The Court of Appeal held that a jury 'retires to consider its verdict' within the meaning of s 50(1) of the Juries Act 2000 (Vic) at the point the jury leaves the courtroom following completion of the judge's charge, not when deliberations actually commence in the jury room. Accordingly, the separation oath under s 50(2) must be administered before the jury is permitted to separate after that point, even if deliberations have not yet begun. The failure to administer the oath before the jury separated for over an hour after the charge was completed constituted non-compliance with s 50, which the Crown conceded amounted to a fundamental irregularity occasioning a substantial miscarriage of justice; the conviction was set aside and a new trial ordered. The Court expressly left open whether every breach of s 50 will necessarily occasion a substantial miscarriage of justice.
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