JT v R

Judgment

1. BATHURST CJ: The applicant, JT, was indicted on two counts of having sexual intercourse with his son, ST (the complainant), without his consent, and knowing that he was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that the complainant was under the authority of the applicant. The first offence was said to have taken place between 1 June 2015 and 31 March 2016, whilst the second was said to have taken place on 21 December 2016.
2. Following a trial which took place between 5 and 13 November 2018, the applicant was found guilty of both counts. It should be noted that the actual evidence at the trial was given over a period of three days.
3. The applicant was sentenced to an aggregate sentence of 12 years with a non-parole period of 9 years. He has appealed against his conviction on the following grounds: "1. His Honour failed to direct and warn the jury as to effect of the replaying of the evidence in chief of the complainant. 2. (a) His Honour erred in relation to invoking s55F of the Jury Act in circumstances where it was not permissible to do so and in doing so the majority verdict was either a nullity or involved such a failure of compliance with the procedural requirements of a trial as to constitute a miscarriage of justice. (b) His Honour erred in the directions he gave to the jury as to the availability of a majority verdict."
4. The Crown case can be summarised as follows. The complainant was the biological son of the applicant. In the middle of 2015 to the beginning of 2016, the complainant, the applicant and the applicant's partner were living in a granny flat on a property owned by the parents of a friend of the applicant, RP. The first offence took place whilst the applicant and the complainant were living in that flat. I have summarised the evidence concerning the offence below.
5. The second offence was alleged to have occurred on 21 December 2016 in the course of a fishing trip to Pampoolah Reserve. Once again, I have set out the evidence concerning this offence below.

The course of the trial

1. The principal evidence in support of the Crown case was given by the complainant. It should be noted that there was evidence at the trial that he was under the care of the Minister for Family and Community Services and had been diagnosed with a borderline mild intellectual disability, chronic anxiety, oppositional defiance disorder and attention deficit disorder.
2. There was no issue that the complainant was a vulnerable person within the meaning of s 306X of the Criminal Procedure Act 1986 (NSW). As a consequence, part of his evidence was given in the form of a recorded interview with an investigating officer. In these circumstances, the provisions of s 306X and s 306Z of the Criminal Procedure Act were applicable. These provisions are in the following terms: "306X Warning to jury If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way." "306Z Transcripts of recordings The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of evidence of a previous representation to which this Division applies made by a vulnerable person that is given in the form of a recording if it appears to the court that a transcript would be likely to aid its or the jury's comprehension of the evidence."
3. During the course of his opening, the Crown prosecutor referred to the fact that the complainant was giving evidence in this fashion and made the following comments: "When he gives his evidence, he will be giving it through what's called closed-circuit television and you'll see him on the screens that we see on the wall here. Also, when he gives his evidence you'll see the first part of his evidence is a recorded interview that he did with the police. He'll come, I'll ask some questions. There will be the recorded interview he did with the police where he sets out his allegations. I may then ask some further questions and then there will be cross-examination by Ms Hall. There's nothing unusual about that process. That's the way that these matters are done and they're dealt with, the way that complainants give their evidence so there's nothing unusual about that. It's standard procedure and you are to give his evidence no greater or lesser weight than if he was in court. You are to treat it the same as though he was in court. Similarly, you are not to draw any adverse inference against the accused because of the way that [ST] is giving his evidence. That's got nothing to do with the accused. It's just that in these types of matters that's the way it's done."
4. The trial judge reinforced these comments immediately before the complainant gave evidence. His Honour gave the following direction: "HIS HONOUR: Members of the jury, I should tell you that what the Crown Prosecutor has said to you about this procedure is correct and there's two aspects of it. First, the evidence has the same weight, no more and no less, if it was given in the jury (as said) box here as the evidence of some of the other witnesses will be. Second, there's nothing unusual about it and certainly nothing that reflects badly on the accused."
5. The jury were provided with a transcript of the record of interview. They were warned that the transcript was an aide memoire and it was not to be given any more weight because it was in writing.
6. The complainant's evidence concerning the circumstances of the offences was helpfully set out in the Crown's summary of the trial. The evidence may be summarised as follows.
7. Towards the beginning of 2014, the applicant and his partner asked to stay at RP's place whilst they looked for more permanent accommodation. A short time later, the applicant and his partner began living in the granny flat at RP's parents' place. The complainant would frequently visit and stay with the applicant at this address. In mid-2015, the complainant began living in the granny flat as well.
8. The first offence took place whilst the applicant was living in the granny flat at RP's parents' place and the complainant was staying with him. At this time, the complainant was aged between 14-16 years.
9. The complainant estimated that the offence took place approximately a month before the applicant moved out of the residence in January 2016.
10. On the day the alleged offence took place, the complainant was playing his PlayStation 3 (PS3) inside the front room of the granny flat. This offence took place on a weekday when the complainant was not at school. The complainant and the applicant were the only persons there at that time. RP had left earlier in the morning to mow the lawn of a property up the road.
11. Around lunchtime the applicant went into where the complainant was playing his PS3. The complainant was wearing boxer shorts at this time. The applicant approached the complainant and pushed him over onto the bed in the room. The applicant then pulled his pants down and inserted his penis into the complainant's anus. The applicant moved his penis in and out of the complainant's anus for a short period of time, maybe three, four minutes. At this point, the complainant said that RP arrived home.
12. The applicant jumped up off the complainant, pulled up his pants and walked out of the room through the only exit/entrance way to the room which was covered by a curtain. The complainant pulled up his pants and remained on the bed inside the room.
13. RP asked the applicant words to the effect of, "What's going on here?". The applicant did not respond. RP went into the room and asked the complainant if something had happened to him. The complainant did not reply, pretending that he had not heard the question.
14. The complainant began sleeping with a kitchen knife after the incident because he did not feel safe without protection. He said that he could not let something like that happen again.
15. RP said that in January 2016, the applicant and his partner moved out of the granny flat, leaving the complainant behind. RP contacted Department of Family and Community Services (FACS), who arranged for the complainant to live with his sister in Penrith.
16. After a period of time, the complainant moved back to Taree and began living with his mother. Sometime prior to 21 December 2016, the complainant moved into a caravan park with a female foster carer with the support of FACS.
17. From January 2016 until 21 December 2016, the complainant had little to no contact with the applicant.
18. On 21 December 2016, the complainant contacted his father, the applicant, via his mobile telephone. The complainant said he did this as he thought the applicant may have changed. The complainant and the applicant arranged via their mobile telephones to meet up and go fishing together that day. This contact was corroborated by text messages recovered by police and telephone records.
19. At approximately 11.50am that day, the applicant met the complainant in front of Taree Library. As the applicant and the complainant walked back to the applicant's vehicle, (a blue/green Holden Rodeo Dual Cab ute), they ran into the complainant's FACS caseworker, Lauren Dennis. The applicant introduced himself to Ms Dennis. At the conclusion of this conversation, the complainant and the applicant got into the applicant's vehicle. Also in the vehicle was the applicant's partner's son, JB, who was two years younger than the complainant.
20. The applicant then drove himself, the complainant and JB to the Taree BCF store. The complainant and JB stayed in the vehicle while the applicant went into the BCF store and purchased some bait for their fishing trip.
21. The applicant then drove himself, the complainant and JB to Pampoolah Reserve. The applicant parked near the riverbank under a big tree to the left of the wharf. The applicant, the complainant and JB all went down to the water and commenced fishing on the jetty. There were no other vehicles or people around at this time.
22. The complainant was wearing thongs, boardshorts, underpants and a t-shirt.
23. About ten minutes later, the applicant walked to the back of his parked vehicle which was located approximately 50 metres away from the jetty. The applicant then called out to the complainant and said words to the effect, "[The complainant] come and help me". The complainant yelled back, "Ok, I'm coming", he then walked up to the back of the applicant's parked vehicle.
24. The applicant approached the complainant and pushed him down onto the ground, causing the complainant to scratch his foot. The applicant told the complainant to, "Stay still, shut up". The applicant turned the complainant over so that he was face down on the ground. The applicant then pulled the complainant's board shorts and underpants down. The applicant inserted his penis into the complainant's anus.
25. The applicant moved his penis in and out of the complainant's anus for about 20 seconds, at which point JB, who was still on the jetty fishing, called out, saying words to the effect of, "[The applicant], I need help". The applicant removed his penis from the complainant's anus, got off the complainant and pulled his shorts up. As the applicant did this, he told the complainant, "Don't say shit mate or I'm going to hurt you''. The applicant then walked back down to where JB was on the jetty.
26. After the applicant left, the complainant stayed on the ground for a few seconds before pulling up his shorts and lighting a cigarette. The complainant then walked back to the jetty and got into the water and had a swim as he felt "dirty".
27. The applicant, the complainant and JB remained at the jetty for approximately another half an hour before leaving together. As the applicant dropped the complainant home to the caravan park he said, "See you, I love ya mate".
28. On 13 January 2017, the complainant was at RP's place. The complainant and RP consumed a few alcoholic drinks. The complainant then disclosed to RP that, "Dad raped me". The complainant began hysterically crying and called out repeatedly, "Get off me. Don't attack me. Don't hurt me. Don't drug me". RP observed that the complainant was having a panic attack.
29. Later that day, upon the advice from RP, the complainant called the police. He called his mother and disclosed that, "[The applicant] had raped me". The complainant was crying, very distraught and distressed when he asked his mother if she remembered, "Pampoolah Reserve", where they used to go fishing. He told his mother that the applicant had raped him there about two weeks ago. The applicant also called his grandmother.
30. Whilst at RP's place the following night, 14 January 2017, the complainant consumed a quantity of alcohol and suffered another panic attack. The complainant was transported to hospital for treatment for the panic attack.
31. On 16 January 2016, the complainant disclosed the offence alleged to have taken place on 21 December 2016 to his FACS caseworker, Ms Dennis.
32. The complainant was asked in re-examination to explain why, in the course of his interview with the police and in the evidence given by him at the trial, there were certain times when he seemed to smile or giggle. He explained that that was a reaction he had when he was in unfamiliar surroundings. He said that he did not know how to express himself and did not know how to feel in situations like he was in during the interview.

Other relevant evidence

1. JB gave evidence that he accompanied the applicant and the complainant on the fishing trip but did not see the incident.
2. Ms Lauren Dennis was the FACS caseworker assigned to the complainant. She stated that she saw the complainant with the applicant on 21 December 2016 and was told that they were going fishing. She said that she next saw the complainant in January and he told her that when he went fishing with the applicant, the applicant had pushed him to the ground, pulled his pants down and then "after it was done" the complainant left the applicant and went back down to the river. She said that the applicant did not say what "it" was.
3. RP gave evidence that about a month before the applicant and his partner left the granny flat, he went into the complainant's room and the complainant seemed to be "sort of a bit down in the dumps" but said that he was okay. He said there was a point where he noticed the complainant had been sleeping with a knife and the complainant told him he did so to feel safe.
4. RP also gave evidence that around 9 January 2017, the complainant rang and asked if he could come and stay the night. He said that on about the third day he was there, he had the first of two panic attacks. He identified the first being on 12 January, saying that the complainant fell to the ground and was screaming and throwing himself around. RP said that just before the complainant fell to the ground, he said "Dad raped me". RP said that the complainant had a second panic attack on the following day when he (RP) contacted an ambulance. He said the only thing that the complainant said a few times was "Don't hurt me. Don't hurt me" and at one point he said something like "No, not a screw driver".
5. The complainant's mother stated that on 13 January 2017, she received a call from the complainant who said that his father had taken him out to Pampoolah Reserve on the pretence to go fishing and had raped him. Ms Kelly Coe, a paramedic with the New South Wales Ambulance Service who transported the complainant to hospital, said that the complainant told her that he had been on a fishing trip two weeks ago with his dad and that his dad raped him.
6. Senior Constable Dunkley gave evidence that on 14 January 2017, he went to Manning Base Hospital in Taree and saw the complainant. He said that the complainant told him that he went fishing with the applicant and the applicant "held a screwdriver to my throat and went behind me. It hurt so bad". He said that the complainant also told him, "I was first made to lay down on my back, then he told me [to] roll over onto my belly, then he stuck his penis into me. It hurt so bad".
7. The applicant did not give evidence.

The summing-up and the subsequent jury deliberations

1. In his summing-up, the trial judge did not repeat the direction he had previously given that the recorded evidence should be given no more weight than if it had been given in the witness box, similar to the evidence from some of the other witnesses.
2. Following the trial judge's summing-up, the jury retired to consider its verdict at 12.50pm on 9 November 2018. The jury were discharged from the Court at 1.32pm.
3. On Monday, 12 November 2018, the jury continued to consider its verdict from 9.25am. The judge was supplied with a jury note (MFI K) requesting a transcript of the summing-up. The jury was told it had not been transcribed and the only alternative was to play the sound tapes.
4. The request by the jury was subsequently withdrawn.
5. Later, during the course of the morning, the jury sent the judge another note which relevantly was to the following effect: "We appear to be missing the original video of [the complainant's] police interview. Was it not entered as evidence? … We wanted to watch [the complainant's] original police testimony."
6. There followed discussions between the trial judge and counsel during which the Crown prosecutor reminded the trial judge that if the jury wished to view the recording, it should be done in open court. The jury then returned to the Court at 12.06pm and the following interchange took place: "HIS HONOUR: Members of the jury, as I understand it you want to see first the video of [the complainant's] interview with the police. We can deal [with] this in one of two ways. First, you have got the transcript of it. You have not? We can let you have the transcript of it. Would that do or are you concerned to study his demeanour in the interview as well? FOREPERSON: For the question that had been addressed by one of the jurors, the preference would have been to be able to see the video. HIS HONOUR: To see it? All right. Okay. Then, in order to do that, we will have to show it to you in the courtroom. You cannot take it into the jury room. You will remember I just marked it for identification, which means it is not an exhibit. A mark is put on it so it can later be identified. The theory behind all this, according to the Court of Criminal Appeal, is that, if I let you have it in the jury room you can go over it and go over it and you might be tempted to give it undue weight compared with other evidence that you do not have a video of. As you can see it in the courtroom, and if you asked me to have it replayed a thousand time[s], I would have to do it. Speaking for myself I cannot see the difference, except that seeing in the courtroom requires that I and counsel have to sit here while you do it, which does not seem a very efficient way of using our time, but that is the law. So in relation to that we will show it to you here in the courtroom, and the same would be true of the video of [JB's] police interview."
7. The recorded interview was played in Court and the jury again retired to further consider its verdict at 2.10pm. No direction was sought that the recording should not be given undue weight. Prior to the jury retiring, a discussion took place as to whether the jury could have the transcript of the recording. The trial judge stated that he did not see why they could not take the transcript into the jury room as the transcript was meant to be an aide memoire. Counsel for the applicant stated that the jury should have the whole of the evidence of the complainant. This was complied with.
8. During the course of the afternoon, the trial judge received another note from the jury which was put in an envelope "only to be opened by a judge of this or a higher court". During the hearing of the appeal, the parties agreed that the Court could take account of the note in its consideration of the appeal. The note (MFI O) was in the following terms: "The jury has deliberated for many hours and everyone has had time to ask questions and discuss the evidence so that each person is confident in their position. We all believe that there would be no benefit to further discussion or deliberation as one person is firm in their position that there is not enough evidence to change their mind that reasonable doubt cannot be surpassed. What is the next stage in the process?"
9. The note then recorded that there were 11 votes guilty and one vote not guilty for count 1, and that there were 10 votes guilty for count 2, one vote not guilty and one vote uncertain.
10. Following that note, there was some discussion between the trial judge and counsel as to the length of time the jury had been deliberating. During the course of that discussion, counsel for the applicant stated that she had no difficulty with the trial judge giving a "Black direction at this stage." Counsel for the applicant was of course referring to a perseverance direction: see Black v The Queen (1993) 179 CLR 44; [1993] HCA 71.
11. The judge then gave a perseverance direction to the jury. The direction was in the following terms: "HIS HONOUR: Members of the jury, I have your note. I am not permitted to discuss the information you have given about numbers in the jury room with counsel and I have not done that, but everybody understands that you have reached a point where you do not all agree and you feel you have been deliberating for quite a while and that it is not likely that further consideration will bring you to agreement. May I say that this position commonly occurs, but the experience of the courts is that, even when juries say this, it very often is the case that, given further time, they do manage to reach agreement, and we all know how easy it is to lock oneself into a state of firm belief that we are right about something, when sometimes later events show that, in fact, we were wrong. So a view come to even firmly is worth rethinking, as it were, from the ground up to see whether there is any chance that you, or any of you, can change your minds, and that, if there is a majority one way, includes the majority also thinking, 'Perhaps I am wrong,' and so forth. I remind you that you are all obliged to consider very carefully the approach of other members of the jury and to be respectful of the fact that another citizen among you holds a different view, having heard the same evidence and argument, and it is worth trying to see the matter from the other person's point of view and see whether that enables you, in good conscience, possibly to change your position. But, that said, the fundamental requirement is that you should be true to your oath or affirmation and you go with your conscience. If, having reconsidered the matter quietly, after a break which [you] are going to have, and after more time discussing the matter, you conscientiously cannot change your view, then so be it. If that happens the possibility perhaps arises that a majority verdict, or a verdict that is not unanimous at least, might be able to be taken. But I must ask you - in fact, I cannot discharge you until you have put in further hours on the subject. I think probably it would be advantageous if you were to knock off for the day. It is pretty hard work and it can be frustrating and perhaps it is better to go and have a rest, come back fresh in the morning. Take to heart what I have said and approach the matter again tomorrow."
12. The Black direction was not objected to by trial counsel for the complainant.
13. The jury resumed its deliberations at 9:25 AM on 13 November. At some stage during the morning, the trial judge received another note from the jury (MFI P) to the following effect: "After further extensive review of the evidence and sleeping on it, and further discussion and review of the evidence, we the jury are convinced that all 12 jurors are completely firm in our positions. There is no prospect of anyone changing their opinions. We are unable to form a unanimous verdict. There are no remaining doubts in the mind of each juror. 11 people firmly believe that the defendant is guilty beyond reasonable doubt on both counts as stated in the indictment document. 1 person firmly believes that there is not enough evidence to convict the defendant and votes for a decision of not guilty on both counts. We look to the judge for further instructions."
14. Counsel and the trial judge appeared to have agreed that the eight hours required to give a majority verdict direction would expire at 3.00pm that afternoon. The trial judge indicated that he proposed to give the majority verdict direction at that time. Trial counsel for the applicant submitted to the trial judge that he should not give them a time limit, just ask them to continue to deliberate. However, she appeared to accept that it was appropriate for the matter to be reviewed at 3.00pm.
15. Following that discussion, the jury returned to the Court where his Honour made the following remarks to them: "HIS HONOUR: Members of the jury, I have read your note and understand the intensity of your feeling on the matter. I am legally required, however, to ask you to consider the matter further. I will review the matter at 3 o'clock and we will see where we stand then. I am sorry I can do no other. Thank you, would you please continue your deliberations?"
16. Thereafter, further discussion took place concerning the circumstances that a majority verdict direction could be given. The following interchange took place: "HIS HONOUR: --and the answer will certainly be no in this case, and then I ask them is it possible that they will reach a majority verdict? CROWN PROSECUTOR: Your Honour, my understanding is s 55F(2)-- HIS HONOUR: I haven't got it in front of me. CROWN PROSECUTOR: Sorry, I have a copy here that I've marked. The first question is after the time has elapsed. The second part is 'After examination on oath of one or more of the jurors, that it is unlikely the jury will reach a unanimous verdict after further deliberation.' So that's asked in the presence of the other members of the jury. HIS HONOUR: Yes. CROWN PROSECUTOR: I anticipate that answer will be, 'No, we won't.' HIS HONOUR: Yes. CROWN PROSECUTOR: From that point your Honour then gives them the direction in relation to majority verdicts as set out in the Bench Book. I have a copy of that direction if that would assist. HIS HONOUR: They've yesterday and today in the clearest terms indicated that they can't reach a verdict and there's no requirement for this rigmarole and I'm going to dispense with it and just ask them to briefly consider whether they can return a verdict agreed on by 11 of them. CROWN PROSECUTOR: Your Honour, my submission would be that they still be given the full direction in relation to that. It's important they still strive for a unanimous verdict. I understand that they've said that they can't but they should still be asked that they strive for that. If they can't then the Court can accept a majority verdict of 11-1. HIS HONOUR: I think it's insulting to them. Do you want me to say that to them? HALL: I'm sorry, I wasn't sure what your Honour was proposing. HIS HONOUR: I'm going to ask if they've been able to reach unanimous-- HALL: A unanimous verdict. HIS HONOUR: --agreement and the answer will be no. I'm then going to say, 'In these circumstances, the law would permit me to take a verdict of 11 of you if 11 of you are agreed on a verdict and would you please retire and consider that and let me know whether you can or can't,' and I suggest you don't go very far. All right get them in, please. Do you want me to do any more than that? I don't say I should exhort them any more; I think it would be insulting to them. HALL: If your Honour please."
17. At 3.06pm, the jury returned to the Court and the foreperson, after taking an affirmation, was asked whether the jury had been able to unanimously agree on a verdict in relation to any of the charges against the applicant. The foreperson said that the jury had not.
18. The trial judge then gave the following direction: "HIS HONOUR: Members of the jury, in these circumstances the law will now permit me to take a verdict if it is the case that 11 of you are agreed in a verdict that should be given. I am obliged to ask you to retire and consider whether that is the case and, when you are able to answer that question, including after further deliberation, which I encourage you to undertake if you think it would be helpful, then I will get you back in and we will take the verdicts. Thank you."
19. At 3.28pm, the jury sent a further note (MFI Q) to the following effect: "After further deliberation there has been no change in the position of the members of the jury. 11 people find the defendant [JT] guilty of both counts as outlined on the indictment. 1 person still votes not guilty on both counts due to a lack of concrete evidence leaving doubt. Not beyond reasonable doubt."
20. Thereafter, the trial judge recalled the jury and took the majority verdict of guilty on each count.

Ground 1: His Honour failed to direct and warn the jury as to the effect of the replaying of the evidence in chief of the complainant.

The submissions

1. The applicant submitted that the trial judge provided no direction that the evidence which was being replayed was the evidence in chief of the central Crown witness and should not be considered in isolation, absent the cross-examination and other evidence at the trial. It was submitted that the remarks made by the trial judge immediately prior to the evidence being replayed would have been understood as relating to the mechanics of it being replayed, not its use.
2. The applicant pointed out that the provisions of s 306X of the Criminal Procedure Act were mandatory. It was submitted that the appropriate direction was that approved in R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 to the following effect at [208]: "We believe that the judge should give a warning to the jury as to the caution with which they are to approach the replaying of the videotape of the evidence in chief of a witness in the manner suggested by McMurdo P in R v H. The general warning is to the effect that: because they are hearing the evidence in chief of the [witness] repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case. Of course it does not matter what words the judge uses to express that warning."
3. It should be noted that Howie J and Johnson J, with whom Wood CJ at CL and Hunt AJ agreed, qualified these remarks at [209]: "Again the failure to give such a warning may or may not result in a miscarriage of justice. Much may depend upon the significance of the evidence in the case and what other warnings have been given to the jury about the evidence of the witness whether there is other evidence corroborating the witness or otherwise proving the offence and when the request for the replaying of the tape is made. A relevant matter may be whether defence counsel made any request for such a warning."
4. The applicant submitted that the approach taken by the trial judge was contrary to the preferred approach set out by Johnson J and Howie J at [210], particularly their comment that "[i]t would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed". However, in that case, their Honours emphasised (at [210]) that they were not seeking to "lay down any rule of practice or procedure to be followed in every case."
5. The applicant also submitted that if a transcript was provided to the jury, the trial judge should have warned the jury it was an aide memoire only. The trial judge in fact said in the presence of the jury that the transcript was an aide memoire.
6. At the hearing, counsel for the applicant acknowledged the fact that the trial judge had given the direction to which I have referred at [9] above, but described his Honour's remarks at the time of the request to replay the recorded interview as "perfunctory" and not in accordance with what she described as the "most important aspects of s 306X", namely that the evidence must be considered "not to the detriment of the other evidence". She described what occurred as "a fundamental defect in the trial", submitting that the ultimate comments made by the trial judge had the effect of undermining the earlier direction which had been given.
7. Counsel for the applicant emphasised that the direction did not draw the jury's attention to the fact that the cross examination was not included in the portion being reviewed, but rather focused the jury on the demeanour of the complainant in the recording, as opposed to the rest of the evidence at the trial.
8. In reply, counsel for the applicant rejected the proposition that it was the applicant at the trial who was relying on the demeanour of the complainant. She said that she accepted that the applicant was critical of the complainant's demeanour in terms of the smiling and smirking which suggested that "the video representation of that evidence was not something that went one way."
9. The Crown in its written submissions referred to the opening remarks by the prosecutor and the warning given by the trial judge immediately prior to the complainant's evidence. He also referred to the fact that the jury had the edited transcript as an aide memoire at the time the recording was replayed, and that according to the evidence of Ms Donna Harris, the Crown's instructing solicitor at the trial, the transcript of the whole of the complainant's evidence, including cross-examination and re-examination, was with them in the jury room.
10. In these circumstances, the Crown submitted that the statements made by the trial judge prior to the complainant's evidence, coupled with what had been said by the Crown, complied with s 306X of the Criminal Procedure Act. He submitted that Galvin v R [2006] NSWCCA 66; (2006) 161 A Crim R 449 was not authority for the proposition that the warning must be repeated when the recording is replayed: referring to Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [73].
11. It was submitted that the explanation given by the trial judge for the reason it was necessary that the video be replayed in open court served to remind the jury that the recording should not be given undue weight. The Crown emphasised that the trial was short and the evidence "fell within a reasonably narrow compass" (quoting Basten JA in Jarrett v R at [73]).
12. The Crown submitted that the trial judge did not question the jury as to the purpose for which they wished to see the recording; rather, the remarks of the trial judge to which I have referred at [50] above were made in the context of an inquiry into whether the jury wished to have a copy of the transcript or to see the recording. In my opinion, that is the manner in which the remarks would have been understood by the jury.
13. The Crown submitted that contrary to the applicant's submission, the jury was told that the transcript was only an aide memoire.
14. At the hearing, the Crown emphasised that this was a case where the applicant did not give evidence, stating that an important question was the question of imbalance, which is more likely where there is a substantial case mounted on behalf of the accused. He also pointed out that a further consideration in some of the authorities was whether a recording might inspire an emotional reaction and, in that context, submitted that it was the applicant who was relying on the demeanour of the complainant smiling and giggling during the course of his evidence.
15. The Crown also submitted that no objection was taken to the course adopted at the trial and that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules) applied.

Consideration

1. I have set out s 306X of the Criminal Procedure Act at [7] above. In my opinion, a warning was given in compliance with that section. I have set out the remarks of the Crown prosecutor and the trial judge (at [8] and [9] above). This is not a case such as Galvin v R where no warning was given to the jury: see (2006) NSWCCA 66 at [63].
2. In the present case, the warning was given immediately before the complainant commenced giving his evidence. This was the time which was suggested by McClellan CJ at CL in RELC v R [2006] NSWCCA 383; (2006) 167 A Crim R 484 to be the most appropriate time to provide the warning: [2006] NSWCCA 383 at [44].
3. The principal complaint by the applicant was that what was described in R v NZ as the preferred procedure was not followed; in particular, a warning of the nature of that referred to at [208] was not given at the time the recording was replayed (see at [66] above). However, as was emphasised in that case, the question is whether non-compliance with the preferred approach gave rise to a miscarriage of justice (R v NZ at [209], which I have set out at [67] above).
4. In Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, the trial judge permitted a videotape of the complainant's evidence to be replayed in the presence of the Court's bailiff but in the absence of the judge and counsel. The Court concluded that the replaying should have taken place in open court before the judge, jury and counsel: (2007) 232 CLR 208, Gleeson CJ at [3], Hayne J at [96]. Justice Hayne also stated at [96] that in some cases, it may be necessary to warn the jury of the need to consider the replayed evidence in light of countervailing evidence, and that it may be desirable, and in some cases necessary, to repeat the warning required by s 21AW (s 21AW of the Evidence Act 1977 (Qld), the statutory equivalent to s 306X of the Criminal Procedure Act).
5. However, in that case, there was held to be no miscarriage of justice primarily because the recorded evidence, which included the cross-examination of the complainant, was effectively the only evidence at the trial: Gately v The Queen, Gleeson CJ at [4], Hayne J at [80].
6. In Jarrett v R, the jury, without objection, were given access in the jury room to a video of the complainant's evidence in chief without a warning pursuant to s 306X of the Criminal Procedure Act. It was held that there was no miscarriage of justice. Justice Basten (with whom R A Hulme J agreed) pointed out at [73] that the joint reasons in R v NZ did not lay down any rule of practice or procedure to be followed in every case. His Honour refused leave to appeal pursuant to r 4 of the Criminal Appeal Rules (1952 S1 2) (NSW) (the predecessor to r 4.15 of the Criminal Appeal Rules), making the following remarks (at [75]): "[75] As ground 1 was eventually argued, the focus was the failure to give a second warning pursuant to s 306X at the time the jury was provided with the video evidence. However, the warning having been given early in the trial, there was no realistic likelihood that the jury would draw an inference adverse to the accused because of the way the evidence was given: that had been adequately explained. The rest of the warning required by the section, namely that the evidence not be given 'any greater or lesser weight' because of the way it was given, would not in terms have addressed the question of balance. That issue was, however, expressly addressed by providing the whole of the transcript of the complainant's evidence and the transcript of Detective Scott's evidence. The jury were reminded to check anything they heard against the transcript in the event that there was any issue in their minds about any passage in the tape."
7. In the present case, no direction of the nature of that required by s 306X was sought at the time the recording was replayed. Rule 4.15 of the Criminal Appeal Rules therefore applies.
8. In my opinion, no miscarriage of justice occurred. This is for a number of reasons. First, a warning in compliance with s 306X was given immediately prior to the complainant giving evidence. As only six days had elapsed since the warning had been given, there is no reason to assume the jury had forgotten it.
9. Second, the remarks made by the trial judge to the jury at the time the request for the replay of the recording was made, although they might be described as perfunctory or dismissive, did reinforce the earlier direction that undue weight should not be given to the replayed evidence.
10. Third, so far as the question of imbalance was concerned, apart from the evidence of the complainant, the only evidence adduced was the evidence of complaint, the evidence of JB and telephone records suggesting the complainant may have contacted the applicant after the second incident.
11. It is correct that the cross-examination was not included in the recording, but the jury, at the request of the applicant's counsel, had the whole of the transcript of the complainant's evidence in the jury room as an aide memoire. So far as the complainant's demeanour was concerned, the explanation for his smiling and giggling was adduced in his re-examination (see at [37] above) and it does not seem to me his demeanour was something to which the jury would give undue weight as a result of the recording being replayed.
12. In those circumstances, the fact that there was a limited body of evidence of the nature of that to which I have referred was not such as to give rise to any issue of imbalance. As trial counsel for the applicant said at the conclusion of her closing address to the jury, the case "rises and falls on the evidence of [the complainant]".
13. I have already indicated that I do not believe the trial judge inappropriately questioned the jury as to the reason for replaying the recording.
14. In these circumstances, no injustice arose from the replaying of the recording without an additional warning being given. Leave to appeal on this ground should be refused under r 4.15 of the Criminal Appeal Rules.

(a) His Honour erred in relation to invoking s 55F of the Jury Act 1977 (NSW) in circumstances where it was not permissible to do so and in doing so the majority verdict was either a nullity or involved a failure of compliance with the procedural requirements of a trial as to constitute a miscarriage of justice.

(b) His Honour erred in the directions he gave to the jury as to the availability of a majority verdict.

1. It is convenient to deal with both grounds together. Prior to doing so, it should be noted that in the further written submissions filed on behalf of the applicant, it was stated that it was not contended that a majority verdict direction was not appropriate and that the jury had deliberated for a period of time that the Court considered reasonable, having regard to the nature and complexity of the proceedings, and that they had communicated that they could not reach a unanimous verdict at the times indicated.
2. Further, in the additional submissions, the applicant referred to the direction by the trial judge to which I have referred at [62] above and made the following submission: "The applicant does not submit that there was an error in the examination of the juror but that the following direction was deficient in that it failed to encourage the jury to unanimously agree, and inclined the jury to the majority verdict that had been averred to in the earlier directions."
3. Section 55F of the Jury Act 1977 (NSW) is in the following terms (note omitted): "55F Majority verdicts in criminal proceedings (1) This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons. (2) A majority verdict may be returned by a jury in criminal proceedings if - (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation. (3) In this section - majority verdict means - (a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or (b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned. unanimous verdict means a verdict agreed to by all members of the jury. (4) A verdict that the accused is guilty of an offence against a law of the Commonwealth must be unanimous. (5) This section extends to any alternative verdict that is available to a jury at law."

The submissions

1. The applicant pointed to the fact that in his Honour's summing-up after telling the jury that their verdict was required to be unanimous, the trial judge went on to say, "As you may know, the law permits me in certain circumstances to accept a verdict which is not the verdict of all of you. Those circumstances do not arise easily and they certainly do not arise soon. Should they arise, I will deal with the matter at a later point.".
2. The applicant also pointed to the comment made by the trial judge in his perseverance direction, "If that happens the possibility perhaps arises that a majority verdict, or a verdict that is not unanimous at least, might be able to be taken."
3. The applicant also referred to the remarks made by the trial judge following receipt of the note MFI P, the subsequent examination of the foreperson and the majority verdict direction.
4. It was submitted that these matters cumulatively indicated first that the allusion to the possibility of a majority verdict undermined the requirement for a unanimous verdict and the Black direction. Second, that the directions inferred that there was a time at which a majority verdict direction would be taken, namely 3.00pm the day the majority verdict direction was given. Third, the trial judge's enquiry of the foreperson did not enquire as to the possibility of a unanimous verdict as required by s 55F(2)(b) of the Jury Act, and did not refer to the possibility that the jury could decline to return a majority verdict.
5. So far as ground 2(a) is concerned, the applicant submitted that there were two preconditions to the operation of s 55F of the Jury Act. The first was that the trial judge had to make a judgment whether or not a "reasonable" period had elapsed in all the circumstances of the trial to warrant the making of such a direction. The applicant submitted that although this was not an issue, the trial judge did not appear to have given consideration to this matter.
6. It was submitted that the second requirement was a formal procedure for examining at least one juror, to satisfy the judge that it was unlikely that a unanimous verdict would be reached. It was submitted that the trial judge took this matter as self-evident and did not address the section.
7. In written submissions filed after the production of MFI O and MFI P to the Court, the applicant then again referred to the reference of the possibility of a majority verdict in the perseverance direction, repeating that it would divert the jury. The applicant submitted in relation to each note that it could not be said that the same juror was in dissent in relation to each charge.
8. At the hearing, counsel for the applicant submitted that there was a series of cumulative matters, rather than a discrete issue, which caused a question to be raised as to the way the jury reached the ultimate majority verdict. She submitted that the course taken by the trial judge was contrary to the jury being asked to strive for a unanimous verdict. She submitted that the jury would have been left in very little doubt as to what the words "review the matter at 3 o'clock" meant. She submitted that the jury should have been again asked to consider whether it was possible to reach a unanimous verdict.
9. The Crown in its written submissions referred to the decision of this Court in Tabalbag v R [2016] NSWCCA 48; (2016) 258 A Crim R 240, where a majority verdict direction was given when a juror had sworn that the jury were hopeful of reaching a unanimous verdict. In that case, the Court emphasised that the requirement in s 55F(2)(b) of the Jury Act for evidence to be taken from one or more persons is not a mere formality and it is only if the examination on oath produces a result that is consistent with the jury being unlikely to reach a unanimous verdict after further deliberation, that a majority verdict direction can be given. However, the Crown submitted that compliance with s 55F can be inferred.
10. The Crown submitted that in the present case, the trial judge referred to the possibility of a majority verdict in his summing-up and the perseverance direction without indicating whether or not a majority verdict could be returned. He also submitted that although when giving the majority verdict direction the trial judge declined to direct the jury to continue to strive to reach a unanimous verdict, there was no objection taken to the direction.
11. The Crown submitted that the applicant had not established that the trial judge failed to consider s 55F(2)(a) of the Jury Act in circumstances where, on any view, the conditions of the subsection were satisfied.
12. The Crown submitted that it was implicit from a reading of the transcript as a whole that the judge formed the view the preconditions were satisfied. The Crown pointed out that it was a short trial, dependent upon the evidence of a single witness, and the judge and both counsel proceeded on the view that at the time of the second note from the jury, the jury had had ample time to consider the evidence.
13. The Crown submitted that although it was held in Tabalbag v R that the legislation clearly contemplated the requisite state of satisfaction would be reached because of the answer given on oath, that comment should be understood in the context of the particular circumstances of that case. The Crown pointed out that in the present case, the juror was examined after reference had been made to s 55F(2) of the Jury Act. It was submitted that it was open to the trial judge to take into account other material that was not on oath, including the jury notes. It was submitted that it could be inferred the judge reached the requisite state of satisfaction after examining the juror.
14. So far as ground 2(b) was concerned, the Crown submitted that in the perseverance direction, the trial judge referred to the possibility of a majority verdict without indicating that it would, or when that would occur. The Crown submitted that there was no error in this approach. He referred in that context to what was said by McClellan CJ at CL in Ingham v R [2011] NSWCCA 88 at [24]-[25].
15. The Crown submitted that the direction to which I referred at [62] above did not have the effect of telling the jury that a majority verdict was imminent, as distinct from asking them to continue their deliberations. He noted that 3.00pm was the time at which the jury had been sent home the previous day. He submitted that a further direction at 3.06pm to strive to reach unanimity, although perhaps desirable, in all probability would have been futile.
16. In further submissions after MFI O and MFI P had been produced to the Court, the Crown submitted that the overriding inference was that the dissenting juror in respect of each charge was the same person.
17. At the hearing, the Crown emphasised that the matter had to be considered in the context that as the trial judge found, the jury were hopelessly deadlocked. He noted that the response from the juror who was questioned was consistent with that position.

Consideration

1. In considering ground 2(a), it is important to bear in mind the concessions made by the applicant in his further written submissions, namely, that a majority verdict direction was appropriate, the jury had deliberated for a time the Court considered reasonable, having regard to the nature and complexity of the proceedings, and that it was not contended there was error in the examination of the juror (see at [94]-[95] above).
2. It is difficult to reconcile these concessions with ground 2(a) of the grounds of appeal which contends that the trial judge erred in invoking s 55F of the Jury Act when it was not permissible to do so. Nonetheless, as the ground has not been abandoned, I will deal with it on the basis that the applicant did not intend to resile from his original written submissions or the submissions made at the hearing.
3. The first basis of which it seems to be contended s 55F was not complied with was that the trial judge did not form the opinion required by s 55F(2)(a) that the requisite reasonable period of time had elapsed to warrant a majority verdict direction. It seems to be contended that irrespective of whether a reasonable time had elapsed, it was imperative for the trial judge to form the opinion that it had done so, and the trial judge did not do so.
4. I do not think that this is correct. The applicant's trial counsel conceded the time was reasonable. The trial judge had s 55F in front of him or was informed of its contents at the time he gave the majority verdict direction. It is evident from the exchange to which I have set out at [60] above that both parties and the trial judge were proceeding on the correct assumption that a reasonable time had elapsed.
5. In these circumstances, I do not think that the trial judge erred in failing to consider if a reasonable time had elapsed.
6. The second basis upon which it was suggested s 55F was not complied with was that the juror was not examined in such a way to satisfy the judge that it was unlikely the jury would reach a unanimous verdict after further deliberation. As elaborated at the hearing, the complaint was that the trial judge failed to directly ask the juror whether it was unlikely that a unanimous verdict would be reached after further deliberations.
7. In RJS v R [2007] NSWCCA 241; (2007) 173 A Crim R 100, Spigelman CJ at [19] emphasised the importance of the two qualifications placed by the legislature on the modification to the longstanding requirement of unanimity on a jury in a criminal case. His Honour stated further that failure to address either of those qualifications would vitiate the trial.
8. In Tabalbag v R, the Court emphasised at [61] that the requirement in s 55F(2)(b) of the Jury Act for evidence to be taken from one or more jurors is not a mere procedural step, and that it is only if the examination on oath produces a result that is consistent with the jury being unlikely to reach a unanimous verdict, that the step of giving a majority verdict direction can be taken. However, the Court also stated at [62] that it was open to the trial judge to take other matters into account, as well as the sworn evidence of a juror in reaching the satisfaction required by s 55F(2)(b).
9. The facts in Tabalbag v R were quite different to those in the present case. Although the position was complicated, due to the discharge of one of the jurors during the course of their deliberations, the final question asked of the foreperson after she was told to consult with other members of the jury was, "After discussing it with the jury, has there been agreement of whether or not you're likely to be able to achieve unanimity?", to which the response was, "We'd like to think that we're likely to get there."
10. By contrast, in the present case, the question asked to the juror was asked in the context of two notes, one given to the trial judge before, and one given to the trial judge after the perseverance direction that one person in the panel believed there was not enough evidence to change their mind that there was reasonable doubt of guilt.
11. I have set out the question asked to the juror at [61] above. Viewed in isolation, it would not be sufficient to enable the Court to reach the requisite degree of satisfaction to enliven the precondition in s 55F(2)(b) because it made no reference to the possibility of a unanimous verdict after further deliberation. However, the question was asked after the unequivocal note which was MFI P and in the context that after that note, they were asked to consider the matter further. The inquiry which in effect asked whether their further deliberations had advanced the matter was in my view sufficient in the present case for the Court after the examination of the juror to reach the requisite degree of satisfaction.
12. It follows that ground 2(a) has not been made out.
13. The complaint the subject of ground 2(b) essentially relates to the fact that both the summing-up and the Black direction given by the trial judge made reference to the possibility of a majority verdict, whilst the trial judge's reference to reviewing the matter at 3.00pm and the direction he gave following receipt of the jury note, MFI P, would have indicated to the jury that at that particular point in time, a majority verdict direction would be given. It was submitted that these matters cumulatively produced injustice and the jury was diverted from its fundamental task of striving towards a unanimous verdict.
14. It does not seem to me that the reference in the summing-up to a majority verdict would have diverted the jury from their task. The remarks made by the sentencing judge in his summing-up were to the following effect: "You may individually rely upon different parts of the evidence or put a different emphasis upon parts of the evidence. However, by whatever road you travel to arrive at your decision, the final decision, either of guilty or not guilty, in relation to each charge must be the decision of all of you unanimously before it can become your verdict. As you may know, the law permits me in certain circumstances to accept a verdict which is not the verdict of all of you. Those circumstances do not arise easily and they certainly do not arise soon. Should they arise, I will deal with the matter at a later point. So when you retire I must ask you to reach verdicts upon which each one of you is agreed. If the time comes when it is possible for me to accept a verdict which is not unanimous I will give you a further direction."
15. The passing reference to the possibility that at some stage a majority verdict may be possible, a fact of which some jurors may well have been aware, would not in my opinion divert the jurors from the task of seeking to reach a unanimous verdict: see Ingham v R at [84] (a)-(b); Hunt v R (2011) 81 NSWLR 181; [2011] NSWCCA 152 at [34]. No objection was taken at the trial to these portions of the summing-up.
16. I have set out the perseverance direction given by the trial judge at [55] above. That referred to the possibility of a majority verdict perhaps arising. It should be noted that no objection was taken to this direction.
17. In Ingham v R, McClellan CJ at CL, with whom James J and Davies J agreed, stated (at [84]) that the reference to the possibility of a majority verdict in the Black direction given in that case was unexceptional, stating that where the jury was aware of the potential availability of a majority verdict (by virtue of the reference to it in the summing-up) it would be confusing not to mention it. His Honour distinguished the decisions in RJS v R and Hanna v R (2008) 73 NSWLR 390; [2008] NSWCCA 173 as the perseverance directions in those cases included indicating the time at which a majority verdict would be taken. This is not the case here as the direction only referred to the possibility of a majority verdict.
18. The third direction after the note, MFI P, made no reference to the possibility of a majority verdict. Whether or not the jury or some of its members might have inferred that a majority verdict direction would be given at the time the trial judge said the matter would be reviewed is a matter of speculation. I have set out at [60] above the interchange between counsel and the bench prior to the directions being given and it appears that once the trial judge stated the position was to be reviewed at 3.00pm, no objection was taken to the course he proposed to adopt.
19. It should be noted that it was not contended that the direction put improper pressure on the jury.
20. The majority verdict direction was criticised on the basis that it failed to encourage the jury to unanimously agree. As I have pointed out, the nature of the direction was spelt out by the trial judge prior to it being given and no objection was taken to it: see at [62] above. Further, it must be remembered that in the majority verdict direction, the trial judge encouraged the jury to undertake further deliberation if they thought it would be helpful.
21. I do not think the failure to encourage the jury to strive for a unanimous verdict in the majority verdict direction gave rise to a miscarriage of justice. The jury had indicated in the clearest possible terms that they were unable to reach unanimity and any further encouragement over that of which they had been given in my opinion would have been futile.
22. As I indicated, no objection was taken to any of the steps taken by the trial judge the subject of this ground of appeal. In these circumstances, r 4.15 of the Criminal Appeal Rules applies and the applicant has not established a miscarriage of justice.

Conclusion

1. In the result, I would make the following orders: 1. Refuse leave under r 4.15 of the Criminal Appeal Rules to rely on grounds 1 and 2(b) of the grounds of appeal. 2. Dismiss ground 2(a).
2. ROTHMAN J: I agree with the Chief Justice.
3. GARLING J: I agree with the orders proposed by the Chief Justice and also with the reasons which he gives.

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