[1994] HCA 63
Makarov v R (No 1) [2008] NSWCCA 291
Patel v The Queen (2012) 247 CLR 531
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 71
KRM v R (2001) 206 CLR 221[2001] HCA 11
Libke v R (2007) 230 CLR 559[2007] HCA 30
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Makarov v R (No 1) [2008] NSWCCA 291
Patel v The Queen (2012) 247 CLR 531[2012] HCA 29
Pell v The Queen (2020) 268 CLR 123R v Shepherd [2002] NSWCCA 530 R v Goodall (2007) 169 A Crim R 440
R v K [2003] NSWCCA 406(2003) 59 NSWLR 431 R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 290
R v SLJ (2010) 24 VR 372[2010] VSCA 16
RD (a pseudonym) v R [2021] NSWCCA 94
REE v The Queen (2010) 203 A Crim R 11[2010] VSCA 124
S v The Queen (1989) 168 CLR 266[1989] HCA 66
Smith v The State of Western Australia (2013) 226 A Crim R 541[2013] WASCA 7
Smith v Western Australia (2014) 250 CLR 473[2014] HCA 3
VP v R [2021] NSWCCA 11
Wade (a pseudonym) v The Queen [2018] VSCA 304
Webb v The Queen (1994) 181 CLR 41[1994] HCA 30
WGC v The Queen (2007) 233 CLR 66Ms W Liu (Crown)
Judgment (20 paragraphs)
[1]
Background
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.
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.
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.
[2]
The Crown Case
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.
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.
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.
[3]
NS's Evidence
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."
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."
[4]
Other Evidence
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.
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]".
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".
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".
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.
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.
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."
[5]
The Defence Case
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.
[6]
Ground 1: Unreasonable Conviction
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.
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).
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]).
[7]
Ground 1 and Count 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.
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".
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]).
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.
[8]
Ground 1 and Count 2
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.
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").
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]).
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]).
[9]
Ground 1 and Count 4
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.
[10]
Ground 1 and All Counts
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.
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.
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.
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.
[11]
Ground 2: Trial Judge's Directions
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."
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)
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.
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."
[12]
Ground 3: Juror Bias and Misconduct
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."
[13]
Background
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".
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.
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.
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.
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.
[14]
Evidence Relied On
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.
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"
[15]
Admissibility of Evidence of Jury Deliberations
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]).
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.
The more significant question concerns the interaction between the exclusionary rule and the provisions of the Jury Act.
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.
[16]
Evidentiary Ruling in this Case
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.
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.
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]).
[17]
Conclusion on Ground 3
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.
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.
I would grant leave to raise ground 3 but reject the ground.
[18]
Non-Publication Order
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.
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.
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.
[19]
Proposed Orders
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.
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.
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.
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.
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."
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).
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.
[20]
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
R v Czajkowski; R v Shepherd [2002] NSWCCA 530 R v Goodall (2007) 169 A Crim R 440
R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v SLJ (2010) 24 VR 372; [2010] VSCA 16
RD (a pseudonym) v R [2021] NSWCCA 94
REE v The Queen (2010) 203 A Crim R 11; [2010] VSCA 124
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Smith v The State of Western Australia (2013) 226 A Crim R 541; [2013] WASCA 7
Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3
VP v R [2021] NSWCCA 11
Wade (a pseudonym) v The Queen [2018] VSCA 304
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58
Category: Principal judgment
Parties: Ricky Joseph Vella (Applicant)
Rex (Respondent)
Representation: Counsel:
Ms J Paingakulam (Applicant)
Mr D Kell SC; Ms W Liu (Crown)
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant for leave to appeal was charged 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 against three children. On 4 September 2020, the trial judge directed a verdict of not guilty on Count 10. On 9 September 2020, the jury returned verdicts of guilty on Counts 1, 2 and 4 and not guilty on Count 3. All of those offences concerned a single complainant, NS. The jury was discharged before it could deliver verdicts on the remaining counts because of an allegation by a juror that they were bullied and intimidated. The allegation was investigated by the Sheriff pursuant to an inquiry under s 73A of the Jury Act 1977 (NSW) but not substantiated. The applicant sought to rely on material produced by the Sheriff from interviews with the jurors to contend that there was a reasonable apprehension of bias on the part of one or more jurors. Some of the interviews suggested that a juror had disclosed their experience of being sexually assaulted during deliberations and one juror suggested that another juror "had made up their mind on the first day". The applicant has not yet been sentenced.
The applicant was a primary schoolteacher. Throughout 2000 to mid-2002, he is alleged to have committed offences against three complainants who were students at the school. With Count 1 it was alleged that the applicant kissed NS on the lips in the storeroom of his classroom in 2000 when NS was in Year 5. With Count 2 it was alleged the applicant kissed NS on the lips in the laundry at her home while he tutored her. With Count 4 it was alleged that, prior to taking NS to a theme park, the applicant rubbed sunscreen onto NS including on the inside of her leg and just outside her vagina for an extended period of time. With Count 1, NS gave evidence that the applicant kissed her "throughout the year", and with Count 2, NS gave evidence that the applicant kissed her "all the time" in the laundry in her home. The trial judge directed the jury that each count concerned the first time that these acts occurred.
Ground 1 contended that the applicant's convictions were unreasonable and could not be supported having regard to the evidence. As part of that contention it was submitted that each of Counts 1 and 4 could only have been committed outside the date range specified in the relevant charge. Ground 2 contended that the trial judge occasioned a miscarriage of justice by "selecting which offence in a continued course of conduct was the one which was the subject of the charge". Ground 3 argued that a miscarriage of justice occurred as a result of a reasonable apprehension of bias on the part of one or more jurors.
The issues arising on appeal were:
(i) Whether the jury's verdicts of guilty on each of Counts 1, 2 and 4 were unreasonable and could not be supported on the evidence?
(ii) Whether a miscarriage of justice occurred as a result of the trial judge particularising the offence to be considered by the jury in a continued course of offending conduct?
(iii) Whether notes of interviews with jurors prepared by the Sheriff for the purposes of an investigation under s 73A of the Jury Act were inadmissible because they disclosed the deliberations of jurors?
(iv) Whether evidence that during deliberations one juror relied on their own experience of being sexually assaulted and disclosed that to other jurors was admissible?
(v) Whether evidence that one juror perceived another juror to have "made up their own mind from day one" was admissible?
(vi) Whether there was a reasonable apprehension of bias on the part of one juror in utilising her experience of being sexually assaulted in her deliberations and disclosing it to other jurors? And
(vii) Whether there was a reasonable apprehension of bias on the part of one juror by reason of a perception held by another juror that they had "made up their mind on day one"?
The Court held, granting leave to appeal on grounds 1 and 3 of the applicant's appeal, but dismissing the appeal:
As to issue (i), per Beech-Jones CJ at CL (Price and Lonergan JJ agreeing):
As noted, the following year NS changed primary schools. She said that the applicant told her parents that she "wasn't going well in school" and that she "needs help" in the form of tutoring. The applicant tutored her at home after school when her mother was at work and her father was at home but outside the house. NS gave the following evidence concerning Count 2:
"Q. Do you remember occasions while you're being … tutored by the accused ... would he get up from the table and go to one of the other rooms in the house?
A. Yes. He would go to the laundry.
Q. What would happen there?
A. He would - he would wave me over to go in there to the laundry and we would kiss on the lips.
Q. That was in the laundry?
A. Yep.
Q. How many times did that occur?
A. All the time.
Q. How long were you tutored?
A. For about, I'd say, a year and a half.
Q. And did that happen for that year-and-a half period?
A. Yep.
Q. That's the evidence the Crown relies upon for Count 2, your Honour. Was it always on the lips or was it anywhere or somewhere else?
A No it was always on - it was always on the lips at that point." (emphasis added)
One of the applicant's complaints is that this passage does not involve NS giving evidence of a specific occasion on which the applicant kissed her on the lips in the laundry as opposed to the applicant having the practice of doing so. That complaint is addressed below.
In relation to Count 4, NS said that the applicant took her to the theme park around "10 times - plus". She agreed that, at the beginning of 2001, she went by herself to the theme park with the applicant. She said he picked her up from her place and took her to his home. He suggested that she apply sunscreen in his bedroom. She went into his bedroom where there was a picture of her and LR. She removed her clothes and started "putting sunscreen on". The applicant walked in while she was naked and said "[s]orry. I didn't know you were in this room". NS put her clothes back on and they went to the theme park.
NS agreed that "[l]ater that year" she again went to the theme park with the applicant. The applicant collected her from her home and took her to his house. He said he had a gift for her. He took her to his bedroom and gave her the gift which was "church related". The applicant asked her if she had sunscreen on. NS replied "yes". NS told the jury that "then he asked me to take my clothes off so that then he could put more sunscreen on me." She removed all of her clothes and the accused stood in front of her. NS was asked:
"Q. What did the accused do?
A. He put sunscreen all over - all over like my body. Yeah. He put it all on - he mainly stayed down towards - towards like my vagina. My middle like area. And - yeah. Like - would - yeah. Would like be like rubbing it. Yeah. Like slow - like slowly like up and down. And - yeah. Like spending a fair bit of time putting on sunscreen on my - in that - in that area.
Q. The area of your pubic area.
A. Yes."
NS said the applicant used both hands and was kneeling down. He rubbed other parts of her body including her stomach, back and breasts but he "mostly stayed towards there" being "[i]nside towards like my vagina".
With Count 3, NS agreed with questions that suggested to her that there was a Catholic Church at Carnes Hill that she used to attend in 2001 when she was in Year 6. She recalled that when she attended the church, the applicant had some role with the service in that he used to wear robes. NS said that she was in a room at the church alone with the applicant "where they get, like, their robes" and he kissed her on the lips. She was asked:
"Q. How many occasions did that occur?
A. Whenever we were there at the church, so I'm not too sure - I'm not too sure - not too sure how many times we were at that church, but, yeah, it did happen a few times."
NS then stated that this occurred "about maybe three or four times."
NS recounted an occasion when the applicant took her to play "putt-putt" golf and then took her to his home afterwards where they started "baking cookies". She said that he asked her to take off her clothes. She refused and asked to be taken home.
NS said that the conduct the subject of Count 5 occurred when she was in Year 7 in 2002, being her first year of high school. NS recounted a similar incident to Count 3 when the applicant was tutoring her at home and he gave her a "kiss on the lips" which occurred "[a]ll the time … [d]efinitely, like, more than once."
NS said that she saw less of the applicant in Year 8 and he stopped tutoring her. She said that during that year a police officer came to the school and spoke about "stranger danger" which caused her to become upset. She ran out of the classroom crying and was followed by a friend who suggested she speak to the principal. She spoke to the Deputy Principal. NS said, "I don't think I went, like, in detail" but she told the Deputy Principal about the letters the applicant sent her and "him taking us out". NS said that she then spoke to two people from the Department of Education who came to the school but she was "embarrassed" and told them the "lesser parts", omitting that the applicant kissed her on the lips and the "sunscreen part". NS said that, what must have been many years later, she was again contacted by somebody from the Department of Education and disclosed additional matters to them that she had not stated previously which led to her providing the police with a statement in May 2017.
During the balance of NS's evidence‑in‑chief, she was taken through various letters written to her by the applicant during 2000 to March 2002, some of which were sent almost daily in August 2021. The letters did not discuss or refer to the offending or similar conduct. However, they involved a level of (inappropriate) familiarity that supported the Crown case that the applicant groomed her over a sustained period. He continually referred to her as his "precious angel" and stated how "disappointed, hurt and upset" he was by some snub on her part. He said that he "miss[ed]" her "sense of humour" and "the smile you gave me when I was sad."
In cross‑examination, NS was taken to a photograph of her class which included LB but not RS. NS agreed that her "clear memory" was that RS was in her class and that both LB and RS were present when the applicant kissed all of them in Year 5. She agreed that a photograph of another class included RS and that she was mistaken about RS being in her class but maintained that LB, RS and NA "would be [in the storeroom] during recess and lunchtime" and that "it did happen". It was put to her that the applicant did not kiss her in the storeroom.
With Counts 2 and 5, NS agreed that, while she was being tutored by the applicant, her father would come into the house from time to time to either go to the bathroom or get a drink. It was suggested that the applicant would not know when her father was coming inside, something she denied. It was put to her that the applicant did not kiss her while he was tutoring her. She disagreed.
With Count 3, NS agreed that she attended church with the applicant at two locations being a church that was later demolished and a primary school used by the congregation. She agreed that the applicant did not kiss her when she attended church at the primary school and there was no opportunity for her to be alone with him. Later it was suggested to NS that the congregation used the primary school and then moved to a newly constructed church. NS disagreed. It was put to her that the applicant never kissed her at church.
With Count 4, NS denied that she only went to the theme park with the applicant in the company of others. It was put to her that the applicant never applied sunscreen to her, something she denied.
NS was cross‑examined on letters that she sent to the applicant during the relevant period expressing matters such as how glad she was to be in his class and how she would miss not having him as her teacher. NS said that she "felt like I had to write certain things to him to go make him happy" although she agreed that he did not force her to write to him. She was shown a statement she provided to the Department of Education in February 2004 about the applicant which did not accuse him of kissing her on the lips or putting sunscreen on her. She agreed that she did not disclose the allegations at the time, but said "I was too scared."
The other teacher of NS's composite class gave evidence. She agreed that she never saw any inappropriate behaviour by the applicant or him taking female students into the storeroom during class time.
The investigating police officer confirmed that the applicant had no criminal record and had never been charged with a criminal offence.
In relation to Count 3, an agreed statement of facts was tendered to the effect that a new parish of Carnes Hill was established on 25 March 2001, and it held its first parish mass in the primary school hall on 15 April 2001. It held its first mass in a demountable building on its own site on 10 February 2002, but construction of its own permanent church did not commence until after 8 February 2004.
The balance of the evidence including the evidence of RS and LB concerned the remaining counts. Although RS's and LB's evidence was relied on as tendency evidence in relation to Counts 1 to 5 (and vice versa), given the absence of verdicts in respect of the counts concerning them it is unnecessary to recount their evidence other than to note the following. RS said that she was in a different year group to NS and not a member of the executive committee during NS's Year 5 class. LB said that she was in the composite class with NS and was taught by Ms Peterson as well as the applicant. She said that when she was in Year 5, she was appointed to an executive committee with NS and RS. However in cross‑examination LB agreed that RS was in a different Year 5 class and not part of the "executive" during that year.
The second contention was that, in effect, it was not reasonably open to the jury to find that the incident the subject of Count 1 occurred. The submissions noted that in the above extract NS stated that "the first few times [she was kissed in the storeroom] it was with, like, the other girls" (see [9]) and that NS said she saw the applicant kiss LB and RS on the lips in the storeroom, when she was in Year 5. The submissions then referred to her evidence that RS was not in her Year 5 class and NS's concession that that was so, although NS maintained that RS was in the storeroom ("during recess and lunchtime") (see [21]). The Crown contended that an acceptance of NS's version was not dependent upon it being accepted that RS was in the same class as her.
As noted, the various witnesses identified that at least LB and NS were on the executive committee during 2000 and they all conveyed a recollection of RS and their being treated favourably by the applicant. At most the evidence about the membership of the executive committee is capable of casting a doubt about the presence of RS being in the storeroom when NS claims she was kissed on the lips by the applicant, as alleged by Count 1. However, any doubt about the verdict of guilty on Count 1 arising from that would only be a doubt that the jury's advantage in seeing and hearing her evidence was capable of resolving (M supra).
Third, the applicant contended that casting doubt on NS's account in relation to Count 1 were the many letters that NS sent to the applicant to the effect that she stated, "that she liked being on the Executive Team, had fun being an Executive Officer, had had an enjoyable year in the applicant's class and would miss him the following year". I do not accept that contention. Nothing in NS's description of the events in the storeroom suggests that she recoiled at the time from the applicant kissing her on the lips. The Crown case was that the applicant groomed her to accept that behaviour and the behaviour the subject of the other charges by, amongst other matters, placing her on the executive team, offering her rewards, and corresponding with her. The correspondence between the applicant and NS did not undermine either her credibility or reliability; in fact, it supported the Crown case.
Having reviewed the evidence of NS, I am satisfied that her evidence in support of Count 2 did involve NS professing an actual recollection of particular "occasions" when the applicant kissed her on the lips at her home as opposed to merely conveying a recollection that he had a habit of doing so or engaged in a pattern of conduct. The questions set out above relevantly commence with NS being asked about such "occasions" and her accepting that she recalled them. The fact that she recalled and recounted numerous such "occasions" does not mean that she was not recalling and recounting the first such occasion which was the basis put to the jury.
The other submission made in relation to Count 2 was to the effect that the evidence concerning the possibility that NS's father or HS "would walk in while NS and the applicant were in the laundry should have given the jury cause to doubt whether the course of conduct which was the subject of Count 2". The inference from NS's evidence that the applicant would kiss her in the laundry as opposed to where the tutoring would occur is that the laundry was a place of relative seclusion that minimised the chance of detection, although it did not eliminate it. NS's description of being kissed by the applicant suggests that the kiss was not of long duration. Someone in the applicant's position would be well able to hear someone entering the house and avoid detection. As McCallum J (as her Honour then was) observed in VP v R [2021] NSWCCA 11, "[e]xperience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending" (at [79]).
The same conclusion is applicable to the third point made by the applicant in relation to NS's evidence which is to the effect that in February 2004 NS did not tell the investigators from the Department of Education about the conduct the subject of Counts 1, 2 and 4. NS was cross‑examined about this and gave an explanation which was apparently plausible given her age and circumstances. The assessment of the explanation given by a witness of how she behaved as a child in these circumstances would be greatly assisted by observing that explanation being given in the witness box as well as observing that witness give evidence over a sustained period. The jury had that opportunity, and this Court did not.
Lastly, the applicant's submissions referred to various issues raised by his counsel before the jury including various inconsistencies between the complainants' evidence and the fact that all three complainants misremembered that RS was in the applicant's class, which was suggestive of collusion between them. The jury's deliberations ceased before any verdicts were given in relation to any count concerning LB or RS so that the jury's assessment of their evidence is not known. In any event, the confusing evidence about who was in what class is hardly demonstrative of collusion. It appears to be more of a product of a relatively fluid situation so far as class groups were concerned in that there was a Year 5/Year 6 composite class and students from other classes spending time in other classrooms during recess and lunchtime. NS's evidence, including her reaction in Year 8 to learning of inappropriate behaviour by adults, the evidence of the other witnesses and the tone, content and volume of correspondence between her and the applicant strongly supported a Crown case that the applicant groomed NS with the objective of engaging in the behaviour the subject of Counts 1, 2 and 4 and did so.
Upon a review of the whole of the evidence, I consider that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on Counts 1, 2 and 4. The evidence adduced by the Crown was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of those counts. I would reject ground 1 of the appeal.
Further, although the trial judge gave the jury a tendency direction in relation to the use of the (direct) evidence in support of each count as supporting the other counts, the jury was also given an "anti-tendency" direction in relation to this context evidence as follows:
"The Crown is not charging via this evidence a course of conduct by the accused but has charged particular allegations arising from what each of the complainant says was a course of sexual misconduct. You are concerned with the particular and precise allegation in each charge. You must not reason from this evidence that just because the accused might have done something wrong to the complainant on some other occasion, he must have done so on the occasions alleged in the indictment. So it is very important to distinguish between the specific tendency evidence being led and this other evidence which is a fairly vague and indeterminate body of evidence. You cannot with that evidence punish the accused for other acts attributed to him by finding the accused guilty of the charges in the indictment.
Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law. You should bear in mind of course that the accused cannot be expected to respond in any meaningful way to generalised allegations. This is particularly so when the events are so long ago. Often the assertions of the witnesses in respect of this body of evidence were so unspecific and so indeterminate that no occasion could be identified, let alone argued about."
If the complaint made in relation this ground was a lack of proper particularisation, then the course taken by the trial judge is a complete answer (cf Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29). His Honour identified the problem and clearly advised the parties before the close of the Crown case of the specific act that the jury would have to consider. The failure of the applicant's counsel to complain would not just simply raise an issue about the operation of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Instead, it would indicate that there was no procedural unfairness in the timing of the notification to the applicant of the precise act relied on in support of each count.
However, the complaint was the reverse. The applicant contended that "the trial judge was not entitled to assist the Crown case by selecting which offence in a continued course of conduct was the one which was the subject of the charge on the indictment." The suggestion that the trial judge was "assist[ing] the Crown case" is baseless. His Honour's fundamental obligation was to ensure a fair trial (Libke v R (2007) 230 CLR 559 at [35]; [2007] HCA 30). One aspect of that obligation is that, where there is ambiguity in the particularisation of the counts on an indictment, a trial judge should require the Crown to "indicat[e] which of the offences revealed by the evidence were the offences charged" (S v The Queen (1989) 168 CLR 266 at 274; [1989] HCA 66 per Dawson J). The complaint that the identification of the "first time" that the applicant kissed NS in the storeroom or the laundry was undertaken by the trial judge as opposed to the Crown Prosecutor could only form part of an allegation of apprehended bias, which is not alleged. In any event it would be untenable given that it is clear that the trial judge was endeavouring to be fair to the accused in identifying a particular act as the basis for each count. The other directions given by the trial judge demonstrate that the trial judge was meticulous in ensuring fairness to the applicant.
The final complaint of the applicant in support of this ground was as follows:
"For the reasons set out in the context of Ground 1, the subject direction should have resulted in the acquittal of the applicant on Count 1. However, the direction may nonetheless have occasioned a miscarriage of justice by inviting the jury to find that evidence of an individual occurrence within the charge period could be inferred from the generalised evidence of a course of conduct during that time. The direction therefore invited the jury to reason to conviction in circumstances where there was otherwise insufficient evidence for them to do so. In relation to Count 2, the direction must have had that effect on the jury deliberation process as there was no evidence of an individual event upon which they could otherwise draw."
This contention is simply a restatement of the complaints made in relation to ground 1 about the insufficiency of the evidence to prove the charges. It has already been rejected.
I would reject ground 2.
On 21 September 2021, the Registrar released to the parties a further report prepared by or on behalf of the Sheriff entitled "Supplementary Jury Investigation Report" (the "Sheriff's Second Report"). The Sheriff's Second report outlined the observations of the relevant sheriff's officers concerning the matters raised in Jury Note 13.
Having received the two reports, the applicant did not press ground 3 in its original form but instead sought and was granted leave to amend the ground as set out above. At the hearing of the appeal, it was confirmed that the applicant did not seek to rely on the bullying that was alleged in Jury Note 13 but instead relied on other matters disclosed in the Sheriff's reports, as set out below.
Later in the interview, Juror 5 was asked:
"[Q]: … is there … information you can provide me in relation to the conduct and behaviour of jurors within that deliberation process securing a verdict[?]
[A]: Okay [y]es I can okay um I observed okay from day one okay a jury member would single out different jury members then each time we would hear from a witness and we'd have a break they would on the way back from the actual jury from the actual courtroom back the jury room, she would talk to different people and discuss how damming the evidence that we had just heard was um this was also done to me but I I I did mention that um I had to absorb the information first before I could actually in my own head before I could um discuss it with the rest of the jurors"
The suggestion that one juror had "made up their mind on the first day" is the basis for particular (a) of amended ground 3 of the notice of appeal. The suggestion that one juror utilised their own experience of being sexually assaulted as a child in their decision making is the basis for particular (b) of ground 3.
The applicant's written submissions also referred to the following responses of Jurors 2, 4 and 8.
Juror 2 was asked whether any juror had been influenced by any other factors that weren't associated with the trial "w[h]ere there [was] something going … on in [their] personal lives that influenced … a decision being reached". Juror 2's response included the following:
"Um there was there was one juror who um used personal examples of her own uh family to use as a reason for why someone would or wouldn't ah not do the acts that the allegations were about so yeah."
Juror 4 was asked as follows:
"[Q]: Okay Okay so what can you tell me about the deliberation process the jurors used[?]
…
[Q]: So what can you tell me about tensions and behaviours amongst the jurors during that deliberation process[?]
[A]: Um I feel that most of the people were quite constructive and were engaged in the process and wanted to do the right thing and do the like do their job as jurors um so that was I would say 11 of the people including myself were that way inclined um there was one juror who talked over everyone and wouldn't engage".
Juror 8 was asked:
[Q]: Okay what can you tell me about the jurors having difficulty when deliberating on those remaining counts after the verdict on four counts had been reached
[A]: Um oh dear um like I said the majority of the juror jury um oh they they didn't seem to be there wasn't any um um shouting or any uh accusations we just sort of try to work out what we were you know sort of the with the evidence that was in front of us and sort of try to all concur um and then it never always worked out there was always um somebody that wasn't either listening or didn't understand what was being put in front of them"
For the sake of completeness, I note that Jurors 1, 3, 6, 7, 9, 10, 11, 12 denied any knowledge that the verdicts of any of the jurors were influenced by other factors not associated with the trial or at least could not recall such influence.
Section 68C(1) of the Jury Act prohibits a juror during the trial from making any inquiry for the purpose of obtaining information about the accused or any matters relevant to the trial except in the proper exercise of their functions as a juror.
Section 73A deals with Sheriff's investigations. It provides:
"73A INVESTIGATION BY SHERIFF OF JURY IRREGULARITIES
(1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation.
(2) Section 68A (1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation.
(3) Section 68B (1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation.
(4) Section 139 (2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official).
(5) The sheriff may, despite sections 29 and 68, include a juror's name or other matter that identifies a juror in a report to the court under this section."
The above sections were inserted into the Jury Act by the Jury Amendment Act 2004 (NSW). Sections 68A and 68B replaced earlier provisions broadly directed to the same topic. Sections 68B and 73A were new. As noted by Basten JA in Petroulias v The Honourable Justice McClellan [2013] NSWCA 434 ("Petroulias") at [37], the Second Reading Speech for the Jury Amendment Act stated that the amendments were "a response to two major Supreme Court criminal trials in which convictions had been overturned because the verdicts of the juries had been tainted by misconduct, referring to R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 [("R v K")] and R v Skaf [2004] NSWCCA 37; 60 NSWLR 86" ("Skaf"). The relevant misconduct in both cases involved some members of the jury conducting their own investigation into matters arising at the respective trials. R v K involved some jurors making inquiries on the internet about the accused's antecedents. Skaf involved two jurors visiting a park to clarify how light it was at dusk, that being a relevant issue at the trial. In both cases, evidence of the juror misconduct was held not to be excluded by the exclusionary rule as it was then understood (R v K at [54]; Skaf at [227] to [229]).
As noted in Agelakis v R [2020] NSWCCA 72 ("Agelakis") at [27], in the part of the Second Reading Speech that concerned s 73A the relevant Minister stated:
"The final improvement proposed by the bill is to provide a power to the Office of the Sheriff to investigate jury irregularities. Item [7] inserts a new section 73A, which empowers the Office of the Sheriff, at the request of the court, to investigate and report back to the court on a matter where a serious irregularity is suspected to have occurred. This new section will formalise a process whereby the trial court or appeal court can ask the Sheriff to investigate a suspected irregularity. It is the function of the Sheriff to inform the court of the nature of an irregularity. The court will use this information to determine whether to discharge a jury, or whether to allow an appeal against a conviction." (Emphasis added)
In Petroulias, Basten JA, with whom Bathurst CJ and Beazley JA relevantly agreed, reviewed these provisions. In relation to whether these provisions operated to limit or even remove the exclusionary rule, his Honour stated as follows (at [44] to [49]):
"Section 68A was introduced in 1987, thus predating s 73A. So far as the present matter is concerned, the effect of s 73A(2) is to lift the prohibition on the Sheriff soliciting information from a former juror with respect to the deliberations of the jury. That raises two questions of immediate concern. First, was s 68A intended to codify or replace the general law prohibition, or was it intended to supplement the general law by imposing a severe penalty for contravention? Secondly, if the Sheriff has an unrestrained power to inquire into the deliberations of a jury, for the purpose of reporting to the court, does it follow that the court may (or should) take account of evidence as to the deliberations of the jury in determining an appeal in respect of which it is said that the jury has misconducted itself?
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The statutory amendments do not in their terms suggest (nor is there any support for such a proposition in the Second Reading Speech to which the Court was taken) that the general law prohibition on revealing jury deliberations was to be cast aside when the court thought it appropriate to investigate improper conduct on the part of a juror or jurors: such a result should not be adopted absent a necessary implication. …
One might add that the policy of attaining frank and open communications between jurors is diminished, if not destroyed, not only by the court admitting evidence of those discussions (which should not happen, unless to reveal an offence or by way of similar exception), but also by public discussion by the jurors speaking either to journalists or by blogs on the internet. One juror's self-indulgent publication, without the knowledge or prior consent of each other juror, is a gross violation of this principle. It is apparently an area where civic duty, self-restraint and good sense can no longer be relied upon. However, the ill-discipline of jurors does not mean that the courts should abandon their own principle of refusing to admit evidence of what took place in the jury room by way of deliberation.
There is no necessary implication that the enactment of s 68A was intended to diminish the jealous protection accorded by the general law to jury deliberations: indeed, the clear implication is to the contrary." (emphasis added)
This passage is directed to the effect of s 68A on the exclusionary rule rather than s 73A. That said, Petroulias is authority for the proposition that none of the current provisions of the Jury Act infringe on the exclusionary rule confirmed in Smith.
In Agelakis, Bathurst CJ queried the conclusion of Basten JA in Petroulias bearing in mind that the Second Reading Speech specifically contemplated that the results of the Sheriff's investigation might be used by this Court to consider whether to allow an appeal against a conviction. His Honour stated (at [29] to [31]):
"It is arguable that it is a necessary implication from the terms of s 73A, considered in context, that use could be made of material obtained by the Sheriff, at least for prosecutions for contraventions of s 68B and s 68C of the Jury Act. Further, contrary to what was said by Basten JA, the Second Reading Speech does seem to contemplate that a Court could use the information obtained by the Sheriff in considering whether to allow an appeal against a conviction (bearing in mind the limitations that can be made on the use of extrinsic material, see Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25]; Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40 at [110]).
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In the present case, no direct challenge was made to Petroulias, which was a unanimous decision of the Court of Appeal sitting also as the Court of Criminal Appeal. Having regard to the facts of the present case, it is unnecessary to reach a final view on the admissibility of material that is obtained as a result of an investigation pursuant to s 73A."
When Petroulias was decided the High Court had reserved its decision in Smith. In Petroulias, Basten JA noted that, but referred to the decision under appeal in Smith in which it was held that a juror note alleging physical coercion was rendered inadmissible by the exclusionary rule (at [40]; Smith v The State of Western Australia (2013) 226 A Crim R 541; [2013] WASCA 7). The appeal in Smith was upheld. As noted, their Honours held that evidence of such coercion is not excluded by the exclusionary rule (at [36] and [48]). Hence the facts of Smith are an example of a form of "misconduct" that may be investigated by the Sheriff and the subject of a report which could be tendered and admitted as part of a challenge to a jury verdict without infringing the exclusionary rule. Similarly, if the evidence of the instances of juror misconduct that occurred in R v K and Skaf was revealed by a Sheriff's report that evidence would not be rendered inadmissible by the exclusionary rule and could be used by this Court to quash a conviction. The making of those inquires by the jurors in that case did not involve any part of the free and frank deliberations of the entire jury.
With respect to Bathurst CJ in Agelakis, his Honour seems to treat Basten JA's conclusion that the above provisions do not abrogate the common law rule as necessarily excluding the possible use of any report into juror misconduct as a basis for challenging a conviction. However, the reasoning in Smith means that Basten JA's conclusion in Petroulias does not have that effect. Smith confined, or at least clarified, the scope of the exclusionary rule so that various forms of juror misconduct are not to be considered part of the jury's deliberations. Hence, evidence of that misconduct, including evidence yielded by a sheriff's investigation, would not be rendered inadmissible by the exclusionary rule and would be available to this Court to consider in deciding whether to allow an appeal against conviction. Once that is appreciated, there is no reason to doubt this aspect of Petroulias and it should be followed in this Court.
Section 73A(1) of the Jury Act empowers the Sheriff, upon the making of the relevant request, to conduct an investigation because there is a reason to suspect that the verdict of a jury in a criminal trial "may be, or may have been, affected because of improper conduct by a member or members of the jury". The conduct of such an investigation is not impeded by the prohibitions in ss 68A and 68B. There is no definition of "improper conduct" in the Jury Act and it could include matters specifically prohibited by the Jury Act or other statutes. Smith confirms that evidence of most, if not all, such forms of misconduct will not be rendered inadmissible by the operation of the exclusionary rule. Such evidence will still be admissible in this Court and available to be used as a basis for challenging the verdict, an outcome that is entirely consistent with both the Second Reading Speech noted above and the continued application of the exclusionary rule in these circumstances.
Of necessity an investigation by a Sheriff may not yield evidence of juror misconduct although it might reveal matters that reflect on the juror's verdict. For example, it might reveal evidence from one juror that another juror advocated a misstatement of a trial judge's direction on a matter of law. The exclusionary rule enunciated in Smith would exclude such evidence being admissible and none of the provisions in the Jury Act including s 73A affect that. That would be an instance where the finality of the proceedings and respect for the necessity for free and frank discussions amongst jurors would predominate over any concern about the conviction. On the other hand, such a report may reveal that extraneous and prejudicial material was left in the jury room by a third party (and thus did not involve juror misconduct). In such a case the exclusionary rule enunciated in Smith would not preclude such evidence being adduced in this Court as a basis for challenging the conviction.
Consistent with Petroulias, nothing in the statutory provisions set out above or the secondary materials warrants the conclusion that the exclusionary rule enunciated in Smith has been abrogated or diminished. The provisions and the rule both operate such that, consistent with the Second Reading Speech, in some circumstances the evidence produced by an inquiry conducted pursuant to s 73A of the Jury Act can be admitted in this Court and relied on as part of a challenge to a conviction.
I would reject the evidence adduced in support of this ground on the basis of the exclusionary rule. In light of that ruling the balance of the material in the Sheriff's First Report and Sheriff's Second Report sought to be tendered is irrelevant. Accordingly, I would reject the tender of those two reports and their annexures.
In allowing the appeal, Sheller JA said at [35]-[36]:
"In my opinion, the trouble in this case is that the note indicated that by the time addresses concluded and before the summing-up some jurors or a juror had made up their minds or his mind or her mind on day one. That statement was made in the context of some of the jurors or a juror being "slightly bias [sic] against drugs". In my opinion, the appellants or a fair-minded and informed member of the public might entertain a reasonable apprehension that the jury would not discharge its task impartially.
In fact, despite the careful argument advanced on behalf of the Crown, both in writing and orally, I find it hard to reach any other conclusion. To my mind, this is a clear case where such a fair-minded and informed member of the public would entertain a reasonable apprehension that the jury could not discharge its task impartially, that a juror or jurors were biased and had pre-judged the case on day one."
The applicant submitted that the account of Juror 5 is "evidence of a character similar to the jury note in Czajkowski". The applicant contended that while there was no evidence that the person who appeared to have made up their mind on day one had a particular bias against alleged sex offenders, there was evidence to suggest that at least one juror did not listen to the evidence at trial with an open mind. The applicant argued that a fair-minded and informed member of the public might entertain a reasonable apprehension that at least one juror had pre-judged issues of fact.
The applicant submitted that the evidence of a juror having pre-judged the matter was extrinsic to jury deliberations and therefore not caught by the exclusionary rule, as demonstrated by the decision in Czajkowski.
The Crown contended that Czajkowski was not a case concerned with the admissibility of evidence relating to the jury's deliberations obtained after a verdict had been entered. Rather, it concerned whether a jury ought to have been discharged when improper conduct by a juror was brought to the attention of the Court during the trial. Accordingly, the operation of the exclusionary rule did not squarely arise for consideration in Czajkowski.
The Crown further argued that, even if Czajkowski could fairly be said to have been a case concerning the applicability of the exclusionary rule, it did not support the proposition that a juror having pre-judged the matter was extrinsic to jury deliberations. The Crown submitted that, taken at its highest, the reasoning in Czajkowski went only so far as to suggest that evidence of bias directed against the accused may be considered extrinsic to the exclusionary rule.
Another argument advanced by the Crown was that the facts in Czajkowski were seemingly unique, in that the jury note disclosed actual bias on the part of at least one juror. In the present appeal there was no evidence of any juror having a particular bias against alleged child sexual offenders.
The exclusionary rule was not discussed in Czajkowski. Sheller JA's attention was focussed on whether a fair-minded and informed member of the public would entertain a reasonable apprehension that the jury would not discharge its task impartially. Sheller JA referred to Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 ("Webb"). His Honour said at [17]:
"In Webb and Hay v R (1994) 181 CLR 41 at 50, Mason CJ and McHugh said:
"In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done.""
The issue in Webb was whether the jury should have been discharged when a juror gave a bunch of flowers to a person in the courthouse with a request that the flowers be given to the victim's mother. The accused were standing trial for the victim's murder. Applications by counsel for the accused to discharge the jury were rejected by the trial judge, who stressed to the jury the need for them to have regard only to the evidence and to put aside all feelings of sympathy or emotion. The majority (Mason CJ, Toohey and McHugh JJ) in the High Court held that in the circumstances a fair-minded observer would not have an apprehension of bias or lack of impartiality on the part of the juror and the appeal failed. In Czajkowski, Sheller JA distinguished Webb on the facts.
In Smith, the High Court, in considering the proper approach to a miscarriage of justice, endorsed the reasonable apprehension test that was formulated in Webb. The High Court said at [54]-[55]:
"If there is evidence capable of belief which gives rise to reasonable ground for suspicion that one juror has exercised unlawful intimidation over another, then, on the face of things, there has been a serious breach of the presuppositions of the trial. That breach casts a shadow of injustice over the verdict. In Webb v The Queen, Mason CJ and McHugh J said that:
"the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
The other members of the Court agreed with the test so formulated, although Brennan and Deane JJ differed from the majority in their view of the result of the application of the test in that case. This test should have been applied to determine whether a miscarriage of justice occurred in this case. If the note was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that a juror has not discharged his task because of unlawful coercion, the appeal should have been allowed unless other evidence put the integrity of the verdict beyond question. If the shadow of injustice over the verdict could not be dispelled, the proper course for the Court of Appeal would have been to allow the appeal, quash the conviction and order a new trial." (Footnotes omitted).
In Smith, the High Court made other references to "the shadow of injustice". When considering the exclusionary rule, the High Court said at [46]:
"The conduct described in the note in the present case tends to cast a shadow over the administration of justice in this case in a way that lawful but irresponsible behaviour by a juror, careless of his or her oath, does not. The risk that a juror may not be true to his or her oath because of his or her personal eccentricities is a risk which is inherent in a system of trial by jury, whereas the risk of the intimidation of jurors by unlawful threats of violence from other jurors is not." (Footnotes omitted.)
The High Court emphasised at [28] that "[w]hat is extrinsic, and therefore outside the exclusionary rule is not a question which can always be answered by a mechanical application of rules about the source of evidence or the location of an event."
Whilst it is true that a juror having made up their mind on the first day of the trial was not considered in Smith, a juror's pre-judgment casts a shadow over the administration of justice. In my view, the evidence of Juror 5 as to a juror having made up their mind on the first day of the trial falls outside the scope of the exclusionary rule and is admissible.
In this regard, I respectfully disagree with Beech-Jones CJ at CL.
The test to be applied in determining whether a miscarriage of justice occurred is whether the evidence of Juror 5 is capable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror had not discharged their task impartially and had pre-judged the case, having made up their mind on day one.
In my opinion, the perception of one juror that another juror had made up their mind on the first day of the trial falls far short of giving rise to such a reasonable apprehension or suspicion. What plainly emerges from the Sheriff's investigation are the significant differences in the perceptions of the 12 jurors as to the attitude and conduct of their fellow jurors. No other juror informed the Sheriff that another juror's mind had been made up on day one. Furthermore, the evidence does not suggest that a juror was biased against alleged sex offenders.
I should make it clear that I agree with Beech-Jones CJ at CL at [107] above that the supposed disclosure by a juror of strong and early views of the evidence to other jurors was an aspect of the jurors' deliberation to which the exclusionary rule applied and was not admissible.
LONERGAN J: I have had the very substantial benefit of reading the judgment of Beech-Jones CJ at CL in draft. I agree that grounds 2 and 3 of the appeal should be dismissed for the reasons given by his Honour.
In respect of ground 1, I have borne in mind the advantage the jury had over this Court in observing the complainant giving her evidence about the conduct the subject of the charges. I have carried out my own examination of the record to determine whether, on the assumption the jury found the complainant to be both credible and reliable, there were nevertheless inconsistencies, discrepancies or other inadequacies in the evidence that meant that the jury ought to have entertained a reasonable doubt as to the applicant's guilt of counts 1, 2 and 4. I am satisfied there were none, and so ground 1 of the appeal should also be dismissed.
Any doubt about the verdict of guilty on Count 1 arising from NS's evidence in light of competing evidence would only be a doubt that the jury's advantage in seeing and hearing her evidence was capable of resolving (at [46], [116] and [139]).
M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied; AJ v R [2022] NSWCCA 136; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 considered.
NS's evidence in support of Count 2 involved her professing an actual recollection of particular "occasions" when the applicant committed the offence constituting Count 2. The fact that she recalled and recounted numerous such "occasions" does not mean that she was not recalling and recounting the occasion particularised by the trial judge as put to the jury (at [52], [116] and [138]).
KRM v R (2001) 206 CLR 221; [2001] HCA 11; RD (a pseudonym) v R [2021] NSWCCA 94 applied; R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep); R v SLJ (2010) 24 VR 372; [2010] VSCA 16; REE v The Queen (2010) 203 A Crim R 11; [2010] VSCA 124; Wade (a pseudonym) v The Queen [2018] VSCA 304 considered.
In relation to Counts 1 and 4, the trial was conducted on the basis that the date range of the offending conduct was not critical and with Count 1 the Crown could rely on the first time that NS said that she was kissed by the applicant without any unfairness having been occasioned. No complaint was made by the applicant's counsel at trial on these issues (at [43] to [44], [54], [116] and [138]).
WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58; Makarov v R (No 1) [2008] NSWCCA 291 applied.
Evidence of correspondence between the applicant and NS was not inconsistent with NS's evidence that she had been kissed by the applicant prior to the letters she sent him. The correspondence supported the Crown case that the applicant groomed her to accept his conduct (at [56], [116] and [138] to [139]).
Any doubt about NS's credibility and reliability in relation to Counts 1, 2 and 4 arising from the applicant's acquittal on Count 3, or in relation to NS's late disclosures of the offending conduct relating to Counts 1, 2 and 4, would only be a doubt that the jury's advantage in seeing and hearing NS's evidence was capable of resolving (at [58] to [59], [116] and [138] to [139]).
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 considered.
As to issue (ii), per Beech-Jones CJ at CL (Price and Lonergan JJ agreeing):
By identifying the act the subject of each of Counts 1 and 2 as the first occasion when the applicant kissed NS (in either the storeroom or her laundry at home), the trial judge was not "assist[ing] the Crown case". The trial judge's obligation was to ensure a fair trial. Where there is ambiguity in the particularisation of the counts on an indictment, a trial judge should require the Crown to indicate which offences were those charged. The directions given by the trial judge as to the particularisation of the counts and how the balance of the evidence could be used demonstrated that the trial judge ensured fairness to the applicant (at [68], [116] and [138]).
Libke v R (2007) 230 CLR 559; [2007] HCA 30; S v The Queen (1989) 168 CLR 266; [1989] HCA 66 applied; Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 considered.
As to issue (iii), per Beech-Jones CJ at CL (Price and Lonergan JJ agreeing):
The exclusionary rule to the effect that, after verdict, evidence of the jury's deliberations is inadmissible is not abrogated or modified where evidence of such deliberations is obtained from an investigation conducted by the Sheriff under s 73A of the Jury Act. The material produced by such an inquiry can in some circumstances be admitted and relied on as part of a challenge to a conviction without infringing the exclusionary rule (at [104], [116] and [139]).
Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3; Petroulias v The Honourable Justice McClellan [2013] NSWCA 434 applied; Agelakis v R [2020] NSWCCA 72 considered.
As to issue (iv) per Beech-Jones CJ at CL (Price and Lonergan JJ agreeing):
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. Evidence that a juror disclosed and relied on their own experience of being sexually assaulted is rendered inadmissible by the exclusionary rule (at [105] to [106], [116] and [139]).
Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3; Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 applied.
As to issue (v) per Beech-Jones CJ at CL (Lonergan J agreeing):
Evidence to the effect that one juror perceived another juror to have made up their mind on the first day was also rendered inadmissible by the exclusionary rule. The exclusion of such material 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 (at [107 and [138]).
Smith v The State of Western Australia (2013) 226 A Crim R 541; [2013] WASCA 7 applied; R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 considered.
Per Price J:
A juror's pre-judgment casts a shadow over the administration of justice. Evidence of one juror that another juror made up their mind on the first day of the trial falls outside the scope of the exclusionary rule and is admissible (at [133]).
R v Czajkowski; R v Shepherd [2002] NSWCCA 530 considered.
As to issue (vi), per Beech-Jones CJ at CL (Price and Lonergan JJ agreeing):
The contention that a juror was biased because they relied in their deliberations on their own experience of being sexually assaulted and disclosed that to other jurors failed because there was no evidence to support it. Even if there were evidence that they had relied on that experience it would not give rise to an apprehension of bias. Jurors are entitled to evaluate evidence by reference to their own experiences (at [109], [116], [137] and [138]).
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71; R v Goodall (2007) 169 A Crim R 440 applied.
As to issue (vii) per Price J (Beech-Jones CJ at CL and Lonergan J agreeing):
The perception of one juror that another juror had made up their mind on the first day of the trial falls far short of giving rise to such a reasonable apprehension or suspicion that a juror had not discharged their task impartially and had pre-judged the case, having made up their mind on day one (at [133] to [136], [110] and [138]).
Smith v The State of Western Australia (2013) 226 A Crim R 541; [2013] WASCA 7; R v Czajkowski; R v Shepherd [2002] NSWCCA 530; Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 applied.