Rawlings (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0168

ANGUS RAWLINGS (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid any risk of prejudice to the administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	PRIEST and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2025
DATE OF JUDGMENT:	8 August 2025
DATE OF REASONS:	21 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 190
JUDGMENT APPEALED FROM:	DPP v [Rawlings] (Unreported, 4 August 2025, County Court of Victoria, Judge Marich)

---

CRIMINAL LAW – Interlocutory appeal – Prosecutor comments raising issue of incriminating conduct without notice – Whether prosecutor’s comments were capable of being cured by judicial directions – Defence application to discharge jury refused – Application for certification granted – Whether judge erred in failing to discharge jury – Whether judge erred in granting certification – Leave to appeal against interlocutory decision refused.

Criminal Procedure Act 2009 ss 297, 295(3)(b) and (c).

Baker v The King [2025] VSCA 139; Carson v The Queen [2019] VSCA 317; Crofts v The Queen (1996) 186 CLR 427; Director of Public Prosecutions v Pace (a pseudonym) (2015) 45 VR 276; Director of Public Prosecutions v Paulino [2017] VSCA 38; Healy v The King [2024] VSCA 81; Hutton v The King [2024] VSCA 282; Males v The Queen (2021) 292 A Crim R 61; Moore v The King (2024) 419 ALR 169; Pompei v TheKing [2023] VSCA 71; Pope (a pseudonym) v The Queen [2017] VSCA 324; R v Boland [1974] VR 849; R v Vaitos (1981) 4 A Crim 238; R v Walker [2025] NSWCCA 62; Webb v The Queen (1994) 181 CLR 41, applied.

---

Counsel
Applicant		Mr J Saunders
Respondent		Mr D A Glynn and Mr D Hancock
Solicitors
Applicant	Valos Black & Associates
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KIDD JA:

Introduction

On 22 July 2025, the applicant pleaded not guilty in the County Court to an indictment containing multiple violence-related charges allegedly committed by him against his wife. A jury was empanelled, and the trial proceeded.
In circumstances we will later set out in more detail, in the course of the prosecutor’s final address to the jury, defence counsel made an application to discharge the jury.
By a ruling made on Monday, 4 August 2025, the judge refused to discharge the jury (‘the ruling’ or ‘the interlocutory decision’). The judge then certified under s 295 of the Criminal Procedure Act 2009 (‘CPA’) that the interlocutory decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
Pursuant to the trial judge’s certification, the applicant made an application for leave to appeal against the interlocutory decision.
We heard the application for leave to appeal on 8 August 2025. At the conclusion of oral argument we ordered that leave to appeal be refused, and indicated that we would subsequently provide reasons for that order. These are those reasons.

Certification of the interlocutory decision

As we have said, the applicant’s trial commenced on 22 July 2025.
Evidence in the prosecution case proceeded over eight sitting days at which point, on 31 July 2025, the prosecution closed its case. No evidence was called by the defence.
The prosecutor commenced his final address to the jury on the morning of the ninth day of the trial, Friday, 1 August 2025. In the course of that address, the prosecutor made a number of submissions to the jury which prompted defence counsel to seek a discharge of the jury. The trial judge permitted the prosecutor to complete his final address (that Friday), after which time the judge heard argument on the discharge application.
This argument was completed on Monday, 4 August 2025. On that day, the trial judge made the ruling the subject of the present application and provided written reasons.
As the interlocutory decision did not relate to the admissibility of evidence, s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) applied. Leave to appeal could only be sought if the trial judge certified that the interlocutory decision was ‘of sufficient importance to justify it being determined on interlocutory appeal’.
Following her ruling, an application was made by the applicant for the trial judge to certify under s 295. As we have indicated, she did so. Notably, certification was unopposed by the prosecutor.
In certifying, the judge said the following:
The point of law which became the subject of the ruling is orthodox, however, the circumstances of the case are unusual and have involved adaptation of sequential reasoning. It involves an issue of law and evidence that is necessary for the proper conduct of the trial.
The trial has not only just commenced, it is in its tenth day of a hearing, estimated to take eight to ten days, as communicated to the jury panel during the empanelment exercise. There will be interruption to the jury’s involvement in the trial by my (necessary) adjudication of this issue, and the consequences of certification. However, I have attached significant weight to the interest in resolving this issue of law and ultimately I have certified pursuant to ss 295(3)(b) and (c) of the Act.[2]
[2]Ruling, [34]–[35].
Pursuant to the trial judge’s certification, the applicant sought leave to appeal against the interlocutory decision on a ground that contended that the prosecutor
made comments during the course of his closing address to the jury that raised the issue of incriminating conduct when a notice under section 19 of the Jury Directions Act had not been filed. The comments made are incapable of being cured by direction. The Judge erred in failing to discharge the jury on the application of the defence made in response to the comments being made.
As a matter of urgency, the application for leave to appeal was listed for hearing before this Court Friday, 8 August 2025. During the hearing, we were informed that the jury — who had been absent from the trial since the completion of the prosecutor’s address — were returning to court that afternoon. Given the urgency of the matter, at the conclusion of the oral hearing we pronounced an order refusing leave to appeal. Although, we stated that we were not in a position to provide detailed reasons, for the interim guidance of the trial judge and parties, we indicated our view that the judge should not have certified, and we briefly outlined the key features which needed to be covered by required judicial directions.
The prosecution evidence
In brief summary, the evidence in the trial is that the applicant and ‘WS’ met in 2007 and married in September 2015. They have two children, and operated a business together. Their relationship soured in March 2022 when WS revealed to the applicant that she was having affair with another man.
The charges relate to eight separate incidents over the course of 2022, as follows.
Charges 1 and 2 – Intentionally causing injury and recklessly causing injury (alternative)
In April 2022, the applicant and WS were having an argument about her affair when the applicant threw his mobile telephone at her. It seems the phone hit WS on the top lip, causing pain and bleeding.
The following day, the applicant purchased medical glue and helped WS glue her lips. Thereafter, the applicant regularly slapped, punched and kicked WS. He would make her wear make-up to hide the bruising and apply a cream to help the bruises heal more quickly.
Charges 3, 4 and 5 – Conduct endangering persons, intentionally causing injury and recklessly causing injury (alternative)
Around 15 May 2022, the applicant and WS were arguing about her affair. The applicant dragged WS from an upstairs bedroom and pushed her down the stairs. WS fell the last few stairs. Before she could get up, the applicant knelt on top of WS and crushed her ribcage, causing her severe pain and apparently breaking several ribs. The following day, the applicant helped WS bandage her ribs. WS had to take painkillers to alleviate the pain.
Charge 6 – Intentionally causing injury
On or about 20 May 2022, the applicant kicked WS in the face, causing her eyelid to split. The applicant then used medical glue to seal the wound. He told her to wear sunglasses to hide the injury.
WS’s parents arrived from China in June 2022, and stayed with the applicant, their daughter and the children. They observed WS’s injuries, but encouraged her to work on her relationship for the children’s sake. From May to September 2022, the applicant assaulted WS on a daily basis, including hitting her with a glass bottle.
On occasions, the applicant struck WS so hard that he damaged his watch, and had to take it to be repaired.
In June 2022, the applicant and WS went away for several days. Upon their return, WS’s parents observed her face to be swollen and bruised, and the applicant admitted punching her. On an occasion in July 2022, WS’s parents saw the applicant push her down the stairs, so that she had to grab a railing to avoid falling. The applicant threw a bottle in the direction of WS’s father.
Charge 7 – Common assault
Between July and August 2022, the applicant and WS were having an argument when he threw her onto the floor.
Charge 8 – Common assault
In early August 2022, the applicant and WS were in the kitchen. When angry, the applicant slapped and kicked WS in front of her mother.
Charge 9 – Recklessly causing injury
On 15 August 2022, the applicant and WS were staying at a hotel. During an argument, the applicant pushed WS to the floor, the impact causing a fracture to WS’s finger.
Charge 10 – Intentionally causing injury

Later, on 6 September 2022, the applicant slapped WS repeatedly to the head and threatened her with a butter knife. He then lunged at her with the knife and stabbed her in the thigh, causing a laceration which bled immediately. The applicant then dressed the wound with medical glue and bandages.
Charges 11 and 12 – Intentionally causing injury and threat to inflict serious injury
On 8 September 2022, the applicant was attempting to jump-start his van, helped by WS. The applicant became angry and struck WS in the right eyelid with a plastic battery cover causing the eyelid to bleed. The applicant then cleaned the cut and applied medical glue to the eyelid.
The next day, 9 September 2022, WS left their home with the two children to escape the applicant. She sought refuge in a nearby retirement village. Police and paramedics attended. WS was admitted to hospital and found to have stained a variety of injuries.
Purchase of medical items, treatment of WS by the applicant and WS confinement to the house
WS gave evidence that:
•the applicant ordered and collected boxes of medical glue, which he used on her to treat the injury the subject of charges 1 and 2 in the alternative;
•the applicant told her, ‘Just take Advil tablets,’ which she did, following the injury the subject of charges 4 and 5 in the alternative, and that in ensuing days when she said ‘I need to see a doctor,’ he said, ‘No, you are not. You are not going to go see a doctor, because we all know where this ended up [sic],’ which led to him going to Chemist Warehouse, and he brought bandages home, and rolled it over her rib area;
•the applicant applied medical glue after the injury the subject of charge 6, and gave her Advil;
•the applicant applied medical glue after the injury the subject of charge 10; and
•the applicant again applied medical glue after the injury the subject of charge 11.
A bundle of tax invoices from Chemist Warehouse were tendered showing items purchased using the credit card of a company connected to WS and the applicant. This included invoices for the purchase of Advil before the charged period, and invoices for the purchase numerous crepe bandages and bruise treatment cream during the charged period.[3]
[3]Ruling [10].
WS and her parents gave evidence that the applicant did not allow WS out during the period that the charges span, and that she was housebound, which was the subject of challenge in the defence’s cross-examination.[4]
Tendency evidence
[4]Ruling [11].
The prosecution relied on tendency evidence, for the applicant to have a particular state of mind, namely anger and resentment towards WS to such a degree that the applicant was prepared to commit acts of violence upon her; and a tendency to act in a particular way, namely to commit acts of violence against WS between 17 April 2022 and 9 September 2022.[5]
Incriminating conduct
[5]Ruling [12].
No notice of incriminating conduct was filed for any of the evidence.
Defence case
No issue was taken with the fact that, in March 2022, WS disclosed to the applicant she was having an affair. Defence counsel cross-examined WS to suggest (among other things) that: the applicant did not cause her injuries; the injuries were caused outside the house; she was involved in other acts of infidelity that involved group sex; and some of the group sex was ‘rough sex’, and it was in that context that she sustained her injuries.
WS rejected the applicant’s propositions.
Generally, the fact that WS sustained the injuries the subject of the charges was not in issue, although the defence appear to dispute the extent of the injuries she suffered over this period. Their case is that, to the extent that she sustained injuries, they were not caused by him.
The jury’s evaluation of the credibility of WS and her parents was a critical issue for the defence.
Impugned comments in prosecutor’s address
During the prosecution’s closing, the following remarks were made:
It was also put to her the injuries caused during group sex parties somewhere outside the family home. You’ll recall these matters were put to her and she denied all of them. She said they were ridiculous, disgusting, and pathetic. … There is no evidence before you whatsoever of [WS] attending group sex parties or being injured anywhere outside the house. You heard the questions and answers — no, it didn’t happen, it’s ridiculous, disgusting and pathetic. These questions were put to [WS] to place in your mind a particular story — a made up story to explain how on earth [WS] received these injuries over this five-month period between April-September 2022.
You might ask yourselves — what did [the applicant] do in that five months? Did he take her to a doctor for those injuries? No. Did he take her to a hospital? No. Did he try and find out who was causing those injuries? Nope. Did he go to the police to see if they could help? No. What would you expect a concerned, loving husband to do in these circumstances. You might think a concerned, loving husband might do all of these things, right? He’d immediately get the best medical care for his wife — the woman who is the mother of his children. He’d out who was causing these injuries. And he’d stop it and try and protect her. He’d contact the police to see if they could help. But [the applicant] didn’t do any of these things, did he? Instead, he kept her inside the house. If he had to go out, he’d take her with him. He bought medical glue to fix up her wounds, he bought painkillers, he bought elastic bandages to help with her ribs, he bought cream to help with the bruises and make the bruising go away. You might ask yourselves why, why did he do all this? Because [the applicant] caused these injuries, didn’t he. He didn’t want anyone else to know. Not his friends, not the doctors, not the hospitals, certainly not the police. He wanted to keep it a secret and for a while he did.
Discharge application
The impugned prosecutor’s remarks triggered the application for the jury to be discharged.
The applicant’s counsel at trial submitted that the impugned prosecutor’s remarks constituted a serious irregularity in the trial which would cause a substantial miscarriage of justice. The judge summarised those arguments as follows:[6]
•while the evidence of the Chemist Warehouse purchases could provide some circumstantial support of WS’s evidence, and her confinement to the house by the applicant could perhaps rebut a suggestion of opportunity to be injured in a manner other than that alleged, the address went far further than that;
•the jury had no evidence before it of what the applicant did not do, such as not obtaining medical assistance, not contacting the police, not finding out who had caused the injuries, and the invitation to the jury that it could so conclude was entirely speculative;
•the prosecution had not conducted its case on the basis of any omission by the applicant in direct or circumstantial proof of guilt; the case had always been conducted on the basis of offending by commission, and it was too late in the trial for the applicant to learn that he needed to meet a case different to the one upon which the prosecution had opened;
•the impugned prosecutor’s remarks invited the jury to view the applicant’s silence as a circumstance that could be supportive of guilt, and involved an invitation to use moral judgment as to what a ‘concerned loving husband’ would do;
•the invitation to the jury to find that his acts and omissions (such as purchasing the items from Chemist Warehouse to treat the WS’s wounds) was due to the applicant wanting to keep his causing the injuries a secret elevated this conduct to incriminating conduct. This had not ever been the subject of a requisite notice;[7] and
•there is no correction, and no suitable judicial direction, which could ameliorate the unfairness to the applicant arising from the impugned prosecutor’s remarks; indeed, such an approach would only compound the unfairness.[8]
[6]Ruling [18].
[7]Ruling [18].
[8]Ruling [23].
The prosecutor accepted that his remarks should not have been made. The prosecutor accepted the general tenor of the applicant’s complaint including that his submission invited the jury to engage in incriminating conduct reasoning. The prosecutor nevertheless urged the trial judge not to discharge the jury. He relied upon the very late stage at which this event has occurred and his willingness to correct any error. While accepting the seriousness of the remarks made by him, he submitted that this can be addressed by firmly worded judicial directions.
The prosecutor proposed that he provide a correction to his address in the following terms:
In my final address to you, members of the jury, you may remember I said that you might consider the things [the applicant] didn’t do — such as not taking his wife to the doctor or to a hospital, not contacting the police, and not trying to find out who was causing these injuries, when determining whether he had caused these injuries.
You may also remember that I said that you might also consider the things that [the applicant] did do — such as buying medical supplies and keeping [WS] in the house, when determining whether he had caused these injuries.
I did not intend to suggest to you that he did not do these things, or that he did do these things, because he had in fact caused these injuries. That would be wrong, and if you did understand my comments that way, you should disregard them. As Her Honour will make clear to you, you must not conclude from what [the applicant] did or didn’t do in this regard that he is guilty of the offences charged.
My comments were made simply to illustrate to you that the alternative proposition, that the injuries were caused by another person, was implausible.
Your focus should therefore remain on the evidence before you. As I have said, [the applicant] is not required to prove anything whatsoever in this trial. He comes to this court an innocent man. It’s the prosecution’s job to prove each of the elements of each of the charges beyond reasonable doubt. So that is what you need to concentrate on.[9]
[9]Ruling [22]–[23].

The trial judge agreed with the applicant that the impugned prosecutor’s remarks involved speculation, contained references which were incorrect in law and fact, and invited the jury to improperly use evidence as incriminating conduct.[10]
[10]Ruling [19]–[21].
The trial judge found, however, that a suitably tailored direction could ameliorate the unfairness to the applicant.[11]
[11]Ruling [29].
She said that the evidence — such as the purchase and use of the Chemist Warehouse supplies and the confinement of WS — was properly before the jury for a non-incriminating purpose. The jury can be clearly directed as to the permissible uses. This will help guard against the jury engaging in any impermissible uses.
The judge also concluded that in this case she will provide the jury with a strong direction that they cannot use the evidence for an incriminating conduct purpose. She contrasted this with other cases (such as Healy) where the directions were inadequate.[12]
[12]Healy v The King [2024] VSCA 81 (Beach, Walker and Kaye JJA) (‘Healy’).
The proposed judicial direction to the jury was as follows:
In the context of discussing how you approach the questions that [defence counsel] asked of [WS] in cross-examination that related to her credibility, and how she sustained the injuries that you have heard described in evidence, specifically questions suggesting that the injuries were sustained during group sex parties and were by persons other than [the applicant], [the prosecutor] reminded you that [WS]’s answers to these questions described such a proposition as ‘Ridiculous, disgusting and pathetic.’
In his closing address, [the prosecutor] invited you to scrutinise [WS]’s description of the care provided by [the applicant] after specific charged events — of purchasing and administering painkillers, glue, bandages, and cream to reduce bruising, supported by circumstances of receipts for purchases of those items from Chemist Warehouse via the use of the [the company] credit card. This, [the prosecutor] said, could give you circumstantial support of [WS]’s account of what had occurred.
[The prosecutor] urged you to reject as implausible the premise of the questions asked of the WS by [defence counsel] suggesting that the injuries were caused in events at group sex parties.
I remind you, you must determine your verdicts solely on the basis of the evidence before you. The comments made by counsel are not evidence.
[The prosecutor]’s suggestion that you scrutinise what [the applicant] ‘did not’ do during the charge period is wrong as a matter of law and he was quite wrong in making those comments in his closing address. The focus of this trial is exclusively disclosed in the evidence before you, and there is no evidence in support of a suggestion that [the applicant] ‘did not’ do something in connection with each charged act; this is why the suggestion is wrong. The issues for your evaluation and determination are whether the charged acts occurred as alleged, specifically, whether you accept, on the evidence before you, beyond reasonable doubt, that each specific and separate charge occurred. There will not be any other evidence given in the trial. Do not speculate about what other witnesses can or cannot say. The fact that [the applicant] did not give evidence cannot be used as evidence against him. That fact is not evidence in the case — and as I have told you, you must decide the case only on the evidence.
Further, I have told you that this is not a court of morals, and it is not relevant at all to your deliberations to consider what a ‘concerned loving husband’ may or may not have done. Put that to the side, and ignore the suggestion that you ask what a concerned loving husband might do.
And further, in this trial, the prosecution alleged that [the applicant] purchased medical treatment from Chemist Warehouse and applied it to [WS] himself, in the context of acts of isolation described by [WS] (all of which was very strongly and forcefully disputed by the defence in questions asked of witnesses). Indeed, [the prosecutor] suggested that that was done as he caused injuries and wished to keep those injuries secret. I now need to give you directions of law as to how the evidence can be used, and warn you against improper ways of using the evidence.
If you find that [the applicant] purchased medical treatment from Chemist Warehouse and applied it to [WS] himself; if you find that [the applicant] engaged in an act or acts which may have served to isolate [WS] from another or others, this evidence can be used because it explains the relationship between the two, and the background to the charged acts as a whole. However, it cannot be used as evidence that the accused believed that he had committed any of the charged acts.
The evidence is of circumstances surrounding the events described by [WS] in her testimony, forcefully challenged by the defence. It may be used in your evaluation of [WS]’s evidence, but even if you were to find that [the applicant] purchased medical products, applied them to [WS], and engaged in an act or acts of isolations, that is not evidence of guilt. This conduct is only relevant, if at all, in assessing whether the charged acts occurred as [WS] described.[13]
[13]Ruling [32].
Applicant’s contentions in this Court
The applicant’s contentions on this application mirror those made to the trial judge. He contends that the impugned prosecutor’s remarks:
•explicitly invited the jury to engage in incriminating conduct reasoning in a case where no notice of incriminating conduct had been filed;
•changed the nature of the Crown’s case to include acts of omission as distinct from positive acts of conduct and thereby undermined the applicant’s right to silence; and
•cannot be negated or sufficiently ameliorated by judicial direction given the nature of the comments and the stage at which they were made in the trial.
Respondent’s contentions in this Court
The respondent contended that:
•the impugned prosecutor’s remarks invited incriminating conduct reasoning, even if that was not the intention of the prosecutor;
•the prosecutor has offered to retract the impermissible argument that he put. This means that it will be understood by the jury that this is not an argument relied upon by the prosecution;
•the evidence which forms the foundation of the argument was properly before the jury on other bases;
•arguably this evidence always created a risk of the jury using incriminating conduct reasoning themselves, whatever the parties said, and so prudence may well have required directions under s 23 of the Jury Directions Act 2015 in any event;
•the prejudice occasioned by the impugned prosecutor’s remarks are capable of being cured by appropriate directions;
•the applicant’s right to silence has not been infringed upon — it was accepted that the prosecutor did overstate the evidence in relation to the fact that the applicant did not seek medical attention for WS. There was evidence that WS was refused permission to see a doctor but there was no ongoing direct evidence of this kind; and
•the trial judge expressed confidence that the jury would follow her directions.
The respondent further contended that the prosecution ought to have objected to the certification. There has been a significant disruption to the trial which the court is required to consider pursuant to s 297(1) of the CPA.
Legal principles
In R v Vaitos, Murphy J discussed the factors relevant to the exercise of the discretion to discharge the jury, observing that
the discretion must be exercised judicially and among the many matters which the learned trial judge will be undoubtedly required to consider are the nature and degree of prejudice or possible prejudice to the defence case, the courses open to cure or ameliorate that prejudice, … the stage, the nature and the length of the trial, and the attitude of the parties. It is not possible to foresee and I do not attempt to enumerate the almost infinite variety of circumstances which may arise. But, it is only if, after considering all material matters, it appears to the learned trial judge to be necessary in the interests of justice to discharge the jury without verdict, that such an order will be made.[14]
[14]R v Vaitos (1981) 4 A Crim 238, 261.
In Males v The Queen, this Court conveniently summarised the principles as follows:
For good reason, trial judges are slow to grant applications for the discharge of the jury. The test is, of course, a stringent one: there must be a ‘high degree’ of ‘necessity’. The stringency of the test reflects the public interest in maintaining the integrity of the process of trial by jury, requiring a compelling reason to discharge a jury that has been regularly selected and empanelled and, importantly, entrusted with the critical decision-making role in the trial.
It also no doubt reflects the public interest in finality, a recognition that the participants in a jury trial should only have to endure its rigours once. And there are obvious practical considerations. Discharging a jury means throwing away the costs already incurred, both public and private, and the time already spent on the trial.
The governing consideration, however, is the entitlement of an accused to a fair trial. If the event giving rise to the discharge application raises a serious question of potential prejudice, it may throw the fair trial entitlement into jeopardy.[15]
[15]Males v The Queen (2021) 292 A Crim R 61, 68 (Maxwell P and Emerton JA) (‘Males’).
The Court went on to discuss the importance of remedial directions:
The greatest safeguard is the ability of the judge to give directions. Suitable directions can be fashioned to cover most circumstances which arise and, axiomatically, the system proceeds on the assumption that juries follow the directions they are given. There are, however, circumstances where directions may not be sufficient, where the prejudice in question can properly be regarded as incurable. In such a case, there is the obvious risk that a guilty verdict arrived at by a jury after the giving of such directions will be overturned on appeal. Counsel for the applicant gave, as an example of this, the decision of this Court in R v Halliday.[16]
[16]Males v The Queen (2021) 292 A Crim R 61, 68 (Maxwell P and Emerton JA).
The High Court in Moore v The King said the following in relation to the standard of review for an appeal against an interlocutory decision:
In determining whether to affirm or set aside the interlocutory decision, the Court of Appeal is required to apply the standard of review dictated by the nature of the decision the subject of appeal.[17]
[17]Moorevthe King (2024) 419 ALR 169 [25] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).
The relevant principles governing how an appellate court should approach a complaint about the discretion to refuse to discharge a jury were summarised by T Forrest JA in Carson v The Queen:
In substance, this ground alleged that the exercise of a judicial discretion has miscarried. The principles governing the exercise of a trial judge’s discretion to discharge a criminal jury are settled. In short:
•The discretion to discharge the jury can only be exercised when there is a ‘high degree of need for such discharge’.
•The discretion to discharge the jury is to be exercised only when that course is necessary to prevent a miscarriage of justice.
•Ordinarily, a trial judge will be in a better position than an appeal court to assess whether, having regard to the course and atmosphere of the trial, any prejudice may be dispelled by a clear warning to the jury.
•An appeal predicated upon a trial judge’s failure to discharge a jury is not an appeal against that failure, but an appeal against the conviction. The applicant bears an onus of demonstrating that the exercise of his Honour’s discretion was infected by error. In Victoria, if the applicant is able to do this, then the respondent must demonstrate that the error did not make a difference to the outcome of the trial.
•An appellate court will not lightly interfere with the discretion to refuse an application to discharge a jury.[18]
[18]Carson v The Queen [2019] VSCA 317 [90] (T Forrest JA) (‘Carson’).
The principles in House v The King thus apply to a challenge to a refusal of the judge to discharge a jury.[19] The applicant needs to show that the trial judge acted on wrong principle and thereby erred, or demonstrate that the trial judge had no choice but to discharge this jury on the basis that there was a ‘high degree of need’ to do so.[20]
[19]House v The King (1936) 55 CLR 499 (Starke, Dixon, Evatt, McTiernan JJ); [1936] HCA 40 (‘House’); see also Pope (a pseudonym) v The Queen [2017] VSCA 324 [45]–[48] (Weinberg, Priest and Beach JJA).
[20]R v Boland [1974] VR 849 (Adam, Little and McInerney JJ) (‘Boland’); Crofts v The Queen (1996) 186 CLR 427, 432 (Dawson J) (‘Crofts’); Webb v The Queen (1994) 181 CLR 41 (Mason CJ; Brennan, Deane, Toohey and McHugh JJ).
As to the applicable standard of review, the respondent accepted that judicial review of a discretionary decision — such as a decision on whether or not to discharge the jury — is conducted according to House principles. The respondent nevertheless submitted — citing Crofts v The Queen — that as the real issue before this Court is whether the prejudice occasioned by the impugned arguments is capable of being cured by appropriate directions, this question should be approached using the correctness standard.[21]
[21]Crofts v The Queen (1996) 186 CLR 427, 441 (Toohey, Gaudron, Gummow and Kirby JJ).
The respondent accepts that this Court must still make due allowance for the advantages enjoyed by the trial judge.[22] Such advantages are particularly significant, the respondent says, when it comes to an evaluation of the likelihood of the jury following curative directions, as held by this Court in Boland.[23]
[22]Citing Moorev The King (2024) 419 ALR 169, [14] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).
[23]R v Boland [1974] VR 849 (Adam, Little and McInerney JJ).
We have some doubts about the respondent’s argument that the standard of review is the correctness standard. There is a line of authority in Victoria that the principles in House apply to a review of a decision on whether or not to discharge a jury.[24] Recent New South Wales authority — which post-dates Moore — confirms that House applies.[25]
[24]Males v The Queen (2021) 292 A Crim R 61 (Maxwell P and Emerton JA); Carson v The Queen [2019] VSCA 317 (T Forrest JA).
[25]R v Walker [2025] NSWCCA 62 (Dhanji J, Harrison CJ and McNaughton J agreeing).
We do not, however, think anything turns upon the distinction in this case given the conclusions we have reached. The following is clear:
•the ultimate question was whether there was a high degree of necessity to discharge the jury;
•the question of necessity is informed by whether the powers at the Court’s disposal — including remedial directions — can be exercised to sufficiently reduce or eliminate the unfairness created by the impugned prosecutor’s remarks;
•it was common ground that the real issue in this appeal is whether the impugned prosecutor’s remarks are capable of being cured by appropriate directions, such that there was not a high degree of necessity to discharge the jury;
•if the impugned prosecutor’s remarks are not curable by direction, then the judge was bound to discharge. That is, if no direction could sufficiently mitigate or eliminate the prejudice created — such that the trial, if continued, will be unfair — there would be a high degree of necessity to discharge the jury;
•this must be so, no matter the strength of the other factors which might have weighed in favour of continuing with this jury.
In the end, and for reasons which follow, the trial judge was not bound to exercise the discretion to discharge the jury. We also consider that the trial judge was correct to conclude that the impugned prosecutor’s remarks were curable by direction. The decision to not discharge was correct.
Consideration
In his final address the prosecutor relied upon the acts of the accused (e.g., obtaining medical supplies and treating WS’s injuries at home and taking steps to confine WS to the house) and the omissions of the accused (e.g., not seeking medical or any other kind of assistance for his wife).
The prosecutor effectively invited the jury to reason from these acts and omissions that the applicant was motivated to conceal WS’s injuries from any outside scrutiny because he knew that any such exposure would implicate him in the assaults.
Clearly the prosecutor’s submissions invited incriminating conduct reasoning. So much was accepted by the respondent at trial and before us.
As the respondent submitted, where incriminating conduct reasoning is advanced impermissibly by the prosecutor, this does not necessarily render the trial unfair. The authorities show that the answer to this question is dependent upon the circumstances of the case. Where directions on the topic are not given, or where directions are given but are inadequate, there is a significant risk that unacceptable unfairness will be created.[26] There are, however, examples where appropriate judicial directions have been given which have ensured ongoing fairness of the trial.[27]
[26]Pompei v The King [2023] VSCA 71 (Beach, T Forrest and Kaye JJA); Healy v The King [2024] VSCA 81 (Beach, T Forrest and Kaye JJA); Baker v The King [2025] VSCA 139 (McLeish, Orr and Kidd JJA).
[27]Hutton v The King [2024] VSCA 282 (Beach, Kennedy, Boyce JJA).
In this case, we indicated at the oral hearing that insofar as the trial judge refused to discharge the jury because any prejudice caused by the impugned prosecutor’s remarks could be ameliorated by judicial direction, the ruling was correct.
The evidence of the applicant’s purchase of pharmaceutical items, his medical treatment of WS, and the evidence relating to the confinement of WS to the house, was all admitted without objection. During the oral hearing before us, counsel for the applicant accepted the evidence was properly before the jury for a non-incriminating conduct purpose.
It seems that it is common ground that this evidence is relevant as context and relationship evidence. It is integral to WS’s account of the assaults, which must be evaluated within the setting of her relationship with the applicant.
It might, for example, explain WS’s own responses such as why it is she did not seek medical assistance. The applicant’s purchase of the pharmaceutical items, and his medical treatment of WS, also shed some light on whether the injuries occurred, which to some degree might still be in issue.[28] The confinement evidence also bears upon the probability of WS being able to regularly attend group sex parties given that she was largely housebound.
[28]While the fact of the injuries is largely not disputed by the applicant, the extent or severity of the injuries remains in dispute.
The evidence is therefore properly before the jury for non-incriminating conduct purposes. The jury can be clearly directed as to the original purpose of the evidence being introduced and the legitimate pathways of its use. This gives the jury a logical and permissible reference point. We agree with the judge that this makes it easier to guard against the jury engaging in any impermissible uses. The jury can be told not to use the evidence for any other purpose. They will not be left guessing about why the evidence was introduced in the first place. Nor do they have to engage in the mental gymnastics of ignoring evidence which they should not have seen.

While the trial judge was correct to rule that the prejudice caused by the impugned prosecutor’s remarks could be cured by direction, the judicial direction proposed in the ruling was neither clear nor strong enough. The proposed wording tends to dance around the underlying vice of the impugned address — the prosecutor’s invitation to engage in incriminating conduct reasoning.
We indicated at the oral hearing that any spectre of the prosecutor’s submission — especially on incriminating conduct — had to be unmistakably dispelled. We indicated that the direction had to contain the following components:
•The jury must be told precisely what it was that the prosecutor said. There is no getting around this. This must include the prosecutor’s invitation that the jury reason from the acts and omissions of the applicant that he knew or believed he had assaulted WS.
•The jury must be told that what the prosecutor said was wrong in uncompromising terms.
•The jury must be told the prosecutor should not have made the submissions.
•The jury must be told this kind of reasoning which the prosecutor’s impugned remark’s invoked, was completely impermissible.
•The jury must be told that they must not act upon that kind of reasoning and they must ignore it.
•The jury must then be told, in detail and exhaustively, how the jury can legitimately use this evidence. Having been told in detail how they can use this evidence, the jury then needs to be told that they must not use it for any other purpose.
In our view, a strongly worded direction is sufficient to address the risk of the jury engaging in incriminating conduct reasoning.
For the following reasons, we also think this will address the applicant’s complaint that the prosecutor’s reliance upon his failure to act (i.e., omissions) undermined his right to silence.
The applicant contended that arguments of this kind — such as why he did not seek outside medical attention — cast an onus upon the applicant to provide answers. In any event, the applicant could have elected to give evidence to explain why he did not do certain things. He submitted he has been deprived of the opportunity to answer these imputations, whether through the cross-examination of the prosecution witnesses or by electing to give evidence himself.
At times the applicant seems to have suggested that this ‘undermining of the right to silence’ prejudice was separate from the prejudice which stemmed from ‘incriminating conduct reasoning’.
We think they intersect or overlap. The applicant’s undermining of the right to silence argument is tied to — and subsumed by — his incriminating conduct complaint.
So much is apparent from the applicant’s written contention:
The impugned comments undermined the applicant’s right to silence by inviting the jury to use incriminating conduct based on acts of omission which had not been the subject of any evidence and which the applicant had not had the opportunity to consider or cross-examine upon before he elected not to give evidence.[29]
[29](emphasis added).
As the written contention acknowledges, the real vice in the prosecutor’s argument was that the jury was invited to reason that the applicant failed to seek help for his wife — such as seeking outside medical attention or taking her to the police — because he knew that to take such action would implicate him in the offending. It seems to us that the significance of the applicant’s failures to act (i.e., omissions) was intimately connected to the suggestion of incriminating conduct reasoning. Once the judicial directions remove from the jury’s consideration any conduct (by act or omission) being then used for an incriminating conduct purpose, this will also resolve any prejudice associated with his failure to meet any arguments based upon his omissions. His inaction or omissions will become non issues by reason of the curative incriminating conduct directions.
We also consider the comments about the applicant not acting like a ‘concerned loving’ husband were similarly tethered to the invitation to engage in incriminating conduct reasoning.
The import of the prosecutor’s submission was that the applicant did not act like a ‘concerned loving’ husband — such as seeking outside medical attention or taking her to the police — because he knew that to do these things would expose his wrongdoing. In our view, this is how the jury must have understood this submission. We doubt there was any real risk that the jury would act upon the comments that the applicant was not a ‘concerned loving’ husband independently of incriminating conduct reasoning. A curative direction against incriminating conduct reasoning will also address this issue.
We have already said that the governing consideration in a situation like this is ‘the entitlement of an accused to a fair trial’.[30] We have said that we are satisfied that, with an appropriately worded judicial direction, the applicant can receive a trial that is not unacceptably unfair.
[30]Males v The Queen (2021) 292 A Crim R 61, 67, 68 (Maxwell P and Emerton JA) .
That said, there were other factors which weighed against discharging this jury.
The stage of the trial at which the discharge application is made is a relevant consideration given that ‘[d]ischarging a jury means throwing away the costs already incurred, both public and private, and the time already spent on the trial’.[31] In this case, the costs and time thrown away are considerable. This trial was at an advanced stage. It had already occupied 10 days of court time. Jurors have dedicated significant personal time and effort to the trial. There was a powerful public interest in completing the trial. These factors weighed in favour of refusing the discharge.
[31]Males v The Queen (2021) 292 A Crim R 61, 68 (Maxwell P and Emerton JA).
Finally, we indicated at the oral hearing that the prosecutor should not be allowed to address the jury on this issue as proposed. Where a jury has been inappropriately invited to rely on incriminating conduct reasoning, this Court has cautioned that ‘careful consideration and the development of appropriate directions is called for’.[32] The significance and complexity of the remedial directions compel us to conclude that this issue should be addressed only once, and by the judge.
[32]Healy v The King [2024] VSCA 81 [46] (Beach Walker and Kaye JJA). In Healy, the judge had not written out his remedial directions to deal with the inappropriate statements made by the prosecutor, but instead gave an ‘ex tempore’ and inadequate direction.
Indeed, the proposed prosecutor’s correction has the potential to further confuse the situation and compound the problem:
•It was proposed that the prosecutor say by way of correction, ‘I did not intend to suggest to you that he did not do these things, or that he did do these things, because he had in fact caused these injuries.’ The difficulty is that, by any objective measure, this was in fact the unmistakable import of what the prosecutor had submitted in his impugned remarks. The proposed correction is therefore confusing.
•The prosecutor also says in the proposed correction, ‘My comments were made simply to illustrate to you that the alternative proposition, that the injuries were caused by another person, was implausible’. The difficulty with this is that it leaves open the possibility that his impugned comments about the acts and omissions of the applicant might, in some way, still legitimately illustrate ‘that the alternative proposition, that the injuries were caused by another person, was implausible’. Again, this is confusing.
Final observations in relation to certification in this case
In this case the trial judge decided that the applicable pre-condition to certification under s 295(3) of the CPA was satisfied, namely that the subject-matter was ‘of sufficient importance to the trial to justify it being determined on interlocutory appeal’.
In our view, the judge should not have certified.
This Court has been saying for over a decade that the procedure for interlocutory appeals is to be invoked responsibly and sparingly.[33] Interlocutory appeals are not suitable vehicles with which to challenge routine trial rulings made every day in the running of a trial. Applications to discharge the jury are routinely made in trials conducted in this State. They are generally inherently important. If a ruling is made in favour of the prosecution, the case may proceed to conviction. If the ruling goes against the prosecution, and the jury is discharged, there are significant consequences for the community and the parties. A discharge of the jury will result in costs and time being thrown away, and ongoing stress to the trial participants. Our point is that even if most discharge decisions are consequential, this does not mean that such decisions are ‘of sufficient importance to the trial to justify it being determined on interlocutory appeal’.
[33]Frazier v The Queen [2017] VSCA 370 [36] (Maxwell P and Kyrou JA); DPP v Paulino [2017] VSCA 38, [7]–[10] (Weinberg JA).
The consequences of certifying an interlocutory appeal for a jury discharge ruling must be weighed against the significant fragmentation which such an interlocutory appeal will inevitably cause. On the question of fragmentation of criminal proceedings, the following views were expressed in Director of Public Prosecutions v Pace (a pseudonym)[34]
The common law set its face against the fragmentation of criminal proceedings. In our view, the introduction of a regime for interlocutory appeals in criminal cases, introduced as recently as 1 January 2010, was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable. Indeed, one may readily discern from the text of the statute governing interlocutory appeals that it was not the legislature’s intention that fragmentation of criminal proceedings should ordinarily be contemplated. Thus, once a trial has commenced, leave to appeal may only be granted if the reasons for doing so clearly outweigh any disruption of the trial. Moreover, leave may only be granted if it is in the interests of justice to do so, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given.
…
The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings — as the impugned ruling is — made in the ordinary course of a criminal trial. It must be said — and cannot be ignored — that the already overloaded system of criminal justice in this State simply cannot cope with, and should not have to tolerate, interlocutory appeals directed to issues of little moment.
[34]DPP v Pace (a pseudonym) (2015) 45 VR 276, 283–4 [24]–[26] (Priest and Beach JJA) (emphasis added) (footnotes omitted).
These observations apply with equal force today and indeed to this case.
In our view, there was nothing so remarkable about the trial judge’s refusal to discharge the jury in this case that warranted the decision being certified. No point of principle was involved. Indeed the principles informing a decision whether to discharge a jury are well-settled. There were also factors in this case which strongly weighed against certification including the significant disruption to the trial and the stage at which the trial had been reached. The certification in this case, and the bringing of the interlocutory appeal, has resulted in significant dislocation to this trial. This has occurred at a critical juncture in the case deep into the trial (at the conclusion of the prosecutor’s final address). As at the time of the oral hearing the jury have been waiting in the wings for over a week now. They were sent away immediately after the conclusion of the prosecutor’s address and without having heard from the defence.
That is not to say that decisions on whether or not to discharge the jury can never be challenged by way of interlocutory appeal. Males is one such example. But that case was described as unusual where the considerations ‘overwhelmingly’ favoured a discharge. The prejudicial matter which trigged the application in that case — the changing of the protective arrangement of the screen for the complainant during her evidence — also occurred very early on in the trial. Interlocutory intervention averted an unnecessary trial, and thus avoided costs and time being thrown away. This case is a far cry from Males.
For the reasons we have given, at the end of the oral hearing, we concluded that it was not in the interests of justice that leave to appeal be given under ss 297(1) and (2) of the CPA. Quite apart from the judge being correct in her decision to refuse to discharge the jury, this was not a case where the reasons for giving leave clearly outweighed the disruption to the trial.
---

[2025] VSCA 190

8 August 2025