Michael Aulsebrook v The Queen
[2019] VSCA 238
•25 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0175
| MICHAEL AULSEBROOK | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, NIALL AND WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 October 2019 |
| DATE OF JUDGMENT: | 25 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 238 |
| JUDGMENT APPEALED FROM: | DPP v Aulsebrook (Unreported, County Court of Victoria, Judge Wraight, 3 August 2018) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Historical offending – Jury deliberations extended over four days after two day trial – Jury directions – Majority verdict – Whether trial judge erred in failing to tell jury explicitly that they could be discharged without verdict – No error – No miscarriage of justice – Leave to appeal refused – Jury Directions Act 2015; Black v The Queen (1993) 179 CLR 44; Millar v the Queen [2003] WASCA 211 referred to.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood with Ms F Livingstone Clark | Galbally & O’Bryan Lawyers |
| For the Respondent | Mr P Bourke | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
NIALL JA
WEINBERG JA:
Introduction
In 2016, the applicant was convicted of one charge of rape by a jury in the County Court.[1] On 29 May 2017, this Court allowed an appeal against that conviction and ordered a retrial. On the retrial, with the exception of one very minor edit, a recording of the evidence adduced at the first trial was played to the jury. That did not take long. The jury were empanelled on 5 June 2018 and retired to commence their deliberations on 7 June 2018. Notwithstanding the brevity of the evidence, addresses and charge, the deliberations were relatively prolonged.
[1]In 2015, the applicant had pleaded guilty to three charges of indecent assault on a separate indictment.
After about 16 hours of deliberation extending over five sitting days,[2] the judge directed the jury that they could return a majority verdict. In giving that direction, the judge did not expressly tell the jury that he had the power to dismiss them without verdict if they were not able to return a majority verdict. The following morning, the jury returned a majority verdict of guilty.
[2]Not counting the morning on which verdict was delivered.
The single issue in this application for leave to appeal against conviction is whether there has been a substantial miscarriage of justice because of the judge’s failure, when directing the jury that they could return a majority verdict, to inform the jury that he had the power to dismiss them without a verdict being reached.
For the reasons that follow, there was no miscarriage of justice and we would refuse the application for leave to appeal against conviction.
The facts
The below summary of the facts has been drawn from the reasons of this Court on appeal from the first trial.[3] As noted above, the evidence given and recorded during the first trial was played to the jury in the retrial, subject to one minor edit.
[3]Hudson (a pseudonym) v The Queen [2017] VSCA 122 [4]–[19].
The Crown case
The applicant was a priest teaching at a school, in 1988. In 1988, the applicant was aged 32 years. The complainant in respect of the rape charge, CK, came to the school in 1988 as a boarding student, and slept in a dormitory that was close to the applicant’s office. In 1988, CK was a year 7 student.
The Crown case relied primarily on the evidence of CK. At trial, the Crown alleged that in the middle of the first half of the year (1988), the applicant invited CK to come to his office after lights out to play computer games. That evening, CK waited half an hour after lights out and, at 10:00 pm, made his way to the applicant’s office. CK knocked on the applicant’s door and went in. The applicant was sitting at his desk at the computer. CK closed the door and sat down at the computer and started playing Space Invaders. CK played Space Invaders for about 15 minutes, while the applicant sat beside him. There was soft drink on the desk (Fanta). The applicant asked CK whether he wanted to have a drink of Fanta. CK replied that he would love one, and then drank it. CK’s evidence at trial as to what happened next was ‘I must have got dizzy and I woke up on the floor … and he was molesting me’.
The Crown case (in conformity with CK’s evidence) was that when CK woke up on the floor, the applicant had him pinned to the ground and the applicant ‘was moving backwards and forwards with his penis in my backside’. CK described being in the foetal position on his left side, with his pants down to his knees, and with the applicant having one hand on CK’s head and one hand on his right leg. The force being used by the applicant was described by CK as ‘strong’ while the applicant was moving ‘backwards and forwards in me’.
CK described being in excruciating pain in his backside, and telling the applicant to stop. CK felt the applicant ejaculate, and then the applicant said ‘Get out of my sight. You disgust me’. CK left the applicant’s office, went to his locker, grabbed some cigarettes, and hid on the roof of the school for a couple of hours smoking cigarettes.
Some weeks later, the applicant asked CK to again come to his office to play computer games. CK refused.
The evidence at the first trial
At trial, the Crown called CK and four other witnesses: CK’s mother, BK; CK’s grandfather, FD; and two police officers, Detective Sergeant Bradley Marks and Detective Acting Senior Sergeant Haydn Beale. The applicant did not give evidence and no other evidence was called on his behalf.
CK gave evidence that he was raped by the applicant in the circumstances we have already described. He said that the applicant’s office was 15 to 20 metres from the door of the dormitory in which he, and 30 or 40 boys in total, slept. He also gave evidence that directly opposite the door of the applicant’s office were toilets that students could come and go freely from.
In cross-examination, CK said that when he woke up and experienced the excruciating pain in his backside, he screamed. He said that he screamed for the applicant to stop and screamed for help.
CK also gave evidence of having behavioural issues in 1988 that resulted in him being expelled from the school. In cross-examination he agreed that he had trouble in his primary schooling and that he had behavioural issues at that time. CK also gave evidence of having been on an antipsychotic medication (Mellaril); of suffering from frontal lobe epilepsy; and of abusing alcohol and drugs. CK admitted to having smoked a lot of marijuana and having had some speed and ecstasy, and also having taken Valium, Serepax and painkillers at various times. CK admitted in cross-examination to subsequently having developed symptoms of schizophrenia, and suffering from a drug-induced psychosis where he would hear voices and talk to people who were not there. CK gave evidence that he was ultimately diagnosed and medicated for those problems, and that he remained on medication at the time of trial.
CK was cross-examined about an account he had given of being raped at the school by another teacher, Father RQ, prior to the rape he alleged against the applicant. It was put to CK that he had originally described the circumstances of being raped by Father RQ in very similar terms to those described by him in respect of the applicant. Specifically, CK had previously alleged that he had been raped in Father RQ’s office in the following circumstances. Father RQ asked CK to attend his office after lights out. CK attended Father RQ’s office at 10:00 pm. Upon entering the office, Father RQ asked him whether he wanted to play Space Invaders or Pac-Man. CK chose Pac-Man, and then played that game for around 20 minutes or so before being offered a soft drink. At trial, CK said the soft drink was lemonade, but it was put to him that he had previously said it was Fanta. Although the inconsistency between the type of soft drink does not appear to have been resolved, CK said he drank the soft drink straight down; he passed out or fell asleep; he woke up in the foetal position; he was on the floor right next to the computer desk, lying on his left side; he had a large amount of pain in his bottom; the priest was over him and had his penis in CK’s bottom, and the priest was moving backwards and forwards; he was in agony and screaming in pain and telling the priest to stop; he could not move because the priest was on top of him; he felt the priest ejaculate inside his bottom and the priest then climbed off him; he (CK) got up and ran straight out of the office, while the priest was yelling at him to come back and tried to grab him as he ran away.
Ultimately, it was put to CK in cross-examination that it was at least possible that the rape he described as having been committed by the applicant was a rape that was in fact committed by Father RQ. CK admitted that the rapes ‘happened the same way’, but rejected the suggestion that the applicant never in fact raped him.
In re-examination, the judge, having received a question from the jury, asked the following:
[CK], after the experience you had with [RQ]?---Yes.
When [the applicant] asked you to come around and play computers and then raped you, were you scared to go to [the applicant] when he asked you about - to go to play computers as well? And the same thing?---No. I was innocent.
The same thing — he — did it cross your mind it was the same thing as what [RQ] had said to you, 10 o’clock at night?---No.
All right. Were you afraid or hesitant about [the applicant]?---No.
CK’s mother, BK, gave evidence. In summary, BK gave evidence that CK had some learning difficulties with reading and writing, and struggled with his concentration at primary school. CK was diagnosed with right temporal lobe epilepsy. For secondary school, the family decided boarding school would be a ‘great option’ for him.
CK’s grandfather, FD, gave evidence that CK told him that he had been raped twice. FD’s evidence was that CK made this disclosure when CK was 13 or 14 and after he had left the school. FD gave evidence that if he was told the names of the people who raped CK then he had forgotten their names.
Detective Sergeant Marks gave evidence that he took a statement from CK in August 2011. CK gave a description of the applicant that ‘he looked a bit like Jesus’. However, Detective Marks accepted that a photograph of the applicant in the 1988 school year book did not bear any real resemblance to Jesus.
Detective Acting Senior Sergeant Beale was the informant. Detective Beale interviewed the applicant in a record of interview conducted in August 2012. In the record of interview, the applicant admitted to ‘vaguely’ recalling CK, but denied as ‘absolute rubbish’ CK’s allegations. Detective Beale also gave evidence that in the 1988 and earlier school yearbooks that he obtained, the applicant ‘never looked like Jesus’.
The judge’s direction
The jury were empanelled at approximately 11:30 am on 5 June 2018. The evidence from the first trial was played to the jury on the afternoon of 5 June 2018 and on the following day. The playing of that evidence, and the tendering of a small number of exhibits, including a statement of agreed facts, was completed at approximately 3:30 pm on 6 June 2018. The jury asked some questions about the evidence which were answered by the judge, or addressed in the final address by the prosecutor. Final addresses commenced on the afternoon of 6 June 2018 and continued the next day, after which the judge commenced his charge to the jury.
During his charge, the judge directed the jury, in unexceptionable terms, that the verdict of guilty or not guilty must be unanimous. The judge indicated that, in some circumstances, a majority verdict may be permitted but that ‘this case is not yet one of those cases and may never be’ and that he would tell them if that changed.
The judge’s charge was completed at about 2:40 pm on 7 June 2018, at which time the jury retired to consider their verdict. At 2:50 pm the following day, Friday 8 June 2018, after the jury had been deliberating for just under five hours, the jury gave a written note to the judge stating that ‘after the deliberations we have come to the conclusion that we are unlikely to come to a unanimous decision.’ The prosecutor and defence counsel submitted to the judge that the jury should be encouraged to keep going and that a full perseverance direction was not necessary at that stage. Accordingly, the judge addressed the jury, encouraging them to keep working. The judge noted that the jury had asked for all of the evidence. At 4:15 pm on 8 June 2018, the jury were sent away until the morning of Tuesday 12 June 2018, noting that the Monday was a public holiday.
On the morning of 12 June 2018, the judge indicated to the parties that he would wait and see what transpired, but if the jury came back that morning and said that they could not progress he would ‘go straight to majority rather than anything else’. The jury deliberated until 4:00 pm, when they were sent away until the following morning. The jury deliberated all day on 13 June 2018 and the morning of 14 June 2018.
On the afternoon of 14 June 2018, after one half day[4] and three full days[5] of deliberation, the jury asked for guidance as to the next stage of the process where there was no hope of a unanimous decision. Specifically, they asked two questions: ‘What is the process where there is no hope of a unanimous decision?’ and ‘What is the standard for a majority decision?’
[4]7 June 2018.
[5]8 June, 12 June and 13 June 2018.
In response to those questions, the applicant applied for the jury to be discharged. The judge refused that application. His Honour explained that the jury still appeared to be deliberating, they had asked for all of the evidence, they had not come back with a question or complaint and the judge thought that the jury were ‘smart enough to know that if they were stuck’, they would have said so. The judge indicated that he did not think the jury were under some misapprehension that they were not allowed to go home until they reached a majority verdict. In the circumstances, he refused to discharge the jury without giving them at least the first step of considering whether they might reach a verdict by majority.
The judge then gave the jury the following direction:
I’ve received your notes, one just prior to lunch and one just now, and you’ve informed me that you are curious about the next stage of the process specifically in relation to majority verdicts. Clearly you’ve been working away very hard at your task, but I think we have reached that stage where I’ll explain to you that process and it may mean you’re able to progress a bit further.
I say after the time you’ve spent I’m satisfied you should now be allowed to give a majority verdict. This means that if you cannot all agree on a verdict I will accept a verdict that is agreed upon by 11 of you. Now, I don’t know where you’re at and I don’t want you to tell me. It might mean that that decision is fairly quick if the division is unable to be resolved by the majority verdict that I’ve just told you, but in our system of jury trials a majority verdict doesn’t mean one more than the rest it means 11 of you not 12.
So I’ll ask you to return to your jury room and continue. It may be that you’re able to make that decision quickly. If you need more time, if you think that direction that I’ve given you will assist you in coming to a decision, then as I say you can keep going.
I’ve been informed that one of you is needing to go by about three. If you haven’t come to a decision or a decision that you can’t come to a decision by then, then I’ll just let you go and come back again tomorrow at ten and continue on now in the context of my direction to you that you can bring in a majority verdict of 11 of you agreeing one way or the other. All right, make sense? Thank you.
The jury then returned to their deliberations. At about 9:03 am on 15 June 2018, the applicant’s counsel emailed the judge’s associate, indicating that she wished to raise a matter with the judge and asking that the Court reconvene at 10:30 am that day. As things transpired, before that could occur, the jury indicated they had reached a verdict. That morning, at 10:03 am, the judge indicated to the parties his understanding that a verdict had been reached. The judge noted that counsel had intended to raise something, to which counsel replied that ‘it was just a matter I wanted to raise about the directions that were given yesterday, but it’s a moot point now given that we have a verdict, so it doesn’t need to be raised’. The judge replied that he did not think anything could be done about that.
His Honour then called for the jury and proceeded to take the verdict.
The relevant legislation
Section 46 of the Juries Act 2000 provides that if, after deliberating for a period of time that the court thinks is reasonable, having regard to the nature and complexity of the trial, a jury in a criminal trial is unable to agree on its verdict or has not reached a unanimous verdict, the court may discharge the jury or take a majority verdict as the verdict of the jury.[6]
[6]The power to take a majority verdict is subject to s 46(4) of the Juries Act 2000, which contains some presently irrelevant exceptions.
Section 64B of the Jury Directions Act 2015 (‘the Act’) provides that the trial judge must not direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction. Section 64C of the Act provides that the trial judge may give a majority verdict direction to the jury whether or not the trial judge has previously directed the jury to persevere to reach a unanimous verdict.
The Criminal Charge Book
The Victorian Criminal Charge Book (‘Charge Book’) provides the following majority verdict direction to be given when a judge has exercised their discretion to allow a majority verdict, and no perseverance direction has been given:
I have been told that you have not yet been able to reach a verdict. Although I have the power to dismiss you without a verdict having been reached, I should only do this if I am satisfied that you will not be able to agree on a verdict even if you are given more time for discussion. I am not yet satisfied that this is the case.
However, I am satisfied that you should now be allowed to give a majority verdict. This means that if you cannot all agree on a verdict, I will accept a verdict that is agreed upon by eleven [10 or 9] of you.
Please return to the jury room and consult with one another. Express your own views. Listen carefully to the views of others [sic] jurors. Discuss your differences with an open mind. Calmly weigh up each other’s opinions about the evidence, and test them by discussion.
If eleven of the twelve [10/11 or 9/10] of you — reach agreement on a verdict, then you can decide to return a majority verdict.[7]
[7]Judicial College of Victoria, Victorian Criminal Charge Book, ‘Charge: Majority Verdict Allowed — No Perseverance Direction’, presently numbered [3.13.2].
Parties’ submissions
The applicant submitted that the jury was not directed that they could be discharged without a verdict having been reached. He submitted that the direction that they could return a majority verdict left the impression that the only alternative to a unanimous verdict was a majority verdict. This was in circumstances where, he submitted, the proper verdict might have been no verdict at all.
Accordingly, the applicant submitted that the judge’s failure to direct the jury on 14 June 2018 that he had the power to dismiss them without a verdict having been reached, gave rise to a substantial miscarriage of justice, and the conviction ought to be quashed. The applicant emphasised that this was so in circumstances where the evidence was heard in less than two days; there was only one charge before the jury; the issues to be determined were not complicated; the jury had indicated, on the second day of its deliberations, that they were unlikely to reach a unanimous decision; the jury had indicated after another three days of deliberations, that there was no hope of a unanimous decision; the jury was not directly told that one possible outcome of them performing their duty to the court was that they might not be able to agree on a verdict; the jury had not previously received a Black v The Queen[8] direction, in which they would have been told that the judge had the power to dismiss them; and there is no proper basis on which to presume that, notwithstanding the lack of direction, the jury understood that it could be discharged without having reached a verdict.
[8](1993) 179 CLR 44 (‘Black’).
In the course of oral submissions, the applicant said that the relevant question is whether the failure by the judge to advert to the option of the discharge of the jury gave rise to the impermissible risk of pressure to compromise the jury’s verdict.[9] It was submitted that the judge was bound to answer the two questions asked by the jury on the afternoon of 14 June 2018 and the fact that the jury asked those questions made it necessary to advise the jury that, in addition to a majority verdict, an option would be for the Court to discharge the jury without verdict.
[9]Millar v The Queen [2003] WASCA 211 (‘Millar’).
The applicant submitted, correctly, that the failure to express the charge in the same terms as set out in the Charge Book did not of itself amount to error.[10]
[10]Benbrika v The Queen (2010) 29 VR 593; the Act s 6.
The respondent submitted that it is clear from the transcript that the judge approached the task as a ‘two step procedure’, being a majority verdict direction to be later followed by a discharge. Accordingly, the respondent submitted that the conviction returned by majority is not reflective of error.
Consideration
The cardinal principle is that a jury must be free to deliberate without any pressure being imposed upon them, whether by way of promise, threat or otherwise.[11]
[11]Black (1993) 179 CLR 44, 50 (Mason CJ, Brennan, Dawson and McHugh JJ).
At common law, where it appears that a jury is encountering difficulty in reaching a unanimous verdict, a direction may be given to reinforce to the members of the jury that each juror has a duty to give a verdict according to the evidence, but also reminding the jurors that they should listen to the views of other members of the jury, weigh them objectively, and that an individual juror can change his or her mind if honestly persuaded that his or her preliminary view is not well founded.[12]
[12]Ibid 51.
Informed by those general precepts, the High Court in Black formulated a suggested direction. It is not necessary to set out that direction in full here. Relevantly, it provides that the judge should commence by telling the jury that the judge has the power to discharge the jury from giving a verdict, but should only do so if satisfied that there is no likelihood of genuine agreement being reached after further deliberation.
Those words reinforce to the jury that the process of deliberation is not interminable. The purpose of the direction is to encourage jurors to persevere in order to see whether a unanimous verdict can be reached, without placing undue pressure on them to compromise their verdict.
However, in the circumstances, the judge was not persuaded that the jury deliberations were at the point that required a perseverance direction. Plainly, he was of the view that the deliberations could progress further, but with the possibility of returning a majority verdict.
In that respect, the judge approached the matter in stages. First, in his charge to the jury, he told them that the verdict had to be unanimous. Secondly, in answer to an inquiry from the jury as to what might happen if the jury are unlikely to come to a unanimous decision, and with the concurrence of the parties, the judge simply encouraged the parties to keep working through the evidence. Thirdly, when the jury had asked the two questions about the process where there is no hope of a unanimous decision and the standard for a majority decision, the judge informed them that he would take a majority verdict.
It is clear that the judge was of the view that it was not then necessary to advise the jury expressly of the option for a discharge. He did not do so because he did not believe, based on his observations of the jury including the questions they had asked, that they were under some misapprehension they were not allowed to go home until they reached a verdict.
In his direction to the jury informing them of the ability to return a majority verdict, the judge expressly said that he would explain the process involved and that it may mean the jury would be able to progress a bit further. Having indicated the capacity to reach a majority verdict, he said that this ‘might mean that the decision is fairly quick if the division is unable to be resolved by the majority verdict’. This was a clear intimation to the jury that the process might come to an end in the event that the jury were unable to reach a majority verdict. Although it was not exactly the same as the formulation used in the Charge Book, its import was tolerably clear, namely, that if they were unable to reach a majority verdict they could tell the judge and the process would come to an end. Even if the jury had not understood the direction in that way, it is too great a leap to infer that they would have regarded themselves as under pressure to reach a verdict regardless of their own views of the matter.
There is no reason to suppose that the jury might have been left with the impression that they were duty-bound to come to a majority verdict or that they were to remain until they did. In our view, there is no foundation for the proposition, which the applicant must make good, that the members of the jury were under an impermissible risk of pressure to compromise their verdict.
The contrast of the facts of the present case with the facts of the decision of the Court of Criminal Appeal of Western Australia in Millar,[13] on which the applicant relied, is instructive. In that case, on the third and final day of the trial the jury retired to consider their verdict at about 3:10 pm. At 6:27 pm, the Court reconvened and the jury informed the judge that they were unable to reach a unanimous decision and that this was very unlikely to change. The judge encouraged the jury to continue their deliberations.
[13][2003] WASCA 211.
At 7:03 pm, the judge enquired of the jury whether they were likely to return a unanimous verdict. The foreman informed the judge that this was very unlikely. The judge then gave a direction indicating that they could arrive at their verdict by majority.
At about 7:47 pm, after further deliberation, the Court was again reconvened and the judge enquired of the jury whether there was any chance of reaching a unanimous or majority verdict in relation to any of the counts on the indictment. The foreman then told the judge that it was very unlikely, but there had been a slight change since the previous time the Court was reconvened. The following exchange occurred:
JUDGE:Do you — sorry, I will start again. Is there any chance, do you think, of reaching a unanimous or majority verdict in relation to any of the counts on the indictment?
FOREMAN:It’s very unlikely, but there has been a slight change since the last time we were in.
JUDGE:Then do you wish to have more time to continue considering your verdicts?
FOREMAN:I would like to know if there’s another option.
JUDGE:No, there’s no other option.
FOREMAN:We’ll need more time, then, I’m afraid.
Justice McKechnie held that the foreman’s question and the judge’s response gave rise to a perceptible risk of miscarriage of justice.[14] His Honour said that while it may not have been incumbent on the judge to advise the jury of the possibility of discharge prior to that point, it became necessary to then give the jury all available options.[15] It was relevant that the jury returned a verdict only 24 minutes after being told by the judge that there was no other option.
[14]Ibid [40].
[15]Ibid [41].
Justice Steytler agreed with McKechnie J, observing that the failure to tell the jury of the option of a discharge gave rise to a real danger that the jury might have felt pressured to reach a verdict.[16] Justice Anderson also agreed, observing that the time had come to give the Black direction with a view to discharging the jury soon after if that step proved unproductive.[17]
[16]Ibid [8].
[17]Ibid [2].
The reasoning in that case provides no support for the applicant’s contention that the judge was required to advise the jury of the possibility of a discharge at the same time as informing them of the entitlement to reach majority verdict. Indeed, the decision stands for the contrary. None of the judges in Millar suggested that the trial judge was required to inform the jury of the opportunity for discharge at the same time as giving the majority verdict direction. Nor did they suggest that prior to the question from the jury about the existence of other options, there was any obligation on the trial judge to advise of the possibility of a discharge.
In the present case, there was no obligation on the part of the judge to mention the potential for discharge of the jury at the same time as informing them of the opportunity for a majority verdict.
Further, we do not accept the applicant’s submission that the judge failed to answer the questions asked by the jury. In relation to the first question, the judge explained the next stage of the process, namely, that a majority verdict could be returned. The judge did not suggest, nor could it reasonably be inferred, that the judge was describing the only option that was, or might become, available. Plainly, his direction left open the possibility that the jury might not be able to reach a majority verdict.
It is clear that the judge understood the question about ‘the standard for a majority decision’, as an inquiry as to the numbers that would be required in a majority verdict. In answer to that question, the judge told the jury that in order to return a majority verdict, 11 of the jurors would be required to agree. That was a reasonable interpretation of the question and the correct answer to it. If, by their question, the jury were seeking to elicit some other information which the judge had failed to provide, then, it is inconceivable, given their willingness to ask questions, that the jury would not have raised it further with the judge.
It follows that there has been no miscarriage of justice and the application for leave to appeal against conviction should be refused.
Before leaving this matter, there is one further issue that should be mentioned. It is clear that, before the verdict was returned, counsel for the applicant wished to raise a matter with the judge in relation to the majority verdict direction. Between the sending of that email and the reconvening of the Court, the jury advised that they were ready to return a verdict. At that point, counsel indicated that the matter that she had intended to raise had become moot.
In our view, the judge ought to have asked counsel to identify the matter she sought to raise and delayed taking the verdict until that had occurred. This would have enabled to the parties to consider what, if any, action should be taken before the return of the verdict. Until the verdict was entered, it remained open to the judge, if the circumstances warranted it, to provide any further directions to the jury as may be required. It was preferable for the matter to be identified and, if necessary, addressed, rather than simply proceed to verdict. Nonetheless, the judge’s failure to adopt that course did not give rise to a substantial miscarriage of justice.
The order of the Court will be that leave to appeal against conviction is refused.
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