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,…
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- AGLC
- M J R v The Queen [2011] VSCA 374
- Case
- [2011] VSCA 374
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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