Isika v R

1. [1]

   MACFARLAN JA: Following a trial in June 2014 in the District Court before a judge and jury, the appellant was convicted of an offence, contrary to s 61L of the Crimes Act 1900 (NSW), of one count of assaulting the complainant (and at the time also committing an act of indecency) and of one count of an offence, contrary to s 61N(2) of the Crimes Act, of committing an act of indecency towards the same complainant. The Indictment alleged that those offences occurred between 25 and 26 January 2010. The appellant was acquitted of three other charges which concerned acts of a sexual nature alleged to have been committed on 16 January 2010 in relation to the same complainant.

2. [2]

   The appellant’s first ground of appeal asserts that “[a] miscarriage of justice occurred as a result of the trial judge’s direction to the jury in response to a question from the jury” whilst it was considering its verdict. The question was what would happen if the jury members could not agree.

3. [3]

   The second ground of appeal asserts that “[t]he convictions were unreasonable and cannot be supported by the evidence” as they were “inconsistent with the verdicts returned in relation to the remaining counts.”

4. [4]

   At the hearing in this Court, the appellant’s senior counsel conceded that the appellant’s success on the second ground would entitle him to a new trial but not to an acquittal (see R v TK [2009] NSWCCA 151; 74 NSWLR 299 at [137]). As a result, she accepted that if the appellant succeeded on the first ground (and thereby obtained an order for a new trial), it would be unnecessary for this Court to deal with the second ground.

5. [5]

   For the reasons given below, the appellant succeeds on his first ground of appeal. As a result, his convictions should be quashed and a new trial ordered. To address the second ground, it would be necessary to examine the evidence given at the trial in some detail. As there is to be a new trial by reason of the success of the first ground, it would be undesirable for this Court to express any view about that evidence unless it was necessary for it to do so. As that is not necessary, I shall not address the second ground.

The jury’s question and the trial judge’s response

1. [6]

   The jury retired to consider its verdict at 12:22pm on 17 June 2014. At 4:10pm it sent a note to the trial judge asking six questions, the first five of which are presently irrelevant. The sixth question was: “[w]hat happens if we cannot agree?”. The trial judge’s response to the jury was:

2. [7]

   The trial judge then excused the jury for the day. It reconvened at 9:55am the next day and continued deliberations until 11:42am, at which time it returned verdicts of not guilty on three of the counts in the Indictment and guilty on two counts (see [1] above).

Whether the judge’s response placed undue pressure on the jury

1. [8]

   The appellant’s oral argument on the appeal focused on the question of whether the judge’s response to the jury placed undue pressure on it to reach verdicts and was therefore apt to encourage its members to compromise their views in order to achieve agreed verdicts, contrary to the principles stated in Black v R [1993] HCA 71; 179 CLR 44.

2. [9]

   In Black v R the trial judge’s directions to the jury included the following:

3. [10]

   The plurality in that case referred to a form of direction approved by the English Court of Criminal Appeal in R v Walhein (1952) 36 Cr App R 167 which spoke of the need for “a certain amount of give and take and adjustment of views within the scope of the oath [the jury members] have taken” and the “great public inconvenience and expense if jurors cannot agree” (at 168). The plurality in Black v R agreed with Cooke P’s criticism in R v Accused (1988) 2 NZLR 46; 3 CRNZ 301 of the reference in R v Walhein to “great public inconvenience and expense”, Cooke P having said that “[i]nconvenience and expense should not be measured against justice” (at 58). The plurality continued:

4. [11]

   Their Honours held that the direction in the case before them was erroneous and “may well have resulted in the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled” (at 51). Their Honours then set forth a form of direction which has since been adopted as the standard direction to be given when juries indicate that their members cannot agree (see 51).

5. [12]

   Deane J agreed with the plurality and added that there was:

6. [13]

   Later, his Honour said that “[a]ny suggestion that a minority juror should democratically submit to the view of the majority is antithetical to the jury process under the common law of this country” and that it is essential that:

7. [14]

   Arguably, the time had not yet arrived in the present case for the trial judge to give a Black direction to the jury as the jury had not indicated that it could not agree, although there was an obvious implication in its question that there was a prospect of that occurring. Nevertheless, a response to the jury’s question along the lines of the standard Black direction would have been appropriate and of assistance to the jury in progressing its deliberations.

8. [15]

   The first part of the response that the judge in fact gave (that is up to the word “deadlocked”) was unobjectionable but what followed was objectionable. As I have indicated, the High Court in Black v R specifically disapproved of the reference by the trial judge in that case to “public inconvenience and expense” as likely to put undue pressure upon the jury to reach a verdict. The trial judge’s statement in the present case that “we would all have to go through the whole process again” compounded his Honour’s error as it increased the pressure on the jury and arguably implied that jury members would not be performing their duties if they did not agree on verdicts. This was “apt to impose pressure upon individual jurors to join in the view taken by a majority” (Black v R, at 50).

Whether leave is required

1. [16]

   The trial judge’s response to the relevant question from the jury in my view amounted to at least an implicit “direction” within the meaning of that word in r 4 of the Criminal Appeal Rules (NSW). As the appellant did not object to the “direction” at the trial, the appellant requires leave to rely upon his ground of appeal challenging it. Notwithstanding this Court’s reluctance to allow new points to be raised on appeal (see for example ARS v R [2011] NSWCCA 266 at [148]), leave should be granted because in my view the error was of such a fundamental character and occurred at such a critical stage in the jury’s deliberations that the appellant has established that he “lost a real chance” of being acquitted (ibid). As stated in Timbery v The Queen [2007] NSWCCA 355; 180 A Crim R 232, “[d]irections as to how a verdict is to be reached are of the essence of a fair trial” (at [123]). Accordingly, the Court concluded in that case that a miscarriage of justice had occurred as a result of directions being given in contravention of the principles stated in Black v R and a new trial was warranted.

2. [17]

   The significance of the error in the present case is accentuated by the fact that here, in contrast to the position in Black v R, the jury had to consider multiple counts and returned verdicts of guilty on some and verdicts of not guilty on others. Although there are arguably explanations for the different verdicts to be found in the evidence, the possibility that, in response to the trial judge’s direction, some jurors compromised their views in order to reach collective verdicts is a real one.

3. [18]

   The same reasoning leads to the conclusion that the “proviso” to s 6 of the Criminal Appeal Act 1912 (NSW) is inapplicable: the Court is unable to conclude that “no substantial miscarriage of justice has actually occurred”.

ORDERS

1. [19]

   For the reasons I have given above, the following orders should be made:

   1. (1)

      That the appellant’s convictions on counts four and five charged in the Indictment issued in June 2014 by the Director of Public Prosecutions be quashed.

   2. (2)

      That there be a new trial on those counts.

2. [20]

   HALL J: I agree with Macfarlan JA.

3. [21]

   BELLEW J: I agree with Macfarlan JA.