BJ v R [2023] NSWCCA 77 | Case summary

Court of Criminal Appeal (NSW)|2022-11-18|Before: Harrison J, Fagan J, Yehia J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was found guilty by a jury of seven counts of sexual offending against his niece in late 1999 when the complainant was eight to nine years old. There were three counts of assault with act of indecency contrary to s 61M(2) of the Crimes Act 1900 (NSW) and four counts of sexual intercourse with a child under 10 years contrary to s 66A. An aggregate sentence of 14 years imprisonment with a non-parole period of 10 years was imposed. The offences were alleged to have occurred at the premises of an independent church when the complainant attended there after school. The applicant was a youth minister of the church. He contended at trial that the date on which the church first occupied the premises and the date of certain equipment being installed were inconsistent with the complainant's allegations concerning the dates, place and circumstances of the offences. During deliberations one juror was unable to continue due to personal commitments in the following week, the trial having continued with beyond the estimate that was given when the jury were empanelled. The trial judge discharged that juror but ordered that the trial continue with the remaining 11. The grounds of appeal were: The trial judge erred in failing to discharge the entire jury under s 53C of the Jury Act 1977 (NSW).The verdicts are unreasonable and cannot be supported having regard to the evidence. The sentence imposed is manifestly excessive. The Court unanimously dismissed all grounds of the appeal for the following reasons:As to the failure to discharge the jury: There was no error in discretionary decision to continue with 11 jurors, having regard to the circumstances that were before trial judge' when the decision was made. Nevertheless, on appeal the Court had to determine with the benefit of hindsight whether any risk of miscarriage of justice had arisen from continuing with 11 only jurors. No such risk was demonstrated. The circumstances that the jury had been deliberating for about 13 hours without reaching unanimity up to the time of the discharge of the individual juror and that they were able to return unanimous guilty verdicts within about one hour after resuming their deliberations on the next sitting day, following an intervening weekend, did not support an inference that the individual juror who had been discharged would have favoured acquittal. BG v R [2012] NSWCCA 139; Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52As to whether the verdicts were unreasonable: The evidence upon which the applicant claimed that the complainant had been contradicted, concerning the date on which the church commenced occupation of the premises and the date on which a movable stage was installed, did not incontrovertibly rebut the complainant's recollection of events. The circumstances disputed by the applicant were peripheral to the complainant's account. The events she described had occurred more than 20 years earlier. It was reasonably open to the jury to resolve conflicts in the evidence, to accept the complainant as to the substance of the applicant's conduct and to be satisfied beyond reasonable doubt that she was truthful and accurate with respect to each count. M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63As to whether the sentence was manifestly excessive.

The applicant relied heavily upon comparison with R v Neville [2018] NSWCCA 125, which, it was submitted, concerned significantly more serious offending and resulted in a sentence of 15 years imprisonment with a non-parole period of 10 years. The Court considered that a number of sentencing considerations in R v Neville made the comparison unreliable and that a single purportedly comparable sentence outcome is not a persuasive indicator of manifest excess. The sentence imposed upon the applicant was not unreasonable or plainly unjust. R v Neville [2018] NSWCCA 125; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

JUDGMENT

HARRISON J: I have had the considerable advantage of reading the draft judgment of Fagan J. Having reviewed the evidence from the trial for myself, I am unable to accept the applicant's submission that the verdicts are, or that any of them is, unreasonable. It is in the nature of cases such as the present that there may be occasional inconsistencies, discrepancies and contradictions in articulating a recollection of events that occurred 20 or so years ago. None of the so-called inconsistencies, discrepancies and contradictions identified by the applicant appears to me in this case to be anything other than an inconsequential artefact of the complainant's evidence of the charged acts, evidence that is otherwise plausible and credible. I otherwise agree with his Honour's conclusions with respect to the other two grounds and with the orders he proposes.
FAGAN J: The applicant seeks leave to appeal against his conviction and sentence for seven counts of sexual offending against his niece. He was charged with having committed the offences in late 1999 when the complainant, AS, was aged between eight and nine years and the applicant was 34. The applicant is the brother of AS' mother. The offences were first reported to police in October 2018. The applicant was arrested on 8 May 2019 and tried in the District Court before Huggett DCJ in the District Court commencing on 18 February 2021. Verdicts of guilty were returned for all seven counts on the indictment on 8 March 2021.
The particulars of each count may be summarised as follows. The indicative terms of imprisonment nominated by the learned trial judge when passing sentence are as indicated in brackets: Count 1: assault with act of indecency, s 61M(2) of the Crimes Act 1900 (NSW). The applicant sat next to the complainant on a lounge at her maternal grandparents' house. He placed his hand on her knee and moved it up, massaging the inside of her thigh, until his hand was near her crotch making contact with the bottom of the zipper of the jeans she was wearing, against her genitals. This occurred before the complainant turned nine. [2 years]. Count 2: assault with act of indecency, s 61M(2). This offence occurred at Unit 3,3 Salisbury Road, being warehouse premises re-purposed and used by the Northwest Church in Castle Hill. The applicant was a youth minister of the Church and the complainant's father was a Church leader. All of counts 2-7 occurred at that location, on separate afternoons when AS was at the Church premises after school. In count 2 the applicant took her underneath a set of stairs, on the lower level of the building, unzipped his trousers, pulled down his underpants and placed AS' hand on his penis. [4 years and 6 months]. Count 3: assault with act of indecency, s 61M(2). The applicant indecently assaulted the complainant in the same manner and in the same part of the building. [4 years and 6 months]. Count 4: sexual intercourse with a child under 10 years, s 66A. The applicant took the complainant into the male bathroom on the lower level of the building, sat her on the toilet seat and put his penis in her mouth, moving it backwards and forward repeatedly. [9 years]. Count 5: sexual intercourse with a child under 10 years, s 66A. The applicant again took the complainant into the male bathroom, pulled down her underwear, put his hand over her mouth had inserted his finger in her vagina. [8 years]. Count 6: sexual intercourse with a child under 10 years, s 66A. The applicant took the complainant into the male bathroom, pulled down her underwear, stroked the outside of her vagina with his thumb and then inserted two fingers and moved them in her vagina for several minutes. [8 years]. Count 7: sexual intercourse with a child under 10 years, s 66A. The applicant took the complainant into the male bathroom, directed her to kneel on the floor, then sat on the toilet seat and put his penis in her mouth, causing her to suck it until he ejaculated. [10 years].
Her Honour imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years, backdated to commence from 29 January 2021, to allow for a period before trial during which the applicant was bail refused.
The grounds of appeal for which leave is sought are as follows: 1 The learned trial judge erred in failing to discharge the jury under s 53C of the Jury Act 1977 (NSW). 2 The verdicts are unreasonable and cannot be supported having regard to the evidence. 3 The sentence imposed upon the applicant is manifestly excessive.
The complainant was the sole Crown witness who could give evidence of the alleged offending. The jury were properly directed that, for each count, in order to find the applicant guilty they would have to be satisfied beyond reasonable doubt that the complainant's account of his actions was truthful and accurate. The unreasonable verdict ground is advanced on the basis that the jury ought to have had a reasonable doubt about the complainant's evidence of counts 2 and 3 because, so it is argued, independent and objective evidence showed that those offences could not have been committed at the times and in the circumstances described by the complainant. The applicant submits that reasonable doubt concerning counts 2 and 3 should have given rise to reasonable doubt concerning the complainant's evidence of the other five counts as well.

Birth dates and school dates

The complainant related the offending conduct to the date of her birthday, the term dates for the 1999 school year and the wearing of seasonal uniforms at her school. She referred to the configuration of the Church premises at Unit 3,3 Salisbury Road, Castle Hill and to aspects of its fit out and equipment that she said were present at the time of the offending. It is necessary to refer to the independent evidence of dates in the 1999 school year and the evidence of when the Church commenced occupation of the subject premises, in order to assess the applicant's arguments about impossibility.
The complainant was born on 30 September 1990 and therefore turned nine on 30 September 1999. She commenced attendance at Pacific Hills Christian School at Dural on the first day of Term 3, Thursday 22 July 1999. Term 3 ended on Friday 24 September 1999. Students at the school wore winter uniform in Term 3 and changed to summer uniform from the commencement of Term 4, which was on Monday 11 October in 1999. Term 4 ended on Thursday 9 December that year.
On 1 September 1999 the applicant returned to Sydney from the United States of America, where he had resided for several years. The applicant's wife, whom he married in the United States in 1992, came to Sydney with him. He commenced his work as a youth minister with the Church immediately upon arriving in Sydney and he continued in that position until about mid-2001, when he and his wife moved to Brisbane.
The complainant's father gave evidence that in September 1992 he had joined with another family to establish the Northwest Church as an independent Christian church. He said that initially he and other Church members rented buildings in Castle Hill and Baulkham Hills for the purpose of carrying on Church activities but eventually the Church became an incorporated association and it purchased a property. In his evidence in chief the complainant's father displayed very uncertain recollection of the premises used by the Church and of the dates of occupancy, leasing and, ultimately, purchase of the Salisbury Road building.
In cross examination the complainant's father was shown a lease of Unit 3,3 Salisbury Road (Ex 10). The term of the lease was four years with a commencement date of 1 October 1999. The lessor was The Hills Lodge Pty Ltd and the lessee was Northwest Church Incorporated, on whose behalf the complainant's father had signed the document. It was put to him in cross-examination that the Church did not move into the Salisbury Road premises until after 1 October 1999. He responded as follows: A Well, we - we may well have. […] And there might have been other documents that I also don't remember. But I'm happy to concede that we were certainly in there on 1 October. […] [When] you're a church organisation trying to negotiate your way into property deals […] you're really developing relational transactions with potential landlords. Some things are a bit more handshake than others […] I'm conceding this document looks hundred percent correct. I'm not concluding that that doesn't mean that we weren't in there, at least using the premises prior to that. […] Q Do you have any documents that may support that? A […] I had no idea this would even be a - so if […] the Court had asked me prior to this, I could have hunted down and tried to find things out, talk to our solicitor, talk to different people. Maybe there are other documents. […] I agree with what this document says. You're asking me to draw a conclusion from this that we therefore had nothing to do with that site beforehand, and I'm saying I don't know that. Q Do you have any memory of moving in before you paid the rent? A Well, we would have always paid something. Q Yes, in accordance with the lease. A Not necessarily, depends on the relationship we had with the landlord. The Hills Lodge here is obviously the landlord - I'd forgotten that. We'd been leasing from them for Sunday mornings for quite some time; in fact we had a history with them going back to 1992. So this is the property next door.
The complainant's father explained that The Hills Lodge was a hotel on Windsor Road and that the Church had used the hotel's auditorium and meeting rooms at times. After some intervening cross-examination, the subject of whether the Church occupied the premises at 3 Salisbury Road prior to the commencement of the lease was returned to, in the following questions and answers: Q Well, sir, it would be highly unlikely that you'd have access to any of these buildings unless you paid the rent. A Well, we […] were already paying rent and - leasing from the Hills Lodge. […] I'm not saying anything other than this document that I've seen for the first time in over 20-odd years, I'm looking at it and trying to make some sense of it […]. We obviously took out a lease on 1 October 1999 with the intention of purchasing, which we did. We may or may not have had access to that property before that. We had […] a casual rental arrangement with the Hills Lodge for many years prior to that. I can't - have no memory whatsoever of when the first date was that we went into the premises. […] Q And would [the Church's solicitor] have any documents of any kind to your memory which would support that the church occupied these premises in any form prior to 1 October 1999? A […] I've no idea. Q But you don't have any yourself. A No, I don't. Q And is there anybody else that you would nominate as being a possibility which would confirm that the church was occupied prior to 1 October 1999? A […] I'm not asserting that the church did occupy then. I'm just saying that we may have, and because that was the nature of how things were sort of done back then, trying to get a church up and running. […] We were physically present in there on 1 October. Whether we were in there at all prior to that for several months, I can't say.
The complainant's father was unable to recall whether the first service held by the Northwest Church in the premises at 3 Salisbury Road was on Sunday 3 October 1999. It was put to him that the Church conducted a service in the council chambers on 26 September 1999. He said he had no memory of that but no reason to doubt it. He said that the Church did use the Baulkham Hills council chambers for its services during "chunks" of time and that it was possible, although he could not remember, that use of the council chambers overlapped with use of the premises at 3 Salisbury Road.
The applicant gave evidence. He said that when he commenced working with the Church in early September 1999 it had no settled place at which to conduct services and that these took place at The Hills Lodge, in the council chambers and in the homes of Church members. He later corrected this to exclude The Hills Lodge. The applicant said that the first service conducted at 3 Salisbury Road took place on Sunday, 3 October 1999. He said he did not attend on that day because he travelled by car to Gympie, Queensland with members of the Church youth group on a five day trip commencing on Thursday 30 September 1999. He said that he was not involved in administrative and business aspects of the Church's affairs, such as securing the lease of the Salisbury Road property, however, he did assist with physical set up of the premises. That included transporting chairs and placing them in the building. The applicant agreed that he had entered the building for that purpose prior to 30 September 1999, in order to have chairs available for the congregation at the first service.

Count 1

The complainant's evidence in respect of count 1 was to the effect summarised at [3] above. There was nothing inherently implausible about that evidence. Subject to consideration of the applicant's arguments concerning unreliability that is said to have been demonstrated in relation to counts 2 and 3, it was reasonably open to the jury to accept the complainant on count 1 and to reject the applicant's denial.

Complainant's attendances at 3 Salisbury Road; layout of premises

With respect to counts 2-7, the complainant said that her father worked full-time for the Church in 1999 and that her mother did not work outside the home. During the latter part of 1999 the complainant's mother would collect her and her brother, two years old, from school at about 3:00pm. On one or two days per week, usually Thursday and Friday, her brother had to be taken to an after-school activity. On those days the complainant's mother would drop her at the Church premises at about 3:30pm, "for Dad to babysit". She would remain there for one or two hours before being driven home by her father or picked up again by her mother.
On the days when the complainant went to the Church premises after-school, she said that the applicant would "usually be there" and that as far as she knew he would be "just getting stuff prepared for the youth group that would happen on Friday nights". The complainant gave the following evidence about her time at the Church on these afternoons: [Her father would] be working on projects and I would just sort of sitting the corner and do my homework. […] There was, I think, two other employees at the time who each had an office.
It was uncontroversial that the Church offices at 3 Salisbury Road were on Level 1. Two sets of stairs lead down to the ground level, one towards the front of the building and one towards the rear. At ground level there is car park in front of the building with a roller door opening onto a multipurpose room. Adjoining that further towards the rear of the building is a large auditorium with a kitchenette in the front left corner. To the left of the multipurpose room is the front stairwell, in which the stairs proceed upwards toward the rear, to a landing, and then from the landing upwards toward the front of the building to arrive at Level 1. On the ground level immediately adjoining the stairwell, behind it, there are two single toilet cubicles side-by-side, marked Men and Ladies. There is a narrow passageway outside the doors of the two toilets, to which access is through a door.

Count 2

The complainant said that on an afternoon in Term 3 of 1999, when her mother dropped her at 3 Salisbury Road after-school, the applicant approached her on Level 1 and offered to take her downstairs to get a snack. She said she was wearing her winter school uniform. The applicant took down the front stairs and then said, "We're going to play a game". The complainant described the offence as follows: [He] went under the [lower section of the] stairs and he knelt down and unzipped his pants. And he put my hand in his pants, and I started to cry, and decrypt my left wrist so hard I thought it might break. And so I just did what he said, and then he - he put my right hand in - into his underwear and then made me/his penis. On that happened for a few moments and then we finished, and he told me to go get a snack. [He] heard a noise from upstairs and he told me to go and get a snack.
The complainant said that during the sexual touching she sat cross-legged and the applicant knelt. She said that immediately after the event he threatened to hurt her brother and other members of her family if she told them what had occurred. She went to the kitchenette and got a snack, then returned upstairs. She did not tell her father what had happened because she "didn't want to get into trouble".

Count 3

The complainant said that on another occasion when she was dropped at the Church premises after-school, wearing the winter school uniform, the applicant was present and said he "wanted to take me downstairs for a snack". They proceeded down the front stairs and upon reaching ground level the following took place: [He] grabbed me from behind and it startled me, and he took me under the stairs. … He kind of lifted me up a bit … He grabbed me under the arms. … He said we were going to play the game again, and so he took me under the stairs and we both sort of knelt down and he pulled his penis out and he made me stroke it … He held my left wrist and I started to cry, but he just held my wrist harder and I stopped. And he made me stroke his penis with his right hand. … He [had] unzipped his pants and pulled down his underwear at the front.
The complainant said that she and the applicant were in the same positions under the stairs as they had been for the events described in relation to count 2. She said that the indecent assault "wasn't very long, because he heard a noise". He then told her to run and get a snack. She said that he threatened to harm her brother if she said anything. She returned to Level 1 via the rear stairway. She saw her father there but did not say anything to him because she was "trying to protect [her] brother". The complainant said that there were only two occasions when sexual touching took place under the front stairs. On the occasion of count 3 she was eight years old, close to her ninth birthday.

Count 4

The complainant said that count 4, as described at [3] above, occurred when she was at the Church premises after school one afternoon and the applicant "cornered" her as she came out of the female toilet cubicle on the ground level. She said that on this occasion she was wearing her summer school uniform. She had just turned nine and the event took place in Term 4. The complainant said that, having taken her into the male toilet cubicle and lowered his jeans and underpants, the applicant held the back of her head and moved his penis back and forth in her mouth, groaning. He did not ejaculate. She was terrified. When he stopped he said that if she told anybody he would hurt her father. He told her to go back into the female cubicle and count to 50 before returning upstairs. She followed that instruction. She did not say anything to her father because of the threat, nor to anyone else because she was "ashamed and embarrassed".

Count 7

The complainant said that count 7, the second instance of oral intercourse, ended with the applicant ejaculating and, like count 5, occurred in Term 4 of 1999. She gave evidence, for the limited purpose of establishing the nature of the relationship, that there were five or six further occasions of oral intercourse that occurred during 2000.

Counts 5 and 6

The complainant said that the two instances of digital penetration alleged in counts 5 and 6 occurred when the applicant took her forcibly into the male toilet cubicle. Both events occurred during Term 4 of 1999. On each occasion the applicant made threats to harm her brother if she told anybody what he had done. The applicant gave evidence, again limited to establishing the sexual relationship that the applicant maintained with her, that he digitally penetrated her with one finger about three or four times in total and with two fingers about five or six times in total. All of his sexual contact with her had ceased by the end of 2000.
The complainant said that on the occasion when the applicant digitally penetrated her with two fingers in count 6, she was wearing a sports uniform. When the applicant left the toilet cubicle he told her to count to 20 before leaving herself. When he had gone she went into the female cubicle, cried for some time then washed her face and "went behind the stage in the auditorium and curled up in a ball and just lay there curled a while until my mum came to get me". In cross-examination she said that musical instruments were kept behind the stage.

First complaint

The complainant first told her parents of the applicant's conduct in about December 2009 or January 2010. She only said that the applicant had "touched her there" but did not give any details.

Cross-examination

It was put to the complainant that none of the sexual acts that she described had taken place. With respect to the fit out and equipment of the auditorium at 3 Salisbury Road, it was put that there was no stage behind which she could have "curled up" after the offence alleged in count 6. She said that there was a stage, made of timber and painted black, the surface of which was raised up above the general level of the floor in the auditorium. It was also put to the complainant that there were no musical instruments owned by the Church and stored behind the stage, as she described, in 1999. It was suggested that in that year the singing of the congregation was solely "a cappella", that is, unaccompanied. The complainant maintained that there were guitars, drums and a keyboard kept behind the stage.

Ground 2 - unreasonable verdict

I will consider ground 2 first because the applicant submits that if it should be upheld he would be entitled to have the verdicts of guilty quashed and verdicts of acquittal substituted, irrespective of the Court's view on ground 1. In support of ground 2 the applicant submits that the jury ought to have identified the following discrepancies and/or contradictions in the complainant's evidence, which should have caused them to have a reasonable doubt about her evidence on all counts. First, it is submitted that on the evidence of the complainant's father and of the applicant, the jury should have been satisfied that the Church was not in occupation of 3 Salisbury Road before 1 October 1999, the date of the lease. As Term 3 at the complainant's school ended on Friday, 24 September 1999, it was submitted that during that term, when she would have been wearing her winter uniform, there could not have been any occasion when she would have been dropped off at 3 Salisbury Road after school and stayed there while her father, other Church employees and the applicant were present.
That contention is insubstantial. The complainant's father did not exclude the possibility that he and other Church personnel commenced occupancy of the premises prior to the date on which lease was signed and from which the term of the lease ran. He described an anterior, enduring relationship with the landlord, arising from the Church's use of other premises owned by The Hills Lodge. The complainant's father thought it possible that, consistent with that long-term relationship, the Church may have been allowed to occupy 3 Salisbury Road before the lease was signed and before the term commenced. He said that rent would have been paid for such occupancy. There was nothing far-fetched about that evidence. There is no reason why the jury should have thought that a landlord would not allow occupation to be taken up before execution of the lease, by a prospective lessee with whom the landlord had an existing relationship.
The fact that the applicant's father was unable to produce documents recording any such pre-lease occupancy need not have been treated by the jury as making it improbable. The jury would have perceived that the complainant's father was pressed about his inability to produce such documents in circumstances where he had been given no notice of the issue, which related to a transaction that had taken place more than 20 years earlier. Further, the jury might well have considered that an informal occupancy, in anticipation of the execution of a lease, may not have been separately documented.
Secondly, the applicant submits that photographs of the auditorium at 3 Salisbury Road taken in late 1999 showed that there was no stage behind which the complainant could have "curled up", as she alleged in connection with count 6. The complainant described the events of that count as having occurred in Term 4, that is, on some date between 11 October and 9 December 1999. The complainant's father said that the stage comprised a number of box-like units that could be moved around. He could not recall if the stage units were in the auditorium in 1999. He was shown a photograph of the auditorium (Ex 11) in which no stage was depicted. The date of this photograph was not clearly established. The applicant said that was taken in 1999. The complainant's father said that the stage units may have been in another part of the auditorium, out of view of the camera, when this shot was taken.
The complainant's father was shown another photograph (Ex 12) that he said was taken "probably just as we moved in", which was before 3 October 1999, on any view. The photograph in Ex 12 showed substantially the whole of the auditorium floor and no stage units appeared to be present. On the father's evidence, the photograph is not inconsistent with the complainant's account that the stage was present on a date during Term 4, between 11 October and 9 December 1999, when the sexual assault alleged in count 6 took place.
The applicant said that from his memory and from the photographs there was no stage in the auditorium in 1999. It would have been apparent to the jury from his answers that in this respect he relied upon the absence of depiction of a stage in any of what he understood to be contemporaneous photographs. He said that he could not "rule it out, 100%" that there was some form of stage there from about mid-October 1999. Thus, neither the photographs nor the evidence of the complainant's father nor that of the applicant contradicted the complainant's evidence about curling up behind the stage after the sexual assault alleged in count 6, on a day during Term 4 in 1999.
The applicant said that the Church did not use musical instruments and did not remember there being any in the Church building in 1999. The complainant's father said that the singing of the congregation at Sunday morning services was unaccompanied but that the Church had guitars, keyboards and an amplification system that were used at other times. He was not able to recall specifically whether such instruments were in the premises in 1999. He did not recall there having been a drum kit. The complainant's father did not recall musical instruments having been stored on or near the stage. He said they might have been stored under the rear stairway or on the upper level. He had no recollection about this specifically in relation to 1999. The evidence of the applicant and of the complainant's father did not incontrovertibly refute the complaint's recollection that the space behind the stage, in which she recalled having concealed herself after she was assaulted in the manner alleged in count 6, was a place where musical instruments were stored.
The jury saw and heard the complainant give evidence, by audio visual connection to a location separate from the courtroom, over three days. Their opportunity to assess her credibility and accuracy in those circumstances gave them a distinct advantage over this Court, reviewing the evidence on transcript. All of the points made by the applicant about whether the complainant's evidence ought not to have been accepted concern matters that the jury was well able to resolve, in the exercise of their proper function. No matter of fact was overwhelmingly established by evidence in contradiction of her. It was open to the jury to regard some of the matters raised by the applicant on appeal as peripheral, so that even if they felt a doubt about the detail it would not have caused them to doubt the substance of the experiences that she described, graphically, as constituting the commission of each offence. Examples of peripheral details are whether there was a stage behind which the complainant could have curled up after count 6 and whether musical instruments were located there.
The applicant has not shown that the verdict was unreasonable, or unsupported, having regard to the evidence, according to the familiar test and principles stated in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. Leave to appeal should be granted in respect of ground 2 but that ground should be rejected.

Ground 1 - refusal to discharge jury

The chronology of events upon which the applicant has argued ground 2 is as follows: Wednesday 3 March 2021, 11:19am: the jury retired to consider their verdict. Wednesday 3 March, 3:35pm: the jury were permitted to separate. Thursday 4 March, 9:30am: the jury resumed deliberations. Thursday 4 March, 4:00pm: the jury had deliberated for eight hours. One juror sent a note: "I am not available on Monday the 8th and Tuesday the 9th as I am required to be in Melbourne." The jury had been empanelled on the basis that the trial would conclude by Friday 5 March. Friday 5 March, 10:00am: in the absence of the jury counsel agreed with the trial judge's suggestion that the jury be informed that the commitment of the individual juror for 8 and 9 March "will be accommodated should the need arise". Defence counsel foreshadowed that if the jury had not reached a unanimous verdict by 4:00pm that day he would apply for a discharge of the whole jury. Friday 5 March, 10:11am: the jury submitted notes of two questions. One of their notes requested that the trial judge "reiterate how the seven different charges should be viewed? We have individuals stuck, because they believe they should look at those - at the seven charges collectively". The judge directed the jury in answer to their questions. With reference to the note of the preceding afternoon. Her Honour said: Be assured those commitments will be accommodated should the need arise. So I'd ask you then to put that concern out of your minds and if you would return to the jury room and continue your deliberations. Friday 5 March, 3:40pm: a note from the jury was received requesting that they be released for the day and asking for confirmation of which date they were to return "due to some jurors' commitments". The jury were brought into court at 3:45pm and confirmed that only one juror was unavailable for the first two days of the following week.
Sections 53B and 53C of the Jury Act 1977 (NSW) provide as follows, so far as presently relevant: 53B Discretionary discharge of individual juror The court […] may, in the course of any trial […], discharge a juror if - (d) it appears to the court […] that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If […] the court […] discharges a juror in the course of a trial […], the court […] must - (a) discharge the jury if the court […] is of the opinion that to continue the trial […] with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial […] continue with a reduced number of jurors.
Her Honour stated that her initial view of the situation was that par (d) of s 53B was engaged and that it was necessary to determine whether to discharge that juror or to stand the proceedings down until Wednesday 10 March when all 12 jurors would be available to continue their deliberations. Her Honour recognised that if the individual juror should be discharged, the discretion to continue with 11 under s 53C or to discharge the whole would be enlivened. The Crown took no position on any of these alternatives. Defence counsel argued strongly, from the outset, that the whole jury should be discharged. There is nothing in the trial record from which it could have been inferred that the juror who had commitments for the following Monday and Tuesday was inclined to acquittal. If the applicant or his legal representatives had perceived such an inclination it would be expected that the alternative of retaining the juror and adjourning deliberations until the following Wednesday would have been supported. Similarly, it would be expected that such an adjournment would have been sought if the concern of the defence was to retain a full complement of 12 jurors. There was no application for adjournment. For reasons known only to themselves, the applicant and his advisers sought only one outcome from the situation, namely, discharge the whole jury to terminate the trial without verdict.
Shortly before 4:00pm on Friday 5 March, her Honour determined the issue arising under s 53B(d) and ordered, in the absence of any opposing submission, that the individual juror be discharged. In her reasons for the individual discharge, her Honour said this: I appreciate that the discharge of the juror is being ordered at a point in the trial where the jury is deliberating. However, as the jury has not indicated in any notes that have been sent to me any aspect of their voting figures. This is not a situation for example where the jury has indicated an inability to agree such that the discharge of one juror could be seen as denying the accused a fair trial or affording to him a miscarriage of justice. […] I have taken into account the fact that [defence counsel] has made submissions that we do not know what contribution that juror has made. That is so. That is always the case where a jury is discharged before the delivery of a verdict whether it be during a trial or during the point of deliberations. Whilst it might be unusual to discharge a juror while they are deliberating it is not completely uncommon and it is a course that is contemplated and permitted under the Jury Act 1977 (NSW) […].
Her Honour then exercised her discretion under s 53C by ordering that the trial continue with 11 jurors. Her reasons for doing so were as follows: The accused is entitled to a trial by jury of 12 and that of course is a very important right that any accused person has. In determining whether the entire jury should however be discharged, there are other factors that must be taken into account. Those factors include but are not limited to, the length of time that the trial has already occupied and the point at which the trial is at. This trial has been going for a number of days. All of the evidence has completed and we are now at the point at which the jury are deliberating. Quite clearly, if the jury was discharged there would be some delay in the resolution of the trial [scil charges]. There would be [inconvenience] to witnesses as well as to the accused. In determining as I have that the trial should continue with 11 jurors, I have taken into account the fact that whilst the jury is at the point of deliberations there has been no indication as to a concluded position in relation to any of the counts nor has there been any indication that the jury is that a position of deadlock. […] I am not satisfied that continuing the trial with 11 remaining jurors would give rise to a risk of substantial miscarriage of justice for the reasons to which I have referred and I order that the trial continue with the jury of 11, being satisfied that there is no risk of substantial miscarriage of justice.
The individual juror who was unavailable for 8 and 9 March was recalled to court, thanked for his service and discharged. The remaining 11 jurors were permitted to separate at 4:04pm. They resumed deliberations on Monday 8 March by about 10:00am. They returned verdicts of guilty on all counts at 11:04am.
In ground 1 the applicant does not challenge the learned trial judge's decision under s 53B(d) to discharge the individual juror. He could hardly do so given that, at trial, defence counsel had not asked her Honour to adopt the only alternative to the individual discharge, which would have been to adjourn the jury's deliberations for two days. Ground 1 is confined to an attack upon her Honour's decision under s 53C to continue to verdict with 11 jurors. Although that decision clearly involves the exercise of discretion, it is established that the duty of this Court is not merely to examine the trial judge's reasons, to verify that correct principles were applied, but to determine for itself whether, in the circumstances, the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice: BG v R [2012] NSWCCA 139 at [101].

The trial judge's decision under s 53C in the circumstances of 5 March 2021

The principles upon which a trial judge is required to exercise the discretion to continue a trial with a reduced number of jurors were considered in Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52. When that case was decided, the issue arose under s 22 of the Jury Act. McHugh J identified the following considerations as relevant at [29]: The usual reason for exercising the power under s 22 is that the trial has proceeded for some time and that it would cause significant expense to begin again with a new jury. No doubt the circumstances of individual trials will throw up other valid reasons. And there may be countervailing reasons. It may be a case dealing with matters upon which the opinion of the community is deeply divided. In such a case, despite the time that the trial has already taken, the proper exercise of the discretion may require that the accused be retried before a jury of 12. Or the case may be one where the community has strong feelings against the crime in question and the risk of prejudice against the accused may be strong. In such a case, depriving the accused of the chance to obtain the vote of the twelfth juror may be a step that should not be taken.
In the same case, Kirby J said this at [66]: [A] different decision on such a question might be made at a very early stage of a long trial from that which would be appropriate at a late stage. A different decision might be made where, having regard to the circumstances of the discharge, an apprehension could arise that the entire jury could have been contaminated or their verdict cast into doubt by the events occasioning the discharge. A different decision might follow from an earlier discharge of other jurors and the complexity or fine balance of the evidence.
The applicant's first submission concerning alleged error in the trial judge's exercise of the s 53C discretion on the information that was before her is as follows: Her Honour erred in failing to take into account that there appeared to be to some dissent within the jury room in regard to at least some of the counts on the indictment, leading to the length of the deliberations thus far and the questions from the jury. Her Honour further failed to take into account that the extent of the dissent was not known.
It is inaccurate to characterise the state of affairs on the afternoon of Friday, 5 March 2021, after approximately 13 hours of deliberations, as conveying the appearance "of some dissent within the jury room". All that could be said is that the jurors had not at that stage reached unanimity. That is always the case when the question of whether to continue with a reduced number of jurors arises during the course of deliberations. The fact that the jury were not yet in agreement was neutral. It could not weigh one way or the other upon whether the order for continuance should be made. It was nothing more than one of the circumstances that called for the judge to make a decision under s 53C
The submission that "the extent of the dissent was not known" is presumably intended to mean that neither the judge nor the parties knew whether jurors held opposing views with any particular degree of determination or whether individual jurors' positions were entrenched to the point where it could be said that there was a division of "votes", in some unknown proportion. That describes the confidentiality of jury deliberations throughout any trial. Lack of knowledge of the stage of discussion in the jury room is a given of any case in which the discretion under s 53C has to be exercised after the jury have retired. It is another neutral factor, not one that could be balanced for or against an order to continue with a reduced number of jurors.
The applicant's second argument as to error in the exercise of the discretion is as follows: Her Honour also erred in failing to take into account that in a case such as this, where it is one of alleged child sexual assault, that, particularly at this moment in time, there are strong feelings in the community against such crimes. Her Honour ought to have given consideration to the nature of the charges in light of community sentiment and the increased risk of prejudice against the applicant in such a matter of continuing with 11 jurors.
It may reasonably be assumed that most members of the community and hence most jurors would have strong feelings of revulsion towards forced oral intercourse by an adult male with a nine-year-old girl, or forced digital penetration - where proved. Jury trial proceeds on the basis that jurors will follow the trial judge's directions to determine, on the evidence, whether it has been proved beyond reasonable doubt that the alleged crime, however revolting or horrific, was committed by the accused who is in their charge. It is a premise of the procedure that jurors will likewise heed the customary direction not to allow emotions or feelings of disgust to deflect them from detached and reasoned assessment of the evidence and arguments. There is no basis for imputing that those directions would have been any less likely to be followed in this case by the remaining 11 jurors than would be the case if all 12 had been retained. If this had been a significant concern in the applicant's perception, one would have expected his primary application to the trial judge to have been for an adjournment of two days in order to retain the 12th juror, rather than for all to be discharged and the trial aborted.
There is no substance in the applicant's criticisms of the learned judge's decision to order that the trial continue to verdict with 11 jurors. The procedural circumstances in which the decision was made and the reasons given by her Honour show that this was a sound exercise of discretion, considered, practical and fair.

Whether a risk of miscarriage of justice is revealed in hindsight

In BG v R a jury deliberating upon three counts sent messages to the trial judge, over the course of the first full day of their discussions, to the effect that that they were unable to reach a unanimous verdict. At the end of that day the trial judge discharged one juror who said that he was under considerable stress about having to continue with deliberations the next day because of the demands of a business in which he was self-employed. The trial judge ordered that the trial continue with 11 jurors. During the second day of deliberations the jury again informed the judge that they were unable to reach a unanimous verdict. After they had been in deliberation for a total of eight hours, the trial judge gave a majority verdict direction. About half an hour later they returned verdicts of guilty by majority of 10 to 1.
Adamson J (McClellan CJ at CL and McDougall J agreeing) held in BG v R as follows: [103] On my analysis of the cases, there are three categories of case in which the question arises whether the trial should continue with the remaining jurors when one juror has been discharged. These are: (1) Where there is no indication how the discharged juror would have voted; (2) Where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and (3) Where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal. [104] By and large, the effect of the authorities is that is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors if the case falls into either the second or the third categories. In such cases, there is a risk of a substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.
Adamson J held that there was no basis for inferring that the single juror who had been discharged had been disingenuous in the reasons he had given for seeking his release, or that the jury as a whole or its foreperson had collaborated in misleading the trial judge about his reasons. There was no disclosure of the split in voting at the time of the decision to continue with 11 jurors, nor any disclosure of the views of the discharged juror. Neither the timing of the majority verdict nor its composition supported an inference as to how the discharged juror would have voted. The case fell within the first of the three categories listed by her Honour at [103]. The only matter that had been raised as giving rise to a risk of miscarriage of justice was that the discharged juror may have been a dissentient. There was no basis for such an inference.
In the present case the applicant submits as follows: [This] case clearly falls within the third category referred to by Adamson J, namely, that it can be inferred, with the benefit of hindsight, from the return of the verdict after only an hour the day after, that the juror discharged would have voted for acquittal.
I reject that submission. The suggested inference of how the discharged juror would have voted cannot reasonably be drawn. It is not uncommon in the experience of criminal trial courts that unanimity is achieved quite quickly upon resumption of deliberations after a jury have been permitted to separate over a weekend, or for a public holiday or during some other forced interruption. It may be that when jurors have been unable to agree after some hours of discussions, the opportunity for individual reflection, away from the intensity of debate in the jury room, facilitates reconsideration of views and formation of consensus. The fact that juries not uncommonly make quick decisions on Monday mornings, without any change in composition at the point of separating on the preceding Friday, shows that there is no justification for imputing that in the present case the individual juror who was discharged must have been an opponent of the verdicts that were returned.
The applicant advanced the following further argument (emphasis added): With hindsight, it is submitted that it appears that there is a reasonable inference, that a fair-minded observer could draw, that the discharged juror was the dissident and was in favour of acquittal, in that following the discharge of the juror and the refusal of the application to discharge the jury late on the Friday afternoon [on] Monday morning […] the jury of 11 returned with the verdict of guilty on all 7 counts in less than 2 hours.
This is a repetition of the first submission but with intrusion of the concept of "a fair-minded observer". There is no occasion to introduce any such concept or test. The question is whether this Court, not a fair-minded observer, can infer that the discharged juror would have had and maintained a view contrary to that which the jury agreed upon after his departure. In determining whether that inference should be drawn, the Court must draw upon its experience and understanding of jury trial procedure. The only relevant fair-minded observer would be one who had the same knowledge and experience of criminal trials as the Court, making the whole concept of such an observer superfluous.
This case falls within the first of the three categories identified by Adamson J in BG v R. It has not been shown, in retrospect, that any risk of a miscarriage of justice has arisen from the learned trial judge's order that the jury of 11 continue with their deliberations to verdict. Ground 1 should be rejected.

Ground 3 - sentence

Count 1 was the least serious offence. Prior to that offence the applicant had learned that the complainant was having social difficulties with her peers at school and that this was undermining her self-esteem and confidence. It is an inescapable inference that the applicant saw in her a child upon whom he could prey for the depraved form of sexual gratification that he apparently craved and whom he could intimidate to keep her silence.
The learned trial judge found, incontrovertibly, that in committing the offences the applicant "grossly abused and exploited the familial trust" of the complainant's parents, who were his sister and brother-in-law as well as being closely associated with him in the same church. The objective gravity of the offending in each of counts 2-7 was very considerable. Her Honour made this finding: Save perhaps for Count 1, properly considered the offences were neither spontaneous nor opportunistic but represent systematic and deliberate exploitation [of the complainant].
That conclusion could not be controversial. Although the offences all occurred within a period of only about four months in late 1999, as her Honour held, they could not be regarded as isolated. Counts 2-7 in combination amounted to concerted and concentrated sexual abuse of the complainant, causing her acute degradation at the time and long lasting psychological harm thereafter. To the complainant, the four months must have seemed a lifetime of misuse and insecurity.
As her Honour recorded, all of counts 2-7 were terrifying to the complainant. The instances of digital penetration were excruciatingly and lastingly painful. The oral intercourse disgusted her. Each event was preceded by fear and revulsion for what was to come. Each was accompanied by forceful restraint and each was followed by threats of harm to the complainant's loved ones, causing persistent anxiety.
The learned judge gave full weight to the complainant's compelling victim impact statement, in the following passage: [The complainant] has been diagnosed with PTSD, depression, panic disorder, OCD, dissociative disorder, anxiety disorder and hypervigilance with several of her conditions affecting her everyday functioning and well-being. [The complainant] is currently seeing a psychologist who assists in this regard. It is acknowledged and recognised by the Court that [the complainant] has suffered harm to many domains of her life as a result of this offending […].
The applicant's subjective circumstances, as found by her Honour, were unremarkable. His wife and his son, who was in his late teens at the date of sentencing, remain resident in Queensland. The applicant has no prior criminal convictions and her Honour accepted that he was entitled to some lenience on account of good character, although limited weight could be accorded to that "in light of the nature and circumstances of the offences he committed". The applicant continued to deny his guilt in the sentence proceedings. He exhibited no remorse or insight into the consequences of his offending. Her Honour accepted that he had not offended again over the 20 years since his abuse of the complainant and that "his risk of reoffending is low and his prospects of rehabilitation reasonable".
The last mentioned findings were generous to the applicant. His exploitation of the complainant, accompanied by physical force and intimidation, was merciless. Any human being in his position would understand that such acts would cause fear, bodily harm and psychological disturbance to a child of the complainant's tender years. Inducement of fear was evidently a conscious objective. The depravity of overpowering and forcing himself upon a defenceless young person for sexual pleasure was compounded by the disgraceful betrayal of his own sister and brother-in-law, that he would do this to their precious child. Added to all these considerations was the applicant's remarkable hypocrisy. Having forced his penis into the mouth of a nine year old girl in a toilet cubicle and threatened violence if she spoke, he was able to button up his trousers, step out of the lavatory into the auditorium, and minister to the youth of his church on the observance of Christian faith. It would have been open to the learned judge to have had greater reservations about the applicant's future prospects and the danger that he represents to people who may think they know him, in view of what his posture of piety has concealed in the past.
The applicant's submissions on the manifest excess ground rested almost entirely upon comparison with this Court's decision in R v Neville [2018] NSWCCA 125. In that case a Crown inadequacy appeal was upheld in respect of a respondent who had been sentenced after trial on three counts of sexual intercourse with his daughter aged 3-4 years and three counts relating to pornography of very young children. Two of the counts of sexual intercourse were particularised as anal penetration of his daughter while she was restrained, for which the indicative sentence at first instance was 8 years imprisonment in each case. The third such count concerned oral intercourse, for which the sentencing judge had indicated 7 years imprisonment. An aggregate for all offences of 13 years with a non-parole period of 8 years and 6 months was fixed in the District Court. In this Court indicative sentences of 11 years for each of the counts of anal intercourse were nominated and 9 years and 6 months for the oral intercourse. The inadequacy appeal was allowed and an aggregate sentence of 15 years with a non-parole period of 10 years was substituted.
The applicant's argument is that the offending in R v Neville was more objectively serious than in the present case, that in other respects the two cases are comparable and that therefore the sentence under appeal, of 14 years with a non-parole period of 10, should be regarded as excessive. This comparison is unpersuasive. Without descending to detail, there are a number of differences between the combination of sentencing considerations in the two cases respectively. Further, an argument from a single sentencing precedent is of little weight. Having regard to a much wider range of sentencing decisions in this Court, concerning offences against both s 61M(2) and s 66A, it cannot be said that the aggregate sentence under appeal is shown to be manifestly excessive by reason of discordance with the outcomes in other cases.
For the purpose of determining this ground it is not necessary to cite any authoritative statement of principle beyond that of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, at [6] as follows: Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
Taking into account all relevant factors, the aggregate sentence imposed by Huggett DCJ was not manifestly excessive. Full-time custody was undoubtedly called for and the length of the term imposed is not unreasonable or plainly unjust. Ground 3 should be rejected.

Orders

I propose the following orders: 1. Grant leave to appeal against conviction and sentence. 2. Dismiss the appeal.
YEHIA J: I have had the advantage of reading the draft judgment of Fagan J. Having conducted an independent assessment of the trial evidence for myself, I do not accept that the verdicts are unreasonable. I agree with his Honour's conclusion that ground 2 should be rejected. I also agree with the proposed orders with respect to grounds 1 and 3 and with his Honour's reasons. **********.

Amendments 05 April 2023 - BJ 13 April 2023 - Numbering DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2023

BJ v R

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