1. The applicant contends that this construction of s 50 was held as correct by this Court in both R v Patton[17] and Youssef.[18]
2. At the oral hearing of the application the applicant was asked whether the separation oath would perform its safeguarding purpose where it was given before the jury retired but in close temporal proximity to the first separation of the jury and in circumstances that ensured its purpose operated on the minds of the jurors. The applicant accepted that it would. Nonetheless, the applicant maintained that the proper construction of s 50 required the separation oath to be taken by the jurors only after the jury had retired.
3. The applicant argues that in this case the judge erred in allowing the jurors to separate on the afternoon of Friday 2 August 2024. The judge had no power to do so as the separation oath had not been given after the jury had retired to consider its verdict. The applicant's argument is that jury separation without oath is a serious departure from the prescribed processes of a trial and a substantial miscarriage of justice. [19] It is put that this is a fundamental irregularity and necessitates that his conviction on charge 2 be set aside and a new trial on that charge ordered.[20]

1. The applicant contends that the failure of the judge to remind the jury of the previously given separation oath at the time they were permitted to separate at 4:57 pm on Friday 2 August 2024 created a risk that one or more jurors failed to comply with the separation oath. It is argued that it necessarily follows that justice does not appear to have been done as the risk raises a reasonable suspicion concerning the fairness of the applicant's trial.
2. The applicant contends that these matters demonstrate a fatal irregularity in his trial. There has been a serious departure from the prescribed processes, the impact of which cannot be determined, such that a miscarriage of justice has occurred.

1. The respondent accepts that the giving of a separation oath by each juror mandated by s 50(2) of the Juries Act is a prerequisite to the s 50(1) discretion of a trial judge to permit the jury to separate after it has retired to consider its verdict. The respondent contends, however, that nothing in s 50 mandates that the separation oath must be given only after the jury has retired to consider its verdict and during deliberations. This is in contradistinction to s 42 of the Juries Act which mandates that 'on being empanelled' jurors must take an oath or affirmation in the form of sch 3 to 'faithfully and impartially try the issues between the Crown and the accused ... and give a true verdict according to the evidence'.
2. It is argued that the construction of s 50 of the Juries Act contended for by the applicant conflates the discretion granted in s 50(1), to permit jury separation after retirement, with the prerequisite giving of a separation oath in s 50(2) in a way not supported by the structure of the section or its intended operation. There is no ambiguity in the section. Each sub-section has different work to do. It is put that as long as the condition precedent of the s 50(2) separation oath has been met at some time during the trial, the safeguard that allows a judge to exercise his or her discretion under s 50(1) to allow the jury to separate after they have retired is operational.
3. That s 50 of Juries Act does not prescribe a specific time at which the separation oath must be administered is said to be supported by Frendo.[21] It is contended that this Court would need to determine that Frendo was plainly wrong for the applicant's argument to succeed.
4. Similarly, the respondent submits that only one of the authorities relied upon by the applicant gives any support to his construction of s 50[22] and that, in any event, the observation in Patton that the separation oath must be given when the time for separation 'first arrives' is both dicta and inconsistent with a plain reading of the statute.
5. The respondent further points to the common practice of administering the separation oath just before a jury retires to deliberate. It is argued that the applicant's interpretation would necessitate an overly rigid practice requiring the jury to return to court to take the separation oath after deliberations had begun. If Parliament had intended such a procedure be mandated, the respondent argues that it would have used clear and unambiguous language to do so.
6. Accordingly, the respondent submits that in this matter there has been no significant deviation from normal trial process by the fact that the separation oath was administered before the jury retired. It follows that there has been no fundamental irregularity in the trial nor a serious departure from the prescribed process of a trial.

1. The respondent acknowledges that while the relevant authorities support the practice of reminding jurors that they remain bound by the separation oath, there is no statutory requirement for such reminder to be given. That is, while it might be desirable, it is not mandatory. The respondent submits, therefore, that failure to do so does not constitute a serious departure from the prescribed process of a trial.[23]
2. It is argued that it must be assumed that jurors are conscientious and follow judicial directions.[24] There is no reason to assume that, absent a reminder, jurors will not understand or heed an earlier given separation oath in the same manner as they are presumed to understand and apply the earlier given oath or affirmation to faithfully and impartially try the issues and return a true verdict according to the evidence. Further, at a time proximate to the commencement of deliberations, a jury will observe jurykeepers take an oath or affirmation in the form of sch 4 of the Juries Act to 'well and truly keep' the jury and 'not allow any of them to communicate with any other person, or any other person with any of them'. This has an 'educative effect on the jury as to the proper standards of conduct they should observe'.[25]
3. That the trial in this case was relatively short is argued by the respondent to bolster those submissions.

1. Ground 1 concerns a question of statutory construction. It does not concern what might be termed 'best practice' for the administration of the separation oath.
2. Originally the common law did not allow jurors, once empanelled in a criminal trial, to separate until they had delivered their verdict. The rule was very strict. Over time the rule was modified to permit jurors to desegregate during lunchtime and overnight adjournments until they retired to consider their verdict. At that point the jury was sequestered.[26]
3. In Victoria the common law requirement of jury sequestration during deliberations was modified by statute in 1993. Section 51A was then inserted into the now-repealed Juries Act 1967 ('1967 Act'). Like s 50 of the current Juries Act, it gave a trial judge the discretion to allow a jury to separate at any time between the jury retiring and the return of its verdict if each juror gave a separation undertaking. It was in the following terms.

Court may allow jury to separate after retiring to consider verdict

(1) Subject to sub-section (2) but despite anything to the contrary in any rule of law or practice, the court may, in its discretion, allow the jury to separate at any time between it retiring to consider its verdict and the verdict being given or the jurors being discharged.

(2) A court may only allow a jury to separate in accordance with sub-section (1) if each juror has given to the court an undertaking on oath or by affidavit not to discuss with any person, other than another member of the jury, any matter relating (directly or indirectly) to the inquest.

1. Three 1996 decisions of this Court considered s 51A of the 1967 Act.
2. In R v T a trial judge allowed a jury to separate after they had retired without first giving the s 51A(2) undertaking. This Court held that the power to exercise the s 51A(1) discretion was dependent upon the 'condition precedent'[27] of the s 51A(2) undertaking. In R v Appleby[28] the jury was permitted to consider verdicts in three groups with respect to a 94-count indictment, returning verdicts on one group before being charged in respect of, and considering, the next group. The jurors gave the separation undertaking on the first occasion they were allowed to separate during deliberations on each group. Without being further sworn the jury were allowed to separate on two occasions between returning verdicts on a group of charges and being charged on the next, as well as on four occasions while considering a particular group of charges. This Court held that the s 51A(2) undertaking should only be given once. Patton confirmed that s 51A did not require the undertaking to be given more than once.
3. These early cases established the following.
4. First, s 51A intended to modify the common law.[29] It was a very significant modification. The section fell to be interpreted accordingly.
5. The Court in Patton specifically rejected an argument that the section had to be read in light of the common law requirement for deliberating jurors to be sequestered, such that s 51A should be read to require jurors to give the separation undertaking prior to each and every separation during deliberations.[30] The Court observed that

[i]t can be accepted that, at common law, juries were required to be cloistered after retirement and until verdict. Section 51A however was clearly designed to modify the strictness of the common law practice in favour of convenience to jurors, provided that the requirements imposed by the section were complied with.[31]

1. The Court thus gave the section a 'workable interpretation'.[32]
2. In Appleby, the Court similarly gave the section an efficacious interpretation.
3. Given that the deliberations in that case proceeded in three groups of charges, the Court considered the phrase 'between retiring to consider its verdict and the verdict being given' in s 51A(1). Smith AJA held that phrase to mean that once a jury retires to consider the first of a series of verdicts it may, if the solemn undertaking had been given, be allowed to separate until the final verdict was given. This gave effect to the purpose of the legislation, being 'to change the common law while minimising the risks in practice that would flow from such a change.'[33] Callaway JA observed that

[t]he natural and grammatical meaning of the words used is that the period referred to is that between the jury's retiring to consider their verdict and the verdict which they retired to consider being given or the jurors, being discharged. The words I have emphasised are implied by the definite article. The difficulty with that construction is that, in a case like the present, the statutory discretion to allow the jury to separate could not be exercised between their giving their verdicts on one group of counts and retiring to consider the next. I agree with Smith AJA that the common law would not permit separation during that interval so that, to give sub-s (1) the efficacy it was evidently intended to have, it must refer to the period between the jury's first retiring to consider any of the verdicts required by the presentment and the last of those verdicts being given or the jurors, being discharged.[34]

1. Second, it was established that the 'condition precedent'[35] of the separation undertaking in s 51A(2) was designed to

ensure that there was no communication or risk of communication between outsiders and the jury once the jury had retired to consider its verdict.[36]

1. That is, the separation undertaking was deemed by the legislature to be a sufficient safeguard against both the fact and risk of external communication to or from jurors during deliberations. A mere direction to the jury not to discuss the case with others was insufficient.[37] A failure to comply with the condition precedent was a fatal irregularity in the trial.[38] It follows that it is the solemn, public nature of the undertaking that is critical.
2. Third, the cases established that the solemn public separation undertaking, once given, endured.[39] Requiring separating jurors to repeatedly give the undertaking would be 'an extravagance not contemplated by the section'[40] and 'surplusage'.[41] This was because not only should it 'be assumed that [the jurors] will understand that such oath will continue to bind them'[42] if permitted to separate more than once, but

[i]t would be an unusual phenomenon in the law to have people repeating oaths in the way suggested when the first was in terms adequate for any subsequent situation.[43]

1. It must be observed that in considering the significance of a failure of jurors to give the solemn undertaking at all or only once, none of these cases directly concerned the issue of when the solemn undertaking needed to be given or whether, as a matter of statutory construction, there was a temporal nexus between ss 51A(1) and 51A(2). Rather, these cases established only that the discretion to allow separation could be exercised after retirement if the condition precedent had been met once sometime previously.
2. R v T and Appleby are entirely silent as to the timing of the solemn undertaking. The Court in Patton said that the discretion conferred by s 51A(1) is to be exercised

when, during the deliberation process, he [or she] considers that it is appropriate to allow the jury to separate 'at any time' within that process. In our view the words of the section suggest that when the time first arrives, the individual jurors must give the undertaking required of them.[44]

1. I am unable to read that observation as a considered finding that, as a matter of statutory construction, the separation undertaking could only be given after a jury retired to deliberate and at the moment that jury was first to separate. Rather, the passage reads more as an assumption that a judge, who has, post jury retirement, decided to exercise the (then very newly bestowed) discretion to allow jurors to separate would then, as a consequence, have the separation undertaking administered. So much is apparent from the use of the word 'suggest'.
2. In 2002 the Court in R v Clarke[45] considered s 50 of the Juries Act. In that case jurors had been allowed to separate without giving the s 50(2) separation oath. The Court said there is no material difference between s 51A(2) of the 1967 Act and s 50(2) of the Juries Act. Each was a condition precedent to the exercise of the discretion in s 51A(1) or s 50(1) respectively, to allow jurors to separate after retirement.[46] A failure to satisfy that condition was a fundamental irregularity in the trial.[47] This was because '[a] reasonable and well-informed person would have been entitled to entertain a suspicion that the jury did not perform their duty according to law'.[48]
3. Clarke was silent as to when the separation oath was to be given.
4. In Youssef[49] the Court considered a situation in which a deliberating jury was allowed to separate over a lunch break on the second day of deliberations. Individual jurors had been seen walking through the Melbourne CBD otherwise than under the supervision of a jury keeper. Upon that irregularity becoming known to the trial court, the jury was not discharged and ultimately returned verdicts. This Court held that this incident constituted a serious departure from the prescribed processes of a trial.
5. The Court emphasised the matters established by R v T, Appleby and Patton, namely that the discretion to allow jurors to separate was a radical modification of the common law. The exercise of this discretion was conditioned upon the separation oath being taken and this was a safeguard against both the fact and risk of a deliberating jury communicating with outsiders. Thus the Court said:

As Chaouk and other cases make clear, it was a cardinal common law principle that in a criminal jury trial jurors not separate during deliberations. It is also clear that the legislature sought to mitigate the strictness of that principle through the introduction of provisions such as s 50 of the [Juries Act]. In so doing, however, the legislature was astute to ensure that the separation of a criminal jury after retirement was subject to safeguards specifically designed to promote the integrity of the trial process and to minimise the risk of the jury's communication with third parties. Hence, before permitting the separation of a jury after retirement, a trial judge must affirmatively be of the opinion that there is a 'good reason' to permit separation, and must ensure that an appropriate oath (or affirmation) is taken by the jurors involved that they 'will not discuss with any person other than another member of this jury any matter relating directly or indirectly to the evidence in this trial or the deliberations'.[50]

1. I agree that s 50(2) of the Juries Act is a condition precedent to the exercise of the s 50(1) discretion to allow a jury to separate and an important safeguard against both the fact and risk of inappropriate influence on a deliberating jury, however I do not agree that a trial judge must have an affirmative opinion that there is 'good reason' to exercise the discretion.[51] The discretion to allow a jury to separate in s 50(1)(a) is unfettered by statutory criteria. This is in contradistinction to the s 50(1)(b) discretion to allow an individual juror to separate from the jury 'if, in the opinion of the court, there is good reason to do so'.
2. The Court in Youssef further said:

We consider that, notwithstanding that they modify the strictness of the common law, provisions such as ss 49 and 50 of the [Juries Act] are safeguards imposed by the legislature which are designed to protect jury deliberations from contamination. Such provisions also serve a secondary function, preventing the perception that there has been any opportunity for unauthorised communications with the jury. As Hampel J observed in Chaouk (albeit with respect to the position at common law), it is of fundamental importance that the basic rules relating to the processes of a criminal trial - particularly in relation to jury deliberations - should be strictly adhered to; and, given that the jury system and its operation are under constant public scrutiny, it is 'essential to ensure not only that no irregularities occur which may adversely affect jury deliberations, but also that no such irregularities appear to take place'.[52]

1. While the Court went on to articulate the desirability[53] of a practice that the separation oath be administered when jurors were 'first permitted to separate'[54] - language that echoed the Patton formulation of 'when the time first arrives'[55] - this was expressly as a matter of practice and not statutory construction.
2. That the trial judge in Youssef had jurors take the separation oath 'immediately before their retirement'[56] was not, as a matter of statutory construction, commented upon adversely or at all. The Court merely observed what had occurred, namely:

At the conclusion of the judge's charge to the jury on Tuesday, 27 February 2018, jurykeepers were sworn pursuant to s 49 of the Juries Act 2000 ('the Act'), which provides that, 'If a jurykeeper is required in a trial, the jurykeeper must take an oath or make an affirmation in the form of Schedule 4'.

Jurykeepers having been sworn, the judge then addressed the following remarks to the jury:

• 'With that, members of the jury, I invite you to retire to the jury room to commence your deliberations. ... Before we do that we're going to give you the separation oath because you'll be commencing your deliberations and that will avoid us needing to bring you back to court in order to excuse you for the balance of the afternoon. So ordinarily I'd invite you to remain in the jury room to deliberate until 4:15, our usual sitting hours, then to go home, but we will administer the separation oath now so that you don't have to come back into court before you go home. So I'll just allow us to do that and then we'll invite you to return in the morning, once you leave at 4:15, return in the morning at 10:15 to resume at 10:30 as though we were sitting in court, and just resume your deliberations if you haven't concluded...'

A 'separation oath' pursuant to s 50(2) of the Act was then administered. Moments later the jury retired (at 2:30 pm).

Section 50 of the Act permits a court to allow a jury to separate, or an individual juror to separate from the jury after retirement (if the court is of the opinion that there is good reason to do so), so long as any separating juror has taken an oath or affirmation in the form prescribed by Schedule 5. [The terms of the section were then reproduced].

Although the trial transcript does not reveal what occurred later in the afternoon of 27 February 2019, given what the judge told the jury immediately before their retirement, it may be presumed that the jury left the court precincts at around 4:15 pm, and returned the next day at around 10:15 am to resume deliberations at 10:30 am. And given that the judge had sworn jurykeepers, it may readily be inferred that the judge anticipated that, upon resuming their deliberations, the jury would do so subject to the jurykeepers' supervision (and in conformity with the jurykeepers' oaths or affirmations).[57]

1. Alec (a pseudonym) v The King[58] concerned the meaning of 'deliberating' and arose in circumstances where the jury deliberated for several days. In that time a number of jurors had entered the jury room prior to the scheduled time for recommencement of their deliberations and read the transcript or looked at exhibits. In holding that the jury had not deliberated while incomplete, the Court discussed the statutory modification of the common law prohibition against the separation of jurors.[59] The Court cited the passages from Youssef cited immediately above (as well as the passage concerning the 'desirable' practice[60]).
2. The issue of statutory construction advanced by the applicant under ground 1 was not, however, addressed. And, like in Youssef, it is apparent that the Court was aware that the trial judge had administered the separation oath to the jurors immediately prior to the jury retiring.[61]
3. Similarly, in Frendo v The King[62] the Court was aware that the jury had retired at 3:27 pm on a Monday afternoon, after hearing both closing addresses and the judge's charge that day, in circumstances where the separation oath had been administered to the jurors after the close of evidence the previous Friday morning and not later readministered.[63] Following Appleby and Patton, the Court rejected the contention that s 50 of the Juries Act required the separation oath to be given more than once. The issue of statutory construction as to when the separation oath must be given was not addressed. While noting that the judge reminded the jurors of their oath and, following Youssef, stating that it would have been prudent for the separation oath to be given again on each occasion on which the jury separated overnight,[64] the Court did not consider the separation oath which preceded the retirement of the jury by a matter of days - and over a weekend - to be invalid.
4. It follows from this survey of Victorian decisions that this Court has not previously considered the issue of statutory construction the subject of ground 1. In particular, I do not accept the applicant's argument that the construction he contends for was held as correct in both Patton and Youssef.
5. The issue of statutory construction starts with the words of the provision.
6. Section 50(1) confers the discretion on a judge to allow the jury to separate after the jury has retired to consider its verdict and before the verdict is given or the jurors are discharged. That is, a trial judge may only exercise the discretion under s 50(1) after the jury 'has retired to consider its verdict'. Section 50(2) conditions the exercise of the s 50(1) discretion on the giving of the separation oath by each separating juror. That is, the judge may only allow a jury or juror to separate 'in accordance with sub-s (1)' - after the jury has retired - if each juror 'has given' the separation oath.
7. I am unable, on a plain reading, to construe these two subsections as meaning that the separation oath must be given only after a judge has, post jury retirement, determined to exercise the discretion but immediately before its exercise is effected. The words 'in accordance with sub-s (1)' in s 50(2) do no more than make the conditional link between the exercise of the discretion and the prior giving of the separation oath. The words 'has taken' use the present perfect tense. That tense connects past actions to the present. The words mean 'before now'. The words 'each separating juror' refer to the jurors at the time at which the jury is separating rather than the time at which each juror gives the separation oath. A juror will become a 'separating juror' at the time of the exercise of the discretion to allow separation, having, at some time prior, given the separation oath. In other words, even if the separation oath is administered after the jury has retired and immediately before the jury first separates, at the time the each juror takes the oath they are not yet a 'separating juror'. He or she is a juror taking the sch 5 'Oath or affirmation of jurors separating during deliberations' so that he or she may become a 'separating juror [who] has taken an oath' so that the judge may allow the jury to separate 'in accordance with sub-s (1)' by then exercising the discretion there reposed.
8. Further, the words of s 52(2) do not condition the exercise of the s 50(1) discretion on each separating juror having 'just taken' the separation oath. Nor does s 50 of the Juries Act use the words 'on first separating' in the manner s 42 uses the words 'on being empanelled'. To reach the construction contended for by the applicant it is necessary to either imply words that are absent from the statutory provision or change the tense of words that are present.
9. The applicant further relies upon a purposive construction[65] that has regard to what it is that sub-s (2) does, namely provide the safeguard. I do not accept that the plain meaning of s 50 of the Juries Act apparent on its face is contrary to or undermines the purpose of safeguarding deliberating juries from outside interference.
10. True it is that allowing jurors to separate during deliberations is a radical modification of the common law. It is also true that this profound statutory modification first occurred in Victoria more than 30 years ago.[66] Juries in this State are routinely allowed to separate. Indeed it is the unusual or rare case in which juries are now sequestered. In most cases a judge will have determined well in advance of the jury retiring that, excepting an unusual development, he or she will exercise the s 50(1) discretion. While the common law guarded against the risk of outside influence by sequestering juries, the legislature has long deemed that the level of risk of such influence is tolerable if each separating juror gives a public, solemn undertaking to not discuss the evidence in the trial or the deliberations with anyone other than another member of the jury. The legislation must be construed accordingly.
11. In Brownlee v R[67] Gleeson CJ and McHugh J said:

One aspect of the jury system that must be capable of changing, and adapting to the circumstances of the time, is the measures that are taken to guard against the danger of jurors being subjected to improper outside influence. That is because the danger itself changes with varying social conditions and methods of communication. Keeping jurors separate during all or part of a trial is only one way of addressing the danger. Jurors are given warnings by trial judges, aimed at reducing the possibility of external influence. Their anonymity is protected so far as practicable. But the potential sources of improper influence are various, and the legislation presently in question is a recognition of the fact that isolating jurors, especially during lengthy trials, may properly be regarded by a trial judge as an unnecessarily oppressive means of achieving the desired end. The ultimate protection in every case must lie in the sense of responsibility of jurors themselves. In 1910, Holmes J, delivering the opinion of the Court, said in Holt v United States:

• "... there is force in the judge's view that if juries are fit to play the part assigned to them by our law they will be able to do what a judge has to do every time that he tries a case on the facts without them ..."

The discretion that is reposed in a trial judge by s 54(b) of the [Jury Act 1977 (NSW)] enables the judge to form an opinion, in the circumstances of a particular case, as to whether separation is incompatible with the need to protect the integrity of the jury's verdict. It is not an essential requirement of trial by jury that there be an inflexible general rule forbidding separation during the whole or any part of a trial.[68]

1. And, as this Court has made plain, the safeguard in s 50(2) of the Juries Act (and its predecessor 51A(2) of the 1967 Act) is, once given, enduring and sufficient to guard against both the fact and risk of communication between outsiders and a jury post-retirement. That this Court has also said that is desirable for the oath to be given immediately prior to the first separation, or prudent for the separation oath to be repeated and/or for trial judges to remind separating jurors of their separation oath, says little about the statutory construction of s 50 of the Juries Act as to when the separation oath must first be given. The terms of the separation oath are clear and the law assumes that jurors both understand it and also that, once given, the separation oath binds their conscience for the duration of the trial - that is until the verdict is given or they are discharged.[69]
2. It follows that in my view, the proper construction of s 50(a) of the Juries Act permits a judge to exercise the discretion to allow a jury, post-retirement, to separate if each separating juror 'has given' at some stage prior in the trial, including but not limited to the post-retirement period, the separation oath in the form of sch 5.
3. Ground 1 cannot be upheld.
4. That said, this conclusion is only as to the question of statutory construction. It remains the case that the best practice for the separation oath to be administered to the jurors immediately before they first separate. As this Court said in Youssef

Self-evidently, it is highly undesirable that there be no uniform practice with respect to the separation of juries and the use of jurykeepers. That being so, we consider it to be desirable that the practice followed in the Trial Division of this Court also be adhered to in the County Court. Although it still sometimes occurs, it is no longer the invariable practice to keep juries sequestered following retirement, so that they commonly return to their homes in the afternoon or early evening after deliberating during the day in their jury room (or other suitable space). Whilst deliberating, however, they remain subject to the supervision of suitably sworn (or affirmed) jurykeepers, and do not leave the court unaccompanied by keepers. When first permitted to separate after deliberations commence, the jury take the separation oath (or affirmation) under s 50, and, as a minimum, thereafter are reminded that they are bound by that oath (or affirmation) each time that they separate until being finally discharged. Strict adherence to that practice will go some way towards avoiding the material irregularity which occurred in this case.[70]

1. This passage was cited with approval in both Alec[71] and Frendo.[72]

1. Ground 2 is focussed not on a known irregularity in the applicant's trial but on the risk of an irregularity on the basis that, absent a reminder of the previously given separation oath, one or more jurors might have failed to comply with it. It is put that justice does not appear to have been done because the risk raises a reasonable suspicion concerning the fairness of the applicant's trial.
2. It is beyond doubt that, as the authorities referred to above establish, the law is concerned to protect the integrity of the verdict by safeguarding against both the risk of outside influence as well as the fact of such influence. For the applicant's argument to be accepted, however, it must be the case that it is reasonable to suspect that the theoretical risk might have eventuated because the separation oath itself is too weak to guard against that risk unless the jury are reminded of it. And, further, both that reminding a jury of the previously given separation oath forms part of prescribed trial processes and the failure to do so is a serious departure from them.
3. I am unable to do so.
4. Section 50 of the Juries Act is premised on the fact that the separation oath is sufficient to guard against the risk (and fact) of outside influence. The law regards the making of an oath or affirmation as binding on the conscience.[73] An oath or affirmation once made endures with respect to the proceeding in which it is given. The second reading speech for the Oaths and Affirmations Act 2018 describes oaths and affirmations as 'the solemn promises at the heart of our legal system'.[74] In DPP v Marijancevic[75] this Court explained that oaths and affirmations play a 'fundamental role'[76] in the criminal law and cited the following observations of the trial judge in that matter: 'To take an oath binds the conscience. Our whole court system relies on oath taking, whether in the witness box or by affidavit'.[77]
5. Jurors 'on being empanelled' are required to take an oath to faithfully and impartially try the issues the issues between the Crown and the accused in relation to all charges brought against the accused in the trial and give a true verdict according to the evidence.[78] In R v Dupas (No 3)[79] this Court held that it 'is a fundamental tenet of our criminal justice system that jurors decide cases according to their oath'.[80] Jurors who will be permitted to separate must have given the separation oath to not discuss with any person other than another member of the jury any matter relating directly or indirectly to the evidence in the trial or the deliberations. The law assumes that the jurors understand that the separation oath will continue to bind them.[81] On each occasion each juror is required to stand in the jury box and either swear (or promise) by Almighty God to do so or solemnly and sincerely declare and affirm that he or she will do so. The purpose of each oath or affirmation is apparent from its terms and the solemn process by which each oath or affirmation is given is calculated to leave a distinct impression of its importance.
6. Further, the jury are required to witness the jurykeepers publicly give an oath or affirmation to 'well and keep the jury and each of its members committed to [his or her] charge' and, except on the order of the Court, while they are in the jurykeeper's charge, to 'not allow any of the jurors to communicate with any other person, or any other person with any of them, whether directly or indirectly', and that the jurykeeper will 'not either during the trial or after it has finished, communicate with any juror about any evidence given or issues raise, directly or indirectly, at the trial'. This has an 'educative effect'[82] on the jury in that it reinforces the proper standards of conduct with respect to jury deliberations.
7. The combination of these solemn events, coupled with the assumption of the law that an oath or affirmation binds the conscience, means that jurors must be taken to have understood, without more, the binding nature of the separation oath even if not later reminded of its obligations. As Appleby, Patton and Clarke make clear, the separation oath endures once given. The failure of a judge to remind a jury of a previously given separation oath does not raise a reasonable suspicion that that one or more jurors has not complied with it. Section 50 of the Juries Act itself tolerates the theoretical risk conditional upon the separation oath. While it is a desirable practice for a judge to 'at a minimum'[83] to remind the jurors that they remain bound by the terms of the separation oath each time that they separate, the Juries Act does not require it.
8. I am therefore unable to conclude that failure to do so constitutes a serious departure from the prescribed processes of a criminal trial.
9. I further note that, the theoretical risk aside, there was no basis for any suspicion that any juror in the applicant's trial failed to comply with the terms of the separation oath. It was given nine days before the jury retired. There was nothing in the nature of the charges or evidence, nor any untoward occurrence or publicity, that gave rise to any suspicion that the integrity of the verdicts was not guaranteed by the separation oath.
10. In Youssef the Court found that there was 'a realistic perception that the jury may not have considered themselves bound by the oath (or affirmation) given the previous day'.[84] But that conclusion was not as to a theoretical risk but a known irregularity. The jury were allowed to separate at lunch time on the second day of deliberations and wander in the Melbourne CBD other than supervised by a jurykeeper in circumstances where the afternoon before the judge had informed the jury that the purpose of giving the separation oath was to 'avoid us needing to bring you back to court in order to excuse you for the balance of the afternoon' and 'so that you don't have to come back into court before you go home' at 4:15 pm'.[85]
11. My conclusion that the failure of the judge to remind the jury of the separation oath was not a serious departure from the prescribed process of trial because the law assumes that jurors understand the binding and enduring nature of the oath they have taken and there is no mandatory requirement in law for a reminder to be given in no way endorses the approach of the judge to have the separation oath administered at the end of her preliminary remarks or to not thereafter remind the jury of its terms.
12. It is unwise to administer the separation oath shortly after a jury is empanelled (recognising that a judge may, even at that stage of a trial, consider that the s 50(1) Juries Act discretion will, barring something unexpected, be exercised). It remains important that jurors have the significance of the deliberation process and the integrity of their verdict reinforced. The observations of this Court in Youssef as to the best practice as to the administration of the separation oath and later reminders of it remain desirable.

[1] R v Taylor (1996) 86 A Crim R 293, 302 (Southwell AJA, with whom Callaway JA and Smith AJA agreed); R v Clarke [2002] VSCA 184; (2002) 5 VR 480, 483 [13] (O'Bryan AJA, with whom Winneke P and Eames JA agreed).

[2] Cf. R v Chaouk [1986] VicRp 70; [1986] VR 707, 710, 714 (Kaye J), 717 (Hampel J).

[3] (1996) 86 A Crim R 293.

[5] [1998] 1 VR 7.

[6] Ibid, 11 (Phillips CJ, Winneke P and Southwell AJA).

[7] [2019] VSCA 240.

[8] Ibid [62] (Priest, Beach and Weinberg JJA).

[9] [2024] VSCA 319.

[12] Contrary to the Crimes Act 1958, s 38(1).

[13] Juries Act 2000, s 42, sch 3 ('Juries Act').

[14] Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

[15] A fifth proposition, that it is only after a jury has commenced deliberating that a trial judge may form or hold the necessary affirmative s 50(1)(b) opinion that 'there is good reason' to allow the jury to separate, was not pressed at the oral hearing. Section 50(1)(b) concerns only the discretion of a trial judge to allow an individual juror to separate from the jury during deliberations if there is good reason to do so: cf Youssef (a pseudonym) v The Queen [2019] VSCA 240, [51]-[56] (Priest, Beach and Weinberg JJA) ('Youssef').

[16] Interpretation of Legislation Act 1984, s 35(a).

[17] [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA); ('Patton').

[18] Youssef [2019] VSCA 240, [64] (Priest, Beach and Weinberg JJA).

[19] Criminal Procedure Act 2009, s 276(1)(b); Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, [26],[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); (2012) HCA 59.

[20] The applicant referred to R v T (1996) 86 A Crim R 293, 302 (Southwell AJA, Callaway JA agreeing at 294, Smith AJA agreeing at 303); [1996] VicSC 197.

[21] Frendo v The Queen [2024] VSCA 319 ('Frendo').

[22] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[23] Baini [2012] HCA 59; (2012) 246 CLR 469, [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59; Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421, 444 [76]-[77] (Gordon and Edelman JJ); [2022] HCA 36.

[24] Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20.

[25] CMG v The Queen [2013] VSCA 243; (2013) 46 VR 728, 747 [90] (Redlich JA, Warren CJ agreeing at 742 [59], Coghlan JA agreeing at 779 [262]); [2013] VSCA 243 ('CMG').

[26] See R v Chaouk [1986] VicRp 70; [1986] VR 707, 710 (Kaye J, Fullagar J agreeing at 717, Hampel J agreeing at 717).

[27] R v T (1996) 86 A Crim R 293, 302 (Southwell AJA); [1996] VicSC 197.

[28] (1996) 88 A Crim R 456 ('Appleby').

[29] Appleby (1996) 88 A Crim R 456, 483 (Smith AJA, Callaway JA agreeing at 457, Southwell AJA agreeing at 459); Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[30] Patton [1998] 1 VR 7, 10-11 (Phillips CJ, Winneke P and Southwell AJA).

[31] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[32] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[33] Appleby (1996) 88 A Crim R 456, 484 (Smith AJA, Callaway JA agreeing at 457, Southwell AJA agreeing at 459).

[34] Appleby (1996) 88 A Crim R 456, 459 (Smith AJA, Callaway JA agreeing at 457, Southwell AJA agreeing at 459) (emphasis in original).

[35] R v T 1996) 86 A Crim R 293, 302 (Southwell AJA); [1996] VicSC 197.

[36] Appleby (1996) 88 A Crim R 456, 483 (Smith AJA, Callaway JA agreeing at 457, Southwell AJA agreeing at 459).

[37] R v T (1996) 86 A Crim R 293, 302 (Southwell AJA); [1996] VicSC 197.

[38] R v T (1996) 86 A Crim R 293, 302 (Southwell AJA); [1996] VicSC 197.

[39] Appleby (1996) 88 A Crim R 456; Patton [1998] 1 VR 7.

[40] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[41] Appleby (1996) 88 A Crim R 456, 484 (Smith AJA, Callaway JA agreeing at 457, Southwell AJA agreeing at 459).

[42] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[43] Appleby (1996) 88 A Crim R 456, 484 (Smith AJA, Callaway JA agreeing at 457, Southwell AJA agreeing at 459).

[44] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[45] R v Clarke (2002) 5 VR 480; [2002] VSCA 184 ('Clarke').

[46] Clarke [2002] VSCA 184; (2002) 5 VR 480, 483 [13] (O'Bryan AJA, Winneke P and Eames JA agreeing); [2002] VSCA 184.

[47] Clarke [2002] VSCA 184; (2002) 5 VR 480, 484 [19] (O'Bryan AJA, Winneke P and Eames JA agreeing); [2002] VSCA 184.

[48] Clarke [2002] VSCA 184; (2002) 5 VR 480, 484 [19] (O'Bryan AJA, Winneke P and Eames JA agreeing); [2002] VSCA 184.

[49] [2019] VSCA 240.

[50] Youssef [2019] VSCA 240, [56] (Priest, Beach and Weinberg JJA), citing R v Chaouk [1986] VicRp 70; [1986] VR 707.

[51] See also Youssef [2019] VSCA 240 where the Court observed that s 50 'permits the judge to allow jury separation if he or she is of the opinion that there is good reason to do so': at [51] (Priest, Beach and Weinberg JJA).

[52] Youssef [2019] VSCA 240, [62] (Priest, Beach and Weinberg JJA) (citations omitted).

[53] Youssef [2019] VSCA 240, [64] (Priest, Beach and Weinberg JJA).

[54] Youssef [2019] VSCA 240, [64] (Priest, Beach and Weinberg JJA).

[55] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[56] Youssef [2019] VSCA 240, [36] (Priest, Beach and Weinberg JJA).

[57] Youssef [2019] VSCA 240, [21]-[24] (Priest, Beach and Weinberg JJA) (emphasis in original).

[58] (2023) 72 VR 161; [2023] VSCA 208 ('Alec').

[59] Alec (2023) 72 VR 161, [40]-[48] (Priest, Walker and Taylor JJA); [2023] VSCA 208.

[60] Youssef [2019] VSCA 240, [64] (Priest, Beach and Weinberg JJA).

[61] Alec (2023) 72 VR 161, [49]-[50] (Priest, Walker and Taylor JJA); [2023] VSCA 208.

[62] [2024] VSCA 319 ('Frendo').

[63] Frendo [2024] VSCA 319, [130]-[131] (Boyce JA, Priest JA agreeing at [1], Taylor JA agreeing at [2]).

[64] Frendo [2024] VSCA 319, [143] (Boyce JA, Priest JA agreeing at [1], Taylor JA agreeing at [2]). See Youssef [2019] VSCA 240, [64] n 53 (Priest, Beach and Weinberg JJA).

[65] Interpretation of Legislation Act 1984, s 35(a).

[66] The second reading speech of the Juries (Amendment) Bill 1993, cl 9 inserting s 51A into the 1967 Act, noted that 'Although the legislation leaves the decision to separate to the discretion of the court, I understand that the experience following a similar change in New South Wales has been that there have been no instances of attempted interference with a jury, a fear of which has underpinned the traditional practice of the jury lockup. The government therefore would expect that the courts will be prepared to allow juries to separate unless there is a real reason not to do so': Victoria, Parliamentary Debates, Legislative Assembly, 20 October 1993, 1157 (Sidney James Plowman, Minister for Energy and Minerals).

[67] (2001) 207 CLR 278; [2001] HCA 36.

[68] Brownlee [2001] HCA 36; (2001) 207 CLR 278, [27]-[28] (Gleeson CJ and McHugh J); [2001] HCA 36, citing Holt v United States, [1910] USSC 166; 218 US 245, 249-250 (1910). It is to be noted that s 54 of the Jury Act 1997 (NSW) permits a jury to separate at any time either before or after the jury retires to consider its verdict. There is no requirement for a separation oath to be given.

[69] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA); Appleby (1996) 88 A Crim R 456, 484 (Smith AJA, Callaway JA agreeing at 457, Southwell AJA agreeing at 459). Cf Youssef [2019] VSCA 240, [60] (Priest, Beach and Weinberg JJA).

[70] Youssef [2019] VSCA 240, [64] (Priest, Beach and Weinberg JJA) (footnote omitted).

[71] Alec (2023) 72 VR 161, [48] (Priest, Walker and Taylor JJA); [2023] VSCA 208.

[72] Frendo [2024] VSCA 319, [141] (Boyce JA, Priest JA agreeing at [1], Taylor JA agreeing at [2]).

[73] Queen's case [1820] EngR 563; 129 ER 976.

[74] Victoria, Parliamentary Debates, Legislative Assembly, 7 June 2017, 1703 (Martin Pakula, Attorney-General).

[75] (2011) 33 VR 440; [2011] VSCA 355 ('Marinjancevic').

[76] Marinjancevic [2011] VSCA 355; (2011) 33 VR 440, 456 [55] (Warren CJ, Buchanan and Redlich JJA); [2011] VSCA 355.

[77] Marijancevic [2011] VSCA 355; (2011) 33 VR 440, 455 [52] (Warren CJ, Buchanan and Redlich JJA); [2011] VSCA 355. See also R v Dupas (No 3) (2009) 28 VR 380; [2009] VSCA 202 ('Dupas'), 'It is a fundamental tenet of our criminal justice system that jurors decide cases according to their oath': at 434 [204] (Ashley JA), and R v Sossi (1985) 17 A Crim R 405; [1986] WAR 163, 'The essence of an oath, therefore, is an appeal to a Supreme Being in whose existence the person taking the oath believes so as to bind his conscience but the form of taking the oath is not essential to the oath': at 408 (Wallace, Brinsden and Olney JJ).

[78] Juries Act 2000, s 42, sch 3.

[79] Dupas (2009) 28 VR 380; [2009] VSCA 202.

[80] Dupas [2009] VSCA 202; (2009) 28 VR 380, 434 [204] (Ashley JA); [2009] VSCA 202.

[81] Patton [1998] 1 VR 7, 11 (Phillips CJ, Winneke P and Southwell AJA).

[82] CMG [2013] VSCA 243; (2013) 46 VR 728, 747 [90] (Redlich JA, Warren CJ agreeing at 742 [59], Coghlan JA agreeing at 779 [262]); [2013] VSCA 243.

[83] Youssef [2019] VSCA 240, [64] (Priest, Beach and Weinberg JJA).

[84] Youssef [2019] VSCA 240, [60] (Priest, Beach and Weinberg JJA).

[85] Youssef [2019] VSCA 240, [60] (Priest, Beach and Weinberg JJA).