R v GAE

[2013] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0293

THARAKA ISURU COSTA

Applicant

v

THE QUEEN

Respondent

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JUDGES	WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 January 2013
DATE OF JUDGMENT	30 January 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 5

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CRIMINAL LAW — Application for leave to appeal against conviction — Jury irregularities — Improper communications between tipstaff and jurors during deliberations — Continuing police investigation into comments by tipstaff — Applicant yet to be sentenced — Whether serious departure from the prescribed processes for trial — Substantial miscarriage of justice conceded by Crown — Application granted — Appeal allowed and new trial ordered — Baini v The Queen (2012) 293 ALR 472, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J H Shaw	Doogue & O’Brien
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA:

1. On 14 December 2012, the applicant, Tharaka Costa, was convicted after trial in the County Court at Melbourne on one charge of common assault, two charges of theft, one charge of aggravated burglary, one charge of intentionally causing injury, one charge of false imprisonment and one charge of rape.  He has not yet been sentenced for these offences.  That fact is no obstacle to success on appeal against conviction. [1]

   [1] See, eg, R v De Marchi [1983] 1 VR 619; R v Celep [1998] 4 VR 811.

1. On 19 December 2012, the trial judge convened a mention in the matter.  Her Honour informed the parties that she had received a letter from a juror which contained allegations of improper communications between her Honour’s tipstaff and several jurors.  Her Honour detailed the nature of those allegations and provided a redacted copy of the juror’s letter to the parties.  A copy of her Honour’s remarks on that occasion and the juror’s letter were also before this Court.

1. The applicant seeks leave to appeal on the sole ground that his convictions are unsafe because of improper communications between the trial judge’s tipstaff and the jury.

1. Because of the nature of the allegations and the continuing investigation surrounding them, it would be inappropriate to comment in detail upon the particular circumstances of the asserted impropriety.  We have been provided with copies of witness statements provided by several of the jurors as to their interactions with the trial judge’s tipstaff during the applicant’s trial.  The tipstaff has been formally interviewed and has denied that any improper communication took place during the jury’s deliberations.  Obviously, we make no finding regarding that matter, but simply note that the comments, if made, would have been capable of causing severe prejudice to the applicant. 

1. In its Response to the Applicant’s Written Case, the Crown acknowledged that, at least on the basis of the police investigation thus far, there may well have been a ‘serious departure from the prescribed processes for trial’.[2]  It therefore conceded that a substantial miscarriage of justice had occurred in the applicant’s trial, and that a new trial should be ordered. 

   [2]Baini v The Queen (2011) 293 ALR 472, 478 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

1. We should add that the Crown cited further earlier authority which dealt particularly with improper communications between jury keepers and jurors.  In R v Briffa & Portillo,[3] for example, the Court of Appeal allowed an appeal against conviction on the basis that ‘there had been a serious departure from one of the essential requirements of the law and that the keeper’s endeavours to influence the jury constituted an irregularity sufficient to warrant the quashing of the convictions’.[4]

   [3] (Unreported, Court of Appeal, Winneke P, Brooking and Callaway JJA, 21 April 1997).

   [4] Ibid 5 (Callaway JA). See also R v Chaouk [1986] 1 VR 707; R v GAE (2000) 1 VR 198. 

1. Accordingly, we will grant leave to appeal and allow the appeal.  The convictions recorded on 14 December 2012 will be set aside.  We will order that a new trial be had. 

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