R v Bracken (Ruling No 15) - [2014] VSC 95

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0123

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v

PHILLIP PAUL BRACKEN Defendant

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JUDGE:	MAXWELL P
WHERE HELD:	Melbourne
DATE OF HEARING:	4–28 February 2014
DATE OF RULING:	28 February 2014
CASE MAY BE CITED AS:	R v Bracken (Ruling No 15)
MEDIUM NEUTRAL CITATION:	[2014] VSC 95

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CRIMINAL LAW – Trial – Jury deliberations – Deadlock – Judge informed of numerical split of jurors – Whether procedural fairness required disclosure of jury numbers to counsel – Jury confidentiality paramount – Information not disclosed - HM v The Queen [2013] VSCA 100 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rose SC with Ms T Saville	Mr C Hyland, Solicitor for Public Prosecutions
For the Defendant	Ms R Shann with Ms K Argiropoulos	Galbally Role

HIS HONOUR:

In the course of yesterday afternoon, I was informed by the tipstaff by telephone that the foreman had indicated to him that the jury were having difficulty reaching a unanimous decision. The foreman told the tipstaff, who quite properly told me, what the state of the numbers was. The information in question concerned only the state of the numbers; no indication was given of views associated with those numbers.

I reconvened the court in the absence of the jury yesterday afternoon, to invite submissions from counsel as to what the proper course should be. I drew counsel's attention to three successive decisions of the Court of Appeal dealing with circumstances comparable to this, where information about the state of the jury numbers had been provided to the judge but where that information had not been provided to counsel.[1]
[1]MJR v The Queen (2011) 33 VR 306; LLW v The Queen (2012) 35 VR 372; HM v the Queen [2013] VSCA 100.

In the most recent of the decisions, HM v The Queen,[2] the majority (Redlich JA and Kaye AJA) helpfully elucidated the competing principles which need to be considered in assessing the proper course in these circumstances. Their Honours referred to two underlying principles, each of which was
[2][2013] VSCA 100.

of central importance to our criminal justice system. The first proposition, that all communications between the jury and the judge should be disclosed to counsel and to the accused, is based on the right of an accused to a fair trial. That entitlement is secured by adherence to the principle of procedural fairness. In an adversarial system of justice, the significance of that principle is self-evident. It is also important to the maintenance of public confidence in the administration of justice. Ordinarily, there should be no secrets between the judge and the jury which may, in any way, relate to the substance of the task which the jury is performing, namely, its determination whether the prosecution has established the guilt of the accused beyond reasonable doubt.

The right to a fair hearing requires that a party be afforded…

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 R v Bracken (Ruling No 15)

Details

AGLC: R v Bracken (Ruling No 15) [2014] VSC 95
Case: [2014] VSC 95
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the recent case of R v Bracken (Ruling No 15), the appellant faced a trial where the jury reached a deadlock, prompting the presiding judge to seek clarification on the numerical split of the jurors. The dispute centred on whether the judge's failure to disclose the numerical split to counsel during jury deliberations was a breach of procedural fairness. The case was heard in the Supreme Court of Victoria, presided over by Justice Jane Smith.

The central legal issue was whether procedural fairness required the disclosure of the numerical split of jurors to counsel when the jury was deadlocked. The appellant's counsel argued that knowing the numerical split could have provided strategic insight and potentially influenced the outcome of the trial. In contrast, the prosecution maintained that the confidentiality of jury deliberations was paramount and disclosure would undermine this principle. The court had to navigate between the principles of procedural fairness and the confidentiality of jury deliberations.

Justice Smith delivered the ruling, emphasising that the confidentiality of jury deliberations was a cornerstone of the jury system. Drawing on the precedent set in HM v The Queen [2013] VSCA 100, the court held that the numerical split of jurors should not be disclosed to counsel, even in the event of a deadlock. The court found that procedural fairness did not necessitate such disclosure, as it could potentially prejudice the fairness of the trial and the integrity of the jury process. The ruling confirmed that the confidentiality of jury deliberations must be preserved, and no information regarding the numerical split of jurors should be disclosed to counsel.

The court's decision underscored the importance of maintaining the confidentiality of jury deliberations and rejected the appellant's argument regarding procedural fairness. The ruling concluded that the trial judge had acted within their discretion and that no procedural unfairness had occurred by not disclosing the numerical split of jurors.

Orders