CRIMINAL LAW - Conviction - Appellant charged with multiple counts of rape and 'paired' counts of sexual penetration of child under 16 - Sexual penetration counts laid as alternatives - Uncertainty on part of judge and counsel as to whether acquittal required on primary count before delivery of verdict on alternative count - Jury's apparent misunderstanding of judge's directions - Appellant convicted on one count of rape only - Crown's concession that trial miscarried - Appeal allowed - Judgment and verdict of acquittal entered.

CRIMINAL LAW - Juries - Majority verdicts - Disclosure of majorities - Jury provided judge with note setting out voting breakdown in relation to each count - Counsel informed by judge of contents but without revealing numbers contained therein - Jury previously informed judge that unanimous verdict reached on alternative count but deadlocked on others - Jury note indicated that position had changed and jury now deadlocked on all counts - Crown invited judge to give majority verdict direction - Judge initially refused but subsequently (after having seen note) agreed to do so - Crown sought discharge of jury - Whether denial of procedural fairness by judge's failure to advise counsel of precise contents of jury's note - Whether miscarriage of justice by judge's failure to discharge jury without verdict after she received information as to votes cast by jury in course of deliberations - M J R v the Queen [2011] VSCA 374 applied.

1 This appeal concerns alternative verdicts. More particularly, it concerns a trial which miscarried because a jury misunderstood what was required of them in adjudicating on alternative counts. What follows is a summary of our conclusions.

2 There are two principal classes of case in which a jury may deliver an alternative verdict. The first is where allegations in the indictment 'amount to or include' the allegation of another offence. That is the position at common law and it is now reflected in a specific statutory provision.[1] For example, where the accused is charged with intentionally causing serious injury, the allegations include the allegation of intentionally causing injury, which is therefore an available alternative.[2]

3 The second class of case is where the Crimes Act 1958 (Vic) ('the Act') creates a statutory alternative to the principal count. An example of the latter is s 425(1), which applies where a person is on trial for rape. If the jury are not satisfied that the defendant is guilty of rape or attempted rape, they may find the defendant guilty of one or other of several sexual offences specified in the subsection.

4 The present case falls into a third, non-statutory, class. In respect of each alleged act of sexual penetration, the appellant was charged with one count of rape and, in the alternative, one count of sexual penetration of a child under 16. The latter offence is not an included offence within the scope of s 239(1) of the Criminal Procedure Act 2009,[3] nor is it a specified alternative in s 425(1) of the Act. Hence it needed to be alleged as a separate count. In substance, however, it is an alternative count to rape and it should be treated in the same way for the purposes of the law governing the delivery of alternative verdicts.

5 The legal requirement is clear. The jury may not return a verdict on an alternative count unless and until they have first acquitted the accused on the principal count. This rule is, however, concerned only with the order in which verdicts are returned. It says nothing about the process of deliberation by which the jury may arrive at their verdicts. Thus, it would be an error for a judge to direct a jury that they must refrain from considering an alternative count until they had completed their consideration of the principal count.[4]

6 In the present case, the jury found the appellant guilty of one count of rape (arising out of one of four alleged incidents), but were unable to reach a verdict on any of the other charges. The guilty verdict was only arrived at after the jury had previously informed the judge that they were unanimous about the alternative sexual penetration count charged in connection with that incident, but were not unanimous about the principal count of rape. Moreover, the guilty verdict came after three days of deliberation, during which it became apparent from their repeated questions that the jury were confused about what was required of them in adjudicating on the alternative counts.

7 For reasons which follow, we concluded that in those circumstances the conviction could not stand and that a verdict of acquittal should be entered. We made those orders at the conclusion of the hearing of the appeal.

8 Section 425(1) of the Act provides as follows:

If on the trial of a person charged with rape the jury are not satisfied that he or she is guilty of rape or of an attempt to commit rape but are satisfied that he or she is guilty of -

(a) assault with intent to commit rape; or

(b) an offence against section 39 (indecent assault); or

(c) assault with intent to commit an offence against section 45(1) (sexual penetration of child under the age of 16); or

...

(e) an offence against section 47(1) (indecent act with child under the age of 16); or

(f) an offence against section 18 (causing injury intentionally or recklessly) -

the jury may acquit the accused of rape and find him or her guilty of whichever of those offences they are satisfied he or she is guilty and he or she is liable to punishment accordingly.

9 The operation of s 425(1) was considered by the Full Court in R v McCready.[5] The applicant had been presented on one count of rape. When the jury were unable to agree on the rape count, they sought direction from the judge, who said:

You do not have to start at the top and work down necessarily. You can start at the bottom of the list and work up if you want to.

was not in accordance with law and was calculated to distract the minds of the jury from proper consideration of the issue with which it was confronted at that stage of its deliberations.

... The terms of [s 425(1)], in our view, make a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused is guilty of the crime of rape. The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant. In such circumstances, we are of opinion that a direction of the kind given by the learned judge ... would ... be calculated to deflect the minds of the jury from the relevant issue and capable of inducing ... a compromise verdict not justified under s 425 of the Act.[6]

11 Read literally, what the Full Court said might have been thought to prohibit the jury from giving any consideration to the question of the accused's guilt of the alternative count 'unless and until' they had reached agreement that the accused was not guilty of the principal count. The High Court decision in Stanton[7] makes clear, however, that there is no such constraint on the jury's processes of deliberation. The only constraint on a jury considering alternative counts relates to the order in which their verdicts are delivered. The jury cannot deliver a verdict on an alternative count unless they have first acquitted the accused of the principal count.

12 In Stanton, the accused faced a charge of wilful murder. The statutory alternatives were murder and manslaughter. The judge directed the jury as follows:

You first consider wilful murder and if you're unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he is not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder.[8]

The law is quite clear. You cannot come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder.[9]

13 Although the Court was divided 3-2 on the outcome, the justices were unanimous that a direction on alternative verdicts will be contrary to law if it 'dictates to the jury a sequence of deliberation'.[10] The majority (Gleeson CJ, McHugh and Hayne JJ) cited the above passage from McCready as applicable to the case at hand, before stating:

Jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient. The question is whether [the trial judge] might reasonably have been understood to convey anything to the contrary, or whether he was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them.[11]

14 The majority concluded that the direction concerned 'the formal act of finding a verdict', and not 'a sequence of reasoning',[12] and hence was permissible. The minority (Gummow and Callinan JJ) concluded that

the directions ... failed to make the necessary distinction between the jury's freedom to 'consider' their verdicts in whatever order they choose, and their obligation to return verdicts in descending order of seriousness if they were not satisfied of the appellant's guilt on the most or more serious of the counts.[13]

accepted that the prosecution is entitled to, and the jury is bound to return, a verdict on the principal count on the indictment, and for it to be taken first.[14]

15 It follows that a jury cannot find an accused guilty of an alternative count unless they have reached a unanimous verdict of not guilty on the principal count. As will appear, however, that is precisely what the jury in the present case purported to do, that is, find the appellant guilty of the alternative count of sexual penetration without having reached a unanimous view that he should be acquitted of the principal count of rape. This case illustrates the importance - and, it should be said, the potential difficulty - of ensuring that jurors understand this requirement.

16 In March 2010, the appellant was arraigned on four counts of rape (counts 1, 3, 5 and 7), four counts of having taken part in an act of sexual penetration of a child under the age of 16 (counts 2, 4, 6 and 8), and one count of having wilfully committed an indecent act with or in the presence of that child (count 9). He was also arraigned on one count of having wilfully committed an indecent act with or in the presence of a different child (count 10).

17 As we have mentioned, each of the sexual penetration counts was 'paired' with a rape count on the basis that, if the primary charge of rape failed, the jury would then go on to consider as an alternative the 'paired' offence of sexual penetration.

18 Rape is an offence under s 38 of the Act and carries a maximum penalty of 25 years' imprisonment. Sexual penetration of a child under the age of 16 is an offence under s 45 of that Act and, in the case of a child aged between 12 and 16, carries a maximum penalty of 10 years' imprisonment.

19 After a trial lasting some 13 days, the appellant was convicted of one count of rape (count 1). The jury failed to agree on any of the remaining counts of rape or the two counts of indecent act. They were accordingly discharged without verdict in relation to those counts.

20 No verdict was taken in relation to count 2, the jury having convicted the appellant on count 1. In addition, no verdict was taken on any of counts 4, 6 and 8 because the trial judge regarded these as having been laid as alternatives to the primary counts of rape. Her Honour had previously directed the jury that they could not consider any of these sexual penetration counts unless they first acquitted the appellant of the particular charge of rape to which each count was paired.

21 The appellant sought leave to appeal against conviction. A single judge of this Court refused that application. On renewal, the application for leave to appeal was granted, and the hearing of the appeal was expedited.

22 In the course of her charge, the judge gave the following direction to the jury about how to deal with the 'paired' counts:

Each of those counts, the first eight counts, relate to the same circumstances, four different sets of circumstances, and there are two counts in relation to each time there is an allegation. So when the first count in each pair of those counts is rape, and a second count is sexual penetration of a child under 16, first you look at the first count and if you were to find [the appellant] guilty on the rape count then you would not look at the sexual penetration. If you find [the appellant] not guilty on the rape count, then you look to the sexual penetration, which does not require ... consent ... because of the age of the girl.

23 Subsequently, in the absence of the jury, the judge raised with counsel her concern as to whether the jury might be uncertain about how they should approach the question of alternative counts. She was assured by both counsel that she had dealt with this matter adequately in the course of her charge. As a result, the jury were not recalled, and nothing further was said to them at that stage.

24 On the third day of their deliberations, the jury returned to court with what her Honour's tipstaff described as 'a question'. As her Honour correctly observed, it was not so much a question as a note regarding the state of the jury's deliberations. Her Honour said:

I have a question, I'm now going to read it out. It's not exactly in a question form, it's a list. It says: Count 1, no unanimous verdict; Count 2, yes, unanimous verdict; and it just goes on to Counts 3, 4, 5, 6, 7, 8, 9 and 10, no unanimous verdict. So I don't know how far you are apart or what the difficulties are so what I want to say to you is that you really need to persevere a little longer. I don't know how long you've been actually discussing the verdict, how much consideration because we've looked at the evidence various times. But I just urge you to go back to the jury room and try to resolve your differences. Experience shows that juries often manage to resolve their differences if they're given some extra time.

25 Thus, as noted earlier, the jury had effectively found the appellant guilty of sexual penetration (count 2), without having first been unanimous that he should be acquitted of the principal count of rape (count 1). This was directly contrary to the direction which her Honour had given them, though neither counsel at this stage drew attention to that fact.

26 Later that same afternoon, her Honour returned to court and, in the absence of the jury, raised with counsel the possibility of giving the jury a majority verdict direction. Defence counsel did not, at that stage, oppose that course, but counsel for the prosecution submitted that if such a direction were to be given, it should not be done that night, but rather the following morning. Her Honour acceded to that submission.

27 The jury were then brought back into court. They were told they would be sent away until the following morning. At that stage, the transcript records the following exchange:

HER HONOUR: You've got another question?

FOREPERSON: Yes, we now don't have a unanimous verdict on all charges.

HER HONOUR: You don't?

FOREPERSON: No.

HER HONOUR: On all. So you've lost the unanimous verdict on Count 2.

FOREPERSON: Yes.

HER HONOUR: All right then.

FOREPERSON: Does Your Honour - - -

28 It appears that at that point, the foreperson handed her Honour's tipstaff a further note which gave rise to the following discussion:

HER HONOUR: Yes please, I'll have the note. Thank you. This is actually revealing the voting, as it were, which presents a difficulty, because I have here the votes as they are for the jury in relation to each count.

PROSECUTOR: I think we at the Bar Table don't need to know that at all.

HER HONOUR: No, I don't think you do. I don't think it should be read out. So I think that's what I'll do. I'll send you home and we'll come back tomorrow morning and we'll just see where we go, having a fresh start in the morning. You can come earlier if you wish to; I can come in earlier. Or if you want to come in at half past nine or ten, you're welcome to do that, and I will be here from ten o'clock on. Yes?

FOREPERSON: I'm just wondering if we come back tomorrow, (indistinct) the last day (indistinct) Monday again. (Indistinct).

HER HONOUR: I doubt very much if it'll carry on until Monday. So that's about all I can say. You know, and I presume that your discussions have been fruitful if you've got to this point, so I'm going to leave it overnight and then we'll look at it tomorrow morning with fresh eyes. Thank you. So I'll get the jury taken out, thank you. There's one thing I ought to say, sorry, before you go, and that is you understood, didn't you, that you have to consider the alternative counts in the alternative. So you look at Count 1, for example, and you only look at Count 2 if you acquit, if you find not guilty on Count 1, and if you find guilty on Count 1 you don't look at Count 2, and so on through those pairs of offences. All right, thank you very much.

FOREPERSON: Could you just repeat that?

HER HONOUR: Yes, I can. Each of those counts, the first eight counts, relate to the same circumstances, four different sets of circumstances, and there are two counts in relation to each time there's an allegation. So when the first count in each pair of those counts is rape, and the second count is sexual penetration of a child under 16, first you look at the first count and if you were to find guilty on the rape count then you wouldn't look at the sexual penetration. If you find not guilty on the rape count, then you look to the sexual penetration, which doesn't require any consent elements, it's, yes, made up, because of the age of the girl. All right? So if you need any other clarification on that, I will give it to you in the morning, but that's just because you seem to have considered every count and I'm just giving you that instruction. All right, thank you.

FOREPERSON: (Indistinct).

HER HONOUR: Tomorrow morning? Well, they can come and start deliberating, if you work out a time with Mr Smith. All right. Is there some - - -

FOREPERSON: I was only going to, just to question, Your Honour, in relation to that on the counts.

HER HONOUR: Yes.

FOREPERSON: If we were unable to come to unanimousness on the first count, the jury may then start to go to the second count.

HER HONOUR: Yes.

FOREPERSON: If you cannot find a unanimous decision on the first count, in the way the court words it, it's OK to then discuss the second count to see if we can come to unanimousness. Is that - that's what I'm trying to gather if you're saying. So as in guilty or not guilty, but if it's not unanimous - - -

HER HONOUR: You could then move to the second count. Do you want to say anything about that?

PROSECUTOR: Perhaps in the absence of the jury.

HER HONOUR: Yes.

PROSECUTOR: Perhaps if Your Honour could raise it again with the jury tomorrow morning.

HER HONOUR: I'll raise all this tomorrow morning again, and I'll just go through it, and anyway, I have to say you've clearly been very diligent and taken it all very seriously and I thank you for that, and so we'll just see how we get on tomorrow morning. Thank you.[15]

29 In the first part of this exchange, her Honour correctly restated the position: 'If you find not guilty on the rape count, then you look to the sexual penetration ...'. Her answer to the foreperson's question, however, was not correct. Put simply, it was not open to the jury to come to a verdict on 'the second count' if they 'were unable to come to unanimousness on the first count'.

30 Counsel for the prosecution made this point after the jury had been discharged for the day:

PROSECUTOR: There's difficulty with the alternatives. If the jury can't agree on the rape count, there's almost no - there's no purpose, in a way, in going to the second that's the alternative, because if they're not agreed one way or the other on the rape, then Your Honour - - -

31 Plainly, counsel wanted the jury to be directed, once again, that (in respect of each incident) they had to acquit of rape before they could come to a verdict on the alternative sexual penetration count. At that point, her Honour began to express doubts as to the correctness of that proposition.

HER HONOUR: But if they agree that there's penetration, but they don't find that it was non-consensual, they don't believe that story, then surely they can go to - if they believe there's penetration, why can't they consider the alternative?

PROSECUTOR: The difficulty is, how does Your Honour take the verdict? Because the rape count will be put to them.

HER HONOUR: Well, first of all, there'll be no verdict on the rape count but there would be a verdict on the second count.

PROSECUTOR: But they'll be asked presumably on the rape count what their verdict is and they won't be able to deliver one.

HER HONOUR: Why would they be asked? If they say, "We can't reach a verdict," then I'm not going to ask them what their verdict is. Well, we might have a look at that.

PROSECUTOR: Yes, I think it's difficult, because - - -

HER HONOUR: I mean, this is - I've never had this before.

PROSECUTOR: Nor have I, Your Honour, nor have I. I can indicate though that I did start looking at it in the interim because of the last note handed by the jury; it seemed to me that this might arise. My advice at the moment is in essence that one can't take a verdict on the alternative if there's no agreement on the primary count, but - - -

HER HONOUR: Well, that doesn't seem to make sense either.

PROSECUTOR: Look, I agree with what Your Honour says and I can understand the logic. The difficulty is - - -

HER HONOUR: I don't see the logic in them then - me having a verdict. We don't know what the verdict is.

PROSECUTOR: Well, we don't, Your Honour.

HER HONOUR: It might be not guilty.

PROSECUTOR: But it probably works either way though in a sense.

HER HONOUR: Yes, but I don't understand how they can not find a verdict in relation then to Count 4. You know, it all doesn't make sense to me, but that's why I'm concerned about whether they understand the - - -

PROSECUTOR: The alternatives.

HER HONOUR: The alternatives. But if I say to them that they - I think what they do is they just say, 'We can't reach a verdict, the only verdict we have is in relation to Count whatever'.

PROSECUTOR: Well, they don't have any verdict on any counts at this stage as I understand it.

HER HONOUR: No.

PROSECUTOR: Perhaps I'll look at the issue again overnight and see.

HER HONOUR: Look, what I think, I mean, they shouldn't have given me this, but unfortunately I've got it, but what I think is that depending on what happens tomorrow morning, I don't think I would allow a majority verdict, because of what I've got here.

32 Several points may be noted. First, the jury, having previously informed the judge that they had reached a unanimous verdict on count 2, without having been able to reach a verdict on any other count, must have misunderstood her Honour's direction to them, that they were not to reach a verdict on any alternative count of sexual penetration unless they had first acquitted the appellant of the particular 'paired' count of rape.

33 Secondly, by this stage, the jury had deliberated for more than three days, and had not been able to reach a unanimous verdict on any count. That was so despite the fact that this was really a relatively straightforward trial where the only issue was whether the complainants were to be believed.

34 Thirdly, the judge had, at this point, determined that a Black direction should be given, and had not determined whether the stage had been reached where a majority verdict might be received.

35 Fourthly, within an hour or so of having informed the judge that they had reached a unanimous verdict on count 2, the jury had resiled from that position, and indicated that they were now deadlocked.

36 Fifthly, and regrettably, the jury's note set out the exact voting breakdown in relation to each count. The judge informed counsel of the contents of the note, but did not reveal the numbers contained therein.

37 Sixthly, the judge then, of her own volition, repeated the direction that she had previously given regarding the need, before coming to a verdict on any of the alternative counts, to acquit on the primary counts.

38 Seventhly, even after having been given that direction again, the foreperson asked a question which indicated confusion on the part of the jury.

39 Eighthly, as already mentioned, her Honour's response to the question contradicted the (correct) direction she had given.

40 Ninthly, in the absence of the jury, the judge indicated that she herself was unsure of the answer to the foreperson's question. In the course of discussion, she observed that she could see no reason why, assuming the jury were unable to agree on rape, they should not move at once to consider sexual penetration.

41 Tenthly, her Honour flagged the possibility of allowing a majority verdict to be given, but indicated that she did not think she would do so, 'because of what I've got here.' In context, she was plainly referring to the note that she had been given, setting out numbers in relation to each count.

42 Finally, the judge indicated that unless the jury made it clear, the following morning, that they were 'anywhere near getting a verdict', she would discharge them there and then.

43 The following morning, the judge informed counsel, in the absence of the jury, that the provisional view that she had expressed on the previous afternoon had altered, and that she now proposed to give the jury a majority verdict direction.

44 That intimation provoked an immediate application by counsel for the prosecution for the jury to be discharged. The application was based on the fact that the jury had been deliberating for more than three days. Counsel also submitted that there was something peculiar about the state of the jury's deliberations, given that they had previously signified that they had a unanimous verdict on count 2 (which, of course, they were not entitled to bring in), but had inexplicably resiled from that position.

45 The judge summarily refused the application for a discharge. Counsel for the prosecution then reminded her Honour that the foreperson had asked a question the previous afternoon regarding alternative counts which, in his submission, had not been answered. He submitted that the jury should be told yet again, in the clearest of terms, that they could bring in a verdict on the alternative counts of sexual penetration only if they had first agreed to acquit on the counts of rape. Otherwise, he submitted, the jury might be tempted to compromise on the rape counts, given that they could agree on the sexual penetration counts.

46 Her Honour again queried counsel's submission that the jury were not entitled to bring in a verdict on a sexual penetration count unless they had first acquitted the appellant on the count of rape. It is perhaps instructive to note that her Honour characterised the situation that had arisen as 'a terrible mess.' She then went on to say that, on the previous evening, she had been thinking that she should 'simply discharge the jury'. She said she had vacillated on this point, and thought that perhaps she should simply allow the jury to bring in a verdict on one or more of the alternative counts. In any event, after further discussion, the judge reiterated that she proposed to allow the jury to bring in a majority verdict.

47 Before giving any such direction, her Honour said to counsel, 'I am not going to tell them that they have to find him not guilty on the rape count before they consider the alternative'. This was a clear change in her Honour's approach, which provoked a query from counsel for the prosecution, who reminded the judge of what she had previously said to the jury regarding this matter. Her Honour replied that the majority verdict direction that she was about to give would complicate matters, and would necessitate a re-direction as to alternative verdicts.

48 Counsel for the defence indicated that he was having difficulty in understanding precisely what the prosecutor was suggesting her Honour should say on the subject of alternative counts. He submitted that any further direction on that topic should adhere to what had originally been said, namely that the jury should not consider any count of sexual penetration without first acquitting of the relevant count of rape.

49 The judge then responded by asking defence counsel whether, in his submission, the law required there to be an acquittal of rape before sexual penetration could be considered. On this occasion, he responded - unhelpfully - by saying: 'I don't see any rule of law that would prevent that.'

50 As can be seen, by this stage of the trial, both counsel and the trial judge had changed their positions regarding this matter. Eventually, after further debate, the prosecutor submitted that the jury should once again be told that they could not consider any count of sexual penetration unless they first acquitted on a count of rape.

51 The judge indicated that she was not persuaded about the correctness of that submission. She said that she could see no reason why such a direction should be given. She then repeated her earlier statement that she would allow a majority verdict to be given, and went on to say that she proposed to tell the jury that they could consider any of the sexual penetration counts without first acquitting on a count of rape. Perhaps prophetically, her Honour said that if her understanding of the law happened to be incorrect 'I daresay I will hear about it from the Court of Appeal.'

52 The jury were then brought back into court. The judge gave them a standard majority verdict direction. The transcript then records as follows:

HER HONOUR: So remember, you should consider each one, first the more important offence which will be the ones with the uneven numbers, the ones which relate to the sexual penetrations, that is 1, 3, 5 and 7 and each of those have the alternative counts, 2, 4, 6 and 8 which you are also entitled to consider.

53 What then occurred reveals that the jury remained in a state of confusion regarding this matter:

FOREPERSON: Sorry, Your Honour, we have a question. Would you please be able to please remind the jury exactly with Counts 1 and 2, 3 and 4, 5 and 6, 7 and 8, exactly our decision on each and how we move on?

HER HONOUR: What you should do is look at the first count, which is the rape count in each of the pairs and that's the count which has the four elements - you've got them, I've given you the elements all written there. If you can't find any of those elements proved, you would then - if anyone can't find the elements proved, then you would find that the accused was not guilty because you cannot find him guilty of any of the offences unless all of the elements in relation to each of the offences are proved. Then, having looked at - let's take Count 1, having looked at that, you would then move on to Count 2 and look to see if all the elements are proved there, because that's the first set of circumstances. Having completed that set of circumstances, you'd then go on to the second set of circumstances, then the third and then the fourth. But each one, you look at each alternative for each set of circumstances. Does that answer your question?

FOREPERSON: Yes, Your Honour.

HER HONOUR: I'll ask you to go back and give it another shot, just ring the buzzer if you have any questions or if you have a verdict or if you're unable to reach whatever it is you will let us know, if you can.

VOICE (from body of court): If we found on a count and we find (indistinct) one, our foreman would then, when you go to read that out, say that was guilty or not guilty to - - -

HER HONOUR: Well it depends, yes.

VOICE (from body of court): So if we had - if we find 11 to one and our jury foreman will - - -

HER HONOUR: When he's asked what the verdict is,

VOICE (from body of court): He will - - -

HER HONOUR: Yes, that would be the not guilty or guilty because whatever - because that's taken as being - well it's a majority, not unanimous and it's what you move to after, when there's been a long process such as has been here. So I'll ask you to retire again and see what you can do.

54 The jury subsequently raised two further questions. The first concerned the difference between rape and sexual penetration. The jury said that they understood that rape required proof of absence of consent, but wanted to know whether a finding of guilt of the lesser offence meant that they were satisfied that the child had consented to the act of sexual penetration.

55 The second was, if anything, even more troubling. The jury wanted to know whether, in the event that they could not agree upon a verdict, even by way of majority, they should state that their decision was 'not guilty' or 'unable to reach a verdict.'

56 The judge then, in the absence of the jury, turned her attention to the first matter that had been troubling her, namely what direction should be given with regard to alternative verdicts. She reiterated that she would make it entirely clear that the jury should not consider any of the sexual penetration counts unless they had first determined 'guilt or not guilt' in relation to the rape counts.

57 The judge also expressed her concern that, after more than three days of deliberation, the jury, by their question, appeared to have little understanding of the basic difference between rape, and sexual penetration of a child. Indeed, her Honour indicated that she was becoming exasperated with the jury, asking rhetorically 'how long is this going to go on?'.

58 At that point counsel for the prosecution repeated his earlier submission that the jury should be discharged. Her Honour seemed attracted to the proposal, at one point saying:

I just think that I should discharge the jury, because if after five days they are asking me questions like 'what is the difference between rape and sexual penetration of a child under 16', it's really concerning.

After some further discussion, however, the judge determined to refuse the application for a discharge. She decided instead to answer the two questions that the jury had posed.

59 The jury then returned to court, and her Honour once again explained the difference between rape and sexual penetration. She then turned to the question regarding the taking of the verdicts. The transcript reads as follows:

Now, then you have asked about the taking of the verdict, and I am just going to tell you that if you are unable to reach a verdict on any of the rape counts, then you will not be asked for the verdict in relation to the alternative sexual penetration count, which accompanies it, because in order to have a verdict on the sexual penetration count, there needs to be a verdict of not guilty in relation to the rape count. As I explained to you before, they are pairs and you consider each one with its pair. So on each of the four occasions there is a rape count and a sexual penetration count. If you are unable to reach a verdict in relation to the rape count, you will not be asked for a verdict in relation to the sexual penetration count. In order to get to the point of being asked your verdict in relation to the sexual penetration, there would have to be a verdict of not guilty in relation to the rape.

So that said, if you are unable to reach a majority verdict on any count, when you come in you will be simply asked if you have reached a verdict and you will just be able to say, "No." And if you are then asked in relation to each count, you would simply say, "We have not been able to reach a verdict." Is that clear?

60 This direction was, with respect, quite correct, and expressed with great clarity. Showing their continuing state of confusion, however, the jury responded by asking for the point to be explained yet again:

FOREPERSON: Yes, sort of, Your Honour. If you could just explain that again.

HER HONOUR: Right. When you come back, you will buzz the buzzer and you will come back in and you will be asked if you have a verdict, and if you say, "We don't, we have no verdict, we've been unable to reach a verdict," then I imagine - I am not quite sure actually whether we then ask each one of you, whether we ask each count individually, but either it will be a blanket "we have been unable to reach a verdict", or then in addition maybe you will be asked each one, but I have not made up my mind yet what is to happen, but you will certainly be asked whether you have reached a verdict, and if you have not been able to reach a verdict you simply tell me that you have been unable to reach a verdict.

FOREPERSON: So that's individual counts you will ask, is that right, Your Honour?

HER HONOUR: Well, I was saying that I would not, but yes, we will. We will ask you each individual count. But just bear in mind that you will not be asked in relation to the sexual penetration counts if you do not have a verdict in relation to the rape count. Do you understand that? So instead of having eight questions, you know, two for each set of circumstances, you will be asked the one, and then if there is no - if you either have no verdict or you were to find a guilty verdict, you would not be asked in relation to the second. It is only if you find a verdict of not guilty in relation to the rape count that you will be asked about the sexual penetration count.

61 Even this explanation did not satisfy the jury. The foreperson then asked whether her Honour's most recent direction applied to counts 9 and 10, as well as counts 1-8. Self evidently, the answer to that question had to be 'no'. However, the very fact that it was asked must have been troubling.

62 The judge then sent the jury out to resume their deliberations, having told them that she would bring them back in an hour to see how they were going. As soon as the jury left the courtroom, the prosecutor took exception to her Honour's latest direction, submitting that the jury had been misdirected as to the issue of consent with regard to the sexual penetration counts. The judge did not, however, consider it necessary to re-direct on that point. At that stage, she informed counsel that if the jury had not brought in a verdict by the end of the hour, she would discharge them.

63 Shortly before the end of the hour, the jury returned their verdict of guilty on count 1. That verdict seems to have been unanimous, although the transcript does not make that clear. The jury informed her Honour that they could not reach a verdict on any of the other counts.

64 There is one additional matter to note. The appellant was tried again, some months later, on what had been counts 3-10 on the original presentment. The trial was conducted before the same judge. The issues were exactly the same, the complainant once again alleging rape and indecent act (in relation to counts 3, 5, 7 and 9), and a different complainant alleging indecent act in relation to count 10. On this occasion, the appellant was acquitted on all counts.

65 When this matter originally came before this Court, on a renewed application for leave to appeal, the Crown took a completely different approach to that which had been adopted before the single judge who first heard that application. On the renewal, the Crown not only conceded that leave to appeal should be granted, but also submitted that the appeal should be expedited. The Crown intimated that it would be conceding that the appeal should be allowed. That position was maintained when the appeal proper was heard.

66 It should be noted that the appellant sought to add an additional ground on the hearing of the appeal. Not surprisingly, he contended that the verdict of the jury was unsafe or unsatisfactory.

67 The law recognises that it may be unsafe to allow a conviction to stand, even where the trial was conducted in a wholly unexceptionable manner. In Davies & Cody v The King,[16] the High Court observed (in relation to the forerunner of s 276 of the Criminal Procedure Act 2009) that it had

[C]onsistently regarded [the duty to quash a conviction when the court thinks that on any ground there was a miscarriage of justice] as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.[17]

68 In our view, the present case provides a perfect illustration of just how a trial can miscarry in circumstances where the jury are left in a state of uncertainty, or confusion, as to critical matters. Throughout their deliberations, the jury appeared not to grasp the difference between rape and sexual penetration. They seemed to find it difficult to understand the judge's instructions regarding alternative verdicts. They deliberated for what seems have been an inordinate time, given the relatively straightforward nature of the factual issues that they had to resolve.

69 The judge was faced with the additional difficulty of having to deal with the note from the jury that set out precisely what the vote was in relation to each specific count. Regrettably, that issue arose before her Honour had finally determined to exercise her discretion to allow the jury to bring in a majority verdict. The problem that confronted the judge was almost identical to that which this Court resolved in M J R v The Queen,[18] a case decided in November 2011. There the Court held that the trial judge's failure to inform counsel of the precise contents of a note, similar to the note in the present case, meant that the appellant had been denied procedural farness. That was because the judge was in possession of information that was highly relevant to the exercise of his discretion to allow a majority verdict to be taken, but counsel was deprived of that information.

70 As was said in M J R, juries should be told that they should not, under any circumstances, reveal the numbers in favour of conviction or acquittal when conveying to the judge that they are having difficulty in arriving at a unanimous verdict.

71 If it were necessary to do so, we would have granted leave to reinstate ground 3 of the original application for leave to appeal, despite the fact that that ground was expressly abandoned before the single judge who first heard that application. We would do so on the basis that M J R had not been decided when the decision to abandon that ground was taken.

72 In our view, the approach required of a jury under s 425(1) should be applied, by analogy, to the offence of sexual penetration of a child where that offence is pleaded as an alternative to rape. That is because, as a matter of substance, sexual penetration, which in most cases carries a substantially lower penalty than rape, is treated as an alternative. It would be wrong, as a matter of principle, to deny the Crown the right to have its primary case, which is one of rape, determined by a jury, whether by conviction or acquittal. That would be the consequence if the jury could bypass the primary count, being unable to agree upon it, and move directly to the lesser alternative.

73 From a practical point of view, there is much to be said for removing any (confusing) distinction between alternatives authorised by statute, and an alternative, like the present, which is not.

74 We should say, however, that whether the offence of sexual penetration of a child should be included in an indictment, as an alternative to a count of rape, will depend upon the particular circumstances of the case. It should not be done as a matter of course. We were told that the practice of pleading rape and sexual penetration as 'paired' counts has become increasingly common in recent years. It would seem that this is done as a kind of 'insurance' against the jury being satisfied as to the act of sexual penetration, and the age of the complainant, but having doubts as to whether the child in fact consented, or whether the accused mistakenly believed that he or she did, when proof of absence of consent is not required under s 45(4A).

75 In our view, sexual penetration should only be pleaded as an alternative to rape if the defence position, as best it can be ascertained, makes the lesser offence a realistic alternative to the primary count. Thus, for example, it will be appropriate to charge sexual penetration as a separate count if there is any suggestion, in the material, that either consent, or belief in consent, may be a live issue in the trial and consent would not be a defence under s 45(4).

76 Where, however, the defence position is entirely clear, and does not involve any suggestion of consent or belief in consent (as where the accused has totally denied any sexual contact with the complainant), it will usually be inappropriate, and unduly confusing, to include 'paired counts' in the way that was done in this case.

77 If, out of an abundance of caution, a sexual penetration count is included 'by way of insurance', that count should be specifically abandoned, or withdrawn by the trial judge, once it becomes clear in the course of the trial that neither consent, nor belief in consent, is genuinely in issue. That could be done by amending the indictment[19] or, in an appropriate case, filing over a fresh indictment.[20]

78 To summarise therefore, we allowed this appeal, and entered judgment and verdict of acquittal, because:

• the jury appeared to be uncertain as to how to go about dealing with the alternative counts in this case;
• the jury displayed a surprising lack of understanding of the elements of the two key offences, rape and sexual penetration, by asking questions that indicated they had little appreciation of what they were required to determine;
• the switch from unanimity on count 2 to unanimity on count 1 had all the hallmarks of compromise;
• the length of the jury's deliberation in relation to what ought to have been a relatively straightforward issue of credibility did not inspire confidence in their verdict; and
• the revelation by the jury to the judge of the voting patterns on each count, in circumstances where her Honour had not yet determined whether to allow a majority verdict to be brought in and had failed to reveal the contents of the note to counsel, denied the appellant procedural fairness.

79 There may also have been an argument about inconsistent verdicts in this case. It is unnecessary to say anything more about that. Nor need we base our decision upon the fact that a different jury, in a subsequent trial, acquitted the appellant of all remaining charges not finally disposed of in the first trial. It is sufficient to say that that fact added to our misgivings regarding the conviction in the first trial.

80 It was because we concluded that the trial had so many unsatisfactory features, and because we considered that the case against the appellant was itself of doubtful strength, that we determined that there should be no new trial in this case. The Crown acceded to that course.

81 We arrived at our decision fully cognisant of the fact that, as a matter of law, there was evidence to sustain the verdict. However, 'we considered that on the whole of the evidence, it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. [21]

[1] Criminal Procedure Act 2009 s 239(1): see Pollard v The Queen [2011] VSCA 95; (2011) 207 A Crim R 124, [33] ('Pollard').

[2] R v Kane [2001] VSCA 153; (2001) 3 VR 542, 584-5 [105].

[3] Pollard [2011] VSCA 95; (2011) 207 A Crim R 124, [34].

[4] Stanton v The Queen [2003] HCA 29; (2003) 77 ALJR 1151 ('Stanton').

[5] [1967] VicRp 36; [1967] VR 325 ('McCready')

[6] Ibid 329 (emphasis added). The highlighted passage is paraphrased in the Criminal Charge Book published by the Judicial College of Victoria: 3.9.1.1 [40].

[7] [2003] HCA 29; (2003) 77 ALJR 1151.

[16] [1937] HCA 27; (1937) 57 CLR 170.

[18] [2011] VSCA 374 ('M J R').

[19] Criminal Procedure Act 2009 s 165(1).

[20] Pollard [2011] VSCA 95; (2011) 207 A Crim R 124, 132-134, [35]-[42]; s 164 Criminal Procedure Act.

[21] See generally M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-493 and more recently S K A v The Queen [2011] HCA 13; (2011) 243 CLR 400.