Vella v R

Background

1. On 20 August 2020, the applicant was arraigned in the District Court on an indictment that charged him with 17 counts of assault with an act of indecency in circumstances of aggravation against (former) s 61M(1) of the Crimes Act 1900 (NSW) and two counts of inciting a person under the age of 16 to commit an act of indecency contrary to (former) s 61O(1) of the Crimes Act. The precise date range of the relevant offences are set out below, but they covered the period from 1 January 2000 to 30 June 2002. There were three alleged victims of the offences, namely NS, LB, and RS, who were aged between approximately 10 and 12 at the time the offences were said to have been committed.
2. On 4 September 2020, the trial judge directed a verdict of not guilty on Count 10. On 9 September 2020, the jury returned guilty verdicts on Counts 1, 2 and 4 and not guilty on Count 3. All of Counts 1 to 5 concerned NS. The jury's deliberations continued in respect of the remaining counts. However, in the circumstances described below, on 10 September 2020 the jury was discharged.
3. The applicant has not yet been re-tried on the remaining counts. The trial has awaited the outcome of this application which in turn awaited the outcome of a sheriff's investigation that was ordered when the matter first came on hearing in this Court in June 2021. In the end result, the matter that prompted that investigation was not pressed as a ground of appeal but other matters that arose out of the investigation were raised by an amended ground 3.

The Crown Case

1. To address grounds 1 and 2 it is necessary to describe the Crown case in respect of NS and Counts 1 to 5 and the evidence said to support those counts.
2. In 2000, NS, LB, and RS were Year 5 primary school students at the same school. The applicant was a teacher at the school. NS was in the applicant's class. LB was assigned to a (notionally) different class, but her class was taught in the same classroom as NS by the applicant and another teacher; i.e., a composite class. Contrary to NS's evidence, RS was in a different Year 5 class. In the following year, NS attended a different primary school but was tutored at her home by the applicant.
3. Count 1 concerning NS was said to be an occasion in 2000 in which it was alleged that the applicant kissed her on the lips in a storeroom of the joint classroom when, according to NS, RS and LB were present. Count 2 related to an occasion in 2001 when NS said that the applicant kissed her on the lips in the downstairs laundry of her home while he was tutoring her. Count 3 related to an occasion in 2001 when NS said that the applicant tried to kiss her on the lips when they were alone in the robing room at church. Count 4 related to an occasion in 2001 when the applicant took NS to a theme park. The applicant stated that, prior to the trip the applicant rubbed sunscreen onto NS including rubbing the sunscreen inside her leg and just outside of her vagina for an extended period of time. With Count 5, NS alleged that, on an occasion when the applicant was tutoring her at home in 2002, he kissed her on the lips.

NS's Evidence

1. NS was born in February 1990. As at the time that she gave evidence she was 30 years old. She met the applicant in 1999 when she was in Year 4. She said that the applicant taught her the following year. She agreed with a question posed by the Crown Prosecutor that LB and RS were in her Year 5 class. She started receiving letters from the applicant in January 2000. During that year her class studied the workings of parliament. According to NS, the applicant created a "leadership council" and made NS, RS and LB "executive officers". They were required to clean up the classroom, "his table, [and] go and grab him lunch." Behind the blackboard was a storeroom. NS said they usually had recess or lunch inside the room. When something was needed from the storeroom, either NS, RS or LB would collect it as "we were always … the favoured ones."
2. NS said that the applicant stored chocolates in the storeroom. She gave evidence concerning the commission of Count 1 as follows: "Q. Can you describe what happened when you got the chocolates? A. So the first few times we would just be told just to go and grab one, and then, you know, like, we could be - you know, and then, like, we could leave the room. But then, throughout the time, he would come into the storeroom with us to go give us, like, a chocolate. But then it wasn't just, like, the chocolates. First he would make us kiss him on the cheek, the first few times. And then after that, like, he used to pout down, like, to make us give him, like, a kiss on the lips. Q. And did you do that? A. Yes. Q. Kissed him on the lips? Do you remember when that was? When in the year? A. Yeah, like, throughout the whole year, basically. Q. When was the first time? A. Probably, like, once we started, like, a leadership - you know, like an apartment group. It started, like, from there. So I would probably say maybe, like, the first three months of school. Q. By the end of the year, what happened when he went into the storeroom? A. It would just be - like, he didn't have to even go and give us a chocolate. It was just basically, like, he caught us in there. Like, just to give us - I mean, to give him, like, a kiss on the lips. Q. Sorry, just repeat that, please, a bit slower. A. Sorry. So towards, like, the end of the year, he didn't have to go give, like, a treat. It was just - basically he would call us to the storeroom to go and give us, like, a kiss on the lips. So that then - yeah, like, no-one, like, could see us. CROWN PROSECUTOR: That's the evidence the Crown relies upon for count 1 on the indictment. Q. At times you went into the storeroom and kissed the accused on the lips, were you by yourself, or anybody else in there? A. No, see - so the first few times it was with, like, the other girls. But then throughout the time it would just be me or him. Q. The first few times you were in the storeroom, other girls were in the storeroom - A; Yep. Q. --when you kissed him on the lips? A. Yes."

Other Evidence

1. In light of the limited verdicts and the grounds of appeal it is only necessary to refer to so much of the balance of the evidence at the trial that bears upon Counts 1 to 5 concerning NS.
2. NS's childhood neighbour, HS, said that she recalled being in class in Year 7 when NS became quiet and upset and told her that the applicant "had been touching her inappropriately, like, he once told her to take off her shirt so that he could rub sunscreen on her, including her chest area". HS said she visited NS when she was being tutored by the applicant and accepted that there was the "possibility of [HS] dropping in every afternoon to see [NS]".
3. Another friend, NG, recalled an occasion when NS ran out of class crying after a substitute teacher taught a class on "community and family services". NS later told her that "there was an incident with one of her primary school teachers and she did tell me a bit of information" including that he put sunscreen on her while she was naked and that he bet her that if he won putt-putt golf "he would want her to kiss him".
4. NS's mother gave evidence that when NS was in Year 8 or 9, she was called to the school and in a meeting, NS said that she had "to go to laundry with [the applicant] and he start[ed] touching her over there, and kissing".
5. NS's older sister gave evidence that she attended the same primary school as NS. She was not taught by the applicant but was privately tutored by him when she was in high school and corresponded with him. She did not raise any concerns about his behaviour when interviewed by the Department of Education.
6. Another student, NK, who was in the same class as NS and was taught by the applicant recalled that the applicant appointed an executive committee that consisted of only female students, as least so far as she could remember. She described the members as including LB, RS and NS. She said that on one occasion when she was upset the applicant directed her to enter the storeroom so he "could give [her] a hug". She saw the applicant do the same with NS. She said that she went on a visit to the theme park with NS and RS in Year 5.
7. BL was a Year 5 student in the composite class with NS. He recalled that the applicant used to call NS, RS and LB "his executives" and said, "[t]hey sort of like got all the like fun things to do; like if you had to take something to the office, they usually done that, and yeah, just sort of stuff like that."

The Defence Case

1. The applicant did not give evidence or call any witnesses. As noted, the cross‑examination was consistent with him denying that he ever kissed NS on the lips or applied sunscreen to her.

Ground 1: Unreasonable Conviction

1. Ground 1 of the appeal contends that the applicant's conviction on each of Counts 1, 2 and 4 is unreasonable and cannot be supported having regard to the evidence.
2. The relevant principles governing a consideration of this ground of appeal were stated in M v The Queen (1994) 181 CLR 487 at 493 to 494; [1994] HCA 63 (per Mason CJ, Deane, Dawson and Toohey JJ; "M"). In AJ v R [2022] NSWCCA 136 at [99] to [105] I addressed the application of these principles in the context of a Crown case that largely turns on the evidence of a complainant who was a child both at the time of the offending and when giving evidence. I will not repeat that discussion which is applicable here save that in this case NS was no longer a child by the time she gave evidence. Nevertheless, the jury enjoyed a considerable advantage in observing her give evidence that was not enjoyed by this Court (see M at 494).
3. Ultimately, the question for this Court is whether, on the whole of the record of the trial, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty (M at 494). In making that assessment the Court proceeds "upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable" and "examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt" (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]).

Ground 1 and Count 1

1. The applicant advanced three separate albeit related reasons why this ground was made out in relation to Count 1. The first reason was that it was said that the evidence disclosed that, if the offence had been committed, it occurred outside the relevant charge period.
2. NS's evidence in relation to Count 1 is set out above. NS described the applicant kissing her on many occasions "throughout the whole year, basically". The applicant's submissions noted (correctly) that the trial judge directed the jury that Count 1 "relates to the first occasion on which this was said to have occurred." In the above extract, NS said that that first occasion occurred "probably say maybe, like, the first three months of school". NS first attended at the relevant primary school in the 1999 school year and was a student in the applicant's class from the commencement of the 2000 school year. However, the charge period for Count 1 was 1 July 2000 to 31 December 2000. Hence it was submitted that, even "[i]f some latitude were afforded", Count 1 could not have been committed any time after May 2000. The applicant accepted that this was not raised at the trial but nevertheless contended that it "was a patent miscarriage of justice".
3. The Crown accepted that the evidence suggested that it was likely that the offence was committed outside the charge period. Nevertheless, it contended that a misstatement as to the date of an alleged offence is immaterial unless it is an essential ingredient of the offence or has been made essential by the conduct of the Crown case (citing WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58 ("WGC") and Makarov v R (No 1) [2008] NSWCCA 291 at [38] to [39]). That contention should be accepted although it has as its corollary the proposition that a departure during a trial from a particularised case can occasion unfairness to an accused (WGC at [127]).
4. In this case the date range of Count 1 was not essential to the Crown case. Moreover, it is apparent from the manner in which the trial was conducted, especially the absence of any complaint from the applicant's counsel, that the trial was conducted on the basis that the date range for Count 1 was not critical and the Crown could rely on the first time that NS said that she was kissed by the applicant without any unfairness having been occasioned (see WGC at [137]). As explained below, before the close of the Crown case the trial judge apprised the parties of his Honour's intention to direct the jury that the relevant act for ground 1 was the first occasion on which the offence was said to have been committed. This yielded no complaint from the applicant's counsel and was taken up in their address to the jury.

Ground 1 and Count 2

1. The applicant contends that the evidence adduced in support of Count 2 was insufficient in that it "only addressed what the applicant would do and not what he did do on any relevant occasion". NS's evidence concerning Count 2 is set out above (at [10]). NS's evidence was that the applicant kissed her on the lips in the laundry at home while privately tutoring, which her occurred over a sustained period. As with Count 1, the trial judge directed the jury that this Count concerned the first time he allegedly kissed her.
2. The applicant noted that NS's evidence in support of Count 2 was expressed in terms of what the applicant "would" have done. The applicant contended that NS's evidence was only evidence of a "pattern of behaviour and continuum of conduct" as opposed to a discrete incident of offending. In support of that contention the applicant contended that "[e]vidence of a generalised character describing a pattern of behaviour, a course of conduct or multiple occasions cannot supply proof beyond reasonable doubt of a specific occasion" and cited R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep) ("AM"); KRM v R (2001) 206 CLR 221; [2001] HCA 11 ("KRM"); R v SLJ (2010) 24 VR 372; [2010] VSCA 16 ("SLJ"); REE v The Queen (2010) 203 A Crim R 11; [2010] VSCA 124 ("REE"); Wade (a pseudonym) v The Queen [2018] VSCA 304 ("Wade").
3. Those cases do not support a proposition as wide as that asserted by the applicant. Each of KRM, SLJ and REE concerned, or at least principally concerned, the necessity to provide sufficient particulars in relation to alleged offences under (former) s 47A of the Crimes Act 1958 (Vic) of maintaining an unlawful sexual relationship with a child (see for example, KRM at [18] per McHugh J). That said, in KRM McHugh J accepted that it was a mistake to assume that "a blanket assertion that on three or more occasions the complainant and the accused engaged in [a particular sex] act" was sufficient to satisfy former s 47A (at [14]). Justice Hayne referred to the sufficiency of evidence to support such a charge noting that "[t]here may well be cases where the evidence is so general and vague as not to be capable of persuading a jury beyond reasonable doubt that the accused committed the acts" (at [138]).
4. Each of the judgments in AM and Wade contain references to analysing the evidence of a complainant and determining whether it was a memory of a particular incident or (only) a description of a pattern of behaviour as part of a consideration whether a conviction based on that evidence was unreasonable or could not be supported having regard to the evidence (see RD (a pseudonym) v R [2021] NSWCCA 94 at [10] to [13]; "RD"). In RD, Macfarlan JA reviewed AM and Wade and then closely examined the evidence in that case to determine whether the relevant witness was in fact "professing an actual recollection of an occasion in 1973 when the acts particularised in relation to [the charges] occurred" (at [30]). As part of that analysis his Honour noted that the use of the word "would" by the witness in that case was uttered "in a context which made it clear that she was recounting what occurred on the particular occasion" (at [31]).

Ground 1 and Count 4

1. The charge period for Count 4 was between 1 July 2001 and 31 December 2001. In her evidence, NS agreed that she first went to a theme park with the applicant at "the beginning of 2001" and agreed that Count 4 occurred "[l]ater that year". It was contended that it was "well available" to the jury to conclude that Count 4 occurred during the first half of the year especially as NS was said to be wearing a swimsuit suggesting it was relatively warm weather. Even accepting that that was so, the analysis at [43] to [44] above is equally applicable to this contention.

Ground 1 and All Counts

1. Lastly, in relation to Count 1, the applicant made a number of points in support of the overall contention that NS's evidence was lacking in credibility or was otherwise unreliable.
2. The first point concerned a letter written by NS to the applicant during 2000 to 2001 in which she said that she was "very sorry for all of the bad and mean things I've done to you. And I really truly want to you to tutor me". This was said to be written after NS left the primary school where the applicant taught and (implicitly) reflected feelings by her that were inconsistent with the applicant having already kissed her. The Crown submitted that the letter "demonstrates the ongoing power imbalance [between the applicant and NS] which enabled the applicant to act as he did." Put another way, for the reasons already explained, the letter is not inconsistent with NS's evidence or the Crown case in that it is illustrative of the applicant having groomed her to accept his conduct.
3. Second, the submissions pointed to the applicant's acquittal on Count 3. It was contended that the jury accepted that Count 3 could not have occurred because there was no permanent church at the time the offence was said to have occurred and no robing rooms at the school while it was being used before the church was built. It was contended that the fact that NS's account could not have happened at least in the way she described "was a matter relevant to the assessment of the reliability of [her] account of the remaining alleged offences." The Crown noted that, in one of the letters he sent to NS dated 4 January 2000, the applicant described himself as serving as an acolyte at his family's church. The Crown contended that NS may have been describing an incident at a church that she and her family were attending at the same time as the applicant prior to the services that commenced for the new parish at the primary school.
4. The applicant does not contend that the verdicts on Counts 1, 2 and 4 were inconsistent with the verdict on Count 3. That said, I accept that the fact of the acquittal of the applicant on Count 3 is a matter that is capable of reflecting on the reliability of NS's evidence. The jury was directed to consider whether any acquittal it may render on any count because of doubts about the credibility or reliability of NS affected its consideration of other counts (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290). It seems likely, as the Crown contends, that the jury gave the applicant the benefit of the doubt about this count because of the evidence concerning the location of the church, but otherwise accepted that NS was credible and reliable. Any potential doubt about NS's credibility and reliability in relation to Counts 1, 2 and 4 arising from the acquittal on Count 3 would only be a doubt that the jury's advantage in seeing and hearing NS's evidence was capable of resolving.

Ground 2: Trial Judge's Directions

1. Ground 2 of the appeal contends that there was a miscarriage of justice in relation to each of Counts 1 and 2 "as a result of the trial judge's direction in each case that the incident which was the subject of the count was the first incident about which the complainant gave evidence."
2. This ground relates to the trial judge directing the jury that Counts 1 and 2 relate to the first occasion on which the relevant act took place, that is kissing NS on the lips in the storeroom and in the laundry of her home while tutoring her. The applicant's submissions noted that the Crown Prosecutor opened the case to the jury on each count by explaining the effect of NS's evidence as supposedly outlining a course of conduct over a period of time rather than a specific incident. For example, in relation to Count 2, the Crown Prosecutor told the jury: "[NS] will tell you that at a time when the accused was at her home, he would summon her into the bathroom or the laundry, which is adjacent to the room where the tutoring would take place. On those occasions, she will tell you that the accused kissed her on the lips, and that will be the evidence the Crown relies upon in count 2." (emphasis added)
3. As noted, the trial judge was cognisant of the necessity to identify a particular act when directing the jury. Before the close of the Crown case, his Honour advised counsel that "what I've done is, in the directions, some of the counts are pretty vague … and they do disturb me a little. But what I've said in all of this, that it's the first occasion on which [the alleged offending] happens that is the count". The reference to "all of this" is to his Honour's summing up. Thus, prior to the close of the Crown case, the trial judge made it clear to the parties that each of Counts 1 and 2 would be put to the jury on the basis that the particular act the subject of each count was the first occasion on which it occurred. There was no complaint raised on behalf of the applicant about that course. To the contrary, in their address to the jury, counsel for the applicant specifically referred to the evidence about the "first time" that the applicant allegedly kissed NS in the storeroom in relation to Count 1 and the "first time" that he allegedly kissed NS in the laundry of her home.
4. I have already referred to the direction given by the trial judge identifying the relevant act said to be the subject of each count. The trial judge also directed the jury about so much of their evidence as concerned the repetition of those acts as being context evidence as follows: "One of the difficulties in this case is that all of the witnesses gave evidence about generalised conduct of Mr Vella. Often in addition to the particular allegation which formed the count in the indictment - and I have identified for you the counts and the Crown did as well - they are often the first occasion on which it is said an event occurred. The witnesses would often say things like, 'He would do that', or, 'He did it throughout the year', and on occasion the witnesses would suggest that an act occurred regularly or habitually occurred. It is important that I explain the relevance of that evidence of those other acts. It was admitted solely for the purpose of placing each of the complainant's evidence relating to the direct proof of the charges into what the Crown says is a realistic and intelligible context."

Ground 3: Juror Bias and Misconduct

1. Amended ground 3 of the applicant's appeal provides as follows: "A miscarriage of justice occurred in relation to each of Counts 1, 2 and 4 as a result of: (a) A reasonable apprehension of bias on the part of at least one juror; and/or (b) Consideration of irrelevant material by a juror or jurors."

Background

1. The jury commenced their deliberations on 8 September 2020. After lunch on the following day the trial judge received four juror notes. The first referred to an "obvious issue/tension amongst the jurors" and requested a break for the afternoon. The second advised that "Juror A would like to be excused for family and personal reasons." Specifically, their small child had been taken to hospital. The third note advised that the jury had reached agreement on four counts but was "having difficulty moving forward on deliberating the other counts." The fourth note advised that "Juror B request[ed] leave from the jury because 11 jurors agree and are working hard together" but added that "[one] juror refuses to engage in the process … [t]he group is too full of emotion. Extremely unhealthy".
2. After lunch on 8 September 2020, the trial judge took evidence from the foreperson who confirmed that the jury had reached unanimous verdicts on Counts 1 to 4 but not the remainder. Those verdicts were then delivered. The trial judge then addressed the remaining notes, and the jury was sent home for the day.
3. The transcript records that at 9.45am the following day, 10 September 2020, the jury continued to consider its verdict. The trial judge immediately handed to counsel a jury note in which a juror sought to be released from the jury on the basis that they had a "minority view in the jury" and this "frustrating situation has led me to being threated, bullied and treated with disrespect" ("Jury Note 13"). The trial judge then discharged the entire jury.
4. In its original form, ground 3 of the applicant's Notice of Appeal sought to impugn the verdicts on Counts 1, 2 and 4 based on the "improper conduct of a juror or jurors" as revealed by Jury Note 13. The application for leave to appeal relying on that ground came before a differently constituted bench of this Court of which I was a member on 16 June 2021. Pursuant to s 73A of the Jury Act 1977 (NSW), the Court requested that the Sheriff investigate the matter raised in that jury note and adjourned the appeal.
5. On 13 August 2021, the Registrar of this Court released a report prepared by the Sheriff entitled 'Request for Investigation into possible Jury misconduct" to the parties (the "Sheriff's First Report"). Accompanying the report was a series of notes of interviews conducted with each of the jurors. The Court then made a further request to the Sheriff to clarify certain matters that arose out of those interviews.

Evidence Relied On

1. The principal evidence relied on in support of amended ground 3 is set out in the annexures to the Sheriff's First Report which consists of the transcripts of discussion between a sheriff's officer and individual jurors with each juror only identified as "Juror 1", "Juror 2", etc. At the hearing of the appeal the applicant read an affidavit from his solicitor annexing both reports and the notes of the interview with the jurors and Court officers. The tender of all of this material was objected to on the basis that it contravened the exclusionary rule that "evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict" (Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [54]; "Smith") (the "exclusionary rule"), the operation of which is said to be preserved by ss 9(1) and 9(2)(a) of the Evidence Act 1995 (NSW). However, it was accepted that to address that objection (and ultimately the ground of appeal) it was necessary for the Court to receive the material and describe it.
2. After the hearing of the appeal the applicant provided a schedule of all of the extracts from the notes of the interviews with the jurors that were relied upon. The Crown objected to the tender of all of it. It is unnecessary to outline all of the extracts that the Applicant relies on as the ground can be addressed by reference to the extracts identified in the applicant's supplementary written submissions in support of this ground. Hence, the applicant principally relied on the responses of Juror 5 as follows: "[Q]: Okay well what can you tell me about the conduct of jurors when reaching and securing the verdicts[?] [A]: I personally believe that … one particular person um had made up their mind on the first day basically and every time we came out of a sitting I don't know the correct words you would use the sitting in the court would discuss the case and I the way I looked at it they were trying to get people to um be the same belief as them so they tried to manipulate the situation to how they wanted to vote early before we um even heard a lot of the witnesses [Q]: Okay [a]nd what impact did that have[?] [A]: On me[?] [Q]: Yes, yourself and others [A]: I don't think um I don't think a lot um picked up on that but I definitely did [y]eah [Q] Okay [A]: And that was very very very stressful because I knew that um but part of being part of a jury that really we weren't deliberating until the end and we wouldn't shouldn't we've been discussing it during during the trial it was at the end but however prior to the end that person had got everybody got the people that they believe you know that they tried to get everybody to believe the same way as them [Q]: Okay what can you tell me about any verdicts that were influenced by other factors not associated with the trial [A]: Um I can tell you that somebody in the jury had had mentioned that um they were um sexually assaulted as a child um that came up um you know um so I'd say that was an influence on their decision um people were making assumptions um and and bringing up things that weren't actually mentioned in the jury room um so yes I think a lot of assumptions were made and um yeah"

Admissibility of Evidence of Jury Deliberations

1. In Smith at [1], French CJ, Crennan, Kiefel, Gageler and Keane JJ confirmed the existence of a "general rule of the administration of criminal justice under the common law" to the effect that "once a trial has been determined by an acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict". The exclusionary rule is limited so as not to "deny the admissibility of evidence 'extrinsic' to the jury's deliberations" (at [27]). Although various cases had treated something 'extrinsic' as referring to a source of evidence other than the jurors themselves or events extraneous to the deliberative process (at [27]), their Honours treated the limits on the operation of the rule as being informed by its rationale, namely the "preservation of the secrecy of a jury's deliberations to ensure that those deliberations are free and frank so that its verdict is a true one and to ensure the finality of the verdict" (at [31]). Hence, evidence that a juror was bribed or was the subject of unlawful physical coercion, unlawful harassment, unlawful pressure, or influence, or that a crime was committed in the course of the trial amongst the jurors, would not be excluded as such conduct is inconsistent with there having been free and frank deliberations by the jury (at [33] to [37], [48] and [54]). That said, their Honours observed that a court should be careful "not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion" (at [50]).
2. As noted, ss 9(1) and 9(2)(a) of the Evidence Act operate to preserve any "principle or rule of common law or equity" relating to the "admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court". This clearly embraces the exclusionary rule confirmed in Smith.
3. The more significant question concerns the interaction between the exclusionary rule and the provisions of the Jury Act.
4. Section 68A of the Jury Act prohibits the solicitation or harassment of a juror or former juror for the purpose of obtaining information about the deliberations of the jury or how they or the jury formed any opinion or conclusion in relation to an issue arising at a trial or inquest. Section 68B(1) prohibits a juror from disclosing the deliberations of the jury or how they or the jury formed any opinion or conclusion in relation to an issue arising at the trial or inquest without the consent or at the request of the judge or coroner. Section 68B(2) creates a separate offence where that is done or offered to be done for fee, gain or reward.

Evidentiary Ruling in this Case

1. The applicant contended that the evidence adduced in support of this ground was admissible because the "exclusionary rule does not apply to evidence obtained in the course of an investigation [undertaken] pursuant to s 73A" of the Jury Act. It follows from the above that I reject that contention. The applicant further contended that it was not rendered inadmissible by the exclusionary rule because it was "extrinsic to jury deliberations". I do not accept that contention either.
2. In relation to so much of the evidence sought to be adduced from the Sheriff's First Report that was said to demonstrate that a juror utilised their own experience of being sexually assaulted when deliberating, the exclusion of that material very much preserves the secrecy of the jury's deliberations to ensure that those deliberations are free and frank. The questions that elicited that evidence specifically asked the relevant jurors about the deliberation process. As is usual with all jury trials in this State, the jury were instructed by the trial judge that in their deliberations they "can use [their] experience of people in everyday life to analyse the evidence" and they should use their "common sense and … analytical abilities". Later when the jury advised the trial judge that they were having difficulty reaching a unanimous verdict, the trial judge reminded them that "[e]ach 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". This was the precise form of the direction enunciated in Black v The Queen (1993) 179 CLR 44 at 51 to 52; [1993] HCA 71 ("Black"). It follows that the process by which jurors disclose to the other jurors their "individual experience" and their assessment of the evidence "in that light" is at the very heart of jury deliberations. This aspect of evidence is clearly inadmissible.
3. The same applies to so much of the evidence that is relied on to purportedly demonstrate that one juror had made up their mind on the first day. The material relied on records one juror's assessment of the attitude of another juror towards the evidence from an early point in the trial and the effect of their communications on that topic. The exclusion of this material also preserves the secrecy of the jury's deliberations to ensure that those deliberations are free and frank. The subject evidence discloses communications between a juror and other jurors about the effect of the evidence adduced at the trial (see R v K at [55]). The fact that a juror supposedly disclosed their strong and early views of the evidence to other jurors is clearly an aspect of the jury's deliberative process. Otherwise, none of the material concerning the alleged acts of the supposedly biased juror rise to the level of showing any form of misconduct referred to in Smith especially in light of the caution to be exercised before "jump[ing] to the conclusion that the line has been crossed between robust debate and unlawful coercion" (Smith at [50]).

Conclusion on Ground 3

1. It follows that I consider that this ground must fail at the outset as there is no evidence to support it. For the sake of completeness, I would add that, had the evidence of the juror disclosing that they had been sexually assaulted been admissible then I would not have upheld that aspect of ground 3. The factual circumstances would not have been relevantly different to that considered in R v Goodall (2007) 169 A Crim R 440 ("Goodall") where it was held that a juror's prior experience of being sexually assaulted did not give rise to a reasonable apprehension of bias on the part of a juror in deliberating on a charge of sexual assault. In Goodall, Redlich JA concluded that the possibility "of a juror evaluating existing evidence by reference to a particular experience they have had" was "something the juror would have been entitled to do" (at [28]) and would not give rise to a reasonable apprehension of bias (at [31]). With respect, that conclusion is entirely consistent with the direction stated in Black.
2. In addition, I have the advantage of reading the judgment of Price J. If I am wrong in rejecting the evidence of one juror that they perceived another juror had "mind up their mind on the first day" then for the reasons given by his Honour I would nevertheless reject this ground.
3. I would grant leave to raise ground 3 but reject the ground.

Non-Publication Order

1. At the hearing of this application, counsel for the applicant sought a non-publication order over the entirety of the judgment pending the applicant's further trial. The Court was advised that the balance of the charges against the applicant are listed for trial in February 2023. It was submitted that given the unusual facts of this matter such an order was warranted.
2. I do not consider that any such order should be made. No non-publication order was sought at the time of verdict or since that time including in this Court up until the hearing of the appeal. I do not accept that there is anything particularly "unusual" about this matter save for so much of the application as concerns the Sheriff's reports. In fact, that is a matter very much in favour of its circulation, not its restriction. The restriction of judgments of this Court addressing legal issues of potential significance is something that should be avoided.
3. Consistent with this Court's practice, this judgment will be published on Caselaw. Two months in advance of the confirmed trial date the judgment can be temporarily taken down from Caselaw. After the conclusion of proceedings at first instance the judgment can be republished on Caselaw using the applicant's actual name. Orders will be made to facilitate this.

Proposed Orders

1. I propose the following orders: (1) The applicant be granted leave to raise grounds 1 and 3 of his appeal; (2) The applicant be refused leave to raise ground 2; (3) The tender of annexures A, B, C and D to the affidavit of Madeleine Schneider sworn 20 October 2021 be rejected; (4) The appeal be dismissed; (5) The respondent is to notify the Registrar of the Court of Criminal Appeal, two months in advance of the date fixed for the applicant's further trial, of that fact; and (6) Within 14 days of the completion of the remaining proceedings against the applicant at first instance, the respondent is to notify the Registrar of the Court of Criminal Appeal of that fact.
2. PRICE J: I agree with the orders proposed for grounds 1 and 2 by Beech-Jones CJ at CL for the reasons given by the Chief Judge. Save for the ruling rejecting the tender of the material produced by the Sheriff, I also agree with the orders proposed for ground 3. I differ solely in one respect with the Chief Judge's reasons.
3. One of the applicant's complaints of a miscarriage of justice arises from the response of Juror 5 quoted at [81] above that, "I personally believe that… one particular person… had made up their mind on the first day basically…" Beech-Jones CJ at CL considered that the evidence relied on to purportedly demonstrate that one juror had made up their mind on the first day of the trial is inadmissible.
4. In submissions, the applicant placed reliance on R v Czajkowski; R v Shepherd [2002] NSWCCA 530 ("Czajkowski"), in which Sheller JA (with whom Woods CJ at CL and Sully J agreed) quashed the appellants' convictions and ordered a new trial.
5. In Czajkowski, after the evidence and addresses had finished, but before the trial Judge's summing up to the jury, a note was sent to the Judge by the foreperson. It read: "Dear Judge, Some of the jurors are slightly bias [sic] against drugs and have already made there [sic] minds up on day one."
6. The appellants were charged with attempting to obtain possession of not less than the commercial quantity of 3, 4-methylenedioxymethamphetamine ('MDMA') contrary to s 233B of the Customs Act 1901 (Cth).
7. The trial Judge declined applications by counsel for the appellants to discharge the jury and relied on directions to the jury to put aside any prejudice and decide the case on the evidence.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2023