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.
[2]
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 of the 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.
[3]
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]
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]
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]
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]
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:
[4]
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:
[5]
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]
[6]
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]
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]
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]
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]
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.
[7]
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]
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.
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]
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.
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.
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.
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.
[8]
Final observations in relation to certification in this case
[9]
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'.
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.
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.
[10]
[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.
[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.