Staveren is in court - - -
HIS HONOUR: Yes, it would be much better to - - -
[PROSECUTOR]: To do it - - -
HIS HONOUR: Yes, I wouldn’t like - - -
[PROSECUTOR]: - - - fresh.
HIS HONOUR: Having watching this happen now, I wouldn’t go for it again.
[PROSECUTOR]: No. And it is regrettable, but I think the way we have done it - - -
HIS HONOUR: It seemed like a good idea at the time.
[PROSECUTOR]: It did, it did seem a good idea, and I did discuss it with Mr Staveren and I think he was anxious to get - - -
HIS HONOUR: Well, I’ve got — you have a united position in relation of that juror. You’re not making a submission one way or the other about whether we should carry on with 11.
[PROSECUTOR]: I think 12 is better. My learned friend might have more to say about that.
HIS HONOUR: Well, maybe it is, maybe it isn’t. We don’t know - - -
[PROSECUTOR]: Well, who knows.
Immediately after the lunch adjournment, there was the following discussion in the absence of the jury:
HIS HONOUR: Look, I’ve thought about this. I’m not yet persuaded that this juror’s incapable of sitting on this jury. The evidence present so far has been — I’m not being critical, but presented in what I regard as very disjointed and difficult — a situation where it’s difficult to concentrate. I watched that juror for 45 minutes and whilst I accept that right at the end she had difficulty staying awake, in my view she was awake and doing her best for the previous 45 minutes.
So I’m not persuaded yet. I mean, these CCTV — it’ll be tendered, it’ll be played again on multiple occasions throughout this trial. It’s not something that’s gone forever in this trial and I’m not persuaded yet that I should either get this juror in and interrogate her about it or discharge her. I think at this point I’ll continue.
There are things that I can do. I can have more frequent breaks, and I will, but I’m not yet persuaded that this juror lacks the capacity to remain on the jury. We’ve only been going a very short time and so, [defence counsel], in my view we can continue and I’ll just keep an eye on it. All right?
[DEFENCE COUNSEL]: As Your Honour pleases. The purpose of it is formally put on the record. I did obtain some instructions over lunch.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: Those instructions were to make that application for the discharge.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: Your Honour has ruled and we’ll bat on.
HIS HONOUR: Yes. All right. I mean, not every juror is going to be of the same capacity in every trial. My observation was the juror — it was only just at that end, very end section, and I’ll have extra breaks and I’ll monitor it. If there is a problem we’ll address it again.
[PROSECUTOR]: I just wish to re-state, Your Honour, the prosecution’s real concerns with this. This is a very detailed case and I and my instructor have real concerns that even if there are more breaks, I just want it stated that we have real concerns with the capacity of this juror.
HIS HONOUR: Are you submitting that this juror does not have the capacity? You’d formed that view? Or you’re not yet there? You’ve got concerns?
[PROSECUTOR]: I have - - -
HIS HONOUR: Concerns?
[PROSECUTOR]: I have formed that view, Your Honour. Because it was such a very short - - -
HIS HONOUR: I know, but - - -
[PROSECUTOR]: The difficulty is, Your Honour - - -
HIS HONOUR: It’s a very narrow time frame that you made the judgment on. It’s no more than an hour this morning.
[PROSECUTOR]: Exactly. And that’s what - - -
HIS HONOUR: She might have had a long train trip in, who knows.
[PROSECUTOR]: Well maybe she did, maybe she didn’t, but - - -
HIS HONOUR: Yes. Well we don’t know, do we?
[PROSECUTOR]: No, we don’t know. The concern that I have is that Mr Van Staveren has also — deserves, as does the defence, to have 12 jurors who are attentive and we won’t — my instructor and I can’t really monitor whether she’s falling asleep or not and we’ll never know what parts of the evidence that she may not have - - -
HIS HONOUR: You must have had cases before where jurors have nodded off - - -
[PROSECUTOR]: Not like — I have, during my closing address too, Your Honour.
HIS HONOUR: - - - from time to time.
[PROSECUTOR]: But this to me was more serious than that. I’ve said what I’ve said and we’ll bat on then, Your Honour.
The applicant’s wife was called to give evidence on 21 February 2023. In the course of her evidence-in-chief, the judge interrupted and said:
Just pause for a moment. I’ll just check one of the members of the jury — that everyone’s awake and concentrating, madame. Yes, thank you. Go on.
It would appear that when he used the title ‘madame’, the judge was addressing the juror in question directly.[3]
[3]See the judge’s report at [19] below.
A little later, before the evidence of the complainant’s wife had concluded, there was a further exchange between counsel and judge in the absence of the jury, which included the following:
[DEFENCE COUNSEL]: Your Honour, just back on the topic of the jury that we've been discussing.
HIS HONOUR: Well, there was one point that I paused, and she rallied.
[DEFENCE COUNSEL]: Can I indicate, Your Honour, I haven't had an opportunity to observe. It was just a couple of instances.
HIS HONOUR: Yes, well, I have.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: And I think I said pause.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: And she looked up. She knew what I was talking about, and she rallied thereafter. …
Finally — and significantly — in the course of the applicant giving evidence in his own defence, the following exchange occurred in the absence of the jury after defence counsel asked for a break:
HIS HONOUR: Is there an objection?
[DEFENCE COUNSEL]: No, no objection Your Honour. I probably noticed over the last 5 minutes or so the juror was really struggling.
[PROSECUTOR]: She was sleeping.
HIS HONOUR: The older lady?
[DEFENCE COUNSEL]: Yes, so I noticed dropping off, eyes closing, and then momentarily leading up to - - -
HIS HONOUR: All right.
[DEFENCE COUNSEL]: Yes, Your Honour might have a better vantage view point.
HIS HONOUR: Yes, I don’t, she’s not asleep, when she puts her head down she’s still awake.
[DEFENCE COUNSEL]: Well I did see her eyes closed Your Honour.
HIS HONOUR: Well, yes, all right. All right, any way you want a break.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: So we’ll have a break and we’ll come back in 15 minutes or thereabouts.
Apart from what appears in the transcript, the trial judge provided a report to the Court, as follows:
I wish to make the following comments additional to the trial transcript.
After the situation with the juror had been brought to my attention and I had declined to discharge the jury, I paid close attention to the juror throughout the trial. The description of the juror’s level of attention in paragraph 5 of the Respondent’s Written Case[4] is consistent with my observations of the juror throughout the trial, other than on the occasion where I spoke directly to the juror[5] as set out in the Applicant’s written case.
[4]Paragraph 5 is as follows:
In preparation of this Written Case counsel has had the benefit of a video of the first day of the trial. The first 20 minutes of the first witness’ evidence do not depict the jury. Then, as if prompted by the issue that fell for discussion after the first 20 minutes of evidence, a camera recording events swings around to face the jury as if the sole intent in doing so was to record the relevant juror. The viewer thus has a view of the jury after the resumption of evidence – post the initial discussion concerning the juror’s apparent lack of attentiveness – until lunch on the first day. It becomes tolerably clear from the recorded vision – and from what appears from the earlier transcript – which juror it was who became the subject of concern. And from a viewing of the video, it appears that from the resumption of evidence until the luncheon adjournment on the first day the juror seems quite attentive (with notebook and pen in hand).
[5]See [16] above.
Based on the foregoing, the following may be said.
First, during the complainant’s evidence, defence counsel was sufficiently concerned that a female juror had been ‘asleep’ on and off for 20 minutes, that he interrupted the complainant’s evidence and sought a discharge of the jury. Defence counsel’s observation that the juror had been asleep was supported by the prosecutor, who said that she had ‘real concerns’ because the juror ‘appears not to be conscious’. The observations of both defence counsel and prosecutor were supported by the informant, who had formed the view that the juror ‘appeared not to be awake’. These observations were not contradicted by anything the judge said contemporaneously (or, for that matter, in his report to this Court). Notwithstanding the views shared by both ends of the Bar table, however, the judge declined to discharge the jury.
Secondly, the complainant’s evidence having continued, just before the next lunch break the judge remarked that there ‘was a period right at the end there, right at the end, where [the juror] appeared to get sleepy’, although she had concentrated ‘most of the time’. The prosecutor said that the juror at one time ‘appeared to fall asleep’, and said that she did not think that ‘being able to concentrate for most of the time is really appropriate’. Once more, defence counsel sought a discharge of the jury.
Thirdly, immediately after the lunch break, when refusing to discharge the jury, the judge said that, whilst he accepted ‘that right at the end [the juror] had difficulty staying awake, in [his] view she was awake and doing her best for the previous 45 minutes’. Part of the judge’s reasoning for refusing to discharge the jury appears to have been that the trial had ‘only been going a very short time’. Defence counsel repeated his instructions to seek a discharge of the jury. And, significantly, the prosecutor wished to restate that the prosecution had ‘real concerns with this’. It was ‘a very detailed case’, and the prosecutor and her instructing solicitor had ‘real concerns with the capacity of this juror’, ‘even if there are more breaks’.
Fourthly, during the evidence of the complainant’s wife the judge addressed the juror directly — checking ‘that everyone’s awake and concentrating’ — and ‘she rallied’.
Finally, when the applicant was giving evidence, the prosecutor observed the juror to be ‘sleeping’, and defence counsel observed the juror to have been ‘struggling’, ‘dropping off, eyes closing’, although the judge thought that the juror was ‘not asleep’, and that ‘when she puts her head down she’s still awake’.

The submissions of the parties

Citing Cesan[6] — a case involving a sleeping trial judge — the applicant’s counsel in this Court submitted that the circumstances of the instant case are significantly more grave than that case. While the judge has the overall responsibility of ensuring that the trial is conducted according to law and in circumstances that are fair, it is the jury who decides the facts of the case.
[6]Cesan v The Queen (2008) 236 CLR 358 (‘Cesan’).
Counsel for the applicant submitted that where the trier of fact is not capable of engaging with the evidence, it cannot be said that an accused person has had a fair trial. The issue of the juror being, or appearing to be, asleep was raised repeatedly throughout the trial by both prosecution and defence. Counsel submitted that the applicant was entitled to have the evidence in his trial considered and evaluated appropriately by a jury capable of active intellectual engagement with the evidence. But that did not happen. Ultimately, counsel submitted that there has been a fundamental irregularity going to the root of the trial that has caused a substantial miscarriage of justice.
The respondent’s counsel submitted that the chronology is important. In written submissions, the respondent’s counsel contended that, by reference to a video taken of the courtroom, after concerns were raised after the first 20 minutes of the complainant’s evidence, it cannot be ‘concluded from the video that the juror was asleep and thus not attentive’, since ‘[f]or the most part she seems attentive’. Counsel acknowledged that on 21 February 2023, at some point after 11.30 am, the judge interjected during the evidence to ensure that the juror was awake and concentrating, and the juror apparently ‘rallied’. The respondent’s counsel also acknowledged that a couple of days later, during the applicant’s evidence, the prosecutor thought that the juror was sleeping. But the judge disagreed, expressing the view that the juror was ‘not asleep’, and that ‘when she puts her head down she’s still awake’. On the basis of the chronology, counsel submitted, it cannot be concluded that after lunch on the first day the juror in question was not sufficiently attentive, and it cannot be concluded that the judge was in error in determining that the juror possessed the capacity to sit on the jury.
Counsel for the respondent submitted that it is not determinative of this application that the judge might erroneously have failed to discharge the jury, the question in the end being whether there has been an error or irregularity that is productive of a substantial miscarriage of justice. In the present case, where the most that can be said is that the juror at relatively few isolated points during the trial simply appeared to be asleep, it is difficult to contend that the applicant suffered actual prejudice. Counsel submitted that it is difficult to see how it can be said that what occurred was productive of a substantial miscarriage of justice, even if one were to approach the case simply from ‘appearances’.[7]
[7]Counsel cited Cesan, 381 [72] (French CJ).

Discussion

In a criminal trial conducted with a jury, the fundamental task of the trial judge is to ensure that the trial is fair, and conducted in accordance with law. Adequate performance of that task requires the judge (among other things) to exercise proper control over the proceedings; determine the admissibility of evidence; and determine whether certain evidence is, or is not, capable of establishing particular facts. Ultimately, the judge must instruct the jury about so much of the law as they need to know to decide the real issues in the case, which requires the judge to instruct the jury about the elements of the charged offences; to direct the jury on the onus and standard of proof; to relate the law to the issues in the case; to put the defence case fairly; and to direct the jury on the use, and non-misuse, of particular evidence.[8]
[8]Cesan, 371 [74] (French CJ).
But it is for the jury, and the jury alone, to decide the facts of the case.[9] By its verdict, the jury is the sole judge of the outcome of the case. Ultimately, the jury’s verdict must be the combined judgment of each individual member (or, in the case of a majority verdict, the combined judgment of each member of that majority). Self-evidently, proper assessment and determination of the facts requires the jury to have seen and heard all of the evidence. The events in the present trial raise the real prospect that one of the jurors in the applicant’s trial was asleep for part (or parts) of the evidence, and thus could neither have seen nor heard it.
[9]RPS v The Queen (2000) 199 CLR 620, [42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ); McKell v The Queen (2019) 264 CLR 307, [2] (Bell, Keane, Gordon and Edelman JJ); Cesan, 381 [74] (French CJ).
Although appellate courts in this country have grappled with the phenomenon of a sleeping judge, the phenomenon of the sleeping juror does not appear to have attracted appellate scrutiny (unlike the United States, where the problem of the sleeping juror has been the subject of a number of decided cases).[10]
[10]See Rhandi Childress, Convicted by a Sleeping Jury: Harmless Error or a Challenge to the Integrity of our Criminal Justice System, (2011) 44 J Marshall L Rev 751.
The problem of the sleeping trial judge was dealt with by the High Court in Cesan, on appeal from the New South Wales Court of Criminal Appeal. In that case, the two appellants had faced trial in the District Court of New South Wales charged with conspiracy to import the drug ecstasy. At various stages during the trial, including during cross-examination of one of the appellants, the attention of at least some members of the jury was distracted from the evidence being given because the judge — who was later diagnosed as suffering from severe obstructive sleep apnoea — had fallen asleep. No objection was, however, taken by counsel for either of the appellants. The jury found the two appellants guilty, and the judge sentenced them to terms of imprisonment. In an appeal against conviction to that court, the Court of Criminal Appeal had held (amongst other things) that there had been no miscarriage of justice because the appellants had not identified any defect in the trial or any omission, misdirection or error which had an adverse effect on the canvass of issues at the trial or their determination, and that there had been no failure of process of such a kind as to make it impossible for an appellate court to decide that the convictions were just. The High Court, however, set aside the appellants’ convictions.
In his reasons for judgment, French CJ concluded that, given the substantial failure of the trial judge to maintain the necessary supervision and control of the trial, there had been a miscarriage of justice. Additionally, the judge’s conduct distracted the jury during the trial process and led at least some of the members of the jury to regard the judge with amusement.[11] There was a substantial miscarriage of justice because the judge’s conduct had a discernible distracting effect on the jury, and the reaction of some of the jurors raised a real question about the extent to which they would have attended to the evidence and accorded to the judge’s directions the respect and attention they required. Furthermore, the judge’s conduct created the appearance of injustice which could not be cured by forming the opinion that a reasonable jury would have convicted the appellants in any event.[12]
[11]Ibid 388 [96].
[12]Ibid 388–9 [97].
French CJ was of the view that the substantial failure of the trial judge’s duty to supervise and conduct the trial — because he was noticeably and repeatedly asleep or inattentive — meant that the trial had been flawed in a fundamental respect. And, looking at the question through the prism of the proviso found in the common form criminal appeal statutes, French CJ held that it could not be said that there had not been a substantial miscarriage of justice. He observed:[13]
As these reasons indicate, the case invited consideration of the duty of the judge in a trial by jury. That duty extends to the supervision and control of the conduct of the trial. Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice. Putting to one side minor lapses, a substantial failure of that kind in the judge’s duty may have imponderable effects upon the outcome of the trial which cannot be assessed by an appellate court. The trial in such a case is flawed in a fundamental respect. However apparently strong the evidence against the accused person may have been, it cannot generally be said with any confidence that there has been no substantial miscarriage of justice. The trial in this case was so flawed. There was a miscarriage of justice. It could not be said that the miscarriage was not substantial.
[13]Cesan, 362 [4].
In their joint judgment, Hayne, Crennan and Kiefel JJ — Heydon J agreeing[14] (and Gummow agreeing as to the application of the proviso)[15] — considered that attention should be focused upon the consequences of the trial judge falling asleep.[16] What was important was that the jury was distracted from paying attention to all of the evidence. The jury’s verdict had to be founded on all of the evidence led at trial. Repeated distraction of the jury from attending to the evidence at various stages of the trial, including when one of the appellant’s was giving his evidence, constituted a miscarriage of justice.[17] Their Honours said:[18]
What is important, in these cases, is that the jury was distracted from paying attention to all of the evidence. And it was upon the assessment of all of the evidence led at trial that the jury’s verdict had to be founded. The repeated distraction of the jury from attending to the evidence at various stages of the trial, including when one of the accused was giving his evidence, constituted a miscarriage of justice.
[14]See ibid 396 [133].
[15]Ibid 391 [107].
[16]Ibid 391 [112].
[17]Ibid 393 [119].
[18]Ibid (emphasis added).
Concluding that the miscarriage of justice was substantial by reference to the ‘proviso’ in the common form criminal appeal statutes, their Honours observed that the miscarriage in that case lay in the distraction of members of the jury from their task, in circumstances where it was not possible to conclude, on the written record of the trial, that the evidence properly admitted at trial proved the appellants guilty beyond reasonable doubt.[19] It was not possible to place any weight on the jury’s verdict, since the relevant hypothesis was that the jury did not pay attention to all of the evidence; and, in particular, the jury was distracted when one of the two appellants was giving his evidence.[20]
[19]Ibid 395 [127].
[20]Ibid 395 [129].
So far as the present case is concerned, the starting point of any analysis must be s 276(1) of the Criminal Procedure Act 2009, the terms of which depart from the common form criminal appeal statutes. Section 276(1) requires this Court to allow an appeal against conviction if the appellant satisfies the Court of one or more of three things:
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.
It is clear that subs (1)(a) has no application in the instant case. Hence, for the applicant to succeed, he must satisfy the Court that, as the result of an error or an irregularity in, or in relation to, the trial, or for any other reason, there has been a substantial miscarriage of justice.
In Baini,[21] the High Court considered what might constitute a substantial miscarriage of justice for the purposes of s 276(1). The majority (French CJ, Hayne, Crennan, Kiefel and Bell JJ) held that s 276(1) was not to be interpreted solely by reference to the curial interpretation given to the proviso found in the common form statutes.[22] Because the possible kinds of miscarriage of justice dealt with by s 276(1) are ‘too numerous and too different to permit prescription of a singular test’, there is no single universally applicable definition of a substantial miscarriage of justice.[23] With respect to the two limbs in s 276(1)(b) and (c) — with which, as I have said, this case is concerned — the majority observed that the kinds of substantial miscarriage of justice include cases where ‘there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’.[24] The two limbs also cover those cases in which ‘there has been a serious departure from the prescribed processes for trial’.[25]
[21]Baini v R (2012) 246 CLR 469 (‘Baini’).
[22]Ibid 478 [20].
[23]Ibid 479 [26].
[24]Ibid.
[25]Ibid.
Importantly, the majority held that a substantial miscarriage of justice may occur where there has been a ‘departure from process’, even if the ‘verdict was open or it is not possible to conclude whether the verdict was open’.[26] A finding that conviction was ‘inevitable’ does not conclude the issue, merely being relevant to the Court’s assessment of whether there has been a substantial miscarriage of justice.[27] If it is submitted that the verdict was inevitable, the appellant need show ‘no more than that, had there been no error, the jury may have entertained a doubt’.[28]
[26]Ibid.
[27]Ibid 481 [31].
[28]Ibid 480 [30].
More recently, in Awad[29] — in which the judge in a drug trial had given a direction prohibited by statute — the High Court once more considered s 276(1). In discussing the effect of the majority judgment in Baini, Gordon and Edelman JJ made the following observations:[30]
Section 276 of the Criminal Procedure Act is not in the same form as the common form criminal appeal provision, which was its legislative predecessor. ... The interpretation of s 276 must therefore begin with the text of that provision and the decision of this Court in Baini.
Two of the non-exhaustive categories of substantial miscarriage of justice described by the majority in Baini[31] are where: (i) ‘there has been a serious departure from the prescribed processes for trial’; or (ii) ‘there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’. As their Honours later said, the first category involves a departure ‘from trial processes (sufficiently described for present purposes as “serious” departures), whether or not the impact of the departure in issue can be determined’; and the second category involves ‘an error which possibly affected the result of the trial’.[32]
As to the first category – like appeals under the common form criminal appeal provision – where the conclusion is reached that an error is a fundamental one, which ‘goes to the root of the proceedings’[33] or amounts to ‘a serious breach of the presuppositions of the trial’,[34] the demonstration of that error by the appellant will, of itself, establish a substantial miscarriage of justice. That is, a fundamental error will result in a substantial miscarriage of justice irrespective of whether the Court of Appeal considers that the error could have affected the result of the trial.
[29]Awad v The Queen (2022) 275 CLR 421 (‘Awad’).
[30]Ibid 444–5, [75]–[77] (citations as in original). See also 431–2, [25]–[27] (Kiefel CJ and Gleeson J).
[31](2012) 246 CLR 469 at 479 [26].
[32](2012) 246 CLR 469 at 481 [33].
[33]Wilde v The Queen (1988) 164 CLR 365 at 373; Krakouer v The Queen (1998) 194 CLR 202 at 211 [21]; Hofer v The Queen (2021) 274 CLR 351 at 367 [51].
[34]Weiss v The Queen (2005) 224 CLR 300 at 317 [46]; Lane v The Queen (2018) 265 CLR 196 at 212 [57]; Hofer v The Queen (2021) 274 CLR 351 at 374 [72].
By reason of the juror appearing to be asleep throughout parts of the evidence, there has, in our view, been a serious departure from the prescribed processes for trial, such that the applicant’s conviction cannot be permitted to stand.
It is clear that the jury in the applicant’s trial needed to assess the evidence of a number of eyewitnesses who gave competing versions as to what had occurred in the incident in which the applicant allegedly assaulted Mr Van Staveren. At the outset of the trial, both the prosecutor and defence counsel noted that the jury would be required to apply a substantial degree of concentration to both the evidence of the witnesses and the substantial volume of CCTV footage. It is in that context that the observations made by both counsel concerning the juror were significant. Those observations occurred during two stages in which the evidence of the complainant put before the jury; when his wife — a critical witness — gave evidence; and also when another eyewitness, Mr Luisetto, gave evidence. Critically, the observation of the sleeping juror was made during the evidence of the applicant himself. (It is also relevant that the juror was apparently observed to be struggling during the prosecutor’s final address.) Significantly, the prosecutor, in the first intervention, noted that the juror in question did not seem to be ‘at all coping … with giving the attention that was required to any case, let alone a case like this’.[35] Moreover, the judge himself expressed some reservations about the capacity of the juror, arising from observations he had made of that juror during the empanelment process.[36]
[35]See [13] above.
[36]See [14] above.
Returning to Cesan, Hayne, Crennan and Kiefel JJ said that
it was upon the assessment of all of the evidence led at trial that the jury’s verdict had to be founded.[37]
Plainly, that observation applies with equal force in the present case.
[37]Cesan, 393 [119].
Hayne, Crennan and Kiefel JJ also observed:[38]
Ensuring that the jury is not distracted from paying full attention to its task is pre-eminently a matter for the trial judge. If trial counsel is concerned that members of the jury cannot give, or are not giving, proper attention during the trial, it will be for counsel to raise that issue with the trial judge.
As is clear from the record of the trial, prosecuting and defending counsel both were sufficiently concerned about the allegedly sleeping juror that they sought a discharge of the jury.
[38]Ibid 393 [120].
Moreover, when assessing whether there had been a substantial miscarriage of justice, Hayne, Crennan and Kiefel JJ observed:[39]
In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all of the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty.
Similar observations might be made in the present case, where it appears to be clear that one juror did not pay attention to all of the evidence led at trial, including the evidence of the applicant.
[39]Ibid 395 [129].
As the record of the trial shows, although counsel for the applicant and prosecution both sought a discharge of the jury, neither distinctly relied on the provisions of the Juries Act 2000, which permit a judge in a criminal trial to discharge a particular juror — without discharging the whole jury — if (among other things) ‘the juror becomes incapable of continuing to act as a juror’, or ‘it appears to the judge that, for any other reason, the juror should not continue to act as a juror’.[40] In such a case, the judge may direct that the trial shall continue with the remaining jurors (so long as at least 10 jurors remain).[41]
[40]Juries Act 2000, s 43(b) and (d).
[41]Juries Act 2000, s 44(1) and (3).

In the result, the trial continued to verdict with at least one juror apparently not having paid attention to the whole of the evidence led, including the evidence given by the applicant in his own defence. Thus, although it seems that the jury purported to announce a unanimous verdict, it also seems clear that at least one of their number — the sleeping juror — agreed on the delivery of a verdict without having seen or heard all of the evidence (even if it be accepted that she saw and heard a substantial majority of it).
The common law has, since the fourteenth century, insisted that the verdict of a criminal jury must be unanimous,[42] so that a verdict can only be returned by the agreement of all jurors.[43] And although the requirement of unanimity — ‘one of the hallmarks of the common law institution of criminal trial by jury’[44] — has been modified by statute, so as to permit majority verdicts if certain conditions are met,[45] no statutory modification of the common law requirement was engaged in the present case. If the observations of the participants in the trial, that the juror was at times asleep, are to be accepted — in our view there is no reason to reject those observations — the purportedly unanimous verdict was not based on the whole of the evidence seen and heard by the whole of the jury.
[42]Cheatle v The Queen (1993) 177 CLR 541, 550 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[43]Ibid 551, 552.
[44]Ibid 552.
[45]See Juries Act 2000, ss 46.
We consider that, given the repeated episodes of the juror being asleep, it cannot be accepted that the juror paid sufficient attention to all the evidence to discharge her role. In accordance with the views expressed by Hayne, Crennan and Kiefel JJ in Cesan, so much amounted to a fundamental irregularity, and constituted a substantial miscarriage of justice.
But even if it could not categorically be concluded that the juror was asleep at any particular time, it is an undeniable fact that, based on their contemporaneous observations, counsel at both ends of the Bar table voiced serious misgivings concerning the juror’s capacity. That is a strong indicator that the trial process appeared to the participants ostensibly to be flawed in a fundamental respect, and we consider that to an objective observer it would inevitably have appeared to have been so. A member of the jury, whose duty it was to decide the case upon the whole of the evidence, appeared to be incapable of doing so because she was dozing. In those circumstances, we consider that the trial process was fundamentally flawed. To draw on Lord Hewart’s well-known aphorism, voiced in another context, it ‘is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.[46]
[46]R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259.
We do not consider that the juror’s somnolent or slumbering condition can properly be characterised as a minor blemish. Her apparent slumbering represented a substantial failure by the juror to adhere to her oath or affirmation to ‘faithfully and impartially try the issues between the Crown and [the applicant] in relation to all charges brought against [the applicant] in [his] trial and give a true verdict according to the evidence’.[47] To adopt (and adapt) what French CJ said in Cesan, the juror’s lack of attention to the evidence may have had ‘imponderable effects upon the outcome of the trial which cannot be assessed by an appellate court’.[48]
[47]See Juries Act 2000, s 42 and Sch 3.
[48]See [35] above.
Given the fundamental nature of the irregularity — or the departure from process — the issue of inevitability of verdict does not arise as a material consideration for this Court. Nonetheless, we would observe that, absent the irregularity, the applicant’s conviction was not inevitable. The applicant’s conviction must be set aside.
We would make three final observations.
First, insofar as the applicant’s ground of appeal might be understood as contending that a substantial miscarriage of justice was occasioned by the judge failing to discharge the jury, it must be understood that, when a trial judge has refused an application to discharge a jury, and the accused has been convicted, any appeal then brought is not against the failure to discharge the jury, but against the conviction.[49]
[49]Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason J agreeing at 636, Jacobs J agreeing at 636, Aikin J agreeing at 637). See also Dragojlovic v The Queen [2013] VSCA 151, [169] (Redlich and Weinberg JJA and Bell AJA); Gul v The Queen [2017] VSCA 153, [57] (Ashley and Priest JJA); Qadir (a pseudonym) v The Queen [2023] VSCA 155, [24] (Priest, Walker and Kaye JJA); Papaioannou v The Queen [2023] VSCA 43, [65] (Priest, Taylor and Kaye JJA); Rohen v The Queen [2024] VSCA 1, [83]–[84] (Taylor JA).
Secondly, the fact that the trial had ‘only been going a very short time’[50] was a factor that militated in favour of, rather than against, discharge of the jury.
[50]See [15] above.
Thirdly, as the discussion between judge and counsel reveals, it appears that the judge had contemplated proceeding with 11 jurors — the prosecutor was of the view that ‘12 is better’[51] — but opted not to do so. Had the judge seen fit to discharge the apparently sleeping juror — without discharging the entire jury — the verdict of the jury would have been untainted.[52] It would have constituted the decision of each of the remaining jurors based on their individual and collective assessment of the evidence, the verdict of the remaining jurors as a matter of law being ‘a sufficient verdict’.[53] It would not (as occurred) have been a decision in which a juror who had not sufficiently attended to the evidence took part. Should a trial judge in the future be confronted with a situation of the kind that manifested itself in the applicant’s trial, discharge of an apparently sleeping juror will need to be given careful consideration in conformity with these reasons.
[51]See [14] above.
[52]See [48] above.
[53]See Juries Act 2000, s 44(4).

Conclusion

Given the foregoing, we made the orders earlier referred to.[54]
[54]See [4] above.

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[2024] VSCA 120

31 May 2024