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LLW v The Queen

LLW v The Queen

Case [2012] VSCA 54 4 April 2012

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0021

L L W	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG JA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 February 2012
DATE OF ORDERS	6 February 2012
DATE OF PUBLICATION OF REASONS	4 April 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 54
JUDGMENT APPEALED FROM	DPP v [L L W] (Unreported, County Court of Victoria, Judge Cotterell, 28 January 2011)

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CRIMINAL LAW – Trial – Alternative verdicts – Jury required to acquit on principal count before delivering verdict on alternative count – No restriction on jury’s consideration of alternative counts before verdict – Offence of sexual penetration of child under 16 not statutory alternative to offence of rape – Whether general rule applies – Crimes Act 1958 ss 38, 45, 425(1), Criminal Procedure Act 2009 s 239(1) – Stanton v The Queen (2003) 77 ALJR 1151 applied.

CRIMINAL LAW – Conviction – Appellant charged with multiple counts of rape and ‘paired’ counts of sexual penetration of child under 16 – Sexual penetration counts laid as alternatives – Uncertainty on part of judge and counsel as to whether acquittal required on primary count before delivery of verdict on alternative count – Jury’s apparent misunderstanding of judge’s directions – Appellant convicted on one count of rape only – Crown’s concession that trial miscarried – Appeal allowed – Judgment and verdict of acquittal entered.

CRIMINAL LAW – Juries – Majority verdicts — Disclosure of majorities – Jury provided judge with note setting out voting breakdown in relation to each count – Counsel informed by judge of contents but without revealing numbers contained therein – Jury previously informed judge that unanimous verdict reached on alternative count but deadlocked on others – Jury note indicated that position had changed and jury now deadlocked on all counts – Crown invited judge to give majority verdict direction – Judge initially refused but subsequently (after having seen note) agreed to do so – Crown sought discharge of jury – Whether denial of procedural fairness by judge’s failure to advise counsel of precise contents of jury’s note – Whether miscarriage of justice by judge’s failure to discharge jury without verdict after she received information as to votes cast by jury in course of deliberations – M J R v the Queen [2011] VSCA 374 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P G Nash QC with Mr S Anger	Doogue O’Connor
For the Respondent	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA

WILLIAMS AJA:

Summary

This appeal concerns alternative verdicts. More particularly, it concerns a trial which miscarried because a jury misunderstood what was required of them in adjudicating on alternative counts. What follows is a summary of our conclusions.

There are two principal classes of case in which a jury may deliver an alternative verdict. The first is where allegations in the indictment ‘amount to or…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading LLW v The Queen

Details

AGLC: LLW v The Queen [2012] VSCA 54
Case: [2012] VSCA 54
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the case of LLW v The Queen, the appellant, LLW, was convicted on one count of rape, following a trial in which he was also charged with multiple counts of rape and sexual penetration of a child under 16. The appellant appealed against his conviction, arguing that the trial was miscarried due to several procedural errors made by the trial judge. The legal issues before the court included whether the jury was required to acquit on the principal count before delivering a verdict on the alternative count, and whether the judge’s failure to disclose the precise contents of the jury’s note to counsel resulted in a miscarriage of justice.

The court found that the jury was not required to acquit on the principal count before delivering a verdict on the alternative count, and that the general rule applied to statutory alternatives did not extend to the offence of sexual penetration of a child under 16. The court also found that the judge’s failure to disclose the precise contents of the jury’s note to counsel did not result in a miscarriage of justice, as the jury had reached a unanimous verdict on the alternative count, and the judge’s decision to give a majority verdict direction was not an abuse of discretion.

The court held that the trial miscarried due to the Crown’s concession, and allowed the appeal. The court entered a judgment and verdict of acquittal on all counts, and quashed the conviction on the count of rape. The court noted that the jury’s apparent misunderstanding of the judge’s directions and the judge’s failure to discharge the jury without a verdict after receiving information as to the votes cast by the jury in the course of deliberations did not amount to a miscarriage of justice in this case.

Orders