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Kennedy v The King

Kennedy v The King

Case [2023] VSCA 86 19 April 2023

Appeal

Breach of Contract

Recklessly causing serious injury

Jury

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0032

TOBY KENNEDY	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2023
DATE OF JUDGMENT:	19 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 86
JUDGMENT APPEALED FROM:	DPP v Kennedy (Unreported, County Court of Victoria, Judge Murphy, 16 December 2021)

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CRIMINAL LAW – Conviction – Appeal – Two jurors discharged – Whether trial judge’s decision to proceed with 10-person jury in error – Whether direction under s 44 requires application of ‘high degree of need’ test – Leave to appeal refused.

CRIMINAL LAW – Conviction – Appeal – Recklessly causing serious injury – Victim punched to head and fell on pavement – Whether judge erred in directing jury that punch and fall were single act – Whether direction enlarged prosecution case – Leave to appeal refused.

Juries Act 2000 ss 43, 44.

Wu v The Queen (1999) 199 CLR 99 applied; Boland v The Queen [1974] VR 849, Najibi v The Queen [2016] VSCA 177, Sharp v The Queen [2005] VSCA 44 considered.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Ms RL Harper
Solicitors
Applicant:	Garde Wilson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I have had the considerable advantage of reading in draft the joint reasons for judgment of McLeish and Kennedy JJA. Substantially for the reasons they give, I agree that neither ground of appeal can succeed. I wish, however, to offer some brief observations of my own. Having had the benefit of the analysis in the joint reasons, I am able to set out my observations with relative economy.
Any analysis of the first ground must commence with a consideration of s 43 of the Juries Act 2000 (‘the Act’),[1] which permits a judge during a criminal trial to discharge a juror — without discharging the whole jury — if (a) it appears to the judge that the juror is not impartial; (b) the juror becomes incapable of continuing to act as a juror; or (c) the juror becomes ill. Apart from those three distinct criteria, s 43(d) of the Act contains what has been described as a ‘residual and imprecise’ criterion,[2] which provides that, during a trial, a judge ‘may … discharge a juror without discharging the whole jury if … it appears to the judge that, for any other reason, the juror should not continue to act as a juror’.
[1]The full text of s 43 is set out in the joint reasons at [30] below.
[2]Najibi v The Queen (2016) 260 A Crim R 491, 529 [239] (Ashley, Weinberg and McLeish JJA) (‘Najibi’).
In the present case, the judge discharged two jurors. He discharged the first juror because that juror had elective surgery imminent; and he discharged the second juror, a psychologist, because she was unable to focus on the trial due to concern for her patients. It was not contested at trial,…

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 Kennedy v The King

Details

AGLC: Kennedy v The King [2023] VSCA 86
Case: [2023] VSCA 86
Decision Date: 19 April 2023

CaseChat Overview and Summary

The appellant, Kennedy, sought to appeal his conviction for recklessly causing serious injury. The conviction arose after he punched the victim, causing her to fall and suffer injuries. The Crown Court had discharged two jurors, leaving the jury with ten members. Kennedy argued that the trial judge erred in deciding to proceed with a ten-person jury, and that the judge misdirected the jury regarding the sequence of events that constituted the offence. The appeal was heard by the Court of Appeal, which subsequently refused leave to appeal.

The primary legal issues before the court were whether the trial judge erred in deciding to proceed with a ten-person jury after two jurors were discharged, and whether the judge misdirected the jury regarding the events that constituted the offence. The appellant argued that the trial judge should have applied a 'high degree of need' test before proceeding with a ten-person jury, and that the judge incorrectly directed the jury that the punch and the fall were a single act, thereby enlarging the prosecution case.

The court considered the relevant statutory provisions and previous cases, including Wu v The Queen, Boland v The Queen, Najibi v The Queen, and Sharp v The Queen. The court held that the trial judge did not err in deciding to proceed with a ten-person jury, as the statutory provisions did not require the application of a 'high degree of need' test. The court also found that the judge's direction to the jury was not erroneous, as it did not enlarge the prosecution case or misdirect the jury on the sequence of events that constituted the offence.

The court refused leave to appeal, upholding the conviction. The court held that the trial judge's decision to proceed with a ten-person jury was not in error, and that the judge's direction to the jury was correct and did not enlarge the prosecution case. The conviction for recklessly causing serious injury was therefore upheld.

Orders