Profilio v R

The Crown's submissions

1. The Crown submitted that there was no miscarriage of justice from the direction. The Crown submitted that the direction judge King SC gave contained all of the matters identified by the plurality in Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 as fundamental, in the circumstances where the jury's note did not indicate that the jury could not reach unanimous verdicts, the jury's deliberations were relatively fresh, and the trial judge was concerned about the jury considering a majority verdict.
2. The Crown submitted that the circumstances in Haile could be distinguished from this case. Further, trial counsel did not raise any difficulty with his Honour's direction.

Consideration of ground 1

1. It is appropriate to refer immediately to the direction suggested by the plurality of the High Court in Black (at [15]): "Members of the jury, I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict, but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree, if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one. Experience has shown that often, juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict."
2. In Joyce (a pseudonym) v R (2019) 99 NSWLR 562; [2019] NSWCCA 187 (now known as O'Brien v R) Simpson AJA, Walton J agreeing, said of the Black direction at [34]-[36]: "[34] …The appropriate direction… strikes a balance between important competing considerations - the desirability of finality in criminal prosecution, the "fundamental principle" earlier referred to, that is that no juror should be subject to pressure to acquiesce in a verdict to which he or she could not conscientiously subscribe, and that the process involves consideration and respect for the views of other members of the jury, and a willingness to reconsider initial views. [35] What is to be noted is that, in its opening words, it informs the jury that the judge has the power to discharge the jury from giving a verdict. It goes on to specify the limitation on the exercise of that power - it should not be exercised unless the judge is satisfied that there is no likelihood of genuine agreement being reached after further deliberation. It then emphasises two things: on the one hand, the independence of each individual juror, and the need to adhere to conscientiously held opinions; and, on the other hand, the obligation to listen carefully to and consider the views of others. [36] Those opening words are designed to remove any suggestion of pressure upon a jury, and, more importantly, any individual member or members of the jury who conscientiously holds or hold a view different from that of other members of the jury. The direction affords comfort to the whole jury that, in the event of irreconcilable differences of opinion, the jury will not be detained beyond the point that unanimity is determined to be not possible. It removes any uncertainty in the minds of the jury and individual jurors about the length of time they will be required to remain."
3. In Haile Bellew J said at [206]: "I am unable to envisage any situation in which, that circumstance having arisen, and a discretionary determination having been made that a direction is appropriate, a departure from the terms of the direction formulated by the plurality in Black would ever be warranted. On the contrary, giving a direction which departs from those terms is not something which should be encouraged. The circumstances of this case simply affirm the proposition, if indeed any affirmation were needed, that when the circumstances require a Black direction, the terms of the direction set out by the plurality in Black should be followed. The present case serves as a stark example of the problems that can arise when those terms are not followed."
4. It is clear that the circumstances in Mr Haile's trial underpinned Bellew J's emphatic statements. Those circumstances were quite different from those in this trial. That trial had taken almost three months from its commencement until the jury began deliberating, the jury had been deliberating for eight days when they sent a note to the trial judge that they were unable to reach a unanimous verdict, a juror had been discharged earlier in the trial, and after the direction was given in response to the jury's note a second juror was discharged and a third juror sought to be discharged.
5. Nevertheless, it is important that a Black direction given to a jury should refer to the judge's power to discharge the jury in order to avoid pressure being placed on a juror or a jury. In Joyce Simpson AJA regarded the avoidance of pressure on a juror to acquiesce in a verdict to which he or she could not conscientiously subscribe as fundamental (at [34]).
6. The applicant must establish, for the purposes of the "third limb" of s 6 of the Criminal Appeal Act 1912 (NSW) that there was a miscarriage of justice by reason of Judge King SC's direction to the jury in response to their questions. The proviso to s 6(1) states that the court "may, notwithstanding that it is of opinion that the point… raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
7. In considering whether a miscarriage of justice occurred in the applicant's trial I have had regard to the High Court's consideration of that concept in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, as considered by this Court in Zhou v R [2021] NSWCCA 278, Tomlinson v R [2022] NSWCCA 16, particularly per N Adams J, AK v R [2022] NSWCCA 175 per Beech-Jones CJ at CL (as his Honour then was), and Saunders v R [2022] NSWCCA 273.
8. In Hofer, Kiefel CJ, Keane and Gleeson JJ said, at [41]: "A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law, to the prejudice of the accused."
9. Gageler J (as his Honour then was) said at [118]: "What is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential… to have affected the result of the trial."
10. In Saunders Simpson AJA said at [93] "It is necessary… to establish that the error did, or might have had, a prejudicial effect on the accused's prospects of acquittal."
11. In Hofer at [123] Gageler J said: "Except in the case of an error or irregularity so profound as to be characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect', an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred."
12. It is clear that when considering the response to the jury's questions the trial judge and counsel were distracted by concerns that the jury were aware of and considering a majority verdict. Despite that, it is not clear why his Honour omitted from the direction he gave the jury that he had the power to discharge them if they could not reach agreement after further deliberation. Perhaps it was an oversight on the part of the trial judge and counsel. Regardless, during the direction his Honour referred several times to a unanimous verdict, and the last thing the trial judge said to the jury was "You must reach a unanimous verdict, whatever it is."
13. I have come to the conclusion that so informing the jury that there was no alternative but that they must reach unanimous verdicts, was a "failure to observe the requirements of the criminal process in a fundamental respect". Therefore, I would grant leave to the applicant to rely ground 1, and find that a miscarriage of justice occurred in consequence of that erroneous direction the subject of ground 1.

Ground 2: His Honour failed to give a Markuleski direction

Ground 3: The verdict of guilty in relation to count 1 is unreasonable and cannot be supported having regard to the evidence and to the verdict of not guilty returned in respect of count 2

Ground 4: The conviction in relation to count 1 is unreasonable and cannot be supported having regard to the evidence

1. In his summing up the trial judge directed the jury to separately consider the counts on the indictment, in the following terms: "Can I just say this to you, as a final thing to remind you, that you consider each of the counts on the indictment separately, and of course there is a distinction in timing between counts 1 and 2, and count 3, of some weeks, but you consider each offence separately, even though counts 1 and 2 are said to have occurred on the one occasion. You need to consider the evidence that is relevant to each of those counts, and to give separate consideration to each of those counts, from each other. There may be general relevance in the general evidence, that is relevant to each of those, but that is a matter for you, and what you make of the evidence."
2. The applicant complains that his Honour did not give a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 in terms that "If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you have to consider how that conclusion affected your consideration of the remaining counts." (As per the Judicial Commission Criminal Trial Courts Bench Book.)
3. The applicant accepts that his trial counsel did not seek a Markuleski direction either before or after the summing up, and therefore r 4.15 applies.
4. In submitting that the verdict of guilty on count 1 was unreasonable counsel submitted that the verdicts in relation to count 1 and count 2 were illogical. Counsel submitted that both counts 1 and 2 depended on the evidence of the complainant, and on the defence case the credibility of her evidence was central.
5. In Markuleski, Spigelman CJ said: "[31] Nothing in Jones (Jones v The Queen (1997) 191 CLR 439) casts any doubt on the appropriateness of the jury accepting a witness's evidence in one respect, whilst retaining a reasonable doubt about the commission of an offence about which that same witness is the only substantive witness." and "[186] … it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count. [187] Some form of direction assisting the jury in this respect should be given… 'as a general rule'. Its absence is not necessarily fatal… Furthermore… the 'general rule' does not apply 'where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore the balance of fairness.' [188] It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally. [189] On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. [190] Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts. [191] The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."
6. Wood CJ at CL agreed in a separate judgment and Carruthers AJA agreed with Spigelman CJ.
7. In Keen v R [2020] NSWCCA 59, McCallum JA, with whom Wilson J and Cavanagh J agreed, said, at [76], that the decision in Markuleski does not mean that the direction suggested there is "crucial" or must be given in every case, but that the decision whether to give such a direction must be a matter for the assessment of the trial judge according to the particular circumstances of the specific case. Cavanagh J at [109] also said that when Spigelman CJ referred to "the crucial matter" (in [191]) his Honour was referring to the content of the direction rather than the circumstances in which such a direction might be called for.
8. In this case the evidence in support of count 2 was of a different nature and quality than the evidence in support of count 1.
9. The evidence of the complainant in relation to count 2 was that when she went home after having woken up she had "blood coming out of my bum" and "when I wiped myself I had blood on the toilet paper". The accused's case in respect of count 2 was that there was no anal intercourse. There was evidence from the complainant's mother, MS, that the complainant told her she was sore in her anus. There was no other evidence of such a specific complaint by the complainant.
10. The evidence in support of count 1 was quite different. The accused did not dispute that penile vaginal intercourse had occurred, but his case was that it occurred with the consent of the complainant. In addition to the complainant's evidence there was her early complaint to her mother that she had been "raped", which, despite the jury having been directed about the legal definition of sexual assault, the jury may well have interpreted as a reference to penile vaginal sexual intercourse. There was the evidence of the disarray of the complainant's clothing, being inconsistent with consensual sexual intercourse. There was evidence of the applicant admitting to people that he had sexual intercourse with the complainant and there was evidence of the applicant admitting that the complainant was unconscious in his apartment. As I will explain below, in relation to the assertion that the verdict on count 1 was unreasonable, and despite the evidence the applicant places weight on in support of that assertion, the verdict on count 1 was not unreasonable. Had the trial judge directed the jury in accordance with Markuleski, it would still have been open to the jury to consider that there was a wealth of evidence supporting the evidence of the complainant in respect of count 1.
11. It would have been desirable in my view for the trial judge to have given the jury a Markuleski direction, but in the circumstances of this trial it was well open to the jury to distinguish between the evidence in support of count 2 and the evidence in support of count 1. Therefore the applicant has not shown that he lost a real chance of acquittal on count 1 by virtue of the misdirection of the jury (Obeid v R [2017] NSWCCA 221 at [24]). Therefore I would not grant the applicant leave under r 4.15 to rely on ground 2.

Unreasonable verdict

1. In considering the applicant's unreasonable verdict assertion, the task of this court is to make an independent assessment of the sufficiency and quality of the evidence adduced at the trial, however, making allowance for the advantage enjoyed by the jury in seeing and hearing the witnesses, as stated by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (at 493-5): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. … It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

Applicant's submissions

1. In submitting that the verdict in relation to count 1 was unreasonable, counsel for the applicant placed great weight on the evidence of the expert pharmacologist, summarised above at [45]-[47]. Counsel placed emphasis on the expert's evidence about the difference between a person being unconscious and unable to consent and blacked out and consenting, although unable to recall afterwards. Counsel accepted that the evidence of the expert was highly qualified, on the basis of the assumptions made, but submitted that it was part of the evidence which this court must consider in its independent assessment of the evidence.
2. Counsel for the applicant submitted that the evidence of Ms EL and GF was unreliable by reason of their drug use and admitted dishonesty.
3. Counsel relied on the evidence of Senior Constable Kearsley that the complainant said to her she "woke up to [the applicant] fucking her", as a statement inconsistent with the complainant's evidence.
4. In respect of that last piece of evidence I have noted that Senior Constable Kearsley made her statement of the conversation with the complainant later, from her memory. Senior Constable Rutherford, who was present with Senior Constable Kearsley and spoke to the complainant, did not give evidence of the complainant having said that. Nor did Senior Constable Crees, who spoke with the complainant. It seems that Senior Constable Kearsey's recollection of the complainant's statement to her, when she came to make her statement, was not accurate.
5. On the other hand, the complainant's evidence was quite credible. Her early complaint to her mother, and her distressed and crying state when she made that complaint to her mother, provided support for the complainant's evidence. The state of her clothing, with her underpants still around one ankle, supported her evidence of a non-consensual sexual assault. If, as was the applicant's case, the complainant had engaged in a consensual sexual encounter with him it is unlikely she would have left her underpants dangling on one ankle.
6. The evidence of GF and EL appeared credible, despite their admitted past dishonesty offences and despite their admitted involvement, to different extents, in having gone into, or knowing of people having gone into, the applicant's apartment after he was arrested for the affray. There was a consistency among the witnesses who heard and reported statements by the applicant, in the statements attributed to the applicant. Those statements admitted that there had been penile-vaginal sexual intercourse with the complainant and some of them admitted that she was passed out in his apartment, as the complainant said she was.
7. The expert's evidence was highly qualified and does not give rise to a reasonable doubt about the complainant's evidence, supported as it was by the other evidence to which I have just referred.
8. Having made my own independent assessment of the sufficiency and quality of the evidence I do not have any reasonable doubt about the guilt of the applicant in respect of count 1. Therefore he has not established ground 3 or ground 4.

Orders

1. Therefore I propose the following orders: 1. Grant leave under r 4.15 for the applicant to rely on ground 1. 2. Refuse leave under r 4.15 for the applicant to rely on ground 2. 3. Grant leave to appeal on grounds 3 and 4. 4. Allow the appeal on ground 1. 5. Quash the applicant's conviction on count 1. 6. Order that there be a new trial of the applicant on count 1. 7. Set a date for mention in the District Court at Sydney on Friday 13 December 2024.

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