Kawana v The King - [2024] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0147

MICHAEL KAWANA	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL, WALKER and MACAULAY JJA
WHERE HELD:	Geelong
DATE OF HEARING:	29 August 2024
DATE OF JUDGMENT:	26 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 219
JUDGMENT APPEALED FROM:	[2023] VCC 1085 (Judge Hogan)

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CRIMINAL LAW – Appeal – Conviction – Sexual offending against former intimate partner – Trial by jury – Judge discharged two jurors and continued trial with jury of 10 – Judge considered whether high degree of need to discharge whole jury but not whether positive or good reason existed to continue trial with only 10 jurors – Judge erred in failing to consider if positive or good reason to continue trial with reduced jury – Substantial miscarriage of justice – Application for leave to appeal granted – Appeal allowed – Convictions set aside and new trial ordered.

Juries Act 2000, ss 43, 44; Criminal Procedure Act 2009, s 276.

Wu v The Queen (1999) 199 CLR 99; Baini v The Queen (2012) 246 CLR 469; Kennedy v The King [2023] VSCA 86 applied.

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Counsel
Applicant:		Mr PJ Smallwood with Mr JD Cleveland
Respondent:		Mr RL Gibson KC
Solicitors
Applicant:	Adrian Paull Criminal Lawyers Pty Ltd
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction and summary

Background

The offending

Trial process

Relevant legal principles

Ground 1

Submissions

Did the judge fail to apply the correct test?

Was there a substantial miscarriage of justice?

Conclusion

NIALL JA
WALKER JA
MACAULAY JA:

Introduction and summary

On 5 April 2023, the applicant was convicted by a jury of seven indictable offences. He had also pleaded guilty to three related summary offences. On 28 June 2023, he was sentenced to a total effective sentence of 7 years and 7 months’ imprisonment, not to be eligible for parole for 5 years. He now seeks leave to appeal his convictions,[1] alleging deficiencies in the trial judge’s decision to discharge two jurors and continue his trial with 10 jurors.
[1]The submissions on the application for leave to appeal did not distinguish between the convictions that resulted from the jury’s verdict (on the indictable offences), and those that resulted from the applicant’s guilty plea (the summary offences). As stated below, we will not grant leave to appeal against convictions resulting from a plea of guilty, hence these reasons focus on the convictions for the indictable offences.
More particularly, the applicant proposes two grounds of appeal, namely that:
(a)a substantial miscarriage of justice occurred as a result of the learned trial judge’s failure to consider whether there was a ‘positive’ or ‘good’ reason to continue with 10 jurors (proposed ground 1); and
(b)further, and in the alternative, a substantial miscarriage of justice occurred as a result of the learned trial judge’s failure to discharge the jury in circumstances where a juror had engaged in bullying and otherwise acting inconsistent with their oath (proposed ground 2).
For…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kawana v The King

Details

AGLC: Kawana v The King [2024] VSCA 219
Case: [2024] VSCA 219
Decision Date: 26 September 2024

CaseChat Overview and Summary

In the case of Kawana v The King, the appellant, Kawana, was convicted of various sexual offences against a former intimate partner. The appeal was heard by the Court of Appeal, which granted leave to appeal and ultimately allowed the appeal, setting aside the convictions and ordering a new trial. The central issue in this case was whether the trial judge's decision to discharge two jurors and proceed with a jury of ten rather than a full twelve constituted a significant error in the trial process. The appellant argued that this decision breached the statutory requirements set out in the Juries Act 2000, leading to a substantial miscarriage of justice.

The court was required to determine whether the trial judge's decision to continue with a reduced jury complied with the legal standards set out in the Juries Act 2000. Specifically, the court had to examine whether the judge had considered if there was a positive or good reason to proceed with only ten jurors, as required by section 44 of the Juries Act. The court found that the judge had failed to make this determination, instead only considering whether there was a high degree of need to discharge the entire jury. This omission was deemed a significant error, as it did not align with the statutory requirements designed to ensure a fair trial. The court found that this procedural misstep led to a substantial miscarriage of justice, warranting the setting aside of the convictions and the ordering of a new trial.

The reasoning of the Court of Appeal was grounded in the principles of fairness and procedural correctness in criminal trials. The court emphasised the importance of strictly adhering to statutory provisions regarding jury composition, particularly when discharging jurors mid-trial. It was determined that the trial judge's failure to consider if there was a positive or good reason to continue with a reduced jury was a fundamental procedural error. This error not only contravened the statutory framework but also compromised the integrity of the trial process. Consequently, the court concluded that the error was substantial enough to result in a miscarriage of justice, leading to the allowance of the appeal and the ordering of a new trial for the appellant.

Orders