CA v R

1. [1]

   PRICE J:

Introduction

1. [2]

   Following a trial in the District Court before Lakatos SC DCJ (“the judge”) and a jury, the appellant was found guilty of 31 sexual offences which took place between 1982 and 1986 in relation to five complainants.

2. [3]

   Upon his arraignment before the jury on 4 April 2017, the appellant pleaded not guilty to an indictment containing 35 counts. Three of those counts (24, 25 and 27) were the subject of a directed verdict of not guilty at the close of the Crown case, after the Crown acknowledged that DB, the complainant in respect of these counts, had not given evidence in support of the alleged offences. On 24 May 2017, the jury delivered unanimous verdicts in respect of counts 2 and 35. On 26 May 2017, the jury found the appellant not guilty in relation to count 31 and returned majority verdicts of guilty for the remaining 29 counts.

3. [4]

   Counts 1 to 20 alleged sexual offences against two cousins, JF and SF. JF was aged between 12 and 13, and SF was aged between 11 and 12 when the offending was alleged to have occurred. SF died in 2005 and the Crown relied on the evidence of JF to make out the charges involving SF.

4. [5]

   JF and SF lived in the Waverley area of Sydney. JF gave evidence that when he was aged 12, SF told him that he knew someone named “Charlie” who would give him money for sucking his penis and playing with him. After JF agreed to do it, he and SF subsequently met “Charlie”. Fourteen counts (1-6, 8, 10-14, 17 and 19) related to Charlie fellating one or both of the complainants and two counts related to Charlie requiring the boys to fellate him (7 and 15). All of these counts alleged that the appellant had committed homosexual intercourse on a male person, then above the age of 10 years and under the age of 18 years contrary to s 78K of the Crimes Act 1900 (NSW).

5. [6]

   Counts 18 and 20 related to Charlie requiring the cousins to fellate each other. These counts alleged that the appellant had incited SF (count 18) and JF (count 20), then under the age of 16 years, to commit an act of indecency contrary to s 61E(2) of the Crimes Act.

6. [7]

   Count 9 related to Charlie attempting to anally penetrate JF. This count alleged that the appellant attempted to have sexual intercourse with JF, then being under the age of 16 years, contrary to ss 61D(1) and 61F of the Crimes Act.

7. [8]

   Count 16 related to the anal penetration of JF. This count alleged that the appellant had sexual intercourse with JF, then being under the age of 16 years, contrary to s 61D(1) of the Crimes Act.

8. [9]

   These offences arose from 10 or 11 separate occasions. The offending in counts 1 and 2 occurred at Waverley Oval whereas the remaining counts, with the exception of counts 13-16, took place at the Mary Immaculate Church in Waverley. Counts 13-16 occurred at the Presbyterian Church, which was close to the Mary Immaculate Church on the other side of Victoria Road.

9. [10]

   The offences in counts 21-35 involved three complainants DB, RC and MW (“the club complainants”). It was the Crown case that these offences occurred at the Bronte Surf Life Saving Club (“the Club”), with the exception of counts 31 and 34, which were alleged to have taken place on the grounds of the Mary Immaculate Church.

10. [11]

    In respect of DB, there were five incidents when he was aged between 7 and 11 years old. Counts 22, 26, 28 and 29 related to the appellant fellating DB at the Club. These counts alleged that the appellant had sexual intercourse with DB, then being under the age of 16 years contrary to s 61D(1) of the Crimes Act. Count 21 related to the appellant fondling DB’s penis at the Club. This count alleged that the appellant had indecently assaulted DB, then being under the age of 16 years contrary to s 61E(1) of the Crimes Act. Counts 23 and 30 related to the appellant masturbating himself in DB’s presence at the Club. These counts alleged that the appellant had committed an act of indecency towards DB who was under the age of 16 years contrary to s 61E(2) of the Crimes Act.

11. [12]

    Count 31 related to the appellant fondling DB’s penis inside the Mary Immaculate Church. The jury found the appellant not guilty of this offence which had been brought under s 61E(1) of the Crimes Act.

12. [13]

    In respect of RC, there were two incidents when he was aged around 9 years old. Count 32 related to the appellant fondling RC’s genitals. This count alleged that the appellant had indecently assaulted RC, then being under the age of 16 years contrary to s 61E(1) of the Crimes Act. Count 33 related to the appellant inserting his finger into RC’s anus. This count alleged that the appellant had sexual intercourse with RC contrary to s 61D(1) of the Crimes Act. Count 34 related to the appellant fellating RC. This count alleged that the appellant committed homosexual intercourse with RC, then being under the age of 10 years contrary to s 78K of the Crimes Act. It was the Crown case that the offending in counts 32 and 33 took place in the Club whereas count 34 occurred in the Mary Immaculate Church.

13. [14]

    In respect of MW, there was one count (count 35) which related to the appellant handling MW’s genitals at the Club. This count alleged that the appellant had indecently assaulted MW, then being under the age of 16 years, contrary to s 61E(1) of the Crimes Act. MW’s evidence in cross-examination was that the offence took place in the summer of 1983, heading into 1984 at the Club. At the time, MW was 11 years old.

14. [15]

    It was the Crown case that the male referred to by the club complainants as Charlie was the appellant, that they were consistent in identifying him as Charlie from the Club and that he was the person involved with the inflatable rescue boat (“the IRB”).

15. [16]

    There was no issue at trial that the appellant was an active member of the Club, which he attended on the weekends and other days when he was on duty and that he may have come into contact with the club complainants. There was no issue that the appellant attended the Mary Immaculate Church.

16. [17]

    It was the appellant’s case that he denied any sexual impropriety with any of the complainants and cross-examination by Mr A Bellanto QC, the appellant’s senior trial counsel, focussed on challenging the reliability and truthfulness of their accounts. In relation to JF and SF, the appellant placed in issue whether he had had any contact or association with them.

17. [18]

    During the trial, JF’s evidence included his participation at the Bondi Police Station on 16 March 2017 in a photo identification procedure during which he identified a photo of the appellant as being Charlie. This evidence was challenged and is the subject of ground 2 of the appeal.

18. [19]

    There was a deal of cross-examination of JF, DB and RC which asserted that they had colluded in the allegations that were made against the appellant.

19. [20]

    The appellant did not give evidence in the trial. Two brothers gave character evidence which included their opinions that the allegations were out of character and that they were unable to imagine the appellant doing, or contemplating doing any such thing.

20. [21]

    The Notice of Appeal identifies the following grounds:

21. [22]

    At the hearing of the appeal, the appellant was granted leave to add a further ground of appeal.

22. [23]

    Before venturing further, it is useful to summarise the proceedings before the jury was empanelled.

Proceedings before the jury was empanelled

1. [24]

   The appellant was initially charged on an indictment containing 42 counts. The additional seven counts related to five other complainants (not being JF, SF and the club complainants). Counts 36-37 related to the complainant RH, count 38 related to the complainant TD, count 39 related to the complainant JH, count 40 related to the complainant MM and counts 41-42 related to the complainant MJ.

2. [25]

   Prior to empanelling, the appellant moved on a notice of motion seeking the following orders:

3. [26]

   The application for separate trials was based on the cross-admissibility of tendency evidence.

4. [27]

   At the outset of argument, the Crown discontinued counts 36 and 37 which related to RH and presented an amended indictment on 23 March 2017, which contained 40 counts. The Crown conceded that counts 38-40, relating to the complainants MM and MJ should be heard as two separate trials. The appellant was arraigned before the judge on the amended indictment.

5. [28]

   The Crown had filed a revised tendency notice dated 20 December 2016 asserting that the evidence in respect of each complainant was cross-admissible as tendency evidence.

6. [29]

   On 23 March 2017, the Crown filed a further revised tendency notice dated 22 March 2017 which reflected the omission of the RH counts on the amended indictment. The tendency sought to be proved was:

7. [30]

   In the further revised tendency notice the Crown identified the following 11 features which were said to support these tendencies:

   1. (1)

      The complainants were all male and aged between 7 and 15 years old;

   2. (2)

      The alleged offences all occurred in the Bronte/Waverley area;

   3. (3)

      The appellant gained access to DB, RC and MW through his involvement in the Club, where they were all in the Bronte Surf Club Nippers. The alleged offence against MW and some of the alleged offences against DB and RC took place at the Club;

   4. (4)

      The alleged offences against MM and MJ took place at Eastgardens. More particularly, both offences involved Eastgardens shopping centre;

   5. (5)

      The alleged offences against TD occurred at Gordon’s Bay;

   6. (6)

      Some of the alleged offences against JF, SF, DB and RC took place at the Mary Immaculate Church in Waverley;

   7. (7)

      The alleged offences against MW, TD, JH, MM and MJ all took place spontaneously;

   8. (8)

      The alleged offences against JH and MM involved a pretence that the appellant was doing a massage course and involved getting the boys to follow him to a different location;

   9. (9)

      The alleged offences against JF, SF, JH and MM involved the payment, or offer of payment, of money;

   10. (10)

       The allegations in relation to JF, SF, DB, RC, TD and MJ involved fellatio; and

   11. (11)

       The allegations in relation to JF, SF, DB and RC involved touching and fondling of the complainants’ penises.

8. [31]

   On 27 March 2017, his Honour delivered judgment (“the first judgment”). His Honour found that the features involving the complainants TD and JH differed significantly and that those differences precluded a finding that they had significant probative value in proving the offences alleged in counts 1-35. His Honour said:

9. [32]

   In delivering his reasons, his Honour said:

10. [33]

    His Honour decided:

11. [34]

    On 16 March 2017, JF spoke with the officer-in-charge, Detective Senior Constable Jesse Porter, and participated in a photo identification procedure. The procedure was filmed and reproduced onto a DVD.

12. [35]

    In the procedure, JF identified the appellant from a photo board.

13. [36]

    The photo board depicted photographs taken of both the front and the profile of nine males. Those photographs were found by the officer-in-charge, in archived evidence relating to an earlier investigation and trial of the appellant in the 1980s. At the earlier trial, the appellant was acquitted, and on the application of his legal representatives at that time the Police Service had undertaken to destroy the photographs of the appellant.

14. [37]

    The application made by the appellant to the judge was for JF’s identification evidence of the appellant by way of a “photo board” to be ruled inadmissible and excluded.

15. [38]

    The appellant contended that the photo board suggested that they were pictures of persons in police custody and that the evidence was precluded from being adduced pursuant to s 115(2) of the Evidence Act 1995 (NSW).

16. [39]

    The appellant further argued that the evidence had been improperly obtained and should be excluded on public policy grounds in accordance with s 138 of the Evidence Act.

17. [40]

    The appellant submitted that the photo board was seriously tainted due to the failure of the Police Service to comply with the undertaking to destroy the photographs of the appellant in connection with his 1989 trial. It was contended that this failure was a serious breach as had the photographs been destroyed there would have been no photo board available to show to JF and no consequent identification. The appellant submitted the prosecution should not have the benefit of evidence obtained and used in the breach of the undertaking with which DSC Porter intentionally, recklessly or negligently failed to comply.

18. [41]

    Another argument was that there was a real possibility the jury would use tendency evidence to identify the appellant as the offender in the first 20 counts, or alternatively, would use the identification to find the alleged tendency. Mr Bellanto put to the judge:

19. [42]

    As to this argument, the Crown contended that Selby v R [3] (“Selby”) considered the distinction between using other evidence to bolster identification evidence, as opposed to going to the strength of the Crown case as a whole. The Crown noted that the appellant’s argument appeared to be that the identification by JF was weak and that there was a real risk that a weak identification would be bolstered by the tendency evidence relevant to the club complainants. The Crown submitted that the decision of the Court of Criminal Appeal in Selby did not find that any such prohibition was breached based on their Honours reasons at [36] that:

20. [43]

    On 29 March 2017, his Honour delivered judgment (“the second judgment”). His Honour found that the use of the evidence by DSC Porter was not intentional, not reckless, not unfair or inconsistent with the minimum standards required of the Police Service and that he could not discount the possibility that what had occurred was a result of systemic error, not deliberate and wilful acts. His Honour concluded:

21. [44]

    His Honour had regard to the potential prejudice and to the relevant factors under s 138(3) of the Evidence Act and said:

22. [45]

    His Honour then considered the argument as to whether the photographs contained in the photo board “suggests” that they were pictures of persons in police custody, contrary to s 115(2) of the Evidence Act.

23. [46]

    The judge considered his first impression and said he had expressed that:

24. [47]

    The judge noted that the photos were cropped and had other deficiencies, however, his Honour concluded those matters did not carry the weight argued for by the appellant. His Honour went on to say:

25. [48]

    His Honour referred to the relevant authorities provided by counsel during argument and found that the present photographs did not provide the suggestion prohibited in s 115(2) of the Evidence Act. His Honour further considered that if he was incorrect, s 138(3) of the Evidence Act was relevant, and for his reasons set out above at [44], concluded that the discretion should be exercised in favour of the admission of the photo identification evidence.

26. [49]

    In relation to the complaint by the appellant that the identification evidence was tainted, his Honour found that “very little weight” could attach to that argument, and that there was no prejudice or contamination which accrued from that knowledge in the police identification for two reasons:

27. [50]

    His Honour noted that Selby did not consider that any such prohibition was breached and that the distinction was “if there is evidence which falls well short of ‘positive identification’ and where there are issues of admissibility”. His Honour referred to the decision in Selby, and quoted what was said by the Court at [37]:

28. [51]

    His Honour concluded that:

29. [52]

    Accordingly, the judge allowed the photo identification evidence.

d. Failed to undertake the balancing exercise mandated by Section 101(2) of the Evidence Act 1995.

1. [53]

   These grounds of appeal may be conveniently dealt with together.

2. [54]

   Mr Brady SC, the appellant’s senior counsel, accepted that in approaching the issue of cross-admissibility, the judge correctly referred to the legislative test under s 97(1)(b) of the Evidence Act, namely, that the first precondition for admissibility was that the evidence had significant probative value either by itself or having regard to other evidence to be adduced in the trial. Mr Brady observed that in making that assessment his Honour did not have the benefit of the High Court’s decision in Hughes v The Queen [10] (“Hughes”). Mr Brady submitted that it was apparent that his Honour’s assessment of the probative value of the evidence was primarily informed by reference to a number of factors identified in Odgers’ Uniform Evidence Law.

3. [55]

   It was Mr Brady’s contention that this approach led his Honour into error as it detracted from the central inquiries under s 97(1)(b); namely, the extent to which the evidence supports the tendency and the extent to which the tendency makes more likely the facts making up the charged offence: see Hughes at [41].

4. [56]

   Mr Brady argued that the judge’s analysis focussed on similarities and common features of the allegations and did not make any meaningful assessment as to the extent to which those factors supported the tendency alleged, nor the extent that any tendency could rationally affect an assessment of a probability of the facts in issue.

5. [57]

   As to ground 1(b), Mr Brady referred to Hughes at [16] and submitted that the judge at no stage defined the facts in issue. Mr Brady submitted that the appellant’s defence was primarily that the evidence was insufficient to identify him as the offender and although the appellant challenged the reliability of the complainant’s accounts this did not detract from the primary contest of identification.

6. [58]

   Mr Brady complained that the judge’s decision to set aside issues of identification when he determined the probative value of the tendency evidence meant that he failed to take into account a material consideration. That failure led his Honour to misevaluate both the probative value and potential prejudice of the evidence. Mr Brady argued with the major fact in issue kept firmly in mind, any tendency between the JF and SF complaints and the club complaints was superficial and could not amount to more than mere relevance.

7. [59]

   Mr Brady referred to Hughes at [39] and pointed out that where identity is in issue, the similarity between the conduct and particularity of the conduct gains increased prominence. When assessed against the issue of identification, it was Mr Brady’s argument that a number of the features listed in the tendency notice and his Honour’s judgment did not support a tendency conclusion.

8. [60]

   As to ground 1(c), Mr Brady submitted that the significant weight placed by the judge on the date range of the offending between 1982 and 1986 did not, without more, assist in proving the alleged tendency. Mr Brady referred to the risk of coincidence reasoning by the jury, as the jurors might be tempted that as these offences were occurring at a particular time (and in a particular location), that made it improbable that they were being perpetrated by different persons. As the Crown had specifically disavowed coincidence reasoning, such an approach by the jury would be impermissible.

9. [61]

   In being critical of the judge’s reliance on the offences occurring in the same geographical location to support a tendency, Mr Brady contended that the fact the offences occurred in the Bronte/Waverley area “leads to no meaningful support for the alleged tendency”.

10. [62]

    Another argument was that the consistency of the perpetrator’s behaviour in certain circumstances and the number of offences tended to detract from proper tendency reasoning. The JF and SF complaints were premised on 10 to 11 separate occasions; it was said that potentially described an offender who tended to seek out and repeatedly target the same victims, whereas the club complainants alleged far fewer assaults on the individual complaints. Furthermore, the number of complaints had no connection with the primary fact in issue being the identity of the perpetrator.

11. [63]

    As to the sexual acts relied on to prove the alleged tendency, Mr Brady submitted that when considering the range of conduct that may constitute sexual offences against children, the fellatio and fondling of the complainants’ penises were highly general and of limited probative value.

12. [64]

    Although it was conceded the judge did refer to behavioural differences raised by the appellant, Mr Brady argued that the dissimilarities were underestimated by the judge because his Honour had not considered them by reference to the facts in issue, which included identity. Mr Brady complained that the evidence only gave rise to potential misuse by the jury through the application of coincidence reasoning and an impermissible use in bolstering unsafe identification evidence.

13. [65]

    As to ground 1(d), Mr Brady submitted that the judge failed to properly apply s 101(2) of the Evidence Act. Mr Brady contended that the particular danger of misuse through coincidence reasoning and identification evidence meant that the prejudice to the appellant was acute. It was contended that the vast majority of features used to link the JF and SF complaints were in fact, reliant on coincidence reasoning to impermissibly identify the perpetrator as the same person.

14. [66]

    Whilst his Honour determined that in considering the tendency evidence he would quarantine issues relating to the cousins’ evidence relevant to identity, Mr Brady argued that provided a further basis to conclude that the judge did not properly consider the relevant evidence.

15. [67]

    As to grounds 1(a) and 1(c), the Crown submitted that it is clear from his Honour’s reasons that his Honour was aware that he was required to address the question of the extent to which the tendency makes more likely the facts making up the charged offences. Furthermore, it is clear from the judge’s reasons that he considered each count separately and also had regard to the various dissimilarities between the counts.

16. [68]

    The Crown pointed out that the tendency evidence was not adduced to prove the identity of the offender.

17. [69]

    The Crown referred to The Queen v Bauer [11] (“Bauer”) at [61], where the High Court explained that it is for this Court to determine the question of whether the tendency evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.

18. [70]

    It was accepted by the Crown that each of the factors identified by the judge may arguably fall short of the significant probative value test under s 97(1), but the probative value of the tendency was to be assessed together with other evidence. The Crown submitted that the tendency evidence admitted did possess significant probative value under s 97(1).

19. [71]

    As to grounds 1(b) and 1(d), the Crown said that the main thrust of the appellant’s complaint relates to the approach taken by the judge in respect to the potential impact the tendency evidence may have had on the identification evidence relating to counts 1-20.

20. [72]

    The Crown submitted that from the outset of the trial, the Mr Bellanto defined the real issue in the trial as whether there was any sexual impropriety with any of the complainants. The appellant denied any such conduct. The defence case in respect of counts 1-20 was seen on two bases. First, there was an “unlikelihood” that anything happened when and where JF said it happened, and secondly, if the incidents described did occur, it was not the appellant. The appellant contended that the photo board identification was flawed.

21. [73]

    The Crown submitted that the position taken by the appellant in the District Court was that the issue of identification was a “self-contained” issue and that tendency evidence could not be used to bolster (what was argued to be) a weak identification case. The Crown emphasised that at trial the Crown did not seek to rely upon tendency or coincidence evidence in respect of the issue of identification.

22. [74]

    Another matter that the Crown referred to was that at the time the judge was asked to consider the admissibility of the tendency evidence the question of the admissibility of the identification evidence had yet to be determined. Neither the Crown nor Mr Bellanto objected to his Honour deferring consideration of the identification issue until such time as the position concerning the admissibility of the tendency evidence had been determined.

23. [75]

    The Crown pointed out that in his Honour’s second judgment, his Honour dealt specifically with the appellant’s submission concerning the prejudice argued to arise from the jury giving inappropriate weight to the identification by JF by reason of the tendency evidence of the club complainants. The Crown referred to his Honour’s regard to Selby and to his Honour’s finding that the admissible identification evidence could not be described as falling “well short” of a positive identification.

24. [76]

    When his Honour’s judgments on 27 and 29 March 2017 were read as a whole, the Crown contended that it could not be said that the judge failed to take into account the potential impact of the tendency evidence on identification, or that he failed to undertake the balancing exercise required by s 101(2). His Honour held that any unfair prejudice could be cured by an appropriate direction.

25. [77]

    The Crown observed that the only further direction sought by Mr Bellanto after his Honour’s summing up to the jury concerned the potential impact of the tendency evidence. The Crown pointed out that his Honour then gave a direction specifically quarantining the use of tendency evidence from a consideration of the identification evidence.

26. [78]

    Tendency evidence is defined in the Dictionary to the Evidence Act as follows:

27. [79]

    Section 95(1) provides:

28. [80]

    Sections 97(1)(b) and 101(2) relevantly provide:

29. [81]

    The “probative value” of evidence is also defined in the Dictionary:

30. [82]

    The judge decided counts 36 and 37 involving TD and JH should be separated from counts 1-35 and that there should be separate trials for MM (count 38) and MJ (counts 39-40). After his Honour’s decision, two bases remained for the appellant’s contention that counts 1-20 (the JF and SF complaints) should be severed and tried alone. First, that the evidence of the club complainants was not admissible in proof of the JF and SF charges, and second, the evidence of JF was not admissible in proof of the club complainant charges.

31. [83]

    Before proceeding to deal with ground 1, it is important to observe that it is for this Court “itself to determine whether [tendency] evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was”. [12]

32. [84]

    The argument on the cross-admissibility of the evidence before the judge was conducted before the High Court’s decision in Hughes. Ground 1(a) specifically refers to Hughes at [41] where the majority (Kiefel CJ, Bell , Keane and Edelman JJ) said:

33. [85]

    The majority was referring in the above passage to tendency evidence which was being led to establish the commission of a charged offence rather than the identity of the offender. The majority had earlier emphasised the importance of identifying the issue that the tendency evidence sought to be adduced by the Crown was adduced to prove. The majority said at [39]:

34. [86]

    Mr Brady’s contention in this Court was that the judge at no stage defined the facts in issue which included his primary defence, particularly in relation to the JF and SF complaints, that the evidence was insufficient to identify him as the offender.

35. [87]

    It is evident from the terms of the further revised tendency notice that the Crown did not adduce the evidence of the club complainants to prove the identity of the person who committed the various sexual offences against JF and SF. The further revised tendency notice identified the asserted tendency that the Crown was seeking to prove, namely:

36. [88]

    On the Crown case, the fact in issue that the tendency evidence could (if accepted) rationally affect was the probability of the occurrence of a charged offence. [13] As there were multiple counts on the indictment, the cross-admissibility of the evidence required separate consideration of each count to assess whether the tendency evidence which was sought to be adduced was admissible in relation to that count. [14]

37. [89]

    In argument before the judge, Mr Bellanto did not submit that the tendency evidence was adduced to prove the identity of the offender against JF and SF. However, during submissions what was said to the judge by Mr Bellanto included the following:

38. [90]

    In referring to a concern that the jury would use “identification evidence for an improper purpose as to tendency and vice versa”, it appears that Mr Bellanto was referring to the prejudicial effect to the appellant that might arise from the admission of the tendency evidence which was a matter for the judge to consider having regard to s 101 of the Evidence Act. As the High Court said in Bauer at [73]:

39. [91]

    At a later stage, his Honour said:

40. [92]

    Mr Bellanto agreed with the judge and the pre-trial issues concerning identification were subsequently determined (see [34]-[52] above). In the first judgment, his Honour said:

41. [93]

    The approach taken at trial confirms that it was well understood that the identity of the offender in counts 1-20 was not the issue for which the tendency evidence was adduced by the Crown and no error is shown in the judge’s course to subsequently consider the identification issue.

42. [94]

    Having identified the issue for which the tendency evidence was adduced, it is for this Court to determine the extent to which the evidence was capable of proving the appellant’s state of mind, namely a sexual interest in males aged 7 or 8 to 15 years. If the evidence has the capacity to do so, the Court must then assess the extent to which the proof of the tendency increases the likelihood of the charged offences. [18]

43. [95]

    The offences in counts 1 to 20 were alleged to have occurred between 24 September 1985 and 26 September 1986 when JF was aged 12 or 13 years and SF was aged 11 or 12 years. Fourteen counts (1-6, 8, 10-14, 17 and 19) alleged that the appellant fellated one or both of the complainants and two counts alleged that the appellant required the boys to fellate him (7 and 15). Counts 18 to 20 alleged that the appellant required the cousins to fellate each other. Count 9 alleged that the appellant attempted to anally penetrate JF, whereas the allegation in count 16 was that the appellant anally penetrated JF.

44. [96]

    The alleged offending in counts 1 and 2 occurred on a grass slope at Waverley Oval, whereas the remaining counts, with the exception of counts 13-16, were alleged to have been committed on a stairway at the Mary Immaculate Church in Waverley. Counts 13-16 alleged that the offences were committed in a courtyard at the Presbyterian Church, which was close by the Mary Immaculate Church on the other side of Victoria Road.

45. [97]

    The offences in counts 21-31 were alleged to have occurred between 14 December 1982 and 14 December 1986 when DB was aged between 7 and 11 years old. Counts 22, 26, 28 and 29 alleged that the appellant fellated DB at the Club in Bronte. Count 21 alleged that the appellant fondled DB’s penis at the Club, whereas the allegation in count 31 was that the appellant fondled DB’s penis inside a curtained area of the Mary Immaculate Church. Counts 23 and 30 alleged that the appellant masturbated himself in DB’s presence at the Club. The location of where the offending allegedly occurred at the Club included the St John’s ambulance room, the top floor room and the ground floor corridor.

46. [98]

    The offences in counts 32-33 were alleged to have occurred between 1 November 1985 and 1 March 1986 when RC was 9 years old. Count 32 alleged that the appellant fondled RC’s genitals, whereas the allegation in count 33 alleged that he inserted his finger into RC’s anus. Both offences were alleged to have taken place at the ground floor area of the Club. Count 34 alleged that the appellant fellated RC at the Mary Immaculate Church.

47. [99]

    The offending in count 35 was alleged to have occurred at the IRB garage in the Club between 31 December 1983 and 1 April 1984, when the appellant handled MW’s genitals. At the time, MW was 11 years old.

48. [100]

    The appellant was born in 1967. He was between 18 and 19 years old when counts 1-20 were allegedly committed and 18 years old for the alleged offending against RC. For counts 21-31, the appellant was between 15 and 19 years old.

49. [101]

    The evidence, considered as a whole, demonstrated that the appellant had a sexual interest in boys aged between 7 years and 12 or 13 years. It is commonly understood that the boys within this age range have not reached puberty.

50. [102]

    The question remains whether the appellant’s sexual interest in pre-pubescent boys is capable of meeting the requirement of significant probative value for admission as tendency evidence. In Hughes, the majority emphasised at [41] that the test posed by s 97(1)(b) of “significant probative value” requires that the evidence, together with other evidence, should “make more likely, to a significant extent, the facts that make up the elements of the offence charged”. [19] As was further explained by the plurality (Kiefel CJ, Bell, Keane and Nettle JJ) in McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [27]:

51. [103]

    As this is a multiple complainant sexual offence case, for the evidence of the club complainants to be significantly probative of the offending against JF and SF, there must ordinarily be some common feature of or about the offending. [20]

52. [104]

    In considering common features of the alleged sexual offending, I do not propose to take into account the allegations of sexual misconduct in counts 24, 25 and 27, which were the subject of a directed verdict of not guilty, or count 31 for which the jury returned a verdict of not guilty.

53. [105]

    Common features of the alleged sexual offending against the club complainants and the alleged sexual offending against JF and SF are:

54. [106]

    Fourteen counts of the appellant’s sexual misconduct against JF and SF alleged that the appellant fellated one or both of the boys who were aged between 11 and 13 years. Four counts of the appellant’s sexual misconduct against DB alleged that the appellant fellated DB when he was aged between 7 and 13 years. One count of the appellant’s sexual misconduct against RC alleged that the appellant fellated RC who was 9 years old. One count of the appellant’s sexual misconduct against RC alleged that the appellant inserted his finger into RC’s anus. Other than the two counts that concerned the appellant’s self-masturbation, all of the remaining counts involved allegations of fondling the genitalia of the club complainants.

55. [107]

    Twenty-six counts involved offending in the presence of another person. As to counts 1-20 (the JF and SF complaints), JF’s evidence was that each of those offences were committed whilst both he and SF were present. In relation to the offending against DB, counts 21-23 were committed in the St John’s ambulance room at the Club in the presence of a St John’s volunteer. Furthermore, DB’s evidence as to count 26 and RC’s evidence as to counts 32 and 33 revealed that those offences occurred during one incident and that they were both present whilst those offences were committed.

56. [108]

    The offences against JF and SF took place in Waverley, whereas most of the offending against the club complainants occurred in Bronte. Waverley and Bronte are neighbouring suburbs in Sydney. More particularly the fellating of RC in count 34 took place at the Mary Immaculate Church in Waverley. Other than counts 1, 2, and 13-16, the offending against JF and SF occurred in the Mary Immaculate Church. Counts 13-16 occurred at the Presbyterian Church, which was close by the Mary Immaculate Church being on the other side of Victoria Road. The evidence demonstrated that Waverley Oval, where counts 1 and 2 were committed, is within walking distance of the Mary Immaculate Church. JF’s account as to his and SF’s conduct shortly after the offences contained in counts 1 and 2 included walking along Henrietta Street and Victoria Road, and purchasing milkshakes and chocolate which they consumed around the front of the Mary Immaculate Church.

57. [109]

    Furthermore, it was JF’s evidence in respect of counts 5-7, that he and SF had gone for a swim at Bronte Beach. As he and SF were coming out of the water, JF saw “Charlie” a couple of metres away. Charlie was a lifeguard. As JF and SF walked up the beach, SF veered off and had a conversation with Charlie. SF then returned and told him that Charlie would meet them at the Mary Immaculate Church in two hours-time, which they did and the offences in counts 5-7 were committed. With the exception of count 34, the offences against the club complainants occurred at the Club.

58. [110]

    It was not in issue in the trial that the appellant frequented the suburbs of Bronte and Waverley. He was an active member of the Club and attended the Mary Immaculate Church.

59. [111]

    I find myself in respectful disagreement with Adamson J (see [185] below) that the location of the offending can only be relevant to co-incidence. In my view, this common feature is relevant to the appellant’s tendency to act on his sexual interest in locations of which he is familiar.

60. [112]

    The offences against JF and SF took place in the summer between October and December 1985. As to the club complainants, the offending against DB occurred in the summer months between 1982 and 1986; the offending against RC occurred in the summer between 1985 and 1986 and in respect of MW, it was between December 1983 and April 1984.

61. [113]

    Mr Brady was critical of what was referred to as perceived “similarities” between the allegations being date range, geographical location and the indecent acts. He founded that criticism in part upon what was said to be the judge’s failure to link those similarities to the issues at trial. Mr Brady further argued that whilst some offences could be categorised within defined date ranges, this did not assist in proving the tendency alleged. Furthermore, Mr Brady contended the dissimilarities in the location of the offending and the broad areas described could not provide support for the alleged tendency. Another argument was that “the perpetrators” had behaved differently as between the complainants – with JF and SF being marked by secrecy and planning, and the club complainants being brazen, public and opportunistic. Mr Brady submitted that the sexual acts committed against the club complainants and JF and SF were of a highly general nature when considering the range of conduct that might constitute sexual offending against children and had limited probative value in proving the tendency alleged and any proved tendency did not have significant probative value.

62. [114]

    The tendency evidence was not adduced by the Crown to prove the identity of the offender but was adduced to prove the occurrence of the offences. Whilst the appellant’s submissions refer to dissimilarities in the locations of the offences and the nature of the offending, the evidence must be considered as a whole. The evidence of the club complainants demonstrates that the appellant had a sexual interest in pre-pubescent boys and the common features identified are strongly probative of the appellant having committed the sexual offences against JF and SF. Similarly, JF’s evidence not only supports the appellant’s tendency to have a sexual interest in pre-pubescent boys but is strongly probative of the appellant having committed the sexual offences against the club complainants.

63. [115]

    Grounds 1(a), 1(b) and 1(c) are not made out.

64. [116]

    Mr Brady further argued that if the tendency evidence was of sufficient probative value to pass the significant probative value test of s 97, it could not be used against the appellant as the probative value of the evidence did not substantially outweigh the prejudicial effect of the evidence. [21] Mr Brady contended that the judge did not undertake the balancing exercise mandated by s 101. The focus of Mr Brady’s criticism in this Court was the potential misuse of the evidence of the club complainants in bolstering what was said to be unsafe identification evidence in the Crown’s case of the offences allegedly committed against JF and SF. Mr Brady was referring to the photo identification procedure and JF’s identification of the appellant from a photo board on 16 March 2017 (see [34]-[36] above) which was admitted over defence objection.

65. [117]

    Mr Brady submitted that the quality of the evidence of identification was very different in the Crown case of the offences against JF and SF, and in the Crown case of the offences against the club complainants. Mr Brady referred to the identification evidence of the club complainants being substantially more compelling as it was founded upon their association with the appellant through the Club.

66. [118]

    It is evident from what was said by the judge in the first judgment that his Honour was well aware that the tendency evidence adduced by the Crown could not be used against the appellant, unless the evidence substantially outweighed any prejudicial effect the evidence may have on the appellant. His Honour referred to s 101(2) involving:

67. [119]

    His Honour referred to Mr Bellanto’s argument that:

68. [120]

    The judge noted that argument was not complete and did not deal with the issue in the first judgment, but considered it in the second judgment.

69. [121]

    In the first judgment, his Honour referred in some detail to relevant authorities on the construction of s 101(2), which included the observations of Hoeben CJ at CL in Sokolowskyj v R [24] at [52]-[56] that the issue of unfair prejudice could not necessarily be alleviated by a direction to the jury.

70. [122]

    His Honour went on to refer to Mr Bellanto’s points that were submitted to require the rejection of the tendency evidence which were:

71. [123]

    In Hughes, the majority in pointing out at [17] the various ways that tendency evidence may cause prejudice added that “there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence”.

72. [124]

    His Honour concluded in the passage quoted at [32] above that the probative value of the tendency evidence substantially outweighed any prejudicial effect. His Honour also considered that “appropriate directions as to the use of the tendency evidence will adequately protect the interests of [the appellant]” (see [32] above).

73. [125]

    Whilst all of the risks identified by Mr Bellanto were present, it was open to his Honour to conclude that the probative value of the tendency evidence substantially outweighed the risks of prejudice identified in the judgment.

74. [126]

    In the second judgment, his Honour considered Mr Bellanto’s submission of prejudice that was said to arise from the evidence of the club complainants being used to bolster the photo board identification evidence. Mr Bellanto had referred to Selby in which the Court (Leeming JA, Schmidt and Wilson JJ) quoted at [32] what was said by Levine J in R v Razzak: [26]

75. [127]

    In Selby, the accused was charged with one count of demanding money with menaces and one count of intimidation. The victim and location of the offences were the same. The first offence occurred in July and the second in October. The accused pleaded guilty to the intimidation count which had occurred in October and stood trial on the single count of demanding money with menaces. The trial judge ruled that the evidence relating to the later intimidation was admissible as coincidence evidence. On appeal, the accused argued that the trial judge erred in directing the jury that they could use coincidence evidence to corroborate identification evidence.

76. [128]

    In dismissing the appeal, the Court said at [36]:

77. [129]

    The Court concluded there was never presented to the jury any issue of using coincidence reasoning to strengthen weak identification evidence. The victim’s identification of the accused had been unequivocal at the trial. This was never a case “where the forbidden process of ‘staged’ reasoning would apply”: see [50] above.

78. [130]

    As has been mentioned at [50]-[51] above, his Honour considered the Court’s distinction from Razzak on the facts in Selby also applied in the present case. His Honour concluded that JF’s photo board identification evidence did not fall “well short of positive identification” and that this was not a case where “staged” reasoning would apply.

79. [131]

    In addition to JF’s identification of the appellant’s photograph from the photo board, which contained photographs of nine men, evidence relevant to the identity of the offender in counts 1-20 included the physical description of the offender, JF’s evidence that the offender introduced himself as Charlie; JF’s evidence that he saw Charlie at his confirmation ceremony at the Mary Immaculate Church; JF’s evidence that he saw Charlie at Bronte Beach; and JF’s evidence that SF had mentioned that it was someone named Charlie who would give him money for sucking his penis.

80. [132]

    In carrying out the weighing exercise required by s 101(2), the judge was entitled to disagree with the contention that there was no cogent identification evidence in the Crown case of the sexual offending against JF and SF. It was open to the jury to accept the honesty and reliability of JF’s identification evidence without having regard to the club complainants’ evidence. The extent of that identification evidence lessened the risk of the jury using the tendency evidence in an unfair way so as to identify the appellant as the offender by coincidence reasoning.

81. [133]

    It was open to the judge to decide that the probative value of the tendency evidence substantially outweighed the risk that the jury would use that evidence improperly so as to strengthen the Crown’s identification evidence in counts 1-20 and that an appropriate direction would be given to the jury to “cure any unfair prejudice that might occur” (see [51] above).

82. [134]

    In the weighing exercise that his Honour undertook in both the first and second judgments, he was entitled to take into account “the ameliorating effect of any directions that may be available to reduce the prejudicial effect”. [27] His Honour was entitled to expect that the jury would follow his directions. [28] This is not a case such as Sokolowskj v R [29] where there was a real risk that notwithstanding directions to the jury, the prejudice could not be alleviated by a jury direction. [30]

83. [135]

    The question remains whether his Honour’s directions ameliorated the prejudice pointed to by the appellant. An analysis of the directions that his Honour gave is undertaken in the consideration of ground 1A.

84. [136]

    I have dealt with the judge’s consideration of s 101(2) as the parties did not submit that the statement in Bauer that I have quoted at [83] above applied to s 101(2). However, in BC v R [2019] NSWCCA 111 this Court (Leeming JA; Ierace and Hidden JJ) with the agreement of the parties, considered at [60] that the High Court’s statement applied to the question of whether the probative value of the evidence was substantially outweighed by any prejudicial effect on the appellant for the purposes of s 101(2), even though Bauer was concerned with s 97.

85. [137]

    I have already provided my reasons for the conclusion that the tendency evidence was strongly probative of the appellant having committed the sexual offences. The significant probative value of the evidence, in my view, substantially outweighed any prejudicial effect on the appellant.

86. [138]

    Ground 1(d) is not made out.

87. [139]

    His Honour did not err in not severing counts 1-20 from counts 21-35. I would reject ground 1 of the appeal.

Ground 1A: His Honour erred in directing the jury as to the manner in which they could use the evidence of JF and, in particular, erred by failing to direct the jury that they must be satisfied beyond reasonable doubt that the accused was the perpetrator of counts 1-20 ([the JF and SF complaints]) before his evidence could be used as tendency evidence in respect of counts 21-35 (“the club complainants”) (and vice versa).

1. [140]

   Mr Brady submitted that the judge erred in failing to direct the jury that they must be satisfied beyond reasonable doubt that the appellant was the perpetrator of counts 1-20 before the evidence could be used as tendency evidence in respect of counts 21-35.

2. [141]

   Mr Brady submitted that it was imperative for the jury to be directed that the tendency evidence could be considered only if the jury were satisfied that the appellant was the perpetrator of counts 1-20. Mr Brady contended that the supplementary direction given by the judge was deficient as it failed to articulate in terms:

3. [142]

   Mr Brady accepted that r 4 of the Criminal Appeal Rules (NSW) was required to argue this ground as a direction in the terms outlined had not been sought at trial and no complaint was made at trial about the supplementary direction. However, the appellant argued that leave should be granted because each of the directions were required to prevent a miscarriage of justice.

4. [143]

   This ground of appeal was advanced in the alternative without a concession by the appellant that the tendency evidence was admissible if an appropriate direction had been given.

5. [144]

   As to this ground of appeal, the Crown referred to the judge’s directions and submitted that the jury could not possibly have engaged in any impermissible reasoning process if they followed his Honour’s clear directions that:

6. [145]

   In referring to r 4, the Crown referred to the judge’s directions that followed upon the appellant’s senior counsel’s request and no further directions were requested. The Crown submitted that the proposed direction was not necessary and no miscarriage of justice had occurred.

7. [146]

   In oral argument, Mr Brady contended that the “cookie jar” example did exactly what tendency evidence was not allowed to do, by saying that the identity of the person who committed the offence by raiding the cookie jar on the 13th occasion is proved by the tendency. As Mr Brady said:

8. [147]

   Mr Brady argued that the jury should have been told that the tendency evidence could not be used at all in relation to the identity of the appellant as the perpetrator.

9. [148]

   The Crown said that the practical effect of the judge’s directions was that the jury could not use the tendency evidence in relation to identity. The purpose of the cookie jar example was whether the cookie jar was raided on the 13th occasion, not whether it was a particular person. The Crown submitted that the cookie jar example needed to be read with the examples that his Honour had previously given about a tendency to act in a particular way. The Crown argued that the judge “did not give that example in the context of identifying it to be the one and same person”. [32]

10. [149]

    Rule 4 applies to this ground as no objection was raised at trial.

11. [150]

    In order to consider the various arguments, the judge’s directions as to tendency must be set out in some detail. His Honour’s oral directions were helpfully accompanied by slides which set out in short form those matters about which his Honour was speaking.

12. [151]

    Before turning to the directions on tendency, it is apposite to note that his Honour had earlier emphasised in the summing up “that each count needs to be considered separately, and each of the questions which are referred to need to be considered separately, because that is your obligation as a jury”. [33]

13. [152]

    When directing the jury as to the tendency alleged by the Crown, his Honour said:

14. [153]

    His Honour went on to direct the jury as to the requirements of which they were to be satisfied before they could use the tendency evidence:

15. [154]

    And further:

16. [155]

    Ground 1A complains that there was a failure by the trial judge to direct the jury they must be satisfied beyond reasonable doubt that the appellant was the perpetrator of counts 1-20 (the JF and SF complaints) before JF’s evidence could be used in respect of counts 21-35 (the club complainants) and vice versa.

17. [156]

    The reasoning process that his Honour described made it clear to the jury that before JF’s evidence could be used in respect of the offences against the club complainants or the evidence of the club complainants could be used in respect of the offences against JF and SF, they must be:

    1. (1)

       satisfied beyond reasonable doubt that the acts involving them did in fact occur; and

    2. (2)

       satisfied beyond reasonable doubt that the appellant had the tendency to have a particular state of mind, being a sexual interest in males between the ages of seven and fifteen years.

18. [157]

    His Honour then directed the jury as to the permissible use of tendency reasoning, and its limitations, if satisfied the threshold requirements had been met:

19. [158]

    The requirements for the jury to consider each count separately, then to ask whether they were satisfied beyond reasonable doubt whether the acts occurred and to further ask whether they were satisfied beyond reasonable doubt that the appellant had the relevant tendency went a substantial way to lessening the prejudice that his Honour identified in the first judgment as did the directions quoted at [157] above. I did not understand Mr Brady to submit that they did not. Notwithstanding his Honour’s charge to the jury that “the evidence cannot be used in any other way”, no express reference was made by his Honour to the potential misuse of the tendency evidence as co-incidence reasoning in identifying the appellant as the offender in counts 1-20.

20. [159]

    On 2 May 2017, the jury retired to consider its verdict.

21. [160]

    Mr Bellanto did not seek further directions from the judge on tendency, however, the jury did. Much of the argument in this Court focussed upon the further directions that his Honour gave in response to the jury’s request.

22. [161]

    On 9 May 2017, a jury note (MFI 47) was received asking:

23. [162]

    Mr Bellanto then raised with the judge the issue of tendency evidence in relation to identification, and the following exchange occurred.

24. [163]

    The next day Mr Bellanto pointed out that “…the fact [the jury] asked for a tendency direction would mean that they haven’t reached satisfaction beyond a reasonable doubt vis-à-vis the elements of the offence”. [39] Mr Bellanto went on further to raise Selby and to ask for a direction that “…[the jury] can’t use the tendency evidence to bolster the identification, which they might think flawed in some respects”. [40] In response to Mr Bellanto’s suggestion his Honour said:

25. [164]

    When the jury returned, his Honour explained that tendency evidence:

26. [165]

    His Honour provided the following example:

27. [166]

    The “cookie jar” example that has been emphasised in the paragraph above invited the jurors to use coincidence reasoning to identify “the child” as being the person who had taken the cookies on the 13th occasion. It did not go to proof of the occurrence of the offence as the cookies had been taken.

28. [167]

    The use of this example had the potential to lead the jury to reason as to the identity of the offender in counts 1-20 by the improper use of the club complainants’ tendency evidence. On the other hand, the further example of the “person with an alcohol problem” did not raise the potential of coincidence reasoning as it went to the occurrence of an offence and not to the issue of identity. However, his Honour’s further directions did not end with these examples but continued.

29. [168]

    It is unnecessary to recount all of what his Honour went on to say as his Honour repeated the directions that he had previously given to the jury. However, nothing was expressly said on the identification issue.

30. [169]

    At the conclusion of his Honour’s further directions, Mr Bellanto reminded the judge of his request that the jury be directed as to the proposition that tendency evidence could not be used to bolster identification evidence. His Honour then gave the following direction:

31. [170]

    This was a clear and emphatic direction that the jury could not use the tendency evidence in identifying the appellant as the offender in those counts of which JF gave evidence.

32. [171]

    Mr Bellanto did not ask for any further directions.

33. [172]

    All of what was said to the jury must be considered before concluding that this ground of appeal has been established. In Selby, the Court observed at [41]:

34. [173]

    Given the strength of his Honour’s final direction, I am not persuaded that the “cookie jar” example would have led the jury to impermissibly use co-incidence reasoning. The absence of complaint by Mr Bellanto, a very experienced trial counsel, supports that conclusion.

35. [174]

    When his Honour’s directions are read as a whole, I am not satisfied that the jury would have used the evidence of the club complainants to bolster JF’s identification evidence.

36. [175]

    It is trite to observe that “a failure to raise objections at the close of the judge’s summing up is usually a reasonably reliable indicator of its fairness and adequacy”. [45]

37. [176]

    It is well understood that r 4 is not “some mere technicality which may simply be brushed aside”: R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]. The Court said at [13]:

38. [177]

    In ARS v R [2011] NSWCCA 266, Bathurst CJ (James and Johnson JJ agreeing) said as to r 4 at [148]:

39. [178]

    I am not persuaded that the appellant has lost a real chance (or a chance fairly open) of being acquitted either by the directions that his Honour gave or failed to give to the jury. Furthermore, it has not be established that there has been a departure from the essential requirements of the law that goes to the root of the proceedings, such as to warrant the convictions being set aside on a point not taken at trial.

40. [179]

    I am fortified in reaching these conclusions not only by the judge’s clear and emphatic final direction and the lack of complaint by experienced senior counsel, but by the extent of JF’s identification evidence; the separate treatment by the judge in the summing up of the identification evidence and the Crown’s closing address to the jury which did not invite coincidence reasoning.

41. [180]

    I would refuse the leave to appeal required by r 4.

Grounds 2 and 3

1. [181]

   I have had the opportunity of reading Hidden JA’s draft judgment in which his Honour comprehensively deals with these grounds. I agree with his Honour’s reasons and that grounds 2 and 3 are not made out.

Orders

1. [182]

   I propose the following orders:

   1. (1)

      Refuse leave to appeal under r 4 of the Criminal Appeal Rules in respect of ground 1A.

   2. (2)

      Dismiss the appeal.

2. [183]

   ADAMSON J: I have read the draft reasons of Price J and Hidden AJ. I respectfully agree with the reasons of Hidden AJ concerning grounds 2 and 3. I have come to a different view from that of Price J in respect of grounds 1 and 1A. I am indebted to Price J for his outline of the relevant facts and legislative provisions which I adopt.

3. [184]

   It was accepted that whether the counts concerning JF and SF ought be tried separately from the counts concerning the Club complainants depended on the cross-admissibility of the tendency evidence relied upon in respect of each. This assessment, in turn, depended on whether the tendency evidence had significant probative value for the purposes of s 97(1)(b) of the Evidence Act 1995 (NSW) and, if so, whether “the probative value of such evidence substantially outweighs any prejudicial effect” pursuant to s 101(2) of the Evidence Act.

4. [185]

   As the High Court said in The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [61], it is for an appellate court to assess the question of significant probative value for itself. This assessment requires an identification of the relevant tendency and the fact or facts in issue which it is adduced to prove: Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 at [16]. Identifying the tendency in the present case has been made more difficult by the revised tendency notice which contains matters relevant to coincidence, but not tendency, such as location. There is also a reference to other charges which were severed from the indictment. Shorn of these surplus matters, the notices specified the relevant tendency (common to JF and SF and the Club complainants) as being that the appellant had a sexual interest in males aged between 7 and 15 years, on which he tended to act. Such acts involved fellatio and touching and fondling of the complainants’ penises.

5. [186]

   The tendency was relied on to prove that the acts committed by the appellant on the complainants were to gratify his sexual interest. The Crown specifically disavowed the use of tendency evidence to prove identification. The Crown did not rely on the evidence for a coincidence purpose and no notice pursuant to s 98 of the Evidence Act was served.

6. [187]

   There were significant differences between the evidence of SF and JF with respect to the appellant’s conduct towards them and that of the Club complainants. The appellant approached SF with a view to paying him for sexual contact. JF was included in this arrangement. The appellant made SF and JF swear to keep the contact secret. The sexual contact between the appellant and SF and JF was conducted in circumstances where the other complainant acted as a look-out to minimise the chances of detection. By contrast, the appellant’s conduct with respect to the Club complainants was opportunistic, apparently spontaneous and carried a high risk of detection. There was no prior arrangement, nor was there any attempt on the part of the appellant to swear the Club complainants to secrecy.

7. [188]

   In McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045, the majority did not consider there to be any feature to link the sexual misconduct because of the differences between the charged conduct (the appellant’s following the complainant into a public toilet before the church service) and the conduct relied on as tendency evidence (the appellant’s taking advantage of young teenage boarders who sought out the appellant housemaster in the privacy of his own bedroom). I regard the differences as at least of a similar order in the present case, although the temporal connection was stronger.

8. [189]

   I am not persuaded that the evidence regarding the acts on SF and JF had significant probative value with respect to the charges concerning the Club complainants or vice versa within the meaning of s 97(1)(b) of the Evidence Act. The position might have been different had coincidence been relied upon or had there been no issue as to identification but it is not fruitful to consider these variants.

9. [190]

   Further, and in any event, I am not persuaded that any probative value of the tendency evidence substantially outweighs its prejudicial effect, which I regard as considerable. There was a substantial risk that the jury would use the tendency evidence to reason that if the appellant committed the charged acts against the Club complainants (whose identification of the appellant was more reliable than that of SF and JF), he was also the person who committed the acts against SF and JF. The jury would also be inclined to reason that because the acts committed against SF and JF were plainly sexual, and intended to be so, the acts charged in respect of the Club complainants were committed by the same person, although the identity of the offender was in issue.

10. [191]

    It follows that I consider that the counts concerning SF and JF ought to have been severed from the counts concerning the Club complainants and that the trial judge’s refusal to do so was erroneous. In the circumstances, it is not necessary to consider grounds 1A or 3, since they do not arise although, as I have said, I agreed with Hidden AJ in respect of ground 3. I propose to address ground 1A briefly.

11. [192]

    If my view concerning ground 1 prevailed, it would not be necessary to consider ground 1A. However, as Price J is of a different view as to the first ground, it is appropriate that I provide reasons for my view concerning ground 1A.

12. [193]

    For the reasons given by Price J, the “cookie jar example” had the potential to mislead the jury by encouraging them to use the tendency evidence on the issue of identity. I do not regard the subsequent directions as sufficient to undo the harm created by the use of that metaphor. It is a matter of common experience that metaphors are used because they are powerful and tend to be retained by the mind longer than non-symbolic language. Although the trial judge gave correct directions after giving the cookie jar example, his Honour did not withdraw it. In those circumstances, I consider there to have been a significant risk that the jury would use the cookie jar example on the issue of identity, since it was, on any reasonable view, pertinent to that issue. In these circumstances the jury was, potentially, led astray in a serious way by the inapposite metaphor.

13. [194]

    The principle that parties are bound by their counsel’s conduct of the case is fundamental. However, the failure by the appellant’s trial counsel to apprehend the vice in the cookie jar example ought not be permitted to deprive the appellant of a fair trial. The task of defending an accused in a criminal trial is a demanding one. The gravamen of a particular matter may not be immediately apparent to counsel because of other concerns and distractions, all of which may be related to the trial at hand. As the potential injustice was, in my view, substantial, this is not a case in which I consider that r 4 of the Criminal Appeal Rules (NSW) should prevent this Court considering the matter or giving appropriate relief.

14. [195]

    The orders I propose are as follows:

    1. (1)

       Grant leave to appeal under r 4 of the Criminal Appeal Rules (NSW) in respect of ground 1A.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the appellant’s convictions and sentence.

    4. (4)

       Subject to (5) below, order that there be a re-trial of the appellant.

    5. (5)

       Order that the appellant be tried separately on counts 1-20 from counts 21, 22, 23, 26, 28, 29, 30, 32, 33, 34 and 35.

    6. (6)

       Remit the matter for mention at the District Court at Sydney on 2 August 2019 at 9.30am.

15. [196]

    HIDDEN AJ: As to grounds 1 and 1A, I agree with Adamson J. In her reasons in relation to ground 1, on the balancing exercise required by s 101(2) of the Evidence Act, her Honour refers to the substantial risk that the jury would use the tendency evidence on the issue of the identity of the appellant as the offender in relation to the complainants SF and JF. True it is that the very experienced trial judge gave the jury comprehensive and detailed directions about the tendency evidence, including a direction that it was not to be used for that purpose. However, the “cookie jar” analogy which his Honour himself used (not picked up by either counsel) demonstrates the extent of the risk that it would be used on that very issue.

16. [197]

    Accordingly, I agree with the orders proposed by Adamson J. As there is to be a new trial in respect of the JF and SF allegations, it remains appropriate to deal with ground 2.

b. Did not undertake the balancing act required under section 137.

1. [198]

   The identification procedure, and the issues relating to it, are set out in the judgment of Price J at [34]-[52].

2. [199]

   The photograph array was prepared inside a manila folder in such a way as to conceal all details such as file numbers, complaints and other relevant material, as well as the personal details of the subjects. It was then photocopied onto an A3 piece of paper, and it was this which became the exhibit. The DVD was played to the jury and was marked for identification.

3. [200]

   No complaint was made in this Court about his Honour’s disposition of the issue under s 138 of the Evidence Act. The focus of the argument was upon the suggestion that the photos in the array depicted persons who were in police custody.

4. [201]

   Relevantly for present purposes, s 115 of the Evidence Act provides:

5. [202]

   It was put to his Honour that subs (2) of that section applied here, that is, that the photograph array suggested that the persons depicted were in police custody. The photographs showed only the face of the person, but the argument was based upon the fact, as noted by Price J, that in each case the face was depicted front on and in profile.

6. [203]

   It was this which led his Honour to say to the Crown Prosecutor in the course of argument on the voir dire that “what would leap out at most people” is that each was a “mug shot”. This was the “first impression” referred to by Price J in [46] above, and in that paragraph and in [47] Price J has sufficiently summarised his Honour’s reasons for rejecting this challenge to the admission of the evidence.

7. [204]

   His Honour considered two authorities on s 115(2): R v Batty (NSWCCA, unreported, 6 August 1997), and Pace and Collins v The Queen [2014] VSCA 317.

8. [205]

   Batty was the first case in which this Court considered the subsection. In that case the complainant had identified the appellant by selecting a photograph of him from an array of photographs contained in several volumes. They were photographs of persons in police custody, but that was sought to be concealed by the manner in which they were arrayed on the pages of the book. On each of the photographs the familiar card or item held by the subject setting out his name, height and date of birth was concealed. On the photographs at the bottom of the page, that information was concealed by a plastic strip. The photographs above it were placed in such a way that the relevant portion of each photograph was concealed by the photograph below it. Some of the books containing the photographs were captioned “offender photographs”.

9. [206]

   It was submitted to the Court that all the photographs presented “the familiar stereotype of police photos of offenders”. The photographs were similarly lit, all the subjects had a similar posture, were a similar distance from the camera, and a similar distance in front of “a drab wall evocative of the interior of a police station”. It was said that few “seemed pleased at the exposure”, and that some of the subjects had “the abject appearance” indicative of “mug shots”. It was also pointed out that the plastic strips across the bottom photographs conveyed that something had been edited from all of them.

10. [207]

    McInerney J, with whom Aberdee and Bruce JJ agreed, held that “it is the picture identification evidence itself and the pictures themselves to be examined to suggest whether they are pictures of persons in police custody and that has to be done without consideration of the context in which those photographs were examined”. McInerney J expressed the view that there was nothing in the photographs themselves to suggest that the persons were in police custody. In dismissing the ground of appeal raising this issue, his Honour said that he was not persuaded that it was not open to the trial judge to conclude that the photographs were “neutral”.

11. [208]

    In Pace and Collins, a complainant had identified the appellants in photographs contained in a book. The Victoria Police logo appeared on the front cover of the book, which was referred to as “Footscray – Photobook – dark skinned and African males”. The photographs were on a series of pages, at the bottom of which appeared the words “Footscray – Confidential”. Each photograph appeared within a border which contained at the bottom an eight or nine digit number. The trial judge had described most of the photographs as “passport type photographs, being close up photographs of each person’s face, neck and a portion of their shoulders”. However, nine of the photographs did not meet that general description because the background of each of them was “not plain”. Some had as part of their background “portions of a structure that could be consistent with a cell”. Others had “a door, what appears to be an architrave, brick work and vertical blinds”, and one appeared to show a height scale.

12. [209]

    The Victorian Court of Appeal said at [23]:

13. [210]

    In rejecting a ground of appeal that the evidence was wrongly admitted, the court said that the trial judge was correct to observe that, apart from the nine photographs referred to, the pictures were consistent with photographs taken for identification purposes in a number of contexts, such as licences of various kinds or for employment records. They also agreed with the view of the trial judge that the function of the eight or nine digit numbers at the bottom of each photograph was a matter of “mere speculation”. As to the nine photographs in which backgrounds could be seen, the court saw nothing in those backgrounds which “suggests objectively that the males depicted in the photos are in police custody”. The court concluded that the trial judge’s ruling under s 115(2) was “plainly correct”.

14. [211]

    In the present case his Honour said that these authorities “evidence a more robust view, admittedly in different circumstances to what might ordinarily be suggested by a photograph’s contents”. He added that, “on further reflection and taking guidance from the approach exhibited in those cases”, he did not consider that the present photographs provided the suggestion prohibited by the subsection.

15. [212]

    The matter of principle which arises from Batty and Pace and Collins is that the issue raised by s 115(2) must be resolved by an examination of the photographs themselves devoid of the context in which they were examined. Otherwise, each of those cases turned upon its own facts, and conclusions were reached as to which, perhaps, reasonable minds might differ. That said, the photograph array in the present case was more benign than in either of those cases.

16. [213]

    Mr Brady emphasised that the test under s 115(2) is whether the photographs “suggest” that they were of persons in police custody, and relied upon the first impression which his Honour expressed during argument. However, after further consideration, his Honour concluded that the photographs did not have that effect for the reasons set out at [46]-[47] above. It cannot be said that it was not open to his Honour to arrive at that conclusion. The challenge to the admission of the evidence on this basis must fail.

17. [214]

    I should record that in this context his Honour also referred to R v FAP [1999] NSWCCA 278, but in that case a challenge to the admission of evidence of photographic identification under s 115(2) was abandoned. The court considered only whether, on other bases, the evidence should have been rejected under ss 135 or 137 of the Evidence Act.

18. [215]

    At the trial the identification evidence was objected to also on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant: s 137 of the Evidence Act. It was argued that the photographs were of poor quality, and that they depicted only the facial and neck areas of the subject when a prominent aspect of JF’s description of the appellant related to his build. It was also noted that only nine persons were depicted in the array. That was also the case in FAP, a matter which troubled James J, which whom Meagher JA and Sperling J agreed: [18]. Nevertheless, in that case the ground based upon s 137 was found not to be made out.

19. [216]

    As noted by Price J at [41]-[42], his Honour also considered a submission that the tendency evidence might be used impermissibly to bolster the strength of the identification evidence. That issue was not reagitated for the purpose of this ground.

20. [217]

    In the event, the only basis upon which his Honour’s approach to s 137 was impugned related to the question raised by s 115(2). Although the challenge to the admission of the evidence under that subsection did not succeed, Mr Brady relied upon his Honour’s “first impression” that the photographs were “mug shots” on the issue of prejudice in this context. He referred to the following passage in his Honour’s reasons:

21. [218]

    In Batty the photographs had not been tendered, and the Crown Prosecutor in the present case was prepared to take the same course.

22. [219]

    Mr Brady submitted that the above passage from his Honour’s reasons demonstrates that he did perceive potential prejudice from the jury having access to the photographs. His Honour then propounded a potential solution open to the defence. However, Mr Brady argued, his Honour did not deal with the question whether the probative value of the evidence was outweighed by the danger of that prejudice, thus failing to undertake the balancing exercise required by s 137.

23. [220]

    Mr Brady added that, in any event, the appellant should not have been forced to consider a potential compromise in his defence in order to avoid any prejudice. The practical reality, he said, was that any unfairness could not be ameliorated by the course suggested by his Honour. To test the reliability of JF’s identification it was necessary to draw to the jury’s attention the potential deficiencies in the photographic array. This was pursued in cross-examination of JF, during which Mr Bellanto tendered the array and it was admitted.

24. [221]

    However, as the Crown prosecutor in this Court pointed out, his Honour’s finding in relation to s 115(2) was that the photographs did not suggest that they were of persons in police custody, and he would not have effectively revisited that finding when considering the balancing exercise under s 137. In the quoted passage his Honour was merely pointing out that the appellant had the forensic choice to proceed without the photographs going into evidence. It does not convey that his Honour perceived some residual prejudice to the accused on the basis that they might yet be suspected to depict persons in custody.

25. [222]

    This ground is not made out.

c. Moved to a majority verdict without considering whether s 55F(2)(a) Jury Act had been satisfied and giving the jury a Black direction.

1. [223]

   It is strictly unnecessary to determine this ground, but it is appropriate to do so as it raises issues of some importance.

2. [224]

   The jury retired to consider their verdicts on 2 May 2017. Their deliberations were lengthy. On 4 May, the trial judge received a note disclosing that, at least as to one count, 11 of them agreed on a verdict of guilty but the remaining juror was undecided. His Honour did not disclose those figures in open court, but gave the jury a conventional direction that they should do their best to reach a verdict upon which they were all agreed.

3. [225]

   Deliberations continued until 23 May, when his Honour received two notes from the jury. The first note (MFI 54) read:

4. [226]

   The second note (MFI 55) was in different handwriting and appeared to have been composed by one juror only. It read:

5. [227]

   His Honour discussed the notes with counsel, and Mr Bellanto foreshadowed an application for discharge of the jury. His Honour stood the matter over to the following day, when that application was pursued.

6. [228]

   Put shortly, it was the position of Mr Bellanto that the effect of the notes was to disclose a failure by a juror or jurors to engage in deliberations from the outset. He submitted that this indicated an unwillingness on part of a juror to honour the oath or affirmation taken by the jurors at the start of the trial about their function, and that the particular juror or jurors should be considered as disqualified or incompetent in the same way as a juror who could not take part in deliberations from some personal impediment. He referred by way of analogy to Petroulias v R (2007) 73 NSWLR 134, [2007] NSWCCA 134, where it was held that the trial process was flawed from the outset because one of the jurors was disqualified from serving due to a criminal conviction. For that reason, he argued, the discharge of a particular juror could not remedy the situation. Alternatively, he argued that if that course were taken, the contents of the notes were such that there was a risk of a substantial miscarriage of justice if the trial were to be continued with the remaining jurors: s 53C(1)(a) of the Jury Act.

7. [229]

   Again put shortly, the Crown Prosecutor’s position was that the notes were equivocal as to whether unanimous verdicts could be achieved, so that it was appropriate that a Black direction be given (Black v The Queen (1993) 179 CLR 44 at [50]) with an invitation to send a further note if disagreement could not be resolved. Consideration could then be given to a majority verdict. He also raised the possibility of the discharge of a single juror under s 53B of the Jury Act under paragraphs (c), that the juror had refused to take part in deliberations, or (d), that the juror should not continue to act as such because of any other reason affecting his or her ability to perform the functions of a juror.

8. [230]

   His Honour refused the application to discharge the jury. He considered it inappropriate to seek clarification of the matters raised by the notes through communication with the foreperson, citing R v Orgles (1993) 93 Cr App R 185 and The Queen v Roberts [2004] QCA 366. The effect of those decisions is that it is not proper to separate out jurors and examine them as to the details of disagreements such as these. He also declined to exercise the powers under s 53B of the Jury Act. On the limited information provided by the notes, he concluded that there had been some deliberation and that, given the length of time that the jury had already been deliberating and the fact that they had indicated unanimous agreement on some counts, it could not be said that the trial process was flawed from the outset.

9. [231]

   However, his Honour concluded from the notes that there was now “a stalemate”. He considered it appropriate to bypass the Black direction and, if the prerequisites of s 55F of the Jury Act were met, to permit majority verdicts. He concluded that the appropriate course was to send a note to the jury seeking an indication of the counts upon which they had unanimously agreed, to take the verdicts on those counts, then to engage in the process under s 55F to determine whether the time had come to permit majority verdicts.

10. [232]

    The proposed note was sent to the jury, eliciting the response that they were unanimous as to Counts 2 and 35 (MFI 56, 57). However, a further note was received (MFI 58), which read:

11. [233]

    This led to the re-agitation of the application for discharge by Mr Bellanto, which his Honour refused. Subsequently, the verdicts of guilty were taken on Counts 2 and 35. Evidence was taken from the foreperson, pursuant to s 55F(2)(b) of the Jury Act, that unanimous verdicts on the remaining counts were unlikely and his Honour directed that majority verdicts could be returned.

12. [234]

    Later that same day, a further note was received from a juror (MFI 59). Written in a handwriting different from those in the other notes, it was in these terms:

13. [235]

    Mr Bellanto made yet another application for the discharge of the jury, which again was refused. It was on 26 May that the jury returned majority verdicts on the remaining counts.

14. [236]

    It will be necessary to examine part of his Honour’s reasons in greater detail when dealing with this ground of appeal. It is also necessary to set out relevant provisions from ss 53A, 53B and 53C of the Jury Act (contained in Pt 7A):

15. [237]

    The three matters raised by this ground will be dealt with in turn.

16. [238]

    The requirement to consider the discharge of the jury under s 53C(1)(a) arises if an individual juror has been discharged. In the present case a juror might have been discharged on one of two bases: mandatory discharge under s 53A(1)(c) because of misconduct, or discretionary discharge under s 53B(c) or (d) on the basis of refusal to take part in deliberations or for another reason affecting the juror’s ability to perform his or her functions. In his reasons for refusing the discharge of the jury on 24 May 2017, his Honour made no reference to s 53A but noted the Crown’s submission that it was open to discharge a juror under either of those paragraphs of s 54B. His Honour continued:

17. [239]

    Later in his reasons, referring to the two notes MFIs 54 and 55, his Honour said:

18. [240]

    Mr Brady argued that the first two notes (MFIs 54 and 55) described behaviour inconsistent with the proper discharge of a juror’s duty. They complained of behaviour on the part of at least one juror involving a breakdown in communication “due to personal prejudice and combative personality issues”, a resistance to convict someone based on religion, an unwillingness to follow the directions of the trial judge, the intentional obstruction of the jury’s deliberations, a lack of appropriate “attention and diligence” in the case and, generally, being “a hindrance”.

19. [241]

    Mr Brady accepted that his Honour properly declined to make enquiries of the foreperson (or any other juror) about the details of these matters, consistently with the decisions in Orgles and Roberts. He submitted, however, that his Honour was then left in a position where there was a strong basis to conclude that at least one member of the jury was engaged in misconduct within the meaning of s 53A(1)(c). As to what might constitute such misconduct, he argued that guidance might be afforded by the observations of Gleeson CJ and Hayne J about the discharge of a juror for perceived bias in Wu v The Queen (1999) 199 CLR 99, [1999] HCA 52, at [9]. Postulating an incident which might give rise to that perception, their Honours said:

20. [242]

    Mr Brady noted his Honour’s response in his reasons to Mr Bellanto’s submission that the trial was flawed from the outset, which was as follows:

21. [243]

    Mr Brady pointed out that, while that might be an appropriate response to the submission that the trial was flawed from the outset, it did not deal with the issue of misconduct under s 53A(1)(c). That provision might be invoked to deal with misconduct by a juror regardless of the state of the trial at which that misconduct occurred. Mr Brady acknowledged that if in the present case his Honour had considered mandatory discharge under the provision, he might not have taken that course. His submission, however, was that his Honour was bound to consider it.

22. [244]

    At the trial neither Mr Bellanto nor the Crown prosecutor sought the discharge of a juror on any basis, and discharge under s 53A was not raised at all. Relevantly for present purposes, misconduct under that provision is defined as conduct giving rise to the risk of a substantial miscarriage of justice in the trial: subs (2)(b). Mr Brady submitted that the contents of the notes MFI 54 and 55, if accepted, describe a juror who is behaving in bad faith or, if not accepted, conveys that other members of the jury were misrepresenting the participation of a fellow juror or jurors, thereby unfairly discriminating against that person. He argued that that interpretation might be supported by the subsequent note (MFI 58), signed “G4 jurors (minus one)”, suggesting that the majority of the jurors had excluded one of their number from deliberations. On either approach, he argued, there would be behaviour giving rise to the risk of a substantial miscarriage of justice and amounting to misconduct.

23. [245]

    The terms of the notes MFIs 54 and 54, together with MFI 58, fairly give rise to the inference that they amount to complaints by the majority of the jurors, who were applying themselves to their task, about obstructive behaviour by at least one of their fellow jurors. The possibility that that allegation of misbehaviour was an unfair mischaracterisation of another juror’s conduct can be put aside.

24. [246]

    While Mr Brady’s submission was no more than that his Honour should not have ignored the possible application of s 53A(1)(c), it should be noted that in Hoang v R [2018] NSWCCA 166, N Adams J (with the agreement of Hoeben CJ at CL) referred at [132] to a “level of satisfaction such as to warrant the application” of that provision, which she described as “an evaluative process in relation to which judicial minds might differ.” Her Honour considered that the question of a “risk of substantial miscarriage of justice” called for an enquiry whether the alleged misconduct “could have affected the outcome of the trial in any way”: [132].

25. [247]

    The utility of seeking guidance as to what might constitute relevant misconduct by analogy with the issue of reasonable apprehension of bias examined in Wu is questionable. It might also be noted that the issue of apprehended bias is expressly addressed in s 54B(b). In R v Lamb and Ors [2016] NSWCCA 135, the Court was considering the issue of risk of a substantial miscarriage of justice for the purpose of the discharge of a jury under s 53C(1)(a). It had been argued that that test might be assessed by reference to the test for the discharge of a jury adopted by the plurality in Crofts v The Queen (1996) 186 CLR 427 at 440, that is, whether there was “a high degree of necessity for the jury’s discharge.” The Court found it unnecessary to determine whether the statutory test should be considered on its own terms or whether it should be informed by the “seemingly higher” test enunciated in Crofts.

26. [248]

    It is uncertain what the scope of s 53A(1)(c) would be in this case, particularly given the breadth of the discretionary power to discharge afforded by s 54B. In all likelihood, this is the reason why it was that provision which was referred to in argument. The bases provided in section 53B for the discharge of a juror include “any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason”: (b), refusal of the juror to take part in the jury’s deliberations: (c), or for “any other reason” affecting the juror’s ability to perform his or her functions: (d). It is not apparent that paragraph (b) has a part to play but, clearly, paragraphs (c) and (d) are relevant.

27. [249]

    There is force in the submission of the Crown prosecutor in this Court that if the discharge of a juror in the present case were to be considered, it could have only been under that section. As his Honour noted, there was a “sparsity of material” in the two notes and it cannot be said that his Honour was required to consider discharge under s 53A, particularly in the absence of an application by either counsel to do so.

28. [250]

    Mr Brady submitted that his Honour also fell into error in failing to consider discretionary discharge under s 53B. As has been noted, that section was raised in argument by both counsel but neither sought the discharge of a juror under it. Senior counsel for the appellant argued no more than that if the juror were discharged under that provision, the rest of the jury would require to be discharged under s 53C(1)(a).

29. [251]

    Mr Brady argued that in the passages from his reasons quoted at [238]–[239] above, his Honour fell into error in three respects. Firstly, he assumed that there was only one juror engaged in the conduct complained of in the first two notes. Secondly, by declining to consider s 53B as an option because the notes conveyed “significant complaints”, which required “a finding that the juror has abdicated his or her responsibility or duty”, his Honour confined the operation of the section to a positive finding that a juror had breached his or her obligations. Thirdly, resort to the provision for majority verdicts in section 55F of the Jury Act was not an appropriate manner to respond to new information that a jury member was not complying with his or her oath.

30. [252]

    As to the first matter, his Honour made it clear in his reasons that he could not be certain that it was the behaviour of only one juror which was in issue. That said, the terms of the notes MFIs 54 and 55 fairly gave rise to the inference that it was one juror and, in the event, that was confirmed by the subsequent notes. Mr Brady relied upon the last note, MFI 59, by “the one out of the 12”, asserting that there was more than one dissentient as to verdicts on some of the counts. While that may well have been so, it does not mean that other dissentients were engaging in the type of behaviour of which complaint was made. From the notes as a whole it is apparent that that behaviour was attributed to one juror only.

31. [253]

    As to the second matter, it may be accepted that s 53B might be invoked where a juror’s behaviour was not such as to amount to a breach of his or her obligations. Nevertheless, in the present case the section was raised in circumstances where the complaints made about the juror were significant and, if discharge under the section were to be considered, could involve what his Honour properly described as “significant findings.” To that extent it can be said that his Honour did consider the issue of discharge under s 54B but, certainly, he did not pursue it because he perceived that the matter could be dealt with “another way.” This leads to the third matter raised by Mr Brady, which was at the heart of his submissions.

32. [254]

    Mr Brady argued that it was inappropriate to resort to the availability of a majority verdict under s 55F when there was information indicating that a juror was disregarding his Honour’s directions and failing to participate appropriately in the jury’s deliberations. He submitted that the purpose of s 55F is to break a deadlock if one juror disagrees with a verdict arrived at by the others and, as he put it in written submissions, it should be available only in circumstances “where the jury members have reached an impasse whilst complying with their oaths.” He noted that, even when a majority verdict becomes available, juries are still exhorted to listen carefully and respectfully to all their members and to strive for unanimity. While a majority verdict acknowledges the disagreement of one juror, it should be on the basis that those returning the verdict have considered the views of that dissentient juror carefully.

33. [255]

    Mr Brady also referred to the note, MFI 58, expressing the frustration of 11 of the jurors in the hope that the juror complained of could be “removed” so they could continue with their deliberations. He argued that the majority verdict direction may have been perceived as an endorsement of that request to remove a juror and may have deterred other dissenting jurors from maintaining their stance.

34. [256]

    There is nothing in the terms of s 55F to suggest that it is confined to deadlocks when all jurors are approaching their task conscientiously. Indeed, it is clear from the Second Reading Speech in the Legislative Council relating to the Jury Amendment (Verdicts) Act 2006 (NSW), by which s 55F was introduced to the Act, that the section sought to deal with the “rouge” juror who refuses to engage meaningfully in deliberations. The Treasurer, on behalf of the Hon. John Della Bosca, said:

35. [257]

    Mr Brady’s argument based on the note MFI 58 that the majority verdict direction may have effectively intimidated other dissenting jurors into agreement on verdicts cannot be sustained. As noted above, the notes as a whole convey that all the members of the jury apart from the member subject of complaint were applying themselves conscientiously to their task and, no doubt, observing his Honour’s directions.

36. [258]

    Plainly enough, the present case involved the type of “rogue juror” described in the Second Reading Speech. In all the circumstances it was not incumbent on his Honour to pursue the question of discharge of such a juror before invoking the procedure under s 55F.

37. [259]

    Accordingly, no juror having been discharged, the discretion to discharge the whole jury pursuant to s 53C(1)(a) did not arise.

38. [260]

    Mr Brady’s alternative submission was that the jury should have been discharged in the exercise of the common law discretion to do so, there being a risk of a substantial miscarriage of justice because of a reasonable apprehension of bias. That apprehension was said to arise from the notes which, Mr Brady repeated, conveyed that one juror was not complying with his or her oath or the other jurors were improperly excluding that juror from deliberations. Mr Brady argued that both of those interpretations of the notes were available, so that the apprehension of bias could not safely be isolated to one juror. That being so, the only course available to meet the risk of a miscarriage of justice was the discharge of the whole jury.

39. [261]

    I have already expressed the view that the notes do not fairly admit of an interpretation that one juror was being improperly excluded from deliberations by his or her fellow jurors. I have also expressed the view that the conduct attributed to the one juror does not raise an issue of the reasonable apprehension of bias under s 53B(b), as opposed to what might be described as other irregular conduct under other paragraphs of that section. In any event, for the reasons we have already given, it cannot be said that the test accepted in Crofts of a high degree of necessity for the discharge of the jury was met.

40. [262]

    In written submissions the Crown prosecutor in this Court queried whether the Common Law discretion to discharge a jury has survived the enactment of the comprehensive provisions dealing with that topic in Pt 7A of the Jury Act. As that matter was not fully argued, I would prefer not to express a concluded view about it.

41. [263]

    By s 55F(2)(a), it is a pre-requisite to a majority verdict that “a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings.” In his reasons for declining to discharge the jury his Honour expressly referred to that requirement. At the time he directed the jury that a majority verdict was available they had been deliberating for periods totalling, in round figures, 11 days.

42. [264]

    Mr Brady submitted that his Honour had failed to have regard to whether a reasonable time had passed, citing Hanna v R (2008) 73 NSWLR 390; [2008] NSWCCA 173. He referred to the undoubted length and complexity, legally and factually, of the trial. He noted that his Honour’s summing up occupied close to two days of hearing and the jury had been provided with written directions of more than 50 pages, complimented by a substantial PowerPoint presentation. He also observed that the terms of the jury notes MFIs 54 and 55 did not preclude the possibility of unanimous verdicts, given that the first note disclosed that they were unanimous on two counts and “very close to unanimous on the remaining counts.”

43. [265]

    However, in the course of argument on the application for discharge of the jury his Honour did note the length of time which had elapsed and observed that in a trial of “four or five weeks” that time conveyed on the part of the jury “a reasonable attempt to agree and to deal with their task.” Later during argument, he described it as his “instinct” that the time for majority verdicts had come. While his Honour did not expressly refer to the complexity of the trial and the substantial directions he had given the jury, it appears from those observations that he was not unmindful of those matters.

44. [266]

    Mr Brady also submitted that his Honour should have given the jury a Black direction, and allowed time for further deliberation, before raising the possibility of majority verdicts. He also relied upon the possibility of unanimity disclosed by the first jury note, adding that the direction was clearly needed to address the concerns raised in the two notes by reminding the jurors of their obligation to decide the case in accordance with the evidence and to consider carefully the views of their fellow jurors.

45. [267]

    As noted above ([239]), in his reasons for declining to discharge the jury his Honour thought it “quite a reasonable interpretation” of the two notes that a particular juror (assuming it was only one) had a “solidified view as to his or her obligation” which was “informed by the person’s reluctance to find a person guilty, and other issues raised in the notes.” Prior to that his Honour had noted clear authority “that it is inappropriate for a judge to place undue pressure on a jury to reach verdicts, and to pressure jury members to compromise their duty to achieve unanimity.”

46. [268]

    In that context he referred to Burrell v R [2007] NSWCCA 65; (2007) 190 A Crim R 148, where McClellan CJ at CL (with whom Sully and James JJ agreed) observed at [295] (219) that “a Black direction may result in a miscarriage of justice if it creates a real risk of the jury failing to give the issues free deliberation….” His Honour referred at that point to the judgment of Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545. In that case the then Chief Judge (at 550) observed that in Black the High Court “stated the fundamental principle that a jury must be free to deliberate without any pressure being imposed upon them, so that individual jurors are not pressured to join in the view taken by the majority against their personal views” (referring to Black at 50–52).

47. [269]

    In Burrell an issue arose about the appropriateness of a Black direction which had been given after the judge had received a note from an individual juror disclosing that he or she was a dissentient as to the verdict and (for reasons which need not be examined here) felt under pressure from the majority of the jurors. The Court found that the trial judge had not erred in giving the direction. McClellan CJ at CL said at [297] (219):

48. [270]

    What emerges from this authority is that, while a Black direction is conventionally given when a jury has indicated clear disagreement, the trial judge has the discretion whether or not to give that direction depending on the circumstances of the case at hand. In the present case his Honour had two notes from the jury conveying that there might be intractable dissent by at least one juror as to verdicts on the large number of counts in respect of which agreement had not yet been reached. The jury had been deliberating for a very lengthy period. There may have been a danger that a Black direction at that stage might place inappropriate pressure upon a dissenting juror to agree with the majority. It cannot be said that his Honour erred in the exercise of his discretion not to give the direction.

49. [271]

    In any event, when his Honour directed the jury about the availability of majority verdicts he adopted the form of direction set out in the Bench Book, which is effectively a modified Black direction. Whilst saying that majority verdicts were available, his Honour directed that they should continue to strive for unanimity, to calmly consider the evidence, and to consider the opinions of other jurors while understanding that they should not depart from a view honestly held. In all the circumstances, it was open to his Honour to have concluded that the time had come to direct the jury about the availability of majority verdicts.

50. [272]

    This ground also is not made out.