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…
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- AGLC
- Males v The Queen [2021] VSCA 159
- Case
- [2021] VSCA 159
- Decision Date
CaseChat Overview and Summary
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.
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Background
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