| 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…
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- AGLC
- Miller (a pseudonym) v The King [2025] VSCA 166
- Case
- [2025] VSCA 166
- Decision Date
CaseChat Overview and Summary
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.
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