KE v R

1. [1]

   GARLING J: The applicant (who has been given a pseudonym to protect the juvenile victim of his crimes) was found guilty by a jury of four offences, each consisting of aggravated sexual intercourse with a child between the ages of 14 and 16 whilst that child was under his authority. This is an offence contrary s 66C(4) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 12 years. The standard non-parole period of 5 years applies.

2. [2]

   The jury returned verdicts of not guilty with respect to the three other counts on the Indictment.

3. [3]

   An aggregate sentence was imposed of 12 years imprisonment with a non‑parole period of 8 years and 6 months. Indicative sentences for two of the counts comprised 3 years and 6 months with a non-parole period of 2 years and 7 months, and for the other two counts of 3 years and 8 months with the same non-parole period.

4. [4]

   The applicant seeks leave to appeal upon the following grounds:

5. [5]

   The applicant needs leave to appeal: s 5(1)(b) Criminal Appeal Act (1912) because Grounds 1 and 2 involve mixed questions of fact and law. Ground 3 is an appeal against sentence for which leave is also required: s 5(1)(c) Criminal Appeal Act. There are important principles of law involved in this decision, and the facts here are complex. Leave to appeal should be granted. It will be appropriate to now refer to the applicant as the appellant.

Course of the Trial

1. [6]

   Having regard to the grounds of appeal, it is necessary to set out the course of the trial in some detail.

2. [7]

   As has earlier been indicated, the Indictment contained seven counts, although only four counts resulted in verdicts of guilty. The trial commenced on Monday 15 July 2019. Upon arraignment, the appellant pleaded not guilty to all counts. After the jury was empanelled, it retired whilst argument took place about the admissibility of expert DNA evidence. The jury returned and was given some opening directions by Grant DCJ (“the Judge”). The Judge then invited the prosecutor to open to the jury, followed by an opening from counsel for the defendant.

3. [8]

   The jury was then stood down whilst the expert DNA evidence was taken on a voir dire. The context for this evidence was that the allegation at trial was one of cunnilingus by the applicant, a 30 year old man on the complainant, a 14 year old female. The defence was a denial of that conduct. Swabs were taken from the complainant’s labia and vulva. Trace male DNA with the same Y-STR profile as the applicant was found on the swabs taken from both the complainant’s labia and vulva. The complainant and the applicant lived in the same home and the expert evidence centred upon an “increased opportunity” for secondary transfer of the trace DNA in those circumstances.

4. [9]

   Neither of the DNA experts was able to opine whether direct transfer or secondary transfer was more likely. Both said that either forms of transfer were possible.

5. [10]

   After the expert evidence on the voir dire was taken, the Judge asked for the jury to return so that the evidence of the complainant could be taken, initially by the playing to the jury of the video recording of the interview of the complainant by relevant police officers. The video did not complete before the end of the day’s proceedings.

6. [11]

   His Honour then took submissions from the prosecutor and counsel for the appellant on the question of the admissibility of the DNA evidence. In the course of those submissions, the following exchange took place between counsel for the appellant and the Judge:

7. [12]

   At the end of the exchange, trial Judge indicated that he had heard sufficient argument.

8. [13]

   At the commencement of the proceedings on the following day, Tuesday, 16 July 2019, the Judge delivered a judgment: R v KE [2019] NSWDC 349. His Honour concluded that if the DNA evidence was relevant, a matter which had been challenged by the appellant, it “… can only be marginally so”. His Honour turned to consider the provisions of s 137 of the Evidence Act 1995. He concluded by saying:

9. [14]

   Immediately after the judgment was delivered, there was a discussion between the Judge and the prosecutor about the relevance of evidence from a medical practitioner, Dr Pisani. The issue was raised by the Judge. The following exchange took place:

10. [15]

    There was a further discussion about medical evidence. A concession was made by counsel for the appellant about the illegality of the conduct relied upon by the Crown if the jury accepted the version of the events given by the complainant. The prosecutor decided that, in light of that concession, he would not call any doctor.

11. [16]

    The jury returned to Court at 10:19am and the complainant resumed her examination in chief. After some further questions were asked, the balance of the DVD of the initial interview was played to the jury. The complainant was cross‑examined. A short re-examination followed.

12. [17]

    At about 12:50pm the complainant's mother was called to give evidence. At the conclusion of her cross-examination, the Court took the usual luncheon break. In the afternoon of Tuesday 16 July 2019, the Officer in Charge of the investigation was called to give evidence. The Crown case closed on the afternoon of that day, and the jury were excused.

13. [18]

    On the morning of the third day, Wednesday 17 July 2019, after a discussion between the prosecutor and the Court about amending the Indictment, a short adjournment occurred and ultimately the Indictment was amended. The jury returned and were informed of the amended Indictment. The appellant was then called to give evidence in his case. The appellant’s case closed shortly before midday on Wednesday 17 July 2019. The prosecutor addressed. He finished his address just before lunchtime. Counsel for the appellant commenced to address before the luncheon adjournment and continued for a period after the luncheon adjournment.

14. [19]

    In the course of her address, an exchange took place which is relevant to Ground 1 and which it is appropriate to record in full.

15. [20]

    It was as follows:

16. [21]

    When the jury returned, counsel for the appellant told the jury that she was withdrawing what she said “… about the forensic evidence”. She invited them to disregard what she had said about that.

17. [22]

    When counsel for the appellant concluded her address, the prosecutor indicated to the Court that he wished to raise something in the absence of the jury. The following exchange then occurred in the absence of the jury:

18. [23]

    His Honour commenced his summing up a little before 3:15pm on the third day of the trial, 17 July 2019. At the very commencement of the summing up, his Honour said this:

19. [24]

    It is appropriate to record that there had been a jury note received earlier on that day, although the time at which it was received was not recorded in the transcript. It was marked MFI 9, and was in the following terms:

20. [25]

    His Honour continued his summing up. Although the time is not recorded, the summing up was clearly concluded during the course of the morning and certainly prior to the ordinary luncheon adjournment.

21. [26]

    In the course of the summing up, the following exchange occurred between the Judge and the foreperson of the jury:

22. [27]

    His Honour then went on to give directions to the jury about the ways in which they should have regard to the evidence of the accused. A little later, in the course of the summing up, his Honour informed the jury that ordinarily he would sum up the addresses of counsel:

23. [28]

    When, later in the afternoon, his Honour concluded his summing up, he informed the jury that he would, just before asking them to finally retire, take any further submissions from counsel as to whether there were any other matters to be put to the jury. He invited the jury to go with the court officer. At that point, the following exchange took place with the foreperson:

24. [29]

    After the jury left the court, there was an exchange with the prosecutor and counsel for the accused. His Honour, at the request of the prosecutor, asked the jury to return for an additional direction to be given. Then the following exchange occurred:

25. [30]

    By the time that occurred, the jury had provided another note to the Judge indicating that they wished to deliberate the following day. His Honour understood the note to convey that the jury wished not to proceed any further with their deliberations on that day and wished to commence their deliberations on the following day. He acceded to the jury's request. Prior to adjourning for the day, he gave the jury the appropriate and usual warnings.

Jury Deliberations

1. [31]

   According to the transcript, on Thursday 18 July 2019, the jury commenced to consider its verdict at 10am. Whilst the jury were deliberating, the prosecutor made submissions to the Judge about the terms of the Indictment. The Judge then moved to deal with submissions which had been made in writing that morning by counsel for the appellant. Those submissions were contained on a single sheet of paper entitled “Submissions on behalf the Accused regarding address”. His Honour marked them MFI 11. The submissions sought a reconsideration of the subject matter and rulings and sought a further redirection. They were expressed in the following terms:

2. [32]

   On the morning of 18 July 2019, his Honour said this with respect to those submissions:

3. [33]

   Immediately upon concluding that, his Honour said to the prosecutor “… may I tell the jury they may start their deliberations or do you still persist”. There was then a further discussion about the terms of an amended Indictment. There was then a discussion about a further jury note which was marked MFI 13 and which dealt with evidence.

4. [34]

   The jury returned to the court 10:20am, when the Judge granted leave to the Crown to amend the Indictment in respect of Count 4. His Honour then dealt with the jury note MFI 13 in unexceptional terms. The jury then retired to further consider their verdict at 10.26am.

5. [35]

   Sometime later the jury sent a note to the Judge indicating that they would like to re-watch the JIRT interview “… tomorrow morning first thing”. The jury returned to court at 3:51pm. His Honour directly addressed the note indicating that it was possible for them to watch the JIRT interview and letting them know that his practice was that they would also be played the cross examination of the complainant by counsel for the appellant.

6. [36]

   I interpose to note that his Honour had been informed that the totality of the JIRT interview and cross examination by counsel for the appellant would take about 2¼ hours to be played. His Honour dismissed the jury for the afternoon, indicating that the trial would commence on the following morning at 9:30am, when the interview and cross examination would be played to the jury.

7. [37]

   On Friday 19 July 2019, the transcript records that the jury continued to consider its verdict from 9:30am and they returned to court at 10am so that the JIRT interview and cross examination could be played. That occurred with the jury seated in court and in the presence of the appellant, the Judge and counsel for the Crown and the appellant. There was a short break between 12:08pm and 12:21pm. The material finished. His Honour gave some further directions to the jury, and the jury retired to consider its verdict 12:48pm. At that time his Honour indicated that they could continue their deliberations to 1pm and then he would be sending them home. The jury in fact returned at 1:17pm and were sent home for the rest of the day and informed they should assemble on Monday morning 22 July 2019.

8. [38]

   Prior to sending the jury home, the Judge received a further jury note which was marked MFI 15. After it was read aloud to counsel in open court an exchange with counsel occurred in the absence of the jury. The transcript records the following:

9. [39]

   His Honour spoke to the jury along the lines he discussed with counsel and then sent them away for the weekend.

10. [40]

    The trial resumed on Monday 22 July 2019, when the transcript records that the jury continued to consider its verdict from 9.30am. Ms Lewer, counsel for the appellant, was not in attendance, although her instructing solicitor was. The transcript records the following:

11. [41]

    His Honour informed counsel that he did not intend to give the jury a Black direction but “… I'll give them a general thing about how they can come to a majority verdict”.

12. [42]

    The jury was asked to return to court, which they did at 9.46am. Upon their return, his Honour said:

13. [43]

    The jury retired to further consider its verdict at 9.48am.

14. [44]

    Both counsel agreed that the eight hour time period specified in the Jury Act 1977 would expire at 2:22pm that day. This time calculation was not challenged on appeal.

15. [45]

    Having been informed of that time, his Honour then said that he was proposing to:

16. [46]

    It was drawn to his Honour's attention by the prosecutor that his Honour had not given the jury “a full Black direction”. His Honour informed counsel that he was of the belief that, in light of the letter which the juror had written (MFI 15), that a Black direction was not going to be of any assistance, and accordingly he was proposing to proceed as he had indicated. He said this:

17. [47]

    The solicitor for the appellant reminded the Judge that counsel for the appellant had raised the view that it would be appropriate to have a Black direction which should take place separately and in advance of any majority verdict decision.

18. [48]

    The Judge indicated that he had considered that question, but in light of MFI 15 he did not propose to take that course. His Honour then made this remark:

19. [49]

    The prosecutor agreed with the Judge that the juror appeared to be firm in their view, and submitted that it in relation to some of the Counts, it would be relevant for a full Black direction to be given because it would be of some assistance to the jury.

20. [50]

    His Honour invited the jury to return at 2:37pm. Upon their return he informed the jury that circumstances relating to a majority verdict may have arisen, but he had to take some evidence from the foreperson.

21. [51]

    The foreperson was sworn in and he was asked these two questions and gave these two answers:

22. [52]

    His Honour then said:

23. [53]

    The jury retired to further consider its verdict at 2:41pm and about 10 minutes later sent a jury note to the Court indicating they had reached a verdict. The jury returned to court at 2.55pm and entered verdicts of not guilty on the first three counts and guilty on the 4th to 7th counts inclusive. The foreperson stated that the verdicts were of 11 of the jury. The jury was then discharged.

Ground 1

1. [54]

   This ground challenges the intervention of the Judge during the course of counsel for the appellant’s final address to the jury.

2. [55]

   As earlier noted, at [20], it is clear that counsel was addressing the absence of evidence before the jury on both the DNA evidence and also from any doctor whose evidence of the results of the examination of the complainant may have supported the complainant’s allegations.

3. [56]

   It is also clear that the Judge intervened in the course of the counsel’s submissions either to prevent such submissions being put, or else to require counsel to withdraw those which had been made. Ultimately, his Honour returned to the subject in the course of his summing up and reminded the jury of the fact that they should refrain from speculating about such evidence: see [23].

4. [57]

   It is also apparent from the submission made by counsel for the appellant to the Court on the following day, which is set out at [29], that it was her purpose in the final address to persuade the jury by her submission that they could take into account the absence of forensic or medical evidence corroborating the account by the complainant in assessing whether the Crown had proved the case beyond reasonable doubt.

5. [58]

   In submissions to this Court, the appellant maintained that counsel’s address below was appropriate and was plainly, and properly, aimed at drawing the attention of the jury to the limitations of the Crown’s case. The appellant submitted that the submissions that counsel attempted to make in her final address were available and that it was not improper for her to refer to the absence of either medical evidence or DNA evidence. The appellant submitted that the Judge’s interruption at the particular point of the address, and counsel’s subsequent and repeated retractions of this part of her address, made at the insistence of the Judge, unfairly undermined the proper presentation of the appellant’s case and occasioned a miscarriage of justice.

6. [59]

   I do not accept the appellant’s submissions.

7. [60]

   As is apparent, there was DNA evidence available but, upon objection by the appellant’s counsel, on the basis of, inter alia, prejudice to the appellant if the evidence was led because of the prospect to the appellant of it being unfairly used by the jury, the Judge ruled that the evidence was not admissible.

8. [61]

   To say, as the appellant’s counsel did, that there was no evidence of any DNA before the jury was, strictly, correct. However, it was misleading to the jury to say so because it carried with it the implication that no DNA evidence was ever collected, nor that there was any identified DNA of the appellant found on the complainant. This was contrary to the known facts, and contrary to earlier submissions of the appellant’s counsel that it would be prejudicial to admit the DNA expert evidence because the expert opinion was not clear on how the DNA of the appellant came to be on the complainant.

9. [62]

   In those circumstances it was not open to the appellant’s counsel to make that submission and the intervention by the Judge to correct that inappropriate submission was appropriate. It did not occasion any miscarriage of justice.

10. [63]

    The appellant puts a similar argument with respect to the intervention of the Judge with respect to the submission to the jury about the absence of medical evidence.

11. [64]

    The facts show that the prosecutor informed the Court that the Crown was not calling any medical evidence because no injury was found and that anything the doctor might say was “neutral” as that term had been used by Campbell J in Adams v R [2018] NSWCCA 303, although his Honour had described the term “neutral” as “at best unfortunate in the context of a criminal trial”.

12. [65]

    It is to be recalled that prior to the interruption by the Judge, and as set out at [20] above, Ms Lewer had said this to the jury:

13. [66]

    As is readily apparent, had the evidence from the examining doctor been called, that evidence would have put before the jury the fact that there was no observable injury. However, the fact that there was no observable injury does not support the Crown’s case by corroborating the complainant case, nor did it support the case for the appellant. It is a not uncommon finding, having regard to the type of sexual assault alleged, that there would be no injury observable by a medical practitioner.

14. [67]

    Given that counsel for the appellant put only a description of a part of the real effect of the evidence, that meant that whilst what she said the jury was literally correct, it was also misleading. It unfairly sought to take advantage of the reasonable position of the Crown that, in the circumstances, it would not call the medical evidence.

15. [68]

    However, it is relevant to note that there is a significant difference between this matter and the decision of Adams to which the Judge referred.

16. [69]

    In Adams there was extensive evidence, including cross-examination, before the jury about the finding of the accused's DNA on the body of the complainant. The evidence and cross-examination also touched on the method by which any such DNA may have been transferred onto the complainant, including whether that transfer may have been a secondary (or indirect) transfer. It was in the context of that dispute that defence counsel, as Campbell J noted at [134] the term “neutral” was used to describe the whole of the DNA evidence. No doubt that was a shorthand expression, which Campbell J regarded as unfortunate, used by counsel in their address to dissuade the jury from, concluding that the evidence of transfer proved that it was a direct transfer of DNA from the accused to the complainant in the course of the offences alleged.

17. [70]

    The use, by counsel or a judge, of the term “neutral” to describe expert evidence requires the exercise of some care as the circumstances of this case show.

18. [71]

    Here, the physical findings by the examining doctor were neither consistent nor inconsistent with the Crown case. That is to say, the findings didn't support the Crown case by corroborating the complainant nor did they detract from the Crown case by proving, or tending to prove, that the disputed events did not occur.

19. [72]

    Due to that being the nature of the evidence, the address by counsel, which suggested to the contrary, was misleading and it was appropriate for the Judge to draw that to counsel’s attention and require correction.

20. [73]

    In my view, this ground has not been made out and I'm not satisfied that any miscarriage of justice occurred with respect to it.

Ground 2

1. [74]

   It is convenient to deal with both parts of Ground 2 together. They both concern the integrity of the jury’s deliberation and verdicts. The appellant submits that the trial miscarried because the Judge refused to give the jury a Black direction and decided to allow the return of a majority verdict without first considering, pursuant to s 55F(2)(a) of the Jury Act, whether such a course was reasonable having regard to the nature and complexity of the proceedings.

2. [75]

   The commencing point for this consideration is the receipt by the Judge on Friday 19 July 2019 of the lengthy jury note, MFI 15, which is set out at [38].

3. [76]

   The note, which was from a single juror, was brought to the attention of the Judge at a time apparently shortly before the jury was sent home on Friday 19 July 2019. At that stage the jury had been deliberating for about one day. The deliberations commenced at 10am on Thursday 18 July 2019. With the exception of about 15 minutes or so on that day, the jury deliberated for the entire day. On the Friday morning the jury recommenced their deliberations for a period of about 30 minutes but then the balance of that morning, with the exception of another 15 or 20 minutes or so, was spent, not in deliberation but sitting in court watching the JIRT interview and cross-examination of the complainant.

4. [77]

   Some features of the note are apparent. They include:

5. [78]

   The appellant submitted that in those circumstances, particularly where there was no prior indication that the jury were at an impasse in its decision-making, and particularly since the juror’s note disclosed that not all jurors had reached their decision on all counts, what the Judge ought to have done, either before the jury left the courtroom at lunchtime on Friday 19 July 2019 or else upon their return, and before recommencing deliberations on Monday 22 July 2019, was given a direction which accorded with Black v Regina [1993] HCA 71; (1993) 179 CLR 44 at p.50.

6. [79]

   Whilst the Crown in this Court accepted that below it had submitted to the Judge that a Black direction ought to have been given, it drew attention to the fact that the giving of a Black direction was a discretionary matter for the Judge who has the advantage of observing the atmosphere of the trial and the demeanour of the jury: see CA v R [2019] NSWCCA 166 at [270]. It submitted that the circumstances in this trial meant that the decision not to give a Black direction was an appropriate exercise of discretion.

7. [80]

   It is not in doubt that a Black direction should only be given when the circumstances warrant. As was said in Black at p.51, the direction should only be given “should the occasion arise”.

8. [81]

   The essence of a Black direction means that it is rightly described as a perseverance direction. The Court is directing the jury to persevere with its deliberations towards a unanimous verdict, by calmly considering the evidence and listening to the opinions of other jurors. It reminds jurors that they have a duty to listen carefully and objectively to the views of every one of their fellow jurors, and that they should test the views of others by discussion in a calm and objective way so as to enable an understanding of the differences of opinion and how those differences may be perceived. It acknowledges the fact that there are matters for decision upon which the jury are disagreed.

9. [82]

   That was the circumstance here. On some of the counts the Court was informed that the juror who wrote the note was the only juror in the minority. There were other counts where some of the jurors had not reached their final conclusion. The effect of a Black direction in this case would have been not only to invite the single juror to listen in the way directed by the Judge to the views of others, even though she maintained that she would not change her mind, but more importantly to encourage the other jurors to listen to that juror’s view in a calm and considered way.

10. [83]

    It was not known to the Judge whether there might have been other jurors who were prepared, upon further consideration, to go along with the single juror's view.

11. [84]

    However, it seems that the Judge, having received the note, MFI 15, formed the view that the jury had already reached a conclusion on all counts with 11 jurors in favour of one outcome and one juror against it. It was the fact that the juror was “in a minority position” which led the Judge to conclude that a Black direction was not appropriate at that stage, but a majority verdict direction was.

12. [85]

    Curiously, however, the Judge's reasoning was that it was too far too early to give a Black direction, but he thought it appropriate to give some sort of modified direction saying that the jurors were all equals in the jury room and they should listen to each other. The direction that was given was this:

13. [86]

    The direction could not be regarded as a proper or an appropriate perseverance direction. In fact, because the direction commenced with informing the jury that a majority (11-1) verdict may in certain circumstances be available although those circumstances had not yet arisen, the clear message which the Judge was sending to the jury was that a majority verdict would be taken at an appropriate time once “the circumstances” had arisen. The addition of the words that “all jurors were equals in the jury room” and that “… they should take into account the views of each other when discussing the case” was inadequate immediately after the majority verdict indication to encourage further discussion. If anything, it would not have encouraged any further discussion, but rather it gave the impression that the jury simply had to wait before delivering a majority verdict.

14. [87]

    In my view, what was required was for a Black direction to be given before the jury departed indicating that the Court, upon their return on Monday morning, would remind them of the direction and encouraging them on Monday morning, when deliberations resumed, to persevere and attempt to reach a unanimous verdict. It would then have been appropriate on the Monday morning to again remind the jury of the need to engage in consideration and discussion of the kind encouraged by a Black direction.

15. [88]

    I am persuaded that the direction given on Friday at lunchtime before the jury left was erroneous. I am also persuaded that it was an error of law, falling outside the Judge's discretion, to have failed to give a Black direction.

16. [89]

    The second part of this ground of appeal is that the Judge's decision to allow a majority verdict to be returned caused a miscarriage of justice because the Judge did not first consider and determine each of the requirements of s 55F(2) of the Jury Act.

17. [90]

    Section 55F(2) is in the following form:

18. [91]

    The appellant submits that at no time did the trial Judge have regard to the first of the two requirements before a majority verdict may be returned, namely that set out in s 55F(2)(a) which required (assuming that the minimum time period had elapsed) the Judge to be satisfied that it was reasonable having regard to the nature and complexity of the criminal proceedings for a majority verdict to be returned. The appellant pointed to the principle established by authority, that each of the two limbs in s 55F(2) are essential pre-conditions which involve a judgment by the trial Judge which could only be made after submissions were taken from counsel as to when, in the particular circumstances of the case, a reasonable time could be said to have expired: see RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100 at [18]-[19] and [25].

19. [92]

    It is also clear that where a Judge considers the taking of a majority verdict, it must be apparent that the Judge has considered s 55F(2) and, has found that each of the preconditions are satisfied: see Hanna v R [2008] NSWCCA 173 at [6]; (2008) 191 A Crim R 302.

20. [93]

    The appellant submitted that a failure to comply with s 55F(2) involved a miscarriage of justice because the appellant had not had a trial as required by law: Tabalbag v R [2016] NSWCCA 48 at [64]-[65]; (2016) 258 A Crim R 240.

21. [94]

    The Crown submitted that whilst it may be accepted that the Judge did not address in terms whether it was reasonable having regard to the nature and complexity of the criminal proceedings for a majority verdict to be returned, such a consideration could be and ought be readily inferred by the Court.

22. [95]

    The Crown submission was that in the course of discussion the Judge informed the parties that he had consulted “the charge book and directions book”, apparently a reference to the Criminal Trial Bench Book, and that he was aware that “to allow a majority verdict there are two aspects to it”. The Crown pointed to what was then said by the Judge which it submitted indicated that he had considered and determined that the test of reasonableness (s 55F(2)(a)) had been satisfied. The Judge said:

23. [96]

    The Crown submits that the use of the expression “the eight hours has expired” was a shorthand way of referring to the requirements of the first limb to be considered in accordance with s 55F(2)(a).

24. [97]

    I reject this submission. To the contrary of the Crown submission, what the Judge said indicated that he regarded the expiration of eight hours, without more, as sufficient satisfaction of the first precondition. The statement of the Judge indicated that he gave no consideration to the question of reasonableness. The mere fact that a Judge states that they have had regard to the relevant authority, does not mean that everything which is said thereafter accords with that authority or can be taken to be application of the relevant authority or legal principle.

25. [98]

    Spiegelman CJ noted in RJS at [25], that whether or not the Court considered that reasonable time had expired having regard to the nature and complexity of criminal proceedings, was, in that matter, something upon which the Court should invite submissions of counsel, and then make explicit what factors it had considered, and how the Court reached its decision that it was reasonable to invite a majority verdict. This does not need to be complex or lengthy, but clarity is required.

26. [99]

    Accordingly, I am satisfied that the appellant has made good this ground and that a miscarriage of justice, to which the proviso does not apply, has been demonstrated.

27. [100]

    This is not a technical or narrow point. The ordinary course of events at common law (which remains the case for Commonwealth offences) is that the verdict of a jury ought be unanimous. The High Court of Australia said in Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 at [552]:

28. [101]

    The NSW legislature has provided with respect to State offences for the taking of majority verdicts. It has provided two essential pre-conditions to the taking of a majority verdict. It is necessary to give full force and effect to those two pre-conditions, and it is necessary to demonstrate that each of the pre-conditions has been considered and the subject of a proper determination. Here the trial Judge did not engage in any consideration of the first of the two limbs and, accordingly, error has been shown.

29. [102]

    In those circumstances, it is unnecessary to consider the ground of appeal against sentence.

Orders

1. [103]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Quash the verdicts of guilty returned by the jury on the 4th to 7th counts on the Amended Indictment.

   3. (3)

      Order that the appellant be retried.

   4. (4)

      List the proceedings before the District Court on Friday 23 July 2021 for further directions.

2. [104]

   BEECH-JONES J: I have had the advantage of reading the judgment of Garling J which comprehensively sets out the background to the appeal. I have also read the judgment of N Adams J. In relation to Ground 1, I agree with Garling J and N Adams J. In particular, at the very least, once counsel for the defence makes a submission of the kind noted in [20] then evidence of the kind noted by Garling at [8] to [9] is relevant evidence for the purposes of s 55(1) of the Evidence Act 1995 because it is directly contrary to the point sought to be made by, or at least implied by, the defence submission, namely that the missing evidence somehow undermines the Crown case. Unless the making of such a submission is expressly disavowed by the defence then such evidence may be adduced by the Crown.

3. [105]

   In relation to Ground 2, I do not wish to express any view on whether either the failure give a direction in accordance with Black v Regina (1993) 179 CLR 44 (a “Black direction”) on Friday 19 July 2019, or the direction that was given on that day (see [42]), was erroneous in law for the purposes of the second limb of s 6(1) of the Criminal Appeal Act 1912 or itself occasioned a miscarriage of justice within the third limb of s 6(1), although I agree that it was highly desirable that a Black direction be given at that time or on the following Monday morning. That said, if a trial Judge receives information that a jury is acting under the misapprehension that they have to “have to stay here until we [all] agree” then they can advise a jury that in some circumstances, which have not yet arisen, that the Court can receive a verdict which is not unanimous (and at the same time reiterate the desirability of a unanimous verdict). It would be destructive of the necessary trust that must exist between a trial Judge and a jury for the trial Judge to be somehow restricted from correcting any misunderstanding that the jury were acting under on such a topic.

4. [106]

   However, I agree with Garling J that it has been demonstrated that, in determining that the jury could bring in a majority verdict, the trial Judge failed to address s 55F(2)(a) of the Jury Act 1977. Instead, the trial Judge simply treated the power to allow a majority verdict as being enlivened on the expiry of the minimum 8-hour period. In that regard it is to be remembered that when that 8-hour minimum period expired the trial Judge immediately called the jury in and took evidence from the foreman. Thus, the direction to the jury enabling them to return a majority verdict was given without any communication from the jury itself about whether any difficulties were being experienced in returning a unanimous verdict other than the individual juror’s note that had been sent the previous Friday. However, that note indicated that a number of other jurors had not yet made their “full decision”. Otherwise, the fact that the jury had not received a proper Black direction was itself a matter of real significance to whether it was “reasonable” to allow a majority verdict. At the very least the failure to properly address s 55F(2)(a) amounts to an “irregularity or failure to strictly comply with the rules of procedure” and as such “is a miscarriage of justice within the third limb” of s 6(1) (GBF v The Queen [2020] HCA 40 at [24]; (2020) 94 ALJR 1037).

5. [107]

   I agree with the orders proposed by Garling J.

6. [108]

   N ADAMS J: I have had the advantage of reading the draft judgment of Garling J and agree with the orders proposed by his Honour.

7. [109]

   As to ground 2, I agree with Garling J that the trial miscarried as a result of the manner in which the trial judge dealt with the statutory test in s 55F(2)(a) of the Jury Act 1977 (NSW). His Honour failed to address the question of whether the jurors had deliberated for a period of time that he considered “reasonable” having regard to the nature and complexity of the trial. I am also satisfied, in the circumstances of this case, that permitting a majority verdict to be taken without ever giving a Black direction contributed to the error under his ground.

8. [110]

   As to ground 1, I agree with Garling J that it should be dismissed for the reasons provided by his Honour. I wish, however, to make an additional observation regarding the evidence of the results of the complainant’s medical examination.

9. [111]

   As Garling J has noted at 14, the Solicitor Advocate appearing for the Crown elected not to lead evidence from the medical practitioner who examined the complainant as to the results of that examination. The evidence not led was that “no genital injuries” were found. The Solicitor Advocate relied upon the decision of Campbell J in Adams v R [2018] NSWCCA 303 as the basis not to lead the evidence. Before I turn to consider what his Honour said in that decision, it is pertinent to note what this Court has previously held in relation to “neutral medical evidence” in sexual assault trials.

10. [112]

    In R v Dann [2000] NSWCCA 185, the Crown had called a medical practitioner who gave evidence of anal dilation in a child sexual assault trial. During her evidence she agreed that constipation was another possible explanation for the dilation. On appeal it was suggested that the evidence should have been excluded because it was “neutral”. Heydon JA, with whom Spigelman CJ and James J agreed dismissed the ground of appeal. His Honour then went on to observe the following at [14]-[17]:

11. [113]

    The Court in R v Dann accepted that “neutral” medical evidence is relevant and otherwise admissible but need not be adduced from a medical practitioner if it can be put before the jury as an agreed fact. Alternatively, the evidence may not be put before the jury at all if defence counsel undertakes not to comment on the absence of the evidence.

12. [114]

    In Regina v RTB [2002] NSWCCA 104 the Court (Spigelman CJ, Wood CJ at CL and Kirby J) observed the following on this issue at [24]:

13. [115]

    In R v RTB, this Court again confirmed that “neutral” evidence can be relevant to stop a jury speculating as to the absence of such evidence, but that agreement should be reached as to how it is placed before the jury.

14. [116]

    A slightly different issue arose in Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74 (“R v Skaf”). The complainants in that matter had been examined by a medical practitioner who concluded that there were “no abnormal findings” revealed on physical examination. The Crown Prosecutor asked the doctor the following question in evidence in chief (at [295]):

15. [117]

    On appeal to this Court, the following was observed about this practice at [297]‑[299] (per Mason P, Wood CJ at CL and Sully J):

16. [118]

    More recently, in Adams v R, Campbell J observed the following at [100]-[101] in relation to the trial judge directing the jury about the “neutral” medical evidence in that trial:

17. [119]

    And later at [134]:

18. [120]

    The concern of Campbell J was not as to the admissibility of the “neutral” medical evidence but to the description of it as “neutral” by the trial judge. As the decisions in R v RTB, R v Dann and R v Skaf demonstrate, that expression has long been approved by this Court as the preferable way to describe this sort of medical evidence. It was arrived as to counter the previous practice of medical practitioners describing such evidence as being “consistent” with the complaint made and thus, erroneously, bolstering the evidence of the complainant. It is on that basis that I brought those decisions to his Honour’s attention (see Adams v R at [101]). For my part, I see no reason to depart from the longstanding practice of directing the jury that such evidence is “neutral” to the extent that it does not directly support either the Crown or the defence case.

19. [121]

    Even putting to one side the comments of Campbell J as to the use of the word “neutral”, it is important to note that his Honour did not hold in Adams v R that such evidence is inadmissible and should not be led. Whatever word is used to describe such evidence, it can be relevant and admissible to avoid a jury from speculating about results they have heard nothing about. That is precisely what happened in this case. After defence counsel pointed out to the jury that there was no evidence from the medical practitioner (because it was not led) and no DNA evidence (because it was excluded), the jury sent in a note in these terms:

20. [122]

    Although it seems likely that the jury would not have sent that note had the absence of that evidence not been highlighted in the defence closing, the fact remains that a jury will usually expect a complainant to be medically examined. Evidence that is “neutral” is still relevant as part of the evidence of that examination. It can also be relevant as to the nature of the police investigation overall. It depends on what issues are raised by the defence. Consistent with the approach suggested by this court in R v RTB, R v Dann and R v Skaf, the evidence is usually admitted by consent to avoid speculation. Appropriate directions can always be provided by the trial Judge to explain the basis upon which it is before the jury.