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

1. 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).
2. 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.
3. By a notice filed 23 January 2025,[5] the applicant seeks leave to appeal against his conviction on eight grounds:
   1. The 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.
   2. The 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.
   3. A 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.
   4. The 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.
   5. Allowing the prosecutor and defence counsel to play opening addresses and responses to the jury instead of 'live addresses' caused a substantial miscarriage of justice.
   6. The Trial Judge erred in refusing to discharge the jury when the prosecutor applied for a discharge, part way through the complainant's evidence, due to the way the opening and response had been conducted causing a substantial miscarriage of justice.
   7. The Trial Judge erred in permitting the prosecution to lead expert evidence given the late provision of that material, including during the course of the trial, in which the Applicant was convicted.
   8. There has been a substantial miscarriage of justice by reason of there being an aggregate of errors in the trial of the Applicant.
4. The respondent has conceded that grounds 1, 2, 4 and 5 should succeed.[6]
5. In our view, the respondent's concessions are fairly and properly made. The applicant's convictions cannot be permitted to stand. We will thus grant leave to appeal; allow the appeal; set aside the applicant's convictions; and order that there be a new trial.

1. By way of background, in 2018 the applicant was a teacher at a regional secondary college. The complainant, a 14 year old female, was a student in one of his classes. When the applicant transferred to another school in late May 2018, he kept in contact with the complainant. During conversations on Instagram, the applicant asked the complainant if she had ever had sex; asked her if she watched pornography; and talked of his sexual conquests when younger (charge 1). Around mid-July 2018, the applicant commenced regularly to have sexual intercourse with the complainant, continuing until 22 January 2019 (charge 5), by which time she was aged 15 years. On or about 7 January 2019, the applicant sent the complainant a photograph of his erect penis in his hand (charge 6). Later, in April 2019, the complainant disclosed the offending to a teacher at her school, and police became involved. The applicant then spoke to the complainant by telephone on 28 April 2019, and told her to delete all comments and conversation between them (charge 7).

1. Grounds 1, 2 and 3 may be considered together.
2. At the commencement of proceedings on the eighth day of the trial, 9 August 2023, the trial judge informed counsel that a juror had communicated to a juries officer the previous evening that he was not well; and that, as a result, the judge had discharged that juror. When the applicant's trial counsel submitted that he was 'reluctant to proceed with a jury of 11', the judge said it was a 'bit late - I'm really just informing you that I have, in fact, discharged him'.
3. Section 43 of the Juries Act 2000 permits a judge, during a trial, to discharge a juror without discharging the whole jury if (among other things) the juror becomes ill (s 43(c)), or it appears to the judge that, for any other reason, the juror should not continue to act as a juror (s 43(d)). Counsel for the applicant in this Court submitted that it was a serious irregularity for the judge to discharge the juror without first advising the parties of the juror's illness, and hearing the parties on the course that should be adopted.
4. The respondent's counsel in this Court submitted that a decision to discharge a juror is a weighty one. A decision of that nature should not be made without first giving the parties an opportunity to be heard. It was a serious irregularity for the trial judge to discharge a juror outside court sitting hours, and without any notice to the parties. Counsel submitted that there was not sufficient urgency to discharge the juror without first seeking submissions from the parties when court resumed on the morning of 9 August 2023.
5. We agree that it was a serious irregularity for the judge to purport to discharge the juror without giving the parties the opportunity to be heard.[7] As the cases make clear, a judge should not make decision about a reduction in the number of jurors hastily, without making as full an inquiry as is practicable and reasonable.[8] And as was observed in Kennedy:[9]

A decision whether any of the circumstances in paragraphs (a) to (d) [of s 43] involves a value judgment attracting House[10] principles;[11] and the judge 'should require considerable persuasion before concluding that any such circumstance is present'. Furthermore, paragraph (d) should be narrowly construed, and any circumstances said to fit within that paragraph 'rigorously examined before a judge is satisfied that the circumstances relied upon do fall within the paragraph'.[12]

1. Since we consider that it was a serious irregularity for the judge to discharge the juror without giving the parties the opportunity of being heard, it is unnecessary to consider the other discrete submissions made by the parties under cover of grounds 2 and 3.

1. Grounds 4, 5 and 6 may also be considered together.
2. The convictions which are the subject of the present application arose in the applicant's fourth trial, three earlier trials not having resulted in verdicts. At the outset of the trial, in place of oral addresses, a recording of the prosecutor's opening from the third trial, and the response to that opening by previous defence counsel - different counsel appearing for both prosecution and defence - was played to the jury. This procedure was adopted at the suggestion of the trial judge, who had presided over the third trial (in which the jury had been discharged because of juror misconduct).[13]
3. It appears from the transcript of the trial, however, that the recording of the defence response (in particular) was inadequate and could not be properly heard by the jury. Defence counsel indicated that he had a typed copy of previous defence counsel's opening, which he had planned to 'stick to'. Since the recording of the defence response from the earlier trial could not adequately be heard, the notes of defence counsel from the earlier trial were then provided to the jury to assist them in hearing and understanding the recording. The notes provided to the jury were not, however, a verbatim account of what was said by defence counsel in the earlier defence response played to the jury. This prompted the judge to summarise the defence response - after the recording of the response had been played to the jury for a second time - highlighting in particular those parts where counsel went 'off script'.
4. Subsequently, the prosecutor made an application for the jury to be discharged. Among the reasons advanced were: there was no reason to play recordings of the opening and defence response from the previous trial as opposed to counsel providing oral openings; the quality of the audio recording of the prosecution opening was deficient and the jury struggled to hear it; the audio recording of the defence response 'was in no way of a quality that could have fulfilled the purpose of a defence opening address' (particularly where the notes provided to the jury did not cover all of the topics raised in the response); and 'conducting a criminal trial with recorded openings of poor quality ... risks giving the impression from the outset that these matters are not serious'. The judge refused, however, to discharge the jury.
5. By virtue of s 224(1) of the Criminal Procedure Act 2009, the prosecutor 'must give an opening address to the jury on the prosecution case against the accused before any evidence is given in the trial'; and, by virtue of s 225(1), 'immediately after' the prosecutor's opening, the accused's legal practitioner must present to the jury 'the response of the accused to the prosecution opening'.
6. Counsel for the applicant in this Court submitted that ss 224 and 225 did not authorise the playing of a recording of the prosecution opening and defence response. Further, counsel submitted, the judge summarising the defence response amounted to a fundamental irregularity in the trial process, such as to constitute a serious departure from accepted trial practice. It was for defence counsel to outline the issues. The trial judge performing that task deprived the applicant of having his counsel effectively address the jury.
7. While not conceding that ss 224 and 225 prohibit the use of a recording to serve as the prosecution or defence openings, or that there would never be circumstances in which the procedure adopted in the instant trial would be permissible, the respondent's counsel in this Court conceded that, in circumstances where both prosecution and defence were represented by counsel, it was highly irregular for the trial judge to adopt the course that he did. Counsel for the respondent submitted that, even if the playing of recorded openings was an available procedure in the abstract, it was inappropriate in the present case because the quality of the recordings was inadequate. Hence, the transcript of the trial appears to show that, although the quality of the recording of the prosecution opening was good enough to convey the 'flavour' of the opening, it did not necessarily convey the detail. Furthermore, the quality of the recording of the defence response was so poor that it needed to be supplemented with notes. Those notes, however, were not consistent with the oral opening - or, at least, not entirely - so that the trial judge felt constrained to summarise the defence response to the jury. The effect of these failures, counsel submitted, is that neither end of the Bar table effectively opened to the jury. So much was a significant irregularity in the trial.
8. It is unnecessary for the Court to determine whether ss 224 and 225 prohibit absolutely the playing at a subsequent trial of a recording of the prosecution opening and defence response from a previous trial, since we are clearly of the view that the course adopted in the present case was highly irregular. In particular, in circumstances where the quality of the recording of the defence response was so poor that it could not properly be comprehended without recourse to notes - those notes not necessarily reflecting what had actually been said - the judge should not have permitted the course that he did. We agree with the submission that what occurred amounted to a significant irregularity, occasioning a substantial miscarriage of justice.

1. Given the foregoing, it is unnecessary to consider grounds 7 and 8.

1. For these reasons, we will make the orders earlier referred to.[14]

[1] Crimes Act 1958, s 49M(1).

[2] Crimes Act 1958, s 49B(1).

[3] Criminal Code (Cth), s 427.27A(1).

[5] The respondent did not oppose an extension of time for filing the notice being granted.

[6] The concession on ground 2 was qualified. It was made on the assumption that the judge had conveyed to the parties all the information that he had available to him.

[7] R v Tortomano [1981] VicRp 4; [1981] VR 31, 33 (Young CJ, Starke and Gray JJ).

[8] R v Wu [1999] HCA 52; (1999) 199 CLR 99, 134 [103] (Callinan J).

[9] Kennedy v The King [2023] VSCA 86, [6] (Priest JA).

[10] House v The Queen (1936) 55 CLR 499.

[11] [Najibi v The Queen (2016) 260 A Crim R 491, [241] (Ashley, Weinberg and McLeish JJA).]

[13] The suggestion may have been motivated in part by a desire to assist defence counsel, who had been engaged very late and informed the judge on the first morning of the trial that he had not received, let alone read, the brief.

[14] See [5] above.