AGW v REGINA [2008] NSWCCA 81 | Case summary

15 April 2008 AGW v REGINA Judgment 1 GROVE J: On 14 December 2007 the Court ordered that the appellant's appeal against conviction be allowed, the conviction quashed and a new trial ordered. It was indicated that reasons would be published at a later date. 2 The appellant was tried between 21 November 2006 and 1 December 2006 at Penrith District Court upon an indictment charging five counts of sexual intercourse with a person under the age of ten years. The offences were alleged to have occurred during stated spans of time, the earliest commencing in January 1995 and the latest concluding in September 1999. The appellant pleaded not guilty to all counts and was acquitted by the jury on counts 1, 3, 4 and 5. He was, in the circumstances to which I will turn, found guilty on count 2 by what counsel for the appellant in a written submission to this Court described as a "purported … majority verdict". This description was expressly undisputed by the Crown. 3 The complainant gave evidence relating to counts 1, 3, 4 and 5. Count 1 was alleged to involve a manual touching of her vagina at a time when there was no one else at home. Counts 3, 4 and 5 were alleged to involve conduct which occurred on the one occasion in a computer room of a house. The charges alleged similar touching to count 1 and requiring the complainant to touch the appellant's exposed penis. At the time the complainant thought that her sister was not in the premises but out playing netball. The complainant was in the lounge room with the appellant's daughter when he called her into the computer room. 4 As I have noted, the appellant was found not guilty on these charges. The complainant did not give any direct evidence relating to count 2. The Crown relied upon the evidence of the complainant's sister who was, at the time, married to the appellant. It was her evidence that on New Year's Eve 1996 a family group including the complainant, the appellant, herself and their daughter were at the home of her and the complainant's parents during a television broadcast of the fireworks displays. The witness testified that she had fallen asleep in the lounge room but awakened during the night and saw the appellant with his head between the complainant's legs and that he was licking her vagina. This occurred, she estimated, for about three seconds. She feigned being asleep and only then awakening. The appellant was sitting upright and the complainant was asleep on the lounge with her pants "sort of pulled up a bit". The witness said that she should put the complainant to bed and the appellant said he would help. They did so. The witness said that she adjusted the child's pants on the way. She said nothing to the appellant until the next morning. 5 On that morning the witness said to him that she knew he had "touched" the complainant and he denied so doing. In response to her claim of witnessing the happening he said that she must be seeing things. 6 The allegations were drawn to the attention of police in about mid 2005. Police enquiry did not confirm an assertion by the complainant that she had earlier told what had happened in relation to the matters about which she could speak to a school friend. Police took a statement from that person who said that no such complaint had been received. 7 The complainant's sister agreed in cross examination that she had initially believed the appellant's denial in relation to count 2 and had never spoken to the complainant about it. She separated from the appellant in 2003 when she formed another relationship. She agreed that there had arisen a lot of animosity between herself and the appellant. 8 The appellant did not give evidence but the case presented on his behalf was that he did not sexually assault the complainant in any way at all. He asserted that the complainant and her sister, his former wife, were very close and that the false allegations were motivated by their joint hatred of him following the acrimonious break-up of the marriage. 9 Four grounds of appeal were presented, namely: "1. The verdict in relation to count 2 constitutes a miscarriage of justice as the appellant did not have a trial according to law. 2. The learned trial Judge erred in failing to apply the provisions of s 55F of the Jury Act 1977. 3. The trial Judge misdirected the jury by advising them that he could take a majority verdict at 5.00 pm on 1 December 2006. 4. The verdict in relation to count 2 is unreasonable and cannot be supported having regard to the evidence." 10 Grounds 1, 2 and 3 can be dealt with together, and it was common ground that, if those grounds were upheld, an order for new trial was appropriate. Ground 4, if sustained, would result in a verdict of acquittal. It is convenient to deal first with ground 4. 11 The obligation of this Court to assess the evidence for itself with due deference to the role of the jury and advantages which the jury possesses is laid down in frequently cited authorities and does not require recapitulation: M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439. 12 It should be noted that, as the trial was conducted, a dispute emerged concerning the use for reference by the complainant of her sister's absence from the house for the purpose of playing netball, particularly to locate when the offences charged in counts 3, 4 and 5 were alleged to have taken place. As the evidence showed, the complainant's sister did not play netball in the season which coincided with the specification of the range of dates in which those offences were charged as taking place, and the Crown effectively conceded that it could not prove, as the jury were instructed was required, that the conduct occurred during the stated period. 13 As I have mentioned count 2, upon which conviction was entered, depended upon the claimed eyewitness testimony of the complainant's sister. I have also set out several factors which might be argued to undermine the credibility of her testimony. However, there were matters to be weighed in respect of any criticism, for example, the delay in the witness herself coming forward was sought to be explained by the existence of her current marriage to the appellant, her then dependence on him for care of herself and a young baby and her reluctance to bring herself to accept that her husband had done what she had seen him do. 14 I was unpersuaded that, on the whole of the evidence, on the issues which were indisputably for the jury to determine, they ought to have had a reasonable doubt. Needless to say, it was obvious that conviction would depend upon their acceptance of the testimony of the appellant's former wife and the jury had the considerable advantage of hearing her evidence and particularly being able to see her responses to lengthy and searching cross examination. For these reasons I did not uphold ground 4. 15 The Court was assisted by the acknowledgment on the part of the Crown that the conviction on count 2 should be quashed. 16 At the conclusion of his Honour's summing up the jury retired to consider their verdict at 3.05 pm on Thursday 30 November 2006. They were returned into Court at 4.05 pm and shortly thereafter (4.10 pm) allowed to separate. They resumed their deliberations on Friday 1 December. 17 Some notes were received from the jury indicating, in one instance, that they were having difficulty in reaching a unanimous decision on one of the counts. They did not in their note specify which count but, in the light of what happened subsequently, it can be inferred that this was a reference to count 2. 18 Shortly before 2.50 pm on Friday, the presiding judge gave a direction in compliance with the guidance to be derived from Black v The Queen (1993) 179 CLR 44. In confirming that any verdict returned must be unanimous, his Honour added reference to the fact that the "circumstances in which I may take a majority verdict have not yet arisen". It was at 2.50 pm that the jury resumed deliberations. 19 It might be noted that in exchanges between counsel and the bench it was sought to reach agreement about the time at which eight hours of jury deliberation would pass. As a consequence, the jury were brought into Court at 4.08 pm that afternoon and, inter alia, his Honour said: "I told you earlier that past 4 o'clock I would ask you whether you wanted to keep going or come back Monday. One reason was that at 5-00 o'clock, and not before, it was agreed by the parties that I can tell you this, that I'll then be able to give you a majority verdicts directions. You should know that the majority verdicts legislation provides for an eleven to one verdict." 20 The jury resumed deliberations and at 5.14 pm sent a further note which read: "We have come to a verdict on four counts unanimously, however, we have come to a majority verdict on the one count remaining". 21 At 5.21 pm the jury were returned to Court and this exchange occurred between his Honour and the jury: "(His Honour): By agreement with counsel I must ask you this foreperson, you heard my direction earlier that a majority verdict could be reached on any of the counts on the basis of a majority of eleven to one. Has the majority verdict you have reached on one count been reached in obedience to that direction? Foreperson: It has your Honour". 22 The statutory basis for the return of a verdict where a jury is not unanimously agreed is to be found in the Jury Act 1977, s 55F, namely: "55F (1) This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons. (2) A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation. (3) In this section: majority verdict means: (a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or (b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned. unanimous verdict means a verdict agreed to by all members of the jury. … ". 23 In order for such a verdict to be taken the requirements of the section must be strictly observed: RJS v Regina [2007] NSWCCA 241. It is therefore mandatory for a presiding judge to determine what is a reasonable period of time for deliberation having regard to the nature and complexity of the proceedings, and the statutory pre-condition is not fulfilled simply by acting upon the lapse of the minimum period of eight hours. 24 It was observed that in the present case the exchange between counsel and the bench showed an inclusion of the time when the jury were provided with lunch in making the calculation of eight hours. Inclusion of some period during which a meal break is taken is not without possible controversy: R v VST 2003 6 VR 569. It is of course open to contemplation that jurors may deliberate whilst dining but as no attention at all was paid to making a determination of what period was reasonable, it is not necessary to finally determine the matter. I would comment that, in making a determination of what is a reasonable effluxion of time as is required by the statute, I would be reluctant always to make an assumption for that purpose that a time spent dining was necessarily also a time spent in deliberation. 25 In making that comment I am conscious that in respect of similar provisions it has been held that the time during which a jury is returned to the courtroom for asking a question of the judge: R v Adams & anor 1968 52 Cr App R 588 or receiving supplementary directions or reminders of evidence: R v Rodriguez 1998 2 VR 167, on which occasions the jury is literally not deliberating, are not excluded from the calculation of whether the minimum time point has been reached. It has also been held that when the jury eat a light lunch and remain in the jury room there is no requirement to calculate a period of exclusion: R v Doherty 1999 3 VR 435. There can be no inquiry for this purpose about what occurred in the privacy of the jury room and in complying with the obligation to determine a reasonable period of deliberation it would be prudent for trial judges to avoid the risk of miscarriage by refraining from acting soon after the estimated expiry of eight hours where there is any ambiguity about a component part of that minimum span of time. 26 Second, his Honour was obliged to be satisfied that it was unlikely that a unanimous verdict would be reached if further deliberation were undertaken, and he was required to do this by examination on oath of one or more of the jurors. As the excerpt which I have cited shows, the juror of whom enquiry was made was neither sworn nor affirmed, nor was any enquiry made of her concerning the prospect of unanimity. His Honour's enquiry was limited to the numerical division of opinion. 27 There was therefore a failure to fulfil two essential preconditions to the receipt of a verdict which was not unanimous and the appellant, as the Crown conceded, was not convicted on count 2 after a trial conducted according to law. 28 For these reasons I joined in making the orders recorded at the beginning of this judgment. 29 HULME J: I agree with the reasons of Grove J. 30 SIMPSON J: I have read in draft the judgment of Grove J. That judgment expresses my reasons for joining in the orders of 14 December 2007.

AGW v REGINA

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