Kennedy v The King

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, nor in this Court, that the two jurors’ discharge was permitted by s 43(d). What was — and remains — in issue is whether the judge should have discharged the whole jury after the second juror was discharged, rather than continue with the remaining 10 jurors. That issue focuses attention on s 44 of the Act.
So far as relevant, s 44(1) provides that if, during a trial, a juror is discharged (or dies), the judge ‘may direct that the trial shall continue with the remaining jurors’.[3] In the case of a criminal trial, s 44(3) provides that the trial cannot continue with fewer than 10 jurors.[4]
[3]The full text of s 43 is set out in the joint reasons at [30] below.
[4]By virtue of s 44(4), the verdict of the remaining jurors is a ‘sufficient verdict’.
Neither defence counsel nor prosecutor at trial took issue with the trial continuing with a jury of 11 after discharge of the first juror. After the second juror was discharged, however, the joint position of both was that the judge should not exercise his discretion to ‘direct that the trial shall continue with the remaining [10] jurors’.
Properly construed, s 43 is concerned solely with the discharge of a single juror, not the whole jury. Thus, it provides that a judge ‘may … discharge a juror without discharging the whole jury’ if any one of the four criteria provided for in the section are met. Unless one of the four criteria is established, there is no occasion to discharge a juror under s 43. A decision whether any of the circumstances in paragraphs (a) to (d) involves a value judgment attracting House[5] principles;[6] and the judge ‘should require considerable persuasion before concluding that any such circumstance is present’. Furthermore, paragraph (d) should be narrowly construed, and any circumstances said to fit within that paragraph ‘rigorously examined before a judge is satisfied that the circumstances relied upon do fall within the paragraph’.[7] But when a judge is considering the discharge of a juror, nothing in s 43 imports the common law ‘high degree of need’ test which is apposite to the discharge of the entire jury[8] (albeit it might be expected that in finding one or more of the criterion in paragraphs (a) to (d) to be present, the judge would likely consider that there was a high degree of need to discharge the juror).[9] As I have mentioned, however, neither party took issue with the trial judge’s decision to discharge either the first or the second juror.
[5]House v The King (1936) 55 CLR 499.
[6]Najibi, 529–30 [241].
[7]Ibid.
[8]See, e,g., R v Boland [1974] VR 849, 866; Crofts v The Queen (1996) 186 CLR 427, 432 (Dawson J) (‘Boland’).
[9]Ibid 530 [245]–[246].
Section 44(1) comes into play once a juror is discharged under s 43. Indeed, the decision to discharge a single juror must inevitably be followed by a decision under s 44(1).[10] Hence, once a juror is discharged under s 43, s 44(1) provides that the trial judge ‘may direct that the trial shall continue with the remaining jurors’. As the language of the subsection makes clear, the trial judge’s power to direct that the trial continue with the remaining jurors is one that ‘may be exercised, or not, at discretion’.[11] Presumably, however, if the trial judge does not exercise the discretion to direct that the jury continue with the remaining jurors, the only other available course is to discharge the entire jury.
[10]Najibi, 531 [250].
[11]See Interpretation of Legislation Act 1984, s 45(1).
It is conceivable that there will be circumstances in which the discharge of a juror under s 43 gives rise to a high degree of need to discharge the whole jury. But there is nothing in the language of s 44(1) which requires a trial judge to determine whether there is a high degree of need that the trial continue with fewer than (11 or) 12 jurors.[12] Indeed, in my opinion, the discretion reserved to a judge under s 44(1) is not so fettered.
[12]Najibi, 531 [250].
In Wu, McHugh J observed that once a juror is discharged under the NSW equivalent of s 43, it should not be thought that the trial should automatically continue with the remaining jurors. He said that conviction by a jury of less than twelve ‘is a denial of a long-standing right of those tried for serious crime under the common law system’. Some ‘positive reason, beyond the … discharge of a juror, must exist for the judge to make the order that the trial continue with less than twelve jurors’.[13]
[13]Wu v The Queen (1999) 199 CLR 99, 108 [28] (‘Wu’).
The nature and content of any positive reasons for giving a direction under s 44(1), that the trial continue with fewer than 12 jurors, is not spelled out in the Act. Unquestionably, however, any finding as to the existence or absence of positive reasons will be informed by the individual circumstances of the particular case. Without endeavouring to be categorical, relevant considerations might include: the nature and seriousness of the charge or charges; the time that the trial had proceeded prior to the juror’s discharge; the associated court time and resources wasted, public expense incurred and inconvenience caused, if the trial does not continue; the effect on court backlogs if the trial does not continue; the possible inconvenience to witnesses; and the stress and inconvenience caused to the accused and alleged victims by delay.
Although I was initially disposed to think that the judge had taken into account irrelevant considerations when giving the direction under s 44(1) that the trial continue after the discharge of the second juror — in particular, that the legislature had made temporary provision during the COVID-19 pandemic, and that there is ‘no magic’ in a 12 person jury — with the benefit of the analysis in the joint reasons I have reached a different view. Although the judge’s remarks contain more than one unfortunate comment, when his reasons are read in context it is clear that his exercise of discretion was not animated by irrelevant considerations. Thus, the judge did acknowledge that the usual expectation is that a jury in a criminal trial will consist of 12 jurors. He recognised, too, that the trial did not have to continue simply because it was legally possible for it to do so. Significantly, the judge also considered the importance and effects of delay on the accused, the complainant and the system of justice. Further, he properly took into account that the pandemic had caused a ‘backlog of trials’ and the community’s interest ‘in the loss of judge time, the loss of court time [and] the loss of jury time’.
In these circumstances, the first ground is not made out.
Turning to ground 2, on the evidence presented at trial, there were only three mechanisms by which Thomas McKee could have suffered the serious injury that he did: first, he suffered the serious injury when the applicant delivered the punch to his head; secondly, he suffered the serious injury at the point when his head hit the ground (his fall to the ground having been directly caused by the applicant’s punch); or, thirdly, he suffered the serious injury when he head-butted a brick wall.
Once, as they were entitled to, the jury excluded the supposed head-butt as the mechanism by which Mr McKee suffered serious injury, that left only two possible alternatives which were inextricably intertwined: either the serious injury was directly caused when the applicant’s punch connected with his head; or the serious injury was directly caused by the impact of Mr McKee’s head with the ground, that impact being the culmination of the fall that was directly caused by the applicant’s punch.
No matter which of the two possible mechanisms resulted in Mr McKee’s serious injury, on any proper analysis the applicant’s punch was the substantial and operative cause of the serious injury.[14] On any view, Mr McKee would not have fallen and hit his head but for the applicant’s punch. The judge therefore did not err in directing the jury that the punch and fall could be considered to be a single event.
[14]Royall v The Queen (1991) 172 CLR 378, 398 (Brennan J), 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 444 (McHugh J).
Ground 2 must fail.

MCLEISH JA
KENNEDY JA:

Introduction

On 16 December 2021, the applicant was found guilty by a jury in the County Court of one charge of recklessly causing serious injury (contrary to s 17 of the Crimes Act 1958). The applicant was acquitted of alternative charges of intentionally causing serious injury and causing injury.
The applicant seeks leave to appeal against his conviction on two grounds:
(a)first, that the trial judge’s approach in determining to proceed with a 10 person jury was a miscarriage of the power provided for by s 44 of the Juries Act 2000, resulting in a substantial miscarriage of justice; and
(b)secondly, that the trial judge’s redirection that the punch to the victim and his fall to the ground were a single event or offence, enlarged the prosecution case, which constituted a substantial miscarriage of justice.
For the reasons that follow, leave to appeal should be refused.

The case at trial

On 3 March 2018, just before midnight, the applicant and Thomas McKee, who were previously unknown to each other, had an altercation at Secret Garden Bar on the corner of Fitzroy Street and Canterbury Road in St Kilda. The security staff tried to calm the situation by separating the two.
Mr McKee was known to the security staff as a regular patron at the Secret Garden. As a result of him acting aggressively towards them following the altercation, the bar owner told Mr McKee to leave. Mr McKee swore at the owner and subsequently left the venue in the early hours of 4 March 2018 using an external stairway leading to a carpark off Canterbury Road. Mr McKee had consumed a considerable amount of alcohol.
One of the bar’s security guards, Fa’asavalalealofa Tagaloa, watched Mr McKee’s departure from the Secret Garden balcony, which looked out onto Canterbury Road. According to Mr Tagaloa’s evidence, a group of five people came towards Canterbury Road from Fitzroy Street. The applicant, who was wearing a white shirt, ran towards Mr McKee, closely followed by another male. Mr McKee was on his phone, looking in the other direction. The applicant came up behind Mr McKee and punched him once with ‘maximum force’, around the back to the right side of his head. Mr McKee fell to the ground. Mr Tagaloa said that Mr McKee ‘kissed the pavement’, and it ‘definitely could have been his head’ that first hit the ground. In cross-examination, Mr Tagaloa said Mr McKee was punched from behind, to the right side of his face, and fell face forward.
Mr McKee was then assisted by security from the Secret Garden and by other passers-by. He was ultimately transported by ambulance to the Alfred Hospital.
Mr McKee suffered a spinal injury involving incomplete quadriplegia, being a fracture of the C6/7 vertebrae. He also had scalp lacerations, a haematoma to the right occiput, swelling to his left cheek, and fracture patterns in the lower cervical vertebrae. Other fractures were observed consistent with a hyperflexion injury, entailing the excessive bending forward of the neck. He suffered from neurogenic shock.
The spinal injury required urgent and major surgery. Mr McKee underwent an anterior discectomy and fusion, involving replacing the damaged disc segment in his spine with an implant using bone from his hip. After undergoing surgery, Mr McKee was admitted to an intensive care unit and then transferred to a rehabilitation centre.
At the time of the injury, Mr McKee was told he would never be able to walk on his left leg again. However, following an extensive rehabilitation program with multiple allied health professionals, he was able to progress from being wheelchair-bound to standing and walking with a gait aid. As at the date of trial, Mr McKee was unable to walk long distances.
The defence case was that Mr McKee suffered the spinal injury as a result of head-butting a brick wall. CCTV footage showed him at least looking at and leaning towards a solid wall, before continuing with his phone call and crossing the road.
Medical evidence was adduced by the prosecution, as outlined further below. In particular, Christopher O’Donnell, a radiologist at the Victorian Institute of Forensic Medicine, expressed the opinion that the injury to Mr McKee’s spine was caused by hyperflexion of the neck, meaning that Mr McKee’s head was bent forward much more rapidly and forcefully than usual. In Dr O’Donnell’s view, substantial force had been applied to the top (or vertex) of Mr McKee’s head. This was consistent with swelling in the scalp which indicated an injury in that location. Dr O’Donnell did not consider that a punch to the face, or falling face first onto the pavement, would have caused the injury. Nor would impact to the back of the head have done so. He accepted in cross-examination that such an injury could be caused by a person ramming their own head into a wall.

Ground one — the direction to proceed with a 10-person jury

The first proposed ground of appeal is as follows:
The trial judge’s approach in determining to proceed with a 10-person jury represented a miscarriage of the power provided for by s 44 of the Juries Act 2000.
Particulars:
1.1: An irrelevant consideration was taken into account, being that judge-alone trials were available for a period of time during the pandemic which – according to the trial judge – indicated ‘… that there’s no magic in the sense of a 12 person jury …’.
1.2: Two relevant considerations were not taken into account, being:
1.2.1: The applicant’s right to the verdict of a jury of 12, a right which had already been impacted by the discharge of another juror; and
1.2.2: The amount of evidence heard before the second juror sought to be discharged was relatively confined and had been recorded.
Sections 43 and 44 of the Juries Act 2000 provide:
43 Judge may discharge juror
A judge may, during a trial, discharge a juror without discharging the whole jury if—
(a)it appears to the judge that the juror is not impartial; or
(b)the juror becomes incapable of continuing to act as a juror; or
(c)the juror becomes ill; or
(d)it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
44 Continuation of trial with reduced jury
(1)Subject to subsections (2) and (3), if a juror dies or is discharged during a trial, the judge may direct that the trial shall continue with the remaining jurors.
(2)A civil trial cannot continue with less than 5 jurors.
(3)A criminal trial cannot continue with less than 10 jurors.
(4)The verdict of the remaining jurors is a sufficient verdict.
The trial commenced on 8 December 2021.
On 13 December 2021, a juror indicated to the trial judge that planned elective surgery had been brought forward to 17 December 2021 and, if the case proceeded on that date, she would be unavailable.
Defence counsel suggested that the Court could simply not sit on 17 December 2021. The trial judge observed that there were practical obstacles to that proposal. He noted that while it is not an insignificant thing to reduce a jury from 12 to 11, the trial was operating in ‘exceptional times’, given COVID-19 and the resulting deferral of surgical procedures. The trial judge formed the view that, to avoid risking further delays, the juror should be discharged and the trial should continue with a jury of 11.
On 14 December 2021, a second juror requested to be discharged. The juror stated that she was unable to focus on the trial as she was concerned about her clients, including at-risk teenagers, whom she treated at a psychology clinic. She noted the need to make arrangements for her clients’ safety in the lead-up to the clinic’s closure over the Christmas period.
Defence counsel submitted that it was clear that the juror should be discharged. However, given this, the jury should also be discharged. Defence counsel submitted that there would have to be ‘dire circumstances’ to warrant proceeding with the statutory minimum number of jurors. To the contrary, replaying the evidence to a new jury would take less than two days.
The prosecutor agreed that the juror should be discharged, and submitted that while the power existed to proceed with 10 jurors, this power was only meant to be exercised in the ‘most unusual’ circumstances. The prosecutor agreed that this had been a short trial with evidence recorded and that to reduce the jury to 10 was inappropriate. Therefore, the jury should be discharged.
The trial judge ruled that the trial should continue with a jury of 10. He said:
All right. I’ve heard both counsel arguments, and for the reasons I’ve discussed in terms of a discretionary decision, I’m of the view that the trial should continue with a jury of 10. It’s not in the interest of the community in the criminal justice system proceeding. [sic] The legislation allows a jury of 10. It’s put there for a reason; it’s put there to facilitate the circumstances that we’ve got. We’re in a COVID environment where the matters that have really given rise to both the discharge yesterday, involving the brought-forward elective surgery that’s all been deferred because of COVID. That caused the juror who brought that matter to my attention, but otherwise in the normal course she would have been able to discharge her duty.
Similarly in relation to what the second juror has raised — again, COVID-type consequences, and so that’s the environment in which this discretion that’s vested in the Court has got to be exercised. In the light of delays and priorities, for both the accused man and the complainant, the system of justice — (indistinct words) — the legislature in April last year allowed judge-alone trials. Now, they didn’t renew that, but that indicates that there’s no magic in the sense of a 12 person jury and the legislation allows a 10 person jury. So it’s not as though — there’s no gloss on the legislation to say it can only be ordered in an exceptional circumstance or something like that.
As far as the individual juror is concerned, I’m going to give the jury the same direction I gave them yesterday, that they’re not to — they’re to ignore any views that that person may have expressed and they will determine the matter on the 10 of them, from their deliberations. So for all those reasons, I don’t propose to discharge that jury and that [sic] the matter proceed with a jury of 10. So what I propose to do is bring the jury back. I won’t bother to articulate the reasons that the juror has raised in her note; I’ll just indicate that I’ve discussed the matter with counsel and agreed to discharge her. Then I’ll make an order saying that I — tell the jury what I did yesterday, that there’s power to proceed with 10.

In the course of discussion with counsel, the judge had earlier made the following observations, to which he alluded in the opening lines of the passage just quoted:
But the legislation is a cascading — s 43 allows a judge to discharge a juror, under s 43(d) which is what I referred to yesterday, if for any other reason a juror can’t continue. Then 44 goes on, subject to sub-s (2) and (3), if a juror dies or is discharged during a trial, the judge may direct that the trial shall continue with the remaining jurors. And then sub-s (3), a criminal trial cannot continue with less than 10 jurors. And then s 46 goes on to talk about unanimous verdicts and provides that under sub-s 46(1)(c), if at the time of returning its verdict, the jury consists of 10 jurors, a verdict of nine is a majority verdict. So the Act allows for a verdict — a jury of 10 for it to return a verdict.
…
And so the question then is to exercise a discretion as to whether or not the jury should — the trial should continue with 10. And so it’s a discretion that’s vested in the court. Now you Mr [Prosecutor] have said it should not be exercised under [sic] most unusual circumstances, but there’s no such gloss on it in the legislation, it’s just completely silent. It’s a matter of looking — what’s in the interests of justice at any one time.
…
Now the interests of justice is a — almost a category of indeterminate reference. There’s the justice to the accused man who in the ordinary course of events is entitled to a jury of 12. But the Juries Act allows it to be 11 or 10 without any gloss of unusual. There’s the loss to community of discharging this jury after four days of trial. A loss for 12 jurors who — underpaid members of the community whose time has been — they put it, and it’s lost. In the event that the jury is — the trial is aborted, then the accused man will face a new trial, albeit there will be some reuse of the evidence that has been recorded. But for him, he’s got the indeterminacy of waiting for another trial date. For the complainant in this matter who no doubt will want closure in relation to the matter. He’s waiting. All his friends, and the friends of the accused are waiting for this matter to be closed — closure as they say. The trial is aborted; new trial. This trial will then take its place in the queue of literally hundreds of trials that are backed up and waiting and are backed up in the system as a result of the COVID pandemic. So we’re in a post-COVID or COVID pandemic environment, which is different from the environment we’ve had in this community two years ago, where there weren’t the same backlogs of trials, where people were going about their daily lives without having to wear masks, etcetera. So they’re factors to take into account to whether the accused man gets a not unfair trial but not a perfect trial. Chief Justice Gleeson has said in one of those cases, I forget which, that an accused is entitled to a fair trial but not necessarily a perfect trial, so there can be blemishes in a trial that makes it imperfect but not unfair.
…
So they’re all the matters that have got to be weighed in determining whether to proceed to abort the trial; start again at some indeterminate time next year, or to proceed as the legislation allows to proceed with 10.
[PROSECUTOR]: I understand that, sir, with the greatest respect, but in terms of any prejudice to the accused, that is dealt with by the fact that it’s his application that the jury be aborted. He accepts the risk of his trial being put back and the uncertainty of when it might be heard.
HIS HONOUR: But it’s not only the accused — he’s not the only one who’s got an interest in it. The community’s got an interest in it — the community’s got an interest in the loss of judge time, the loss of court time, the loss of jury time.

Applicant’s submissions

The applicant submitted that the trial judge approached the power under s 44(1) of the Juries Act 2000 as if it was an uncontrolled power or discretion, uninhibited by the ordinary requirement that a jury in a criminal trial consists of 12 jurors. The applicant noted that the starting position of 12 jurors is prescribed by s 22(2), supported by the provision for the empanelment of additional jurors in ss 23(1) and 48(1). It was submitted that the power in s 44(1) was further informed by the common law.
The applicant submitted that the judge’s discretion under s 44(1) miscarried because he took account of the irrelevant consideration that the legislature had made provision for judge-alone trials. More particularly, this error was said to have led the judge to apply an incorrect test, by which there was ‘no magic in the sense of a 12 person jury’. This was said to fail to recognise the right of an accused to be tried before a jury of 12, in the absence of a positive reason to the contrary. The applicant relied on Wu v The Queen, in which McHugh J and Kirby J each expressed concern about a trial judge’s comment that there was ‘no magic in the number twelve’.[15]
[15]See Wu (1999) 199 CLR 99, 108 [31] (McHugh J), 125 [74] (Kirby J).
In addition, the applicant submitted that the judge failed to take account of the fact that the amount of evidence heard before the second juror was discharged was relatively confined and had been recorded. This was a short trial where the evidence could be played back to a new jury in less than two days.
The applicant submitted that the above errors constituted ‘a serious departure from the prescribed processes for trial’, relying on Baini v The Queen.[16] It was therefore a fundamental irregularity and resulted in a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009.

Respondent’s submissions

[16](2012) 246 CLR 469, 479 [26] (French CJ, Hayne Crennan, Kiefel and Bell JJ) (‘Baini’).

The respondent submitted that the trial judge’s observation regarding judge-alone trials was an unfortunate passing comment made in the context of legitimately considering the impact of COVID-19 on whether to proceed with a jury of 10. The judge was saying that Parliament had not said that there must be 12 jurors. The respondent cited the observation of Gleeson CJ and Hayne J in Wu that, in their view, there was no reason to criticise the trial judge in that case for saying that there was no ‘magic’ in having 12 jurors, because ‘the statement [was] not meant literally’.[17] Further, unlike in Wu, the trial judge made a formal order and gave reasons for his direction.
[17]Wu (1999) 199 CLR 99, 106 [20] (Gleeson CJ and Hayne J).
The respondent submitted that there is no right to a verdict of 12 jurors.[18] In Brownlee v The Queen, Gleeson CJ and McHugh J noted that Victorian legislation had permitted a jury to be reduced to 10 members in a criminal trial since before Federation.[19] Consistently with that history, s 44(4) of the Juries Act provides that if a judge directs that a trial shall continue following the discharge of a juror and that jury numbers at least 10, ‘[t]he verdict of the remaining jurors is a sufficient verdict’.
[18]The respondent noted that the decision in Cheatle v The Queen (1993) 177 CLR 541, that s 80 of the Constitution requires a jury of 12 to return a unanimous verdict in a trial upon indictment, is a principle applying to Commonwealth offences, not State offences.
[19](2001) 207 CLR 278, 288 [19] (Gleeson CJ and McHugh J) (‘Brownlee’).
The respondent, however, accepted that an accused has an expectation of a 12-member jury and that a trial judge should identify a positive reason to progress with a jury of less than 12 jurors.
The respondent submitted that the trial judge was aware of these matters and exercised his discretion accordingly. The judge took into account all relevant considerations, including the effects of COVID-19, which were the cause of the loss of the two jurors. The judge also considered the impact on the accused, noting that discharging the jury would cause significant delay due to the backlog of trials. The judge took account of the time and cost spent in the trial to date. While the trial was short, it was almost concluded.

Analysis

Before turning to the arguments upon which the parties relied, it is necessary to say something about an issue which was addressed only briefly in submissions. The issue concerns the use of the ‘test’ of ‘high degree of need’ in the context of s 44.
In written submissions, the respondent contended, almost in passing, that ‘the power to discharge the whole jury can only be exercised where there is a high degree of need for that to occur’, and that this was not the case in this instance.[20] In oral argument, different counsel for the respondent retreated from this position, submitting instead that the existence or otherwise of a high degree of need to discharge the jury was one consideration relevant to the decision under s 44 whether there was a reason for continuing the trial with a reduced jury after the discharge of a juror. The Court indicated to counsel for the applicant, in reply, that submissions were not required on this matter.
[20]The submission cited Carson v The Queen [2019] VSCA 317 [90] (T Forrest JA, with Niall and Ashley JJA agreeing) (‘Carson’).
The common law principle that a jury should only be discharged where it is established that there is a high degree of need to do so is of long standing.[21] It does not, however, find expression in ss 43 and 44 of the Juries Act 2000. It has been observed that, if any of the circumstances set out in s 43 are established, that fact alone is very likely to import a high degree of need that the individual juror in question be discharged.[22] At the same time, the expression should not be used as a substitute for the statutory language, or as an overriding limitation on the operation of the section.[23]
[21]See Boland [1974] VR 849, 866–7 (Adam, Little and McInerney JJ), and the cases there cited.
[22]Najibi (2016) 260 A Crim R 491, 530 [243] (Ashley, Weinberg and McLeish JJA); [2016] VSCA 177.
[23]Ibid [246]; cf Goodall v The Queen (2007) 15 VR 673, 677 [17] (Redlich JA, Buchanan AP agreeing at 674 [1], Neave JA agreeing at 674 [2]) (‘Goodall’); Chung v The Queen (2010) 25 VR 221, 227 [22] (Redlich JA); Zhu v The Queen (2013) 38 VR 77, 80–1 [59] (Redlich JA and Kaye AJA).
On the face of it, the same conclusion would appear to apply in the context of s 44. There are, however, cases in this Court which might be taken to say that the ‘high degree of need’ concept supplies the test for deciding whether a trial should continue under that provision. We consider those cases briefly below.
The ‘high degree of need’ test is applicable in the situation, outside the scope of ss 43 and 44, where the question is whether the whole jury should be discharged other than following the discharge or death of a single juror.[24] Even after a juror has been discharged, it is axiomatic that if there is, in that circumstance, a high degree of need to discharge the jury, then no direction would be made under s 44 for the trial to continue with the existing jury. The issue that arises, however, is whether a direction may be refused in circumstances where it has not been shown that there is a high degree of need to discharge the whole jury.
[24]Crofts v The Queen (1996) 186 CLR 427, 432 (Dawson J); Najibi (2016) 260 A Crim R 491, 531 [250] (Ashley, Weinberg and McLeish JJA); [2016] VSCA 177.
As we have noted, there are a number of cases in this Court suggesting a negative answer to that question — suggesting, in other words, that a trial should continue after the discharge of a juror unless there is a high degree of need not to do so (assuming of course that the statutory minimum number of jurors remain on the jury).
As we have said, the present matter was not argued on that basis, and the applicant did not seek to establish that there was in fact a high degree of need which justified a discharge of the jury. Rather, both parties approached the case on the basis that it may be appropriate that a trial not continue even though no high degree of need to discharge the jury is demonstrated. It is desirable to refer briefly to the main authorities and to indicate why, in our opinion, the parties were justified in arguing the case in that way.
First, Matthews v The Queen concerned s 44 of the Juries Act 1967.[25] That provision was in these terms:
[25][1999] 1 VR 534 (‘Matthews’).
44 Power to continue trials with reduced jury
In the event of the death or illness of any juror or of the death or dangerous illness of any near relative of a juror during any inquest or of the discharging of a juror during the inquest for any other reason that appears to the court to be good and sufficient, except for a felony for which the accused is liable to be sentenced to death, the court shall have power if it thinks fit to direct that the trial shall proceed with a number of jurors reduced in no case to less than ten where twelve or more jurors were originally impanelled or five where six jurors were originally impanelled and the verdict of such remaining jurors shall be a sufficient verdict.
The issue in Matthews was whether, after a juror was discharged on becoming upset during deliberations, the whole jury should be discharged. Callaway JA, with whom Kenny and Buchanan JJA agreed, said:
Counsel submitted that the judge had erred, whether one applied the traditional test of a high degree of need or adapted the test applicable to reasonable apprehension of bias. … In my opinion the test is still whether there is a high degree of need, but a reasonable apprehension of bias is one of the circumstances that constitutes a high degree of need.[26]
[26]Ibid 537 [9] (citations omitted).
The Court held that the high degree of need test was not met and the relevant ground of appeal was not made out. It can be seen that the case proceeded on the basis of counsel’s argument as to the correct test, which does not appear to have been in issue.[27]
[27]This is true also of the decision in Arnott v The Queen (2009) 26 VR 490, 522 [127].
In Sharp v The Queen, decided under the Juries Act 2000, the issue was again whether the judge erred in allowing a trial to proceed after discharging a juror.[28] In this case, the juror had expressed various concerns that led to his discharge, which was not in issue on the appeal. It was relevantly submitted that the judge had erred by ‘employing the test used in applications for the discharge of the whole jury pursuant to s 43 of the Juries Act when considering whether the trial should continue in circumstances encompassed by s 44’. This ground appears to have proceeded on the assumption that s 43 addresses a choice between discharging a juror with, or without, discharging the whole jury. To that extent, it is inconsistent with this Court’s decision in Najibi v The Queen.[29] There, it was held that s 43 is concerned only with the discharge of a single juror and that the question whether the whole jury should thereafter be discharged arises only under s 44.
[28][2005] VSCA 44 (‘Sharp’).
[29](2016) 260 A Crim R 491, 523 [210], 530–1 [247]–[253] (Ashley, Weinberg and McLeish JJA).
At all events, Vincent JA, with whom Ormiston and Callaway JJA agreed, endorsed the ‘high degree of need’ test as applicable to both provisions:
The test under s 43 for the discharge of the whole jury was expressed by the trial judge in his ruling on this matter in terms of the presence of a ‘high degree of necessity’, but as the Court of Criminal Appeal stated in Boland:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R. The principle is really one of necessity. There must be evidence ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’. (Footnotes omitted.)^. (My emphasis.)
Although, as is apparent from this extract, his Honour should have spoken of a high degree ‘of need’ and not ‘of necessity’, as a practical proposition no consequences flow from his description of the issue to be determined by him.
Whilst, as counsel for the applicant submitted, the test set out in Boland was regarded as applicable to the differently worded s 44 of the Juries Act 1967^., there is no good reason for holding that a different approach is required under the substituted provisions of ss 43 and 44 of the Juries Act 2000. This view appears to have been accepted by the Court in a number of cases subject to the later Act and, as far as I am aware, the test as formulated in Boland has been regularly applied in trials conducted in both the Supreme and County Courts to the present time.[30]
[30]Matthews [1999] 1 VR 534 [49]–[50] (Callaway JA, Kenny JA agreeing at 541 [21], Buchanan JA agreeing at 541 [22]) (citations omitted).
To the extent that the Court here endorsed the application of the ‘high degree of need’ test to s 44, this appears to have been a reflection of its apprehension that discharge of the jury is the subject of both s 43 and s 44. For the reason mentioned above, the above observations therefore need to be treated with some caution.[31]
[31]The same observation applies to the statement of Redlich JA in Goodall that a trial judge’s ‘power to discharge [a] juror and proceed with 11 jury members derives from s 43 of the Juries Act 2000’: (2007) 15 VR 673, 677 [17] (emphasis added).
Thirdly, the Court in Najibi reviewed the authorities in the course of deciding that the power to discharge a jury was located in s 44 and not s 43. By way of obiter dicta, the Court stated that there ‘is no doubt’ that the decision under s 44 ‘whether, in effect, to discharge the whole jury’ is one to which the ‘high degree of need’ test will apply.[32] The relevance or otherwise of the ‘high degree of need’ test was, as in the present case, not the subject of argument.[33] In Najibi there was also no application made for the discharge of the whole jury.[34] The issue now under discussion therefore did not arise for decision in any way.
[32]Najibi (2016) 260 A Crim R 491, 531 [250]. See also 531 [255] (Ashley, Weinberg and McLeish JJA); [2016] VSCA 177.
[33]Ibid 532 [260].
[34]Ibid.
Finally, in Carson v The Queen, the Court applied the ‘high degree of need’ test to find that the trial judge in that case ought not to have continued with the trial after having discharged a juror.[35] Because the Court decided that there was a high degree of need not to give a direction under s 44, it was unnecessary to decide whether there are cases where a trial should not continue under that section even though no such high degree of need is demonstrated.
[35]Carson [2019] VSCA 317 [90] (T Forrest JA, Niall JA agreeing at [1], Ashley JA agreeing at [116]).
This short review has shown that the authorities are in a state of some uncertainty and the question we have been considering is yet to be squarely addressed. In those circumstances, there is no basis for assuming that the decision under s 44 whether to proceed with a trial after a juror has died or been discharged is necessarily to be made according to the ‘high degree of need’ test. It may be appropriate to decline to direct that a trial continue even if there is not a ‘high degree of need’ to discharge the jury. The proper approach is to apply the words of the statute, consistently with Wu.
The parties were therefore justified in arguing the case on the basis that the power in s 44 is not constrained by the requirement to demonstrate a high degree of need to discharge the jury, and that there should be some reason to justify continuing to hold a trial with a reduced number of jurors (at least when the jury numbers less than 12).
The requirement of a ‘positive’ or ‘good’ reason for permitting a trial to continue with less than 12 jurors, which (as already mentioned) the respondent accepted as the law in this state, was stated by McHugh J in Wu.[36] It reflects the long-standing common law right to be tried for serious crime before a jury of 12.[37]
[36]Wu (1999) 199 CLR 99, 108 [28].
[37]Ibid. See also 106 [21] (Gleeson CJ and Hayne J), 125 [74] (Kirby J); Brownlee (2001) 207 CLR 278.

At the same time, however, the requirement of a ‘positive’ or ‘good’ reason is not itself a test governing the exercise of the power in s 44. It is a minimum requirement. As McHugh J stated, the exercise of the power requires consideration of all the circumstances.[38]
[38]Wu (1999) 199 CLR 99, 108 [29].
In Wu, Gleeson CJ and Hayne J referred to some of the considerations that a judge should take into account when deciding whether to discharge a juror. They also held that, in circumstances where the reasons for discharging the juror related only to that particular juror, there was no doubt the judge was right to proceed with a jury of 11. Gleeson CJ and Hayne J referred to the impact of delay in a trial on the accused and witnesses, and said that the courts:
must not shut their eyes to the consequences of delay upon … all others who seek access to the courts and cannot have their cases tried because of what is happening in cases that are being tried.[39]
[39]Wu (1999) 199 CLR 99, 106 [19] (Gleeson CJ and Hayne J). See also Brownlee (2001) 207 CLR 278, 303 [69]–[70] (Gaudron, Gummow and Hayne JJ); Matthews v The Queen [2021] VSCA 20 [33], [37] (Kaye and Niall JJA).
The applicant contends that the judge misapplied the law by failing to appreciate the need for a positive reason to depart from the entitlement of an accused to a jury of 12. The proposition stated in those terms is somewhat inapt, given that the trial was already proceeding before a jury of 11 in any event. But the fundamental submission remains that the judge failed to appreciate the need for a positive reason to proceed with the trial after having discharged the second juror.
It may be accepted that the reference to judge-alone trials was at least a distraction. The fact that, for a time, provision was made for a trial without jury, with the consent of the accused, is irrelevant to the question how a jury is to be constituted when a trial does proceed by jury.
Equally, the judge’s observation that there was ‘no magic in the sense of a 12 person jury’ is a matter of concern.[40] It is capable of being interpreted as wrongly denying that the starting point is that a jury consists of 12 people, as required by s 22(1) of the Juries Act 2000, and failing to appreciate that departure from that norm requires that there be some positive reason to justify the exercise of the power to give a direction under s 44(1).
[40]Wu (1999) 199 CLR 99, 108 [31] (McHugh J).
Read in context, however, the judge did not apply the wrong test. The above statements were made in the course of rejecting a submission that a direction to proceed with the trial could only be given in exceptional circumstances. The judge was correct to reject that submission. The legislation is not so confined in its terms and there is nothing in its context or purpose that would support such a limited construction.
The question is whether the judge erred by directing that the trial continue without first deciding that there was a positive reason for departing from the statutory norm.
In our opinion, he did not. First, the judge acknowledged that he was exercising a discretion. Whether or not the power is strictly to be characterised that way,[41] the judge thereby recognised that the trial did not have to continue just because it was legally possible to do so.
[41]Wu (1999) 199 CLR 99, 104 [10] (Gleeson CJ and Hayne J), 118 [54] (Kirby J), 133 [98] (Callinan J).
Secondly, the judge addressed the issue by asking what the interests of justice required. The first consideration he identified was ‘the justice to the accused man who in the ordinary course of events is entitled to a jury of 12’. In other words, he acknowledged the usual expectation that a jury in a criminal trial have 12 members.[42] He also identified, on the other hand, the ‘loss to [the] community’ and to the jurors themselves, and the indeterminacy to the accused of waiting for a new trial date.
[42]This unremarkable observation was consistent with submissions of both counsel to that effect. See, eg, Sharp [2005] VSCA 44 [46] (Ormiston, Callaway and Vincent JJA).
Thirdly, the judge referred to the backlog of criminal trials due to the COVID pandemic. He said that the community had ‘an interest in the loss of judge time, the loss of court time, the loss of jury time’. Later he referred to delays for the accused, the complainant and the system of justice. These observations were consistent with those of Gleeson CJ and Hayne J in Wu, quoted at [66] above.
In the course of his remarks, the judge cited an observation he attributed to Gleeson CJ to the effect that an accused is entitled to a fair trial but not necessarily a perfect trial.[43] It is tolerably clear that this was another reference to the desirability of having a jury of 12 and reflected the judge’s view that there were reasons why it was not unfair to depart from that position in this case.
[43]It is possible the judge had in mind the statement of Gaudron J in Dietrich v The Queen (1992) 177 CLR 292, 365, that a ‘trial is not necessarily unfair because it is less than perfect’ (citing Jago v District Court (NSW) (1989) 168 CLR 23, 49 (Brennan J)). See also Awad v The Queen [2022] HCA 36 [115] (Steward J), and the authorities there cited.
The matters the judge took into account represent the identification of reasons why the applicant’s entitlement, in the ordinary course, to a jury of 12, should give way in this case. By proceeding in this way, the judge did not apply a principle that there was ‘no magic’ in a jury of 12, or support any such principle by reliance on the possibility of judge-alone trials in some circumstances. Instead, having acknowledged the usual expectation of a jury of 12, he identified positive reasons why it was appropriate to depart from that norm in this case.
For these reasons, the judge did not apply the wrong test in exercising the power under s 44.
Nor did the judge take irrelevant considerations into account in the manner suggested.[44] As indicated already, the judge acknowledged the usual expectation of a jury of 12, and identified reasons why the applicant’s usual entitlement should give way in this case. The judge was also aware of the time and cost spent in the trial to date and expressly acknowledged that in any retrial there would be some reuse of the evidence that had been recorded.
[44]Ground 1.2.
Leave to appeal must therefore be refused.
It is therefore not necessary to consider an alternative submission of the respondent, to the effect that there was in any event no substantial miscarriage of justice because the judge reached the right decision, albeit for the wrong reasons. We doubt, however, whether that approach would sit comfortably with s 276 of the Criminal Procedure Act. In some cases it might be said that incorrect reasoning which leads to a correct outcome gives rise to no substantial miscarriage of justice (or perhaps no irregularity or error at all), for example on a question of admissibility which admits of only one correct answer. However it is not obvious that the same approach could be taken in the case of a discretionary decision as to which minds may reasonably differ.[45] The issue in the latter case is not whether the decision is ‘correct’, in the sense that an appellate court would have made the same decision in the shoes of the trial judge, but whether it is lawfully made according to the test in House v The King.[46] But it is unnecessary to say more on the point.
[45]See generally Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 558 [37], 560–1 [43], 563 [48]–[49] (Gageler J).
[46](1936) 55 CLR 499.
In the circumstances, it is also unnecessary to decide whether, had the judge’s exercise of power been vitiated, this constituted a serious departure from the proper trial processes so as to constitute a substantial miscarriage of justice, without more.[47]
[47]Baini (2012) 246 CLR 469, 479 [26] (French CJ, Hayne Crennan, Kiefel and Bell JJ); Saricayir v The Queen [2018] VSCA 319 [60]–[80] (Kaye, T Forrest and Ashley JJA).

Ground two — the ‘punch and fall’ direction

The second proposed ground of appeal is:
The trial judge’s redirection that the punch and the fall were deemed to be a single event/offence enlarged the prosecution’s case and constituted a substantial miscarriage of justice.
Immediately following the closing addresses, the trial judge asked the prosecutor whether he needed to address the jury ‘on the issue of the injury actually occurring’. The trial judge noted that defence counsel had said in his address that the prosecutor had not put to the jury that Mr McKee’s hyperflexion injury might have been caused by the way he hit the ground. The prosecutor said that the judge should address the issue in his charge and that, while he had not put to the jury that the hyperflexion injury might have been caused just by the way Mr McKee hit the ground, the jury needed to look at the totality of the medical evidence in addressing the issue of causation.
In summarising the issue of causation in his charge, the trial judge said:
The prosecution case is that [the applicant] hit or punched Mr McKee there on the roadway in Canterbury Road with a heavy punch to the back of his head, or to his head as described by [Mr Tagaloa], fell to the ground and suffered this spinal injury. So that is the argument of the prosecution, that he caused that injury, that serious injury.
Following the charge, the jury commenced its deliberations on 15 December 2021. On the next morning, the trial judge advised the parties:
Late yesterday I received a question from the jury. A question in law. ‘Is the punch and the fall (two events) deemed to be a single event/offence? When considering causation.’
Defence counsel submitted that the answer to the question should be ‘no’. He submitted that the prosecutor closed his case on the basis that the injury was occasioned by the punch and did not rely on the fall. He said that the jury should be told that the punch and fall were separate events, and the prosecution relied on the punch.
The prosecutor submitted that it was artificial to try and split the punch and the fall, and any inferences to be drawn were a matter for the jury. The prosecution case was that, for causation purposes, the matters were one event. Any limitations on medical evidence were fact-finding matters for the jury to consider.
The trial judge said that in order for the answer to the question to be ‘no’, there needed to be a supervening event between the punch and the fall. The trial judge formed the view that the answer to the jury question should be ‘yes’.
It is necessary to set out the trial judge’s direction to the jury in full:
The answer to the question is yes. The prosecution case is that the complainant’s serious injury was caused by the punch that was observed by Mr Tagaloa. The defence case is that the complainant’s injuries were sustained – were self-inflicted when he hit his head against the wall that is said to be available to be seen on Exhibit G, the CCTV footage.
As I said in my directions to you, the prosecution must prove that the actions of the [applicant] caused the complainant’s serious injury. You must be satisfied beyond reasonable doubt as set out in the charge – sorry, in my checklist, the second point on p2, were the [applicant’s] actions a substantial or significant cause of the complainant’s serious injury. You apply your common sense in answering that question. That is a factual question for you.
You must also exclude beyond reasonable doubt that the injuries were self-inflicted as argued by the [applicant] in his closing address. So that is all I want to say, members of the jury. I hope it answers your question.
The prosecution case is that the injuries were inflicted by the punch, the way that was observed – the punch that was observed by Tagaloa. The defence case says the injuries were inflicted earlier. The prosecution has got to prove that the actions of the [applicant] caused the complainant’s serious injury beyond reasonable doubt. Now the actions were of substantial or significance cause of the complainant’s serious injury; you apply your common sense.
You must exclude beyond reasonable doubt that the injuries were self-inflicted in some event that is observed in Exhibit G in the video.

Applicant’s submissions

The applicant submitted that the judge’s redirection in response to the jury’s question enlarged the prosecution case and that this constituted a substantial miscarriage of justice. In particular, it was said that, until that point in the trial, the prosecutor had alleged that the injuries sustained by Mr McKee were inflicted by the punch to his head and not by the subsequent fall. The prosecution case did not rely on, and was not informed by, the fall. It was not the subject of re-examination after cross-examination of Dr O’Donnell. The prosecutor did not sufficiently explore the medical evidence as to the possibility of the fall causing the injury. As the prosecutor had confined his case on that basis, the jury should have been told that it could not convict on the basis of the fall.[48]

Respondent’s submissions

[48]Reliance was placed upon King v The Queen (1986) 161 CLR 423, 429 (Deane J) and Parker (a pseudonym) v The Queen [2012] VSCA 348 [56]–[61] (Priest JA).

The respondent denied that the answer to the jury’s question altered or enlarged the prosecution case in any way. The overall instruction by the trial judge to the jury on the issue of causation was correct, and to separate the fall from the punch in the absence of an intervening act would have been entirely artificial.

Analysis

In our view, there is no substance in this ground. At no time in the trial did the prosecutor eschew reliance on the evidence that Mr McKee fell to the ground when punched and hit his head as a result. The prosecutor asked Mr Tagaloa ‘what happened’ when Mr McKee was hit, and ‘how hard’ he hit the ground. He then asked ‘what part of his body first hit the ground’, to which the answer was, ‘Definitely could have been his head’. Defence counsel asked Mr Tagaloa to confirm that Mr McKee ‘fell face forward’.
The prosecutor asked Dr Marr, a senior forensic physician at the Victorian Institute of Forensic Medicine, whether she had been asked to consider whether the observed injuries ‘were likely to have resulted from a direct blow to the head or a falling to the ground and then hitting the head’. Later, he asked her whether a hyperflexion of the neck could result from a fall. She confirmed that it could, and that she thought the possibility of that having happened in this case was something an experienced radiologist could say more about. In cross-examination, Dr Marr said that she had satisfied herself that ‘a blow to the head or a fall could have caused this injury’ but that an opinion from a radiologist might provide more information.
When the prosecutor came to examine Dr O’Donnell, the radiologist, he asked him whether he had assessed ‘whether a blow or fall could have caused the fracture and injury’. Later, he specifically asked about a blow to the head and the head having been ‘propelled into the ground’:
Was it possible that at the time to determine from imaging of the force to that right vertex has been applied at the time or a blow to the head or if it has been propelled into the ground and the (indistinct) would be both of those?---That’s right so I am just seeing a snapshot. I see the, the individual when they get to the hospital so I don’t know the sequence of events. I can’t give you a timeline. What I can say is the pattern of injury is this and it’s up to other[s] then to determine what the timeline is so I can’t say whether a hit to the head and then a fall or a fall and whatever. I can just say that a substantial force has been applied to the top of the skull I believe it caused it to move forward quite rapidly and aggressively causing this injury at C6-7 and resulted in spinal cord injury.
The prosecutor also asked Dr O’Donnell about the ‘possibility of a fall to the ground with a head strike’. Dr O’Donnell said that the injury was of the kind seen when a person dives headfirst into shallow water and hits the ground. At the end of the examination in chief, there was the following exchange:
The eyewitness said Tom pretty much kissed the pavement. What would you take from that?---Ah, I don’t really know what that means. It’d suggest face first, that he kisses the pavement.
That’s what the eyewitness says. Go on?---Ah, I believe there’s been an impact to the pavement by the head, um, but assessment is not the face. There is no substantial bruising or any other fracturing of the face. My assessment of injury is to the scalp — to the top of the scalp, what we call the vertex. So it seems to me that that would be the point. If this is what’s happened — if this is this as described, that it would be more likely the head has hit the, ah, pavement rather than the face.
It is apparent from the line of questioning that the prosecutor consistently pursued the issue of Mr McKee’s head having hit the ground and the possibility of that being a cause of the injury.
Nothing the prosecutor said in his closing address indicated that he was putting the case on the basis that the punch alone caused Mr McKee’s injuries. To the contrary, he read out the evidence of Mr Tagaloa about him ‘kissing the pavement’ and that it ‘definitely could have been his head’ that hit the ground first. The prosecutor went on to tell the jury that Mr McKee ‘wouldn’t have suffered any injuries at all if he hadn’t been hit in the manner described’, inviting the jury to decide whether that was a ‘substantial and contributing cause’ of the injury.
Defence counsel also referred to the evidence of Mr McKee falling to the ground, reminding the jury that Mr Tagaloa had said he ‘kissed the pavement’. Counsel told the jury this could not have caused the injury because it would have been a hyperextension injury, ‘the opposite of the injury that Mr McKee suffered’ — so that this ‘didn’t cause the injury’. He later repeated evidence of Dr O’Donnell in cross-examination in response to the proposition that ‘falling face forward and landing — kissing the pavement perhaps’ would not cause the injury sustained. Dr O’Donnell had said that the ‘injury does not appear as a result of impact to the face, no’.
In his charge, the judge said that the prosecution case was that the applicant ‘hit or punched Mr McKee … with a heavy punch to the back of his head, or to his head as described by Mr Tagaloa, fell to the ground and suffered this spinal injury’, so that the applicant ‘caused that … serious injury’.
The applicant submitted in this Court that the expert evidence made it clear that the fall could not have caused the serious injury to Mr McKee, and that the prosecution had conceded as much in the submissions made in relation to the jury’s question. But the prosecutor did not resile from his case that the fall was a potential cause of the injury, based on the evidence of Mr Tagaloa. In that context, it was a question for the jury what was meant by ‘kissing the pavement’ in light of Mr Tagaloa’s evidence that it ‘definitely could have been’ Mr McKee’s head that hit the ground first.
It follows that, in telling the jury that the question for their decision was whether the punch caused the spinal injury, the judge did not cast the prosecution case any more widely than the prosecutor had done. It would have been highly artificial for the judge, or the prosecutor, to have done otherwise in circumstances where there was no intervening act between the punch and the fall. Whatever injuries were caused by Mr McKee falling to the ground were inevitably caused by the punch.
It was a question for the jury whether the medical evidence gave rise to a reasonable doubt that Mr McKee’s injuries were caused by the act of the applicant as described by Mr Tagaloa. The defence case was that the medical evidence was more consistent with a self-inflicted injury. These were the competing positions throughout the trial and nothing in the judge’s answer to the jury’s question amounted to a departure from that position.

Leave to appeal on the second proposed ground should be refused.

Conclusion

Leave to appeal should be refused on both grounds.

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[2023] VSCA 86

19 April 2023