Vo v The Queen

[2013] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0026

MICHAEL VO	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, COGHLAN JJA AND DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 August 2013
DATE OF JUDGMENT	30 August 2013        (1st Revision, 3 September 2013, footnote 23 and paragraph 44)
MEDIUM NEUTRAL CITATION	[2013] VSCA 225
JUDGMENT APPEALED FROM	DPP v Michael Vo (Unreported, County Court of Victoria, Judge Chettle, 5 October 2012)

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CRIMINAL LAW — Application for leave to appeal against conviction — Applicant convicted of aggravated burglary and intentionally causing serious injury — Direction given for alternative charges to the charge of intentionally causing serious injury — Whether the judge erred by impermissibly dictating the sequence of the jury’s deliberations — Leave to appeal dismissed.

CRIMINAL LAW — Application for leave to appeal against conviction — Application of Criminal Procedure Act 2009 s 276(1) — Whether substantial miscarriage of justice in the applicant’s trial as a result of error or irregularity — On the issues contested at trial and the evidence, jury’s finding of guilt on intentionally causing serious injury was inevitable — Baini v The Queen (2012) 293 ALR 472 applied — Leave to appeal dismissed.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr T Kassimatis	Pica Lawyers
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. I have had the advantage of reading the draft reasons of Dixon AJA and agree with him that leave to appeal should be refused.

COGHLAN JA:

1. I also have had the advantage of reading the draft of reasons of Dixon AJA and agree that leave to appeal should be refused.

DIXON AJA:

1. On 5 October 2012 the applicant was convicted of aggravated burglary (charge 1) and intentionally causing serious injury (charge 2) to Clifford Ralston following an 8 day trial by jury in the County Court.  He was sentenced to 5 years’ imprisonment on charge 2 in a total effective sentence of 6 years and 6 months with a non-parole period of 4 years and 4 months.  A co-offender, Jordan Vo, was convicted on one charge of aggravated burglary.  Another co-offender was acquitted on all charges.

1. The application is for leave to appeal and the applicant relies on a sole ground of appeal.  This was that a substantial miscarriage of justice occurred in the trial of charge 2 as a result of the judge’s directions to the jury that they must deliberate sequentially from the most serious offence charge through to the least serious offence left to them to consider.  In particular, the judge erred by directing that:

(a)when the jury considered their verdicts they should first consider the principal charge of intentionally causing serious injury as against the accused; and

(b)it is only if the jury’s verdict is not guilty with respect to that principal charge or any part of it that the jury should next consider charge 3 and then the lesser alternatives of causing injury intentionally and causing injury recklessly.

1. This appeal raises an issue that has been considered in a number of recent decisions of this court[1] – did the judge, by his charge, impermissibly direct the sequence of the jury’s deliberations.  For the reasons that follow, I have concluded that the judge did not do so.  I commence by explaining so much of the circumstances of the offending and the procedure at trial as elucidates my reasons.

   [1]LLW v R [2012] VSCA 54 (4 April 2012) (Maxwell P, Weinberg JA, and Williams AJA); Bedson v The Queen [2013] VSCA 88 (26 April 2013) Redlich, Weinberg and Coghlan JJA) (Medici v The Queen [2013] VSCA 111 (14 May 2013) (Harper, Priest and Coghlan JJA) and Smith v The Queen [2013] VSCA 112 (14 May 2013) (Harper, Priest and Coghlan JJA).

1. The applicant and co-offender Jordan Vo were in a de facto relationship.  On 21 August 2009, there were two altercations at a unit in Port Melbourne, one involving Sasha Kearns, Jordan Vo’s daughter and a person called Amanda Stevenson, and the other was between Dimitri Navocal and Anthony Allen.  Allen resided at the Port Melbourne unit with his mother Susan Allen, her partner, Clifford Ralston was also present from time to time, and Ms Allen’s sister Gail Stevenson (mother of Amanda Stevenson).  There was a history of animus between Mr Allen and Ms Kearns, who had formerly been in a relationship.  Allen had a history as a violent drug user.

1. At 10:00 am on 22 August 2009 four males and three females arrived together at the Port Melbourne address.  The applicant and Jordan Vo were alleged to be part of that group. 

1. Ralston met the group at the gate.  He was grabbed and pushed inside the unit.  The group entered the unit.  They looked for Allen who was in the lounge room.  Ralston protected Allen.  The applicant picked up a jade statue and struck Ralston to the back of the head with it.  The applicant then picked up another statue and struck Ralston to the side of the head with it.  Ralston ran to the kitchen.  The applicant followed him saying ‘You can die now, motherfucker’ and struck him again to the head with the statue.  Ralston locked himself in the toilet and attempted to stop the bleeding with a towel.  He heard the group threaten to shoot the occupants of the house if they called the police.  Ralston suffered wounds to the upper centre forehead and rear of his head requiring stitches.  The medical evidence called at trial was that his injuries were consistent with him receiving at least three separate forceful blows to the head.

1. The applicant was presented, with the co-offenders, on 5 charges, including recklessly causing serious injury to Clifford Ralston as an alternative to charge 2.  The applicant was acquitted on charge 3 of recklessly causing serious injury to Clifford Ralston, charge 4 of intentionally causing serious injury to Susan Allen and charge 5 of recklessly causing serious injury to Susan Allen.

1. At trial, there were two principal issues for the jury.  Did the applicant individually, or acting in concert with the two co-offenders, cause serious injury to Clifford Ralston and Susan Allen.  The identification of the applicant as the offender was contested.  The second issue was whether serious injury to Clifford Ralston and Susan Allen was caused intentionally or recklessly.

1. The applicant contended that the directions to the jury were unequivocal.  They spoke to the jury’s consideration of the charges during their deliberations and mandated a clear, sequential path of deliberation thereby disclosing error.  There can be no such constraint on a jury’s process of deliberation.  A jury can legitimately have dictated to it the order in which its verdicts are delivered; but not so its consideration of the charges on an indictment.  A jury is at liberty to consider the charges in whatever sequence it considers appropriate.

1. The applicant contended that the impugned directions required the jury to foreclose from its consideration of charge 2, his possible guilt on charge 3 and the other lesser alternatives to charge 2.  Those directions might thus have deprived the applicant of a guilty verdict on one of the lesser offences charged or left to them to consider.  In the result, it was submitted, the trial on charge 2 miscarried.  Defence counsel’s failure to take exception to the judge’s directions was simply an oversight.  There was no advantage to the applicant that could suggest a deliberate forensic choice by counsel not to seek from the judge re-direction according to law.

1. The Crown contended that the directions complained of by the applicant did not, when read fairly and in context, amount to directions as to how the jury should approach their deliberations.  Each was a proper direction about the form of the indictment and how the verdicts would be taken.  A trial judge does not dictate to a jury a sequence of deliberation merely by informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them.  The impugned passages of the directions would not have been understood by the jury as circumscribing the process of deliberation.

1. Further, the Crown contended there was no substantial miscarriage of justice.  The primary issue in the case was identification, described by the judge as ‘the red hot battle in this case’.  The extent of injury was not really in issue.  The intent of the accused, if identity was accepted, was a subsidiary issue.  The jury deliberated for around two and a half days.  Their verdicts demonstrate their careful consideration of the evidence.  In circumstances where the real issue was identification, where the case was not run on behalf of the applicant on the question of intent, and where the acts the subject of charge 2 were three blows to the head using a blunt object, it could not reasonably be argued that the directions now complained of, if in error, gave rise to a substantial miscarriage of justice.

1. The principles that apply are not in dispute.  What is in balance in any particular case where there are alternative charges was described by Harper JA in Medici v The Queen.[2]  On the one hand, the High Court emphasised in Stanton v The Queen[3] that jurors enjoy freedom to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient.  Their autonomy must be respected.  Were this not so, the jury might reason to a verdict to which, without the intervention of the judge, they might not have otherwise come.  On the other hand, juries are entitled to assistance with their responsibilities that will include accurate directions about how to adjudicate upon a case in which alternative charges have been laid, or are open. 

   [2][2013] VSCA 111 (14 May 2013), [11]–[12].

   [3][2003] HCA 29; (2003) 198 ALR 41.

1. In this appeal, the issue was, in practical terms, limited to the issue of intent on charge 2 and the alternative, charge 3.  The question is whether the judge directed the jury in such a way as to mandate that the issue of reckless intent in relation to charge 3 must not be considered until the issue of intent for the more serious charge, charge 2 is decided. 

1. This court has, in both Medici and Smith v The Queen,[4] accepted as applicable the principles summarised by Jenkins J in Simms v R.[5]

1.It is impermissible for a trial Judge to direct members of a jury that they must consider alternative charges in any particular order as jurors are free to organize their deliberations in whatever manner appears to them to be convenient. 

2.When determining whether a trial Judge’s directions have infringed this prohibition the question is whether the trial Judge might reasonably have been understood to convey anything to the contrary, or whether he or she was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them. 

3.In determining the answer to this question, an individual direction should not be construed on its own but must be considered in light of the issues that have emerged at the trial, the whole of the trial Judge’s directions and any questions from the jury.

[4][2013] VSCA 112 (14 May 2013).

[5][2004] WASCA 237; (2004) 148 A Crim R 433, 442 [50].

1. In LLW v R,[6] this court emphasised that there was no constraint on a jury considering guilt on an alternative count before they had arrived at a verdict on the principal count. 

The High Court decision in Stanton makes clear, however, that there is no such constraint on the jury’s processes of deliberation.  The only constraint on a jury considering alternative counts relates to the order in which their verdicts are delivered.  The jury cannot deliver a verdict on an alternative count unless they have first acquitted the accused of the principal count.  (citation omitted)

[6][2012] VSCA 54 (6 February 2012), [11].

1. In Smith,[7] Priest JA succinctly identifies the court’s approach. 

Thus a direction which purports to direct a jury as to a sequence of reasoning is contrary to law.  Juries are free to consider their verdicts in whichever order they choose.  In this case, therefore, it is necessary to ask: was the effect of the trial judge’s directions to dictate the sequence in which the jury had to consider the alternative charges (rather than the sequence of delivery of the verdicts)?

[7][2013] VSCA 112, [28].

1. As Priest JA demonstrates in his analysis of the directions of the trial judges in Medici and Smith, respectively, individual directions – including the passages that are the subject of specific criticism by an appellant – must not be construed in isolation, but must be considered in the context of the directions as a whole and in light of the issues that were contested at the trial.  Priest JA was applying the observations of the majority in Stanton:[8]

A proper appreciation of what [the trial judge] said requires attention to three matters: the issues as they emerged at the trial; the other directions that the jury had already been given; and the precise question to which he was giving an answer.

In Stanton, the issue arose, in part, upon an answer to a jury question during deliberations, which did not occur in this case.

[8][2003] HCA 29; (2003) 198 ALR 41, [36].

1. The ‘red hot’[9] issue in the case was the identification of the applicant.  The jury’s deliberation on the issue of identification was not inappropriately circumscribed by the passages of the judge’s charge to which objection was taken on appeal.  The extent of the injury was, in practical terms, not in issue.  The applicant’s defence was not run on the issue of intent, but the alternative charges required that intent be considered.  In relation to charge 2, the judge noted in his charge:

It was not suggested to you that whoever it was for example, who hit Clifford Ralston on the head with the Buddhas or with the elephants [the statues], was not intending to cause him serious injury.  The argument really addressed to you by Mr Mandy was, it was not his client.  You could not be satisfied it was Michael Vo. 

[9]As the judge characterised it in his charge.

1. Once the jury was satisfied beyond reasonable doubt that the applicant caused the injury to Ralston, the remaining issue was the applicant’s intention when doing so, in order to choose between the alternative counts.  The judge’s directions about the requirements for the element of intent in intentionally causing serious injury and recklessly causing serious injury became relevant.  The fact that the judge directed in the sequence of the counts in the presentment, which corresponds with the seriousness of the offences and the procedure by which the verdicts would be taken, did not, as the applicant would have it, foreclose from the jury’s consideration of charge 2, his possible guilt on charge 3 and the other lesser alternatives to charge 2. 

1. As the passages that I will shortly set out make clear, the judge’s directions, read in the context of the issues at trial, put fairly, and at length, the considerations that governed the jury’s deliberations on charge 2.  The possibility of a finding of guilt on charge 3, was, on the judge’s directions, open for the jury’s deliberation in whatever way the jury thought to approach it.  On the judge’s directions, it remained open to the jury to characterise the applicant’s intent as reckless and for that reason acquit the applicant on charge 2. 

1. The jury’s task was no more than a choice between alternatives.  The judge directed, when explaining the element of intention for the charge of intentionally cause serious injury:

This element will not be satisfied if the particular accused are considering, intended only that injury result rather than serious injury.  They have to intend that serious injury result and they must intend, or the purpose you are considering, must intend that serious injury occur to the victim you are considering.

It’s in that regard that there are a number of alternatives.  It is the intention, the state of mind of the person that you may or may not be satisfied about various levels of state.  That is why I have got to go through a number of these alternatives with you because it is on that the alternatives counts and the statutory alternative counts really depend.  In this case there really is not any argument that both Ralston and Ms Allen sustained serious injury.  Again, that is a matter for you but nobody tried to convince you that they did not.  The real argument was who did it and if they did do it, what were they intending and what does the evidence show as to the intent of the people involved?[10]

[10]Charge transcript 491:1–491:19.

1. The judge’s explanations about how the jury might consider the alternative states of mind that distinguished the offences of intentionally cause and recklessly cause serious injury did not, in the context in which that issue arose in the trial, constitute impermissibly mandating a sequential path of deliberation.

1. I now turn to the particular passages of the charge impugned by the appellant. The first passage about which the applicant complained was:

You would only consider Count 3 if you were not satisfied beyond reasonable doubt of their guilt in respect of Count 2.  My associate will not ask you for a verdict in respect of Charge 3 if you return guilty verdicts in respect of Charge 2, but against any person to whom you return a not guilty verdict in relation to Charge 2, she will go on to ask you about the alternative count, Count 3, or in relation to Count 4, the alternative count, Count 5, do you follow the way that works.  And I will say more about that obviously when I come to outline the offences to you.[11]

[11]Charge transcript 424:25–425:4.

1. The second passage about which the applicant complained was:

I am going to turn now to intentionally and recklessly cause injury which are Charges 2, 3, 4 and 5.  Before I go, I have told you that 3 is an alternative to 2, and 5 is an alternative to 4.  There are two more alternatives – four more alternatives really, the charges are not written down but are implicit which I will have to tell you about, at the risk of sending you all asleep.

If you were not satisfied of intentionally cause serious injury you would look at recklessly cause serious injury, this is all dependent on the state of mind of the person, the accused you are considering. 

There are alternative offences called statutory offences of intentionally cause injury and recklessly cause injury which are open in this case.  You will notice the only difference is that it is injury, not serious injury.  Now it sounds complicated but I will be able to step you through this in the morning about the process for which you go through these counts.  It means that if you were to find, for example, looking at Count 2, that any particular accused is not guilty of Count 2 you would then be asked about Count 3.  If you found a person not guilty in relation to Count 3 as well you would then be asked about the first statutory alternative of intentionally causing injury.  And then if you are found not guilty on that, the second statutory alternative of recklessly causing injury as distinct from serious injury.   

So there are really in respect of those two charges four charges.  And it depends upon – I hope when I explain the elements of the offence to you, predominantly your finding as to what the accused did at the time, none of this matters, if you are not satisfied beyond reasonable doubt that the accused was there and participated in the offending either as a principal or in concert with the others you will not have a problem with this, you cannot find him guilty.

But there are hypotheses or factual scenarios open that require me to tell you about all four of those offences and I will do that in the morning.[12]

[12]Charge transcript 475:6–476:13.

1. The applicant complained that the judge reiterated the directions in erroneous terms the next day when directing the jury as to the elements of the offences of intentionally causing serious injury (charges 2 and 4) and, later, the elements of recklessly causing serious injury (charges 3 and 5), in particular, in the following passage:

Let me now turn to Counts 3 and 5 on the indictment, which are the alternatives of recklessly causing serious injury.  If you found any of the accused, because they are all charged with it, but any particular accused not guilty of intentionally causing serious injury, you must next consider whether the offence of recklessly causing serious injury has been established.  This is an alternative to the offence of intentionally causing serious injury.  That means you only need consider it if you are not satisfied beyond reasonable doubt of intentional.  You get to the alternatives if you are not satisfied on the counts before.[13]

[13]Charge transcript 493:10–493:21.

1. In my view, on a fair reading of each of the passages isolated by the applicant as productive of error, while the directions inform the jury, properly, that they only need consider lesser alternatives if they acquit on more serious charges, they do not dictate a sequence of deliberation or direct the jury to organise their deliberations other than in whatever manner appears to them to be convenient.  Moreover, these passages are preceded, or followed, by directions about the sequence in which verdicts are taken.  Further, these passages do not require that the jury foreclose from its consideration of charge 2, the applicant’s possible guilt on charge 3 and the other lesser alternatives to charge 2 and thus deprive the applicant of a guilty verdict on one of the lesser offences charged or left to them to consider.

1. Although the word ‘consider’ in the first impugned passage is suggestive of a direction that the jury need not deliberate the alternative counts where they reach a guilty verdict on the primary counts, in context the first impugned passage does no more than provide proper assistance to the jury about how to adjudicate upon a case in which alternative counts have been laid.  The judge’s directions immediately prior to this passage make that clear.  The judge had just stated to the jury:

Each count must be considered in relation to the evidence that applies to it, in relation to each accused, so your task is to consider each count separately in relation to each accused separately and ask yourself does the evidence satisfy me beyond reasonable doubt of that accused's guilt in respect of that count, or that charge?  If the answer is yes you convict, if the answer is no you will acquit.  Logically and obviously it is just not sensible, it does not follow that because an accused is guilty of one charge they are necessarily guilty of the other charge, or if an accused is not guilty of some charge they are necessarily not guilty of others, there may be different evidence applicable to each count and there is in this case. 

So you consider each count separately and ask yourself the question that I outlined a moment ago.[14]

In the next sentence, following the use of the word ‘consider’, the judge is referring to the process of taking the verdicts.  There is no error evident in the first impugned passage.

[14]Charge transcript 423:24–424:8.

1. Read fairly, the second impugned passage likewise provides proper assistance to the jury about how to adjudicate between the alternative charges on the presentment and the statutory alternatives.  The jury was invited to focus on the issue of alternative counts in the context of the two real issues in the trial, identification and the subsidiary issue of intent.  The judge was not, in that passage, dictating to the jury that it must organize its deliberations as he prescribes, rather than in whatever manner appears to them to be convenient.  It is, I think, plain that the judge was properly assisting the jury with directions about how to adjudicate upon a case in which alternative charges have been laid, or are open.  There is no error evident in the second impugned passage.

1. The third impugned passage does contain the phrases: ‘you must next consider’ and ‘you only need consider’ which, in isolation, might be thought to improperly direct a sequence of deliberation.  Such phrases can bring jury directions to the line, identified in Stanton, that must not be crossed, because, as Jenkins J observed in Simms[15] they may be apt to indicate a sequence of consideration of the alternative charges as opposed to a sequence of delivery of verdicts.  But, critically, at no stage does the judge’s language become didactic about the organisation by the jury of its deliberations.[16]  The particular passage set out above was immediately followed by this direction:

The only difference between the offence of recklessly causing serious injury and the offence of intentionally causing serious injury relates to the third element, the accused's state of mind.  Remember I told you that the Crown had to prove for intentionally causing serious injury, an intention to cause serious injury.  That is, a specific state of mind at the time the injury is inflicted, that the accused intended to cause serious injury.  You have to be satisfied beyond reasonable doubt about that.  Let us assume you were not satisfied that that was the specific intent at the time, from all the circumstances.  You would then consider, ‘Have the Crown proven a lesser state of mind, a different state of mind, reckless as to whether or not serious injury occurred?’[17]

[15]At [77].

[16]Refer to the discussion by Harper JA of the distinctions consequent on the language that a trial judge uses in Medici, [13]–[18].

[17]Charge transcript 493:22–494:4.

1. In my view, this direction is proper and does not mandate for the jury a sequence of deliberation that impinges on the jury’s freedom to decide for itself how it deliberates on the issue of the applicant’s intent.  Further, it explains the relation between each relevant specific intent, elsewhere explained, in the proper context of assisting the jury with the alternative counts. 

1. A few minutes later, on completing his directions about the elements of the offences charged, the judge said:

I had to tell you all that and I will stop there for a moment, because as I say the prime argument of each of the accused is they were not there and so they were not responsible for any of it.  But assuming you find that the accused were present and you accept the identification of them as being present, beyond reasonable doubt, you nonetheless have to go through and determine whether or not the Crown have proven which of the crimes they committed, if any.  That is, whether the elements as I have explained them to you, have been proved beyond reasonable doubt.[18]

At this point the judge is referring to the alternative charges in the presentment.  When the judge then continues to direct the jury about the statutory alternatives of intentionally cause injury and recklessly cause injury, those directions are plainly necessary to assist the jury about how to adjudicate a case in which statutory alternative counts must be considered.  So much is clear from the judge immediately presenting to the jury a ‘little chart’ and directly explaining how the process of taking the verdicts is sequenced.  There is no error evident in the third impugned passage.

[18]Charge transcript 496:10–496:20.

1. So far, I have concentrated on specific passages of the judge’s directions.  When the directions are read in their entirety, so that the impugned passages are considered in the proper full context, the judge did not direct the jury so as to dictate any sequence or process of deliberation in a manner that offends the right of a jury to enjoy freedom to organise its individual processes of reasoning, or its discussions as a group, in whatever manner appears to it to be convenient.  The directions emphasised what the jury needed to consider to navigate the law’s requirements concerning alternative charges.  That was all. 

1. There is an unavoidable concept of sequence in alternative charges, from most serious to less serious.  The judge’s directions did not, when read as a whole, deprive the applicant of a guilty verdict on one of the lesser offences charged or left to them to consider in lieu of the more serious charge.  It might be thought that the judge’s directions could not be criticised had he also specifically informed the jury that his directions concerning alternative counts do not impinge upon the jury’s freedom to organise its individual processes of reasoning, or its discussions as a group, in whatever manner appears to it to be convenient, but that is not to the point.

1. In R v Kane,[19] Ormiston JA said of the situation where there is a misdirection as to a lesser charge, but an impeccable direction as to the main offence:

I am prepared to accept that, where a judge gives an incorrect direction as to an alternative verdict of which the jury has been made aware, then a question must arise as to the effects that may have had on the jury's deliberations, bearing in mind that the jury will have attempted to apply the judge's directions on each charge but will have been misled, to a greater or lesser extent, as to what they might find in relation to the alternative charge.[20]

[19][2001] VSCA 153; (2001) 3 VR 542.

[20]Ibid, 545-6, dissenting in the result, but not as to this point of principle.

1. It was, perhaps, in this sense that the applicant contended that the judge’s directions might have deprived the applicant of a guilty verdict on one of the lesser offences charged or left to them to consider.  In the present case, it is difficult to see what possible effect any misdirection about a sequence for considering the alternative charges or offences might have had upon the jury’s deliberations on the most serious charge.  In my opinion, in the context of the whole charge, nothing that was said in relation to the lesser alternative could conceivably have diverted the jury from properly considering the charge of intentionally causing serious injury.  The primary judge’s direction did not affect the jurors’ understanding of the elements the Crown had to establish in order to prove that the applicant had committed that more serious offence. 

1. I conclude with three further observations.  I do not accept that defence counsel’s failure to take exception to the judge’s directions was simply an oversight.[21]  When the issues on which the trial was fought are recalled, the fact that counsel took no exception rather suggests that no unfairness to the applicant was foreseen in the atmosphere of the trial as it unfolded, not that an oversight occurred.  It does not appear that counsel considered that the directions were likely to confuse or mislead the jury.  The jury deliberated for around two and a half days.  The result of the trial shows that the jury carefully considered the evidence in respect of the charges separately.  The applicant was acquitted on charges 3–5.  The co-offender Jordan Vo was only convicted on charge 1 and another co-offender was acquitted on all charges.

   [21]See generally Kingv The Queen (2012) 245 CLR 588, Bedson v The Queen [2013] VSCA 88, at [57]–[58].

1. I add my voice to the chorus of suggestions as to what ought prudently be said by trial judges when faced with this circumstance.[22]

   [22]Stanton, [69], Smith, [40], Medici, [18].

1. Finally, were I wrong in my view, and the judge’s directions did dictate the sequence of the jury’s consideration of the charges, I would nonetheless conclude that no substantial miscarriage of justice had been occasioned.[23]  On the postulated assumption, there had been ‘an error or an irregularity in, or in relation to, the trial’.[24]  The applicant contended that the consequence of the error or irregularity was that it foreclosed from the jury’s consideration of charge 2, his possible guilt on charge 3.  Unless this error or irregularity had no bearing upon the result of the trial, there was a ‘substantial miscarriage of justice’ because the jury may have reached different conclusions had the course of deliberation on the evidence touching upon the alternative charges been different. 

   [23]Baini v The Queen (2012) 293 ALR 472; Andelman v R [2013] VSCA 25 [85]. Bainiv The Queen [2013] VSCA 157 [18].

   [24]Section 276(1)(b) Criminal Procedure Act 2009 (Vic)

1. In Baini,[25] the plurality observed that in some cases, it may be possible for an appellate court to conclude that there has not been ‘a substantial miscarriage of justice’ because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the applicant was guilty of the crime alleged.  Several observations were made about this possibility.

(a)The nature of the error, irregularity or cause of complaint contemplated by those paragraphs will often prevent that conclusion from being reached by an appellate court on the record of the trial given the ‘natural limitations’ that attend the appellate task.

(b)The appellate court’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been ‘a substantial miscarriage of justice’. The Court's satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question posed by s 276(1)(b) and (c).

(c)the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open.  That is to say, in this case, the question is whether an acquittal verdict on charge 2 was not open. 

[25](2012) 293 ALR 472, 478–9 [28]–[32].

1. My conclusion is not precluded by the nature of the irregularity.  Once the jury were satisfied that the applicant was involved in seriously injuring the victim,  what is described as a sequence of deliberations was, on the issues in the trial, a simple choice between finding intentional cause or reckless cause for the serious injury to Ralston.  On the record of the trial, and accepting the ‘natural limitations’ that attend the appellate task, could the jury have found that the applicant’s intent was at its highest a reckless intent if it had been free to deliberate in whatever manner it saw fit? 

1. In my view, a jury, acting reasonably on the evidence and which was satisfied beyond reasonable doubt that the applicant struck Ralston three times with the statue, in the manner I have described, could not have found that his intent was only reckless.  The finding of guilt on charge 2, intentionally causing serious injury, was inevitable.  There was no submission that demonstrated that a finding of reckless intent was open, and the comment of the judge when directing the jury that the issue at trial was identification and not intent is set out above.[26]

   [26]At [21].

1. The unchallenged finding by the jury that it was the applicant who hit Ralston three times on the head with various statuettes as described by this evidence inevitably required that the applicant’s state of mind was not reckless but intentional.  The applicant delivered the first blow from behind while Ralston was crouching over Allen to protect him, the second blow was delivered while the applicant was standing over Ralston, then after Ralston had moved to the kitchen he was struck again, the applicant saying as he did so ‘you can die now, motherfucker.’

1. I would refuse the applicant leave to appeal.

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