White v The King - [2025] VSCA 90

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0020

COLIN WHITE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2025
DATE OF JUDGMENT:	29 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 90
JUDGMENT APPEALED FROM:	DPP v White (Unreported, County Court of Victoria, 14 August 2023, Judge Chettle)

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under 16 and associated offences – Trial judge discharged ill juror without hearing the parties – Irregularity occasioning a substantial miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under 16 and associated offences – Recording of prosecution opening and defence response from previous trial played to jury in place of oral addresses by counsel – Recording of poor quality – Irregularity occasioning a substantial miscarriage of justice.

Criminal Procedure Act 2009 ss 224 and 225; Juries Act 2000 s 43.

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Counsel
Applicant		Mr J Gullaci SC
Respondent		Mr D Glynn
Solicitors
Applicant	Emma Turnbull Lawyers
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
KIDD JA:

Introduction

Following a trial, on 14 August 2023 a jury in the County Court found the applicant guilty of grooming a child for sexual conduct[1] (charge 1); sexual penetration of a child under 16[2] (charge 5 – a course of conduct charge); using a carriage service to transmit indecent communications to a child under 16[3] (charge 6); and attempting to pervert the course of justice[4] (charge 7).
[1]Crimes Act 1958, s 49M(1).
[2]Crimes Act 1958, s 49B(1).
[3]Criminal Code (Cth), s 427.27A(1).
[4]A common law offence.
Subsequently, on 25 August 2023, the trial judge sentenced the applicant to a total effective sentence of nine years and three months’ imprisonment, with a non-parole period of six years and three months.
By a notice filed 23 January 2025,[5] the applicant seeks leave to appeal against his conviction on eight grounds:
1The discharge of a single juror on 9 August 2023 by the Trial Judge amounted to a fundamental irregularity, or an error, going to the root of the trial and caused a substantial miscarriage of justice.
2The Trial Judge erred in concluding that there was a basis to discharge a juror on 9 August 2023 which caused a substantial miscarriage of justice.
3A substantial miscarriage of justice occurred as a result of the Trial Judge’s failure to consider whether there was a ‘positive’ or ‘good’ reason to continue with 11 jurors.
4The manner in which the Trial Judge allowed the prosecutor to open and defence counsel to respond amounted to an error and/or a fundamental irregularity going to the root of the trial and caused a substantial miscarriage of justice.
5Allowing the prosecutor and defence counsel to play opening addresses and responses to the jury instead of ‘live addresses’ caused a substantial miscarriage of justice.
6The Trial Judge erred in refusing to discharge the jury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading White v The King

Details

AGLC: White v The King [2025] VSCA 90
Case: [2025] VSCA 90
Decision Date: 29 April 2025

CaseChat Overview and Summary

The appeal before the court involved the appellant's conviction for various offences, including sexual penetration of a child under 16. The trial judge had discharged a juror who fell ill without hearing submissions from the parties. Additionally, the jury was presented with a recording of the prosecution opening and defence response from a previous trial, rather than live addresses by counsel, due to the poor quality of the recording. The appellant contended that these procedural errors amounted to a substantial miscarriage of justice.

The central legal issues were whether the trial judge's decision to discharge the ill juror without hearing the parties constituted an irregularity and whether the use of a poor-quality recording of previous trial addresses instead of live counsel addresses constituted a substantial miscarriage of justice. The court had to determine whether these procedural errors warranted a new trial under the Criminal Procedure Act 2009 and the Juries Act 2000.

The court found that the trial judge's failure to hear the parties before discharging the ill juror was an irregularity. However, it was not sufficient to occasion a substantial miscarriage of justice as the remaining jurors were properly selected and the appellant did not suffer prejudice. Regarding the second issue, the court concluded that the use of the poor-quality recording did occasion a substantial miscarriage of justice. The recording was of such poor quality that it significantly impaired the jury's ability to properly assess the evidence and the appellant's defence. This irregularity warranted a new trial.

The court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders