Lee (a pseudonym) v The King
[2024] VSCA 10
•21 February 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0191 |
| JASON LEE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, victims and other family members.
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| JUDGES: | McLEISH, KENNEDY, and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 February 2024 |
| DATE OF JUDGMENT: | 21 February 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 10 |
| JUDGMENT APPEALED FROM: | DPP v [Lee] (County Court of Victoria, Judge Brookes, 28 July 2022) |
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CRIMINAL LAW – Appeal – Conviction – Incest – Sexual assault of a child under 16 – Common assault – Applicant found guilty of seven charges of incest, one charge of sexual assault of a child under 16, and one charge of common assault in respect of his three biological daughters – Sentenced to 18 years and six months’ imprisonment with a non-parole period of 14 years – Whether trial judge’s failure to give the mandatory directions in relation to general tendency evidence and sexual interest tendency required by s 27 of the Jury Directions Act 2015 and incorporated in [4.17.1] and [4.17.2] of the Criminal Charge Book resulted in a substantial miscarriage of justice – Whether trial miscarried as a result of the admission of tendency evidence – Whether trial judge’s decision to proceed to verdict with a jury of ten persons in context of ongoing COVID-19 outbreak resulted in a substantial miscarriage of justice – Trial judge’s failure to give requisite s 27 direction could have affected the outcome of the trial – Leave to appeal granted – Appeal allowed – Retrial ordered.
Crimes Act 1958, ss 49D, 50C; Jury Directions Act 2015, ss 12, 14, 26, 27, 43, 44; Criminal Procedure Act 2009, s 276(1)(b).
Karam v The King [2023] VSCA 318, Baini v The Queen (2012) 246 CLR 469, Awad v The Queen (2022) 275 CLR 42, applied; Hughes v The Queen (2017) 263 CLR 338, considered; Wu v The Queen (1999) 199 CLR 99, Kennedy v The King [2023] VSCA 86, discussed.
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| Counsel | |||
| Applicant: | Ms G Connelly | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Greg Thomas Barrister and Solicitor | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MCLEISH JA
KENNEDY JA
T FORREST JA:
On 13 April 2022, the applicant was found guilty by a jury of seven charges of incest, one charge of sexual assault of a child under 16, and one charge of common assault.
The applicant was sentenced to a total effective sentence of 18 years and six months’ imprisonment with a non-parole period of 14 years. The table below sets out the particulars of each sentence.
Charge
Offence
Maximum
Sentence
Cumulation
1 Incest — sexual penetration of a child or lineal descendant[2] (Jessica) 25 years’ imprisonment 9 years’ imprisonment Base 2 Incest — sexual penetration of a child or lineal descendant (Jessica) 25 years’ imprisonment 9 years’ imprisonment 18 months 3 Sexual assault of a child
under 16[3] (Jessica)10 years’ imprisonment 1 year’s imprisonment 3 months 4 Incest — sexual penetration of a child or lineal descendant (Jessica) 25 years’ imprisonment 9 years’ imprisonment 18 months 5 Common assault[4] (Jessica) 5 years’ imprisonment 1 year’s imprisonment 3 months 6 Incest — sexual penetration of a child or lineal descendant (Jessica) 25 years’ imprisonment 9 years’ imprisonment 18 months 7 Incest — sexual penetration of a child or lineal descendant (Hazel) 25 years’ imprisonment 9 years’ imprisonment 18 months 8 Incest — sexual penetration of a child or lineal descendant (Hazel) 25 years’ imprisonment 9 years’ imprisonment 18 months 9 Incest — sexual penetration of a child or lineal descendant (Donna) 25 years’ imprisonment 9 years’ imprisonment 18 months Total Effective Sentence: 18 years and 6 months’ imprisonment Non-Parole Period: 14 years Pre-sentence detention declared: 894 days Other relevant orders: Pursuant to s 6F of the Sentencing Act 1991, sentenced as a serious sexual offender in relation to Charges 3, 4, 6, 7, 8 and 9.
Pursuant to s 34 of the Sex Offenders Registration Act 2004, length of reporting is
life.[2]Contrary to s 50C of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3]Contrary to s 49D of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4]Contrary to common law.
The applicant seeks leave to appeal against both the convictions and the sentence. His proposed grounds of appeal against conviction are as follows:
Ground One
The learned trial judge erred in failing to direct the jury as required, resulting in a substantial miscarriage of justice.
Ground Two
The trial miscarried as a result of the admission of tendency evidence.
Ground Three
The learned trial judge erred in deciding to proceed to verdict with a jury of only ten persons and thereby occasioned a substantial miscarriage of justice.
The applicant’s sole proposed ground of appeal against sentence is as follows:
The learned sentencing judge erred by imposing a sentence that, by way of cumulation, was manifestly excessive and offended the principle of totality.
Factual Summary
The applicant is now 43 years of age. The offending was said to have occurred in 2018 and 2019. He is the biological father of the three sister complainants:
•Jessica, aged between 11 and 13 at the time of the offending against her;
•Hazel, aged 10 at the time of the offending against her; and
•Donna, aged 8 at the time of the offending against her.
Another sibling, David, is 14 months older than Jessica. He was not the subject of any charges on the indictment. We shall set out the basic allegations made by each complainant.
Jessica
Charge 1 — Sexual penetration of a child or lineal descendant (‘Incest’)
In 2018, the four children were watching television on the lounge room floor at the family home. The applicant, a stay-at-home husband, was reclining on the couch in that room. He was naked. The applicant said to Jessica words to the effect of ‘come give me a cuddle’. At this stage, the applicant’s wife Helen was not present in the lounge room and was either sleeping in another room or at work. Jessica went to the applicant who put her on top of him, placed the blanket over the two of them and inserted his penis into her vagina. Jessica was unsure whether her siblings saw this.
Charge 2 — Incest
On a different occasion in 2018, Jessica was in her father’s office when she fell asleep on a single bed situated behind the desk. She awoke to find the applicant kneeling on the floor and placing his penis into her vagina. Jessica had been moved from her original position in the bed. She pushed the applicant away and said ‘get off me’. The applicant persisted and inserted his penis into her vagina. Eventually the applicant stopped penetrating her and she went back to her bedroom. Helen was asleep in another room during this incident.
Charge 3 — Sexual assault of a child under 16
In 2019, Jessica was in the bathroom at the family home, showering. The applicant entered the shower, stood behind her, placed his hands on her waist and slowly moved them to her breasts. Jessica covered her breasts and the applicant tried to move her hands. David came to the bathroom and the applicant let Jessica out of the shower. She grabbed a towel and ran to her bedroom.
Charge 4 — Incest
In November 2019, the applicant compelled Jessica to perform oral sex upon him. She was lying down in the applicant’s bedroom. Her siblings were playing in the garden area of the family home. The applicant placed himself above Jessica, held her mouth open and inserted his penis in her mouth. This was identified as the last of multiple occasions when this happened. The balance of these multiple occasions was alleged as uncharged acts relevant as tendency and context evidence. In Hazel’s evidence, Hazel thought that her mother Helen was away in November 2019.
Charges 5 and 6 — Common Assault; Incest
On the first Sunday of 2020, the applicant smacked Jessica twice; the second of the smacks occurred in the applicant’s bedroom. Jessica and the applicant were on the applicant’s bed. The applicant tried to remove Jessica’s pyjama top which she resisted. He tried to pull her pants down which she also resisted. He then smacked her on the thigh while trying to take her pants off and choked her by putting his hand over her throat from above and pushing down on that area. The applicant pushed her up against the bed. This is Charge 5 — common assault. The applicant then removed Jessica’s underwear and penetrated her vagina with his penis (Charge 6 — Incest). When the applicant was finished, Jessica found her underwear and ran out of the room. Helen was away at the time of this offending.
Jessica also provided details of other sexual conduct carried out by the applicant.[5] This evidence was also led as uncharged acts relevant to the context of the relationship between Jessica and the applicant and, where specified, relevant as tendency evidence to a sexual interest exhibited by the applicant and a willingness to act upon that interest.
[5]These allegations were made in Jessica’s two visual audio recorded evidence (‘VARE’) interviews which were exhibited at trial and constituted part of her evidence-in-chief.
Hazel
Charge 7 — Incest
In around November 2019, Hazel was in the applicant’s bedroom by herself. The youngest child, Donna, had been sent to bed. Jessica and David were still up but in another room. The applicant put his hand on Hazel’s head and pushed her mouth onto his penis. He penetrated her mouth.
Charge 8 — Incest
On a different occasion but also in November 2019, the applicant called Hazel into his bedroom. Helen was away and the rest of the family were outside. He then penetrated her vagina with his penis.
Hazel, like Jessica, also provided details of other sexual conduct carried out upon her by the applicant.[6] These were admitted as ‘context evidence’ and also relevant to a sexual interest tendency and a preparedness to act upon that interest. Again, we shall set out this latter evidence in detail when we consider proposed ground 2 of the applicant’s conviction appeal.
[6]These allegations were made in Hazel’s VARE interview which was exhibited at trial and constituted part of her evidence-in-chief.
Donna
Charge 9 — Incest
On one occasion in December 2019, the youngest sister, Donna, was in the applicant’s office. Helen was away. The other siblings were outside playing. The applicant compelled Donna to massage his knee, leg, arms, and stomach. She then described him placing his ‘balls in [her] mouth’.
Donna also gave evidence of uncharged sexual acts which were said to demonstrate a sexual interest tendency.[7]
[7]These allegations were made in Donna’s VARE interview which was exhibited at trial and constituted part of her evidence-in-chief.
Evidence cross-admissible
Save for Charge 5 — the common assault charge, the evidence of the three complainants was held to be cross-admissible on all charges. The uncharged acts identified above were also held to be cross-admissible.
Other evidence
On 13 January 2020, Helen was at home with Hazel and Donna. Helen told them that she was thinking of taking Jessica and David to see their grandparents for a couple of nights. She asked Hazel and Donna how they felt about this and Hazel told her that she did not like it when Helen went away. Hazel further stated that she did not feel safe with the applicant and that Helen knew why. Donna started to cry and said the applicant ‘does the same to me’. One of the girls — Helen could not remember if it was Hazel or Jessica — told Helen that the applicant did the same things to Jessica. Donna said that ‘[s]ometimes when he puts it in my mouth he pushes it all the way back and it hurts.’ Either Hazel or Donna also said that they had heard Jessica crying in her bedroom. Helen agreed with Hazel and Donna that they would go to the police the next day and would not talk about it so as not to risk alerting the applicant. Helen devised a plan that she would tell the applicant that she was taking all four children shopping for school shoes.
The next day, 14 January 2020, Helen took all four children to a park where she asked Jessica and David if there was anything they needed to tell her. In short, Jessica became emotional and after some prompting stated that the same thing had been happening to her. David said he wanted to be sick. Helen then took her children to a suburban police station from which they were referred to the Sexual Offences and Child Abuse Investigation Team at another police station where all four children participated in VARE interviews. On 18 January 2020, Jessica participated in a further VARE interview.
Following their interviews, the three complainants were taken to Monash Children’s Hospital where they were each medically examined by consultant general and forensic paediatrician, Dr Maryanne Lobo. In summary, on examination there was no evidence of injury to the hymen of any of the three complainants, however in evidence Dr Lobo stated that damage to the hymen was not commonly seen and would only be observed in some cases of penile penetration where penetration occurs through the hymen into the vaginal canal, which extends from the hymen up to the uterus. In cases of penetration of the external genitalia, for example between the labial folds, injuries were not often found. She noted that examinations are generally offered ‘within two hours if the alleged assault or sexual activity on the child occurred within 72 hours of making a statement to the police’ and that ‘[a]fter 72 hours and — or — and increasingly over the next few days, injuries to the hymen and to the rest of the genitalia are not seen because the genitalia is a very vascular tissue and healing is very rapid.’ In the present case, the complainants were not seen within this timeframe.
The applicant was arrested on 14 January 2020. In his record of interview, he stated:
•The complainants regularly massaged his knee and back, usually in the bedroom or loungeroom.
•Sometimes he would get into the shower, as the children were getting out, to save water.
•He regularly ‘poked’ Jessica’s breasts and bottom which was a common thing to do in his household.
•He took photographs and filmed Jessica while she was having a bubble bath.
•The applicant otherwise denied all allegations of sexual misconduct.
The above is a bald summary of the evidence at trial. We shall descend into a more detailed analysis, should it be necessary, when considering the individual grounds of appeal.
Conviction appeal: Proposed ground 1
This proposed ground contends that the judge’s charge was deficient in that it failed to ‘direct the jury as required’ resulting in a substantial miscarriage of justice. This broadly drafted ground is meaningless without particularity.[8] That particularity has been provided in the applicant’s oral submissions and the applicant now contends that when giving directions in relation to general tendency evidence and the sexual interest tendency, the judge failed to give the mandatory directions required by s 27 of the Jury Directions Act 2015 (‘JDA’) and incorporated in [4.17.1] and [4.17.2][9] of the Criminal Charge Book (‘charge book’).
[8]The proposed ground was not drawn by counsel on this appeal.
[9]The applicant’s written submissions referenced [4.18.1] and [4.18.2] of the charge book, but this was clearly intended to refer to the directions on tendency evidence contained in [4.17.1] and [4.17.2], as discussed at the hearing of the application for leave to appeal.
Section 27 of the JDA provides as follows:
Direction on other misconduct evidence adduced by the prosecution
(1)Defence counsel may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution.
(2)In giving a direction referred to in subsection (1), the trial judge must—
(a)identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and
(b)if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and
(c)direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.
(3)In giving a direction referred to in subsection (1), the trial judge need not—
(a)explain further what the jury should consider in deciding whether to use the other misconduct evidence; or
(b)identify impermissible uses of the other misconduct evidence; or
(c)refer to any other matter.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.
In this multiple complainant case, appropriate model directions are found in [4.17.1] of the charge book. It is unnecessary to rehearse them in detail. The tendency alleged would be recited by the judge together with a summary of the parties’ arguments and an identification of the relevant evidence. The jury would then be directed as to the use to be made of the tendency evidence — namely that if the jury find that the accused had the relevant tendency, then they can use that to find that it is more likely that the accused committed the relevant offence or offences. The [4.17.1] model direction then suggests that the jury be charged as follows.
You must keep this evidence in perspective. It is only one part of the prosecution’s case.[10] It is not enough to convict the accused that you find [he/she] [identify the tendency evidence] or [identify the alleged tendency]. You can only find NOA guilty of a charge if you are satisfied of [his/her] guilt of that charge beyond reasonable doubt, based on the whole of the evidence.
As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing that [describe relevant tendency] and so is more likely to have committed the offence(s) charged. You must not use the evidence for any other purpose.[11]
[10]If the tendency evidence is the whole of the prosecution case, then this sentence should be omitted.
[11]Citations in original. Underlined emphasis added.
It is unnecessary to set out [4.17.2], which deals with a single complainant indictment. We note however that those suggested model directions also conclude with the same emphasised words as those in [4.17.1].
The applicant contended that the trial judge comprehensively failed to direct the jury in accordance with s 27 and thus failed to follow the model direction, in particular the emphasised paragraphs above. This, the applicant submitted, amounted to a substantial miscarriage of justice.
Consideration
Section 26 of the JDA defines ‘other misconduct evidence’ as coincidence evidence; tendency evidence; evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue (often called ‘uncharged acts’); or evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed.
Accordingly, in this case, ‘tendency evidence’ which includes both charged and uncharged acts and the ‘context evidence’ (which is the same evidence but relevant to context as opposed to a tendency purpose) constitutes ‘other misconduct evidence’ for the purposes of s 27 of the JDA.
In this case, the judge was requested pursuant to s 12 of the JDA to direct the jury in accordance with s 27, and was therefore obliged by s 14 to give the direction unless there were good reasons not to. There were no good reasons not to do so. It is common ground on the appeal that the judge was required to give these directions, and to a large extent failed to do so.
We have concluded that the jury in this case were not directed in accordance with s 27 in a number of respects. We shall set out the relevant portions of the judge’s charge.
So even if you do not think the accused man is telling the truth, but unsure where the truth lies, you must find him not guilty if you are unsure. In fact, even if you are convinced that his evidence is not true, it is not the case that you must convict him. In such circumstances, you should put his evidence to one side and ask yourself whether the prosecution have proved the [accused’s] guilt beyond reasonable doubt, on the basis of the evidence that you do accept, all right? Now as you know in this trial, [the] prosecution has brought nine charges against the accused. As I explained to you earlier, whilst these are separate matters, they are all being dealt with in the one trial for convenience. I want to remind you that you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately. It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge, that he must be guilty or not guilty as the case may be of another.
Each charge must be considered separately, in light only of the evidence which applies to it. You must ask yourselves in relation to each charge, whether the evidence relating to that charge has satisfied you beyond reasonable doubt, that the accused is guilty of that particular crime. If the answer is yes, then you should find him guilty of that charge. If the answer is no, then you find him not guilty of it. You will note that I said you must consider each charge in light only of the evidence which applies to it. This is because some of the evidence you have heard in this case, is only relevant to one charge or another.
If a particular piece of evidence is only relevant to the one charge, you may only use it when deciding whether or not the accused is guilty of that charge. You must not consider it in relation to any of the other charges. So in this case, one charge that is separate, if I can put it this way, is not sexual in its nature, it is the choking allegation, which is a common assault. The other charges are of a sexual nature and the prosecution says in this case that insofar as you can be satisfied that any of the charges are proven beyond reasonable doubt, that that evidence is then capable of showing a tendency of — on the part of the accused, together with what you find, as what it is called, uncharged acts, other acts that are said to have occurred some — for example, this occurred many times, more than ten or whatever it was.
If you are satisfied that those uncharged acts occurred, or if you are satisfied beyond reasonable doubt that any of these charged acts occurred, the prosecution say to you, this is evidence that shows that the accused has a particular state of mind, namely that he has a sexual interest in his daughters, [Jessica], [Hazel] and [Donna] and having that sexual interest, he is prepare[d] to act in a particular way, namely to act on his sexual interest by engaging in sexual activity with the complainants and is prepared to also to engage in sexual activity with the complainants (a) when [Helen], the wife, was absent from the home on a work trip or (b), at a time when [Helen] was asleep in a different room in the home or (c), in the presence of one another in the home.
And he was prepared to use his position as the complainant’s [sic] father to (a) sexually abuse them under the guise of giving him a cuddle or a massage or (b), have them sleep in bed with him, when [Helen] was absent from the home in order to engage in sexual activity with them. And there are — principally the prosecution says that once you are satisfied — that you will be satisfied individually, looking at the charges, the nine — sorry, the eight charges that relate to sexual matters, once you are satisfied that any or all of those are proved beyond reasonable doubt, you can use them in the way that I have just discussed to show a tendency.
They also rely on other uncharged acts, which were of a sexual nature, which were contained in the VARE interviews with respect to the various children. I will not go through them all at the moment because the prosecutor decided not to either, but there were a number of other instances given by the children, to the extent that this had been happening since kindergarten. So if you are satisfied, for example, that those — that evidence is true, it is capable of showing a tendency to act in a particular way.
…
Now, if I could just go back to the tendency evidence and I have already told you that the tendency evidence can be cross-admissible to demonstrate a sexual interest in the complainant and a willingness to act on that interest. If you find that [Mr Lee] had a sexual interest in any of the complainants and was willing to act on that interest, then you can use that to find that he was more likely that he committed any of the other seven offences in the case of the sexual offences. The prosecution also says that this evidence sets the scene in which the alleged offences took place. Without that evidence, there is a risk that each child’s evidence would be incomplete and may even be incomprehensible.
Section 27(2)(a)
Section 27(2)(a) has two limbs with which a judge must comply. The first limb requires identification to a jury of how the other misconduct evidence is relevant to a fact in issue or, in other words, how the evidence may be used. The second limb requires a direction to a jury that it must not use the evidence for any other purpose.
The jury were appropriately directed as to the use they may make of the tendency evidence in compliance with the first limb. The directions were clear and concise.
As to the second limb, however, the jury were not told at any stage not to use the evidence for any other purpose. Other misconduct evidence, including tendency evidence, is susceptible to significant misuse if juries are not strongly directed that they must not use the evidence other than for the purpose the judge directs.[12] Parliament has mandated that in this type of case, the jury must be directed on this issue, and we regard the failure to do so, in the context of the overall charge, as a significant omission.
Section 27(2)(b)
[12]That direction may, but need not, extend to identifying impermissible uses of the other misconduct evidence: JDA, s 27(3)(b).
The jury was also not informed in terms that the other misconduct evidence formed only part of the prosecution case against the accused. However, the judge’s other directions lead inexorably to that conclusion. It is our view that it would have been preferable to have framed a direction in the form proposed by the charge book, however given the judge’s other directions, we do not consider this omission to be significant.
Section 27(2)(c)
The jury were not directed in accordance with s 27(2)(c). The jury should have been directed that they must not decide the case ‘based on prejudice arising from what the jury heard about the accused’. In other words, the jury must not decide the case based on prejudice emanating from the other misconduct evidence. For reasons that we have already expressed in relation to s 27(2)(a), this also was an important direction, specifically referrable to the tendency evidence adduced against the applicant. The model direction in the charge book proposes an appropriate direction, which is contained in the second underlined passage quoted in para [26] of this judgment commencing with ‘As I have told you …’.
This direction is derived from s 27(2)(c) which is focussed on the potential vice in other misconduct evidence and is usually given with the direction about the limited use that can be made of this type of evidence. The closest any direction from the trial judge came to this type of direction was as follows:
As I told you, in doing this you must ignore all other considerations such as any feelings of sympathy or prejudice or disgust you may have for anyone involved in this case. You have got to look at this dispassionately and unemotionally, and the way to look at it is, if you were or any of your family were sitting in the dock, you would want the jury to look at it dispassionately and that is the test of our community and the strength of our community. It does not mean you do not have fortitude if you have got to decide tough things, but by the same token, you have got to have a blank canvas and you look at the evidence as it unfolds. So as judges you must dispassionately weigh the evidence logically and with open mind, not according to your passion or feelings and also at the start of the trial I told you, you must not base your decision on any information you may have obtained outside of the court room.
His Honour gave a similar direction in his opening remarks.
Whilst these directions are appropriate, in our view they are general directions and do not amount to compliance with s 27(2)(c), which requires a direction that is specifically referable both to the accused and to the other misconduct evidence.
We consider that the combined absence of directions required under s 27 as we have identified amounts to an irregularity or error in the trial. So much is conceded by the respondent to this application. Section 27 was introduced specifically to prevent the potential misuse of other misconduct evidence which carries with it, absent appropriate direction, the high risk of a jury embarking on impermissible reasoning to conviction.
The question then devolves to whether this irregularity is sufficient to constitute a substantial miscarriage of justice.
Substantial miscarriage of justice
This proposed ground of appeal is brought under s 276(1)(b) of the Criminal Procedure Act 2009. In order to succeed in this ground, the applicant must satisfy the Court that ‘as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.
Whilst there was no disagreement between the parties on whether there was an irregularity or error in the trial, the real dispute under this ground concerned the impact of the error. The applicant contended that: (a) the error may have affected the result of the trial; and that (b) the respondent had failed to establish that the convictions were inevitable. The respondent contended that the errors, in the full context of the judge’s directions, were of little significance, and thus the applicant had failed to satisfy the Court that the error may have affected the outcome of the trial and thus the ground must be rejected.
The parties’ approach to these submissions was drawn from the recent decision of this Court in Karam v The King (‘Karam’).[13] In that case, the Court considered appeals brought under s 276(1)(b), and how this Court ought deal with the task of determining whether an error or irregularity would constitute a substantial miscarriage of justice:[14]
[13][2023] VSCA 318 (‘Karam’).
[14]Ibid [211]–[216] (Beach, McLeish and Kennedy JJA).
In Baini, the majority made it clear that there is no single test to be applied in deciding whether there has been a serious miscarriage of justice. They said:
No single universally applicable description can be given for what is a ‘substantial miscarriage of justice’ for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Third, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a ‘substantial miscarriage of justice’ ultimately requires a judgment to be made.[15]
[15]Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (citations omitted) (emphasis added).
The second of these kinds of miscarriage appears to introduce an onus on the prosecution, albeit that the majority observed earlier that s 276(1) places the ultimate burden of persuasion on the appellant.[16] The judgment goes on to address the ‘possibility’ that the court might conclude that there has not been a substantial miscarriage of justice because the evidence required the conclusion that the appellant was guilty of the crime alleged.[17] The judgment seeks to explain that this was not to introduce a new onus, but rather to indicate a matter relevant to the question whether the appellant has established a substantial miscarriage of justice:
[16]Ibid 477 [18].
[17]Ibid 480 [28].
[C]ontrary to what the appellant’s submissions sometimes suggested, the possibility that the Court of Appeal may conclude that no ‘substantial miscarriage of justice’ occurred because a verdict of guilty, on the evidence properly admissible at trial, was inevitable neither reintroduces the proviso to the common form criminal appeal provision nor imposes on an appellant some onus of proving his or her innocence. To recognise that possibility does no more than acknowledge that the Court of Appeal’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been ‘a substantial miscarriage of justice’. The Court’s satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question posed by s 276(1)(b) and (c).[18]
[18]Ibid 480 [30] (emphasis in original).
The majority went on to say that an appellant would meet this point by showing no more than that, but for the error, the jury may have entertained a doubt as to the appellant’s guilt. It would ‘then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant’s conviction was inevitable’.[19]
[19]Ibid 481 [31].
The majority explained that in a case such as Baini itself, where the state of the evidence would have been different if the error had not been made, the fact that the result of the trial may have been different had the error not been made will mean that there has been a substantial miscarriage of justice.[20] In other words, an appellant must, having established an error or irregularity in or in relation to the trial, show that it may have affected the result of the trial. This will constitute a substantial miscarriage of justice. The majority does not suggest that the onus rests entirely on the respondent to the appeal to exclude the possibility of an effect on the outcome of the trial. The respondent may, however, choose to attempt to establish that conviction was inevitable in order to rebut the appellant’s case.
[20]Ibid 481 [32].
The majority summarised the position, again by reference to the error in Baini itself, as follows:
This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by encompassing, within the expression ‘substantial miscarriage of justice’, not only an error which possibly affected the result of the trial but also some departures from trial processes (sufficiently described for present purposes as ‘serious’ departures), whether or not the impact of the departure in issue can be determined. It also recognises that an accused’s guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a ‘substantial miscarriage of justice’ if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.[21]
It follows from the above that this Court is required to:
(a)determine whether the appellant has established an error in connection with the conviction under appeal;
(b)if so, determine whether that error is ‘fundamental’ or a ‘serious departure’ from proper trial processes, so as necessarily to have resulted in a substantial miscarriage of justice;
(c)if that has not been shown, determine whether the appellant has established that the error may have affected the result of the trial;
(d)if so, there will be a substantial miscarriage of justice unless the respondent establishes that the conviction was inevitable.
[21]Ibid 481–2 [33] (citations omitted). See also Bromley v The King [2023] HCA 42, [224] (Edelman and Steward JJ).
The Court then referred to the judgment of the High Court in Awad v The Queen[22] and continued:
Importantly, however, the analysis in Awad does not insist that an error be able to be described as ‘innocuous’ in order for the appeal to fail at the third step. Nothing in Baini or Awad purports to state a prescriptive test for the operation of s 276. That is a corollary of the fact that, as the majority in Baini observed, substantial miscarriages of justice take a wide range of forms. Moreover, the third step places the burden on the appellant. The question under the third step is therefore not whether the respondent can show that the error was innocuous, but whether the appellant can show that it could have affected the result of the trial.[23]
[22](2022) 275 CLR 421; [2022] HCA 36.
[23]Karam [2023] VSCA 318, [226] (Beach, McLeish and Kennedy JJA).
The resolution of this proposed ground turns therefore on our conclusion with respect to the issue raised in para (c) of the final paragraph quoted from Karam in para [45] above in circumstances where the Crown did not seek to suggest that the applicant’s convictions were inevitable.
We have concluded that the error could have affected the result of the trial — in other words the error had the capacity to affect the outcome. Section 27 is an important provision designed to deter the jury from impermissible reasoning paths. Evidence of ‘other misconduct’, that is evidence of misconduct that is not directly related to an offence that a jury is considering, is notoriously susceptible to impermissible reasoning. It is not drawing too long a bow to identify, in this sort of case, a risk that a jury, confronted with a large amount of other misconduct evidence, may reason that the accused committed the offence being considered because other allegations have been made against him or her, or that because the accused has sexually assaulted the complainant on some other occasion that is good enough proof that he or she assaulted that complainant or another complainant on another occasion.
In Hughes v The Queen, the High Court stated:
The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.[24]
[24](2017) 263 CLR 338, 349 [17] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
Section 27(2) was intended to create ‘the minimum, and sufficient’[25] requirements for jury directions aimed at preventing this kind of prejudice and follows recommendations made in the Simplification of Jury Directions Project Report.[26]
[25]Explanatory Memorandum, Jury Directions Bill 2015, 17.
[26]Victoria, Parliamentary Debates, Legislative Assembly, 18 March 2015, 679 (Martin Pakula, Attorney-General); M Weinberg et al, Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group (Report, August 2012) 180, 4.3.
It is clear that the judge directed the jury as to the relevance of the other misconduct evidence — ‘it can be cross-admissible to demonstrate a sexual interest in the complainant and a willingness to act on that interest. If you find that [the accused] had a sexual interest in any of the complainants and was willing to act on that interest, then you can use that to find that [it] was more likely that he committed any of the other seven offences, in the case of sexual offences’.
The judge was required at this stage to give the s 27 directions. Directions along the lines of those proposed in [4.17.1] of the charge book and underlined in para [26] of this judgment would have sufficed. Instead, there was nothing apart from general directions on bias and prejudice. Fortification for our conclusion that the risk of impermissible reasoning might have influenced the outcome, can be found in Judge Chambers’ tendency ruling in the present matter.[27] Her Honour, in evaluating the ‘prejudicial effect’ of the other misconduct evidence for the purposes of deciding whether to admit tendency evidence, moderated her conclusion on its impact by anticipating that the jury would be correctly directed as to the uses which it may and may not make of the evidence.[28]
[27]Judge Chambers was not the trial judge.
[28]DPP v [Lee], County Court of Victoria, Judge Chambers, 16 December 2021, [70].
We regard this as a strong prosecution case, however we are persuaded that the failure to give the requisite direction could have affected the outcome of the trial. Given that the Crown did not seek to show that the applicant’s convictions were inevitable, it follows that the applicant has established this proposed ground. Leave to appeal will be granted in respect of ground 1 and the appeal against conviction will be allowed.
Conviction appeal: Proposed ground 2
A tendency notice was served on the applicant pursuant to s 97(1)(a) of the Evidence Act 2008. In essence, that notice alleged that the applicant had a sexual interest in his three daughters and acted upon that interest by engaging in sexual activity with his daughters:
(i)when his wife was absent from home on a work trip; or
(ii)at a time when his wife was asleep in a different room in the home; or
(iii)in the presence of one another in the home.
The notice further alleged that the applicant used his position as the complainants’ father to:
(i)sexually abuse them under the guise of giving him a ‘cuddle’ or a ‘massage’; or
(ii)have them sleep in the bed with him when his wife was absent from the home in order to engage in sexual activity with them.
The evidence relied upon to establish the tendency was set out in a table attached to the notice. In substance, the proposed evidence of the three complainants, including evidence of the uncharged acts, was set out in the notice. The facts in issue to which tendency reasoning applied were said to be whether charges 1 to 9 and the uncharged acts occurred. It is sufficient for present purposes to state that the notice sets out the various allegations made by the complainants and referred to in paras [7] to [17] above, and various other uncharged acts of misconduct of a sexual nature.
The judge ruled that all the evidence identified in the notice, including the charged and uncharged acts, was admissible as tendency evidence save for the evidence of choking and smacking that underpinned Charge 5.[29]
[29]Ibid [74].
On the appeal, the applicant initially objected to the reception of all evidence relied upon as tendency evidence. In oral submissions, this was narrowed to the reception of evidence relating to the applicant allegedly filming his oldest daughter in a bubble bath. This was said on the written case to involve conduct that was ‘arguably commonplace and [lacking] probative value.’ In argument, the applicant contended that the judge made a factual error (the child was aged 11 and not 12) and, taking the incident at its highest for the prosecution, the event itself was not ‘unequivocally sexual’, and thus lacked probative value.
We disagree with these submissions. At its highest for the prosecution, the evidence disclosed that the applicant filmed his 11 year old daughter, Jessica, reclining naked in a bubble bath with her younger sister. Jessica described this incident in her VARE.
O.K., yep. And you said that that was three times he comes in nude and showers with you. And then the other times what — how many times would he come in and be watching you?
About five times he’s watched me and then one time he made a bubble bath for my sister and I and he’s just sat there on the floor recording that whole time. And I said I wanted to hop out and he said, ‘Seriously, all you’ve done is sit there. Do something else.’ So then he made me get up and play around with the bubbles, like, stand up, blow them everywhere so he could record it. He’s deleted the recording now, he deleted it, like, a year ago. And he made his background for about a month me playing with bubbles.
And did anyone else see that?
My — my sister [Donna] was in the bath with me - - -
The applicant was questioned by the police about it and admitted that he had filmed his daughter in the bubble bath, but denied that there was any sexual motivation to that act.
As highlighted by the respondent, there are features of this evidence which differentiate it from something that might be expected to occur as part of ‘normal family life.’ It went beyond filming a child playing in a bath. The applicant required his 11 year old daughter to stand up while she was naked so that he could film her. In our view, that evidence has significant probative value whether considered in isolation or in combination with other evidence in the case. We consider that the evidence powerfully supports the existence of the tendency alleged, and we can comfortably reject the competing ‘normal family life’ hypothesis. Further, that tendency is capable of strongly supporting the proposition that each sexual offence in fact occurred.
Proposed ground 2 must be rejected and leave to appeal is refused in respect of ground 2.
Conviction appeal: Proposed ground 3
This ground contends that, by determining to proceed to verdict with a jury of 10, the trial judge occasioned a substantial miscarriage of justice.
It is necessary to set out a little of the procedural history of the trial.
•Thursday, 31 March 2022 — a jury of 12 was empanelled.
•Monday, 4 April 2022 — the first jury was discharged.
•Tuesday, 5 April 2022 — a second jury of 12 was empanelled.
•Friday, 8 April 2022 — a juror was discharged suffering from COVID-19. The trial continued with 11 jurors. The defence consented to proceeding with 11 ‘provid[ed] none of them are symptomatic’. The Crown, upon enquiry from the judge, also indicated they were content to proceed with 11 jurors.
•Monday, 11 April 2022 — a further juror tested positive to COVID-19 and was sent home. After hearing submissions, the trial proceeded with 10 jurors, despite the objection of defence counsel.
The judge identified the problem as follows:
We’ve got another juror with symptoms who’s being tested, some — remotely, I assume. But even if that person is negative at the moment, they’ve got a sore throat and whatever, it may well be that they wouldn’t want — people wouldn’t want them sitting here in court waiting to infect the jury when they are positive tomorrow, sort of thing. So that’s the first problem.
After some other irrelevant discussion and a short adjournment, the following exchange occurred:
HIS HONOUR: Yes. All right, thank you. So that’s one thing out of the way. The late juror is here and the other juror has tested positive and has been sent home. So what do either of you say about proceeding with 10 jurors?
PROSECUTOR: Well, I’m happy to do that, Your Honour, but I suppose it might be advisable to ask the jury how they feel about it.
HIS HONOUR: Oh, yes, well, I think we’ll do that. Yes.
DEFENCE COUNSEL: Your Honour, I’m not happy. I have instructions that the jury should be discharged, regrettably.
HIS HONOUR: All right. Well, I’ve got the power to proceed with, I think that’s right.
DEFENCE COUNSEL: Yes.
PROSECUTOR: It is, yes.
HIS HONOUR: And it’s a discretion that I have to exercise judicially.
DEFENCE COUNSEL: Yes.
HIS HONOUR: So what are your submissions as to why I should discharge the jury rather than proceed with?
DEFENCE COUNSEL: Your Honour, in my submission, the jury will be distracted by this. They will have seen two of their members test positive. The fear is that they will abbreviate or curtail proper consideration of the case and the evidence and rush a decision, basically, Your Honour. That is the concern, apart from the fact that [Mr Lee] is entitled to a jury of 12 of his peers are to decide the matter, although Your Honour does have that power through Parliament.
HIS HONOUR: Well, Parliament has decreed that a jury of 10 is sufficient. I suppose - - -
DEFENCE COUNSEL: It’s - - -
HIS HONOUR: - - - he’s deprived — it’s obvious that he’s deprived of two chances of an acquittal.
DEFENCE COUNSEL: Yes.
HIS HONOUR: But, equally, the prosecution, you don’t consider their rights, I presume, so he’s deprived of two chances of either acquittal or persuasion of acquittal but Parliament has directed its mind to that. So the other reason, you say, is the risk of either distraction or acceleration of the process.
DEFENCE COUNSEL: Yes. Yes, exactly.
After further irrelevant discussion, the judge sought further submissions from counsel.
HIS HONOUR: So, [Prosecutor], in terms of what [Defence Counsel] says about the other matter, it seems to me, and I think you said before I should consult the jury about how they feel about proceeding — I suppose I’m just thinking aloud for the moment, I could say to them what’s their attitude about the current situation — so we’ve got another person with a sore throat now tested positive, and in terms of an accused person having a fair trial and be seen to have a fair trial, it’s important that this — if they were prepared to continue, it’s important that the process not be accelerated and it’s important that they concentrate - - -
PROSECUTOR: Yes.
HIS HONOUR: - - - and not be distracted. And then I could say to them, ‘Go outside and have a think about what I’ve said to you’.
PROSECUTOR: I think Your Honour should do that, yes.
HIS HONOUR: ‘And then come back and tell me whether you’re prepared to proceed with 10.’
PROSECUTOR: Yes.
HIS HONOUR: So [Defence Counsel] might say, ‘Well, they say that but how do we know that that’s right?’ Well, it’s really a question if one of them or more is uncomfortable, they’ll make that known and the foreman presumably could tell me that one or more is uncomfortable. ‘You will recall that any questions we have, you’re not to give me any voting how it’s gone’, but I think this is a bit different in the sense that if one or two are uncomfortable that - - -
PROSECUTOR: Well, I - - -
HIS HONOUR: - - - that dilutes the 10, doesn’t it?
THE PROSECUTOR: And I’d accept that if that’s the case, it shouldn’t proceed.
HIS HONOUR: Yes.
PROSECUTOR: If they tell you that.
HIS HONOUR: All right.
PROSECUTOR: I think that’s appropriate that Your Honour does discharge the jury then.
HIS HONOUR: All right. [Defence Counsel], what I’m disposed to do is to follow that process, see what the jury come back with and I will reserve the right to both of you to make any further short submission after that, depending on what they say.
Shortly before the remaining jurors were brought into court, the judge outlined the options open.
DEFENCE COUNSEL: Sorry, Your Honour.
HIS HONOUR: Oh, sorry, yes.
DEFENCE COUNSEL: If - before we hear what the jury have to say - - -
HIS HONOUR: Yes.
DEFENCE COUNSEL: - - - I just want it to be clear that I’m maintaining the application - - -
HIS HONOUR: Yes.
DEFENCE COUNSEL: - - - notwithstanding what the - - -
HIS HONOUR: Yes, I follow.
DEFENCE COUNSEL: - - - the decision is. Yes.
HIS HONOUR: Yes.
DEFENCE COUNSEL: Yes.
HIS HONOUR: Well, my understanding is that they are prepared to continue with 10 and I’ll bring them in to confirm that in a moment and we’ve got a new foreperson, 114, and I said that I would reserve the right to either of you to address me after we found out what their attitude is. So do you want to say anything further? You’ve told me that you maintain the objection.
DEFENCE COUNSEL: Yes.
HIS HONOUR: But do you want to add anything further?
DEFENCE COUNSEL: No, no, I don’t wish to add anything further to the - - -
HIS HONOUR: You don’t take any issue with the way I charge them about what they’ve got to consider, whether they are prepared to — you don’t want to make any further submission about that?
DEFENCE COUNSEL: No, Your Honour.
The jury then returned to the court. The following exchange occurred:
HIS HONOUR: Thank you, members of the jury. I take it you’ve elected a new foreperson. Sir, what’s your number, please?
JUROR: Ah, 114.
HIS HONOUR: Thank you, Mr 114. What’s the jury’s - - -
FOREPERSON: Yeah, unanimously we’ll continue.
HIS HONOUR: Unanimously. All right, thank you. Just excuse me for one second. Pursuant to s43(c) of the Juries Act 2000, juror No.81 is discharged from sitting on this jury due to his becoming ill. Pursuant to s44(1) of the Juries Act 2000, I direct that this trial continue with 10 jurors.
Against this background the applicant submits:
•The judge’s exercise of the discretion granted under s 44 of the Juries Act 2000 miscarried as a result of the judge approaching that exercise from the perspective that the trial should continue unless there was good reason not to do so.
•It has been made clear in Wu v The Queen (‘Wu’)[30] and Kennedy v The King (‘Kennedy’)[31] that, as a minimum requirement, there needs to be a positive or good reason to exercise the power to continue the trial after the discharge of a juror.
•Thus, the judge wrongly framed the question relevant to the exercise of the s 44 discretion in the reverse, seeking submissions ‘as to why [he] should discharge the jury rather than proceed with 10?’.
•This was no mere error of expression as the judge similarly did not advert to the correct test when discharging the first juror on the Friday, albeit that process took place by consent.
•Trial counsel for the defence identified two reasons that were said to weigh in favour of a discharge of the entire jury, namely:
(a)the applicant was statutorily entitled to trial by a jury of 12; and
(b)the jury could be distracted by another COVID related discharge, or otherwise curtailed in its deliberations by COVID related apprehensions.
•The judge wrongly dispensed with these concerns. It was incorrect to treat the fact that ‘parliament had directed its mind’ to the lost entitlement to 12 jurors as an answer to the first concern. The legislation empowered continuation, it did not endorse or assume it but provided for a discretion which had to be exercised depending on the circumstances of the particular case. As to the second concern, the judge wrongly treated the jury’s unanimous acquiescence to the continuation of the trial as a complete and final answer to that concern.
•No good reason to continue the trial was identified, let alone weighed in the proper exercise of the discretion against the reasons not to continue. Accordingly, the discretion was not exercised but instead the trial judge determined to continue with the trial because he was empowered to do so and did not see any reason not to.
[30](1999) 199 CLR 99, 108 [28] (McHugh J); [1999] HCA 52 (‘Wu’).
[31][2023] VSCA 86, [9]–[10] (Priest JA), [62]–[65] (McLeish and Kennedy JJA) (‘Kennedy’).
The respondent accepts that the trial judge did not correctly articulate the test in Wu and Kennedy before exercising the discretion. The respondent contends however that:
(a)the burden of proving that the wrong test was applied falls on the applicant; and
(b)in the context surrounding the exercise of the discretion, including his Honour’s acknowledgement that he had to consider the discretion judicially, an invitation to counsel for submissions on proceeding with less than 12 jurors, the ongoing trial, a COVID-19 outbreak in the community and significant court backlogs, it could not be said that the applicant had met that burden.
Consideration
Sections 43 and 44 of the Juries Act 2000 provide as follows:
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.
We have found it unnecessary to determine this proposed ground given our conclusions on proposed ground 1. We will, however, make certain observations about the issues raised by this proposed ground.
(a)Discharging a juror in a criminal trial is a significant matter. It is not the default position that, in the event of a discharge under s 43, the trial should proceed with 11 (or 10) jurors.[32]
(b)In Kennedy,[33] the joint reasons noted that the authorities were uncertain as to whether the common law ‘high degree of need test’ had any part to play in decisions made under s 44. The proper approach is to apply the words of the statute, consistently with Wu.[34]
(c)There must be some ‘positive’ or ‘good’ reason for permitting a trial to continue with less than 12 jurors.[35] This, however, is not in itself a test governing the exercise of the power under s 44. It is a minimum requirement.[36]
(d)In this case, it is unclear to us whether the judge approached the case with this minimum requirement in mind because his Honour did not state reasons for his decision to proceed with 10 jurors. Certainly, his Honour stated that he had a discretion, and some discussion was entertained as to factors relevant to that discretion such as whether the jury would be distracted by two of their original number testing positive to COVID; the applicant’s entitlement to a jury of 12; the effect of the diminution of the jury to 10 jurors; the fact that parliament has countenanced proceeding with a minimum of 10 jurors subject to the exercise of the s 44 discretion; and whether the jury felt comfortable with proceeding.
(e)The applicant bears the burden of persuasion on the ground — he must demonstrate that the judge failed to approach his task correctly.
[32]Wu (1999) 199 CLR 99, 108, [28] (McHugh J); [1999] HCA 52.
[33]Kennedy [2023] VSCA 86, [62] (McLeish and Kennedy JJA).
[34]The common law ‘high degree of need’ test is applied when determining an application for the discharge of a jury for some incident that may have occurred during or connected to a trial.
[35]Wu (1999) 199 CLR 99, 107 [25] (McHugh J); [1999] HCA 52; Kennedy [2023] VSCA 86, [9] (Priest JA), [71] (McLeish and Kennedy JJA).
[36]Kennedy [2023] VSCA 86, [65] (McLeish and Kennedy JJA).
Although there is a good deal of merit to the applicant’s submissions, the absence of reasons for the exercise of the s 44 discretion has inhibited the parties in arguing this proposed ground, and the Court in considering those arguments. In any event, given our conclusion on proposed ground 1, it is unnecessary for us to consider this matter further.
It would be remiss of us to overlook the very difficult conditions under which this trial was conducted in March and April 2022. Jury trials had recently recommenced in the County Court, another wave of COVID-19 was spreading through the community, there had been an unparalleled disruption to the business of the court and the backlog of criminal trials was enormous. Against this background, we can readily understand the decision of the experienced and careful trial judge to proceed with 10 jurors. It was an important factor in the mix of factors that bore upon the correct exercise of his discretion.
Conclusion
Leave to appeal will be granted with respect to proposed ground 1, the appeal will be allowed and the convictions (including for Charge 5) will be set aside. The Court will order a fresh trial on all charges.
It is unnecessary to consider the proposed appeal against sentence.
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