Percival v The Queen - [2015] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0066

TRENT HILTON PERCIVAL	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG and OSBORN JJA
WHERE HELD:	GEELONG
DATE OF HEARING:	3 June 2015
DATE OF JUDGMENT:	31 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 200
JUDGMENT APPEALED FROM:	DPP v Percival (Unreported, County Court of Victoria, Judge Chettle, 7 March 2014) (Conviction)

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CRIMINAL LAW – Conviction – One charge each of aggravated burglary, threat to inflict serious injury, common assault and criminal damage – Trial judge intervened on a number of occasions during cross-examination of Crown witnesses in manner that was critical of defence counsel – Foreman subsequently gave note to trial judge indicating that some members of jury had concluded from judge’s interventions that defence counsel was incompetent and by implication that defence case was unmeritorious – Judge directed jury that he was not expressing any view about merits of defence case and that jury should not draw any inferences against counsel or the accused based on his comments – Judge subsequently refused application to discharge jury – Whether failure to discharge jury gave rise to substantial miscarriage of justice – Foreman’s note indicated there was little likelihood jury would pay due regard to submissions put forward by defence counsel – Prejudice not cured by judge’s direction – Appeal allowed – Piccolotto v The Queen [2015] VSCA 143 and R v Mawson [1967] VR 205 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R van de Wiel QC with Ms M E Casey	Victoria Legal Aid
For the Crown	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA

WEINBERG JA
OSBORN JA:

After a relatively short trial only lasting some five days, the appellant was convicted, in the County Court at Geelong, of one charge of aggravated burglary, one charge of threatening to inflict serious injury, one charge of common assault, and one charge of criminal damage. He was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Aggravated burglary [Crimes Act 1958 s 77(1)]

25 years

3 years

Base

2

Threat to inflict serious injury [Crimes Act 1958 s 21]

5 years

1 year

6 months

3

Common assault [common law]

5 years

6 months

-

4

Criminal damage [Crimes Act 1958 s 197(1)]

10 years

1 day

-

Total Effective Sentence: 3 years 6 months

Non-Parole Period: 2 years

Pre-Sentence Detention Declared: 20 days

6AAA Statement: N/A

Other Relevant Orders:
· Disposal Order

· Forensic Sample Order

The appellant originally sought leave to appeal upon a number of grounds. However, on 4 September 2014, he was granted leave to appeal upon one ground only:

1. The applicant did not receive a fair trial in that:
(b)His Honour erred in refusing to discharge the jury after a note from the foreman of the jury was provided to the Court describing the effect of his Honour’s interference on the applicant’s case; and
(c)His Honour’s directions to the jury…

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 Percival v The Queen

Details

AGLC: Trent Hilton Percival v The Queen [2015] VSCA 200
Case: [2015] VSCA 200
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of Percival v The Queen involved the appellant, who was convicted on four counts: aggravated burglary, threat to inflict serious injury, common assault, and criminal damage. The appellant appealed against his conviction, arguing that the trial judge's interventions during the cross-examination of Crown witnesses were prejudicial and led to a substantial miscarriage of justice. The High Court of Australia was tasked with determining whether the trial judge's conduct warranted a discharge of the jury and, if not, whether the prejudice caused by the judge's conduct was so significant that it led to a miscarriage of justice.

The primary legal issue before the court was whether the trial judge's interventions during the cross-examination of Crown witnesses were so prejudicial that they warranted a discharge of the jury. The court had to consider whether the judge's conduct created an impression that the defence counsel was incompetent and, by implication, that the defence case was unmeritorious. The court also had to assess whether the trial judge's direction to the jury that he was not expressing any view on the merits of the defence case and that the jury should not draw any inferences against the defence counsel or the accused was sufficient to mitigate any prejudice caused by the judge's conduct. The court needed to determine whether the prejudice was so significant that it led to a substantial miscarriage of justice, thereby warranting an appeal against the conviction.

The court found that the trial judge's interventions during the cross-examination of Crown witnesses were indeed prejudicial and had the potential to influence the jury's perception of the defence counsel's competence and, by extension, the merits of the defence case. The note from the foreman of the jury, indicating that some jurors had concluded that the defence counsel was incompetent and that the defence case was unmeritorious, demonstrated that the judge's conduct had indeed created a prejudicial atmosphere. Despite the trial judge's direction to the jury that he was not expressing any view on the merits of the defence case, the court held that the prejudice caused by the judge's conduct was not sufficiently mitigated. The court concluded that the prejudice was significant enough to constitute a substantial miscarriage of justice, warranting an appeal against the conviction.

The High Court allowed the appeal and quashed the appellant's convictions. The court's decision was influenced by precedents such as Piccolotto v The Queen [2015] VSCA 143 and R v Mawson [1967] VR 205, which established that a trial judge's conduct can lead to a substantial miscarriage of justice if it prejudices the fairness of the trial. The court held that the trial judge's interventions were such that they created a substantial risk of prejudice, which could not be cured by the judge's subsequent direction to the jury.

Orders