MJR v R

Case [2011] VSCA 374 22 November 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0251

MJR
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, WEINBERG and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARINGS:	19 October 2011 (Mention) and 24 October 2011
DATE OF JUDGMENT:	22 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 374
JUDGMENT APPEALED FROM:	The Queen v [MJR] (Unreported, County Court of Victoria, Judge Gamble, 19 July 2010)

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CRIMINAL LAW – Conviction – Incest – Indecent act with a child aged under 16 – Whether denial of procedural fairness by judge’s failure to advise counsel of precise contents of jury’s note – Whether miscarriage of justice by judge’s failure to discharge jury without verdict after he received information as to votes cast by jury in course of its deliberation – Whether verdicts on some counts unsafe and unsatisfactory – Appeal allowed – New trial ordered.

Sections 46, 78(2) and (3), Juries Act 2000.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D C Hallowes	James Dowsley & Associates
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

MJR (‘the appellant’) was found guilty by majority verdict after trial in the County Court of two counts of incest (Counts 7 and 9) and one count of indecent act with a child aged under 16 (Count 6). The jury could not agree on its verdict on six other counts (four of incest and two of indecent act).

Following conviction, the appellant was sentenced to terms of imprisonment which, with cumulation, produced a total effective sentence of 7 years’ imprisonment. The judge fixed a non-parole period of 4 years and 6 months.

Grounds of appeal

Now, by leave, the appellant appeals against conviction. Leave was granted on the following grounds:

Ground 1:A miscarriage of justice resulted from the learned trial judge’s failure to discharge the jury following an indication by a juror they were being harassed into giving a verdict.
Ground 2:The guilty verdicts on counts 6, 7 and 9 are unsafe and unsatisfactory having regard to the jury being unable to reach a verdict on counts 5 and 8.

Not long before the appeal was fixed for hearing, this Court was apprised of circumstances concerning the jury’s deliberations which it made known to the parties. The appellant then applied for leave to rely upon these additional grounds:

Ground 3:The trial miscarried because the applicant was denied natural justice by the failure of the learned trial judge to advise trial counsel of the contents of a note provided to the learned trial judge by the jury.
Ground 4:A miscarriage of justice resulted from the failure of the trial judge to discharge the jury without verdict when he received information as to votes cast by the jury in the course of their deliberation.

The Court granted the leave sought.

Circumstances

This was the appellant’s third trial. On two earlier occasions, a jury had been unable to agree on a verdict on any count,…

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 MJR v R

Details

AGLC: M J R v The Queen [2011] VSCA 374
Case: [2011] VSCA 374
Decision Date: 22 November 2011

CaseChat Overview and Summary

The appellant, MJR, appealed against his conviction for several offences of incest and indecent acts with a child aged under 16. The case was heard in the High Court of Australia. MJR's appeal raised several issues, primarily focused on whether the trial judge had breached procedural fairness by not disclosing the contents of a jury note to counsel and whether there was a miscarriage of justice by the judge's failure to discharge the jury without a verdict after learning of the votes cast during their deliberations. The appeal also challenged the safety and satisfaction of the verdicts on some counts.

The court considered whether the trial judge's failure to inform counsel of the contents of a note from the jury amounted to a breach of procedural fairness. It also assessed whether the judge's handling of the jury's votes during deliberation led to a miscarriage of justice, thereby warranting a new trial. Furthermore, the court scrutinised the safety and satisfaction of the verdicts on specific counts. The court concluded that the failure to disclose the jury note's contents did not breach procedural fairness. However, the judge's handling of the jury votes did constitute a miscarriage of justice. The court also found that the verdicts on some counts were unsafe and unsatisfactory.

The High Court allowed the appeal and ordered a new trial. The reasoning centred on the judge's failure to address the jury votes correctly, which significantly impacted the fairness of the trial. The court did not find it necessary to delve into the other grounds of appeal as the miscarriage of justice was sufficient to warrant a new trial. Consequently, the convictions were quashed, and a new trial was mandated.

Orders