RJS v Regina

Child Protection (Offenders Registration) Act 2000 LEGISLATION CITED: Crimes Act 1900, s61M(2) Crimes (Sentencing Procedure) Act 1999, s12 Jury Act 1977, s55F

Black v The Queen (1993) 179 CLR 44 Dyers v The Queen (2002) 210 CLR 285 Parker v The Queen (1997) 186 CLR 494 CASES CITED: R v VST (2003) 6 VR 569 R v VST [2003] VSCA 35 Swansson v R (2007) 168 A Crim R 263 The King v Wilkes (1948) 77 CLR 511

PARTIES: RJS (Appellant) Regina (Respondent)

COUNSEL: P Hamill SC, M King (Appellant) P Ingram (Respondent)

SOLICITORS: J Witmer, Solicitor for Legal Aid Commission of NSW (Appellant) S Kavanagh, Solicitor for NSW Director of Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/950

SPIGELMAN CJ SIMPSON J HARRISON J

Wednesday 8 August 2007 RJS v REGINA Judgment 1 SPIGELMAN CJ: The Appellant was found guilty by majority verdict of an offence of indecently assaulting TG who was then a person under the age of ten years, namely nine years. This was an offence contrary to s61M(2) of the Crimes Act 1900. 2 On 27 September 2006, the Appellant was sentenced to a term of imprisonment consisting of a non-parole period of six months and a balance of term of six months. His Honour ordered that execution of the sentence be suspended pursuant to the provisions of s12 of the Crimes (Sentencing Procedure) Act 1999. There is no appeal against sentence nor any Crown appeal. The fact that the non-parole period of the suspended sentence has already expired and that the full sentence will soon expire is a matter relevant to the determination of whether this Court should order a new trial. 3 The offence was said to be committed by the Appellant, during the course of giving TG a piggyback ride, rubbing her back and placing his hand under her singlet top and down her swimmer bottoms on a single occasion. The complainant, as is usually the case, is the only witness who gave direct evidence of the assault. There was a considerable body of contextual evidence to which I will refer when considering the final ground of appeal.

The Majority Verdict Issue 4 Section 55F of the Jury Act 1977, which permitted for the first time the taking of majority verdicts from a jury in New South Wales, commenced on 25 May 2006. The present trial was conducted between 13 June and 23 June 2006. 5 The first basis for the Appellant's challenge is that s55F was invoked in circumstances where it was not permissible to do so. Accordingly, the majority verdict was either a nullity or involved such a failure of compliance with the procedural requirements of a trial as to constitute a miscarriage of justice in the sense that the Appellant did not get a trial according to law. On this appeal the Crown accepted the latter characterisation and it is unnecessary to choose between them. In either event, this Court would proceed to determine the Appellant's final ground of appeal to the effect that the verdict is unreasonable and cannot be supported having regard to the evidence. (See Swansson v R (2007) 168 A Crim R 263.) 6 The second ground of appeal relating to the majority verdict issue is to the effect that his Honour erred in the directions he gave to the jury as to the availability of a majority verdict. It is convenient to consider this ground together with the first ground. 7 Section 55F of the Jury Act 1977 provides: "Majority verdicts in criminal proceedings (1) This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons. (2) A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation. (3) In this section: 'majority verdict' means: (a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or (b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned. 'unanimous verdict' means a verdict agreed to by all members of the jury. (4) A verdict that the accused is guilty of an offence against a law of the Commonwealth must be unanimous. (5) This section extends to any alternative verdict that is available to a jury at law." [Emphasis added] 8 The jury retired to consider its verdict at 12.15pm on Thursday 22 June 2006. 9 At 1.40pm on Friday 23 June 2006, being a time not recorded on the transcript but not contested by the Crown, the jury sent a note in the following terms: "Your Honour, we wish to communicate to you that, after exhaustive discussion and deliberation, the jury agrees that it would make no more progress in reaching the unanimous verdict this case requires. We now seek your direction on our current position." 10 His Honour observed to counsel that the time at which a majority verdict could be taken was "getting close". The Crown Prosecutor suggested that he and counsel for the Appellant had agreed it would be about 2.30pm and his Honour indicated that he would proceed on that basis and he said: "I think I'll bring them in and give them a short direction in accordance with Black, but I think I will also tell them that at 2.30 if they were unable to reach a unanimous decision, that provided eleven of them agreed, they would be entitled to return a verdict." 11 The Crown Prosecutor and counsel for the Appellant agreed on this course. The jury returned at 2.15pm and his Honour gave them that following direction: "HIS HONOUR: Members of the jury, I have received your note saying that you are unable to reach a unanimous verdict. The trial judge, of course, in that situation has the power to discharge the jury and order a fresh trial, but we are generally reluctant to do that at this stage. The reason for that is this. The experience of the courts is over the years that juries who fail to agree, even after some lengthy deliberation, can often, after some further deliberation, resolve their differences. Can I say this to you, members of the jury. It is very important in your deliberations that you listen carefully and weigh up each other's opinions and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences that you may have in your views about the case. It may convince you that your original opinion is wrong. Nothing that I can say here is meant to encourage you to return a verdict otherwise than in accordance with your oath. But, as I say, the experience of the courts is that even after some further short discussion at times, particularly when you consider calmly and dispassionately each other's opinions, agreement can be reached. So I am not going to discharge you just yet and I will ask you to retire and further deliberate on the verdict. I certainly will not be keeping you here beyond today, so you need not worry about that. If, in fact, after further discussion you are unable to reach a unanimous verdict, then there is now in New South Wales as of very recently a provision whereby if eleven of you agree then a verdict can be returned. I have not mentioned that to you before because the law provides that that can only happen if the jury have been deliberating for eight hours. We have kept a note of the times and certainly by 2.30 today you will have been deliberating for eight hours. If 2.30 came and you were unable to reach a unanimous decision but eleven of you agreed, then you would be entitled to return a verdict at that time. So with those further matters in mind, members of the jury, can I ask you to retire and further consider your verdict." 12 The jury retired at 2.18pm and returned at about 2.45pm. The jury provided a final jury note: "Your Honour, the jury has reached a verdict of eleven to one and from our discussions, further to your advice, that decision will not be altered with further deliberation." 13 The jury returned to the court and a verdict of guilty was pronounced at 2.45pm. 14 The first criticism that is made by the Appellant of the trial judge in this respect is that his Honour did not in fact determine what "period of time" for deliberation was "reasonable having regard to the nature and complexity of the criminal proceedings". I have set out above his Honour's observations in this respect. It does appear that his Honour proceeded on the basis that the only pre-condition for the return of a majority verdict was if eight hours had elapsed. 15 The second criticism the Appellant makes is that his Honour failed to examine any juror on oath and, accordingly, could not have been "satisfied … that it is unlikely that the jurors will reach a unanimous verdict after further deliberation" within s55F(2)(b). Again, I have set out the consideration given to this matter. This proposition is also clearly correct. 16 The Crown conceded that both these errors were made and, accordingly, that a miscarriage of justice had occurred and that the Appellant had not received a trial according to law. This concession was properly made. This ground of appeal should be upheld. 17 The introduction of a majority verdict system in New South Wales was a novelty in this jurisdiction, although it has existed in other Australian jurisdictions for some time. The reasons for the change need not be entered into. 18 The requirement of unanimity on a jury in a criminal case is a long-standing principle of a fundamental character. When Parliament modified this principle it did so by inserting two significant qualifications expressly requiring the attention of the trial judge. The first was that the trial judge had to make a judgment as to whether or not a "reasonable" period had elapsed in all of the circumstances of the trial. The second was to require a formal procedure for examining at least one juror, perhaps more, to satisfy the judge that it was unlikely that a unanimous verdict would be reached. 19 These two matters are essential pre-conditions which Parliament required to be met. Each precondition involves a judgment by the trial judge of a character with which this Court is reluctant to intervene. In the present case, however, on the materials before the Court, the trial judge failed to address either matter. Either would, in my opinion, be sufficient to vitiate the trial. In my opinion, a miscarriage of justice has occurred in the sense that the Appellant had not received a trial according to law. 20 The second ground of appeal with respect to his Honour's directions to the jury focused on the timing that the directions were given. 21 His Honour gave the jury a direction in accordance with Black v The Queen (1993) 179 CLR 44 urging them to continue to attempt to reach a unanimous verdict. However, the effect of that direction was, the Appellant submitted, undermined by the fact that at the same time his Honour directed the jury that in 15 minutes they could in fact resolve upon guilt with a majority of 11. This invitation to just wait, the Appellant submitted, was compounded by his Honour's statement to the jury that they "need not worry" because the Court "will not be keeping you here beyond a day". 22 In my opinion, his Honour did undermine the effect of the Black direction. No further direction should have been given at this time. 23 Phillips JA said, with the agreement of Winneke P and Buchanan JA in R v VST [2003] VSCA 35, in a passage not reproduced in the report of this case at (2003) 6 VR 569: " …. Where a jury returns pleading deadlock shortly before the expiry of the six hours referred to in s.46, then, even in a case where the judge considers that six hours is a reasonable time for deliberation, it would perhaps be wiser for the judge, instead of mentioning the possibility of taking a majority verdict once the six hours has expired, to send the jury back to their room to persevere in their deliberations, for the time being. In this case, that would have meant sending the jury back at, say, 4.30 p.m. to deliberate for a further period and then at, say, 5 p.m., recalling them to the courtroom without any need for prior notice, to see if they had reached a unanimous verdict. If at that point the foreman said that they were still deadlocked although 11 were in agreement, it would be time enough for the judge to consider s.46(2) and (3). That should avoid any problem such as was agitated on this application." 24 The Victorian Act there under consideration was in different terms to s55F of the Jury Act and I would not wish to be taken to endorse the proposition that the trial judge should recall the jury, without notice of their inability to reach a unanimous verdict, as soon as a "reasonable time" had expired. In particular, the requirements of examining a juror on oath means that the determination for which s55F(2)(b) calls, requires additional procedures to those envisaged by the Victorian Court of Appeal. 25 In the present case, the course of events should have been to give the Black direction and then, in the absence of the jury, to take submissions from counsel as to when, in the particular circumstances of this case, a reasonable time could be said to have expired. It is inappropriate to determine that there should be a general practice about whether the trial judge, having determined what was such a reasonable time should, upon the elapse of that time, intervene with the jury's deliberations. What should occur will vary from case to case. 26 In many cases, the trial judge may well decide to await a further indication from the jury that it is unlikely that the jurors would reach a unanimous verdict. That is not to say that after the passage of a further lengthy period of time, a matter to be determined by the trial judge, some kind of inquiry to the jury would constitute legal error. This is a matter with respect to which the practice should develop in accordance with the experience of the implementation of the majority verdict system over time. It does not require any definitive guidance from this Court.

Is the Verdict Unreasonable? 27 The Appellant contends that this Court should not order a new trial on the basis that the verdict was unreasonable and cannot be supported having regard to the evidence. 28 As is usually the case in sexual assault matters, the direct evidence of the actual assault is given only by the complainant. In the present case there is a significant body of contextual evidence. There is no ground of appeal that any of this evidence was not relevant and admissible, nor that that trial judge failed to give appropriate directions with respect to use of the contextual evidence. The Appellant contends that deficiencies, particularly alleged contradictions, in the evidence of the complainant, and differences, particularly alleged conflicts, in the contextual evidence are such as to establish this ground of appeal. 29 On the night of 18 November 2005 there was a party at a house in a suburb of Sydney. The residents of the house and several adults who lived nearby and their children, including the complainant then aged nine, attended the party. The Appellant, who lived across the road, also attended. During the course of the night, the Appellant piggybacked the complainant from outside the house and to the local school. Several of the other children also went to the school. The Crown case was that the Appellant rubbed the complainant's back and leg under her clothing whilst giving her a piggyback on the stairway of the school. Although the evidence suggested that such contact occurred on more than one occasion, the Crown relied on one occasion only in support of the charge in the indictment. 30 There were five child witnesses, who gave evidence by way of recorded police interviews and viva voce. Several of the adults who were at the party were also called to give evidence. The Crown also led evidence of complaint, of DNA testing and of the complainant's blood alcohol level, as the evidence suggested that she had been drinking alcohol on the night. 31 The complainant said in her recorded police interview, conducted the day after the offence, that the Appellant gave her vodka during the night and gave her piggybacks. She said that he made her go to his house with two of the boys from the party and made them watch a movie of naked women while he showed her all the rooms in the house, one of which he called the "nudie room". She said that he told her, "We've got a secret, a big secret" and called her a "a sexy babe". She replied, "You're too old for me and I wouldn't go out with you even if you were more my age". 32 In relation to the piggybacking, she said that he pulled her legs up and pulled her on his back. She said that her arms were not hanging on because she was trying to get off. His arms were around the back of her legs. He "was putting his hands down the back of [her] pants" and "up [her] top". He was "rubbing [her]", "rubbing his hands" down the back of her pants, "every now and again, just all the time" and "put his hands up the back of [her] top" and "was rubbing". She said she was wearing board shorts, swimmers, a blue top, a jacket and shoes. He did not say anything when he was rubbing her. His hands were "inside the swimmers". He rubbed "around in a circle". He rubbed her "on the side" of her bottom. When asked how many times he rubbed her when they were piggybacking, she replied, "ten". She also said that he kissed her on the face for "about five seconds" on her teeth, mouth and lips, "about ten" times. 33 DNA evidence was directed to establishing whether any of the Appellant's DNA could be found to corroborate the complainant's allegations of touching and kissing. None was found. The only relevant technical evidence was the complainant's blood alcohol level, which confirmed that the complainant had ingested a significant amount of alcohol. 34 As is often the case, counsel for the Appellant relied on differences in the version of the events given by the complainant at different times in the course of making complaint and giving evidence. Such differences were said to undermine her credibility as a witness. 35 The contextual matters which were said to manifest the Appellant's sexual interest in the complainant, and about which there was divergent evidence, some of which was said to reflect upon the reliability of the complainant as a witness included: · The manner in which the Appellant gave TG piggybacks; · Whether he or she instigated the piggybacking and when; · Whether she manifested any resistance; · Whether he gave her alcohol; · Whether he referred to her as a "sexy babe", or mentioned a "secret", or called his bedroom a "nudie room"; and · Whether he put on a pornographic film for the children to watch. 36 Counsel for the Appellant referred to evidence of the first complaint made by the complainant to her friend ES on the night and drew attention to the fact that there was no reference to touching. Nevertheless, there was reference to him giving her a kiss, calling her his "sexy girl" and piggybacking her against her wishes. 37 Counsel also referred to the fact that when TG first spoke to her mother it was only about how the Appellant had given her alcohol. However, that was in the context of her mother raising the apparent intoxication of TG. Furthermore, when her mother raised the matter again, TG set out her full complaint including the touching under her swimmers and under her shirt, the reference to the Appellant's "nudie rudey" room and the fact she had seen a pornographic video. 38 Counsel for the Appellant referred to the evidence at trial about the mode of piggybacking. She said that her legs were around his hips, she was not on his shoulders. Her evidence at trial was that he had one hand under her legs and the other behind her back. Counsel submitted that this was either physically impossible or so improbable as not to be believable. I do not believe that to be the case. No doubt support by one arm only may have been difficult over an extended period of time, but it appears to me not to me to be an improbable method for a short time. 39 Reliance was also placed on TG's evidence that the Appellant had "jumped the fence" to get into the school grounds. It was submitted that the height of the fence made that unlikely. However, there was no exploration of what she may have meant by that phrase. It is, in any event, a minor detail for purposes of assessing reliability. 40 Submissions for the Appellant referred to a number of peripheral details: · TG said that DS had given her one drink, whereas in her police interview she had said only the Appellant had given her alcohol. This is a trivial difference. · TG gave evidence that the Appellant had dragged her across the road but agreed that she said nothing to him and did not try to get away. However, the transcript states that she answered "yes" to the question about trying to get away. · TG complained to the Police Officer about how the Appellant had forced her shoulders hard and hurt her, but did not mention that to Dr Russell a few hours later. I can see no relevance in this unless she had said something about her shoulder continuing to hurt, which she did not. · It was submitted that there was inconsistency about the alleged kissing in that in her evidence she said it was on the right hand corner of the mouth, but in her earlier interview she had said it was on her cheek, lips and mouth. However, she explained that the evidence she gave in court was the only occasion that she could remember. 41 The Appellant referred to the complainant's evidence that she had been piggybacked part of the way back from the school and submitted that this contradicted her earlier evidence about jumping off the Appellant's back and running back after the alleged assault. In this regard, the Appellant relied on other evidence, to which I will refer below, which was also consistent with an absence of any perceived adverse reaction, by permitting herself to be piggybacked later that night. 42 The two passages of evidence are:

"(1) Q. So when you say you were going down the steps and the accused had his hands underneath your top, how did that end? A. Like I jumped off and ran. Q. So did you say anything to him before you did that? A. No. Q. And where did you run to? A, Back to … house. … (2) Q. Now I want to suggest to you that you all then returned to the … place? A. Yeah. Q. And you were walking some of the way and getting piggybacked the rest? A. Yeah." 43 I do not find this to be a significant contradiction, particularly as the cross-examiner put the words in her mouth on the second occasion. It was, of course, open to the jury to discount the complainant's evidence to the effect that she reacted adversely to the assault. The inconsistency is not, in my opinion, of any real significance. 44 In any event, any witness, particularly a nine-year-old girl, could well come to believe that she had in fact reacted in the way she had come to understand she should have reacted at the time. That her conduct at that time may have revealed resignation or confusion rather than resentment does not reflect upon her reliability about the critical events. In such a context inconsistencies in the course of recounting such details by a nine-year-old girl, especially one affected by alcohol, should be expected. 45 The Appellant also relied on the following alleged concession as an inconsistency with TG's evidence about the Appellant referring to his "nudie / rudey room". "Q. And DS yelled out "it's his nudie / rudey room"? A. Yes Q. And RJS said to you, "No it's my mother's bedroom"? A. Correct. Q. So you see TG you've just agreed that it was DS that yelled out "it's his nudie / rudey room", it wasn't RJS that said that at all was it? A. Pardon? Q. You just agreed with me that is was DS that yelled out, "no it's his nudie/ rudey room" didn't you? A. Yes. Q. So I put it to you that it wasn't RJS that called it the nudie / rudey room, it was DS? A. Correct." 46 This is an unfair cross-examination for a child. The first answer did not carry any implication that it was only DS who used the words. The cross-examiner proceeded as if he had already trapped the witness, which he had not. Any concession made in such circumstances, even if it were not as hesitant as it was, is worthless. 47 In any event, although she did say in chief that the Appellant used the words "nudie / rudey room", this was apparently based on an ambiguous passage in her police interview. Her evidence in chief was: "Q. And in your interview you were telling the police officer that when the boys were at the accused house that he's shown you around? A. Yeah. Q. And that specifically he's shown you his bedroom? A. Yeah.

Q. And you say in your interview that he called it something, it's a little bit unclear, it was either the nudie / rudey room or something else? A. Yeah.

Q. What words did he use do you remember? A. Nudie /rudey.

Q. Rudey or rooty? A. Nudie / rudey.

Q. So rudey as in something is rude? A. Yeah." 48 The words actually used by the Appellant were not the critical part of the evidence. The critical fact was that he had shown her the bedroom using words that had a sexual overtone. She never wavered in that respect. Furthermore, DS gave evidence that the Appellant had referred to the bedroom as his "rooting room". 49 The Appellant referred to evidence which failed to confirm, or which contradicted, aspects of the complainant's evidence: i) As to piggybacking: · DG was present at the relevant times, and he observed no rubbing or kissing or other inappropriate behaviour. · DF, who saw the group returning from the school, also observed no sign of distress. ii) As to the complainant's reaction: · DF said he saw no sign of distress by the complainant on the way back from the school. · DG said that the Appellant gave the complainant a piggyback later that night after the alleged assault. · DF also said that later that night the complainant had asked the Appellant to give her a piggyback. · Such requests were also confirmed by DS who otherwise gave evidence corroborative of the Complainant. iii) As to alcohol consumption: · DG denied that the complainant and her friend ES were drinking alcohol. · DF thought that the complainant received alcohol from her mother. · DS, who otherwise supported the complainant's version, had heard the complainant refer to her mother for giving her alcohol. iv) As to pornographic videos: · DG said that the complainant was not present when he watched it. v) As to kissing · DS, who was present, failed to corroborate TG's version of one occasion where she had said kissing occurred. 50 In response to these submissions, the Crown relied on the evidence of DS who, at 16, was the oldest child witness. He gave evidence that he had twice seen the Appellant rubbing the back of the complainant under her clothing as he gave her a piggyback ride and that he told the Appellant to stop doing that and to put the complainant down. DG also gave evidence that he had seen the Appellant give the complainant a number of vodka drinks and that he heard the Appellant refer to the bedroom as his "rooting room". 51 Counsel for the Appellant relied on the difference between DS on the one hand and DG and DF on the other. Particular emphasis was placed on a passage in his evidence where DS said that the Appellant was giving TG a piggyback with her legs supported by both his arms and that this contradicted his evidence that one arm was behind TG's back. There was no such contradiction. The cross-examination moved on after the reference to supporting her with both arms. DS did not say or even suggest that that was how she was being held at the time he saw the Appellant's hand on TG's back. Indeed, he said that at that time he could not remember how the Appellant was supporting TG. 52 Such contradictions and inconsistencies as exist are, in my opinion, inconsequential. They are well within the normal bounds of what always occurs when a number of people have to recollect the surrounding details of events. That proposition is reinforced by the fact that the witnesses were children who were, at the time, affected by alcohol. Indeed, there would have been more cause for concern if there were no such contradictions and inconsistencies. 53 The evidence of TG is clear and consistent in all relevant respects. She was forthright in her rejection of the attempts by the cross-examiner to have her accept qualifications to her evidence. The evidence of DS corroborated her to a significant degree. 54 The Appellant's ground of appeal that the conviction was unreasonable should be rejected.

A New Trial 55 The Appellant submits that in the exercise of the Court's discretion to order a new trial, the Court should have regard to the body of authority which indicates clearly that one of the factors to be taken into consideration is the fact that the Appellant has served, or substantially served, the actual prison sentence imposed upon him or her. Reference was made to a number of the relevant authorities including The King v Wilkes (1948) 77 CLR 511 at 518; Parker v The Queen (1997) 186 CLR 494 at 520 and 530; Dyers v The Queen (2002) 210 CLR 285 at 297 and 314-317. 56 Plainly this is a relevant consideration. In the present case, the Appellant has served the non-parole period and a substantial proportion of the head sentence. However, the weight of this consideration is mitigated by reason of the fact that the sentence was in fact wholly suspended. More importantly, however, the principal sting by way of punishment in the present case was not the sentence itself but the conviction. 57 Whether there should be a new trial is a matter that should be determined by the prosecuting authorities. As Gaudron and Hayne JJ said in Dyers supra, where the sentence had expired: "[23] … The decision whether to continue a prosecution is ordinarily a decision of the executive, not the courts. There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal. To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than a trial by a jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant. That being so, there should be an order for a new trial despite it being probable that the prosecution will not proceed further." 58 The significance of protection of the public from persons convicted of child sexual offences is reflected in the registration requirements of the Child Protection (Offenders Registration) Act 2000. This regime reinforces my conclusion that this Court should order a new trial notwithstanding the fact that, if the Crown decides to proceed, it is likely that only the balance of the Appellant's suspended parole period, would be imposed. 59 The orders I propose are:

1. Appeal allowed. 2. Conviction quashed.

3. A new trial occur. 60 SIMPSON J: I agree with Spigelman CJ. 61 HARRISON J: I agree with Spigelman CJ. **********

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