Percival v The Queen

(2015) 49 VR 238; [2015] VSCA 200

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Trial
3. › Conduct of trial judge
4. › Judicial intervention during cross-examination
5. › Criticism of defence counsel in presence of jury
6. › Whether interventions undermined credibility of defence counsel and defence case
7. › Whether miscarriage of justice
1. Criminal Law
2. › Trial
3. › Discharge of jury
4. › Application to discharge after foreman's note revealing jury prejudice
5. › Whether high degree of need for discharge
6. › Whether direction to jury cured prejudice
7. › Whether failure to discharge gave rise to substantial miscarriage of justice
1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Miscarriage of justice
5. › Whether failure to discharge jury gave rise to miscarriage of justice
6. › Distinction between appeal against refusal to discharge and appeal against conviction

Quick Take

Where a foreman's note reveals that jurors have concluded from a judge's interventions that defence counsel is incompetent and the defence case unmeritorious, a direction to the jury that the judge was not expressing any view about the merits is unlikely to cure the prejudice, and a discharge of the jury will ordinarily be required. Trial judges should avoid using strongly pejorative language when criticising defence counsel's cross-examination in the presence of the jury, even where the criticism is substantively justified.