Males v The Queen - [2021] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0051

ANDREW MALES	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and EMERTON JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 May 2021
DATE OF JUDGMENT:	10 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 159
JUDGMENT APPEALED FROM:	DPP v Males (Unreported, County Court of Victoria, Judge Riddell, 11 May 2021)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Discharge of jury – Sexual offences – Alternative arrangements for giving evidence – Screen in court between complainant and accused – Complainant initially gave evidence behind screen – Change of arrangements – Complainant moved to remote facility – Judge refused application to discharge jury – Whether change of arrangements prejudicial – Available inferences – Jury likely to infer complainant in fear of accused – Significant risk of prejudice – Uncertain whether jury directions would avert prejudice – Risk to fairness of trial – Trial at early stage – Refusal of discharge application not reasonably open – Leave granted – Appeal allowed – Crofts v The Queen (1996) 186 CLR 427, R v Boland [1974] VR 849 considered – Criminal Procedure Act 2009 ss 360, 363–64.

CRIMINAL LAW – Appeal - Interlocutory appeal – Certification – Review of refusal to certify - Whether interlocutory decision ‘of sufficient importance to justify determination on interlocutory appeal’ – Judge satisfied decision of sufficient importance – No separate question concerning likely correctness of decision – Refusal to certify not reasonably open – Review application allowed – Director of Public Prosecutions v McDonald (2010) 26 VR 242, Stannard v Director of Public Prosecutions (2010) 28 VR 84 considered – Criminal Procedure Act 2009 s 295(3).

WORDS AND PHRASES – ‘of sufficient importance to justify determination on interlocutory appeal’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P A Chadwick QC with Ms K Rolfe	Robyn Greensill & Associates
For the Respondent	Dr N Rogers SC with Ms S Clancy	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
EMERTON JA:

Summary

The applicant is facing multiple charges of rape, threat to kill and intentionally causing injury. There are two complainants. His trial began in the County Court on 10 May 2021.

Because the applicant is charged with sexual offences, the provisions of div 4 of pt 8.2 of the Criminal Procedure Act 2009 (‘CPA’), concerning ‘Alternative arrangements for giving evidence’, are applicable to the trial. Under s 363 of the CPA, the trial judge was obliged to direct that the evidence of each of the complainants be given ‘from a place other than the courtroom’, unless the prosecution applied for the evidence to be given in the courtroom.

In this case, the prosecution applied under s 363(a) for the first complainant (‘K’) to give evidence in the courtroom. Before granting that application, her Honour had to be satisfied that K was aware of the right to give evidence outside the courtroom and, further, that she was able, and wished, to…

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 Males v The Queen

Details

AGLC: Males v The Queen [2021] VSCA 159
Case: [2021] VSCA 159
Decision Date: 10 June 2021

CaseChat Overview and Summary

The appellant appealed against a decision of the County Court of Victoria to refuse to discharge a jury on the basis that it was likely that the change of arrangements for the complainant to give evidence would prejudice the appellant. The appellant was charged with sexual offences against the complainant, and the case was heard in the County Court. The complainant initially gave evidence behind a screen, but the arrangements were changed so that she gave evidence from a remote facility. The appellant's application to discharge the jury was refused, and the appellant appealed to the Supreme Court of Victoria.

The legal issues before the court were whether the change of arrangements for the complainant to give evidence would be prejudicial to the appellant and whether the interlocutory decision was of sufficient importance to justify determination on interlocutory appeal. The court considered the risk to the fairness of the trial and the available inferences that the jury might draw from the change of arrangements. The court held that the change of arrangements carried a significant risk of prejudice, and it was uncertain whether the jury directions would avert that prejudice. The court also held that the judge was satisfied that the decision was of sufficient importance to justify determination on interlocutory appeal.

The court allowed the appeal and granted leave for the appeal to proceed. The court held that the refusal of the application to discharge the jury was not reasonably open because of the significant risk of prejudice to the appellant. The court also held that the judge's decision to certify the interlocutory decision was not reasonably open because it was of sufficient importance to justify determination on interlocutory appeal. The final orders of the court were that the appeal be allowed, the decision of the County Court be quashed, and the matter be remitted to the County Court for further proceedings.

This decision highlights the importance of ensuring that the fairness of a trial is not compromised by changes to the arrangements for a complainant to give evidence in a sexual offence case. It also underscores the need for judges to carefully consider the risk of prejudice to the accused when deciding whether to certify an interlocutory decision for appeal.

Orders