Gage v R

Court of Criminal Appeal (NSW)|2021-08-06|Before: Bathurst CJ, Beech-Jones J, Fagan J

The applicant's case and the issues

The applicant gave evidence disputing the complainant's account of aggressive and obnoxious behaviour on his part at the hotels in Coffs Harbour and during the drive back to Boambee and then Bonville. He claimed that his manner was happy and playful throughout the evening. Contrary to the complainant's description of her irritation with his behaviour, the applicant said that "we were kissing, we were touching each other" at both of the hotels. It is not necessary to consider in detail this conflict of recollections. Other evidence had a more direct bearing upon the issues at trial on counts 4-9, being whether the Crown had proved that the complainant did not consent to sexual intercourse and whether it had proved that the applicant knew she did not consent or did not believe on reasonable grounds that she consented or was reckless as to whether she consented.

Applicant's evidence on counts 1 and 2

In answer to the Crown case on counts 1 and 2, concerning what took place in the complainant's car after leaving the home of Ms Schultz and Mr Cumming at Bonville, the applicant denied that he directed the complainant to pull the car over at the top of the driveway at Ms Schultz' house or that at any stage he pulled down her top and bra to bite her on the left breast (count 1) or that he touched her vagina on the outside of her jeans (count 2) or put his hands around her neck. The applicant said that in the car he kissed the complainant and she kissed him back, that he placed his hand on her leg and she placed her left hand on top of his, while steering with her right hand. He said that this continued for most of the journey back to Nambucca Heads.

Applicant's evidence on count 3

The applicant denied that he seized the steering wheel during the drive to Nambucca Heads or that he threatened to steer the vehicle off the road if the complainant did not take him back to her house. He said that the complainant invited him, "Would you like to stay at mine tonight?" and that he accepted. The applicant's version was that upon arrival at her house the complainant said, "You need to keep it down, my dad's here". He then told her he needed to urinate and while he did so at the front of the property "she was just waiting at the door for me".
The applicant said that, once inside, he asked if he could have a shower and the complainant said, "Yes, I'll come for one with you". He said that she led the way to the bathroom where they undressed together, got into the shower bay together and consensually kissed and touched each other's genitals. He said that the complainant got out first and said she would get a towel for him. She had a towel around herself and she left the bathroom for only about 10 seconds before returning with a towel for the applicant.

Applicant's evidence on counts 4-9

In contrast with the complainant's evidence of having been pushed or marched by the applicant from the bathroom to the spare bedroom, the applicant said that the complainant told him, "Follow me" and she led the way to a bedroom, which he believed was her own. He said that he did not push the complainant down onto the bed but that she "hopped on" first. The applicant said that he then commenced "fingering" the complainant, being the physical aspect of count 4, and that at the same time she was stroking his penis and that they were kissing; as this occurred he was "biting around her breasts".
The applicant described performing the physical acts of intercourse in each of counts 4-8, although he recounted them in a different order from that given by the complainant. He said the episode ended when he told the complainant that he was unable to ejaculate, while she was on top of him and they were engaged in penile-vaginal sex. According to the applicant, at that point "we just laughed and then she yeah jumped off me". He said that they continued to kiss and cuddle after this. He denied any second act of digital penetration, as alleged in count 9.
The applicant agreed that this sexual encounter was "rough", involving "choking […] I was pulling her hair and she was, like, scratching my back and, like, holding my back tight, things like that". He said that he held her hair by the roots. The applicant agreed that he had his hand on the complainant's throat for a few minutes, applying pressure. He denied that any of his acts were carried out against physical resistance from the complainant. On the contrary he said that the complainant was responsive, initiating sexual acts, wrapping both her legs around his waist, moaning apparently with pleasure and, at one time, saying, "Fuck me, fuck me". The applicant denied that the complainant said "no" or "stop" or "get off me" or anything to that effect or that she cried or sobbed or in any other way indicated that she was not consenting.

The applicant's initial response to the complainant's allegations

The applicant agreed that during the late morning of 9 December 2017 Ms Schultz sent him screenshots of the complainant's messages to her, including photographs of injuries. He agreed that he then told Ms Schultz, Mr Cumming and Mr Newcombe that he "couldn't remember anything". However he gave the following evidence in chief: Q. Did you in fact have a memory of what had occurred the night before with [the complainant]? A. Yes Similarly, under cross-examination by the solicitor advocate for the Crown he gave this answer: Q. You say you have a detailed recollection of every act in that room? A. Yes
The applicant said that, at the time when he sent the text messages set out at [76] above he understood that the complainant was accusing him of having raped her. He sought to explain his messages as not being denials of what had occurred but as an endeavour to ascertain what she was alleging and why. In so far as he apologised and sought forgiveness, the applicant said that he was only referring to the bruises that the complainant had sustained because it had not been his intention to hurt her. When asked why he did not expressly deny the allegation of rape and why he responded to one of the complainant's messages by saying that he was not making such a denial, the applicant said that he did not know what to do, that he was panicking, that he was following Mr Cumming's advice that he should apologise, that he was trying to comfort the complainant so that he would be able to go and talk to her and that he thought "if I just denied it she would have wanted to get the police involved straightaway".

Ground 1 - inconsistent verdicts

The applicant's proposed ground 1 invokes the requirement in s 6(1) Criminal Appeal Act 1912 (NSW) that the Court shall allow an appeal "if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence". The guilty verdicts on counts 4-9 are said to be unreasonable because they are inconsistent with the acquittals on counts 1-3, not in a legal or technical sense but on a factual basis.

Principles

The principles to be applied in such a case are as stated by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366-367 in the following passage (citations omitted): Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34] Gleeson CJ, Hayne and Callinan JJ identified some of the ways in which differing verdicts may be reconciled. Their Honours regarded it as significant that juries are ordinarily directed to give separate consideration to each count and are instructed that the evidence of a witness may be accepted in whole or in part. Such directions were, of course, given in the present case. The joint judgment identified two factors that may cause a jury rationally to return differing verdicts for multiple counts of sexual offending against a single complainant. Both are relevant to the present case.
First, their Honours observed that where there is no objective evidence of sexual offences some jurors may, reasonably, not be satisfied beyond reasonable doubt upon counts for which there is only the word of the complainant, without supporting testimony. For reasons expanded below, that is an available explanation for the acquittals on counts 1-3. As their Honours said, the return of one or more verdicts of not guilty on that basis "does not necessarily involve a rejection of the complainant's evidence" and may "simply reflect a cautious approach to the discharge of a heavy responsibility". Secondly, their Honours recognised that the jury may perceive that "the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others". Uncertainty and unreliability of the complainant in the present case regarding the applicant's physical acts in counts 1-3 could have led to the acquittals without any similar doubt being felt on counts 4-9, where the applicant admitted all but one of the acts of penetration.
In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Gleeson CJ, Hayne and Callinan JJ) also added this: [35] It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski v The Queen [2001] NSWCCA 290; (2001) 52 NSWLR 82 at 96-99 that some judges have taken Jones v The Queen (1997) 191 CLR 439 as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous.
In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 differing verdicts were returned on several counts alleging violent and sexual offences. At [128] Simpson J (McClellan CJ at CL and Latham J agreeing) said that if an explanation can be found for the acquittals in such a case "without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis". From her Honour's review of a number of High Court decisions, Simpson J made this observation: [130] Before […] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. […] The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.

The issues on counts 4-9

For the counts upon which guilty verdicts were returned the physical elements were not in issue except as to the second instance of digital penetration, in count 9. The applicant described the episode in the bedroom in more detail than the complainant. He did not dispute the complainant's estimate that it lasted in the order of 15 minutes. As he recounted the events, he penetrated the complainant in several ways, one after the other in a continuous encounter. Although the complainant was imprecise about some details of the acts, both in the bedroom and in the earlier assaults, it was open to the jury to be satisfied beyond reasonable doubt that the second digital penetration under count 9 occurred as she described it. She said that it felt like scratching. The jury could have found support for this in Dr Kramer's description of two "long and thin" abrasions in the entrance to the vagina, each of about one centimetre in length by one millimetre in thickness, one in a straight line and one "wriggly".
On the basis that the jury found the physical elements of count 9 proved, as clearly they did, the contest on counts 4-9 was limited to whether the Crown had proved (1) absence of consent and (2) that the applicant knew the complainant did not consent or that he had no reasonable grounds for believing that she consented or was reckless as to whether or not she consented. The first issue turned directly upon the credibility of the complainant's denial of consent. The second would have been affected by whether the jury accepted the complainant's evidence that she demonstrated non-consent through oral protest and physical resistance and that she did not invite or encourage the applicant or respond to him sexually.
The applicant submitted as follows: [The complainant's] account of the events of the evening was not susceptible to the conclusion that she was mistaken as to the fact of being assaulted in the car [counts 1 and 2] and in the shower [count 3]. That being so, the evidence established a pervasive doubt attaching to the complainant's veracity and honesty. The jury's doubt [on counts 1-3] can only be understood to be related to the complainant's truthfulness and there is no reason discernible from the facts or circumstances as to why that doubt ought not equally have applied to [counts 4-9].
The applicant also argued inconsistency on the basis of an implicit rejection of the complainant's reliability, as opposed to honesty. The following was submitted: The question as to the complainant's reliability "is in this case necessarily so significant as to require its translation to other counts ".
I do not accept either of these arguments. It is necessary to consider the available explanations for the acquittals on counts 1-3 in order to show that they are not attributable only, or principally, to doubt about the complainant's credibility and that jury reservations about her reliability concerning the physical acts alleged in counts 1-3 need not have affected their resolution of the very different issues of consent on counts 4-9.

Acquittal on count 1

The physical elements of count 1 were that the applicant bit the complainant's left breast and that the bite caused actual bodily harm. Both were contested. Several features of the evidence may have left the jury with a reasonable doubt about either or both of these matters, without reflecting upon the complainant's truthfulness. Ms Schultz did not support the complainant's assertion that she stopped her car at the top of the driveway, where the complainant said the assault occurred. After the learned trial judge had reminded the jury of when and where the assault was said to have taken place, his Honour directed as follows (emphasis added): Firstly, you have heard the sworn evidence of the accused before you in relation to this incident and he denies completely that at this time - and it has to be at this time in the car, not a later time, not any other time, this time in the car - he denies that he did anything to her breast. He denies that he did the act at all, that is, that he bit or sucked on her breast at this time. True it is that later in the bedroom he admits that he did a sucking and potentially a biting of the breast but that is irrelevant for this consideration. The Crown has to prove that he did it here in the car.
His Honour then reminded the jury of defence counsel's argument that Ms Schultz "did not notice the car stop at all and […] that that is one thing that would concern you about the reliability of [the complainant's] version about that". Recognising the precision of the issue as articulated by the learned trial judge and applying the high standard of proof required, the jury may have acquitted because they felt a doubt about whether biting occurred when the car was stationary at Bonville, accepting that the complainant was honest but mistaken as to this. Her evidence that there was continuous biting during the journey back to Nambucca Heads (see [48] above) would have been regarded by the jury as incapable of sustaining this count, applying the direction quoted above. In any event, the complainant conceded her unreliability about the precise timing of assaults in the car. She said: "It was all quite […] quite a blur".
As to the second physical element, the only bodily harm propounded by the Crown was the 2 cm diameter round reddish bruise found by Dr Kramer on the upper part of the complainant's left breast. Dr Kramer did not describe this as having the hallmarks of a bite. Dr Nittis said that such a bruise may be caused by suction. Both the complainant and the applicant said that she was later extensively bitten during the bedroom incident and the applicant said that he sucked on various parts of the complainant's body, including her breasts, at that time. The jury may have been left uncertain whether the bruise identified by Dr Kramer was caused by anything the applicant did in the car at Bonville rather than by biting or sucking in the bedroom.
Either of these doubts, about whether biting occurred in the car at the precise time and place alleged or whether actual bodily harm resulted, would properly have caused the jury to acquit on count 1 without any impact upon the complainant's credibility concerning the live issues of consent on counts 4-9.

Acquittal on count 2

On count 2 the applicant disputed the physical element of an assault with act of indecency as it was particularised. He admitted having placed his hand on the complainant's thigh while they were in the car but denied that he "was grabbing [her] vagina through [her] jeans". From the trial judge's directions the jury would have understood that they could not find the applicant guilty merely because he touched the complainant's thigh, even if they thought that was indecent and without consent. His Honour made it clear in oral directions that the jury could only be satisfied of the disputed physical element if the Crown had proved beyond reasonable doubt that the touching was as described by the complainant and that it had occurred when the car was stationary at the top of Ms Shultz' driveway. At p 31 his Honour said: So again for count two, the crucial question you will immediately ask yourself is, can the Crown prove beyond reasonable doubt that there was this touching by the accused in the area of the vagina through the clothing of [the complainant] in the car? Again, many of the issues for count one are similar from the point of view that [defence counsel] says well, Zali did not even see the car stop.
The jury may have felt a reasonable doubt as to whether the car stopped and therefore a doubt as to whether an assault of the precise nature alleged had occurred at that exact time and location. Again, the jury could have found the physical element of this charge not proved, while not entertaining any doubt about the complainant's honesty regarding the issues of consent on counts 4-9.

Acquittal on count 3

On count 3 the contested issues were whether the Crown had proved (1) that the complainant did not consent and (2) that the applicant knew she did not consent. The extended definition of knowledge of non-consent in s 61HA of the Crimes Act, that included absence of reasonable grounds for believing that the complainant consented, applied to counts 4-9 but not to count 3. As for the physical elements of this assault, the applicant gave evidence of more sexual contact than that described by the complainant. The acquittal on count 3 is consistent with the jury having accepted from the complainant that she did not consent to whatever touching occurred in the bathroom. They may have had a reasonable doubt that the applicant knew she was not consenting.
It was open to the jury to have accepted that the complainant brought the applicant to her home under duress. They may also have accepted that the reason she waited for him to enter and told him to be quiet was not that she wanted him there but only that she believed she could manage the situation and sought to avoid a confrontation with her stepfather. All of that would be consistent with her not having consented to any sort of intimacy. However, the jury may have thought it possible that the applicant misinterpreted her conduct as an invitation for sexual activity to follow. They may also have accepted that the complainant's announcement that she would take a shower, at a time when the applicant was getting into bed, was not intended by her as a signal of consent - but that the applicant possibly read it that way.
Reasonable doubt about whether the applicant knew the complainant was not consenting to intimacy in the bathroom would not rationally dictate that the jury were bound to discount the complainant's evidence that she made clear her non-consent for counts 4-9. The jury's acquittal on count 3, explicable on the basis outlined above, did not make it logically necessary that they should reject the complainant's evidence about protest, physical resistance and sobbing throughout the admitted acts of intercourse in counts 4-9, while the applicant choked, bit, sucked and roughly handled her.
The complainant's evidence of clear oral and physical indications of non-consent in relation to counts 4-9 was supported by her immediate complaints to her sister by phone; by her distressed appearance and her complaints to her mother only minutes later; by the history she gave to Dr Kramer three hours after the events; by her complaints to Ms Schultz and Mr Cumming during the following morning and by the applicant's text responses to the complainant's allegations of rape. The jury were entitled to reject his explanations of those texts and to find in them compelling evidence that he had known she was not consenting. For count 3, there was no comparable corroboration of the Crown's case that the complainant did not consent and that the applicant knew she did not. Further, in order to find knowledge of non-consent on counts 4-9, it was sufficient for the jury to conclude that the applicant had no reasonable grounds for believing that the complainant consented, a test more readily satisfied than that of actual knowledge or reckless disregard that applied to count 3.

The applicant's reliance upon the jury note in support of ground 1

The applicant submitted that the jury note referred to in ground 2 exposes the reason for the differentiation of verdicts, namely, that for counts 4-9 the jury reversed the onus of proof concerning absence of consent. I will return to that argument after considering the jury note in connection with ground 2.

Ground 2 - the note from the jury during deliberations

Ground 2 is concerned with a note from the jury delivered to the trial judge at about 4:00 pm, after a little more than five hours' deliberation. The note was as follows (emphasis added): Counts 1 to 3 we have decided. We believe there is uncertainty about counts 4 to 9. We are having trouble on consent. There is vast disagreement in the room about whether consent has been granted by [the complainant]. Some in the group are not satisfied beyond reasonable doubt that consent was granted.
The learned trial judge reconvened, read the note to counsel and then heard submissions as to the course to be adopted. The jury were brought in and his Honour read the note again in their presence before announcing that he would take their verdicts on counts 1-3. When the verdicts of not guilty on those three counts had been given, at 4:21 pm, his Honour addressed the jury in the following terms: So, members of the jury, in relation to your note, I note that in no aspect were you asking for any further legal re-direction about consent and I appreciate that all of you have the written document outlining the law of consent. In those circumstances I am not going to give you any further legal direction about consent and, in reality, there is not really anything I could additionally say from what I have in that written document. But, in saying that, if there is some legal aspect of the law of consent that is troubling you, you will just need to re-write a note, to maybe tell me about the law of consent that is worrying you, if that is worrying you, although I get the feeling from your note it is not so much the law that is worrying you, it is the factual determination which is a matter for you and, obviously, I cannot give you any assistance with factual findings because that is not my role in the trial.
The reference to "the written document" was to a seven-page direction on the legal elements of each charge, four pages of which were devoted to counts 4-9. I will return to that document. Following the statements quoted above his Honour gave a perseverance direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. At 4:28 pm he sent the jury back to continue their deliberations on counts 4-9 and they returned with guilty verdicts at 5:36 pm.
The applicant makes the following submissions (grouped with numbering added for ease of reference): (1) Although a jury's deliberations are secret, the content of jury notes may provide objective indicators as to whether an accused has had a fair trial: Phan v R [2018] NSWCCA 225 at [144]. It is evident from the jury note that "some" jurors had reversed the onus of proof. (2) This mischief went uncorrected and the trial judge, who read the contents of the note to the jury, thereafter reflected that [it] was not necessary in light of its content to give them any further direction. […] The problem with [the learned trial judge's statements to the jury quoted at [109] above] is that his Honour appears to have given judicial imprimatur to the approach that "some in the group" had taken to the issue of consent. […] Whilst the note did not ask for clarification of legal problem [sic], this rather compelled of correction and failure to do so has given rise to a miscarriage of justice.
The first part of these submissions concerns a matter that is subjective to the jury, namely, what they or some of them may have thought or understood. The second part is concerned with an objective assessment of the correctness and sufficiency of the terms in which the jury were instructed by the learned trial judge, in particular whether his Honour's response to the note may have misdirected them by implication or material omission.
I will consider the two aspects in reverse order. The second has required this Court to review the strength of the trial judge's directions concerning the Crown's burden of proof, in particular for the element of "without consent" as it applied to counts 4-9. The appellant's argument raises a question whether his Honour's correct, consistent and repeated directions could have been subverted, in the understanding of the jurors, by his response to their note. I find that proposition quite divorced from the reality of the trial.

Directions on the Crown's burden with respect to all elements and counts

On the first day, soon after the applicant had been arraigned and the jury empanelled, his Honour made opening remarks to the jury about their role. The remarks included the following (emphasis added): So you might ask yourself, how do I go about making sure the accused and the community get a fair trial? Well one of the important aspects is to comply with all the directions of law that I give you and one of the most important directions I give a jury about law, right from the very start, is the nature of a criminal trial and where the onus of proof lays in a criminal trial. […] The accused here is innocent and he remains innocent throughout this entire trial, until and if you, as a jury, decide that he is guilty and only if the Crown have proven a particular allegation, in this matter, beyond reasonable doubt. If the Crown failed to prove any of these allegations, beyond reasonable doubt, then the accused leaves this Court the innocent person he is now. It is important to understand, as a jury, immediately in a criminal trial, that an accused has nothing to prove in a trial, consistent with the right to be deemed to be [innocent], they have nothing to prove. This accused does not have to prove he's innocent, this accused does not have to prove there's a reasonable doubt in the case, he does not have to prove anything. And that's a really important concept, immediately in a criminal trial, for a judge to understand and the 12 of you are now judges, make no mistake, you're the ones who are going to decide this case and that makes you a judge throughout this entire trial […]. [One] of your crucial roles immediately is to totally understand, accept and comply with this crucial aspect of the accused having nothing to prove in this trial. So who does have to prove the case? Well, clearly, the Crown has to prove the case. The Crown have to prove the essential facts that make up these nine charges on the indictment and there is just but one question ultimately of a jury trial, have the Crown, in each of the individual cases that they have brought against an accused, proven it beyond reasonable doubt or not? If they have proven it beyond reasonable doubt, then your verdict will be guilty. If they haven't proven it beyond reasonable doubt, then your verdict will be not guilty.
The length and emphatic terms of this direction, before the Crown prosecutor had opened or called any evidence, are significant features. Such a forceful statement was well calculated to impress upon the jury from the outset that the Crown's burden of proof, in relation to everything the Crown alleged, without exception, was fundamental to the task upon which the jury were embarked. At no subsequent point in the trial did there ever arise any issue upon which the accused bore the burden of proof to establish an affirmative defence. That concept was never mentioned. There was no occasion for it. From beginning to end, the jury never heard anything to the contrary of the propositions initially laid out by the trial judge: that everything that was to be proved had to be proved by the Crown; that the standard was beyond reasonable doubt; that the accused did not have to prove anything to any standard.
The Crown then opened and defence counsel followed. In assessing the overall sufficiency of the learned trial judge's directions regarding the Crown's burden of proof, it is material to take into account that everything the jury heard from counsel on the subject was to the same effect and would have reinforced their understanding. In opening on behalf of the applicant the jury were told that he did not dispute having had sexual intercourse with the complainant in the early hours of 9 December 2017. Counsel did not clearly articulate what the issues would be on counts 4-9 but she said this: Of course, in any criminal trial as you've heard from his Honour, there's no onus of proof at all on the accused. He doesn't need to prove himself innocent. He doesn't need to give evidence before you, but he is choosing to in this trial. He is choosing to give evidence before you and I anticipate that you'll hear him explain some of those text messages that you've heard [of, and] what he actually meant. […] In terms of each of the elements the Crown must prove those to you beyond a reasonable doubt […]. It's for the Crown to satisfy you, not that these things might've happened or that they could've happened the way [the complainant] says, but they happened beyond reasonable doubt and you've heard why that standard is so high and why it's important to bear in mind throughout the trial.
The complainant commenced giving evidence immediately after the opening addresses and from that point the Crown case continued until lunchtime on the fifth day. In his own case the accused called Dr Nittis and then gave evidence himself, continuing into the sixth day. The Crown prosecutor addressed that afternoon and correctly identified that the issues on counts 4-9 were "consent and his knowledge of her lack of consent", with the additional issue on count 9 of whether a second instance of digital penetration had been proved. The Crown prosecutor identified in detail the evidence that would support a finding that the complainant did not consent to the sexual intercourse in counts 4-9. She did not expressly refer to the burden of proof but addressed in a manner entirely consistent with the burden resting upon the Crown. Nothing in the Crown's address was to the contrary of that burden.
From the outset of defence counsel's closing address on the morning of the seventh day she said repeatedly that the Crown bore the burden of satisfying the jury beyond reasonable doubt of the elements of each charge. One such statement was in these terms: [It] is incumbent upon the Crown to satisfy you beyond reasonable doubt before anybody is able to be convicted of a criminal offence. That's why it keeps being repeated, you might think, because it is such an important and pivotal concept.
Counsel made detailed reference to evidence in the Crown case that, in her submission, cast doubt upon the complainant's claim that she did not consent to the sexual intercourse in counts 4-9. Defence counsel then put this to the jury: [Y]ou've got to remember again, just to remind you all, that it's the obligation of the Crown to prove these things to you beyond a reasonable doubt, to prove that what occurred in that room was without her consent and that [the applicant] knew she was not consenting.
Defence counsel moved on to remind the jury of the applicant's evidence in some detail, before returning to the Crown's burden of proving absence of consent - as follows: He says that it was consensual […] under oath he tells you that he didn't sexually assault [the complainant] without her consent and knowing that she wasn't consenting. […]. You wouldn't just disregard what he says in the witness box before you. In my submission that is something that you absolutely need to put into the mix in terms of your thinking with respect to whether or not the Crown have satisfied you beyond a reasonable doubt. On four further occasions over the last few minutes of defence counsel's address she reiterated that the Crown bore the burden of proof beyond reasonable doubt. In the last such passage she added that "the accused doesn't have to prove anything".
His Honour summed up on the afternoon of the seventh day and until mid-morning on the eighth day. The summing up was lucid, thoughtfully structured, thorough, accurate, balanced and fair. The transcript extends over nearly 120 pages. Throughout this, every time the learned trial judge referred to any matter that the jury would have to decide, whether it be an individual element or the question of guilt on any count as a whole, his Honour formulated the issue for the jury's decision in terms that included the Crown's onus of proving the relevant matter beyond reasonable doubt. An early example, in the context of instructing the jury not to allow emotion to affect their deliberations and not to concern themselves with the consequences of their verdicts, was as follows: If you believe the Crown has proven its case and you are satisfied beyond reasonable doubt of any particular count on the indictment then you simply just return a verdict of guilty […]. If the Crown has failed to prove any of these counts on the indictment beyond a reasonable doubt, you find the accused not guilty […]
The following are a few further examples, from early in the summing up, of his Honour's reiteration of the Crown's burden of proof: [With respect to the assault alleged in count 2]: the Crown has that as an issue that must be proven beyond reasonable doubt … [In explaining that it would be open to the jury to decide all counts the same way]: That would be only if you thought about all nine of them and decided, "Well, in all nine, the Crown did not prove it beyond reasonable doubt, so they are all not guilty". That would be your decision. [In explaining that the jury could, alternatively, arrive at verdicts that differed between the counts]: So if you thought the Crown proved some of them beyond reasonable doubt but did not prove others of them beyond reasonable doubt, then there may be some that are guilty and some that are not guilty.
About one third of the way into the summing up, after some 30 similarly worded repetitions of the Crown's burden of proof in a variety of contexts, his Honour said this: I am deliberately being repetitive all the time in saying this, in remembering the Crown has to prove its case. Because sometimes when you talk about the different versions, you make the mistake of thinking, "Which one do I prefer, do I prefer the accused's version or the Crown's version?" Well that is completely wrong, that is putting an onus on the accused, that is not actually having the standard of proof beyond reasonable doubt. It is never comparing; the Crown has to prove the essential elements of the offence beyond reasonable doubt.
As a result of his Honour unfailingly expressing every factual issue for the jury in the longhand of whether the Crown had proved the relevant matter beyond reasonable doubt, the concept of the Crown's burden with respect to everything that the jury had to decide was reiterated more than 80 times over the course of the summing up. It appeared at least once on each of more than one third of the transcribed pages.
The jury were also told more than 15 times that, for the accused to be entitled to acquittal, it was not incumbent on him to prove anything. Every time his Honour made a substantial reference to evidence given by the accused or to a submission made on his behalf, his Honour reiterated that the accused bore no onus. An early example was the following: I remind you that the accused has absolutely nothing to prove in this trial. He is innocent until and if proven guilty beyond reasonable doubt. It is even more important now that at the end of the trial you remind yourself of that aspect, because now you have heard the accused give evidence, you can make the mistake of starting to think that he has something to prove because he has given evidence. He has nothing to prove. Simply because he has given evidence in the trial does not change a thing; he does not have to prove he is innocent, he does not have to prove he is not guilty. […] [So] never reverse the onus of proof on the accused. There is no issue or no item in the trial that he has to prove at all so, quite obviously, the Crown has to prove its case beyond reasonable doubt.
In addition to what was said orally, his Honour correctly set out in his written directions the Crown's burden of proof on all elements of all counts. A copy was given to each juror. The document was read to the jury and elaborated during the summing up. Repeatedly throughout this document, in appropriate contexts, his Honour used expressions such as "the Crown must prove beyond reasonable doubt …"; "the Crown must establish …"; "whether the Crown has satisfied you beyond reasonable doubt …"; "it is for the Crown to prove beyond reasonable doubt …". Several such expressions appear on each of the seven pages of the document, all of them correctly related to the issues in the case.

Directions on the Crown's burden to prove non-consent in counts 4-9

All of the above is to say that by the end of the summing up, given everything the jury had heard from his Honour and from counsel from the first day of the trial, no juror could possibly have failed to appreciate that every single matter that they had to decide was something being alleged by the Crown and that their decision upon each such matter depended upon whether the Crown had proved it beyond reasonable doubt.
The jury could not have failed to grasp that one such matter advanced by the Crown was that the complainant did not consent to the acts of intercourse alleged in counts 4-9 and that, therefore, to find the applicant guilty on those counts, the Crown would have to have satisfied them beyond reasonable doubt of her non-consent. That is the element upon which the applicant now asserts that the last sentence of the jury note reveals an understanding diametrically opposed to what they had been told about the Crown's burden of proof for this and every other allegation in the case. The learned trial judge's directions on the absence of consent for counts 4-9 were unmistakable. In writing they included the following: SUMMARY OF ELEMENTS OF COUNTS 4 TO 9 In each of count 4, 5, 6, 7, 8, and 9, the Crown must prove beyond reasonable doubt all of the following three elements: 1. that, at the date and place alleged, the accused had sexual intercourse with the complainant; 2. without the complainant's consent; 3. knowing that the complainant did not consent to the sexual intercourse. [Directions on element 1 omitted] ELEMENT 2 - THE ACCUSED HAD SEXUAL INTERCOURSE WITH THE COMPLAINANT WITHOUT HER CONSENT The accused does not have to prove that the complainant consented; it is for the Crown to prove beyond reasonable doubt that she did not consent to sexual intercourse. The Crown must prove beyond reasonable doubt that the complainant did not consent. If the Crown fails to do so, then the accused is "not guilty" of this charge. [Directions on what constitutes consent omitted] If the Crown fails to prove that the complainant was not consenting, then the accused is "not guilty" of this charge. [Directions on element 3, knowledge of non-consent, omitted] If the Crown has established all three elements beyond reasonable doubt to counts 4-9, then your verdict will be guilty.
Orally, when the trial judge listed the live issues on each count, his Honour said this: [The] major dispute in counts 4-9 is: can the Crown prove beyond reasonable doubt that [the complainant] was not consenting and also, that he knew she was not consenting.
Shortly afterwards, when the written directions were provided to the jury, his Honour introduced the document as follows: [The] main reason for giving it to you is so that you can have it in the jury room and that you will be in a position, if you need to remind yourself of any of the essential elements of the offence, to assist you in the jury process. When the directions had been distributed his Honour read them to the jury, including everything concerning counts 4-9. His Honour added some supplementary explanation. Before moving to a general direction about assessment of the complainant's evidence his Honour concluded on counts 4-9 with these words: If the Crown has established all three elements beyond a reasonable doubt in counts 4-9, then your verdict will be guilty or, if the Crown has failed to prove any particular element, your verdict will be not guilty.

No misdirection in response to the jury note

I have mentioned earlier that the note was written a little over five hours after the jury had retired to consider their verdicts. I will repeat for ease of reference the sentence that is said to reveal misunderstanding and inversion of his Honour's painstaking and repeated directions on the Crown's onus to prove absence of consent for counts 4-9. It is as follows: Some in the group are not satisfied beyond reasonable doubt that consent was granted.
If this Court were required to make a finding about the jurors' actual or possible understanding of the directions and if the note were to be weighed for its value as direct evidence of their subjective states of mind, I would consider it an inescapable conclusion that the author of the note inadvertently omitted a second occurrence of the word "not" and that the sentence was intended to read: Some in the group are not satisfied beyond reasonable doubt that consent was [not] granted. The author, with no background in legal writing, while fully comprehending the trial judge's directions on consent, could very understandably have made the error of omitting the second "not" when essaying the unfamiliar task of expressing a double negative.
There is no realistic possibility that, at the time this note was written, any juror could have failed to understand, from the whole conduct of the trial and particularly from the summing up, that the question whether the complainant consented to sexual intercourse was contested; that the only party who had an onus of proving anything was the Crown; that the only party that had ever been spoken of as having to prove facts beyond reasonable doubt was the Crown and that what the Crown set out to prove on this particular contested issue was that "consent was [not] granted".
When his Honour read out the note in the absence of the jury, neither counsel suggested that it revealed a reversal of onus for which a redirection was required. Counsel for the applicant said this: I don't know that your Honour could re-direct them in those circumstances where it's not quite clear what aspect of consent anyway they're having difficulty with. We would all be stabbing in the dark in terms of what concept they're actually struggling with and in what factual scenario anyway. So, I don't know your Honour can actually offer a re-direction on anything anyway.
This jury had been under the observation of the trial judge and counsel for eight sitting days. It did not occur to his Honour or to counsel that, after all that had been said, any member of the jury could be so obtuse or defiant as to approach their decision on counts 4-9 by determining whether consent of the complainant had been affirmatively proved by the accused beyond reasonable doubt. From examination of the whole record of the trial there appears no justification for the applicant now to invite this Court to act upon the despairing view of the intelligence and compliance of these jurors that is inherent in his argument.
Whatever may have been meant by the last sentence of the note, it was amply sufficient that his Honour referred the jury to the written directions and stated that there was "not really anything I could additionally say" on the issue of consent. His Honour's reminder to the jury of the written document, in the terms quoted at [109] above, did not give "judicial imprimatur" to anything in the note that was inconsistent with the summing up. His Honour's words did not convey that he accepted the last sentence of the note in a sense of contradicting what he had earlier instructed the jury regarding burden of proof, or that in that sense he endorsed the note. There is no indication that any juror other than the author of the note ever saw the last sentence in writing. It was read out in the jury's presence in open court but they did not take a copy of the note back to the jury room when they resumed deliberations. On the other hand they did have 12 copies of the written directions.

The applicant's submissions regarding the jury's understanding of the directions

The submissions of the applicant that I have grouped in item (1) at [111] above invite the Court to enquire into and make findings about what the jurors, or some of them, thought or understood. Those submissions are directed to the proposition that there has been a miscarriage of justice in that, despite correct directions having been given, the last sentence of the note discloses that some jurors did not understand the directions on the burden of proving non-consent. As developed orally the argument was widened to a proposition that the note indicated a risk that some jurors may have not understood or not applied the directions and that the existence of such a risk is sufficient to constitute a miscarriage of justice.
Those submissions are unacceptable for the following reasons. First, the note could at best be evidence of the understanding of some jurors at about 4:00 pm when it was delivered to his Honour. It is no evidence of what any of them thought an hour and a half later when they joined in the unanimous verdicts. It has already been mentioned that after the note had been sent to the judge, the jury were reminded that the law of consent was outlined for them in the written directions. They then deliberated for a further hour before reaching their decision, each with a copy of the directions to hand. It is no more than speculation on the part of the applicant to impute that any misunderstanding at the time the note was delivered continued to affect any juror's thinking at the end. It is speculative to suppose that any misapprehension was not corrected, by the time the verdicts were unanimously agreed, as a result of jurors re-reading the written directions and/or engaging in further discussion.
Secondly, the last sentence in the note may not have accurately conveyed the intentions of the author (see [131]-[133] above). Thirdly, the last sentence is an assertion by one juror, the author, as to what others were thinking. In that character, the last sentence of the note may not have been factually correct even if its meaning is taken at face value. The apparent assertion in the note that some jurors thought consent had to be proved beyond reasonable doubt is starkly against the probabilities, for reasons already given. The purported evidence cannot be tested or compared to any other direct evidence of the jurors' understanding because the jury's deliberations are confidential: Burrell v R [2007] NSWCCA 65 at [250], [256]-[257]. There is no forensically satisfactory procedure by which the Court might receive all relevant and admissible evidence of the jury's understanding at the time the note was written - if that be relevant.
The points made above are subsidiary to a more fundamental objection of principle to the applicant's submissions. The question whether a jury has decided a case according to law is to be judged by the terms in which the case was left to them, it being presumed that the presiding judge's directions will have been applied. As stated by Gleeson CJ and Gummow J in Gilbert v The Queen (2000) 201 CLR 414 at [13]: The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. In the words of McHugh J in the same case at [32]: [The] fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge's directions […].
The applicant relies upon a statement in Phan v R [2018] NSWCCA 225 at [147] to the effect that jury notes, in combination with other matters, "may provide objective indicators as to whether an accused has had a fair trial". That statement was made in circumstances far removed from the present. In Phan v R the jury had deliberated for 46 days, during which there were numerous disruptions. Two jurors had been discharged because of prior commitments and a third because the deliberations were causing acute anxiety, to a clinical level. In late stages of the jury's retirement the trial judge had received conflicting notes from the foreperson and from another juror as to whether or not there was a prospect of unanimity. All of the grounds of appeal were concerned with the extraordinary length of the deliberations, the failure of the trial judge to discharge the jury and the question whether their guilty verdict could fairly have been arrived at having regard to the pressure of such a long period of disagreement before final resolution. Unlike the present appeal, Phan v R was not concerned with a jury note that disclosed the substance of the jury's deliberations and differences. The decision in that appeal provides no authority for this Court to rely upon the note now under consideration for the purpose of inferring that some jurors arrived at their verdicts on a misconception of the law, or that there is a risk that this may have occurred.
The principle of judging the validity of a trial according to the directions given and upon the presumption that directions are followed is a bar to part (1) of the applicant's submissions on ground 2 (quoted at [111]). This appeal illustrates the impossibility of fact finding about jurors' subjective understandings and the speculation that is necessarily involved in the attempt. It does not avail the applicant to argue that he need do no more than tender evidence from which the Court might infer a risk that the judge's directions may have been misunderstood or misapplied. Criminal court juries are only ever required to return general verdicts. A risk of undetectable misapplication of the trial judge's directions is therefore inherent in every trial. Adherence to the institution of trial by jury accepts the risk. Appellate review is limited to any conclusions about legal error that may be drawn from objective materials, such as the directions given and what was open to the jury to decide on the evidence.
Even if the jury note could be taken as identifying, in this case specifically, the possibility that some jurors may not have followed the directions - a proposition that I do not accept for reasons given at [131]-[135] above - the existence of a risk that justice miscarried would not meet the threshold in s 6(1) of the Criminal Appeal Act, namely, that "on any other ground whatsoever there was a miscarriage of justice" (emphasis added).

Rule 4.15

Ground 2 cannot be sustained on the basis that this Court would find that the jury did not understand or did not apply the trial judge's directions regarding the Crown's onus of proving non-consent; nor on the basis that there may be a risk that the directions were not followed. The ground necessarily falls to be considered according to whether some further direction was required after the jury note was received. None was requested. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 is engaged. However, I do not find it necessary to consider whether leave should be granted under the rule because I find no merit in the contention that his Honour ought to have done more than refer the jury to the written directions, as he did.

Conclusion on ground 2

I would grant leave to appeal but would reject ground 2.

Ground 1 is not assisted by the jury note

The applicant submitted that the last sentence of the note provided an "objective indication as to why" the jury's reasonable doubt with respect to counts 1-3 did not "translate" to counts 4-9. It was submitted that the note revealed a reversal of the burden of proof with respect to consent to sexual intercourse and that the jury must be taken to have differentiated their verdicts, unjustifiably, upon that misconception.
I do not accept the argument. For the reasons of principle and of fact given at [131]-[143] above, the last sentence of the note cannot be treated as establishing that any juror joined in the guilty verdicts on the basis of a reversal of the onus of proof. The note is not capable of providing an "objective indication" of why the jury acquitted on the early counts and convicted on the others. The applicant's subjective approach of trying to divine jury reasoning from one sentence in a note to the judge, the significance of which is at best questionable, is in my respectful view completely wrong. The note is not relevant to reconciling the verdicts.
The following further submission was made in oral argument: [In] light of [the] content of the jury note it is not for this Court to determine a rational basis for the different verdicts that contradicts the substance of what is conveyed in the jury note.
That argument puts the whole matter back to front. What is "not for this Court" is to examine a fragment of evidence touching upon the jury's confidential deliberations and to prefer a speculative conclusion about their subjective understanding over the objective comparison of the issues and evidence, from which a rational basis of differentiation may be discerned. The note does not stand in the way of this Court finding the rational basis that I have sought to identify in my consideration of ground 1 earlier in these reasons.

Orders

I would grant leave to appeal but dismiss the appeal.

Amendments 16 March 2023 - Restriction lifted 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: 16 March 2023

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Fagan J in draft. I agree with his Honour's conclusions on Ground 1 and with his reasons.
However, with some hesitation I am of the view that the absence of a specific redirection on the onus of proof of consent led to a real risk of a substantial miscarriage of justice. In the circumstances I would allow the appeal and order a retrial.
The jury note was in the following terms: "Counts 1 to 3 we have decided. We believe there is uncertainty about counts 4 to 9. We are having trouble on consent. There is vast disagreement in the room about whether consent has been granted by [the complainant]. Some in the group are not satisfied beyond reasonable doubt that consent was granted."
There followed discussion between the trial counsel and the trial judge on three issues. First, whether verdicts on counts 1 to 3 should be taken, second, whether a Black direction should be given and third, whether the jury should be redirected on the question of consent. On the first two issues it was determined that verdict on the first three counts should be taken and a Black direction given.
In relation to the consent issue the trial judge, after reading the jury note, made the remark, "I appreciate that last line may be not a way a lawyer would express it". Counsel for the accused (Ms Anderson) responded, "No". Thereafter the following interchange took place: HIS HONOUR: But another way is simply saying that there's obviously disagreement amongst the jury about whether the Crown proved lack of consent. ANDERSON: Yes. HIS HONOUR: But dealing with the first question, is there any reason I shouldn't take the verdicts in counts 1 to 3? ANDERSON: I can't see why not. HIS HONOUR: Yes. SOLICITOR ADVOCATE: Neither can I, your Honour. HIS HONOUR: What do you want me to do about the other part of the question? They're not asking for a re-direction on consent. They are not saying, "We are having trouble with the legal aspect of consent". They also have the written direction on consent. There's absolutely nothing more I could say about consent. And, as I said, the question does not say they're having problems with the legal concept of consent, rather they're struggling to come to an agreement essentially on their role on deciding consent. ANDERSON: Your Honour, I don't know that your Honour could re-direct them in those circumstances where it's not quite clear what aspect of consent anyway they're having difficulty with. We would all be stabbing in the dark in terms of what concept they're actually struggling with and in what factual scenario anyway. So, I don't know your Honour can actually offer a re-direction on anything anyway. HIS HONOUR: No. And as I said, they haven't actually asked for assistance on it. ANDERSON: No, exactly. HIS HONOUR: They're just indicating that they're - well, really, it's another way of saying they're not unanimous on counts 4 to 9. ANDERSON: And the vast disagreement between whether or not that means there's a significant split, or it seems to suggest that there's more than a number of people. HIS HONOUR: It's hard to tell because it could be 10-2 but the two who are the two might be vehemently disagreeing with the other ten. I don't read anything in "vast" to something about numbers. Just that whatever the groups are, there's obviously a great deal of distance between them, which is fine, that's jurors' rights.
Thereafter the jury was recalled at 4:18 pm. At 4:21 pm the jury returned "not guilty" verdicts on counts 1 to 3.
The trial judge then gave the following directions: So, members of the jury, in relation to your note, I note that in no aspect were you asking for any further legal re-direction about consent and I appreciate that all of you have the written document outlining the law of consent. In those circumstances, I am not going to give you any further legal direction about consent and, in reality, there is not really anything I could additionally say from what I have in that written document. But, in saying that, if there is some legal aspect of the law of consent that is troubling you, you will just need to re-write a note, to maybe tell me about the law of consent that is worrying you, if that is worrying you, although I get the feeling from your note it is not so much the law that is worrying you, it is the factual determinations which is a matter for you and, obviously, I cannot give you any assistance with factual findings because that is not my role in the trial.
His Honour thereafter gave the Black direction.
The jury retired to consider its verdicts at 4:28 pm. At 5:36 pm it returned verdicts of guilty on the remaining charges.
On its face, the note would seem to indicate that some members of the jury believed it was a matter for the applicant to satisfy them beyond reasonable doubt that the complainant had not consented. Such an approach would not only impermissibly reverse the onus of proof but also require the applicant to prove to the criminal standard a matter necessary for the Crown to establish beyond reasonable doubt. If some members of the jury had that view and acted on it, there would have been a substantial miscarriage of justice.
Fagan J has concluded that it was unlikely in the extreme that members of the jury would have approached their task in that manner. He pointed out that the trial judge on a number of occasions had stressed it was not a matter for the applicant to prove anything. This direction was not only given generally but it specifically related to counts 4 to 9. As Fagan J pointed out, the directions stated that the Crown must prove each element of the offence including that consent was not granted.
In those circumstances there is force in the conclusion reached by Fagan J that it was improbable the jury would have interpreted the directions as requiring the applicant to prove beyond reasonable doubt that the complainant consented to the intercourse. This conclusion is fortified by the fact that the experienced trial counsel appearing for the applicant did not object to the course proposed to be taken by the trial judge.
Notwithstanding this, I am of the view that the failure to give a further direction did give rise to the risk that there was a substantial miscarriage of justice. First, the last sentence of the note, "Some in the group are not satisfied beyond reasonable doubt that consent was granted" was more than merely not the way a lawyer would express it but, on its face, reverses the onus of proof. Second, the note was given in the context of what was described as "vast disagreement" in the jury room concerning the issue of consent. In that context, a clear redirection on the onus of proof seemed to me to be necessary.
Third, although I agree there was no inconsistency in the verdicts, the fact the verdicts of "not guilty" were arrived at in relation to counts 1 to 3 demonstrates the importance of the question of onus in circumstances where verdicts of "guilty" were reached in respect of counts 4 to 9.
Fourth, prior to taking the verdicts on counts 1 to 3, the trial judge read to the jury the contents of the note with which he had been provided. In giving the subsequent direction to the jury, he did not state that there was any error in the note, rather simply referred the jury back to his earlier directions. I do not think that was sufficient to avoid the possibility that at least one member of the jury would reach a verdict on an incorrect appreciation of who bore the onus of proof. Thus there remained a real risk that at least one member of the jury reached his or her conclusion by the application of the incorrect onus.
In these circumstances, I am of the view that Ground 2 of the Grounds of Appeal has been made out.
Since writing the above, I have read the judgment of Beech-Jones J. I agree with the orders proposed by his Honour and with his reasons.
BEECH-JONES J: I have read the judgment of Fagan J. I am grateful to his Honour for comprehensively setting out the background to the appeal. I agree with his Honour's reasons and conclusion in relation to ground 1. However, for the reasons that follow I differ in respect of ground 2.
It is no doubt correct that the starting premise in determining appeals against conviction in circumstances such as this appeal is the assumption that juries act in accordance with the directions given to them by the trial judge (see Gilbert v The Queen (2000) 201 CLR 414 at [31] per McHugh J; R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 at [17] to [21] per Spigelman CJ with whom Simpson and Price JJ agreed). A corollary of that premise is that a direction that is erroneous in law will engage both, or at the very least either of, the second or third limbs of s 6(1) of the Criminal Appeal Act 1912 (GBF v The Queen [2020] HCA 40 at [24]; "GBF"). However, what constitutes a miscarriage of justice as referred to in the third limb of s 6(1) is not just limited to instances where there has been some error on the part of the trial judge or during the trial that amounts to an "irregularity" or "failure to strictly comply with the rules of procedure and evidence" (see Caleo v R [2021] NSWCCA 179 at [154] to [167] citing TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26] and Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [54]). Instead, a determination of what constitutes a miscarriage of justice extends to considering what occurred, or did not occur, at the trial and whether that "deprive[d] the accused of a chance of acquittal that was fairly open" (TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [24]; Caleo at [167]). In the context of this case, it means that the inquiry is not limited to only considering what the jury were directed by the trial judge, but extends to what the jury said, and what was said or not said in response, and in the context of the trial as a whole.
One of the many functions of questions from the jury to the trial judge is to enable any possible misapprehension the members of the jury may be labouring under about the applicable law to be identified, disclosed to the parties, the subject of submissions and, if necessary, redirection (Smith v The Queen [2015] HCA 27 at [59]). It follows, that if those questions reveal a fundamental misunderstanding about the issues the jury have to decide and that misunderstanding is uncorrected, then that may constitute a miscarriage of justice. In such cases it will depend on what the issues were at the trial, what the jury were told, and what can be ascertained from an objective assessment of any communication from the jury in the context of the trial as a whole.
This is illustrated by this Court's analysis of a complaint raised in Burrell v R [2009] NSWCCA 193. The applicant in Burrell was convicted of murder but his conviction was set aside and a new trial was ordered. The circumstances of the killing, its investigation and the first trial attracted significant publicity (at [118]). At the retrial, the trial judge emphatically warned the jury panel and the jury to ignore any such material (at [121] to [122]). During their deliberations the jury sent the trial judge a note stating (at [128]): Would his Honour comment upon the relationship in law between the presumption of innocence and evidence relating to motivation and character.
The reference to "character" in the question was potentially problematic as no evidence concerning the applicant's good or bad character was adduced at the trial (at [130]). After consulting with Counsel, the trial judge redirected the jury on the burden of proof borne by the Crown and the evidence concerning motive (at [135]).
On appeal to this Court in Burrell, it was argued that the trial miscarried by reason of the notoriety of the applicant and the issue of his character being raised by the jury. It was submitted that it was "reasonable to assume that some or most of the jurors had been exposed to media publicity" concerning the applicant, that the note "reflected that exposure" and was an acknowledgement that it was operative on the jury's mind (at [139]).
Giles JA, with whom Howie and Buddin JJ agreed, rejected this contention. His Honour noted that the effect of the appellant's submission was the "jury did have in their minds a prejudicial view of the appellant's character gained from his notoriety" (at [147]) and stated (at [148] to [150]): I do not accept that view of the jury's note. The terms of the note were not consistent with the jury going beyond the evidence. The expressed interest was in the relationship between a legal notion, the presumption of innocence, and "evidence relating to motivation and character". Relevantly, the jury referred to evidence relating to character, not a view of character gained from media publicity. That appears to have been the way Kirby J understood it, because his Honour's immediate reaction was that there was no evidence of character and it was an irrelevance. Counsel did not voice a different understanding. … In this view of the jury's note, the rejection of the "previous tendency to regard jurors as exceptionally fragile and prone to prejudice" of which the Chief Justice spoke in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; [2004] 61 NSWLR 344 at 366, part of the passage I have set out from R v Jamal, remains of significance. The jury had been told in no uncertain terms that media publicity should be put aside, and that they should come to their decision solely upon the evidence. It is not lightly to be thought that the jury disregarded these directions, and made their disregard obvious, in asking a question founded on taking account of media publicity; and as I have said, the terms of the note are against that construction of it. (underlined emphasis in original; italicised emphasis added)
This mode of reasoning is of significance to this case. In Burrell, Giles JA did not simply regard the ground of appeal as foreclosed because of the trial judge's directions to the jury at the commencement of the trial about ignoring pre-trial publicity. Moreover, his Honour did not ignore what the note revealed about the jury's understanding of their function and how they were to perform it on the basis that it revealed the jury's private deliberations. It is one thing to say that jury deliberations are private and this Court does not undertake an inquiry into an individual juror's thought processes. It is a completely different and wrong thing to say that this Court ignores the contents of a jury note that might reveal a misunderstanding of the jury's task or which might suggest that the jury proposed to take into account irrelevant material. Otherwise, in Burrell, Giles JA construed the note from the jury according to its plain terms. His Honour rejected the construction placed on the note by the applicant and considered that construction was even more unlikely in light of the directions that had been given by the trial judge.
In this case, and as noted by Fagan J, the trial judge gave the jury an unimpeachable summing up that repeatedly emphasised that the onus of proof that the complainant did not consent (and the applicant's knowledge of that lack of consent) was on the Crown and it had to prove that beyond reasonable doubt.
However, after many hours deliberating the jury sent the trial judge a note stating as follows: Counts 1 to 3 we have decided. We believe there is uncertainty about counts 4 to 9. We are having trouble on consent. There is vast disagreement in the room about whether consent has been granted by [the complainant]. Some in the group are not satisfied beyond reasonable doubt that consent was granted. (emphasis added)
After the note was read, Counsel for the applicant asked the trial judge to repeat the note which his Honour did. Their exchange then continued: HIS HONOUR: I appreciate that last line may be not a way a lawyer would express it. [Counsel for the Applicant]: No HIS HONOUR: But another way is simply saying that there's obviously disagreement amongst the jury about whether the Crown proved lack of consent. [Counsel for the Applicant]: Yes. HIS HONOUR: But dealing with the first question, is there any reason I shouldn't take the verdicts in counts 1 to 3? [Counsel for the Applicant]: I can't see why not. HIS HONOUR: Yes. SOLICITOR ADVOCATE: Neither can I, your Honour. HIS HONOUR: What do you want me to do about the other part of the question? They're not asking for a re-direction on consent. They are not saying, 'We are having trouble with the legal aspect of consent'. They also have the written direction on consent. There's absolutely nothing more I could say about consent. And, as I said, the question does not say they're having problems with the legal concept of consent, rather they're struggling to come to an agreement essentially on their role on deciding consent. [Counsel for the Applicant]: Your Honour, I don't know that your Honour could re-direct them in those circumstances where it's not quite clear what aspect of consent anyway they're having difficulty with. We would all be stabbing in the dark in terms of what concept they're actually struggling with and in what factual scenario anyway. So I don't know your Honour can actually offer a re-direction on anything anyway. HIS HONOUR: No. And as I said, they haven't actually asked for assistance on it. [Counsel for the Applicant]: No, exactly.
After this exchange His Honour discussed with both Counsel whether a Black direction should be given and determined that it should (ie Black v The Queen (1993) 179 CLR 4). The jury then returned to the Court room. Of particular significance is that His Honour then read out the jury note in their presence and the presence of Counsel including the last sentence. His Honour then advised the jury that he would take a verdict on counts 1 to 3. The verdicts of "not guilty" on those counts were then delivered. His Honour then gave the jury the Black direction and they retired further to consider their verdict. An hour later they returned guilty verdicts on counts 4 to 9.
Three matters should be noted about the jury's note.
First, the last sentence of the jury note went to the heart of the issue on counts 4 to 9. Given the respective versions of events given by the applicant and the complainant, the real issue in relation to those counts was whether the complainant had consented to the conduct the subject of those counts. Unlike counts 1 to 3, there was relatively little dispute as to whether those acts had occurred.
Second, the plain meaning of the words in the last sentence of the jury's note conveys a fundamental misunderstanding of the onus of proof on whether the complainant consented. It may be that one can construct some possible intended meanings consistent with the correct position that the note might have intended to convey if it were not for some typographical error etc. For example, the note might have been intended to convey that "some in the group are not satisfied beyond reasonable doubt that consent was not granted" and hence the jury was deadlocked. However, unlike the process of construing the jury note that was adopted in Burrell, that exercise involves pure speculation. It also highlights that the difference between the correct position and the false position revealed by the note may not be immediately obvious to lay people even though it was fundamental to the jury's task. Ultimately, in this case, speculation about what the note might have meant to convey rather than considering what it in fact said distracts from the inquiry into whether there was a miscarriage of justice.
Third, the terms of the note were read in open Court three times including an occasion when it was read back to the jury. When it was read to the jury it was not the subject of comment. It formed part of the last communication between the trial judge and the jury. In those circumstances, even if the note only represented the poor expression of one juror, it was read to all of them in terms that repeated a fundamental misunderstanding of the onus of proof in relation to the critical issue in the trial without correction. It is difficult to see how that did not at least have the real potential to reinforce the misconception in the note or at the very least cloud the issue for the jury.
I have no doubt from reading the transcript of the trial that both the trial judge and Counsel did not envisage that the jury note really embodied the misunderstanding that the plain words of the note suggest. They had all participated to conduct an impeccable trial to that point and no doubt fully understood, based on their experience, the directions the trial judge had given. However, their misunderstanding does not detract from the circumstance that the plain words of the jury note reveal a fundamental misunderstanding of the jury's task on the critical issue which remained to be decided. Not only was that misunderstanding left uncorrected, it was to an extent reinforced when the note was read back to the jury without comment. I consider that the circumstances described above reveal that there was a sufficiently serious risk that at least some members of the jury laboured under a fundamental misapprehension as to the onus of proof on a critical issue such as to amount to a miscarriage of justice. As a result, the applicant was thereby deprived "of a chance of acquittal that was fairly open" (TKWJ supra).
It is necessary to say something further about the conduct of Counsel for the applicant at the trial. Where a matter arises at a trial that is said to give rise to a miscarriage of justice and Counsel for the accused at the trial does not seek a direction, such as here, an issue arises as to whether leave should be granted under what is now rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021. However, the failure of Counsel to object will often be of far more significance to the anterior question namely whether what transpired amounted to a miscarriage of justice. For example, their conduct maybe an indication that what transpired at the trial was of no real significance or that as a whole the note does not bear the interpretation placed on it by the applicant (GBF at [25]), possibilities I have considered in this case but reject. Further, if the conduct of counsel was the product of a considered decision to secure a forensic advantage or avoid a forensic disadvantage or is at least explicable on that basis, then that also tells against a finding that there was a miscarriage of justice (TKJW at [36]). Perhaps more controversially, if the omission at the trial was the product of a deliberate tactical decision even where no particular forensic advantage can be identified then that may also inform an assessment of whether the omission resulted in a miscarriage of justice (see Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [119] to [122]). However, in this case the conduct of Counsel in not seeking a direction to correct the last sentence of the jury note even when it was read out to the jury was clearly not a deliberate decision and did not secure any forensic advantage or avoid any such disadvantage. Given my conclusion that a miscarriage of justice has been demonstrated, I would grant leave under rule 4.15.
On the approach I take the remaining question concerns the appropriate order to make. While it was initially unclear, at the hearing of the application Counsel for the applicant submitted that, consistent with her instructions, in the event that only ground 2 was successful then the Court should not exercise its discretion to order a retrial but instead enter an acquittal (Criminal Appeal Act 1912, s 8(1), s 6(1)).
As at the time of the publication of this judgment the applicant will have served just over 60% of his non-parole period. This tends to favour the entry of an acquittal. However given the seriousness of the charges, the cogency of the Crown case and the fact that the successful ground of appeal was not in any way caused or contributed to by the Crown, then I do not consider that the interests of justice require the entry of an acquittal. Accordingly I consider that a retrial should be ordered (Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]; WX v R [2020] NSWCCA 142 at [91] to [96]).
Accordingly, the orders that I propose are: (1) The Applicant be granted leave to appeal against his conviction; (2) The Applicant be granted leave under Supreme Court (Criminal Appeal) rule 4.15 to raise ground 2 of his notice of appeal. (3) The appeal be allowed. (4) The Appellant's convictions be quashed. (5) A new trial be ordered. (6) List the matter in the District Court Arraignments List at Coffs Harbour on 6 October 2021.
FAGAN J: The applicant seeks leave to appeal against his conviction on six counts of sexual intercourse without consent, knowing that the complainant was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW). The offences were alleged to have been committed in the very early hours of 9 December 2017 at the complainant's home in Nambucca Heads. The events that gave rise to the charges occurred at the conclusion of an evening during which the applicant and the complainant had been socialising with each other and with mutual friends.
The applicant was tried in December 2019 on a total of nine counts. He was acquitted on counts 1, 2 and 3, which alleged assaults that were said to have occurred prior to the instances of sexual intercourse. The grounds of appeal are as follows: 1. The verdicts of the jury in respect of counts 4, 5, 6, 7, 8 and 9 are unreasonable and cannot be supported in light of the not guilty verdicts on counts 1, 2 and 3. 2. The trial miscarried from the failure on the part of the trial judge to direct the jury that a question which was asked by them before verdict manifest a reversal of the onus of proof. Leave is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) because the questions raised are not of law alone.
The nine counts and their particulars were as follows: 1. Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. It was alleged that at Bonville, south of Coffs Harbour, the applicant was in the front passenger seat of the complainant's car as she was driving him to Nambucca Heads. The applicant directed the complainant to stop the car, then pulled down her top and bra and bit her on the left breast. 2. Assault with act of indecency, contrary to s 61L of the Crimes Act. The Crown alleged that at the same time as the incident charged in count 1, the applicant grabbed the complainant's vagina, on the outside of her clothing. 3. Assault with act of indecency, s 61L. This offence was alleged to have occurred in the bathroom of the complainant's home: the applicant came into the room naked, seized the complainant face-to-face when she stepped out of the shower and rubbed himself against her with his bare skin touching hers. 4. Sexual assault without consent, s 61I. Immediately after the events of count 3 the applicant marched the complainant from the bathroom to the spare bedroom, pushed her onto the bed, lay beside her and then inserted at least one finger in the complainant's vagina. All the offences alleged in counts 4-9 were said to have been committed in the spare bedroom, during a continuous, forced sexual attack lasting approximately 15 minutes. The Crown alleged that the applicant performed all the acts alleged in these counts despite the complainant repeatedly saying "no", trying to push the applicant away, sobbing and otherwise indicating a lack of consent. 1. Sexual assault without consent, s 61I. The particulars were that the applicant licked the complainant's vagina. 2. Sexual assault without consent, s 61I. Penile-vaginal penetration was alleged. 3. Sexual assault without consent, s 61I. It was alleged that the applicant seized the complainant's head by the hair and forced his penis into her mouth repeatedly. 4. Sexual assault without consent, s 61I. A second instance of penile-vaginal penetration was alleged. 5. Sexual assault without consent, s 61I. A second instance of digital-vaginal penetration was alleged.
It is necessary to examine the evidence and the issues on each count as a preliminary to assessing ground 1 of the proposed appeal, alleging inconsistency of verdicts.

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