The King v Bechaud [2026] – Jury Separation after Retirement & the Separation Oath – Criminal Law – Mr Anthony Strik
In The King v Bechaud [2026] HCA 36, the High Court of Australia (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ) allowed a Crown appeal from the Victorian Court of Appeal. The appeal concerned when jurors must take the oath that allows a jury to separate during deliberations. The appeal was heard on 5 August 2026 and the Court delivered a unanimous joint judgment on 7 October 2026.
Background
The respondent, Mr Bechaud, was tried in the County Court of Victoria on two charges of rape. On the first day, 24 July 2024, after the jury was empanelled and given preliminary directions, the trial judge had each juror take the separation oath. That oath is prescribed by s 50 and Sch 5 of the Juries Act 2000 (Vic) (‘the Act’). By it, each juror promises not to discuss anything relating to the evidence or the deliberations with anyone outside the jury.
The jury retired on 2 August 2024, nine days later. The trial judge allowed it to separate over the weekend and again on the Monday evening. On neither occasion were the jurors reminded of the oath, and neither counsel asked for a reminder. On 6 August 2024 the jury acquitted on the first charge and convicted on the second.
On appeal, the majority of the Court of Appeal (Priest and Kaye JJA) held that the oath must be taken at a time “temporally proximate” to, and connected with, the first separation during deliberations. They found a fundamental irregularity, quashed the conviction and ordered a retrial. Taylor JA dissented.
Legal Issues
Section 50(1) of the Act allows the court to permit the jury to separate after it has retired and before verdict or discharge. Under s 50(2), the court may do so “only if each separating juror has taken” the separation oath. The issue was whether s 50 requires the oath to be taken shortly before the first separation during deliberations.
Legal Reasoning
Text and Statutory Context
The Court held that s 50(2) is simply a precondition: the oath must have been taken before the discretion is exercised. Nothing in the text requires it to be taken at any particular stage of the trial. Other provisions in Pt 6 of the Act do impose precise timing requirements. Section 42, for example, requires the empanelment oath “[o]n being empanelled”. The absence of any timing requirement in s 50 indicated that Parliament did not intend one.
The Court also noted that the oath covers “the evidence in this trial” as well as the deliberations. The majority below had therefore erred in treating it as concerned only with the jury’s conduct during deliberations.
Purpose
Drawing on Brownlee v The Queen (2001) 207 CLR 278, the Court traced the law’s move away from sequestering juries. The law now relies on jurors’ sense of responsibility and their capacity to follow directions. Section 50 balances juror convenience against protecting the verdict from outside influence, and that purpose is met whether the oath is taken early or late. Indeed, administering the oath before evidence begins may serve that purpose better. It reinforces the usual preliminary directions and the prohibition on jurors making enquiries in s 78A of the Act.
The Court rejected both of the respondent’s alternative readings: that “has taken” implies a close temporal or factual connection, or that the word “just” should be read into s 50(2). Following R v Patton [1998] 1 VR 7, the oath is taken once, and it is assumed jurors understand it continues to bind them. The oath’s effect is not weakened merely by the passage of time.
Reminders
The Court endorsed reminding jurors of the oath each time the jury separates, so that, as Taylor JA put it, the significance of the deliberations and the integrity of the verdict are reinforced. It expressly left open that, in some circumstances, failing to give a reminder before a separation after retirement could itself be an error or irregularity. However, it rejected Taylor JA’s view that administering the oath shortly after empanelment is unwise.
Exercise of the Discretion
The respondent argued in the alternative that the discretion to allow separation miscarried, given the time since the oath was taken and the lack of any reminder. The Court found no basis for concluding that the trial judge overlooked either matter. The decision was “anything but unreasonable”, particularly in a relatively short trial.
Outcome
The appeal was allowed. The Court of Appeal’s orders were set aside and replaced with an order dismissing the respondent’s appeal against conviction. The conviction stands.
Analysis
The decision confirms that an oath administered at the start of a Victorian trial satisfies s 50, and that a separation oath does not lose its force with time. The practical point for counsel is the Court’s suggestion that a failure to remind jurors may be an irregularity in some cases. If a reminder matters in the circumstances of a particular trial, counsel should ask for one, rather than raise its absence for the first time on appeal.
For NSW practitioners, the direct relevance is limited. Section 54 of the Jury Act 1977 (NSW) permits separation without any separation oath, and only Tasmania shares Victoria’s requirement. The Court’s reasoning on the enduring effect of jurors’ oaths and the value of reminders is, however, of general application.
Anthony Strik accepts briefs in criminal law matters. If your client requires experienced legal representation in the District or Supreme Court of NSW, or on appeal, please contact his chambers.
This is commentary, not advice about your case.