Addo v R

Following a trial before His Honour Judge Williams SC and jury in the District Court of NSW, Stephen Addo (the appellant) was found guilty of 14 counts of sexual offending committed upon TH (the complainant). He was sentenced to a total term of imprisonment of 26 years with a non-parole period of 16 years. He now seeks to appeal against his conviction on the grounds of appeal which are more fully discussed below.

In circumstances where the appellant was convicted in 2017 and sentenced in 2018, he requires an extension of time in which to bring the present appeal. In light of the views which have been reached regarding the grounds of appeal, an extension of time should be granted.

The appellant does not assert that the verdicts of the jury were not open. However, in order to deal with the grounds of appeal, it is necessary to summarise the Crown case against him. The following has been drawn largely from the summary of trial provided by the Crown. It should be noted that the appellant was found guilty on all counts other than counts 2 and 3. Those counts are therefore omitted from the summary.

The complainant was born on 19 February 1985 to her mother (LT) and her father (JS). Sometime after the complainant was born, LT formed a relationship with SD, following which the family moved to Eastern Creek. In 1992, LT and SD separated. Following the separation, LT and the appellant formed a relationship and commenced living together at the Doonside premises. The complainant lived with them.

Count 1 in the indictment alleged an offence of indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (the Act).

The Crown case was that late one night in 1992, when the complainant was 7 or 8 years old, she was in bed and either had a bad dream or was feeling ill (she was unable to remember), and went to look for LT. The appellant was in the bedroom he shared with LT. He told the complainant that LT was not there, but that she could lie with him if she wanted. While they were lying there, the appellant moved the complainant on top of him so that her belly was on top of his belly. She could feel his erect penis pushing against her pelvis and he asked:

The complainant was wearing a nightie and underwear and the appellant was wearing boxer shorts. The complainant went back to her bed and went to sleep. She saw LT the next morning. She said that she did not tell LT what had happened because she was scared having regard to the fact the appellant had been violent towards LT.

Count 4 alleged an offence contrary to s 61M(2) of the Act.

In 1993 or 1994 the complainant’s family had a black dog named Cato. One day, during the daytime, the appellant came into the complainant's bedroom with a jar of golden syrup. He was intoxicated, and was trying to hold down the complainant on her bed, using his body and holding her hands. The complainant was on her back. The appellant put golden syrup on the complainant's vagina and called the dog over to her. He attempted to make the dog lick the complainant's vagina by making “kissing” noises. When he did so, the dog would approach and try to lick the complainant's vagina, but the complainant kept kicking the dog away and it eventually stopped coming. The appellant laughed, and told the complainant that she was a “sook”, before leaving. The complainant did not know where LT and the other children were at the time. She said that during the incident she felt upset and disgusting, and that she had not consented to what the appellant had done. The complainant also recalled that whilst she was in Year 6, the appellant had tried to make her watch a video of people having sexual intercourse with animals.

Count 5 alleged an offence contrary to s 61J(1) of the Act.

LT and the appellant had a child (KA) who was born in 1997 when the complainant was 12 years old and in Year 7. When LT was in hospital giving birth to KA, the complainant was at home with her siblings and the appellant. On one occasion, the appellant moved a mattress onto the lounge room floor and went to the complainant's bedroom, telling her to go into the lounge room. The complainant described the appellant as “quite drunk”. The appellant then asked the complainant to take her pants off and to lie on the mattress on her stomach. The complainant said that she did so because the applicant was “really intoxicated and [she] was scared [she] would get hurt”. She explained that when the appellant was intoxicated “you just didn't fight. He used to bash my mum when he was really drunk”. She said that the appellant was behind and on top of her, and placed his penis into her bottom. She said that it was very painful, that she was crying and the appellant had told her to “shush”.

The complainant described seeing blood, and experiencing a sharp stabbing pain in her bottom and stomach. She said that the appellant had told her to go and clean up in the shower, at which time she went and had a bath. She said that she was still bleeding and was scared that she was dying. She said to the appellant:

After the complainant had a bath, the appellant made her lie with him on the mattress on the lounge room floor.

The complainant thought that she would tell her aunt about what had happened when she was visiting LT in hospital the following day. However, she said that when she arrived her aunt was upset due to an unrelated issue, and so she decided not to say anything. The complainant explained that she had intended to tell her aunt because she felt that her aunt could protect her, but that LT could not do so because she was incapable of protecting herself.

The complainant said that the same year that KA was born, the appellant contracted an infection on his penis, and had showed it to her and blamed her for it, saying:

The complainant said that the appellant wanted her to “kiss it better”. She said that she felt disgusted when the appellant had asked that, and that she said did not do so.

The complainant also said that LT used to go to “Bingo” each Wednesday night and would leave her and her siblings at home with the appellant. The complainant said that on those nights she would try to go to a friend’s house, or would ask LT to let her go to Bingo with her. She explained that she did not want to be left home alone as she knew that the appellant would “rape” her. She referred in her own mind to these nights as “fight night”, because she would fight with the appellant when he wanted to rape her. By the term “rape” the complainant explained that she meant the appellant putting his penis in her vagina.

Count 6 alleged an offence contrary to ss 61J(1) and 61P of the Act.

The appellant had the complainant on her bed. She was fighting, and he was trying to hold her down by using his hands and his body weight. The complainant kicked the appellant so that he could not put his mouth on her vagina. The appellant responded by biting the complainant on the inside of her thigh, which caused a scar. The resulting wound was sore, and the complainant's netball uniform rubbed on it. She was worried people would see it when she was jumping during a game.

Count 7 alleged an offence contrary to s 61J(1) of the Act.

The complainant stopped resisting after the appellant bit her (the subject of count 6), following which the appellant put his penis in her vagina.

Count 8 alleged an offence contrary to s 61J(1) of the Act.

The complainant explained that appellant would apply pressure to a point behind her ear and push hard, which the complainant said “really hurt”. When he did that, the complainant did what he wanted and opened her mouth. The appellant would then put his penis in her mouth. She said that this happened more than once. On one particular occasion when the complainant was in high school, the appellant pushed behind her ear to make her open her mouth, and when he put his penis in her mouth, she bit it. He responded by pushing her in the chest and abusing her. The push forced the complainant back into the wall, and left a bruise on her chest. She recalled buttoning up her shirt so that the bruise, which was in the middle of her upper chest just below the neckline, was not visible.

Count 9 alleged an offence contrary to s 61M(1) of the Act.

The complainant's home was adjacent to that of her uncle. A gate had been made in the fence so that people could move between the two properties. One night when LT was at Bingo and the complainant’s siblings were in bed, she and the appellant were in her bedroom. The complainant explained that it was “fight night”, and that she was struggling with the appellant because he was trying to rape her, and she was resisting. She said that the house was dark, and that she heard a loud banging noise at the back door. The appellant left the bedroom. The complainant was scared and lay still under the blankets, holding her breath. She heard her uncle ask for something and then sneak into her bedroom quietly and pull back a blanket. The complainant closed her eyes and lay still. Her uncle did not speak to her and left the room quickly. The complainant could not recall whether this incident had occurred before or after her sister [TA] was born, which was in 1999.

Count 10 alleged an offence contrary to s 61J(1) of the Act.

At one point, the appellant worked as a landscaper, laying turf at new building sites. The complainant recalled an occasion when the appellant wanted her to accompany him to a job site. She told LT that she would stay with her siblings so that LT could go with the appellant. However, the complainant herself went, in circumstances where she did not want to do so. She explained that she never wanted to be alone with the appellant because “this stuff would happen… him raping me”.

The appellant and the complainant drove to premises in western Sydney. After doing some levelling work, the appellant asked the complainant if she needed to go to the toilet, access to which was gained through the garage of the premises. The complainant said she did not, but the appellant pulled her arm to go anyway. There was a struggle in the garage as the appellant tried to get the complainant down to the ground. The appellant then swept the complainant's legs out from underneath her and she fell down, grazing her elbow on the cement floor. The appellant then pulled complainant's pants down. When she was on her back, he got on top of her and placed his penis in her vagina until he ejaculated.

Count 11 alleged an offence contrary to s 61 of the Act.

The complainant recalled that she started to physically develop in 1999. She said that there was sexual contact between her and the appellant after she had commenced menstruating. She recalled a discussion with the appellant about her menstrual cycle, which arose because he was concerned that she may be pregnant, and that people would find out about what had been occurring. The appellant made the complainant lie down, and then stomped on her stomach whilst wearing what the complainant described as “wheat coloured Colorado boots”. In doing so, he put all his body weight onto the complainant with his foot, which she said was very painful. She said that she developed a bad stomach ache, and that two days later she experienced a “really bad" period. She explained that whilst at school she had to leave class to go the toilet frequently because she was bleeding very heavily and “leaking everywhere”. When the teacher stopped her going to the toilet, she packed her things, left the class and went home. After this incident, the appellant would place cling wrap on his penis before he had forced intercourse with the complainant.

Count 12 alleged an offence contrary to s 61J(1) of the Act.

Besides “Cato”, the complainant's family owned a brindle staffy named “Tara” which had been given to them by the complainant's aunt. The complainant took the dogs for walks and explained that her family would “get pets and get rid of them”. She said that the appellant had told LT that she [the complainant] should walk “Tara” because she was the one who had wanted a dog. On one occasion, the appellant drove the complainant and “Tara” (in what the complainant thought was a white station wagon) to a reserve located near a set of netball courts in Doonside. The appellant took a tarpaulin out of the car and walked into the reserve with the complainant. The complainant explained that she felt anxious because she did not know what was going to happen. The appellant then put the tarpaulin down on some grass and told the complainant to pull her pants down. She said that she did not fight the appellant that day because she was scared, and that she got on to the tarpaulin because he told her to. The appellant told the complainant to bend down. She got on to her hands and knees and was terrified. The appellant put his penis into the complainant’s vagina from behind, at which time “Tara” barked because someone was coming. The appellant said:

The complainant had already done so by that time, and then a man walked past.

Count 13 alleged an offence contrary to s 61J(1) of the Act.

On an occasion when the complainant and the appellant were in her bedroom, they had a struggle on the floor. The appellant used his forearms to pin the complainant's knees to her chest, following which he put a penis-shaped dildo into her vagina. The complainant explained that this caused a burning pain in her vagina, which made her bleed.

Count 14 alleged an offence contrary to s 61J(1) of the Act.

After using the dildo on the complainant which was the subject of count 13, the appellant put his penis in the complainant's vagina.

In the course of the investigation, police obtained warrants authorising the recording of conversations between the appellant and the complainant. Statements made by the appellant in the course of those conversations were relied upon by the Crown as admissions. It is not necessary to further detail them.

The appellant did not give evidence at his trial. At the time of his arrest he was interviewed at length by police and that interview was before the jury. It is not necessary to set out its contents in detail. For present purposes, it is sufficient to note that although he denied the allegations, the appellant did admit to having what he asserted was consensual sexual intercourse with the complainant when she was a teenager. [1]

The appellant called two witnesses in his case, the first of whom was Mark Sweet. Mr Sweet was the appellant’s brother-in-law, and was married to the appellant’s sister. Mr Sweet gave evidence that he had met the complainant about eight years earlier when, having finished work one day, he had gone to the premises of the appellant's mother at Doonside to have a few drinks. He said that the complainant had arrived there with her daughters. He said that she was introduced to him, following which she left to go shopping, leaving her daughters alone with the appellant for about half an hour. It was put to Mr Sweet in cross-examination that the complainant had never left her children with the appellant in his (Mr Sweet’s) presence, a proposition which he denied. [2]

The second witness called in the appellant's case was his daughter, SA. SA gave evidence that she had no memory of the appellant being physically violent to LT. [3] Whilst SA agreed in cross-examination that her memory was limited to a particular period of time, she maintained that she had never witnessed violence by the appellant towards LT. [4]

Over objection, the Crown adduced evidence from LT that the appellant had sexually assaulted her in a manner that bore strong similarities to the manner in which the complainant said she had been sexually assaulted. Ground 1 contends that the evidence should not have been admitted on the basis that it was excluded under s 98 of the Evidence Act 1995 (NSW) (the Evidence Act). Ground 2 contends that the trial judge erred in the directions that were given in respect of the evidence. To address these grounds, it is first necessary to outline certain aspects of s 98.

Section 55 of the Evidence Act provides that evidence is relevant in proceedings if it is evidence that, if it were accepted, could rationally affect the assessment of the “probability” of the existence of a fact in issue in the proceedings. In a general sense, evidence of the kind adduced in this case that, on a previous occasion, the appellant had used particular methods to subdue LT, forced her to perform fellatio on him and allowed him to perform cunnilingus on her, affected the assessment of the probability of facts in issue: namely, whether the appellant committed the similar acts alleged by the complainant.

However, the adducing of evidence of that kind is subject to exclusionary rules in respect of tendency and coincidence evidence found in Pt 3.6 of the Evidence Act. Within Pt 3.6, s 95 provides:

This provision takes the opposite approach to s 60 of the Evidence Act, which enables evidence admitted for a non-hearsay purpose to be used as hearsay notwithstanding s 59 (the exclusionary rule in respect of hearsay evidence). The effect of s 95 is that evidence admitted for other purposes cannot be “used” to prove a “particular matter” if is not admissible under Pt 3.6 to prove that “particular matter”. In the case of s 97, that “particular matter” is that a person has or had a tendency to act in a particular way or with a particular state of mind. In the case of s 98, the “particular matter” is that a person did a particular act or had a particular state of mind based on similarities in events and circumstances.

Within Pt 3.6, one of the exclusionary rules is s 97, which precludes the admission of evidence of the “character, reputation or conduct of a person, or a tendency that a person has or had” to prove they have or had a tendency to act in a particular way, or to have a particular state of mind unless reasonable notice was given and the Court determined that the evidence will, by itself or having regard to other evidence, have significant probative value.

The other exclusionary rule is found in s 98 which, at the time of the appellant’s trial relevantly provided:

Further, even if evidence is not excluded by either ss 97 or 98 it cannot be adduced by the prosecution in a criminal trial unless “the probative value of the evidence outweighs the danger of unfair prejudice to the defendant” (s 101(2)).

Before considering the manner in which this section was engaged or sought to be engaged in these proceedings, two related aspects of s 98 should be noted.

First, s 98 creates an exclusionary rule that is “designed to prevent the adducing of evidence for a particular purpose or, more accurately, that seeks to invoke a particular form of probabilistic reasoning designed to establish a particular fact or state of mind, unless it has significant probative value”. [5] Hence, the section creates an exclusionary rule that precludes the tendering of evidence on a particular "basis" unless ss 98(1)(a) and (b) are satisfied.

The above form of s 98(1) was introduced into the Evidence Act with effect from 1 November 2009 by the operation of the Evidence Amendment Act 2007 (NSW) (Act No 46 of 2007, schedule 1 s 3). In "ALRC Report 102: Uniform Evidence Law" at [11.20] to [11.25], the Australian Law Reform Commission (“ALRC”) discussed the proposal that led to the introduction of that form of s 98 and stated: [6]

Thus, to apply s 98 it is necessary for the tendering party to identify the “basis” upon which the evidence is sought to be adduced. When that “basis” is articulated, it can then be determined whether the mode of reasoning envisaged by the section is engaged: that is, reasoning which involves inviting the tribunal of fact to conclude that, because of the similarities in the “events” and the circumstances in which they occurred, it is improbable that the events occurred “coincidentally”. If that is not the form of reasoning sought to be employed by the tendering party, then the exclusionary rule is not engaged. Whether the evidence is otherwise admissible will depend on the effect of other provisions of the Evidence Act.

It follows that, in a case where the tendering party seeks to rely on s 98, there must be some significance attached to establishing that the relevant events did not occur coincidentally. The most obvious example of this was given by the ALRC in its report [7] as follows:

This form of reasoning was applied in MR where there was evidence connecting the respondent with a robbery at a fast-food restaurant and, because of similarities between that robbery and another robbery at another fast-food restaurant in the same area, it could be concluded that he committed that other robbery. [8] In MR, the evidence of both robberies was tendered on the “basis” that both “events”, being the two robberies, and the circumstances in which they occurred, did not occur coincidentally but instead were committed by the same offender, namely the accused.

This reasoning would have been applicable in this case had the complainant described a sexual assault by an unknown offender that bore substantial similarities to the sexual assaults that LT described as having been committed against her by the appellant. In that case the adducing of evidence that the appellant perpetrated the sexual assaults on LT would be adduced on the basis of showing that the two assaults did not occur coincidentally but instead were both perpetrated by the appellant. The “Criminal Trial Courts Bench Book” published by the Judicial Commission of New South Wales (the “Bench Book”) contains a standard form of direction that reflects this form of reasoning. [9]

However, this form of reasoning does not exhaust the operation of s 98. Numerous examples can be conceived of where demonstrating that various events were not “coincidental” might advance a prosecution case. For example, a pattern of similar trades by a stockbroker where, shortly after each trade, price sensitive information was released to the market which made the trade highly profitable might be adduced to prove that those trades were not coincidental but instead resulted from the offender having advance notice of the information from the “inside”. This form of reasoning was sought to be employed in DSJ v R; NS v R. [10] In R v Hiba Cornell, [11] the involvement of a bank officer in numerous loan applications that contained bogus documents concerning the identity of the borrower and their capacity to pay the loan was ultimately relied on to demonstrate her knowledge of their fraudulent nature i.e. it was not a coincidence that bogus loan applications were submitted through her to the bank; instead they were submitted through her because she was a knowing participant in the fraud. [12]

The second matter to note is that the authorities in this Court establish that, in an appropriate case, s 98 can be satisfied by a form of reasoning that relies on the improbability of two separate victims describing separate but similar crimes committed by an accused unless they are telling the truth. Reasoning in that form is predicated on the relevant “event” being the giving of the account of the crime by the victim rather than the crime itself. [13]

The cases in relation to this reasoning start with the pre-Evidence Act position as stated in the following passage from Pfennig v The Queen: [14]

The relevance or otherwise of the reasoning set out in the emphasised passage in this extract from Pfennig to s 98 of the Evidence Act arose in Versi v R [15] where the offender was convicted of “two counts of sexual misconduct involving his stepdaughter.” For one of those counts (count 2), the victim gave evidence that the offender asked her “to assist him with putting cream on his penis and testicles.” The Crown also adduced evidence of an uncharged act against another stepdaughter of the offender (“SD1”) that when she was an adolescent, the offender invited her into the bathroom and requested she hold his erect penis "so that he could fix his hernia". Her evidence was that when she took hold of his penis, he "proceeded to sort of grind his hips against my hand". [16]

In Versi, the trial judge directed the jury [17] that:

In Versi, Adams J concluded that what occurred at the trial revealed confusion about what the alleged coincidental events were. [18] Consistent with the emphasised passage set out above from Pfennig, his Honour observed that “[t]he relevant events here which were coincidental was not the sexual conduct itself but the circumstances alleged by SD1 and the complainant, and the facts that the offender was the stepfather of both girls, who were of the similar young age” and that, absent concoction by the victims, “it was open to the jury to consider that the similarities were such that it was highly improbable that the witnesses were telling lies”. [19] His Honour found that the above direction “invited the jury to move directly from being satisfied that the [offender] acted towards SD1 as she alleged, to the consequential guilt of the [offender] on count 2 of the indictment” and did not identify the “correct line of reasoning” based on the emphasised passage from Pfennig. [20]

Despite Adams J’s finding that the jury were given an erroneous direction in respect of the use to be made of coincidence evidence (at [138]), his Honour applied the “proviso” to s 6(1) of the Criminal Appeal Act 1912 and dismissed the appeal against conviction. [21] In doing so, his Honour noted that the “the judge's direction that it was necessary to be satisfied beyond a reasonable doubt that the applicant had misconducted himself with SD1's evidence before the coincidence between her account and that of the complainant could be used, favoured the defence”. [22]

In Versi, Basten JA, with whom Latham J agreed, appeared to reject Adams J’s approach by observing that what is “significantly probative of the charge is not the fact of other complaints, but proof that the other events occurred” [23] and that s 98 “distinguishes between ‘evidence’ and ‘events’”. [24] However, his Honour continued: [25]

With respect, there are two uncertain aspects to this reasoning.

First, when his Honour stated that he “depart[ed] linguistically from that of Adams J … but not so as to affect the conclusion” it is not clear whether the “conclusion” was a reference to Adams J’s conclusion that the summing-up was erroneous but the proviso should be applied, or the more general conclusion that the appeal against conviction should be rejected.

Second, when his Honour refers to the evidence of the two witnesses being “mutually corroborative” it was not clear how that engaged with so much of s 98 that refers to it being demonstrated that it was improbable that the events occurred coincidentally unless it was an endorsement of the substance of Adams J’s reasoning based on Pfennig (even if it were not an acceptance of Adams J’s linguistics). If it were an endorsement then, contrary to the Crown’s submissions in this case, Versi is authority in this Court to the effect that the above direction was wrong in the circumstances of that case. If it was a rejection of Adams J’s approach then it means that in Versi there was no articulation of how the evidence of the two witnesses of the offences committed against them could have operated to prove the guilt of the offender on one of those offences “on the basis that … it is improbable that the events occurred coincidentally”. A mode of reasoning that simply asserts that, because the accused may have committed a similar offence against one victim, it is more probable that he committed such an offence against another victim, is not, without more, captured by s 98 if the evidence of both victims is that it was the accused who perpetrated the offences. Such a mode of reasoning does not involve any reasoning that it is improbable that both “events”, being the offences, occurred coincidentally. That said, such evidence is clearly capable of being proof of the relevant offence on a tendency basis. [26]

In any event, any doubt about the effect of Versi on the use of s 98 to support the reasoning from Pfennig identified above appears to have been resolved in Saoud v R. [27] Saoud was a conviction appeal in which it was contended that the trial judge erred in admitting evidence of two similar sexual assaults by the accused on two victims in similar circumstances as evidence supporting proof of each set of assaults on both a tendency and coincidence basis. This Court rejected the challenge on the basis that the appellant had not demonstrated an error of the kind identified in House v The King. [28] Leaving aside any issue about the appropriate standard of review in this Court, Basten JA, with whom Fullerton and R A Hulme JJ agreed, observed as follows in relation to the use of evidence on both a coincidence and tendency basis: [29]

The bold portion of this passage describes tendency reasoning. The italicised portion of this passage describes coincidence reasoning of the kind addressed by s 98. The latter assumes that the relevant “event” is the description of the “similar conduct” given by each complainant (i.e., their account) as opposed to the conduct itself. The judgment of this Court in Magennis [30] treated Saoud in that manner and applied it accordingly.

This aspect of Saoud is cited in the Bench Book as the justification for a standard form of direction that notes a Crown argument “that the possibility of each [of two or more complainants] making allegations that are so similar by chance or coincidence is so remote that the only explanation is the accused acted in the same way towards both of them and, therefore, their accounts are true”. [31]

For the sake of completeness, it should be noted that, with effect from 1 July 2020, Div 3.6 of the Evidence Act was amended by the Evidence Amendment (Tendency and Coincidence) Act 2020 which, amongst other amendments, inserted s 98(1A) into the Evidence Act as follows:

This provision must be considered with the relatively new s 94(5), which precludes a court from considering the possibility of collusion, concoction or contamination when determining the probative value of tendency evidence or coincidence evidence. These provisions were not applicable to the trial of the appellant. However, they confirm that the mode of reasoning set out in the emphasised passage from Pfennig is applicable to s 98. As will be explained, that form of reasoning was not reflected in the direction given to the jury in this case.

In support of counts 6 and 7 of the indictment, the complainant’s evidence was that she attempted to resist the appellant putting his mouth on her vagina and he responded by biting on the inside of her thigh which caused a scar. With count 8, the complainant said that the appellant pushed her from behind the ear to make her open her mouth for oral sex. Further, the complainant gave evidence of certain uncharged acts as “context evidence” including that another means by which the appellant would manipulate her jaw to open her mouth for oral sex was to pull her hair, bend her arm back and dig keys into her back. [32]

Prior to the trial, the Crown served a notice under s 98(1)(a) advising of its intention to adduce coincidence evidence. It identified the “events” that it relied on as those just noted as well as the appellant having “pinned LT down with a key to her back”, “pulled LT’s jaw by placing her jaw between his thumb and pointer finger and pushing down with his palm to force LT to perform fellatio on him” and he “bit LT hard on her inner thigh when she resisted his attempts to perform cunnilingus on her”. [33] The notice stated that the evidence was sought to be tendered to prove the appellant engaged in the relevant sexual acts against LT that she described. The notice was drafted on the basis that the relevant “event” was those acts and not the account of those events.

A voir-dire was conducted in relation to the admission of this evidence. The Crown’s submissions did not articulate the significance or otherwise of proving that it was improbable that the events, being the offences, occurred coincidentally. The appellant’s counsel identified the “logic of coincidence reasoning is that similarities in the accounts of two or more witnesses regarding the conduct of the accused make it improbable similar allegations would be made independently by the witness unless they were true (in the absence of concoction or joint contamination of their evidence)”. [34] Save for the reference to concoction or contamination, that contention reflects the emphasised passage from Pfennig set out above and is consistent with Saoud and Magennis. It was the only basis that satisfied s 98 that was articulated during the trial.

The balance of the defence submissions addressed the probative value of the evidence and its prejudicial effect, specifically the risk that LT’s evidence may “divert the jury in [its] task by tempting [it] to convict the [appellant] on the basis of a general impression that he had participated in such offences, based only on suspicion.” [35] The oral submissions on the voir-dire debated the significance of the potential for contamination, collusion, or concoction to the admissibility of the evidence. In light of The Queen v Bauer, [36] the potential for that to occur is not relevant to determining admissibility and is a matter for the jury. There is no reason why that is not equally applicable to coincidence evidence including evidence that seeks to invoke the reasoning set out in the emphasised passage in Pfennig.

The trial judge decided to admit the evidence. In describing the probative value of the evidence, his Honour appeared to accept the Crown’s submission that “there is such value as both witnesses detail what are described as three identical mechanisms employed by the accused to coerce a person to submit to sexual activity”. [37]

At the trial judge’s request, the Crown Prosecutor prepared a number of draft directions including a direction concerning coincidence evidence. The text of that direction was not provided to this Court but its content can be deduced from the events that followed its distribution.

Counsel for the appellant prepared a written response to the Crown Prosecutor’s proposed directions that included the following: [38]

The reference in the submission to this not being a case in which there was a “question of some other person engaging in this alleged conduct” confirms that the direction prepared by the Crown Prosecutor was appropriate to the type of case described above (at [55]) i.e., a case where it is the identity of the offender that was the central issue. The reference by counsel for the appellant to the “reasoning process available in this trial” appears to be a reference to what counsel stated in her submissions on the voir-dire, namely the “improbab[ility] [that] similar allegations would be made independently by the witness unless they were true”.

The content of this direction was the subject of debate between counsel during a break in the summing-up. [39] The Crown Prosecutor proposed the replacement of the words “that you find that is highly improbable that both acts were committed by a different person” with the words “it is highly improbable that it was a coincidence that the complainant alleges the three specific acts of making her comply to the sexual acts of the accused” [40] in what became [334] of the summing-up. Counsel for the appellant accepted that this change answered her submission. [41]

The relevant part of the summing-up delivered to the jury was as follows:

As noted below in relation to ground 3, the jury’s deliberations continued over a number of days. After the trial judge gave them a majority verdict direction, the jury returned with a request for further directions about context evidence, tendency evidence and coincidence evidence. [42] His Honour provided them with a written direction on each topic. The written direction provided in relation to coincidence evidence [43] was not relevantly different to that set out above.

Four points should be noted about the above direction.

First, as noted, this direction appears to have been adapted from a coincidence direction of the kind provided in the Bench Book [44] and which was appropriate to the type of case where evidence of similar events is admitted to establish the identity of the accused as the person who committed the charge on the indictment. Hence, [331] of the summing-up refers to the jury being satisfied “that the person who did one set of acts must have done the others”. That reasoning had no application to this case. There was never the remotest suggestion by anyone in this case that the “events” in the form of the sexual acts said to have been committed against LT and the complainant were coincidental.

Second, nowhere in this direction is there any identification of a path of reasoning that involves determining, having regard to similarities in events, that it was improbable that they did not occur coincidentally but instead were committed by the appellant. The direction uses the language of s 98 but it does not attempt to spell out the reasoning process that s 98 envisages. Instead, the jury were told (at [331] and [334] of the summing-up) that the similarities between these two events, being the acts described by LT and the complainant, made it improbable that they occurred by chance.

However, in the context of this trial, that direction reversed the reasoning process. The purpose of the direction was to enable the jury to conclude that “something” did not happen by coincidence and therefore to also conclude that the offence against the complainant was committed by the appellant. However, the summing-up at [331] and [334] invited the jury to reason, from a finding that the offences against both LT and the complainant were committed, that they did not happen by coincidence.

In this case the only permissible “something” was the similarity in the accounts given by LT and the complainant. The only available path of reasoning that satisfied s 98 was one that moved from concluding that it was improbable that such similar accounts would be given by different persons coincidentally, but instead were given because they were most probably true, to concluding that the complainant’s evidence should be accepted and thus the appellant committed the relevant offences against the complainant.

Third, if anything, parts of the above summing-up especially at [333] amount to more of an invitation to the jury to engage in tendency reasoning rather than coincidence reasoning. However, it suffers from the defect that it does not identify any particular tendency of the appellant, although, no doubt, one could have been identified. More importantly, the summing-up includes an anti-tendency direction at [335] so that, in the end result, these directions did not give the jury any sensible assistance as to how to use the evidence of LT and its similarity to the evidence of the complainant in the context of determining whether the complainant’s evidence should be accepted.

Fourth, the Crown submissions seek to make much of the role of counsel for the appellant in effectively “agreeing” to this direction. However, counsel’s role needs to be placed in context. From the outset, counsel for the appellant objected to this evidence being admitted. Just as importantly, the appellant’s counsel appears to have been the only participant in the trial that identified the proper “basis” upon which it could be admitted. The above direction was formulated by the Crown Prosecutor. Counsel for the appellant pointed out what at least she understood was the “basis” for this evidence and suggested something be added to the direction to reflect that. While her efforts may have not gone far enough, any detrimental impact on the fairness of the trial that flowed from the absence from the summing-up of any sensible path of coincidence reasoning was not something she caused or contributed to. At most, she only failed to prevent that impact.

The appellant’s written submissions addressed both grounds compendiously. It was contended that the grounds should be determined by reference to the principles in House v The King. [45] The appellant contended that, to engage in the reasoning that the Crown was asserting, it was necessary for the trial judge and the jury to assume the facts which the Crown was seeking to prove. The appellant contended that the decision to admit the evidence was based on that misconception and the terms of the above direction reveal that the trial judge invited the jury to adopt the same reasoning. [46] It was submitted that the effect of the direction was that the jury was advised that it was permissible to convict based “only on the suspicion that similar conduct occurred to LT” and the direction “marginalised the issue of contamination or concoction to the extent that it could play no role in his Honour’s summing-up”. [47]

The Crown contended that this Court’s review of the decision to admit the evidence was governed by the “correctness standard”, that is “it is for the court itself to determine” admissibility rather than “deciding whether it was open to the trial judge” to determine admissibility (Bauer at [61]). [48] The Crown characterised ground 1 as directed to the manner in which the Crown deployed the evidence and was left to the jury by the trial judge. [49] The Crown contended that the form of reasoning it proposed, and which was left to the jury, conformed with s 98 and was unduly favourable to the appellant: [50]

The Crown cited R v WRC [51] as support for the contention that the jury did not have to be satisfied beyond reasonable doubt that LT’s evidence was correct before they could use it to support coincidence reasoning. The submissions also referred to Versi as supportive of the above form of reasoning. [52]

In relation to ground 2, the Crown noted that part of the appellant’s contention that the flaw in the above directions was that his Honour erred in failing to direct the jury about the need to exclude concoction and allowed the jury to convict the appellant based on LT’s evidence alone. [53] In response, the Crown noted that no objection was taken with the direction by the appellant’s counsel and there was little exploration of the possibility of concoction in the evidence at the trial. [54] It was submitted that the direction did not enable the jury to convict based on a “suspicion” that LT’s evidence could be true but that it was instead instructed in the summing-up [55] that LT’s evidence could be used “together with the other evidence in the Crown case” to conclude beyond reasonable doubt that the accused committed the acts giving rise to the possible offences. [56] It was also submitted that no miscarriage of justice was occasioned in relation to the directions and that was fortified by the failure of counsel for the appellant at the trial to seek additional directions. [57]

In relation to ground 1, the Crown’s submission that the approach in Bauer should be adopted by this Court in reviewing the admission of coincidence evidence should be accepted. There is no relevant point of distinction between tendency evidence and coincidence evidence. It follows that it is not necessary to review the trial judge’s reasons for the admission of the evidence. However, contrary to the Crown’s submissions, ground 1 does not address the manner in which the evidence was deployed at the trial or in the summing-up. It is concerned with the admission of the evidence and that is what should be addressed.

Section 98 is an exclusionary rule. To determine that the evidence was properly admitted, it suffices to identify a basis for its admission. Whether the evidence was deployed in the trial in a manner consistent with s 98, or whether the jury were instructed in a manner that reflected its terms, is not an issue that arises in determining the admissibility of the evidence, although it may separately give rise to an error or irregularity in the trial or a miscarriage of justice. Hence, in Cornell, evidence that was originally admitted as tendency evidence was ultimately deployed by the Crown as coincidence evidence and the trial judge directed the jury accordingly. As that use was consistent with the Evidence Act and the appellant’s counsel embraced that course, no unfairness in the trial was demonstrated. [58]

In this case, as the appellant’s submissions effectively conceded, there was a basis for the admission of the evidence of LT that was not excluded by s 98, namely by the process of reasoning that focused on the improbability of LT and the complainant giving similar accounts of the sexual assaults committed by the appellant against each of them by coincidence rather than because they were both telling the truth. It follows that ground 1 should be rejected.

However, ground 2 is directed to the manner in which the evidence was deployed, and specifically the trial judge’s direction. To the extent that the appellant contended that the direction did not address the possibility of concoction or collusion, then the Crown’s contention that the combination of the paucity of the evidence of such concoction or collusion and the absence of any complaint from the appellant’s trial counsel meant that this complaint has no substance, should be accepted.

Further, contrary to the appellant’s submissions, there is nothing in the direction that suggests to the jury that they were entitled to convict only on the ”suspicion” that similar conduct occurred to LT. To the contrary, the jury were specifically instructed in the summing-up [59] that, before they considered the evidence of a “pattern of behaviour”, they had to be satisfied that the appellant committed the relevant acts against LT. As noted by the Crown, this aspect of the direction was unduly favourable to the appellant in that it was not necessary to first accept LT’s evidence before engaging in coincidence reasoning.

However, this only begs the question of what coincidence reasoning the jury were told they were permitted to engage in. The emphasised part of the Crown’s submissions set out in [91] appears to embrace the coincidence reasoning identified by the appellant as the only permissible form that was engaged by this evidence, but contends that the directions given to the jury reflected that reasoning except that it was more favourable to the appellant because it required the jury to be first satisfied beyond reasonable doubt that LT’s evidence was correct. That contention should be rejected. As already noted, the relevant part of the summing-up did not direct the jury’s attention to the asserted similarities in the accounts given by LT and the complainant and then tell them they were entitled to reason that it was improbable that the provision of similar accounts about separate crimes was coincidental but was instead the consequence of the two witnesses telling the truth. Instead, as contended for by the appellant, the direction told the jury to conclude that the two assaults were not coincidental having first determined that both the complainant’s and LT’s accounts should be accepted. To the extent that it was provided with any assistance about how to reason towards a conclusion that the appellant committed the offences recounted by LT, it was in that part of the summing-up at [333] which best appears to resemble tendency reasoning, something the jury were later told it could not engage in.

The end result is that the jury received evidence of the commission by the appellant of offences against LT that were similar to those alleged by the complainant without receiving any sensible, much less permissible, instruction as to how to use that evidence in reasoning towards a conclusion that the relevant aspects of the complainant’s evidence should be accepted. At the very least, the giving of a direction to the jury that did not identify a permissible basis for using the evidence of LT as either coincidence evidence or tendency evidence was an “irregularity” in the conduct of the trial. [60] Further, it constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) in that there was a “real chance” that the jury’s consideration of that evidence without such an instruction affected the jury’s verdict, [61] “realistically [could] have affected the verdict of guilt”, [62] “had the capacity for practical injustice” or was “capable of affecting the result of the trial”. [63] Otherwise, the Crown did not rely on the proviso.

Given the circumstances in which the evidence was admitted and the jury was directed, there may be some scope for argument as to whether r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is engaged in relation to ground 2. In any event, given the findings above, leave to raise that ground should be granted.

Accordingly ground 1 is rejected. However, leave to raise ground 2 will be granted and the ground is upheld.

The jury of twelve retired to commence their deliberations at 12:33pm on 11 October 2017. Following their retirement, the trial judge addressed a number of questions from the jury which are not relevant for present purposes. The deliberations continued for several days without a unanimous verdict being reached.

Late on the afternoon of 17 October, and in response to a note from the jury [64] indicating that they were unable to reach a unanimous decision and were “no longer moving forward”, the trial judge gave a Black direction. [65] The jury deliberations then continued.

The following day, 18 October 2017, the trial judge received a further communication from the jury [66] asking that a number of directions be repeated. The jury were then provided with extracts from the summing-up of the trial judge setting out those directions. Shortly after being provided with those extracts, the Court was reconvened and his Honour said this: [67]

Counsel for the appellant agreed that evidence should be taken from the foreperson, and submitted that the trial judge should then give the jury a direction that a majority verdict was available, and should include a so-called perseverance direction. The Crown’s final position was to acquiesce to this course. [68] The foreperson of the jury then gave evidence that she considered that a unanimous verdict was unlikely. When the jury returned to Court, his Honour said: [69]

His Honour then received a note form the jury which read: [70]

It was agreed that this request would be met. [71] However, shortly afterwards his Honour informed the parties that he had received a further communication from an individual juror [72] (Juror G) which was in the following terms [73] :

Following a discussion between his Honour, the Crown and counsel for the appellant, a position was agreed, the terms of which were encapsulated in the following observation by his Honour: [74]

The jury then returned to the courtroom and his Honour said the following: [75]

On resumption of the proceedings the following day, his Honour informed the parties of the following: [76]

It should be noted at this stage that counsel who appeared for the appellant on this day was not counsel who had appeared for the appellant for the duration of the trial. In any event, both the Crown and counsel for the appellant agreed with the course that his Honour had proposed. The Sheriff then gave the following evidence, in answer to questions from his Honour: [77]

The Crown then asked:

The Crown then sought to raise [78] with the Sheriff whether the juror who had sent that communication was Juror G, i.e. the author of MFI 30 which had been given to his Honour the previous day. It was agreed that whilst this was an appropriate avenue of enquiry, it was one to be made by taking evidence from the foreperson of the jury, and not from the Sheriff. The foreperson then gave evidence confirming that Juror G had not attended Court that day. The obvious conclusion was that Juror G was the author of the communication to the Sheriff and the member of the jury who had not attended Court on that day. [79]

After the foreperson had returned to the jury room, his Honour said: [80]

In response, the Crown confirmed his position that the trial should continue with a jury of 11. Having been given an opportunity to speak with trial counsel, counsel for the appellant submitted that “the provisions under the Jury Act… have not been sufficiently met for your Honour to discharge the juror”. After further discussion, counsel for the appellant said the following: [81]

After further discussions, the trial judge directed the jury, through the Court Officer, to suspend their deliberations, pending further directions. [82]

The Sheriff then gave further evidence [83] that he had made two attempts to call the mobile telephone number of Juror G, but that there had been no answer on either occasion. Following that evidence, his Honour repeated his preliminary view [84] that Juror G should be discharged and that the trial should continue with a jury of 11. That was opposed by counsel for the appellant, who said: [85]

After further discussion, in which counsel for the appellant confirmed this position, [86] the Sheriff gave additional evidence that he had made further attempts to contact Juror G, without success. [87] His Honour then indicated [88] that he was not dissuaded from his preliminary view that Juror G should be discharged and that the trial should continue with a jury of 11. The Crown agreed with that course. Counsel for the appellant opposed it, and submitted that “an investigation would need to occur as to whether or not the other jurors have done anything that may constitute an offence under the Jury Act”. [89] Counsel then made an application for the matter to be adjourned until the following day to give trial counsel the opportunity to reflect on the matter and obtain instructions. In making that application, counsel said: [90]

The trial judge then delivered an ex-tempore judgment in which he discharged Juror G and ordered that the trial continue with a jury of 11. In the course of that judgment, having recounted the chronology of events, his Honour said the following: [91]

Having referred to a number of authorities, and to the provisions of s 53C of the Jury Act 1977 (NSW) (the Jury Act), his Honour continued: [92]

His Honour then referred to the judgment of Adamson J in BG v R [93] before continuing: [94]

Having referred to the two stage process in s 53C, and having referred to other authorities, his Honour concluded: [95]

Following that judgment, counsel for the appellant made an application to discharge the jury. The basis of that application was articulated in the following terms: [96]

That application was opposed by the Crown, following which his Honour delivered a further ex-tempore judgment, [97] in which he refused it, saying:

Following that judgment, counsel for the appellant made an application for the matter to be adjourned until the following day, in order to allow trial counsel to reflect on terms of any further directions which might be given. That application was opposed by the Crown and rejected by his Honour in ex-tempore reasons as follows: [98] “

When the jury returned to Court at 12:44pm, his Honour said the following: [99]

The transcript records that the jury retired to continue deliberations at 12:47pm. [100] The jury's verdicts as previously outlined were returned at 2:20pm. [101]

The appellant read an affidavit of Catherine Butler, solicitor, of 25 October 2021 in support of this ground. Ms Butler was the appellant’s solicitor at his trial. Ms Butler stated the following in relation to the circumstances in which the jury returned to deliver the verdicts: [102]

The affidavit of Ms Butler was relied upon to support the proposition that the failure of the trial judge to discharge the jury gave rise to a miscarriage of justice because the appellant, a “dark-skinned Aboriginal man”, had been deprived of the supportive voice of Juror G, a man of “black African ancestry”. In other words, it was submitted that Juror G would have been supportive of the appellant on the grounds of race.

That submission should be firmly rejected. The description of Juror G is of no relevance. Quite apart from anything else, the submission advanced completely overlooks the fact that in the course of his directions to the jury, the trial judge said: [103]

There is no reason whatsoever to conclude that any member of the jury carried out his or her functions in a manner contrary to that direction.

At the conclusion of the hearing before this Court, the Crown was granted leave to file further evidence and submissions in relation to this ground. Pursuant to that grant of leave, the Crown filed two affidavits, the first of which was that of Peter Mitchell Paish of 6 June 2022. Mr Paish was the Crown Prosecutor at the appellant’s trial. His affidavit included the following: [104]

Counsel for the appellant, in written submissions filed in response to this evidence, objected to the affidavit of Mr Paish on the grounds of relevance. The evidence is relevant and admissible, although what weight may be attached to it is a separate question and is discussed further below.

The Crown also filed an affidavit of Miriam Rottenberg, solicitor. Annexed to Ms Rottenberg’s affidavit was the jury note provided to the trial judge advising that verdicts had been reached. The note records a time of 2:05 on 9 October 2017. It follows that although the transcript of the proceedings records the verdicts having been returned at 2.20pm, the verdicts had actually been reached 15 minutes earlier than that. The note was in the following terms:

Ms Rottenberg also obtained access to the audio recording of the proceedings on the day on which the verdicts were returned, and annexed to her affidavit an audio file containing an extract of that recording. The extract commences with a discussion between the Crown, counsel for the appellant and the trial judge regarding the manner in which verdicts were to be taken from the jury in circumstances where there were, in some instances, alternative counts. When the jury entered the courtroom, and after the trial judge made reference to the note he had received from the jury indicating that verdicts had been reached, the following was recorded:

The verdicts were then taken from the foreperson, at the conclusion of which the following was said:

The foreperson (who was obviously speaking into a microphone when delivering the verdicts) is not heard to respond to that question. A faint voice in the background, clearly not that of the foreperson, appears to say the word “yes". Who that person might have been has not been identified. It is possible that it was a member of the jury. It is also possible that it was someone else.

Counsel for the appellant submitted that it was reasonable to infer, particularly given the speed with which the jury’s verdicts were returned after his Honour’s final direction, that Juror G was a “dissentient juror”. It was submitted that to continue the trial after the discharge of Juror G in those circumstances “deprived the [appellant] of a sympathetic vote on the jury” and gave rise to a risk of a substantial miscarriage of justice. It was submitted that in all the circumstances, the only available inference was that had Juror G not been discharged, he would have voted for an acquittal.

Counsel further submitted that neither the jury’s note indicating that verdicts had been reached, nor the audio recording of the verdicts being delivered, provided any support for a conclusion that such verdicts were the unanimous verdicts of the jury of 11 person who remained after the discharge of Juror G. It was further submitted that little or no weight could be placed on the affidavit of Mr Paish in circumstances where Mr Paish referred, amongst other things, to having a "general recollection" of the events, and where his affidavit had been prepared almost 5 years after such events had taken place.

The Crown emphasised that at the time of the discharge of Juror G, and having received a majority verdict direction, the jury had indicated that verdicts of 11:1 had been reached on a number of counts. The Crown also pointed to the fact that the jury were able to bring in a verdict on all counts a short time later. It was the Crown’s submission that in these circumstances, there was no risk of a miscarriage of justice because a majority verdict had been permissible. The effect of the Crown’s submission was that in those circumstances, even if it was accepted that Juror G had, up to the time of his discharge, expressed views which were contrary to those of the majority, his absence was immaterial because a majority verdict was allowed.

The Crown further submitted that based upon the evidence previously set out, this Court would be satisfied that the verdicts which were returned were the unanimous verdicts of the 11 members of the jury who remained after Juror G’s discharge. In this regard, the Crown emphasised that no dissent was voiced by anyone when the trial judge’s associate sought to confirm that the verdicts were unanimous. It was submitted that had the verdicts been other than unanimous, some audible dissent would have been expected. It was further submitted that the unanimity of the verdicts was confirmed by the absence of any contrary indication being given in the jury’s note advising that verdicts had been reached.

Section 53C of the Jury Act is in the following terms:

In Haile v R [105] it was pointed out that because the circumstances which may give rise to a substantial miscarriage of justice are difficult to define, it is similarly difficult to formulate rigid rules governing the circumstances in which it may be necessary to discharge a jury because the risk of a substantial miscarriage of justice has arisen. It was observed that some guidance could be obtained from the decision of the plurality in Filippou v The Queen [106] where the following was said:

This definition applies to a determination under s 53C(1) of the Jury Act, the overriding consideration being the entitlement of the parties to a fair trial. [107]

In BG v R, to which the trial judge referred when delivering his reasons refusing to discharge the jury, Adamson J identified three categories of case in which a question may arise as to whether a trial should continue with a reduced number of jurors, namely:

Her Honour concluded that if a trial judge has discharged a member of the jury, and the case falls into either the second or third category, there is risk, if the trial continues with the remaining jurors, of a substantial miscarriage of justice because: [108]

Her Honour also observed [109] that what distinguishes the second and third categories from the first, is that in each of those two categories, something is known, or can, including with the benefit of hindsight, be inferred, about what has transpired in the jury room, so as to give rise to a risk of a substantial miscarriage of justice if the trial were to continue with the remaining members of the jury. In reaching these conclusions, her Honour made reference to a number of authorities, including R v Roberts [110] in which Cullinane J observed:

The complaint brought by the appellant under this ground centres, not on the determination of the trial judge to discharge Juror G, but on the determination of the trial judge to continue the trial with a jury of eleven. Counsel for the appellant sought to bring the circumstances of this case within the third of the categories identified by Adamson J in BG v R. The appellant’s position is that the continuation of the trial with a jury of eleven, in the absence of Juror G, has given rise to a risk of a substantial miscarriage of justice.

There is little doubt that Juror G was, as counsel for the appellant described him, a “dissentient juror”. There are two particular matters which support that conclusion. The first, is that prior to Juror G’s discharge, the foreperson of the jury had indicated that unanimous verdicts were unlikely. The second, is that it was only shortly after that indication was given that the trial judge received MFI 30, in which Juror G explained the stress under which he had been placed. The overwhelming inference is that such stress stemmed from the fact that Juror G was dissenting from the majority.

Accepting that to be the case, it is necessary to bear in mind that when Juror G was discharged, the point had been reached where a majority verdict could be taken. Accordingly, if the verdicts which were ultimately returned were the unanimous verdicts of the remaining 11 members of the jury, the fact that Juror G was dissenting would be of no consequence. Given that the jury had already indicated that they had reached 11:1 verdicts on some counts, it can be reasonably inferred that at least some of the verdicts which were returned were the unanimous verdicts of the 11 jurors who remained. However, whether the evidence supports a conclusion that this is the case in respect of all of the counts is another question entirely.

The evidence which has been adduced in relation to that issue is equivocal at best. To begin with, little weight can be placed upon the affidavit evidence of Mr Paish. Mr Paish deposed [111] to the fact that he had a "general recollection" of the verdicts, before asserting that his recollection was that “the verdicts of the eleven jurors was [sic] unanimous". The basis of those assertions is not set out. Mr Paish then deposed to the fact that the audio recording had provided him with “greater clarity of the events of that day". His affidavit does not explain how or why this is the case. Mr Paish goes on to make reference to his “general recollection" that there was no dissent when the verdicts were returned. The generality of Mr Paish’s affidavit, along with the fact that it was sworn almost 5 years after the relevant events (in circumstances where it is to be inferred that he did not have occasion to call the events to mind until he was asked to prepare his affidavit) are such that little weight can be placed on his evidence.

The note from the jury indicating that verdicts had been reached provides no indication one way or the other whether the verdicts were unanimous. The audio recording is similarly equivocal. In particular, when asked whether the verdicts were, in fact, unanimous the foreperson is not heard to respond. Whilst a voice in the background appears to utter the word “yes”, whether that voice belonged to a member of the jury or someone else is unclear.

In those circumstances, it is not possible to reach an affirmative conclusion that all of the verdicts were the unanimous verdicts of the eleven jurors who remained. Whilst it is likely that some were, there is also a possibility that some were not. If some were not unanimous, then the continuation of the trial in the absence of Juror G becomes significant, and brings the circumstances of the case within the third category set out in BG v R. Bearing in mind the terms in which the phrase “miscarriage of justice” was explained in Filippou v The Queen, it is important to emphasise that s 53C of the Jury Act speaks of a risk of a substantial miscarriage of justice.

For all of these reasons, this ground is made out.

The orders of the Court are as follows: