Mark Van Der Zant v The Queen
[2016] VSCA 138
•15 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0158
| MARK VAN DER ZANT | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 June 2016 |
| DATE OF JUDGMENT: | 15 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 138 |
| JUDGMENT APPEALED FROM: | R v Van Der Zant (Unreported, County Court of Victoria, Judge Murphy, 29 May 2015 (Conviction)) |
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CRIMINAL LAW — Appeal — Conviction — Rape — Jury deadlocked — Judge’s redirection introduced concepts of powers of self-control of an ordinary man and the jury’s application of community values — Directions fundamentally misleading — Directions occasioned a substantial miscarriage of justice — Appeal allowed — New trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC | Lethbridges |
| For the Crown | Ms F Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA
MCLEISH JA:
Introduction
A jury empanelled in the County Court found the appellant guilty of rape[1] on 29 May 2015.
[1]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.
On 23 February 2016, Osborn JA granted the appellant leave to appeal against conviction on the following ground:
The learned trial judge erred in his directions to the jury which were given to the jury at 5:23 pm on Wednesday 27 May, 2015 in response to a note from the jury which stated that the jury was ‘still a hung jury with no foreseeable resolution’, with the consequence that there has been a substantial miscarriage of justice.
For the reasons that follow, the appeal must be allowed.
The issues and the evidence
There were two principal issues in the trial: first, whether the complainant had consented to sexual penetration; and, secondly, if she had not consented, whether the appellant was aware that she was not consenting or might not be consenting; or had not given any thought to whether she was not or might not have been consenting.[2] In brief summary, the evidence bearing on those issues was as follows.
[2]So far as relevant, s 38(2) of the Crimes Act 1958 provided:
(2) A person commits rape if—
(a) he or she intentionally sexually penetrates another person without that person’s consent —
(i) while being aware that the person is not consenting or might not be consenting; or
(ii) while not giving any thought to whether the person is not consenting or might not be consenting; …
‘TH’, the complainant, worked as a receptionist in the hotel industry in Melbourne. She was aged 20 years. The appellant, aged 42 years, was employed in a Sydney-based marketing role by a large online payment processing company. He was in Melbourne on a work trip.
During the evening of 10 July 2013, TH attended a work function at a large hotel in the Docklands area. There were a number of fellow staff members at the function. In the course of the evening, TH consumed a considerable quantity of alcohol.
As the gathering was breaking up, TH was with two fellow employees — ‘KR’, an older female aged 36 years, and ‘Bianca’, a female aged in her late 20s. When TH and her companions moved to the bar to order further drinks, eye contact was made with the appellant and two of his work colleagues, Jonathan Kelly and Pierre Finette. The appellant and his colleagues bought drinks for TH and her companions, and they all joined each other at the same table. TH was feeling intoxicated. In the course of conversation, little was exchanged between TH and the appellant. There was, however, interaction between KR and the appellant, KR acknowledging in her evidence some attraction to him. Indeed, at one stage the two kissed in the female toilet.
When the bar closed in the early hours of the morning, TH was extremely intoxicated, and there was discussion amongst the group as to whether she was in a fit state to be sent home by taxi. The consensus was that she was unable to be sent home in the state that she was in, and so it was agreed that the group would move to a hotel room so that the complainant could ‘sober up’.
The group then went to Mr Kelly’s room. CCTV evidence showed that TH effectively had to be carried into and out of the lift to be taken to the room. Once in the room, she vomited and was attended to by the other two women. At that point the room became ‘somewhat uninhabitable’, and it was agreed that the appellant, Mr Kelly and the three females would go to the appellant’s room on another floor. Once more TH had to be assisted. CCTV footage confirmed that the group arrived at the appellant’s hotel room at about 1.41am. (Mr Finette was not then part of the group.) Upon arrival, TH again vomited. She was placed on the floor, asleep. Mr Kelly and Bianca left the room at around 2.00am.
After Mr Kelly and Bianca left, the appellant and KR had sexual intercourse for a short period. They stopped since KR felt uncomfortable having a fellow worker present. They had placed TH on the bed, where she remained in a drunken sleep. The appellant and KR then also went to sleep.
CCTV footage showed KR leaving the room at about 3.58am. Her evidence was that she woke up and decided to go to the lobby to hail a taxi for TH. Since she was unable to re-access the floor, however, she went home to her bayside unit.
TH gave evidence that she recalled vomiting in one room and being carried to a second room. The next recollection she had was of waking up in the bed, where her upper clothes had been removed and her bra was hanging on one of her arms, her pants had been pulled down to her ankles, and the appellant was touching her in the genital area. TH said that the appellant placed her hand on his penis. She took her hand away. The appellant then rolled on top of her and had intercourse with her (this being the foundation of the charge of rape). TH said that the appellant held each of her arms above her head by the wrist. She recalled the appellant asking her whether he could ejaculate or not. He subsequently ejaculated on her stomach. She described feeling drunk at the time. TH said that she was trying to say something, but could not say anything or react to what was going on. She gave evidence that she felt sick, in shock and ill in the stomach. TH denied saying or doing anything to indicate that she agreed to intercourse with the appellant.
The appellant gave evidence. On his account, TH was a willing participant and had assisted in removing her clothes. He conceded, however, that TH had not said anything during intercourse. The appellant said that he subsequently offered TH a towel. He also made an offer for her to stay in his room and to call a taxi.
CCTV footage shows TH leaving the appellant’s room at about 4.21am. She then contacted her mother and KR by text. TH then went to KR’s bayside unit, where she was picked up by her mother and taken to police.
The impugned directions and their context
The jury were empanelled on 19 May 2015. On Tuesday, 26 May 2015, the judge delivered his charge to the jury. They retired that day at 1.29pm.
The next day, on Wednesday, 27 May 2015, at 2.31pm, the judge announced that he had received a note from the jury. He told counsel:
I received a note from the jury. The jury cannot come to a unanimous decision. ‘After watching the evidence, reading transcripts, we are at a “stalemate”. Can you explain what reasonable doubt is’.
After discussion with counsel, the judge directed further as to reasonable doubt. No complaint is made about those directions. The judge went on, however, to say:[3]
[3]Emphasis added. The paragraphs have been numbered for ease of reference.
[1] Next, you’ve told me, Madam Foreman, members of the jury, that you’ve been unable to reach a verdict.
[2] I have the power to dismiss you without a verdict having been reached but I should only do this if I am satisfied you would not be able to agree on a verdict, even if you are given more time for a discussion. You’ve been at it for about six hours now, as we calculate, including, as I understand, you worked over lunch. So I am not satisfied that you’ve worked for long enough for me to just discharge you. I am not satisfied also that you are at a point where I could ask for a majority verdict, a verdict of 11 to one of you. So you must all still agree on a verdict of guilty or not guilty and your decision must be unanimous. That is what I said to you yesterday.
[3] What I am going to urge you to do is to return to the jury room and try to resolve your differences. Experiences show that juries can often agree if given more time to consider and discuss the issues, particularly now that I have elaborated or explained to you what reasonable doubt – answered your question on reasonable doubt.
[4] Each of you has affirmed or sworn that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you're expected to judge the evidence fairly and honestly in that light.
[5] You also have a duty to listen carefully and with an open mind to the views of every other juror. You should calmly weigh up each other's opinions about the evidence and test them by discussion. Calm and rational discussion of the evidence often leads to a better understanding of the differences of opinion which juries may have.
[6] This discussion may convince you that your original opinion was wrong.
[7] That said, you must always reach your own decision according to your own view of the evidence.
[8] If, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with their conclusions, then you should not change your mind simply to reach a unanimous verdict.
[9] Indeed, you must not agree to a verdict if you do not honestly and genuinely think that it is a correct one. To do that would be to breach your duty to this court.
[10] As I have said earlier, experience has shown that often juries are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries, who come back with a question like yours, to re-examine the matters that they disagree about and make a further attempt to reach a verdict.
[11] That’s what I am asking you to do, to make a further attempt to reach a unanimous verdict.
[12] I just want to read something to you and indicate how one High Court judge has recently talked about juries. I was going to read it to you when you brought in your verdict but I will read it to you now because you're struggling.
‘A reasonable jury is by no means a perfect jury. It is 12 ordinary men and woman who, between them, are likely to embody most of the scruples, doubts, insecurities and predilections which are discoverable in one place or another across the broad range of an increasingly pluralist society.
Subject to very limited exceptions, it is the immutable right of an accused to be accorded the full benefit of any reasonable doubt which those influences might yield him or her.’
[13] So, a reasonable jury is by no means a perfect jury. You’re all 12 of you come from a variety of backgrounds and I am asking you to go back in there, go around the table again, listen to each other and attempt to come to a unanimous verdict.
[14] So I am going to ask Mr Tipstaff to perhaps take you for a quick walk. Go to the corner of Flagstaff Gardens and look at the garden, or something. It’s a lovely day outside. Just to freshen up and then have another crack at it because it’s important that you do your best. The accused has got a lot of investment in this case, the prosecution has got a lot of investment. If you can’t come to a unanimous verdict, the matter’s got to come back to another trial.
[15] So you’re not to give up your individual views but you've got to honestly try and get to a resolution of the matter.
[16] As I said, you must always reach your own decisions according to your own view of the evidence. If, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with their conclusions, then you shouldn’t change your mind simply to reach a unanimous verdict. Indeed you must not agree to a verdict if you do not honestly and genuinely think that it is the correct one. To do that would be a breach of your duty to this court.
[17] But experience has shown, in the end, if juries are given more time to consider and discuss the matter, they can reach verdicts, unanimous verdicts. And that’s why judges – I do it. I had a recent case. I did the same thing. They were in the same position as you. I sent the jury – gave them another lecture and so that’s what I am asking you to do, members of the jury. I know you’ll do it to the best of your abilities and so I’d ask you to continue your deliberations. Thank you.
We pause to note that much of what the judge said conformed to the model ‘perseverance’ direction set out in the joint judgment in Black.[4] That said, save, perhaps for the last sentence of [12], the directions at [12] and [13] were largely irrelevant. (We are not sure that we understand what, if anything, the judge intended to convey by these observations, although, viewed in isolation, they probably did little or no harm.) Furthermore, the directions contained in the final two sentences of [14] were irrelevant, and apt to introduce notions best avoided.[5] Moreover, the judge said that he read the quote from a High Court judge to the jury because they were ‘struggling’. It is not perspicuous to us, however, how the quoted observations might have assisted a struggling jury. The applicant does not, however, seek directly to impugn these directions.
[4]Black v The Queen (1993) 179 CLR 44, 51–2 (Mason CJ, Brennan, Dawson and McHugh JJ).
[5]Ibid 50. See also R v Accused [1988] 2 NZLR 46, 58 (Cooke P, Richardson, McMullin, Somers, Casey, Bisson and Hardie Boys JJ); R v Yuill (1994) 34 NSWLR 179, 184–5 (Hunt CJ at CL, Abadee J and Simpson J).
Following these directions, the jury again retired at 2.57pm.
Later that day, the jury sent another note. At 5.03pm the judge returned to the bench. He said:
I’ve received a note from the jury. ‘We are still a hung jury with no foreseeable resolution. I have my aunt’s funeral at 10 am tomorrow’. That’s from the forelady. It sounds as though a majority verdict’s not going to help them, a majority verdict direction acceptance.
After brief discussion between the prosecutor and judge, counsel for the appellant asked for the jury to be discharged. Counsel submitted that the judge had earlier given a full perseverance direction, yet the jury expressed themselves as still being ‘hung with no foreseeable resolution’. The judge responded by saying that he ‘wouldn’t discharge them now’, adding that he would ‘give them a majority, ask them to give a majority [verdict]’. He said that the ‘other option would be to call in the forewoman, clarify whether she could – what time the funeral finished and whether she would think she could get back here tomorrow at one o'clock, and send them home until then’. Otherwise, the court could adjourn until Friday (it being Wednesday). After taking brief instructions, counsel for the appellant submitted that the jury would need to be given a majority verdict direction.
The judge sent a note to the jury at 5.15pm. it read:
Madam Forelady, would you be able to resume at some later time tomorrow, after funeral and, if so, what time? Answer yes, no. If yes, what is a convenient time?
At 5.21pm, the judge came onto the bench and advised counsel:[6]
The answer’s no. So I think I'll bring them in and send them away until Friday. What about a majority verdict? It sounds as though majority verdict’s not going to get anywhere so I’ll just say, look, we have a day’s break. This happens all the time. Resume Friday and give it another crack.
[6]Emphasis added.
Thereafter, at 5.23pm, the trial judge gave the jury a quite extraordinary set of directions, which are the subject-matter of the ground of appeal:[7]
[7]Emphasis added. The paragraphs have been numbered for ease of reference.
[1] Madam Forelady, members of the jury, I’ve received a further note from you saying, ‘We are still a hung jury with no foreseeable resolution’, and then indication of you have a funeral at 10am tomorrow and then a further request to indicate whether it would be possible for you to resume after the funeral.
[2] These things happen. You look as though you’re wrung out after a day’s consideration. The quote I read you from the latest High Court judge about the role of the jury rings true.
[3] One of the things he said was an argument about whether provocation should be dealt with by a jury or by the judge, what a reasonable man or woman would do in response to provocation which might reduce murder to manslaughter and this is what was in the High Court two weeks ago, and there was an argument about whether it should be decided by the judge or by a jury. So the jury applies community values.
[4] The judge said in the paragraph before the one I read out to you before, about the objective test, ‘It is necessary to keep in mind that the policy of using the judge is to limit the defence of provocation to what a reasonable jury might consider to be a standard of the minimum powers of self-control of an ordinary person’. This is about a homosexual advance and whether it justified the accused stabbing the victim 50 times, and he claimed provocation, homosexual advance.
[5] The judge said after that, ‘So it is necessary to keep in mind the policies to limit the defence of provocation to what a reasonable jury might consider to be the standard of the minimum powers of self-control of an ordinary person. It is not what academics, the press, pressure groups or judges might hope or wish were the minimum powers of self-control in an ordinary person. Under our system of criminal law it is the jury, as representatives of the community, who are entrusted to embody and apply community standards’.[8]
[6] Then he said, ‘Whether an ordinary man would lose control is a question exclusively for the jury however much a court (that’s a judge) might be inclined to think that a jury should not do so’.
[7] So you’re entrusted with the values of the community. Parliament has said you’ve got to decide whether the accused or the prosecution have proved the case beyond reasonable doubt.
[8] One of you has got to go to a funeral tomorrow. So you’ve been at it for eight hours and I know you’ve tried. I am going to ask you to give one more crack at it at 10 o’clock on Friday morning so I am going to give you a day off tomorrow, retail therapy, or whatever, go back to work, and then I’d ask you to come back on Friday morning to reassemble at 10 o’clock and give you some further directions and then ask you to have one more go at trying to sort your differences out and reach a unanimous verdict.
[9] So thank you for the day and we’ll see you Friday morning at 10 o’clock and no discussing the case with people, too, as I’ve said to you.
[8]It is apparent that this is drawn from Lindsay v The Queen (2015) 255 CLR 272, 300 [82] (Nettle J).
These directions are puzzling. What they were meant to convey is baffling. Having read them a number of times, we are unable to fathom what their intended purpose might have been given the issues for the jury’s determination. What were the jury to make of them? But not only were the directions Delphic, in part they were wrong. Thus to instruct the jury (at [7]) that, ‘Parliament has said you’ve got to decide whether the accused or the prosecution have proved the case beyond reasonable doubt’, is erroneous, since it inverts the onus of proof.
It seems to us that the directions introduced at least the following notions:
· the quote from the High Court judge earlier read — including that a reasonable jury is by no means a perfect jury — ‘rings true’ (at [2]);
· the response of a ‘reasonable man or woman’ to provocation (vis-à-vis murder and manslaughter) should be dealt with by a jury applying ‘community standards’ (at [3]);
· there is a policy of using the judge to limit the defence of provocation ‘to what a reasonable jury might consider to be a standard of the minimum powers of self-control of an ordinary person’ (at [4], [5]);
· the jury ‘embody and apply community standards’ in determining ‘the minimum powers of self-control in an ordinary person’ (at [5]);
· ‘whether an ordinary man would lose control is a question exclusively for the jury’ (at [6]); and
· in deciding whether an ordinary man would lose control the jury was ‘entrusted with the values of the community’ (at [7]).
Unsurprisingly, counsel for the appellant was moved to submit:
With respect, Your Honour, I’m not sure what any of that was about. This is a jury that’s obviously tired and not agreeing and talking about the High Court and homosexuality and provocation and murder and manslaughter, in my submission, is entirely unhelpful.
In the morning of the following Friday, 29 May 2015, counsel for the appellant sought a discharge of the jury. Among other submissions, counsel advanced the following:
… I have an application to discharge this jury. In my submission there is a high degree of necessity and it is based largely on what Your Honour said to them on Wednesday afternoon shortly after 5 pm.
…
In my submission, Your Honour has introduced concepts that play no part in this trial. It is confusing and dangerous, especially, Your Honour, the concept of the reasonable man that the jury applies community values and community standards, the concept of the objective test, the concept of what a reasonable jury might consider to be the standard of the minimum powers of self-control of the ordinary person.
Pausing there, Your Honour. Remember, the prosecution effectively closed on the basis that my client was somehow sexually frustrated or left sexually unsatisfied by [KR] and because of this, effectively forced himself on the complainant.
And also, Your Honour, telling the jury that they are entrusted to embody and apply community standards. You’re entrusted with the values of the community.
In my submission there is little and no relevant difference between a moral and a value. The morals of the community or the values of the community. I have been at pains, Your Honour, to explain to this jury that this is not a court of morals.
It is very, very easy for this jury to sit in moral judgment on [the appellant] …
…
They are already disagreeing and under pressure. In my submission they have been bombarded with inappropriate concepts. They have effectively, on one view, been told to make a moral judgment and it is not, in my submission, in any way fixable.
…
It wasn’t a direction of law, as I understand it. I’m not entirely sure how it would be categorised but it’s a comment referencing a High Court authority on the back of a direction of beyond reasonable doubt which referenced the same High Court authority. In my submission, in all the circumstances, this jury needs to be discharged as a result of that, particularly in circumstances where they are disagreeing and they have already asked what beyond reasonable doubt means and Your Honour answered that and, in doing so, referenced to the same High Court decision.
…
The judge refused to discharge the jury; but at 10.45am, he gave a majority verdict direction (about which no complaint is made). In the course of giving that direction, he said:[9]
I remind you that the onus of proof, from start to finish, remains on the prosecution. You must be satisfied the accused man is guilty of the charge beyond reasonable doubt. The accused man doesn’t have to prove anything and you must apply the law as I directed you in my directions.
I made some comments about another case and read you something on Wednesday. They were just pure comments, had nothing to do with this case. You’ve got to decide the case on the law that I instructed you about and on the evidence you’ve heard in this case.
[9]Emphasis added.
After these remarks, the jury again retired at 10.52am. A majority verdict of guilty was returned at 12.25pm.
Submissions of the parties
The appellant submitted, first, that the impugned directions introduced matters which were wholly irrelevant to the jury’s determination of the issues. Concepts such as the reasonable man, the ordinary person, the minimum powers of self-control of an ordinary person and the circumstances in which an ordinary man would lose control, were simply irrelevant to the jury’s decision-making.
Secondly, the appellant contended that the directions introduced notions which invited impermissible reasoning. It was the appellant’s subjective state of mind which was in issue. To introduce the concept of the reasonable man or the ordinary person had the potential to distort the proper approach to that issue.
Thirdly, it was submitted that to invoke any consideration of the powers of self-control of the ordinary person was to introduce a concept which was immaterial to a proper determination of the appellant’s subjective state of mind.
Fourthly, the appellant argued that the jury were invited to apply community standards and values in performing their task. The directions were an invitation to use and apply what the community — that is, the individual jurors — regarded as proper, right, ideal or appropriate in determining the issues.
Fifthly, the appellant contended that the directions, in part, reversed the onus of proof.
Sixthly, there is a substantial risk that in evaluating the evidence and in determining the issues in a manner adverse to the appellant, jurors took into account what they considered to be proper, right, ideal or appropriate, such matters being irrelevant to their determination of the issues.
The appellant contended that, since the redirection telling the jury that the judge’s remarks were ‘pure comments’ having ‘nothing to do with this case’, were given some 36 hours after the impugned directions had been given, it is likely that during the intervening period the jury’s contemplation of the issues was illegitimately influenced by the manifold irrelevant considerations that had been introduced by the impugned directions. It was submitted that the vice occasioned by the directions was incurable.
In response, the respondent submitted that, in the context of this case and given the matters at issue, although the judge’s remarks — characterised as ‘comments’ — were irrelevant, they could not have misled the jury in relation to the two key issues. At worst, so the respondent contended, the trial judge made ‘unhelpful or irrelevant comments to the jury which, following redirection, presented no risk of confusing the jury as to the key issues in the case’. Moreover, in the context of the trial and the charge as a whole, the comments made as to the jury’s role — that ‘the jury applies community values’ and ‘are representatives of the community, who are entrusted to embody and apply community standards’ — did not present a risk that the jurors took into account moral judgments (or similar). The jury had been told by both counsel, and by the judge, that it was not ‘a court of morals’. It was argued that it could not sensibly be said that ‘one instance of irrelevant commentary from the judge’ — described in oral argument as a ‘frolic’ and ‘ill-advised’ — could undermine other clear directions as to the jury’s task. There was no risk that the jury engaged in impermissible reasoning as a result of the impugned comments. Finally, it was submitted that, though the comments were ill-advised, there had been no substantial miscarriage of justice.[10]
[10]Counsel cited Baini v The Queen (2012) 246 CLR 469; Baini v The Queen (No 2) (2013) 42 VR 608; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Crocker v The Queen (2013) 39 VR 668; and Andelman v The Queen (2013) 38 VR 659.
Analysis
The fundamental task of the judge in a criminal trial is to ensure a fair trial of the accused.[11] In so doing, the judge is required to instruct the jury about so much of the law as they need to know to dispose of the issues in the case.[12] Moreover, any comment on the facts that the judge chooses to make must be balanced, and designed to assist the jury in deciding the issues. As was observed in RPS:[13]
… The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. … In some cases it will require the judge to warn the jury about how they should not reason …
But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.
[11]RPS v The Queen (2000) 199 CLR 620, 637 [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ) (‘RPS’). Although it is customary to speak of a ‘fair trial’, in Jago v District Court (NSW) (1989) 168 CLR 23, 57–8, Deane J suggested that: ‘What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial’.
[12]Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ). See also Jury Directions Act 2015, ss 5(2) and 5(4), s 65.
[13]RPS, 637 [41]–[42] (footnotes omitted).
Thus, although a judge in a criminal trial must direct on the applicable law, he or she may comment on the facts. However, a right to comment on the facts — the ‘safer course’ being not to do so — does not give the judge carte blanche to descend into the abstract.
In his charge, the judge gave the conventional direction that, ‘while you have got to follow any directions I give you about the law you are not bound by any comments I might have made about the case or any comments about the facts’. It is against that background that the judge gave the impugned directions.
As we have mentioned, the respondent contends that the judge’s remarks were ‘comments’, and would have been understood as such by the jury. We do not accept that submission. As far as we can discern, the impugned remarks did not directly address any factual issue. So much would have been obvious to the jury. Moreover, they were not identified as mere comments at the time that they were delivered. Thus, in our opinion, there is a palpable risk that the jury would have regarded the impugned remarks as binding directions of law.[14] Indeed, we think it highly likely that the jury treated them as such. But no matter whether the impugned remarks are characterised as directions of law or as mere comments, given the context in which they were made, the jury undoubtedly would have understood the remarks to have been made for their guidance and so as to help them to reach a verdict.
[14]See R v MWL (2002) 137 A Crim R 282, 284–5 [9]–[10] (Buchanan JA).
The respondent submitted that ‘irrelevant judicial comment’ could not have affected the verdict, and placed a deal of reliance on the fact that, after discharge of the jury had been sought, the judge told the jury that the impugned directions were ‘just pure comments’ which ‘had nothing to do with this case’. That redirection, of course, begs the question: if they had ‘nothing to do with this case’, why were they made in the first place, particularly in circumstances in which the jury were encountering difficulty in reaching a verdict?
Whether properly characterised as directions or comments, however, the statements were extremely problematic. Objectively viewed, at best the remarks might be regarded simply as unhelpful. But they were made with the authority of the judge’s office behind them. In our opinion, it is likely that the jury considered them and reflected upon them for the day or more that intervened until they were withdrawn. And, given the deference the jury might be expected to have afforded any direction or comment emanating from the judge, it is also likely that the jury would have endeavoured to ascribe some meaning to them and to have applied them in their contemplation of the issues.
As the redirection apparently acknowledges, the judge by then accepted that the impugned remarks were irrelevant to the jury’s task. He told the jury they were ‘just pure comments’ that ‘had nothing to do with this case’. They had been made, however, in circumstances in which the jury had encountered difficulty in reaching a verdict, the central issues in the case being consent and the appellant’s belief in consent. The directions or comments dwelt at length upon notions of the reasonable man and the ordinary person, and on a reasonable jury applying community values to an objective test of the ordinary person and the minimum powers of self-control of an ordinary person. In our opinion, the significant vice attending the remarks is that the jury may well have understood them as an invitation to reach a verdict by applying a broad judgment as to whether the appellant’s actions accorded with community standards or values. We do not ignore the fact that the jury had earlier been told correctly that the trial did not involve ‘a court of morals’. But those earlier correct directions were, we think, overwhelmed by the impugned directions, which the jury would have understood as having been given to help them resolve their deadlock.
In light of these matters, there is a significant risk that they jury were fundamentally misled as to the proper approach to the task that confronted them. The conviction cannot be permitted to stand.
We note finally that in the respondent’s written case it was submitted that notwithstanding the ‘irrelevant judicial comment’, conviction was inevitable. It is probably enough to say that the course of the jury’s deliberations renders that submission wholly unrealistic. In any event, as we understood her oral submissions, counsel for the respondent conceded that, should we conclude — as we have — that the jury would have understood the impugned directions to go beyond mere irrelevant comment, she could no longer maintain that conviction was inevitable.
Conclusion
For the foregoing reasons, there has been a substantial miscarriage of justice. The conviction must be quashed and a new trial ordered.
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