DPP v Zheng
[2013] VSCA 304
•18 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0194
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| Appellant | |
| v | |
| DE JUN ZHENG | Respondent |
| S APCR 2013 0195 | |
| DE JUN ZHENG | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGES: | MAXWELL P and PRIEST JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 October 2013 | |
DATE OF JUDGMENT: | 18 October 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 304 | |
JUDGMENTS APPEALED FROM: | R v Zheng (Ruling No 5) [2013] VSC 559; R v Zheng (Rulings Nos 4 & 6) [2013] VSC 561 | |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Murder – Trial judge’s ruling on alternative Crown case – Judge refused to certify – Ruling plainly correct – Application to review certification decision refused – Juror’s comment – Whether apprehended bias – Judge refused to discharge jury – Ruling plainly correct – Applications made after trial commenced – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for leave to appeal refused – Criminal Procedure Act 2009 (Vic) ss 295(2)–(3), 296, 297(2).
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APPEARANCES: | Counsel | Solicitors |
For the Appellant/Respondent | Ms M M Williams SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent/Appellant | Mr G A Georgiou SC | Turnbull Lawyers |
MAXWELL P:
I invite Priest JA to deliver the first judgment.
PRIEST JA:
The wheels of justice have turned slowly in this case. De Jun Zheng is on trial for the murder of Abraham Marco Papo, the killing having occurred as long ago as 12 February 2009. On 30 September 2013 a jury was empanelled to try the case against the accused. For reasons that are not presently relevant, a juror was discharged in the course of the trial, so that the trial is now proceeding with a jury of eleven.
There are two applications before the Court pursuant to ss 296 and 297 of the Criminal Procedure Act 2009 (Vic) (‘the Act’), seeking leave to appeal two interlocutory decisions made by the trial judge.
The first application in time was lodged by the prosecution. In essence, the prosecution contends that if the trial judge directs the jury on causation (and associated features) in the manner that he has ruled that he will, he will do so in error, and to the detriment of the prosecution case.
The second application is made by the accused. Remarkably, it is now joined in by the Crown. It is contended that the trial judge erred in failing to discharge the jury following a remark made by one of the jurors to a member of court staff betraying bias on the part of that juror infecting the whole of the jury.
Each party asked the judge to certify that the interlocutory decisions that they respectively were concerned with was, pursuant to s 295(3)(b) of the Act, ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
His Honour refused to certify with respect to the first interlocutory decision, but, due to the unusual circumstances as his Honour found them to be, did so with respect to the second. Thus in determining the first application, the Court is required, by s 296(4) of the Act, to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’.
Neither interlocutory decision concerns the admissibility of evidence. Thus s 295(3)(a) is not engaged. Moreover, since the subject matter of the proposed appeal in each case was not reasonably able to be identified before the trial, and neither party could be said to be at fault in failing to identify the issue that is the subject of the proposed appeal, subsection 3(c) is not animated. That leaves for consideration subsection 3(b), which requires the Court to consider whether, ’the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
Section 297 of the Act, which of course is pertinent to both applications, so far as is relevant, provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to –
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may–
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
…
I would refuse leave to appeal in each case. In my opinion neither interlocutory decision is ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. In any event, it seems to me that both of the interlocutory decisions plainly are correct, so that there is no ‘issue of law, evidence or procedure’ that requires resolution ‘for the proper conduct of the trial’; or that leave is necessary to ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial’.
In order to understand the Crown’s application for leave to appeal, it is necessary to say a little about the facts.
In the early hours of 12 February 2009, Abraham Marco Papo, the deceased, entered Madame Leona’s brothel in South Melbourne, in the mistaken belief that his girlfriend, a prostitute, was being held captive elsewhere.
He went up to the counter and punched the accused, who was there seated, and stole six mobile telephones. He left the brothel, leaving the accused slumped on the counter. Eventually the accused gathered his senses and followed the deceased.
It is plain that thereafter the accused struck the deceased a number of blows from which he died.
The pathologist, Dr Parsons, called by the Crown, gave evidence that the cause of death was blunt force trauma to the head, neck and chest. She identified the relevant injuries to the head which included the face, neck and chest, as being caused by at least seven possible blows — two across the top of the head, one across the nose, one on the eyebrow, one on the chin, one across the neck, and one ranging from the chest up to the neck. Dr Parsons did not isolate any one of those injuries as the cause of death. Rather, she put them all — in combination — as causing death. She said that each of those areas of injury could have been caused by use of a wheel brace. Any of those blows could have been caused either inside or outside of the deceased’s car.
In his record of interview, the accused gave the following version of events. He said that the deceased, whom he had seen before at the brothel, came into the brothel, swore at him, punched him in the face, stole the telephones and left. The accused, who was bleeding from the nose and dizzy, went outside to recover the telephones. The deceased was nearing his car, which still may have been running. The accused yelled out to him to return the telephones. The deceased bent down and retrieved something from the door of his car which turned out to be the wheel brace. Near the corner of Clarke and York Streets, the deceased came at the accused and struck at him with the wheel brace a few times, which he tried to fend off. It happened quickly. They struggled over the wheel brace, which the accused wrested from the deceased. The accused then struck the deceased at least once, perhaps twice, to the head, chest, face region. The deceased then went back to his car. The accused followed him and yelled out again to return the phones. As the deceased was getting into the car, he went to take something from the driver’s side foot well. The accused then struck the deceased several times with the wheel brace and the car moved off. The accused hit the car several times and yelled at the deceased to stop. The car stopped. The deceased was shaking. The accused said he had asked a man, Mr Wang, to call the police before he ran out of the brothel, and that he asked a female, Ms Gao, to call the police when he saw her outside.
It will immediately be appreciated that on the accused’s version, there were two main parts to the incidents in which he struck the deceased. The first was when he allegedly wrested the wheel brace from the deceased and struck him once or twice to the head or chest area, perhaps the face. It cannot be gainsaid that self‑defence is viable for the accused in relation to this first series of blows.
The second part of the incident, according to the accused, is when he followed the deceased to the deceased’s car and struck him a second series of blows. Self‑defence may be — it being quintessentially a jury question — more problematic for the accused in relation to this second series of blows.
There would be little difficulty associated with charging the jury on the necessary coincidence of murderous intent and the act causing death, and on the absence of lawful justification or excuse coincidentally with the act causing death, were it not for the fact that — on a construction of the facts that is open on the evidence — there were two separate series of blows, in circumstances where the first may be excused by self‑defence but perhaps not the second. It would also be open to the jury, in my view, to reason that murderous intent did not accompany the first series of blows (or at least enjoy reasonable doubt about the matter), but that, by the time he delivered the second series, the accused was motivated by an intention to kill or cause really serious injury.
Herein lies the difficulty for the Crown, which they seek to avoid by putting their case in an alternative way.
The other alternative the Crown seeks to run is that, contrary to the prosecution thesis and instead reliant on the accused’s version, a conviction for murder (or an alternative offence) is open even if the jury cannot exclude self‑defence or lack of murderous intention at the point the accused hit the deceased after he has come at him with the wheel brace and disarmed him, because the Crown would then rely on what occurs at the car door subsequently, even though acceptance of the accused’s version means that at least one (and perhaps two) of the seven blows that in combination caused death occurred, on this hypothesis, in self‑defence and/or without murderous intent.
The learned trial judge has ruled, in essence, that he will direct the jury that unless they can identify the act causing death and find beyond reasonable doubt that self‑defence was not operative when that act was performed, then (subject, of course, to the considerations relevant to defensive homicide and manslaughter), the jury must acquit of murder.
Put another way, if the jury thought that self‑defence was operative with respect to the first series of blows[1] but not the second, but could not be satisfied to the required standard that the act causing death occurred as part of the second series, then acquittal must follow.
[1]In the sense that the prosecution could not prove beyond reasonable doubt that it was not operative.
Similarly, if the jury were not satisfied that the accused had murderous intent when the first series of blows were delivered, but that he did when the second series was delivered, the accused could not be convicted of murder unless the act causing death occurred as part of the second series.
With respect, his Honour's decision is correct and is unattended, in my opinion, by any doubt.
In Meyers,[2] the High Court (Brennan CJ, Toohey, Gaudron and Gummow and Kirby JJ) said in their joint judgment:
[2]Meyers v The Queen (1997) 147 ALR 440.
An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death of one of the specific intents that it is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.[3]
[3]Ibid 442. See also Baker v The Queen [2010] VSCA 226.
Turning to the second application — which, as I have said, the Crown joins in — I should note the following chronology. As I have observed, the jury was empanelled on 30 September 2013. Towards the end of the day on Tuesday 15 October 2013, the Crown case was closed. In the absence of the jury, the discussions necessitated by ss 10–11 and 13–15 of the Jury Directions Act2013 (Vic), commenced. Those discussions continued on the morning of Wednesday 16 October. During the morning, counsel for the accused sought a discharge of the jury. The application was founded upon an apprehension of bias flowing from a comment made by a juror to a member of Court staff.
Initially the application to discharge the jury was opposed by the prosecutor. That opposition dissipated, however, once further discussion on the necessary jury directions continued, and his Honour indicated that he would direct the jury along the lines earlier discussed as part of the first application made to this Court.
As I have said, following the ruling adverse to it, and having originally seen no need to discharge the jury because of the juror’s remark made to the Court staff, the Crown joined in the defence application the following day, and now support the application in this Court.
As I have said, the application to discharge the jury was born of a remark to a member of the court staff by a juror. The remark was quite properly reported by the tipstaff to the trial judge, and the judge, again quite properly, drew it to the attention of the parties.
It seems that the juror asked a question in these term (or terms very similar):
Is there any way we as jurors can find out the sentence after the trial is over.
It is said that this question smacks of pre-judgment and demonstrates ostensible bias. Since, so it is argued, one cannot exclude the possibility that the jurors have spoken among themselves, the whole jury is polluted.
The principles that are applicable to the discharge of a jury are not in doubt. There must be demonstrated a high degree of need.[4] Further, the principles applicable to a complaint of ostensible bias of a jury are not in doubt. The relevant test was set out, Webb and Hay,[5] in judgment of Mason CJ and McHugh J:
[4]R v Boland [1974] VR 849; Crofts v The Queen (1996) 186 CLR 427.
[5]Webb and Hay v The Queen (1991) 181 CLR 41, 53.
It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury, is whether the incident is such that notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension of suspicion on the part of the fair‑minded or informed member of the public that the jury or jury has not discharged or will not discharge its task impartially.
Anybody experienced in criminal litigation, and who has spent any time conducting jury trials, knows that lay jurors are frequently unfamiliar with the processes of, and terminology used in, the court. It is to be doubted that anybody accustomed to the manner in which juries often express themselves with a degree of technical inexactitude would read anything sinister into the juror’s question. Rather, in my view, the question was merely a clumsy way of asking what might happen after verdict, and whether the jury are capable of finding out what occurs in the event that a guilty verdict was returned. More to the point, perhaps, in my opinion the juror’s question would not raise an apprehension in the fair‑minded and informed member of the public, that the juror or jury has not, or will not, discharge his or its task impartially.
Any doubt about it can be dissipated by an appropriate direction by the trial judge.
As I say, my very strong impression is that the juror's question was a somewhat clumsily expressed inquiry as to what might occur. No reasonable and fully informed bystander could, in my view, reach a different conclusion. Moreover, no fair‑minded and fully informed lay observer might come to the view that any potential difficulty arising from the juror’s question could not be ameliorated by an appropriately strong direction to the jury.
The application by the accused is, in my opinion, devoid of merit, and should be refused. `
Applications for the discharge of the jury are pre-eminently decisions in the exercise of a trial judge’s discretion, the judge being imbued with the atmosphere of the trial. It is unfortunate that this Court has to repeat yet again that the occasion for an interlocutory appeal to be brought to challenge the exercise of discretion not to
discharge a jury must be exceedingly rare.[6]
I would refuse each application.
[6]Dertilis v The Queen [2010] VSCA 360.
MAXWELL P:
I, too, would refuse each application, for the reasons which his Honour has given.
I wish to add two or three points, by way of emphasis, in support of the conclusions his Honour has reached. The first is to highlight the clear legislative directive to this Court, in relation to interlocutory applications made after a trial has commenced: see s 297(2) of the Criminal Procedure Act 2009 (Vic). As that subsection makes clear, we are prohibited from giving leave to appeal after a trial has commenced ‘unless the reasons for doing so clearly outweigh any disruption to the trial’. The learned prosecutor, in her submissions, volunteered some comments about the degree of fragmentation of this trial which has already taken place. It should be observed that the Crown’s bringing of its application, and its support of the accused’s application, have only added to that fragmentation.
In my view, it was at all times improbable that the issues raised by these applications could be shown to be significant enough to ‘clearly outweigh’ the further disruption to the trial. It is important to emphasise the work which s 297(2) is plainly intended to do.
The first application, as Priest JA has made clear, concerned a decision which involved an uncontroversial application of a fundamental principle about the proof of guilt in a criminal trial. For the reasons which his Honour has given, I consider that the application was not reasonably arguable.
The prosecutor was asked in argument how any other conclusion was open, given the availability of a defence in respect of one of the blows said to comprise the
actus reus. The only answer the prosecutor could give was, ‘Well, there were subsequent blows’. But it is clear from Meyers v The Queen[7] that, if a body of conduct is relied on as an indivisible whole to establish the crime of murder, the murderous intent and the absence of a defence has to be established in respect of the whole of the conduct said to have caused the death. Moreover, as will be apparent from the trial judge’s ruling, it is only because of the Crown’s second or third version of its own case that this issue has even arisen.
[7](1997) 147 ALR 440.
As to the second matter, I simply wish to record the proper concession by senior counsel for the accused, that an appeal from the refusal of the jury discharge application (assuming leave had been granted) could only have succeeded if it had been shown that the judge had only one conclusion reasonably open to him, that is, to discharge the jury. This is, of course, an appeal from an exercise of discretion, to which the principles in House v The King[8] apply. So to define the hurdle which must be overcome reinforces what Priest JA has said about the rarity with which an application of this kind will be entertained.
[8](1936) 55 CLR 499.
The reports are full of cases where a refusal to discharge a jury is examined, quite satisfactorily, by this Court on an appeal against conviction. The singular advantage of that retrospective examination is that it does not focus simply on the judge’s decision and the circumstances in which it is made. Instead, those advising the convicted person — and then, if an appeal is brought, this Court on the appeal — can see the significance of the refusal to discharge in the context of the trial as a whole. The question to be decided then is whether there has been a miscarriage of justice.[9]
[9]R v Ferguson (2009) 24 VR 531, 581–2 [255]–[258].
We will attach to these reasons both of his Honour’s rulings, for the assistance of trial judges. Finally, I should mention that, for obvious reasons, the revised reasons will be provided to the parties but will not be published — that is to say, will not be made public — until the trial has concluded.
The order in each application is: application refused.
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APPENDIX 1
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0029
| THE QUEEN | |
| v | |
| DE JUN ZHENG | Accused |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 16 & 17 October 2013 | |
DATE OF RULING: | 17 October 2013 | |
CASE MAY BE CITED AS: | R v Zheng (Ruling No 5) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 559 | |
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CRIMINAL LAW – Ruling No 5: Application for certification for leave to commence an interlocutory appeal – Criminal Procedure Act2009 (Vic), s 295 – Certification refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams SC | Office of Public Prosecutions |
| For the Accused | Mr G Georgiou SC | Turnbull Lawyers |
HIS HONOUR:
Introduction
On Monday 30 September 2013, I had a jury of twelve persons empanelled to hear the trial of De Jun Zheng on a charge of murder. It is alleged that, on 12 February 2009, Mr Zheng murdered Abraham Marco Papo in South Melbourne. Mr Zheng pleaded not guilty.
Towards the end of the court day on Tuesday 15 October 2013, Ms Williams SC, Senior Crown Prosecutor, announced that the Crown case was closed. Earlier, Mr Georgiou SC, counsel for the accused, had advised the Court in the absence of the jury that his client would not be going into evidence. Accordingly, I told the jury that that was the conclusion of evidence in this case and sent them away until 11:30 am the next day – an hour after their usual commencement time – so that some legal matters could be dealt with in their absence, after which we would hear the final addresses of counsel and my charge. The legal matters to which I was referring were the issues that arise under ss 10-11 and 13-15 of the Jury Directions Act2013 (Vic) (“the JD Act”).
The discussion of matters under the JD Act commenced that evening and continued the next day, Wednesday 16 October. During that discussion, I raised with counsel a series of questions relating to whether intention to kill or cause really serious injury (“murderous intent”) and the absence of lawful justification or excuse (in this case, the absence of self-defence) must be proved to be wholly contemporaneous with each of the conscious, voluntary and deliberate acts being relied on by the Crown as the acts, in combination, that caused death. Ultimately, I came to the view that the answer to that question must be yes, both as a matter of principle and in the particular circumstances of this case. (Below, I shall explain the particular circumstances in which this issue arises in the present case.) I also indicated, orally, the types of directions I was contemplating would be necessary to give the jury to deal with that point in the particular circumstances of this case.
Ms Williams disagreed with my view of the matter. Mr Georgiou agreed in the proposed directions. Ms Williams sought instructions on Wednesday and ultimately indicated that the Director of Public Prosecutions (“the Director”) wished to apply for certification for leave to commence an interlocutory appeal pursuant to s 296(3) of the Criminal Procedure Act2009 (Vic) (“the CP Act”) against my proposed directions. At that time, I was also in the process of considering an application by Mr Georgiou to discharge the jury without verdict because of a query made by a juror to my tipstaff earlier that day. That application was opposed by Ms Williams. I indicated I would consider both applications overnight. The jury, who had been waiting since 11:30am., were sent home for the day and asked to return this morning at 10:30am.
I heard further argument on both applications this morning. Ms Williams indicated she now supported the accused’s application to discharge the jury. Over lunch today, at my suggestion, Ms Williams sought further instructions on whether, rather than persisting in the application for certification for an interlocutory appeal, the Director might choose an alternative course to pursue the point, if that became necessary – namely, a Director’s reference after trial under s 308 of the CP Act. Ms Williams advised after lunch that the Director persisted in the application for certification under s 296 and that he would not be pursuing the alternative course under s 308.
After being so advised, at about 2:45pm today, I refused the application by the Director for certification. What follows are some brief reasons for my decision to refuse to certify.
The reasons are necessarily brief because they are given in circumstances where Ms Williams had earlier advised that, if I refused certification, the Director would seek to review that decision in any event and that it was hoped that, whatever I decided, the matter would be heard by the Court of Appeal tomorrow, Friday 18 October, so that the trial could resume as soon as possible. I was of the view that the Court might be assisted by at least some brief reasons rather than being confined to divining my thinking from the transcript of the trial.
Cognisant of the Director’s decision to proceed with the proposed interlocutory appeal regardless, but in the hope that the matter could be dealt with expeditiously tomorrow, I brought the jury in, apologised for the delay (which I attributed to my own failings) and explained that they would be sent away until Monday 21 October.
The Crown case
Before explaining the issue in more detail, I should set out the more important features of Crown case, very briefly. This summary is necessarily incomplete given the limited time I have had to compile these reasons.
The deceased believed that his girlfriend, who worked as a prostitute, was being held captive in Sydney and that the accused had something to do with this state of affairs. (The Crown accept that the deceased’s belief was simply wrong: his girlfriend was not being held hostage and the accused had nothing to do with any such thing.) In the early hours of 12 February 2009, fixed with this mistaken belief, the deceased drove to Madam Leona’s brothel at 59 York Street in South Melbourne. He parked his car across the road in Clarke Street. He left the car, probably with the engine running (this is likely because the car had a timing device that meant the engine continued to run for some minutes after the ignition was switched off and the key was removed, in order to cool down the turbo charger). He went into Madam Leona’s. The accused was seated at the counter. The deceased punched the accused to the face, stole about six mobile phones on the counter and left. The accused slumped forward onto the counter. The accused eventually gathered himself and followed the deceased outside soon afterwards.
The deceased went to his car. The accused may have said some things to the deceased from around the middle of York Street but there was no confrontation between them at that point. The accused went to the driver’s side door, yelled at the deceased (who was seated in the driver’s seat) and struck him several times to the head, face, neck and other regions of his body with a wheel brace. This, I understand, is to be inferred from the injuries sustained by the deceased and the observations of the witness, Mr Wang, who worked at the brothel and saw the accused striking at the driver’s side window area of the car. He did not actually see any blows struck to the deceased. The accused also struck the car with the wheel brace, damaging the windscreen, the driver’s side mirror and window and the driver’s side rear window. (The driver’s side window, which was tinted, was found on the road near the car.) At some point, the car moved forward and came to rest in an angled position at the intersection of York and Clarke Streets. Ms Williams concedes that the Crown cannot say from where the wheel brace came.
Two onlookers called the police at various points during this episode. Mr Wang called them once. During his call, the sound of the deceased’s car revving at its limit could be heard. Ms Gao, who also worked at the brothel, called them twice. The accused asked Ms Gao to ring the police and the ambulance.
When the police arrived, the deceased was standing beside the car holding the wheel brace. He was told to drop it and to sit down, which he did.
Police seized an imitation firearm (which turned out to be a cigarette lighter in the shape of an old-fashioned pistol) from the driver’s side foot well of the deceased’s car. One police officer initially thought it may have been a knife. Another thought it was a gun. It was apparent watching them give evidence that they got a fright when they saw the item.
There was evidence that, when police and ambulance officers arrived at the scene, the accused expressed concern that the deceased should be attended to and not him, as he was not complaining of any pain or injury to himself. Those in attendance noted that the accused had a bloodied face, a cut on the back of his head and blood on his hands.
The deceased was found sitting in the driver’s seat. He may have been breathing – he may have expirated some blood initially – but, if he was still alive, he died at the scene shortly afterwards. He had sustained numerous injuries to his head, neck, face and body. There was a good deal of blood on his face and at various points inside the driver’s area of the car and on the outside of the car on the driver’s side.
The pathologist Dr Parsons gave evidence that the cause of death was blunt force trauma to the head, neck and chest. She identified the relevant injuries to the head (which included the face), neck and chest as being caused by at least seven possible blows – two across the top of the head; one across the nose; one on the eyebrow; one on the chin; one across the neck; and one running from the chest up to the neck. Dr Parsons did not isolate any one of those injuries as the cause of death. Rather, she put them all in combination as causing death. (See T 844 & 860-861.) She said that each of those areas of injury could have been caused by use of the wheel brace. Any of those blows could have been caused inside or outside the car. There was a broken tenth rib on the right flank towards the back, which was not associated with any injury to the skin. That injury could not be caused while seated in the car or if seated when turned to the right, because that area of the body would be protected by the back of the seat and the car door jamb. (T 852.) The jury asked a question whether the deceased would have been able to move (i.e. walk, stand from a seated position or sit from a standing position) given the extent of the injuries. The answer was yes. He could have remained conscious and alive for some minutes after receiving the last of the blows. Mr Georgiou asked whether, if after suffering the injury to the neck (causing a separation of the larynx and the trachea) some metres away from the car, he would have been capable walking back to the car, reaching for something in the car, flailing his right arm about, turning fully into the car, closing the door, putting the car into drive and putting his foot on the accelerator. The answer was yes to each of those actions. (T 852-855.)
The deceased was found to have 0.4 mg/L of methamphetamine in his blood. There was evidence from the toxicologist Dr Gerostamoulas that the level found suggested repeated use of the drug. He also gave evidence about the effects of methamphetamine on users, including delusional, aggressive and violent behaviour. There was other evidence, from those that knew him, that the deceased had been behaving in an unusually stressed and erratic fashion in the period leading up to this incident. As indicated above, the Crown conceded that the deceased’s beliefs about his girlfriend being held against her will, and the accused’s involvement in the same, were simply wrong.
The accused was arrested and interviewed three times over the next several hours – first by local police, then by Homicide Squad police and then in a re-enactment with the Homicide Squad. He answered all questions, some through a Mandarin interpreter, and some in English, and in the re-enactment pointed out where the various events occurred. He was released without charge.
In short, the accused’s version was essentially this. He said that the deceased, whom he had seen before at the brothel, came into the brothel, swore, punched him in the face, stole the telephones and left. The accused, who was bleeding from the nose and dizzy, went outside to recover the telephones. The deceased was nearing his car, which still may have been running. The accused yelled out to him to return the telephones. The deceased bent down and retrieved something from the door of his car which turned out to be the wheel brace. Near the corner of Clarke and York Streets, the deceased came at the accused and struck at him with the wheel brace a few times, which he tried to fend off. It happened quickly. They struggled over the wheel brace, which the accused wrested from the deceased, and then the accused struck the deceased at least once (perhaps twice) to the head/chest/face region. The deceased then went back to his car. The accused followed him and yelled out again to return the phones. As the deceased was getting into the car, he went to take something from the driver’s side foot well. The accused then struck the deceased several times with the wheel brace. The car moved off. The accused hit the car several times and yelled at the deceased to stop. The car stopped. The deceased was “shaking”. The accused said he asked Mr Wang to call the police before he ran out of the brothel and that he asked Ms Gao to call the police when he saw her outside. (See, e.g., Exhibit 17, ROI # 1, Q 31-110; see also Exhibit 18, ROI # 2; and Exhibit 19, Re-enactment.)
At the instance of police, the accused was examined by Dr So. He found the accused to have a laceration to the back of his head, a collection of fluid below the skin above his right ear, a bruise on the right eye and eyelid, tenderness on the bony region around the eye socket (photographs showed the accused had a blackened and swollen eye), a tender right index finger, a small open wound on that finger, a small wound on the left index finger and a bruise on the left forearm. The doctor agreed that the bruising to the left forearm resulted from blunt force trauma from an object and may be caused when the arm was raised to protect the face or body from an assault, i.e. a defensive injury. The doctor said that the laceration to the back of the head resulted from blunt force trauma inflicted by a blow to the head or forceful contact with an object such as the wheel brace.
Maxwell Jones gave evidence concerning DNA. Testing could not exclude the accused’s and the deceased’s DNA on both ends of the wheel brace. The accused could not be excluded as contributing to DNA found on the driver’s side door handle.
There is evidence from Mr Poon that, the day after the incident, the accused paid him $20,000 to pass on to the deceased’s family. The Crown case is that this is effectively “hush money”. I have ruled that this evidence may be relied on as evidence of incriminating conduct. The circumstances in which the money was paid to Mr Poon are disputed by the accused. In essence, it is suggested that the money was extorted from the accused by persons who knew the deceased. In cross-examination, Mr Poon conceded he told police that he told the deceased’s father that friends of the deceased “made [the accused] pay money”. In re-examination, he said that no one demanded money from the accused. (T 765-785.)
The Crown’s principal case
In short, the Crown’s principal case is that the accused struck the deceased several times at the car door, including the seven times associated with the seven separate areas of blunt trauma identified by the pathologist; that those seven blows are in combination the acts causing death; that they were performed consciously, voluntarily and deliberately, and accompanied by an intention to kill or cause really serious injury; and that they were committed without any belief in the need for self-defence. The Crown say that the accused’s version of events in his records of interview should be rejected, including his account of the deceased coming at him with the wheel brace away from the car (near the corner), hitting him, the accused disarming the deceased and then the accused hitting the deceased with the wheel brace.
The Crown also disputes the accused’s account that the deceased reached for a weapon when he was at the car door the second time, but there is no evidence to contradict this and, as indicated above, the police found an imitation pistol in the foot well. Nor is there any evidence to contradict the accused’s version that the wheel brace was produced by the deceased.
Alternative Crown cases
As I understand it, despite arguing that the accused’s version of events in the interview should be rejected, the Crown wish to argue that, if the jury accepts (or cannot reject) that version of events, the accused would still be guilty of murder (or, for that matter, an alternative offence of defensive homicide or manslaughter). That, of course, will be a matter for the jury, and the Crown will be able to argue that case.
However, another alternative case the Crown wishes to run is that, contrary to the prosecution thesis and instead reliant on the accused’s version, a conviction for murder (or an alternative offence) is open even if the jury cannot exclude self-defence or lack of murderous intention at the point the accused struck the deceased after he has come at him with the wheel brace and disarmed him (i.e. away from the car, near the corner), because the Crown would then rely on what occurs at the car door subsequently, even though acceptance of the accused’s version means that at
least one (and perhaps two) of the seven blows that in combination caused death occurred, on this hypothesis, in self-defence and/or without murderous intent.
The issue
In my view, to leave the latter alternative to the jury would be contrary to the basic principle that the actus reus and the mens rea of an offence (and the absence of any defence, such as self-defence) must coincide (see, for example, Meyers v The Queen (1997) 147 ALR 440 at 442 and the cases there cited). Given that, on this hypothesis, at least one (and perhaps two) of the seven blows that in combination caused death was (or were) committed without murderous intent and/or in self-defence, the accused must be acquitted, because it cannot be said that the acts which, in combination, caused death were all committed with the necessary mens rea and without lawful justification or excuse. Thus, on this case, there would be only partial – rather than complete – contemporaneity between murderous intent and absence of self-defence and the acts which in combination caused death.
The proposition may be tested in this way. If the accused had struck five or six blows immediately after being struck by the deceased with a wheel brace away from the car and then he struck one or two more back at the car door, but the pathologist’s evidence as to the seven blows in combination being the cause of death were the same, it could not sensibly be said that, if self-defence applied to the first set of five or six blows but not to the second set of one or two, the accused must still be convicted. The reason for that conclusion is that the required intention and absence of self-defence have not coincided with all of the acts relied upon as the acts causing death.
When the evidence isolates one act (or a number of acts occurring relatively closely in time and in effectively the same circumstances) as the act (or the acts in combination) causing death, the issue does not arise. In many murder trials, there is no such issue. But when, as here, the evidence is such that two or more acts are relied on as the acts which in combination caused death but at least one (and perhaps two) of those acts may have occurred in circumstances that differ from the circumstances of the other acts with respect to the applicability of a defence or defences, the issue arises.
In this regard, I referred the parties to the decision of the Court of Criminal Appeal in R v Hughes (unreported, Court of Criminal Appeal, Crockett, McGarvie and Beach JJ, 20 March 1990). The case highlights the importance of identifying the act or acts causing death and the need to ensure that defences are left even if those defences apply only to one of the acts that in combination caused death. In Hughes, the deceased sustained two gunshot wounds from a gun fired by Mr Hughes. On the evidence, the defences of accident, self-defence and provocation applied to the first gunshot. The defences of accident and provocation applied to the second shot, but self-defence could not apply (because the deceased could be no threat to the accused at that particular time, as he lay there prostrate and injured). The defence case was that the first gunshot killed the deceased. The Crown case was that the second shot killed the deceased. Each party called an expert on the issue. A third possibility was that the jury could not say which of the two gunshots caused death. Towards the end of their judgment, after pointing out that three defences (including self-defence) applied if the first shot killed the deceased and only two (and not self-defence) applied if the second shot killed him, Crockett, McGarvie and Beach JJ said this (at pp 13-14):
Finally, the jury should have been directed that if it could not be satisfied which shot caused the death of the deceased but was satisfied that one or other or both the shots did, it could convict of murder only if in respect of each of the shots, it found for the prosecution on each of the issues raised in respect of that shot. In that situation, it could return a verdict of guilty of murder only if it was satisfied that both shots were deliberately fired with the intent necessary for murder and neither was fired accidentally; and that neither shot was fired in self-defence nor at a time when the applicant was acting under provocation. (My emphasis.)
Thus, on the hypothesis that both shots or acts (in combination) caused death, self-defence had to be excluded even though it could not have applied to the second shot. Put another way, on the hypothesis that both shots caused death, Mr Hughes had to be acquitted if self-defence could not be excluded at the time of the first shot, even though self-defence could not apply to the second shot.
The present case is no different. If the jury accepts (or cannot reject) the accused’s account, at least one (or perhaps two) of the seven acts or blows relied on as causing death was (or were) committed in circumstances different from – and might be considered to be materially different from – the other five or six. Since, together, those seven acts make up the acts causing death, there is no basis for failing to apply the reasoning in Hughes to the present case. Thus, if the jury accepts (or cannot reject) the accused’s account and they accept that that account amounts to self-defence (or a lack of murderous intent) at the point immediately after the deceased attacked him with the wheel brace (away from the car, near the corner), then the accused must be acquitted even if they reject self-defence (or lack of murderous intent) for the acts occurring at the car door.
The refusal to certify
In refusing to certify, I had regard to the terms of s 295(3)(b) and (c) of the CP Act. Ms Williams conceded that those two paragraphs operate conjunctively. Section 295(3)(a) was irrelevant as this was not a question of admissibility of evidence.
As to s 295(3)(b), the judge must certify that “the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal”. I accept that the issue is of importance in the sense that, if I am wrong in my reasoning, I would in effect be leaving the accused a possible basis for acquittal that is not open and, on that limited basis, the Crown may be deprived of a conviction.
However, even if I am wrong, and therefore a possible basis for acquittal was to be wrongly left to the jury, I do not think, in the particular circumstances of this case, that the matter is of sufficient importance to justify the matter being determined on an interlocutory appeal. There are several reasons.
First, the principal Crown case is that the accused’s version in his records of interview should be rejected. Contrary the accused’s version, the Crown say that all blows were struck at the door of the car. My proposed directions do not in any way undermine that case.
Secondly, the only way in which the impugned proposed direction potentially could have any beneficial effect for the accused – and therefore potentially any detrimental effect on the Crown case – is if the jury accepts (or cannot reject) the accused’s version. However, if the jury do accept (or fail to reject) the accused’s version, it is likely to destroy the Crown case anyway. Whilst it is possible that a jury that accepted (or failed to reject) the accused’s version could conclude that self-defence applied when the blow (or blows) was (or were) delivered immediately after being attacked by the deceased with a wheel brace but reject self-defence when the several blows were delivered when the deceased was in the car and the accused thought he was reaching for something else in the foot well (where the imitation pistol turned out to be) with which to assault him, as a trial judge who has seen and heard all of the evidence in this trial, I regard that as rather unlikely. Put another way, if the jury believes (or does not reject) the accused’s version, it would be surprising to me that the same jury would convict him of murder even without the impugned direction.
Thus, when regard is had to the disruption that would be caused to this trial (a loss of at least three days in a case that has already lost three days because of a sick juror), which is now at the point where all the evidence is in and the jury are waiting patiently to hear final addresses and a charge, and balancing that against the rather high likelihood that my direction, even if wrong, would not necessarily disadvantage the Crown, I did not consider that the matter was of sufficient importance to justify its being determined on an interlocutory appeal.
As to s 295(3)(c)(i), it seemed to me initially that, given the pathologist’s evidence was spelt out in her report and that the Crown were always on notice that the accused’s account was as it is in the records of interview – this, of course, is all material that is in the depositions and was led in the Crown case – and given that counsel are assumed to know the law, the issue was reasonably able to be identified before trial. Ms Williams’ response to that was that the issue could not be identified if my view of the law is wrong. That is probably right, although the basic principle surely must be well known. In any event, I did not rely on that limb.
As to s 295(3)(c)(ii), the same argument and counter argument apply. I do not believe that I can say that the Crown was not at fault in failing to identify the issue, but that is because I think I am right about the relevant law. Ms Williams says I am wrong. If she is right, then she could not have been at fault. Thus, again, I did not rely on this limb.
However, as I indicated above, Ms Williams conceded that s 295(3)(b) and (c) of the CP Act operate conjunctively. Thus, my conclusion on s 295(3)(b) means that I was bound to refuse the application to certify.
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APPENDIX 2
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0029
| THE QUEEN | |
| v | |
| DE JUN ZHENG | Accused |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 16-18 October 2013 | |
DATE OF RULINGS: | 17 & 18 October 2013 | |
CASE MAY BE CITED AS: | R v Zheng (Ruling Nos 4 & 6) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 561 | |
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CRIMINAL LAW – Ruling No 4: Application to discharge jury – Juror asked tipstaff, “Is there a way we, as jurors, can find out the sentence after the trial is over?” – Alleged pre-judgment or bias in juror – Alleged infection of others on jury – Application refused; Ruling No 6: Application for certification for leave to commence an interlocutory appeal – Criminal Procedure Act2009 (Vic), s 295 – Certification granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams SC | Office of Public Prosecutions |
| For the Accused | Mr G Georgiou SC | Turnbull Lawyers |
HIS HONOUR:
Introduction
It is now the morning of Friday 18 October 2013. What follows are some very brief reasons for my decision yesterday, Thursday 17 October, to refuse an application to discharge the jury without verdict. When I made the decision, I advised the parties I would provide written reasons at a later date. Since then, an interlocutory appeal (or a review of my refusal to certify an interlocutory appeal) concerning proposed directions to the jury in this matter has been listed for hearing before the Court of Appeal at 2:15 pm today. Further, early this morning, an application was made to me by both the Crown and the defence to certify an interlocutory appeal against my decision to refuse to discharge the jury. I granted certification and gave ex tempore reasons for that decision. (I have copied a revised transcript of those ex tempore reasons at the end of this ruling.) I advised the parties that I would provide brief written reasons for my decision to refuse to discharge the jury in order to assist them and the Court of Appeal hearing the matter this afternoon. Accordingly, the reasons are much briefer – and no doubt much less helpful to those concerned – than I would have preferred.
Background
On Monday 30 September 2013, a jury of twelve persons was empanelled to hear the trial of De Jun Zheng on a charge of murder. It is alleged that, on 12 February 2009, Mr Zheng murdered Abraham Marco Papo in South Melbourne. Mr Zheng pleaded not guilty.
The Crown case closed on Tuesday 15 October 2013.
During legal discussions on Wednesday 16 October, my tipstaff advised me that a juror asked him, “Is there any way we, as jurors, can find out the sentence after the trial is over?” My tipstaff responded, “Well, I will have to speak to the judge about that.” The question was asked away from other jurors in the jury room when the jury were being told to go and have a break. My tipstaff advised that, in his view, the juror was really trying to say something like, “In the event that there is a sentence, would I be able to find out after trial.” He also advised that it was only the one juror who asked this question and that the juror was away from the others when he asked the question.
I advised the parties of the foregoing. I expressed the opinion that I would not regard the remark as disclosing pre-judgment on the part of the juror but that I could understand how it might trouble others if construed in a particular way. Ms Williams SC, who appears for the Crown, made a submission consistent with my view of the matter. Mr Georgiou SC, who appears for the accused, took a different position. It troubled him greatly. I referred the parties to the decision of the High Court in Webb & Hay v The Queen (1994) 181 CLR 41. (T 1017-1018.)
Application on behalf of accused to discharge jury
After lunch on the Wednesday, Mr Georgiou made an application to discharge the jury without verdict.
In what follows, because of the pressure of time, I shall set out only some – but not all – of the arguments of the parties. They can be found in the transcript (see, e.g., at T 1023-1047, 1055-1081 & 1126-1127).
Mr Georgiou submitted inter alia that the words uttered by the juror disclosed that the juror had pre-judged the matter and had formed a concluded view that the accused was guilty of murder. This, he said, must be so when I had earlier instructed the jury to keep an open mind until the conclusion of the case and in circumstances where I had told the jury at the outset that four possible verdicts or outcomes were open – guilty of murder, manslaughter, or defensive homicide or not guilty of anything – and where I had directed only on the elements of murder in preliminary directions. He submitted, in the alternative, that it must at least indicate pre-judgment as to the possibility of an outright acquittal.
He submitted that the use of the plural “we, the jurors” also indicated that there was also a danger that the jury shared the juror’s view. He pointed out that the juror had not been separated from the other jurors after the remark. That has remained so.
Mr Georgiou objected to the possible course of bringing the juror in and making inquiries of him. He also objected to raising it with the jury as a group without identifying the juror.
Mr Georgiou referred to the judgments of the High Court in Webb & Hay v The Queen (1994) 181 CLR 41. Whilst there was a division in the Court as to whether the trial judge had erred in failing to discharge the jury in circumstances where a juror had asked a person at the court to deliver flowers to the deceased’s mother, the Court essentially agreed on the test to be applied in determining whether an irregular incident involving a juror warrants the discharge of the juror or, in some cases, the jury. That test is whether the incident is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially.
Initially, Ms Williams opposed the application. She submitted that the question was open to different interpretations. She submitted that it would not be appropriate to raise the matter before the whole jury but that it would be appropriate to bring the individual juror in and make inquiries of him.
The Crown (belatedly) joins in the application
The next morning (i.e. on Thursday 17 October), Ms Williams advised that she now supported the application to discharge the jury. She said that, on reflection, she was wrong to have opposed it earlier. She had spoken to colleagues about the matter, who had an instinctive reaction to the effect that discharge would be appropriate; and she was now concerned that, were there to be a conviction, the matter might be overturned on appeal on this point. In effect, she adopted Mr Georgiou’s submission from the previous day. Ms Williams added that, because an interlocutory appeal would be pursued by the Crown against my proposed directions, and that that appeal would be pursued whether or not I certified (which I was still considering that morning) and that such an appeal would not get on until Friday at best, the likelihood was that at least three days would be lost (i.e. the Wednesday that had already been lost plus the Thursday and Friday of this week as well), which would mean the jury would have had a relatively large break in a relatively short trial. To be added to this was the fact three days had been lost in the previous week because of the illness of a juror who ultimately was discharged.
Refusal to discharge the jury
Having considered the parties’ submissions on the Wednesday, having considered the matter overnight and then having heard Ms Williams’s change of heart and further submissions from her and Mr Georgiou on the Thursday morning, for reasons that follow, I concluded that the jury should not be discharged.
I confess that my initial reaction was that, taken purely literally, the question might be thought to disclose pre-judgment and that it could give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror would not discharge his task impartially. However, upon closer analysis of the circumstances and the law, when regard is had to my findings as to what the juror meant, the stage of the trial we have reached and my proposed directions to the jury, I did not think that the question gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror – or for that matter, all other members of the jury – will not discharge his or their task impartially. Nor do I consider that there is a high degree of need to discharge this jury.
First, I am not satisfied that the juror’s question indicates pre-judgment. Rather, I take the question as meaning no more than that, were there to be a sentence in this case, would the juror be able to find out about it. I would take that view of the remark without my tipstaff’s opinion about the juror’s intentions, but I am fortified in my conclusion given that my tipstaff has that opinion.
Secondly, I considered having the juror in to ask him questions, but decided against that course. There are three reasons. First, I was satisfied on the material before me that there was no pre-judgment of the matter. Secondly, it is a rather exceptional course to question a juror; and I was fearful that it may only embarrass the juror for no good reason in the end. Thirdly, Mr Georgiou was against that course.
Thirdly, I consider that the juror’s question was a reasonable question to ask. The jury were told they were not to research anything connected with this case. This juror was simply being true to that instruction by inquiring what might be his position after the trial. It is understandable that a juror would wish to know what might happen when he has had a part in whatever the decision turns out to be.
Fourthly, we are at a stage in the trial where the evidence is concluded. The jury has not yet heard counsel’s final addresses or my charge. On the one hand, if the question is to be taken as disclosing a view that a sentence will follow, which in turn is to be taken as meaning that a guilty verdict has to occur first, that is neither surprising nor of concern. Having heard the prosecution opening and the defence response, and all the evidence, and given that the accused does not dispute that his actions caused the death of the deceased, a juror may well think that some sort of verdict of guilty and a sentence would follow. It is also natural to form views about evidence as it is given, despite being told to form no conclusive views about the case until all of the evidence has been heard, counsel have delivered their final addresses and I have delivered my instructions, and to keep an open mind. To have formed some view along the lines that a sentence might follow is not to have ignored my instructions.
Fifthly, if I am wrong about that, I am confident that firm directions will ensure that all jurors understand that they are not to form any concluded view about the matter until they have heard not just the evidence but also counsel’s addresses and my charge. The test in Webb & Hay is not simply whether some incident is such that it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror (or jury) has not or will not discharge his (or their) task impartially. Rather, the test is whether the incident is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially. I propose to direct the jury that, while they have heard the evidence, they have not yet heard counsel’s final addresses or my charge and to reiterate to them the importance of deferring any conclusions about the case until those further steps in the process have occurred and they are deliberating.
Sixthly, whilst the Crown case closed on Tuesday afternoon and whilst the intervention of the Crown’s interlocutory appeal on another matter means that this jury will not be hearing addresses until at least Monday next, I do not consider that having to wait until then is such a long wait as to fragment this trial to the point that there is a high degree of need to discharge this jury, even allowing for the fact that they had three days off last week because of a juror’s illness. The same is true of the fact that jurors were told that this was a trial of two to three weeks’ duration. Next week will be the fourth week. But all of these jurors came from a pool that was prepared to sit on a five-week case. In any event, delays happen.
Seventhly, Ms Williams advised that, in so far as I may be concerned about the stress on the deceased’s family in discharging this jury and starting again, I should not be concerned because she conveyed that the family are happy with whatever course the Crown may choose to take. Mr Georgiou made a similar remark about the accused. The system concerns not only the family of the deceased and the accused. There are jurors who have invested their time; the State and therefore the community invests judicial and Court resources in the process; witnesses do the same; and so on.
Eighthly, whilst it may be a brave – some would say unwise – judge who declines to discharge a jury when both parties, represented by Senior Counsel of long experience in criminal law, are urging that course, the fact of the matter is, as much as I have been assisted by counsel and have had regard to all of their submissions on the matter, I disagree with them. My function is to make decisions without fear or favour in accordance with what I believe to be the law and the evidence and any other relevant consideration. In my view, this jury should not be discharged.
The decision to certify
As indicated above, this morning I granted certification under s 295 of the Criminal Procedure Act2009 (Vic). For the convenience of the parties and the Court of Appeal, I shall set out my revised ex tempore reasons for taking that course:
This is an application by both parties for certification for leave to appeal an interlocutory decision, namely my refusal to discharge the jury, the application for which was originally made by Mr Georgiou and opposed by Ms Williams, but which yesterday, Thursday, Ms Williams ultimately joined in.
The application to discharge the jury was based on the fact that my tipstaff disclosed to me, which I then disclosed to the parties about midway through Wednesday, that a juror asked my tipstaff, “Is there a way we as jurors can find out the sentence after the trial is over?”
After hearing argument from both parties and thinking about it overnight between Wednesday and Thursday, and hearing further submissions on Thursday, at which time, as I say, Ms Williams changed course and supported the application, I refused the application.
Now both parties, on Friday morning, make application for certification under s 295(3) for leave to appeal against that interlocutory decision.
As discussion has revealed, s 295(3)(c) notionally would be applicable, but simply cannot apply in the circumstances of this case.
The question of certification is determined by paragraph (b), which when read with the preamble to sub‑s.(3), reads this way:
A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies:
…
(b) if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal.
Mr Georgiou, who commenced submissions this morning, rightly pointed out that ordinarily, usually, commonly, there will not be an interlocutory appeal against a discretionary decision which, of course, the application to discharge a jury on the sorts of bases concerned in this case is. In that regard he referred to a document headed “Jurisprudence On Interlocutory Appeals” generated by the Court of Appeal Registry dated December 2012 in which reference is made to Dertilis v The Queen [2010] VSCA 360 at [17] and SD v The Queen [2011] VSCA 76 at [12], cases which are said to stand for the proposition that it would only be in rare circumstances that an interlocutory appeal would be entertained against a discretionary decision.
However, there are some unusual features in play here. First, there is already an application to review my decision to certify for an interlocutory appeal on foot at the instance of the Director concerning proposed directions in this trial. That application for review, or whatever the proper description of that process is, is scheduled for hearing today at 2.15 pm. It is now five past ten in the morning.
Secondly, this is an application made jointly by the Crown and defence in circumstances where the application to discharge the jury by Mr Georgiou was supported by Ms Williams ultimately (after initially opposing). Both practitioners are Senior Counsel of extensive experience in criminal matters.
Thirdly, Mr Georgiou has indicated, and there was no demur from Ms Williams, so I assume she takes the same view, that, even if certification were refused, there would still be agitation of this point on a review this afternoon before the Court of Appeal.
That, of course, ordinarily should not influence my decision, and perhaps it should not in this case either, but it just seems to me this is an unusual, perhaps exceptional, combination of circumstances. All of this means that, in the end, it is appropriate to certify.
Of course, Mr Georgiou adds to that, that if it turns out that I was wrong to refuse to discharge the jury or that in some way my discretion miscarried and the decision is set aside, then that is a very important thing, because it means that this trial should stop and there should be a new jury struck upon a re‑trial. That is true. Although I am not sure that adds anything to the usual jurisprudence about whether or not certification should occur, of course it is a matter of importance if I am wrong; but, on the other hand, the jurisprudence seems to indicate it would be in rare cases only that a review of a discretionary decision would be entertained on an interlocutory appeal. In the event, I do not need to resolve that difficulty, if there be any such difficulty.
The fact of the matter is that, on balance, having regard factors to which I have referred, the unusual confluence of circumstances in this case, it is appropriate to certify under s 295 in this particular case, and if it needs to be said, because of that combination of circumstances I do consider that s 295(3)(b) is made out, and more particularly, that in the unusual circumstances of this case the interlocutory decision is otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal.
As I say, it seems that I may be applying a test that is somewhat broader than those strict words in s 295(3)(b) but I am dealing with what has turned out to be an exceptional turn of events. If both parties want the point determined, it seems to me that, unless the Court of Appeal thinks otherwise, since the other point is going to be dealt with this afternoon before that court, they should both be dealt with this afternoon.
In the event I so rule.
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