Parker v The King - [2024] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0177

ADAM TROY PARKER	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL, BOYCE and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2024
DATE OF JUDGMENT:	23 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 72
JUDGMENT APPEALED FROM:	[2022] VCC 1931 (Judge Hassan)

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CRIMINAL LAW – Appeal – Conviction – Charges of arson and reckless conduct endangering life or serious injury – Jury directed that ‘logic’ dictated a finding of guilt on reckless conduct charge if guilty of arson – Defence counsel originally sought to ‘leave’ recklessness to jury but changed position in response to judge – Evidence at trial left open possibility that recklessness was not proved – Whether substantial miscarriage of justice – Appeal allowed – Re-trial ordered.

CRIMINAL LAW – Appeal – Conviction – Applicant contended evidence of sexual conduct irrelevant and prejudicial – Leave to appeal refused.

Criminal Procedure Act 2009 s 276; Jury Directions Act 2015 ss 1, 3, 5, 9, 10, 11, 12, 14, 15, 16, 17.

Baini v The Queen (2012) 246 CLR 469; Kalbasiv The Queen (2018) 264 CLR 62.

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Counsel
Applicant:		Mr R Barton
Respondent:		Mr BK Kissane KC with Mr G Buchhorn
Solicitors
Applicant:	Sarah Pratt & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
BOYCE JA:

We have had the advantage of reading in draft the reasons for judgment of Whelan JA. We agree that the appeal must be allowed.
As those reasons expose, and we agree, the judge misdirected the jury on how they were to approach charges 2 and 3. Although her Honour correctly identified for the jury the elements of those offences, it did not follow as a matter of logic or inevitable reasoning that guilt on the arson charge necessarily meant the applicant was guilty of either charge 2 or 3. It was an error to direct the jury in the way that occurred.
The ultimate issue is whether the error amounts to a substantial miscarriage of justice. As Whelan JA observes the verdict of guilty on charge 2 was not inevitable.[1] Further, the direction in effect took the elements of the reckless endangerment charges away from the jury.
[1]See Baini v The Queen (2012) 246 CLR 469, 480 [30] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
In certain circumstances agreement, acquiescence or the failure to object to a direction may mean that there has been no substantial miscarriage of justice. That may be the case where the course of the trial was informed by a considered forensic decision. That is not this case. Counsel in this Court frankly accepted that the decision to agree with the course suggested by the judge was an error on his part.
If the question whether there has been a substantial miscarriage of justice is informed by the terms of the Jury Directions Act2015 then there has been a substantial miscarriage of justice. The impugned direction…

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 Parker v The King

Details

AGLC: Parker v The King [2024] VSCA 72
Case: [2024] VSCA 72
Decision Date: 23 April 2024

CaseChat Overview and Summary

In Parker v The King, the appellant, Parker, appealed against his conviction for charges of arson and reckless conduct endangering life or serious injury, seeking to overturn his conviction on the basis that the trial judge had misdirected the jury. The case was heard in the High Court of Australia. Parker argued that the trial judge's direction to the jury that if they found him guilty of arson, the ‘logic’ of the situation dictated a finding of guilt on the charge of reckless conduct was erroneous. This contention was based on the proposition that the evidence left open the possibility that recklessness was not proved, and that the judge's direction effectively usurped the jury's role in assessing the evidence.

The legal issues before the court involved whether the trial judge's direction constituted a substantial miscarriage of justice. The court considered whether the trial judge's direction amounted to an error of law that could potentially lead to an unsafe and unsatisfactory verdict, which would warrant a retrial. The court also examined the relevance of the evidence of sexual conduct that Parker argued was irrelevant and prejudicial. The court needed to determine if this evidence was inadmissible and, if so, whether its admission was so prejudicial as to warrant a new trial.

The court concluded that the trial judge's direction did indeed constitute a substantial miscarriage of justice, as it misdirected the jury on the legal principles governing the assessment of recklessness. The court found that the judge's direction usurped the jury's role and effectively predetermined the outcome on the charge of reckless conduct, which was an error of law. Consequently, the court allowed the appeal and ordered a retrial. The court also dismissed Parker's contention that the evidence of sexual conduct was irrelevant and prejudicial, finding that the leave to appeal on this ground was refused.

Orders