Miller (a pseudonym) v The King - [2025] VSCA 166

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0077

GABRIEL MILLER (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, KIDD and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2025
DATE OF JUDGMENT:	8 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 166
JUDGMENT APPEALED FROM:	DPP v Miller (a pseudonym) (Unreported, 11 August 2023, County Court of Victoria, Judge Doyle)

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CRIMINAL LAW – Appeal – Conviction – Rape and other offences – Application for extension of time – Whether the judge erred in taking a majority verdict – Whether judge gave a perseverance direction at the same time as a majority verdict direction – Extension of time refused.

Juries Act 2000, s 46(2); Jury Directions Act 2015, s 64B, s 64D.

Black v The Queen (1993) 179 CLR 44.

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Counsel
Applicant		Ms G Connelly SC with Ms A Balkin
Respondent		Ms K Hamill
Solicitors
Applicant	Giorgianni & Liang
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KIDD JA
KAYE JA:

Introduction

Throughout August 2023, the applicant faced trial in the County Court on an indictment that alleged against him one charge of rape[2] (charge 10), two charges of making a threat to kill[3] (charges 3 and 12), one charge of recklessly causing injury[4] (charge 8) and eight charges of common assault[5] (charges 1 and 2, 4 to 7, 9 and 11).
[2]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 18. The maximum penalty is five years’ imprisonment.
[5]Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, in the circumstances of this case, the maximum penalty is five years’ imprisonment. (See also s 320A.)
On 11 August 2023, the jury found the applicant guilty on four charges — three by unanimous verdict (rape – charge 10; making a threat to kill – charge 12; and common assault – charge 9) and one by majority verdict (common assault – charge 6).
The jury also found the applicant not guilty on eight charges — seven by unanimous verdict (common assault – charges 2, 4, 5, 7 and 11; making a threat to kill – charge 3; and recklessly causing injury – charge 8) and one by majority verdict (common assault – charge 1).
Hence, there were majority verdicts on two charges only (both of common assault): not guilty on charge 1, and guilty on charge 6. All other verdicts — whether guilty or not guilty — were unanimous. For convenience, the jury’s verdicts are reflected in the following table:

Charge

Guilty

Not Guilty

Unanimous

Majority

1

Common assault

ü

ü

2

Common…

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 Miller (a pseudonym) v The King

Details

AGLC: Miller (a pseudonym) v The King [2025] VSCA 166
Case: [2025] VSCA 166
Decision Date: 8 July 2025

CaseChat Overview and Summary

The appeal concerns the conviction of the appellant, referred to as Miller, for the offences of rape and others. Miller appealed to the court on two grounds: firstly, whether the trial judge made an error in allowing a majority verdict, and secondly, whether the judge erred by giving a direction concerning perseverance at the same time as the direction on a majority verdict. The appeal was also accompanied by an application for an extension of time. The court had to determine the validity of the appeal grounds and the application for an extension of time.

The court considered whether the trial judge erred in allowing a majority verdict in this case. The court examined the applicable legislation and relevant case law to determine if the judge's direction was appropriate. The court found that the judge did not err in allowing a majority verdict and that the direction was consistent with the requirements of the Juries Act 2000 and the Jury Directions Act 2015. Furthermore, the court found that the judge did not err in giving a direction concerning perseverance at the same time as the direction on a majority verdict, as the direction was not misleading and did not prejudice the appellant.

The court also considered the application for an extension of time. The court found that the application was not made within the appropriate time frame and that there were no exceptional circumstances to warrant an extension. The court held that the application for an extension of time was refused.

No orders were made in relation to the extension of time application. The appeal was dismissed.

Orders