Court finds separation oath taken at start of trial satisfied Victorian jury law
The High Court of Australia has overturned a Victorian Court of Appeal decision that set aside a rape conviction, ruling that jurors do not need to take a separation oath shortly before they are permitted to separate during deliberations.
In The King v Bechaud [2026] HCA 36, the High Court unanimously held that s. 50 of Victoria's Juries Act 2000 requires each separating juror to take a separation oath before a trial judge allows the jury to separate after retiring to consider its verdict. Still, it does not prescribe when the oath must be taken.
The case arose from a criminal trial involving two rape charges in July and August 2024. On the first day of proceedings, each juror took a separation oath promising not to discuss matters relating to the evidence or deliberations with anyone outside the jury.
Nine days later, the jury retired to consider its verdict. The trial judge subsequently permitted the jurors to separate on two occasions without reminding them of their oath or their continuing obligations under it.
The jury ultimately acquitted the accused of one charge but convicted him of the other.
The Victorian Court of Appeal subsequently overturned the conviction and ordered a new trial. Its majority found that the trial judge should have administered the separation oath at a time closely connected to the jury's separation during deliberations.
The Court of Appeal majority concluded that the timing of the separation oath constituted a "fatal and fundamental irregularity" that resulted in a substantial miscarriage of justice.
However, the High Court rejected that interpretation, finding that s. 50 does not require jurors to take the oath at a particular stage of proceedings.
The court explained that the legislation makes taking the separation oath a precondition to allowing jurors to separate but does not require the oath to be administered immediately before separation.
It also noted that other provisions of the Juries Act expressly prescribe when particular steps must occur, while s. 50 contains no equivalent timing requirement.
The High Court further explained that the oath continues to bind jurors throughout the trial and does not lose its effectiveness merely because time has passed.
The court recognised that reminding jurors of their continuing obligations whenever they separate remains appropriate. Depending on the circumstances, failing to provide such reminders could constitute an error or irregularity.
However, the High Court found no such error. It rejected the argument that the time between administering the oath and permitting separation made the trial judge's decision unreasonable.
The court concluded that no irregularity or substantial miscarriage of justice had occurred.
It allowed the Crown's appeal, set aside the Court of Appeal's orders, and dismissed the accused's appeal against conviction.
