KE v R

Court of Criminal Appeal (NSW)|2021-05-17|Before: Garling J, Beech-Jones J, Adams J

Judgment

GARLING J: The applicant (who has been given a pseudonym to protect the juvenile victim of his crimes) was found guilty by a jury of four offences, each consisting of aggravated sexual intercourse with a child between the ages of 14 and 16 whilst that child was under his authority. This is an offence contrary s 66C(4) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 12 years. The standard non-parole period of 5 years applies.
The jury returned verdicts of not guilty with respect to the three other counts on the Indictment.
An aggregate sentence was imposed of 12 years imprisonment with a non‑parole period of 8 years and 6 months. Indicative sentences for two of the counts comprised 3 years and 6 months with a non-parole period of 2 years and 7 months, and for the other two counts of 3 years and 8 months with the same non-parole period.
The applicant seeks leave to appeal upon the following grounds: "Conviction The trial judge's intervention in the appellant's trial counsel's address to the jury and subsequent insistence that trial counsel withdraw a part of her submissions to the jury and his Honour's directions to the jury about this issue occasioned a miscarriage of justice. The trial miscarried by reason of the trial judge's: 1. Refusal to give the jury a Black direction; 2. Decision to allow the return of a majority verdict without considering, pursuant to s 55F(2)(a) of the Jury Act, whether such a course was reasonable having regard to the nature and complexity of the criminal proceedings. 3. Severity of Sentence 4. The aggregate sentence is manifestly excessive."

Course of the Trial

Having regard to the grounds of appeal, it is necessary to set out the course of the trial in some detail.
As has earlier been indicated, the Indictment contained seven counts, although only four counts resulted in verdicts of guilty. The trial commenced on Monday 15 July 2019. Upon arraignment, the appellant pleaded not guilty to all counts. After the jury was empanelled, it retired whilst argument took place about the admissibility of expert DNA evidence. The jury returned and was given some opening directions by Grant DCJ ("the Judge"). The Judge then invited the prosecutor to open to the jury, followed by an opening from counsel for the defendant.
The jury was then stood down whilst the expert DNA evidence was taken on a voir dire. The context for this evidence was that the allegation at trial was one of cunnilingus by the applicant, a 30 year old man on the complainant, a 14 year old female. The defence was a denial of that conduct. Swabs were taken from the complainant's labia and vulva. Trace male DNA with the same Y-STR profile as the applicant was found on the swabs taken from both the complainant's labia and vulva. The complainant and the applicant lived in the same home and the expert evidence centred upon an "increased opportunity" for secondary transfer of the trace DNA in those circumstances.
Neither of the DNA experts was able to opine whether direct transfer or secondary transfer was more likely. Both said that either forms of transfer were possible.
After the expert evidence on the voir dire was taken, the Judge asked for the jury to return so that the evidence of the complainant could be taken, initially by the playing to the jury of the video recording of the interview of the complainant by relevant police officers. The video did not complete before the end of the day's proceedings.
His Honour then took submissions from the prosecutor and counsel for the appellant on the question of the admissibility of the DNA evidence. In the course of those submissions, the following exchange took place between counsel for the appellant and the Judge: "Ms Lewer … Obviously, I don't have the transcript in front of me, but I understand the import of the evidence from both experts in the end in relation to this case-- His Honour: Is the same. Ms Lewer: Is that one can't - His Honour: They can't say one way or the other. Ms Lewer: One can't rationally choose between them - His Honour: No, they cannot say one is more likely than the other. Whether it be direct or transferred DNA. Ms Lewer: So, rhetorically I would ask how do we? His honour: You say then it's not relevant because it becomes a guessing game Ms Lewer: How is the jury to do it? His Honour: Yes, I understand that. Lewer And how is your Honour to direct them? His Honour: I understand the point."
At the end of the exchange, trial Judge indicated that he had heard sufficient argument.
At the commencement of the proceedings on the following day, Tuesday, 16 July 2019, the Judge delivered a judgment: R v KE [2019] NSWDC 349. His Honour concluded that if the DNA evidence was relevant, a matter which had been challenged by the appellant, it "… can only be marginally so". His Honour turned to consider the provisions of s 137 of the Evidence Act 1995. He concluded by saying: "I refuse to admit the evidence sought to be adduced by the prosecution because if it does have probative value, which I very much doubt, that value is outweighed by the danger of unfair prejudice to the accused by reason of the possibility of misuse of the evidence by the jury."
Immediately after the judgment was delivered, there was a discussion between the Judge and the prosecutor about the relevance of evidence from a medical practitioner, Dr Pisani. The issue was raised by the Judge. The following exchange took place: "His Honour: That's the next point I want to raise with you Mr Crown. If you look at Dr Pisani's evidence and if you go to his opinion he says this 'No genital injuries … as described above'. What the doctor opines there is essentially the same as what the doctor said in Adams v The Queen and what Campbell J said about that was, …, it was described as being neutral. As Campbell J said, "In an accusatorial system if the evidence is neutral then there is a real question about how it can assist the Crown case. If it cannot do so it should not be admitted." Solicitor Advocate: Your Honour, can I assist you by saying I don't propose to call any evidence about an injury. I have already discussed with my learned friend, we agree it is neutral. That opinion is in almost every example unless there are very serious injuries. His Honour: I agree. Solicitor Advocate: In this case I don't think we would realistically say that the type of sexual activity is probative of it having occurred or not having occurred."
There was a further discussion about medical evidence. A concession was made by counsel for the appellant about the illegality of the conduct relied upon by the Crown if the jury accepted the version of the events given by the complainant. The prosecutor decided that, in light of that concession, he would not call any doctor.
The jury returned to Court at 10:19am and the complainant resumed her examination in chief. After some further questions were asked, the balance of the DVD of the initial interview was played to the jury. The complainant was cross‑examined. A short re-examination followed.
At about 12:50pm the complainant's mother was called to give evidence. At the conclusion of her cross-examination, the Court took the usual luncheon break. In the afternoon of Tuesday 16 July 2019, the Officer in Charge of the investigation was called to give evidence. The Crown case closed on the afternoon of that day, and the jury were excused.
On the morning of the third day, Wednesday 17 July 2019, after a discussion between the prosecutor and the Court about amending the Indictment, a short adjournment occurred and ultimately the Indictment was amended. The jury returned and were informed of the amended Indictment. The appellant was then called to give evidence in his case. The appellant's case closed shortly before midday on Wednesday 17 July 2019. The prosecutor addressed. He finished his address just before lunchtime. Counsel for the appellant commenced to address before the luncheon adjournment and continued for a period after the luncheon adjournment.
In the course of her address, an exchange took place which is relevant to Ground 1 and which it is appropriate to record in full.
It was as follows: "Ms Lewer: You also heard when I asked questions of the officer-in-charge that she made no attempts to speak to the complainant's father, or indeed the complainant's stepmother. There's no evidence from him to say that he'd notice that something was off with the complainant, that she was withdrawing, she was different, something was going on. Don't have any evidence that that's apparently happening. So again that's sort of an absence of evidence that you might consider is important in the case. The second piece of evidence we don't have here is you heard on the video the complainant say she went to a doctor after she made the allegations. But there is no medical evidence before you to support the complainant's allegations. Third, this isn't a case where you've got any forensic evidence - His Honour: Ms Lewer. Members of the jury, you might go out with the Court officer, please. IN THE ABSENCE OF THE JURY His Honour: Ms Lewer, you know full well that there's no forensic evidence in this case because I ruled it inadmissible. Ms Lewer: Yes, your Honour. His Honour: So, you can't say what you just said to the jury - that there is no forensic evidence - because I ruled it out. You can't rely upon my ruling to make the submission you just have done to the jury. You need to correct it in front of the jury. Ms Lewer: Well, your Honour, the way I hoped that I phrased it - His Honour: I'll get the jury back in and I'll tell them. Do you want me to tell the jury that I ruled the evidence out? Ms Lewer: No, your Honour. His Honour: Right. Well, are you going to correct it in front of the jury? Ms Lewer: What would your Honour like me to say? His Honour: Just withdraw what you've told the jury in relation to the forensic evidence; and you might want to consider your position too about what you said about the doctor. Because the Crown, if they wanted to, could have led the evidence from the doctor about the complaint; if they wanted to. They didn't, probably because of what's in Adams v R. Ms Lewer: Well, that's so, your Honour. His Honour: So, you shouldn't be getting forensic free kicks here by reason of the law. To say to the jury, there's no forensic evidence and there's no evidence from the doctor; that's improper. Are you going to correct it or do you want me to say something to the jury about your conduct? Ms Lewer: I will, your Honour, of course, correct it. I can address your Honour as to why I did it. But if your Honour is not minded to, I'll - His Honour: No, if you correct it, that's fine. Jury in, please."
When the jury returned, counsel for the appellant told the jury that she was withdrawing what she said "… about the forensic evidence". She invited them to disregard what she had said about that.
When counsel for the appellant concluded her address, the prosecutor indicated to the Court that he wished to raise something in the absence of the jury. The following exchange then occurred in the absence of the jury: "Solicitor Advocate: Your Honour, I think we may have an issue there. The medical - that seems to be corrected, I have no issue with that. There was -- His Honour: I was hoping Ms Lewer would actually correct it because that was part of the discussions we had but she only corrected the forensic aspect of it. Ms Lewer: I'll withdraw it. I'm sorry, I thought your Honour asked me to withdraw the forensic. His Honour: No, I asked both. Ms Lewer: I'll withdraw it. His Honour: You just talked about the doctor and the only reason why you're able to make that submission was because either the Crown adhered to R v Adams which you had suggested or you had come to an agreement with the Crown about it. Again it was improper for you to make that submission to the jury. I don't know whether that's come about as inexperience or whether it's come about deliberately to go beyond the ruling that I have made and I don't wish to make a finding about that. Mr Crown, is there anything else?" … His Honour: You can think about all of that and I'll get the jury back in and I'll start my summary to the jury and before I start that Ms Lewer is going to withdraw what she was putting to the jury in regard to evidence from the doctor. Solicitor Advocate: Your Honour, I put it on the record then that I may well consider reopening my case. His Honour: Yes, I understand that. Mr Marney, as I've said to you a number of times, I'll deal with it when it arises. Solicitor Advocate: Your Honour, I know and I think it's fair to you that I at least say it. IN THE PRESENCE OF THE JURY His Honour: Members of the jury, there's just one matter that Ms Lewer wants to say to you before I commence my summing-up to you and then I'll have a look at the note. Ms Lewer: Yes. Members of the jury, I said something about not hearing any evidence from any doctor and I withdraw that submission."
His Honour commenced his summing up a little before 3:15pm on the third day of the trial, 17 July 2019. At the very commencement of the summing up, his Honour said this: "So in relation to that, now that you've heard from Ms Lewer, there is no evidence in relation to DNA or a doctor put before you. You should not speculate about that at all. Do not speculate about it. Decide this case on the evidence you have heard. The submissions that Ms Lewer made about the doctor and the DNA been withdrawn. So you are not to take into account anything that Ms Lewer said about those two matters."
It is appropriate to record that there had been a jury note received earlier on that day, although the time at which it was received was not recorded in the transcript. It was marked MFI 9, and was in the following terms: "Why have we not been supplied DNA evidence or doctor's testimony?"
His Honour continued his summing up. Although the time is not recorded, the summing up was clearly concluded during the course of the morning and certainly prior to the ordinary luncheon adjournment.
In the course of the summing up, the following exchange occurred between the Judge and the foreperson of the jury: "His Honour: Let me now turn to the fact that [the accused] has given evidence in this trial. The accused has given evidence in answer to the case led by the Crown. We do not have the transcript yet but if you would like, I can give you a summary of his evidence and the cross examination, or I can continue with the direction and I can assure you that you will have the transcript tomorrow morning. What would you like me to do Mr Foreman? Foreperson: Probably the full transcript would be good. His Honour: Right. No summary. There goes my homework I did last night."
His Honour then went on to give directions to the jury about the ways in which they should have regard to the evidence of the accused. A little later, in the course of the summing up, his Honour informed the jury that ordinarily he would sum up the addresses of counsel: "… but as you have heard them today I do not intend to summarise them, but I do have a summary. If at any stage you want me to summarise the addresses of counsel I can provide that to you."
When, later in the afternoon, his Honour concluded his summing up, he informed the jury that he would, just before asking them to finally retire, take any further submissions from counsel as to whether there were any other matters to be put to the jury. He invited the jury to go with the court officer. At that point, the following exchange took place with the foreperson: "Foreperson: Could I ask one question, your Honour? His Honour: Yes, sir? Foreperson: Will we have available the JIRT transcript during the deliberations? His honour: No you will not. If you want to see the JIRT what has to happen is this, there is a requirement that the JIRT be replayed with all of us in Court and my practice is also to replay the cross examination which has been recorded as well, to play that so that there is there is not a displacement effect by watching the JIRT the second time around. I had one jury where we did that and during the course of watching the JIRT they want to stop but I said they had to continue it and they even sent me a note which had a kiss on it, but I said it did not matter."
After the jury left the court, there was an exchange with the prosecutor and counsel for the accused. His Honour, at the request of the prosecutor, asked the jury to return for an additional direction to be given. Then the following exchange occurred: "His Honour: Ms Lewer, you've got something you want to say to the jury? Ms Lewer: When I was addressing you earlier, I talked about a number of things where there was not evidence (sic) and as his Honour said to you, you need to focus on the evidence that is in this case. I said that there was no evidence about prior observations of the accused and the complainant and other children and also about the absence of medical evidence, which I think I have already withdrawn. But just to make it clear, I withdraw those submissions. His Honour: Thank you."
By the time that occurred, the jury had provided another note to the Judge indicating that they wished to deliberate the following day. His Honour understood the note to convey that the jury wished not to proceed any further with their deliberations on that day and wished to commence their deliberations on the following day. He acceded to the jury's request. Prior to adjourning for the day, he gave the jury the appropriate and usual warnings.

Jury Deliberations

According to the transcript, on Thursday 18 July 2019, the jury commenced to consider its verdict at 10am. Whilst the jury were deliberating, the prosecutor made submissions to the Judge about the terms of the Indictment. The Judge then moved to deal with submissions which had been made in writing that morning by counsel for the appellant. Those submissions were contained on a single sheet of paper entitled "Submissions on behalf the Accused regarding address". His Honour marked them MFI 11. The submissions sought a reconsideration of the subject matter and rulings and sought a further redirection. They were expressed in the following terms: "1. I have carefully reflected on the transcript overnight. In my closing address I sought to make a point that the jury did not have before them any forensic or medical evidence and that this was a matter that they could take into account in assessing whether the Crown had proved the case beyond reasonable doubt: Mahmood v Western Australia (2008) 232 CLR 397 at [27]. I did not intend to convey that there was, in fact, no such evidence, rather that the jury did not have such evidence before them. 2. After reviewing the transcript, I am not sure that I put to the Court the basis upon which I made the submission, before I withdrew it. I withdrew the submission on the basis that if I did not do so, the Court would do it. 3. I respectfully maintain that the submission about the absence of forensic and medical evidence is a legitimate one to make on behalf of the accused, particularly when the absence of such evidence was on the basis of the Court's finding that the DNA evidence was irrelevant, and for the medical evidence, on the basis that following from the Court's ruling that such evidence was also irrelevant. 4. If the Court is minded to reconsider its ruling about the submission, I would seek that the Court give a redirection. 5. There was no evidence of this type before the jury. However, the jury observed my address being interrupted and then my withdrawal of those submissions. I am concerned that the jury might be left with a false impression about whether there is such evidence and may be prone to speculate about such evidence to the detriment of the accused. They have already sent a note asking about this matter. 6. If the Court is not minded to reconsider its ruling, I seek no further redirection."
On the morning of 18 July 2019, his Honour said this with respect to those submissions: "I excluded the evidence of the DNA. It was improper of you [Ms Lewer] to take advantage of that ruling. In paragraph 5 of your submissions you refer to a note that the jury made. That note came about due to your improper behaviour in front of this jury. You also sought to take advantage of the Crown following what was said in Adams v R, an authority that you cited and referred to in your written submissions. It was improper for you to do so. This is not a Mahmood point at all. It was a flouting of my ruling and taking advantage of a decision that the Crown made in light of Adams v R. I should have dealt with the matter directly in front of the jury and told them that you should not have made those submissions and that they should disregard your submissions. I chose not to do that in front of the jury to avoid any adverse impact it may have had on your client. I am somewhat surprised by your current submissions. You seem to have no idea that what you did was wrong and should not have said what you said. I do not propose to say anything further to the jury."
Immediately upon concluding that, his Honour said to the prosecutor "… may I tell the jury they may start their deliberations or do you still persist". There was then a further discussion about the terms of an amended Indictment. There was then a discussion about a further jury note which was marked MFI 13 and which dealt with evidence.
The jury returned to the court 10:20am, when the Judge granted leave to the Crown to amend the Indictment in respect of Count 4. His Honour then dealt with the jury note MFI 13 in unexceptional terms. The jury then retired to further consider their verdict at 10.26am.
Sometime later the jury sent a note to the Judge indicating that they would like to re-watch the JIRT interview "… tomorrow morning first thing". The jury returned to court at 3:51pm. His Honour directly addressed the note indicating that it was possible for them to watch the JIRT interview and letting them know that his practice was that they would also be played the cross examination of the complainant by counsel for the appellant.
I interpose to note that his Honour had been informed that the totality of the JIRT interview and cross examination by counsel for the appellant would take about 2¼ hours to be played. His Honour dismissed the jury for the afternoon, indicating that the trial would commence on the following morning at 9:30am, when the interview and cross examination would be played to the jury.
On Friday 19 July 2019, the transcript records that the jury continued to consider its verdict from 9:30am and they returned to court at 10am so that the JIRT interview and cross examination could be played. That occurred with the jury seated in court and in the presence of the appellant, the Judge and counsel for the Crown and the appellant. There was a short break between 12:08pm and 12:21pm. The material finished. His Honour gave some further directions to the jury, and the jury retired to consider its verdict 12:48pm. At that time his Honour indicated that they could continue their deliberations to 1pm and then he would be sending them home. The jury in fact returned at 1:17pm and were sent home for the rest of the day and informed they should assemble on Monday morning 22 July 2019.
Prior to sending the jury home, the Judge received a further jury note which was marked MFI 15. After it was read aloud to counsel in open court an exchange with counsel occurred in the absence of the jury. The transcript records the following: "One of the jurors has written a note. It is dated 19 July. We can discuss this with counsel in the absence of the accused. What I am inclined to do is as a result of the note that has been prepared to tell the jury that a majority verdict is available but the time has not come as yet where I can accept a majority verdict, and the reason I say that is because of this note which reads: 'Your Honour, I apologise in advance to you, the barristers, the accused, the complainant and the families here today. When this case began and we the jury were advised of the nature of the case I did feel capable of carrying out the role that was expected of me. I took very seriously the oath before the trial began. Yesterday at the conclusion of the day I approached the Court attendant and privately conveyed to her that I was not coping. I following the guidelines set out by you in the manner to which a decision is to be made, that is head not heart, evidence presented, caution with a one witness case. I have your advice all written down to guide me. I, like the others, have come to a decision. My decision is a sole minority for many of the counts. Some jurors have not completely come to their full decision. I write this letter with the concerns I have for myself as others have this same freedom to write to you, if they desire. I believe myself to be a reliable member of society with commendable personal judgment [sic] skills of which I have drawn on to come to a decision about the evidence placed before us. With this in mind, I am at the minority end and I shall not be persuaded to change, nor [be] pressured to change my decision. Thus why I spoke privately to the Court attendant yesterday and expressed my feeling of I am not coping, the Court attendant dutifully inquired had I experienced any bullying or feeling of pressure. I truthfully replied "No". I am writing to you so I am not placed in a situation of pressure. When we, the jury, were not coming to a unanimous decision, I asked the foreman to ask what we do in the situation. The foreman and other jurors said "We have to stay here until we agree". Yesterday in the private conversation I had with the Court attendant, I conveyed that information for clarification. The Court attending advised "you cannot be locked up forever". This is a private message to you and not from the foreman or jury but solely for myself. I don't want the other jurors to know of this. I need your direction as I do not want to show emotion derived from unpleasant situations that could occur today as we continue deliberation proceedings. Do I ask to be excused, what do I do please, thank you. Again I apologise, I took my oath seriously and the words "beyond reasonable doubt" are how I have come to my decision.' It is signed 'Member of the Jury. Ms Lewer: Well that raises two issues, one of which is whether we should consider the discharge of this individual juror if this juror is concerned about their capacity - excuse me, I will give the accused a very short summary. Perhaps we should investigate the circumstances of that juror further and see if that juror should be discharged. His Honour: I don't think so. A juror is doing exactly what a juror should do. At the moment she is saying she is in a minority position in regard to it and that is why I think I should now tell the jury that it is permissible for a majority verdict to be given, which is 11-1, but the circumstances have not arisen, as of yet. Then simply send them away for the weekend. Ms Lewer: The only concern I have is the expression of 'not coping' and whether that is liable to change. His Honour: I wasn't planning to give a Black direction at this stage because it is far too early but I could say to them that they are all equals within the jury room and they should listen to each other. Solicitor Advocate: It is entirely a matter for your Honour but I think there are two issues. Firstly, we haven't reached that stage in proceedings where those circumstances have arisen and when we speak to the jury we of course should mention circumstances rather than time. His Honour: I was going to use the word 'circumstances'. Solicitor Advocate: Thank you, my other concern, and I raise it not seeking to push your Honour one way or the other, is that they have to some extent by implication disclosed their voting pattern and whether that leads us to a situation where the jury as a whole, whether the consideration needs to be given to discharging them all. It affects my friend's case of course much more than mine but I think in fairness to the defence case rather more than the Crown case, that at least consideration needs to be given to the fact whether that disclosure undermines either the fairness of the trial or whether it is a procedural irregularity. His Honour: I am not sure it is a procedural irregularity because any juror is entitled to communicate with a judge and it seems to me what she is saying is that she may not be the only minority view because she shared that some of the jurors have not completely come to their full decision at this stage. So they are still clearly working through it. Solicitor Advocate: I am to some extent thinking aloud but I think it is probably right I raise it. MFI#15 JUROR'S NOTE DATED 19/07/19 His Honour: I am not intending to mention the note at all in front of the jury. I will simply say to them that a majority verdict is available to them but the circumstances have not yet arisen in relation to it. A majority verdict is 11-1 but they must treat each other as equals and they should take into account the views of each other in their deliberation process. Then I will send them away until Monday. I will not pass the note around whilst the jury is here. Have a look at it later on. JURY RETURNED TO COURT AT 1.17PM."
His Honour spoke to the jury along the lines he discussed with counsel and then sent them away for the weekend.
The trial resumed on Monday 22 July 2019, when the transcript records that the jury continued to consider its verdict from 9.30am. Ms Lewer, counsel for the appellant, was not in attendance, although her instructing solicitor was. The transcript records the following: "Solicitor Advocate: I have spoken to Ms Lewer over the weekend and this morning and we have what we think may be a useful way of dealing with the jury this morning, especially after they have been away for the weekend and that is to bring them in and give them a limited Black direction. So, if we leave out the first line 'I have been told you [have] not been able to reach a verdict so far' but then just re-emphasis 'I have the power to discharge you from giving a verdict but that circumstance has not arisen at this stage. His Honour: What I was thinking of if I did bring them back would be to simply say to them that 'You recall when I spoke to you on Friday, I indicated the Court could take a majority verdict, but those circumstances have not arisen as yet. At this stage you are still required to deliver a unanimous verdict but those circumstances may change'. Solicitor Advocate: And just that part of the Black direction that just talks about them effectively listening to each other. I think that might be useful under the circumstances. His Honour: It seems to me this is just going to be a time issue and when the eight hours expires, the jury will deliver a majority verdict. Solicitor Advocate: I am in your Honour's hands in relation to that. The other thing we were discussing is potentially that part of the note which says 'I am not coping'. Whether your Honour feels that you need to speak to that juror to ensure they are taking part properly in the jury process. His Honour: I think the note clearly indicates that they are. They have got to a position and if you look at the Black direction it talks about if you honestly and genuinely think that is the correct one then you are to maintain your position and that is what she says in the letter. So I don't propose to single her out. I will just give them a general direction about majority versus unanimous and we are not at that stage but that situation may change. Solicitor Advocate: The other thing is on behalf of Ms Lewer, I apologise to say she has another case elsewhere. Mr Cumming: With respect to that discussion and I have only been involved with it with Ms Lewer and Mr Marney via email but Ms Lewer did put with respect to the Black direction that part that emphasises the need to not join a verdict they do not honestly think is the correct one. His Honour: I am not planning to give a Black direction. Let me hand down my copy of the Black direction so you can have a read of it. We will need the accused up here before we need the jury in. While that is happening, we might deal with some other matters."
His Honour informed counsel that he did not intend to give the jury a Black direction but "… I'll give them a general thing about how they can come to a majority verdict".
The jury was asked to return to court, which they did at 9.46am. Upon their return, his Honour said: "… I wanted to reinforce again what I said on Friday about a majority verdict. A majority verdict is 11-1 and the circumstances have yet to arise where I can take a majority verdict from you. When those circumstances do arise I'll get you back into Court and speak to you then about the fact that a majority verdict is available to you. So, at this stage you are still required to deliver a unanimous verdict until I tell you otherwise. As I've said the prospects of a majority verdict are available to you under certain circumstances and they have not yet arisen yet but when they do arise I'll certainly let you know relation to it.
The jury retired to further consider its verdict at 9.48am.
Both counsel agreed that the eight hour time period specified in the Jury Act 1977 would expire at 2:22pm that day. This time calculation was not challenged on appeal.
Having been informed of that time, his Honour then said that he was proposing to: "… get the jury in and then in the presence of the jury…get sworn evidence from the foreman as to whether or not with continued deliberations they would be able to reach a unanimous verdict and if he says no, I'll ask with continued deliberations are they able to reach a majority verdict, being 11-1. If he says yes, I'll tell them they can go back and continue their deliberations and can deliver a majority verdict.
It was drawn to his Honour's attention by the prosecutor that his Honour had not given the jury "a full Black direction". His Honour informed counsel that he was of the belief that, in light of the letter which the juror had written (MFI 15), that a Black direction was not going to be of any assistance, and accordingly he was proposing to proceed as he had indicated. He said this: "To allow majority verdict there are two aspects of it. First of all the Court has to be satisfied that the eight hours has expired. I am so satisfied. The next thing is I have to take sworn evidence from one or other members of the jury that the continued deliberations will not result in a unanimous verdict. If I am then so satisfied that the two precursor conditions have been satisfied and a majority verdict can be delivered. That is what I'm proposing to do."
The solicitor for the appellant reminded the Judge that counsel for the appellant had raised the view that it would be appropriate to have a Black direction which should take place separately and in advance of any majority verdict decision.
The Judge indicated that he had considered that question, but in light of MFI 15 he did not propose to take that course. His Honour then made this remark: "Once the accused is up then I will get the jury in. What the juror says is 'I shall not be persuaded to change nor pressured to change my decision'. That is purely in accordance with what the Black direction is, that if they are of that view than they are entitled to keep that view. That is when you then move into asking about the majority verdict. That is why I have taken the view that I can now safely ask about the majority verdict and take evidence from the foreperson."
The prosecutor agreed with the Judge that the juror appeared to be firm in their view, and submitted that it in relation to some of the Counts, it would be relevant for a full Black direction to be given because it would be of some assistance to the jury.
His Honour invited the jury to return at 2:37pm. Upon their return he informed the jury that circumstances relating to a majority verdict may have arisen, but he had to take some evidence from the foreperson.
The foreperson was sworn in and he was asked these two questions and gave these two answers: "Q. If deliberations continue is there any prospect that the jury would be able to reach a unanimous verdict in relation to any one of the counts? A. I do not believe so. Q. If deliberations continue, is it your view that a majority verdict which is 11-1 may be able to be reached by the jury in relation to any of the counts? A. I would say yes."
His Honour then said: "In light of that I am satisfied that a majority verdict can be brought in by you as the jury and what I would like you to do is to go back to the jury room and continue your deliberations and if you are satisfied relation to 11-1 then you may bring in a majority verdict into any one of the counts."
The jury retired to further consider its verdict at 2:41pm and about 10 minutes later sent a jury note to the Court indicating they had reached a verdict. The jury returned to court at 2.55pm and entered verdicts of not guilty on the first three counts and guilty on the 4th to 7th counts inclusive. The foreperson stated that the verdicts were of 11 of the jury. The jury was then discharged.

Ground 1

This ground challenges the intervention of the Judge during the course of counsel for the appellant's final address to the jury.
As earlier noted, at [20], it is clear that counsel was addressing the absence of evidence before the jury on both the DNA evidence and also from any doctor whose evidence of the results of the examination of the complainant may have supported the complainant's allegations.
It is also clear that the Judge intervened in the course of the counsel's submissions either to prevent such submissions being put, or else to require counsel to withdraw those which had been made. Ultimately, his Honour returned to the subject in the course of his summing up and reminded the jury of the fact that they should refrain from speculating about such evidence: see [23].
It is also apparent from the submission made by counsel for the appellant to the Court on the following day, which is set out at [29], that it was her purpose in the final address to persuade the jury by her submission that they could take into account the absence of forensic or medical evidence corroborating the account by the complainant in assessing whether the Crown had proved the case beyond reasonable doubt.
In submissions to this Court, the appellant maintained that counsel's address below was appropriate and was plainly, and properly, aimed at drawing the attention of the jury to the limitations of the Crown's case. The appellant submitted that the submissions that counsel attempted to make in her final address were available and that it was not improper for her to refer to the absence of either medical evidence or DNA evidence. The appellant submitted that the Judge's interruption at the particular point of the address, and counsel's subsequent and repeated retractions of this part of her address, made at the insistence of the Judge, unfairly undermined the proper presentation of the appellant's case and occasioned a miscarriage of justice.
I do not accept the appellant's submissions.
As is apparent, there was DNA evidence available but, upon objection by the appellant's counsel, on the basis of, inter alia, prejudice to the appellant if the evidence was led because of the prospect to the appellant of it being unfairly used by the jury, the Judge ruled that the evidence was not admissible.
To say, as the appellant's counsel did, that there was no evidence of any DNA before the jury was, strictly, correct. However, it was misleading to the jury to say so because it carried with it the implication that no DNA evidence was ever collected, nor that there was any identified DNA of the appellant found on the complainant. This was contrary to the known facts, and contrary to earlier submissions of the appellant's counsel that it would be prejudicial to admit the DNA expert evidence because the expert opinion was not clear on how the DNA of the appellant came to be on the complainant.
In those circumstances it was not open to the appellant's counsel to make that submission and the intervention by the Judge to correct that inappropriate submission was appropriate. It did not occasion any miscarriage of justice.
The appellant puts a similar argument with respect to the intervention of the Judge with respect to the submission to the jury about the absence of medical evidence.
The facts show that the prosecutor informed the Court that the Crown was not calling any medical evidence because no injury was found and that anything the doctor might say was "neutral" as that term had been used by Campbell J in Adams v R [2018] NSWCCA 303, although his Honour had described the term "neutral" as "at best unfortunate in the context of a criminal trial".
It is to be recalled that prior to the interruption by the Judge, and as set out at [20] above, Ms Lewer had said this to the jury: "The second piece of evidence we don't have here is you heard on the video the complainant say she went to a doctor after she made the allegation. But there is no medical evidence before you to support the complainant's allegation."
As is readily apparent, had the evidence from the examining doctor been called, that evidence would have put before the jury the fact that there was no observable injury. However, the fact that there was no observable injury does not support the Crown's case by corroborating the complainant case, nor did it support the case for the appellant. It is a not uncommon finding, having regard to the type of sexual assault alleged, that there would be no injury observable by a medical practitioner.
Given that counsel for the appellant put only a description of a part of the real effect of the evidence, that meant that whilst what she said the jury was literally correct, it was also misleading. It unfairly sought to take advantage of the reasonable position of the Crown that, in the circumstances, it would not call the medical evidence.
However, it is relevant to note that there is a significant difference between this matter and the decision of Adams to which the Judge referred.
In Adams there was extensive evidence, including cross-examination, before the jury about the finding of the accused's DNA on the body of the complainant. The evidence and cross-examination also touched on the method by which any such DNA may have been transferred onto the complainant, including whether that transfer may have been a secondary (or indirect) transfer. It was in the context of that dispute that defence counsel, as Campbell J noted at [134] the term "neutral" was used to describe the whole of the DNA evidence. No doubt that was a shorthand expression, which Campbell J regarded as unfortunate, used by counsel in their address to dissuade the jury from, concluding that the evidence of transfer proved that it was a direct transfer of DNA from the accused to the complainant in the course of the offences alleged.
The use, by counsel or a judge, of the term "neutral" to describe expert evidence requires the exercise of some care as the circumstances of this case show.
Here, the physical findings by the examining doctor were neither consistent nor inconsistent with the Crown case. That is to say, the findings didn't support the Crown case by corroborating the complainant nor did they detract from the Crown case by proving, or tending to prove, that the disputed events did not occur.
Due to that being the nature of the evidence, the address by counsel, which suggested to the contrary, was misleading and it was appropriate for the Judge to draw that to counsel's attention and require correction.
In my view, this ground has not been made out and I'm not satisfied that any miscarriage of justice occurred with respect to it.

Ground 2

It is convenient to deal with both parts of Ground 2 together. They both concern the integrity of the jury's deliberation and verdicts. The appellant submits that the trial miscarried because the Judge refused to give the jury a Black direction and decided to allow the return of a majority verdict without first considering, pursuant to s 55F(2)(a) of the Jury Act, whether such a course was reasonable having regard to the nature and complexity of the proceedings.
The commencing point for this consideration is the receipt by the Judge on Friday 19 July 2019 of the lengthy jury note, MFI 15, which is set out at [38].
The note, which was from a single juror, was brought to the attention of the Judge at a time apparently shortly before the jury was sent home on Friday 19 July 2019. At that stage the jury had been deliberating for about one day. The deliberations commenced at 10am on Thursday 18 July 2019. With the exception of about 15 minutes or so on that day, the jury deliberated for the entire day. On the Friday morning the jury recommenced their deliberations for a period of about 30 minutes but then the balance of that morning, with the exception of another 15 or 20 minutes or so, was spent, not in deliberation but sitting in court watching the JIRT interview and cross-examination of the complainant.
Some features of the note are apparent. They include: 1. the juror who wrote the note had come to a decision but some of the jurors had not completely come to their full decision. For many, but not all of the counts, the juror was in a "sole minority"; 2. the juror had not experienced, at the time of the note, any bullying or feelings of pressure by other jury members, but did not think that he or she would be persuaded to change the view which had been formed; 3. the juror, having received an incorrect statement from the foreman and other jurors, "we have to stay here until we agree", was concerned that she would thereby be placed in a situation of pressure; and 4. the juror was concerned to avoid showing emotion "from unpleasant situations" that could occur in the course of further deliberations.
The appellant submitted that in those circumstances, particularly where there was no prior indication that the jury were at an impasse in its decision-making, and particularly since the juror's note disclosed that not all jurors had reached their decision on all counts, what the Judge ought to have done, either before the jury left the courtroom at lunchtime on Friday 19 July 2019 or else upon their return, and before recommencing deliberations on Monday 22 July 2019, was given a direction which accorded with Black v Regina [1993] HCA 71; (1993) 179 CLR 44 at p.50.
Whilst the Crown in this Court accepted that below it had submitted to the Judge that a Black direction ought to have been given, it drew attention to the fact that the giving of a Black direction was a discretionary matter for the Judge who has the advantage of observing the atmosphere of the trial and the demeanour of the jury: see CA v R [2019] NSWCCA 166 at [270]. It submitted that the circumstances in this trial meant that the decision not to give a Black direction was an appropriate exercise of discretion.
It is not in doubt that a Black direction should only be given when the circumstances warrant. As was said in Black at p.51, the direction should only be given "should the occasion arise".
The essence of a Black direction means that it is rightly described as a perseverance direction. The Court is directing the jury to persevere with its deliberations towards a unanimous verdict, by calmly considering the evidence and listening to the opinions of other jurors. It reminds jurors that they have a duty to listen carefully and objectively to the views of every one of their fellow jurors, and that they should test the views of others by discussion in a calm and objective way so as to enable an understanding of the differences of opinion and how those differences may be perceived. It acknowledges the fact that there are matters for decision upon which the jury are disagreed.
That was the circumstance here. On some of the counts the Court was informed that the juror who wrote the note was the only juror in the minority. There were other counts where some of the jurors had not reached their final conclusion. The effect of a Black direction in this case would have been not only to invite the single juror to listen in the way directed by the Judge to the views of others, even though she maintained that she would not change her mind, but more importantly to encourage the other jurors to listen to that juror's view in a calm and considered way.
It was not known to the Judge whether there might have been other jurors who were prepared, upon further consideration, to go along with the single juror's view.
However, it seems that the Judge, having received the note, MFI 15, formed the view that the jury had already reached a conclusion on all counts with 11 jurors in favour of one outcome and one juror against it. It was the fact that the juror was "in a minority position" which led the Judge to conclude that a Black direction was not appropriate at that stage, but a majority verdict direction was.
Curiously, however, the Judge's reasoning was that it was too far too early to give a Black direction, but he thought it appropriate to give some sort of modified direction saying that the jurors were all equals in the jury room and they should listen to each other. The direction that was given was this: "I'm proposing to let you go and bring you back Monday morning, but I want to say a couple of things about that before I do release you for the day. In certain circumstances a majority verdict is available to you. A majority verdict is 11-1. Those circumstances have not arisen as yet. You are all equals in the jury room and you should take into account the views of each other when it comes to discussing this case."
The direction could not be regarded as a proper or an appropriate perseverance direction. In fact, because the direction commenced with informing the jury that a majority (11-1) verdict may in certain circumstances be available although those circumstances had not yet arisen, the clear message which the Judge was sending to the jury was that a majority verdict would be taken at an appropriate time once "the circumstances" had arisen. The addition of the words that "all jurors were equals in the jury room" and that "… they should take into account the views of each other when discussing the case" was inadequate immediately after the majority verdict indication to encourage further discussion. If anything, it would not have encouraged any further discussion, but rather it gave the impression that the jury simply had to wait before delivering a majority verdict.
In my view, what was required was for a Black direction to be given before the jury departed indicating that the Court, upon their return on Monday morning, would remind them of the direction and encouraging them on Monday morning, when deliberations resumed, to persevere and attempt to reach a unanimous verdict. It would then have been appropriate on the Monday morning to again remind the jury of the need to engage in consideration and discussion of the kind encouraged by a Black direction.
I am persuaded that the direction given on Friday at lunchtime before the jury left was erroneous. I am also persuaded that it was an error of law, falling outside the Judge's discretion, to have failed to give a Black direction.
The second part of this ground of appeal is that the Judge's decision to allow a majority verdict to be returned caused a miscarriage of justice because the Judge did not first consider and determine each of the requirements of s 55F(2) of the Jury Act.
Section 55F(2) is in the following form: "(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 deliberation."
The appellant submits that at no time did the trial Judge have regard to the first of the two requirements before a majority verdict may be returned, namely that set out in s 55F(2)(a) which required (assuming that the minimum time period had elapsed) the Judge to be satisfied that it was reasonable having regard to the nature and complexity of the criminal proceedings for a majority verdict to be returned. The appellant pointed to the principle established by authority, that each of the two limbs in s 55F(2) are essential pre-conditions which involve a judgment by the trial Judge which could only be made after submissions were taken from counsel as to when, in the particular circumstances of the case, a reasonable time could be said to have expired: see RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100 at [18]-[19] and [25].
It is also clear that where a Judge considers the taking of a majority verdict, it must be apparent that the Judge has considered s 55F(2) and, has found that each of the preconditions are satisfied: see Hanna v R [2008] NSWCCA 173 at [6]; (2008) 191 A Crim R 302.
The appellant submitted that a failure to comply with s 55F(2) involved a miscarriage of justice because the appellant had not had a trial as required by law: Tabalbag v R [2016] NSWCCA 48 at [64]-[65]; (2016) 258 A Crim R 240.
The Crown submitted that whilst it may be accepted that the Judge did not address in terms whether it was reasonable having regard to the nature and complexity of the criminal proceedings for a majority verdict to be returned, such a consideration could be and ought be readily inferred by the Court.
The Crown submission was that in the course of discussion the Judge informed the parties that he had consulted "the charge book and directions book", apparently a reference to the Criminal Trial Bench Book, and that he was aware that "to allow a majority verdict there are two aspects to it". The Crown pointed to what was then said by the Judge which it submitted indicated that he had considered and determined that the test of reasonableness (s 55F(2)(a)) had been satisfied. The Judge said: "First of all the court has to be satisfied that the eight hours as expired. I am so satisfied. The next thing is I have to take sworn evidence from one or other members of the jury… If I am then so satisfied the two precursor conditions have been satisfied and a majority verdict can be delivered."
The Crown submits that the use of the expression "the eight hours has expired" was a shorthand way of referring to the requirements of the first limb to be considered in accordance with s 55F(2)(a).
I reject this submission. To the contrary of the Crown submission, what the Judge said indicated that he regarded the expiration of eight hours, without more, as sufficient satisfaction of the first precondition. The statement of the Judge indicated that he gave no consideration to the question of reasonableness. The mere fact that a Judge states that they have had regard to the relevant authority, does not mean that everything which is said thereafter accords with that authority or can be taken to be application of the relevant authority or legal principle.
Spiegelman CJ noted in RJS at [25], that whether or not the Court considered that reasonable time had expired having regard to the nature and complexity of criminal proceedings, was, in that matter, something upon which the Court should invite submissions of counsel, and then make explicit what factors it had considered, and how the Court reached its decision that it was reasonable to invite a majority verdict. This does not need to be complex or lengthy, but clarity is required.
Accordingly, I am satisfied that the appellant has made good this ground and that a miscarriage of justice, to which the proviso does not apply, has been demonstrated.
This is not a technical or narrow point. The ordinary course of events at common law (which remains the case for Commonwealth offences) is that the verdict of a jury ought be unanimous. The High Court of Australia said in Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 at [552]: "… There is a significant difference in nature between a deliberative process in which a verdict can be returned only if consensus agreement is reached by all jurors in the process in which a specified number of jurors can override any dissent and return a majority verdict. The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward into any ultimate verdict. A majority verdict, on the other hand, is analogous to an electoral process in that jurors cast their votes relying on their individual convictions."
The NSW legislature has provided with respect to State offences for the taking of majority verdicts. It has provided two essential pre-conditions to the taking of a majority verdict. It is necessary to give full force and effect to those two pre-conditions, and it is necessary to demonstrate that each of the pre-conditions has been considered and the subject of a proper determination. Here the trial Judge did not engage in any consideration of the first of the two limbs and, accordingly, error has been shown.
In those circumstances, it is unnecessary to consider the ground of appeal against sentence.

Orders

I propose the following orders: 1. Grant leave to appeal. 2. Quash the verdicts of guilty returned by the jury on the 4th to 7th counts on the Amended Indictment. 3. Order that the appellant be retried. 4. List the proceedings before the District Court on Friday 23 July 2021 for further directions.
BEECH-JONES J: I have had the advantage of reading the judgment of Garling J which comprehensively sets out the background to the appeal. I have also read the judgment of N Adams J. In relation to Ground 1, I agree with Garling J and N Adams J. In particular, at the very least, once counsel for the defence makes a submission of the kind noted in [20] then evidence of the kind noted by Garling at [8] to [9] is relevant evidence for the purposes of s 55(1) of the Evidence Act 1995 because it is directly contrary to the point sought to be made by, or at least implied by, the defence submission, namely that the missing evidence somehow undermines the Crown case. Unless the making of such a submission is expressly disavowed by the defence then such evidence may be adduced by the Crown.
In relation to Ground 2, I do not wish to express any view on whether either the failure give a direction in accordance with Black v Regina (1993) 179 CLR 44 (a "Black direction") on Friday 19 July 2019, or the direction that was given on that day (see [42]), was erroneous in law for the purposes of the second limb of s 6(1) of the Criminal Appeal Act 1912 or itself occasioned a miscarriage of justice within the third limb of s 6(1), although I agree that it was highly desirable that a Black direction be given at that time or on the following Monday morning. That said, if a trial Judge receives information that a jury is acting under the misapprehension that they have to "have to stay here until we [all] agree" then they can advise a jury that in some circumstances, which have not yet arisen, that the Court can receive a verdict which is not unanimous (and at the same time reiterate the desirability of a unanimous verdict). It would be destructive of the necessary trust that must exist between a trial Judge and a jury for the trial Judge to be somehow restricted from correcting any misunderstanding that the jury were acting under on such a topic.
However, I agree with Garling J that it has been demonstrated that, in determining that the jury could bring in a majority verdict, the trial Judge failed to address s 55F(2)(a) of the Jury Act 1977. Instead, the trial Judge simply treated the power to allow a majority verdict as being enlivened on the expiry of the minimum 8-hour period. In that regard it is to be remembered that when that 8-hour minimum period expired the trial Judge immediately called the jury in and took evidence from the foreman. Thus, the direction to the jury enabling them to return a majority verdict was given without any communication from the jury itself about whether any difficulties were being experienced in returning a unanimous verdict other than the individual juror's note that had been sent the previous Friday. However, that note indicated that a number of other jurors had not yet made their "full decision". Otherwise, the fact that the jury had not received a proper Black direction was itself a matter of real significance to whether it was "reasonable" to allow a majority verdict. At the very least the failure to properly address s 55F(2)(a) amounts to an "irregularity or failure to strictly comply with the rules of procedure" and as such "is a miscarriage of justice within the third limb" of s 6(1) (GBF v The Queen [2020] HCA 40 at [24]; (2020) 94 ALJR 1037).
I agree with the orders proposed by Garling J.
N ADAMS J: I have had the advantage of reading the draft judgment of Garling J and agree with the orders proposed by his Honour.
As to ground 2, I agree with Garling J that the trial miscarried as a result of the manner in which the trial judge dealt with the statutory test in s 55F(2)(a) of the Jury Act 1977 (NSW). His Honour failed to address the question of whether the jurors had deliberated for a period of time that he considered "reasonable" having regard to the nature and complexity of the trial. I am also satisfied, in the circumstances of this case, that permitting a majority verdict to be taken without ever giving a Black direction contributed to the error under his ground.
As to ground 1, I agree with Garling J that it should be dismissed for the reasons provided by his Honour. I wish, however, to make an additional observation regarding the evidence of the results of the complainant's medical examination.
As Garling J has noted at 14, the Solicitor Advocate appearing for the Crown elected not to lead evidence from the medical practitioner who examined the complainant as to the results of that examination. The evidence not led was that "no genital injuries" were found. The Solicitor Advocate relied upon the decision of Campbell J in Adams v R [2018] NSWCCA 303 as the basis not to lead the evidence. Before I turn to consider what his Honour said in that decision, it is pertinent to note what this Court has previously held in relation to "neutral medical evidence" in sexual assault trials.
In R v Dann [2000] NSWCCA 185, the Crown had called a medical practitioner who gave evidence of anal dilation in a child sexual assault trial. During her evidence she agreed that constipation was another possible explanation for the dilation. On appeal it was suggested that the evidence should have been excluded because it was "neutral". Heydon JA, with whom Spigelman CJ and James J agreed dismissed the ground of appeal. His Honour then went on to observe the following at [14]-[17]: "[14] In defending the reception of the evidence, Crown counsel on the appeal (who did not appear at the trial) said: 'Such evidence is commonly called in cases of alleged sexual assault whether the complainant is male or female. It is also common in these cases for the medical evidence to be "neutral". As often as not a medical opinion is given that the examination revealed circumstances consistent with sexual penetration, but also consistent with nothing untoward having happened. Not to call such evidence would leave a gap; an unexplained aspect of the circumstances which a jury would expect to be told about. If the Crown were not to call such evidence in cases such as the present it would almost invariably invite a submission to the jury from defence counsel to the effect that the Crown has neglected an important aspect of the case in not having the alleged victim medically examined.' He also said in oral address that neutral though the evidence often was, without it the jury might engage in speculation. [15] If it is the case, and the Court has no reason to doubt it, that medical evidence of a physical examination is often neutral, it seems regrettable that the time of busy professional people with heavy responsibilities such as Dr Packer should be used up giving evidence of such limited materiality. It is also regrettable that court time should be taken up with it. These difficulties could be overcome if some other solution to the problems which would arise from its absence can be devised. [16] A solution in particular cases might be for Crown and defence to agree that the evidence not be called and to agree to join in a request that the trial judge direct the jury that the jury should attribute no significance to the absence of the evidence because it is immaterial. [17] Another technique which might be employed where the Crown proposes to call inconclusive medical evidence is for the trial judge to secure from the defence an undertaking not to comment on the absence of the evidence if the Crown decides not to call the evidence or it is rejected. That admittedly would still leave open whatever risk of jury speculation there is." (emphasis added)
The Court in R v Dann accepted that "neutral" medical evidence is relevant and otherwise admissible but need not be adduced from a medical practitioner if it can be put before the jury as an agreed fact. Alternatively, the evidence may not be put before the jury at all if defence counsel undertakes not to comment on the absence of the evidence.
In Regina v RTB [2002] NSWCCA 104 the Court (Spigelman CJ, Wood CJ at CL and Kirby J) observed the following on this issue at [24]: "The doctor said that there was no physical indicator of such an occurrence. The import of her evidence was that there would not necessarily be any such indicator. No doubt evidence of this character will often be appropriate in order to ensure that a jury does not speculate about the absence of medical evidence. Where (as here) the evidence has limited materiality, consideration should be given to alternative ways in which the issue might be handled. In R v Dann (Court of Criminal Appeal, 19.5.2000) Heydon JA (with whom Spigelman CJ and James J agreed) offered the following suggestions in respect of medical evidence which was essentially 'neutral': '16. A solution in particular cases might be for Crown and defence to agree that the evidence not be called and to agree to join in a request that the trial judge direct the jury that the jury should attribute no significance to the absence of the evidence because it is immaterial. 17. Another technique which might be employed where the Crown proposes to call inconclusive medical evidence is for the trial judge to secure from the defence an undertaking not to comment on the absence of the evidence if the Crown decides not to call the evidence or it is rejected. That admittedly would still leave open whatever risk of jury speculation there is.' Where the doctor is called, it is undesirable, however, for such evidence to be given in a form which appears to bolster the credit of the complainant, rather than in a form that the absence of a physical indicator is neutral. (In the present case, the doctor said her observations were "consistent" with the complainant's evidence and this became, in the trial judge's directions, an observation that the complainant's evidence "could be accurate") (emphasis added)
In R v RTB, this Court again confirmed that "neutral" evidence can be relevant to stop a jury speculating as to the absence of such evidence, but that agreement should be reached as to how it is placed before the jury.
A slightly different issue arose in Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74 ("R v Skaf"). The complainants in that matter had been examined by a medical practitioner who concluded that there were "no abnormal findings" revealed on physical examination. The Crown Prosecutor asked the doctor the following question in evidence in chief (at [295]): "Q. And in relation to the finding that you did make an examination and the history that you were given by this young lady… did you form the view that based wholly or substantially on the above knowledge and your training and expertise that the finding on your examination are (sic) consistent with the history obtained by you? A. That's correct, yes."
On appeal to this Court, the following was observed about this practice at [297]‑[299] (per Mason P, Wood CJ at CL and Sully J): "This evidence offended s102 of the Evidence Act and had the effect of bolstering the complainant's credibility by implying that an expert opinion in some way supported her evidence. In fact, the doctor's evidence was entirely neutral. The inadmissibility of such evidence was established in R v RTB [2002] NSWCCA 104. See also R v Dann [2000] NSWCCA 185. The evidence should not have been led. If there is a Crown practice of leading such evidence whether or not the defence indicates it takes no point about the matter, it should stop. This said, we would not uphold this ground of appeal. No objection was taken and, in the circumstances of this case, no miscarriage could have occurred. The nature of the sexual intercourse involved would not have led the jury to place any weight on this medical evidence, which was not recounted in the summing up. Rule 4 should be applied." (emphasis added)
More recently, in Adams v R, Campbell J observed the following at [100]-[101] in relation to the trial judge directing the jury about the "neutral" medical evidence in that trial: "Her Honour then turned to the expert evidence. She reminded the jury that the absence of any positive clinical findings on examination by Dr Singh was 'not consistent, it is not inconsistent, it is neutral' (CB 25). Her Honour directed the jury that the results of the physical examination 'can neither confirm nor deny the allegations' (CB 25). I must say I find this a troubling direction in the context of a criminal trial which is both adversarial and accusatorial. Evidence which is 'neutral' does not tend to prove the accused's guilt. To that extent evidence which is 'neutral' does not assist the Crown. Although, one may accept the force of evidence that positive clinical findings are not necessarily to be expected. Since writing [100] above, N Adams J has reminded me of Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74 at [297], R v RTB [2002] NSWCCA 104 ('R v RTB') at [22]-[24], R v Dann [2000] NSWCCA 185 at [16]-[17]. Those cases are concerned with the vice of using an absence of positive clinical findings as evidence bolstering a complainant's credit contrary to s 102 Evidence Act because the expert evidence is led to the effect that the absence of such findings is not inconsistent with the particular sexual activity forming the basis of the complainant's complaint. In R v RTB (at [24]) the Court said that the expert could give evidence in the 'form at the absence of a physical indicator is neutral'. However, on my reading of them, the thrust of each of the cases is that the calling of inconclusive medical evidence is undesirable and should be avoided if defence counsel will agree to make no comment on the Crown's failure to call the doctor. But my point is different. Even if inconclusive evidence is called, a question arises about the use the jury may properly make of it. For the reasons I have given, I think it undesirable for the judge to direct the jury as the learned trial judge did here. For my part, I think it is undesirable to describe that evidence as 'neutral'." (emphasis added)
And later at [134]: "I am also of the view that referring to expert evidence as 'neutral' is at best unfortunate in the context of a criminal trial. I accept that defence counsel below, in her closing address, described the DNA evidence as 'neutral'. I repeat, a criminal trial is an accusatorial and adversarial process. To the extent to which it is accusatorial it is for the Crown to prove the essential elements of the offence to establish the guilt of the accused beyond reasonable doubt. The true significance in such a context of evidence being 'neutral' is that the facts established by that evidence do not tend to prove that the accused is guilty. Use of the expression 'neutral' suggests that the evidence may merely be put to one side. Rather, the jury should be instructed, given that the evidence has been led as relevant, that evidence having that quality of 'neutrality' is not evidence which tends to prove that the accused is guilty as charged. And to that extent, it may be weighed in the accused's favour." (emphasis added)
The concern of Campbell J was not as to the admissibility of the "neutral" medical evidence but to the description of it as "neutral" by the trial judge. As the decisions in R v RTB, R v Dann and R v Skaf demonstrate, that expression has long been approved by this Court as the preferable way to describe this sort of medical evidence. It was arrived as to counter the previous practice of medical practitioners describing such evidence as being "consistent" with the complaint made and thus, erroneously, bolstering the evidence of the complainant. It is on that basis that I brought those decisions to his Honour's attention (see Adams v R at [101]). For my part, I see no reason to depart from the longstanding practice of directing the jury that such evidence is "neutral" to the extent that it does not directly support either the Crown or the defence case.
Even putting to one side the comments of Campbell J as to the use of the word "neutral", it is important to note that his Honour did not hold in Adams v R that such evidence is inadmissible and should not be led. Whatever word is used to describe such evidence, it can be relevant and admissible to avoid a jury from speculating about results they have heard nothing about. That is precisely what happened in this case. After defence counsel pointed out to the jury that there was no evidence from the medical practitioner (because it was not led) and no DNA evidence (because it was excluded), the jury sent in a note in these terms: "Why have we not been supplied DNA evidence or doctor's testimony?"
Although it seems likely that the jury would not have sent that note had the absence of that evidence not been highlighted in the defence closing, the fact remains that a jury will usually expect a complainant to be medically examined. Evidence that is "neutral" is still relevant as part of the evidence of that examination. It can also be relevant as to the nature of the police investigation overall. It depends on what issues are raised by the defence. Consistent with the approach suggested by this court in R v RTB, R v Dann and R v Skaf, the evidence is usually admitted by consent to avoid speculation. Appropriate directions can always be provided by the trial Judge to explain the basis upon which it is before the jury. **********`

Amendments 14 July 2021 - Typographical error - coversheet 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: 14 July 2021

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