Youssef (a Pseudonym) v The Queen [2019] VSCA 240

1 An indictment filed in the County Court charged the applicant with rape (charge 1);[2] trafficking in a drug of dependence (methylamphetamine) to a child (charge 2);[3] and possessing a drug of dependence (methylamphetamine) (charge 3).[4]

2 A jury convicted the applicant of each charge on 2 March 2018.

3 Following a plea, on 21 June 2018 the trial judge sentenced the applicant to be imprisoned for eight years and nine months on charge 1; for six months on charge 2; and for one month on charge 3. Three months of the sentence of imprisonment on charge 2 was ordered to be served cumulatively with the sentence on charge 1, resulting in a total effective sentence of nine years' imprisonment. The judge fixed a non-parole period of six years.

4 The applicant now seeks leave to appeal against both conviction and sentence.

5 As to conviction, the applicant relies on two grounds:

1. The verdict of the jury in relation to charge 2 (trafficking a drug of dependence to a child) is unreasonable or cannot be supported having regard to the evidence.
2. As a result of an irregularity in the trial - namely, the separation of jurors from each other and from the jury keepers during the course of deliberations - there has been a substantial miscarriage of justice.

6 For the reasons that follow, we would grant leave to appeal against conviction on grounds 1 and 2; allow the appeal; enter a verdict of acquittal on charge 2 (the trafficking charge); and order that there be a new trial on charge 1 (rape).

7 Given our conclusions with respect to conviction, we need not consider the application touching sentence.

8 It is necessary to give a brief outline of the essential facts.

9 In April 2015, the applicant operated the Double Apple Shisha Lounge in Hampton Park. He was then aged 31 years.

10 At about 5.00 pm on 3 April 2015, the female complainant, then aged 16, visited the Lounge with two friends, respectively aged 14 and 16. They there met three others, one of whom introduced the complainant to the applicant, who said his name was 'Sam'. In the course of subsequent conversation, the complainant told the applicant that she was 16 years of age.

11 During conversation, the applicant offered the complainant 'ice' (methylamphetamine) in exchange for her performing oral sex on him. He told her that if she had been older than 16 he would have had penile-vaginal sex with her. The complainant offered the applicant a kiss on the cheek in return for the drug.

12 At some point the complainant walked to a toilet at the rear of the premises. She was followed by the applicant who kissed her on the lips, and then lifted her top and kissed her left breast. Having done so, the applicant turned the complainant around, bent her forward and pulled her pants and underwear down. He then inserted his penis into the complainant's vagina for a short time, following which he removed his penis and ejaculated onto the toilet floor.[5] The complainant left the toilet and told one of her companions what had occurred. A little later, the applicant emerged from the toilet and handed the complainant a small quantity of ice.

13 The next day, 4 April 2015, the complainant contacted police, resulting ultimately in the applicant's arrest on 30 April 2015.

Conviction ground 1 - Applicant's conduct did not constitute trafficking

14 As we have indicated, we consider that the conviction on charge 2 cannot be permitted to stand.

15 By s 71AB of the Drugs, Poisons and Controlled Substances Act 1981, it is an offence to traffick a drug of dependence to a child.[6]

16 In relation to a drug of dependence, the definition of traffick in s 70(1) includes 'sell, exchange, agree to sell, offer for sale or have in possession for sale'.

17 At common law, trafficking connotes the movement of illicit drugs from source to consumer in a commercial setting (that is, it can fairly be inferred that someone is making a profit).[7] A person who merely gives drugs away is not involved in trafficking those drugs.[8]

18 Although supplying a drug in exchange for sexual services might constitute trafficking,[9] the respondent fairly conceded in this Court that there was no evidence that the applicant gave the complainant methylamphetamine as a form of payment for her participation in sexual activity (as opposed to, say, an attempt to mollify her). Indeed, the complainant's evidence was that, although the applicant had offered her ice in exchange for sexual services, she had not agreed to that course.

19 Given the absence of any commercial element in the applicant's supply of methylamphetamine to the complainant, there was no proper basis upon which the applicant could have been convicted on charge 2. His conviction for trafficking in a drug of dependence to a child must therefore be set aside.

20 The respondent submitted in writing that, should the conviction for trafficking a drug of dependence to a child be set aside, the Court ought to substitute judgment of conviction[10] for an offence under s 71B(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981, which provides that a person who 'supplies a drug of dependence to a child for the use of that drug of dependence by that child' is guilty of an indictable offence. Although it might be thought to be likely that the applicant supplied the complainant the methylamphetamine for her use, the simple fact is that the jury were not asked to consider that element. In those circumstances, we consider that the proper course is to enter a judgment of acquittal on charge 2.[11]

Conviction ground 2 - An irregularity concerning the jury

21 At the conclusion of the judge's charge to the jury on Tuesday, 27 February 2018, jurykeepers were sworn pursuant to s 49 of the Juries Act 2000 ('the Act'), which provides that, 'If a jurykeeper is required in a trial, the jurykeeper must take an oath or make an affirmation in the form of Schedule 4'.[12]

22 Jurykeepers having been sworn, the judge then addressed the following remarks to the jury:[13]

With that, members of the jury, I invite you to retire to the jury room to commence your deliberations. ... Before we do that we're going to give you the separation oath because you'll be commencing your deliberations and that will avoid us needing to bring you back to court in order to excuse you for the balance of the afternoon.

So ordinarily I'd invite you to remain in the jury room to deliberate until 4.15, our usual sitting hours, then to go home, but we will administer the separation oath now so that you don't have to come back into court before you go home. So I'll just allow us to do that and then we'll invite you to return in the morning, once you leave at 4.15, return in the morning at 10.15 to resume at 10.30 as though we were sitting in court, and just resume your deliberations if you haven't concluded. ...

23 A 'separation oath' pursuant to s 50(2) of the Act was then administered. Moments later the jury retired (at 2.30 pm).

24 Section 50 of the Act permits a court to allow a jury to separate, or an individual juror to separate from the jury after retirement (if the court is of the opinion that there is good reason to do so), so long as any separating juror has taken an oath or affirmation in the form prescribed by Schedule 5. The section provides:

50 Court may allow jury to separate after retiring to consider verdict

(1) Subject to subsection (2) but despite any rule of law or practice to the contrary, the court may -

(a) allow the jury to separate; or

(b) allow an individual juror to separate from the jury if, in the opinion of the court, there is good reason to do so -

after the jury has retired to consider its verdict and before the verdict is given or the jurors are discharged.

(2) A court may allow a jury or juror to separate in accordance with subsection (1) only if each separating juror has taken an oath or made an affirmation in the form of Schedule 5.[14]

25 Although the trial transcript does not reveal what occurred later in the afternoon of 27 February 2019, given what the judge told the jury immediately before their retirement, it may be presumed that the jury left the court precincts at around 4.15 pm, and returned the next day at around 10.15 am to resume deliberations at 10.30 am. And given that the judge had sworn jurykeepers, it may readily be inferred that the judge anticipated that, upon resuming their deliberations, the jury would do so subject to the jurykeepers' supervision (and in conformity with the jurykeepers' oaths or affirmations).

26 The next day, Wednesday, 28 February 2018, at 2.18 pm, the trial judge informed counsel 'that a serious mistake has been made by one of the jurykeepers in this matter, as a result of which a number of jurors left the precinct of the court ... without being accompanied [by a jurykeeper]'. Her Honour made clear that so much had occurred without her foreknowledge, and that she only became aware that jurors had been permitted to separate without her permission when she was walking in the city and noticed an unaccompanied juror walk past. Enquiries that her Honour had made revealed 'that due to a mistake which obviously is a serious mistake, a number of jurors were permitted to leave the building'.

27 After discussion with counsel as to a suitable course to adopt, shortly after 3.08 pm the trial judge provided each juror with a questionnaire containing two questions: first, 'Did you leave the jury room at any time during lunch time?'; and, secondly, 'While outside the jury room, did you discuss the case with any other juror or any other person or did anyone else discuss the case with you?'. The jury completed the questionnaire then returned to the jury room at 3.13 pm .

28 Taken at face value, the answers given in the questionnaire revealed that ten jurors had left the jury room (one of those simply to use a vending machine in the next room). All of those jurors, however, answered the second question in the negative.

29 Notwithstanding that the judge characterised what had occurred as a 'serious mistake', counsel for the applicant did not seek a discharge of the jury. Rather, he submitted that 'we continue on with this jury'.

30 In response to that submission, the trial judge observed that it is 'a fundamental requirement' that the jury be supervised, and that 'even if you are minded to go ahead, I'm not sure that one should'. She then sought the views of the prosecutor.

31 The prosecutor observed that, 'Classically [he] would take a passive role in this sort of issue because it's fundamentally the accused and his right to fair trial' - we would not endorse this observation - but then submitted that, 'Your Honour's overriding obligation of course is to the greater interest of justice and whether or not the error that has taken place is so egregious as to require a discharge'. He told the judge that he shared defence counsel's 'comfort from the answers that have been given' and submitted 'that whilst there has been a breach of protocol, it hasn't been so egregious as to warrant the discharge [of the jury]'.

32 Her Honour decided not to take a verdict until she had time to further consider the matter. She then sent the jury away until the following day, reminding them that they should not leave their room except in the company of jurykeepers. (Despite being asked to do so by defence counsel, however, she did not 'remind them of their oath'.)

33 The next day, Thursday, 1 March 2018, the prosecutor drew her Honour's attention to CMG[15] and submitted that

whilst there is a material irregularity, that irregularity in light of the separation oath and in further light of the responses given by the jury to those questions that were enquired of them, means that there is no miscarriage of justice and there is no basis to conclude that such a perception of miscarriage could exist in a reasonable observer of the process. Accordingly our position is that Your Honour would be correct to leave this to the jury and allow the trial to continue to verdict.

34 Defence counsel confirmed his initial position that the trial should continue.

So I will simply allow the jury to continue its deliberations, but I will simply tell the jurykeepers that if at lunchtime today any jurors wish to leave the building they'll leave as a group with the jurykeeper and remaining jury - jurors will remain here with another jurykeeper. ... Lunch is ordinarily provided, but it was provided really, as I understand it from my extensive enquiries since yesterday, as a convenience to avoid the necessity for jurors to leave the building if they wished to continue deliberating but not to force them ... to stay and to sit on. ... And not to have a break if they wished to do so. ... But in any event out of an abundance of caution that will be my instruction. ... If anybody leaves the building they will leave with one jurykeeper; the remainder will be here with another jurykeeper.[16]

• First, having sworn jurykeepers prior to delivering the case to the jury, the judge must have considered that 'a jurykeeper [was] required in [the] trial' in order to ensure that - 'except on the order of the court' - the jury would not be permitted, directly or indirectly, to communicate with any person (or any person with any of them).

• Secondly, immediately before their retirement, the judge informed the jury that 'we will administer the separation oath now so that you don't have to come back into court before you go home'.

• Thirdly, given the judge's reaction the next day 'that a serious mistake has been made by one of the jury keepers in this matter, as a result of which a number of jurors left the precinct of the court ... without being accompanied [by a jury keeper]', it is plain that her Honour had not contemplated that the jury would separate at lunchtime that day without her express permission, or that any juror would be permitted to be unsupervised by a jurykeeper.

37 In this Court, counsel for the applicant submitted that notwithstanding the relaxation by statute of the strict common law position proscribing jury separation,[17] it remains a cardinal principle of trial by jury that jurors not separate when they are deliberating. Despite no application having been made by defence counsel, the jury should have been discharged once it became clear that a number of jurors had left the deliberation room unsupervised by a jurykeeper. The 'serious mistake' involved a failure by the jurykeepers to adhere to their oaths (or affirmations). Counsel submitted that in this case jurors separated from each other in circumstances where there was no good reason for them to do so, and where the trial court had not had an opportunity to consider whether there was a good reason for them to do so. Jurors went their own separate ways while not in the company of other jurors or the jurykeepers. So much, counsel submitted, was an irregularity that vitiated the verdicts.[18] Counsel also relied on the following passage from Lyons:[19]

... The common law has long required that the jury be kept separate.[20] The possibility that, while the jury is kept together, one or more jurors may have communicated with a person other than a fellow juror (or officer of the court) is an irregularity which has been held to vitiate the verdict.[21] The presence of a person other than a juror in the jury room during the course of deliberations is an incurable irregularity regardless of whether the person takes any part in the jury's deliberations.[22] The prohibition on the presence of a thirteenth person in the jury room protects the jury from the suggestion of external influence and promotes the frank exchange of views. It is the latter consideration that informs the exclusionary rule which precludes the admission of evidence of the deliberations of the jury.[23] Each member of the jury is free to speak in the knowledge that no one other than fellow jurors, each of whom is bound by the oath taken at the commencement of the trial and each of whom will be responsible for the ultimate verdict, hears what is said.

38 Finally, counsel for the applicant submitted that it is clear that the jury's separation oath (or affirmation) was limited to their separation at 4.15 pm on the day that it was administered. That being so, before permitting the jury to separate, s 50(1) of the Act required the trial judge to make a further decision as to whether 'there [was] good reason to do so'.

39 In oral argument, counsel for the respondent accepted that what had occurred in this case was an irregularity that was 'material'. Counsel for the respondent submitted in writing, however, that the strictness of the common law rules regarding jury separation have been relaxed by statute. Recent authorities, it was submitted, make it clear that irregularities in the management of a jury will not necessarily vitiate the verdict.[24] The irregularity which occurred in the management of the jury, the respondent's counsel submitted, is not likely to have raised a suspicion in the mind of a reasonable bystander about the fairness of the trial. There were six reasons why the irregularity cannot be said to have given rise to a substantial miscarriage of justice. First, the judge directed the jury at the outset of the trial that they were not to discuss the case with anyone other than their fellow jurors (to do so being a criminal offence). Secondly, prior to their retiring to consider their verdict, the jury took the separation oath, the terms of which would not readily be forgotten. Thirdly, the irregularity was raised promptly with counsel, and a form of inquiry was agreed. Fourthly, each juror who had left the room assured the judge that they had not discussed the case. Fifthly, the jury were subsequently reminded to stay together during their deliberations and not to leave the jury room except in the company of a jurykeeper. Sixthly, both parties had agreed that the jury should be permitted to continue with their deliberations and deliver a verdict.

40 Chaouk[25] was decided before the enactment of s 50 of the Act (or its predecessor). In that case, after the jury in a drug trial retired to consider its verdict, on two separate occasions while travelling to and from overnight accommodation, three jurors travelled in a taxi unaccompanied by a jurykeeper. Upon becoming aware of what had occurred, the judge enquired of the jury whether there had been any conversation in the taxi concerning the trial, and was informed that there had not. The judge refused to discharge the jury on application by defence counsel. Subsequently, the Full Court quashed the applicant's conviction for importing a prohibited import (heroin). Kaye J observed that the rigidity of the ancient common law rule that required jurors, once empanelled, to remain together until they had delivered their verdict, had been relaxed by legislation, so that it is now an exceptional case where jurors are kept together from the commencement of the trial until their discharge after verdict.[26] His Honour drew a distinction between the situation that applies prior to the jury's retirement, and that which applies during the period of deliberations, and made it clear that, during deliberations, jurors are subject to the control of keepers, who ensure that jurors' communications with others are limited to personal needs:[27]

Nevertheless, the rule remains that there must be no communication, or risk of communication, between outsiders and the jury once they have entered upon their deliberations concerning their verdict. To prevent any such communications, jurors are required to be kept together and separated from other persons. However, some communication by jurors with outsiders is necessary where their deliberations extend beyond the time for a midday meal or overnight_. In those circumstances, jurors are subject to the control of keepers sworn to keep them together and separated from outsiders. The function of the keepers is also to ensure that the jurors' communications with others are limited to their personal needs, such as indicating their choice of food and like requirements_. It sometimes occurs that, due to sickness or grave family problems, it might become necessary for a juror to be separated temporarily from the other jurors. This is permitted provided that the juror, throughout the period of his separation, is in the company of a keeper. ...

41 Kaye J considered that the jurors' answers denying any communication did not dispel a reasonable concern that the irregularity had operated to the applicant's prejudice. He observed:[28]

Whether the present was an appropriate case for making an investigation of members of the jury concerning any irregularity is at least questionable. However, in my opinion, the answers made by the jurors to the learned trial Judge's questions, in the circumstances then existing, were not such as to dispel any reasonable concern that the infringement had operated to the prejudice of the applicant. Experience shows that even an otherwise reliable witness, when asked whether a matter relating to the trial was discussed by him with another person on a previous occasion or out of court, might deny having done so. The denial in those circumstances is likely to be prompted by an assumed innuendo in the question that there is something wrong or improper in having been involved in such a conversation or discussion. The motivation of a juror to answer the trial Judge's question about a conversation with a taxi driver by a denial might be just as strong, if not stronger, particularly when the juror's attention had on a previous day been directed to the oath administered to the keepers. Furthermore, the form of his Honour's questions was likely to suggest that a denial was either the correct answer to be made or the answer which was being sought. Moreover, the answers made by the jurors were not entirely satisfactory. One juror could not remember if he or she had travelled from the court in a taxi unaccompanied by a Court official. Another juror merely 'thought' that on the previous day he was in the same taxi as the foreman, thus indicating some doubt as to whether he was so.

Furthermore, the procedure of the Court interrogating jurors before their final discharge is less than satisfactory. The jurors were not on oath; indeed, it may be doubtful whether, during the trial, a juror could have been sworn as a witness to testify to the matters asked of him. Understandably, neither counsel sought leave to cross-examine or question those jurors who did reply to his Honour's questions. For counsel to have done so would have created an invidious situation. Above all, his Honour's questions and the various answers were not directed specifically to the potential mischief of a taxi-driver having said anything in the presence of the jurors which was likely to be prejudicial to the applicant.

42 Ultimately, Kaye J concluded that the separation of some jurors unaccompanied by a jurykeeper was a material irregularity and that the conviction could not be saved by the application of the (since repealed) proviso to s 568(1) of the Crimes Act 1958. Fullagar J agreed that the conviction should be set aside.[29] Also agreeing that the conviction could not stand, Hampel J said that what had occurred could not be categorised as a minor or insignificant irregularity, and observed:[30]

It is not to the point that probably there was no improper communication between the taxi-drivers and the jurors despite the opportunity for such communications which was openly and publicly created.

It is of fundamental importance that the basic rules pertaining to the criminal trial process should be strictly adhered to particularly in relation to jury deliberations.

The jury system and its operation are under constant public scrutiny. It is therefore essential to ensure not only that no irregularities occur which may adversely affect jury deliberations, but also that no such irregularities appear to take place.

In the present case the irregularity occurred as a result of arrangements made by those whose duty it was to ensure that the accepted safeguards in fact operated. In those circumstances curial approval should not be given to such a departure from the rules and such an abandonment of the safeguards designed to isolate and protect juries during their deliberations.

43 In Appleby,[31] the applicant was convicted at trial of a large number of dishonesty offences. The presentment contained 95 counts. For the purpose of his charge and for the purpose of taking verdicts, the trial judge divided the counts initially into four groups. On appeal it was contended that the trial had miscarried because the judge permitted the jury to separate after verdicts were returned on the first group of counts, but before verdicts were returned on the balance of the counts, without an oath being administered pursuant to s 51A of the (since repealed) Juries Act 1967, which is the forebear of, and bears some similarity to, the present s 50 of the Act.[32] It was claimed that the same error occurred when the judge allowed the jury to separate after they had given their verdicts on the second group of counts. Thus, the jury was allowed to separate on two occasions without being sworn pursuant to s 51A between the delivery of verdicts on one group of counts and being charged as to the next group of counts. They were allowed to separate on four occasions after being sworn under that section while they were engaged in actual deliberations on a particular group of counts.

44 Relevantly, the chronology was as follows. The trial judge commenced his 'first charge' on 16 October 1995, but it was not completed that day and the jury were allowed to separate on the adjournment. On 17 October 1995, the 'first charge' was completed and the jury retired to consider its verdict. At 4.30 pm that day the judge adjourned the proceedings and allowed the jury to separate after they were sworn in accordance with s 51A. Late on 18 October 1995, the jury returned verdicts on all counts in the first group. They were then allowed to separate overnight without being sworn under s 51A. The next day, 19 October 1995, the judge commenced his charge with respect to the second group of offences. Later that day the jury retired to consider its verdict. They were allowed to separate overnight after giving the undertaking required by s 51A. On Friday, 20 October 1995, the jury was unable to arrive at verdicts and the judge adjourned the proceedings until Monday, 23 October 1995. Once more the jury were allowed to separate after giving the sworn undertaking required by s 51. On the Monday morning, the jury resumed its deliberations, and later that day returned verdicts on the second group of counts. The judge adjourned the proceedings to 24 October 1995 and allowed the jury to separate overnight without giving the undertaking. On 24 October 1995, the judge commenced his charge on the final group of offences. He concluded his charge in the afternoon and the jury retired to consider its verdict. The judge then adjourned proceedings to the following morning and the jurors were allowed to separate after being sworn in accordance with s 51A. On the following morning the jury resumed deliberations, and later in the morning returned to court to give their verdicts on the remaining counts.

45 Smith AJA rejected the submission that the undertaking that the jury was required by s 51A(2) to give prior to separation had to be given each time the jury separated after the initial undertaking was given.[33] His Honour also rejected the submission that the separations without the undertaking might have been seen by the jury not to be covered by the undertaking, thus increasing the risk of communication between the jury and outsiders.[34] And although his Honour observed that, so long as it has been given, the judge may exercise his or her discretion to allow the jury to separate at any time during the deliberation process, he considered that no doubt 'the trial judge could remind the jury on each separation of the undertaking they had given'.[35]

46 Callaway JA (with whom Southwell AJA agreed on this aspect) was also of the view that the undertaking need only be given once. His Honour was 'troubled', however, by the risk that the jury may have thought that their undertakings did not apply when they were allowed to separate on 23 October 1995. But given that the applicant succeeded on other grounds, his Honour thought it to be 'inexpedient to speculate further as to the jury's possible misapprehension or the consequences that it would have entailed'.

47 In Patton,[36] the jury at the applicant's trial for robbery and other offences retired to consider their verdicts on 14 February 1996. When they had not reached verdicts by 4.00 pm, the judge took an undertaking on oath by each juror under s 51A of the Juries Act 1967, and released them until 10.00 am the next morning. The jury continued its deliberations throughout the following day, 15 February 1996. During the day, the jury announced that they had reached verdicts on all but one count, prompting the trial judge to give them a Black[37] direction. When the jury had not reached a verdict by 4.00 pm that day, the judge once more discharged them overnight. He did so, however, without having taken from the jury a further undertaking under s 51A. Early the next morning, 16 February 1996, the jury returned verdicts finding the applicant guilty of some counts, but acquitting him of others.

48 Seeking to challenge the convictions, counsel contended that s 51A required an undertaking to be taken from the jury prior to each and every separation, arguing that the section had to be read in light of the common law requirement that juries should not be permitted to separate after retirement, so as to avoid the risk of communicating with third persons. The Court (Phillips CJ, Winneke P and Southwell AJA) rejected the applicant's central contention:[38]

... It can be accepted that, at common law, juries were required to be cloistered after retirement and until verdict. Section 51A however was clearly designed to modify the strictness of the common law practice in favour of convenience to jurors, provided that the requirements imposed by the section were complied with. It was because the requirement was not complied with in the case of R v Taylor (unreported, Court of Appeal, 10 May 1996) that the court concluded that there must be a new trial.

In our view the section must be given a workable interpretation. Subsection (1), in the light of its obvious purpose to which we have referred, gives the judge the power to 'allow the jury to separate at any time' during the period expressed to be 'between it [the jury] retiring to consider its verdict and the verdict being given ... '.

We cannot accept that this section requires a trial judge to extract an oath on more than one occasion during the period referred to, even though that period might run into more than one day. To suggest that the section requires a further undertaking on oath on each and every occasion that the jury, within the period contemplated, separates is, in our view, to give the section an interpretation which the words do not command and which would or could lead to an absurd imposition upon the jurors. Once the jurors have sworn on their oath that they will not discuss matters concerning the inquest with persons other than members of the jury, it should be assumed that they will understand that such oath will continue to bind them if, within the designated period, they are permitted to separate again. Whilst, no doubt, it is appropriate that the section should be construed against the background of the common law position, it is clear that the legislature by using the words, 'despite anything to the contrary in any rule of law or practice', intended to confer a discretion upon the judge, notwithstanding the previous position at law, to allow the jurors to separate 'at any time' during the designated period upon the security of those jurors giving the relevant undertaking. The discretion conferred upon the trial judge is not a discretion to allow the jury to separate 'at any time and from time to time, upon the giving of an undertaking'. On the contrary it is a discretion to be exercised by the trial judge when, during the deliberation process, he considers that it is appropriate to allow the jury to separate 'at any time' within that process. In our view the words of the section suggest that when the time first arrives, the individual jurors must give the undertaking required of them. To require them to renew the undertaking on each occasion thereafter of separation during the same deliberation process would be an extravagance not contemplated by the section. This was the meaning given to the section by this court in the case of [Appleby]. Although counsel for the applicant in this case contended that the views of the court in Appleby were expressed by way of obiter dicta, they are in our view, strongly supportive of the interpretation which we believe should be accorded to the section.

49 Counsel for the respondent in this Court placed a deal of reliance on Jenkins, a case in which the applicant had faced trial for robbery (using corporal violence) and affray in the District Court (NSW). In that case, after almost four weeks of trial, the jury retired to deliberate at 11.25 am on the morning of 25 September 2013. At 3.45 pm that afternoon the trial judge indicated that he wanted to reconvene for the purpose of asking the jury whether they wished to sit on or go home. As a result of a misunderstanding by the court sheriff, however, the jury left the court premises at almost 4.02 pm, the sheriff having assumed that the judge had made an order under s 54(1)(b) of the Jury Act 1977 (NSW)[39] permitting the jury's separation. After being shown out of the courthouse, the jurors dispersed and went their respective ways. By the time that the trial judge uttered his first words after coming on to the bench, the jury had left the courthouse. No order, whether express or implied, was made by the judge under s 54(1)(b) permitting the jury to separate. The jury returned on the following morning, 26 September 2013, to continue deliberations. Counsel for the applicant made an application that the jury be discharged on the ground that the jury had separated without any order of the trial judge. Ultimately, despite indicating that a 'grave irregularity' had taken place, the judge refused to discharge the jury. Subsequently, on 27 September 2013, the jury returned guilty verdicts.

50 The applicant sought prerogative relief in the Court of Appeal (NSW), seeking to quash the trial judge's decision to direct the jury to continue deliberations, the essential issue being whether the 'direction' of the trial judge that the jury continue their deliberations - and the convictions against the applicant in consequence of the jury's guilty verdicts - were affected by jurisdictional error (and if so, what consequential relief, if any, should be granted). Relief was refused. Gleeson JA (with whom Hoeben JA agreed) regarded what had occurred as an 'irregularity',[40] but not one that went to the root of the trial.[41] The irregularity, which was 'a departure from the procedure for jury separation under the Jury Act 1977, did not amount to jurisdictional error.[42] Gleeson JA remarked that non-compliance with the procedural requirements of s 54(1)(b) is not to be approached with any preconceived notion that it invalidates the jury's verdict,[43] observing generally that non-compliance with a statutory requirement or condition does not necessarily result in invalidity of an act done in breach of the legislative provision.[44]

51 When considering Jenkins, it is to be noted that, unlike the position in Victoria - whereby s 50 of the Act permits the judge to allow jury separation if he or she is of the opinion that there is good reason to do so, but only upon the jury taking the necessary oath or affirmation - s 54 of the NSW Act does not require the administration of a separation oath (or affirmation) before a jury is permitted to separate.

52 CMG, the judgment in which was delivered a short time before Jenkins, is (among other things) authority for the proposition that, where a jury is kept together during deliberations, and is taken from the court or their jury room to some other place where there is an attendant risk that they will have contact with other persons, ordinarily it will be necessary for them to be accompanied by jurykeepers sworn in accordance with s 49 of the Juries Act 2000. If those accompanying the jury are not sworn, there will be a material irregularity, which, depending upon the circumstances, may give rise to a substantial miscarriage of justice.

53 In CMG the applicant was convicted in the County Court of sexual offences against a child. After the jury began deliberations, the trial tipstaff (and another person) were sworn as jurykeepers under s 49 of the Act. At some point during deliberations, however, a second County Court tipstaff - who had not been sworn under s 49 - stood in for the trial tipstaff. (By that stage, the jury had been sworn pursuant to s 50.) When the second tipstaff commenced these duties, the court had reconvened so that the jury could view a DVD. At the conclusion of that viewing, the jury returned to its room and the court was adjourned. The second, unsworn tipstaff remained alone in the courtroom for a little over an hour before he was instructed to request the jury to return to the courtroom (which they did). After some brief instructions from the trial judge, the jury were sent home for the day.

54 It was not in issue that the second tipstaff had not been sworn as a jurykeeper. Nor was it in issue that, in addition to the trial judge's tipstaff, a second person, who had also been sworn as a jurykeeper, was available to perform jurykeeper duties if the need arose. Importantly, however, there was no dispute that the second tipstaff's only contact with the jury was to return them to the jury room after they watched the DVD and bring them back to the courtroom before they were sent home for the day. Indeed, there is no suggestion that the unsworn tipstaff did other than usher the jury between the court and the jury room.

55 Ultimately, Redlich JA (with whom Warren CJ agreed) concluded that since the second tipstaff assumed no role other than court tipstaff, a jurykeeper was not required during his period of duty. His Honour observed, however, that the wording of s 49 is imperative,[45] and that the jurykeeper's oath is not a mere formality.[46] He also said:[47]

Where during the course of a jury's deliberations a jury is kept together and is taken from the court or their jury room to some other place where there is an attendant risk that they will have contact with other persons, jurykeepers will, ordinarily, be required and must be sworn in accordance with the Act. If those designated to accompany the jury are not sworn, a material irregularity will arise. Depending upon the circumstances, non-compliance with this mandatory requirement may give rise to a substantial miscarriage of justice. But that is not the present case.

56 As Chaouk and other cases make clear, it was a cardinal common law principle that in a criminal jury trial jurors not separate during deliberations. It is also clear that the legislature sought to mitigate the strictness of that principle through the introduction of provisions such as s 50 of the Act. In so doing, however, the legislature was astute to ensure that the separation of a criminal jury after retirement was subject to safeguards specifically designed to promote the integrity of the trial process and to minimise the risk of the jury's communication with third parties. Hence, before permitting the separation of a jury after retirement, a trial judge must affirmatively be of the opinion that there is a 'good reason' to permit separation, and must ensure that an appropriate oath (or affirmation) is taken by the jurors involved that they 'will not discuss with any person other than another member of this jury any matter relating directly or indirectly to the evidence in this trial or the deliberations'.

57 As we have indicated, in this case it is plain that the judge contemplated that the jury, during their deliberations on Wednesday, 28 February 2018, would remain together and would deliberate subject to the supervision of the jurykeepers who had the previous day taken an oath (or made an affirmation) pursuant to s 49. Indeed, there can have been no reasons for having jurykeepers so sworn unless, consistently with the terms of s 49, the trial judge considered that jurykeepers were 'required in [the] trial'.

58 One may readily infer why the judge would have thought it necessary to keep the jury subject to the supervision of jurykeepers during their deliberations. As long and common experience demonstrates, during breaks in proceedings, people connected with trials - whether the accused, complainants, police investigators, witnesses, or friends or family of people connected with the trial - often are to be encountered in and around the court precinct during business hours (especially at lunchtime).[48] The swearing of jurykeepers seeks to maintain the integrity of the trial, by minimising the risk of the jury communicating with others during deliberations.

59 Moreover, the trial judge's reaction to encountering a juror in the street during lunchtime - which she said had resulted from 'a serious mistake ... made by one of the jurykeepers' - emphasises that the judge's intention had been to keep the jury together during their deliberations and subject to the supervision of the sworn jurykeepers. It seems plain enough from the judge's reaction that she considered a jurykeeper (or jurykeepers) had not abided by the oath administered the previous day.

60 Furthermore, we consider that there is a realistic perception that the jury may not have considered themselves bound by the oath (or affirmation) taken the previous day, given that the judge had informed the jury that the purpose of giving the separation oath was to 'avoid us needing to bring you back to court in order to excuse you for the balance of the afternoon', and 'so that you don't have to come back into court before you go home' at 4.15 pm.

61 As we have mentioned, when making submissions to the trial judge, the prosecutor characterised what had occurred as a 'material irregularity'. Counsel for the respondent in this Court also conceded that there had been a material irregularity. In our view, so much must be accepted.[49]

62 We consider that, notwithstanding that they modify the strictness of the common law, provisions such as ss 49 and 50 of the Act are safeguards imposed by the legislature which are designed to protect jury deliberations from contamination. Such provisions also serve a secondary function, preventing the perception that there has been any opportunity for unauthorised communications with the jury. As Hampel J observed in Chaouk (albeit with respect to the position at common law), it is of fundamental importance that the basic rules relating to the processes of a criminal trial - particularly in relation to jury deliberations - should be strictly adhered to; and, given that the jury system and its operation are under constant public scrutiny, it is 'essential to ensure not only that no irregularities occur which may adversely affect jury deliberations, but also that no such irregularities appear to take place'.[50]

63 In our opinion, the fact that the jury were permitted to separate at lunchtime on the second day of deliberation unsupervised by jurykeepers constituted a serious departure from the prescribed processes of a trial (the impact of which cannot be determined) such that there has been a substantial miscarriage of justice.[51] We would therefore grant leave to appeal against conviction; allow the appeal; set aside the conviction on charge 1; and order that there be a new trial.

64 Before leaving this ground, we would add the following. As we have mentioned, after the judge was made aware of the 'serious mistake', she seemed to suggest that there may be some circumstances in which it is acceptable for jurors to separate at lunchtime (or at other times) and leave the jury room or court building unaccompanied by a jurykeeper (or keepers), so long as the separation oath had previously been administered.[52] Self-evidently, it is highly undesirable that there be no uniform practice with respect to the separation of juries and the use of jurykeepers. That being so, we consider it to be desirable that the practice followed in the Trial Division of this Court also be adhered to in the County Court. Although it still sometimes occurs, it is no longer the invariable practice to keep juries sequestered following retirement, so that they commonly return to their homes in the afternoon or early evening after deliberating during the day in their jury room (or other suitable space). Whilst deliberating, however, they remain subject to the supervision of suitably sworn (or affirmed) jurykeepers, and do not leave the court unaccompanied by keepers. When first permitted to separate after deliberations commence, the jury take the separation oath (or affirmation) under s 50, and, as a minimum, thereafter are reminded that they are bound by that oath (or affirmation) each time that they separate until being finally discharged.[53] Strict adherence to that practice will go some way towards avoiding the material irregularity which occurred in this case.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Crimes Act 1958, s 38. The maximum penalty is 25 years' imprisonment.

[3] Drugs, Poisons and Controlled Substances Act 1981, s 71AB. The maximum penalty is 20 years' imprisonment.

[4] Drugs, Poisons and Controlled Substances Act 1981, s 73. The maximum penalty is five years' imprisonment (or 400 penalty units).

[5] In a VARE (Video and Audio Recorded Evidence) conducted with the complainant by police on 5 April 2015, the complainant said that the applicant 'went for like, two seconds and then he pulled out, and then like, all his, like, cum [sic] went on the floor'; and 'he, like, pushed it in, like, three times, and then pulled straight out, and then he went all over the floor'.

[6] By virtue of s 4(1), a child is a person under 18 years of age.

[7] R v Holman [1982] VicRp 46; [1982] VR 471, 475 (Lush J). See also R v Giretti (1986) 24 A Crim R 112, 125-6, 134 ('Giretti').

[8] R v Kendrick [1997] 2 VR 699, 712.

[9] Giretti, 114 (Crockett J), 121-2 (Ormiston J).

[10] Criminal Procedure Act 2009, s 277(1)(c).

[11] Criminal Procedure Act 2009, s 277(1)(b).

[12] The form of oath or affirmation as set out in Schedule 4 requires each jurykeeper to swear or affirm that he or she 'will well and truly keep this jury and each of its members committed to your charge and that, except on the order of the court, while they are in your charge, you will not allow any of them to communicate with any other person, or any other person with any of them, whether directly or indirectly, and that you will not, either during the trial or after it has finished, communicate with any juror about any evidence given or issues raised, directly or indirectly, at the trial'.

[13] Emphasis added to this and following passages.

[14] The form of oath or affirmation as set out in Schedule 5 requires each juror to swear or affirm that he or she 'will not discuss with any person other than another member of this jury any matter relating directly or indirectly to the evidence in this trial or the deliberations'.

[15] CMG v The Queen [2013] VSCA 243; (2013) 46 VR 728 ('CMG').

[16] Other remarks made contemporaneously by the judge seem to indicate that her Honour thought that, so long as the jury had taken a separation oath, it might in some circumstances be acceptable for jurors to separate at lunchtime (or at other times) and leave the jury room or court building unaccompanied by a jurykeeper (or keepers).

[17] Counsel cited R v Taylor [1950] NIR 57, 70-71 (Porter LJ); Brownlee v The Queen (2001) 207 CLR 278.

[18] Counsel cited Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40, 96 [134] (Kirby J); R v Hodgkinson [1954] VicLawRp 23; [1954] VLR 140, 144 (Gavan Duffy, Barry and Dean JJ); R v Chaouk [1986] VicRp 70; [1986] VR 707, 712 (Kaye J); CMG, 746-9 [84]-[97] (Redlich JA).

[19] Lyons v Queensland [2016] HCA 38; (2016) 259 CLR 518, 529-30 [33] (French CJ, Bell, Keane and Nettle JJ) (citations as in original).

[20] Devlin, Trial by Jury, rev ed (1966), pp 41-42; Holdsworth, A History of English Law (1938), vol 11, pp 553-554; Blackstone, Commentaries on the Laws of England, 15th ed (1809), bk 3, p 375.

[21] R v Ketteridge [1915] 1 KB 467 at 470 per Lush J (delivering the judgment of the Court); R v Neal [1949] 2 KB 590 at 595-596 per Lord Goddard CJ (delivering the judgment of the Court) and see R v Crippen [1911] 1 KB 149 at 155 per Darling J (delivering the judgment of the Court).

[22] Goby v Wetherill [1915] 2 KB 674; R v McNeil [1967] Crim LR 540; In re Osman [1995] 1 WLR 1327.

[23] Smith v Western Australia [2014] HCA 3; (2014) 250 CLR 473 at 481 [30]- [31]; R v Pan [2001] 2 SCR 344 at 373 per Arbour J (delivering the judgment of the Court); R v Mirza [2004] UKHL 2; [2004] 1 AC 1118.

[24] Counsel cited R v Locchi (1991) 22 NSWLR 309; Wai v The Queen (1995) 15 WAR 404 ('Wai'); Tennant v R [2006] NSWCCA 208; R v Walters [2007] QCA 140; CMG; and Jenkins v DPP [2013] NSWCA 406 ('Jenkins').

[25] R v Chaouk [1986] VicRp 70; [1986] VR 707 ('Chaouk').

[26] Ibid 710. See also 715-6 (Fullagar J); Wai, 416-23 (Malcolm CJ), 424-8 (Pidgeon J).

[31] R v Appleby (1996) 88 A Crim R 456 ('Appleby').

[32] Section 51A was in the following terms:

51A. Court may allow a jury to separate after retiring to consider verdict

(1) Subject to sub-section (2) but despite anything to the contrary in any rule of law or practice, the court may, in its discretion, allow the jury to separate at any time between it retiring to consider its verdict and the verdict being given or the jurors being discharged.

(2) A court may only allow a jury to separate in accordance with sub-section (1) if each juror has given to the court an undertaking on oath or by affidavit not to discuss with any person, other than another member of the jury, any matter relating (directly or indirectly) to the inquest.

[36] R v Patton [1998] 1 VR 7 ('Patton').

[37] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44, 51-2.

[39] Section 54 was in the following terms:

54 Jury permitted to separate in criminal trials

(a) shall, unless the court otherwise orders, be permitted to separate at any time before they retire to consider their verdict, and

(b) may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict.

(2) An order under subsection (1) (b) may be made even if the jury in the proceedings is not present when the order is made.

[44] Ibid [54], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388-9 [91] (McHugh, Gummow, Kirby and Hayne JJ); Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627, 639 [32] (French CJ, Gummow, Hayne, Crennan and Bell JJ); R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10, 20-1 [44]-[46] (Spigelman CJ), 35 [177]-[180] (Wood CJ at CL).

[48] For example, see BN v The Queen [2011] VSCA 406; R v Hodgkinson [1954] VicLawRp 23; [1954] VLR 140.

[49] See Sir John Barry, On the Segregation of Jurors, (1953) 6 Res Judicatae 139, 153; R v Gay [1976] VicRp 59; [1976] VR 577, 582; Chaouk, 711.

[50] See [42] above.

[51] See Criminal Procedure Act 2009, s 276(1)(b). See also Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 479 [26], 481 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[53] Indeed, there are judges who consider that - so as to constantly bring home to the jury the importance of not discussing any matter relating to the evidence in the trial or the jury's deliberations with any person (other than another member of the jury) - the preferable course is to administer the separation oath (or affirmation) on every occasion that the jury is permitted to separate.