Zheng v R; Li v R; Pan v R

1. [1]

   BELL P:

Introduction

1. [2]

   On 5 February 2019, Messrs Sonny Zheng, Ji Li and Hoa Liang Pan (the Applicants) stood trial on an indictment containing 8 counts at the District Court of New South Wales before her Honour Judge Culver (the trial judge) and a jury of 12.

2. [3]

   The counts were as follows:

3. [4]

   On 26 March 2019, following a lengthy trial, the jury came to a unanimous verdict on all counts. Mr Zheng was found not guilty in respect of count 1 and guilty in respect of counts 2 and 3. Mr Li was found guilty of counts 5, 6 and 7. Mr Pan was found guilty of counts 4, 5, 6, 7 and 8.

4. [5]

   Messrs Zheng, Li and Pan were subsequently sentenced, respectively, to an aggregate term of 7 years imprisonment with an aggregate non-parole period of 4 years and 10 months; 11 years and 6 months imprisonment with an aggregate non-parole period of 7 years and 8 months; and 13 years imprisonment with an aggregate non-parole period of 8 years and 8 months.

5. [6]

   On 25 March 2019, one day prior to the jury returning its verdict but some 13 days after the jury retired to consider its verdict, two jurors (Juror E3 and Juror M) were both, with the agreement of counsel, discharged under s 53A of the Jury Act 1977 (NSW) for having made inquiries contrary to s 68C of that Act. That meant that, by the time the verdicts were delivered the following day, the jury had been reduced from 12 to 10 members.

6. [7]

   On the same day that Juror E3 and Juror M were discharged, an application, joined in by counsel for all 3 accused, was made for the discharge of a third juror (Juror G2W). Juror G2W’s discharge would have had the consequence that the trial could not have continued absent “approval in writing [] given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused”: Jury Act, s 22(a)(ii).

7. [8]

   The application to discharge Juror G2W was ultimately pressed pursuant to s 53A(1)(c) and, in the alternative, s 53B(d) of the Jury Act.

8. [9]

   Section 53A provides:

9. [10]

   An application was also made to discharge the whole jury pursuant to s 53C(1)(a) of the Jury Act which provides for such a discharge if, following the discharge of a juror, the court “is of the opinion that to continue the trial … with the remaining jurors would give rise to the risk of a substantial miscarriage of justice.”

10. [11]

    In an ex tempore judgment delivered on 26 March 2019, the trial judge declined to discharge Juror G2W under either s 53A or s 53B, and declined to discharge the jury under s 53C of the Jury Act.

11. [12]

    As already noted (at [6] above), the jury returned its verdicts later that day.

12. [13]

    Messrs Zheng, Li and Pan each bring separate appeals but on the common grounds (the failure to discharge grounds) that the trial judge erred in:

13. [14]

    In addition, Mr Li separately contends that the verdicts of guilty on counts 5, 6 and 7 against him were unreasonable and cannot be supported having regard to the evidence. Ms Lewer, who appeared for Mr Li, confined this aspect of the appeal to an argument that there was insufficient evidence to prove beyond a reasonable doubt the existence of a joint criminal enterprise between Messrs Li and Pan at the time of the commission of count 5, and for all counts that there was insufficient evidence to prove beyond reasonable doubt that Messrs Li and Pan were “in company” and acting in accordance with a common purpose. In particular, she contended that the Crown failed to rebut a reasonable possibility on the evidence of a possible coincidence of intention between the two men and that they independently determined to have sexual intercourse with the complainant without any express, implied or inferred agreement between them. Mr Pan joined in these grounds of appeal.

14. [15]

    In relation to the challenge to the verdicts on counts 5, 6 and 7, I have had the benefit of reading the reasons of Ierace J with which I agree and for those reasons consider that the grounds of appeal in relation to those counts should be rejected. In what follows, I deal with the failure to discharge grounds which are common to all applications.

Failure to discharge Juror G2W and the jury

1. [16]

   To understand the context of the failure to discharge grounds, it is necessary to set out some detail in relation to the circumstances in which the discharge applications came to be made.

2. [17]

   The charges in respect of which the Applicants were convicted related to events over the course of the evening of 24 June 2017 and the early hours of 25 June 2017 at an apartment in Wolli Creek.

3. [18]

   The complainant travelled to the apartment with Mr Zheng who, having connected with her on the dating application “Tinder” but not having previously met her, picked her up in an Audi motor vehicle and took her to the apartment in Wolli Creek where three other male and female acquaintances of Mr Zheng were already present when they arrived, at about 9:00pm.

4. [19]

   The complainant was a Korean national. She spoke Korean, some limited English but little or no Mandarin or Cantonese. The others at the apartment were Chinese speakers but spoke in English when speaking to the complainant.

5. [20]

   The evening began with the eight young people sitting around a table, drinking various alcoholic beverages including wine, whiskey, soju and an unidentified blue liquor whilst eating Chinese hotpot.

6. [21]

   There was an issue on the evidence at the trial as to how much alcohol the complainant and various of the accused had consumed in the course of the evening and by the time of the events the subject of the charges. This was explored in the examination and cross-examination of the complainant, Mr Pan (the only accused who gave evidence) and a number of the females who were present at the apartment on the evening of 24 June 2017 and who gave evidence.

7. [22]

   Returning to the factual background, after several hours sitting together at the dining table in the company of the others and eating and drinking, the complainant and Mr Zheng started kissing consensually whilst sitting at a dining table in a common area of the apartment.

8. [23]

   At some point subsequent to this, they went to one of two bedrooms in the apartment although there was no particular clarity, including in the complainant’s evidence, as to whether or not she entered the bedroom with Mr Zheng or a short time before him.

9. [24]

   It was at some time following this point that the events the subject of the charges and ultimately the convictions occurred. It is not necessary, however, to delve into any further detail for the purpose of considering the failure to discharge grounds.

10. [25]

    In the course of his cross-examination, in which Mr Pan had the assistance of an interpreter, the following evidence was given:

11. [26]

    This evidence was given on 4 March 2019.

12. [27]

    The trial judge commenced her summing up on 7 March 2019.

13. [28]

    On the following day, whilst still in the course of the summing up but prior to the jury having returned to Court following the luncheon adjournment, the trial judge raised an issue with counsel about the conduct of a particular juror who had been observed to have with him a Chinese language dictionary. This was Juror E3. Having raised that issue with defence counsel, her Honour also informed them that:

14. [29]

    Although her Honour referred in this passage to what I will refer to as “the overheard conversation” occurring “at some stage”, it would appear from later parts of the transcript and her Honour’s judgment on the discharge applications that the conversation was overheard and reported to her Honour during the course of the luncheon adjournment on 8 March 2019, immediately prior to the resumption of the hearing when the trial judge made the disclosure to counsel as set out above.

15. [30]

    After discussion with counsel, it was decided that the most appropriate way to deal with the exchange which the Court Officer had overheard and reported was to give a general direction to the jury (without expressly referring to what the Court Officer had reported or to the term “Ian drunk”). Accordingly, the following direction was given on 8 March 2019:

16. [31]

    The summing up continued until 12 March 2019 at which point the jury retired to consider its verdict.

17. [32]

    On 23 March 2019, whilst still considering its verdict, a typed note was received by the trial judge from one of the jurors (Juror M) regarding that juror’s concerns with aspects of the jury deliberations. The note was marked for identification as MFI 47.

18. [33]

    This led to a series of exchanges between her Honour and counsel.

19. [34]

    Ultimately, on 25 March 2019 (the following Monday), the trial judge decided to exercise her power under s 55DA of the Jury Act to examine certain jurors. It should be noted that, prior to conducting that examination, the trial judge inquired of all counsel what questions, if any, they would like her to ask, it being recognised that, if the power to do so existed, it would be potentially invidious for a particular defence counsel himself or herself to conduct an examination or cross-examination of a juror before the innocence or guilt of his or her client had been determined.

20. [35]

    The examination of Juror G2W by the trial judge was as follows:

21. [36]

    Mr McLachlan and Mr Edwards who are both referred to in this extract from the transcript appeared at the trial for Mr Zheng and Mr Pan respectively.

22. [37]

    The trial judge was plainly troubled by the juror’s evidence and, after discussion with counsel, decided to examine the Court Officer (Caitlyn) who had reported overhearing a juror (Juror G2W) speaking to another juror (Juror E3) about the meaning of “Ian drunk” on 8 March 2019. This examination occurred some 2 ½ weeks after the report of this conversation to the trial judge and the consequent direction to the jury referred to at [30] above.

23. [38]

    Following Caitlyn’s evidence, the trial judge decided to recall Juror G2W. The further brief examination was as follows:

24. [39]

    Also to be noted is that, after Juror G2W gave this evidence, the foreperson of the jury was examined in some detail by the trial judge. That examination included the following:

25. [40]

    Following receipt of this evidence, the trial judge entertained oral submissions in relation the discharge applications on the afternoon of 25 March 2019 and the following morning. Her Honour also received a short written submission from the Crown addressing various arguments that had been made by defence counsel. This became MFI 50.

26. [41]

    The trial judge delivered her reasons in relation to the applications to discharge Juror G2W and the jury ex tempore on 26 March 2019. In those reasons, she referred to Juror G2W as Juror C, presumably as he was the third juror to be the subject of a discharge application. The two other jurors (Juror M and Juror E3) who were discharged had been discharged with the agreement of counsel on the previous day.

27. [42]

    In the course of her reasons, the trial judge said:

28. [43]

    Two points should be made about this observation. In her evidence on oath which has been set out in its entirety above, Caitlyn did not in fact state what she had heard the juror say about how the term “lan drunk” could be interpreted. Her Honour must have conflated the evidence with what she recalled being told about the conversation by the Court Officer when it was reported to her on 8 March 2019. Secondly, it was certainly not put to Juror G2W in either passage of his examination by the trial judge, both of which have been set out in their entirety above, that he told another juror that "lan drunk" could be interpreted as "deathly" or "deadly drunk".

29. [44]

    The trial judge then referred to the evidence of Juror G2W as follows:

30. [45]

    The trial judge recorded that:

31. [46]

    Her Honour then noted that the Court was asked by defence counsel to accept that Juror G2W was lying when he gave evidence denying having been party to such a conversation. The trial judge noted the contrary submission of the Crown, namely that a conclusion that Juror G2W was lying was not the only available interpretation of his evidence and that there was a possibility that the juror simply did not recall the conversation, noting that in one of his answers he used the language “No, not that I can recall”. Her Honour also recorded the Crown’s observation that the juror was being asked about the conversation some 17 days after it was said to have occurred and that any such conversation may have been “in passing” and of little significance to the juror, the inference being that its length and nature, and the period of time that had elapsed since it was said to have occurred may all have contributed to a lack of recall.

32. [47]

    The trial judge indicated that she did “accept that there are different possibilities that arise, one of which is that Juror C [G2W] was lying in his evidence; another of which was that he forgot.” (On appeal, it was submitted that this acceptance amounted to a “finding”, for the purposes of s 53A(1)(c) of the Jury Act, as to the possibility that Juror C [G2W] was lying in his evidence about the overheard conversation).

33. [48]

    Her Honour then went on to summarise the arguments as presented to her:

34. [49]

    Later in her reasons, the trial judge further summarised the arguments she understood were being advanced by defence counsel:

35. [50]

    It can be seen from the extracts from her Honour’s judgment in the two previous paragraphs that the argument, as put at first instance, tied the risk of a substantial miscarriage of justice to the possibility that the Cantonese-speaking Juror G2W may have made external inquiries as to the meaning of “lan drunk” and that, if he had lied about this, he may have made other unknown and further unauthorised inquiries and shared them with the other members of the jury.

36. [51]

    As shall be explained later in these reasons, the way these arguments were put was somewhat different to the argument that was sought to be made on appeal.

37. [52]

    The Crown’s response to the arguments as put by defence counsel at the trial was that, apart from the fact that the trial judge could not conclude that Juror G2W had been lying when he gave his evidence, the scenarios postulated as generating the risk of a substantial miscarriage of justice required by s 53A(2)(b) of the Jury Act were speculative. Moreover, it was put that the meaning of the term “lan drunk” did not feature in any of the closing addresses (which had been completed by the time the discharge applications were heard) and, as the trial judge noted in her judgment, it was conceded that “even if ‘lan drunk’ or its interpretation was disseminated to other jurors, that of itself might not give rise to a risk of a substantial miscarriage of justice.”

38. [53]

    The trial judge concluded her consideration of the s 53A mandatory discharge application as follows:

39. [54]

    The trial judge then turned to a consideration of the application for a discretionary discharge of Juror G2W pursuant to s 53B of the Jury Act, that is a discharge which was not dependent on the establishment of misconduct on the part of the juror.

40. [55]

    On this alternative application, similar but not identical arguments were advanced in relation to the consequences of the overheard conversation. There was, for example, as the trial judge recorded, reliance on an inference that the juror had conducted some inquiry within the meaning of s 68C(5) of the Jury Act or, in the alternative, had brought outside information to the jury (these arguments were rejected as speculative). Closer to the argument sought to be run on appeal was the simple submission that, if the juror had lied on his oath and was not truthful in his evidence, that affected his general credibility and ability to discharge his function and responsibilities as a juror.

41. [56]

    The trial judge also made reference to a number of submissions that had been advanced by the Crown. One submission of note which was expressly referred to was that made in [4] of the Crown’s written submissions, namely that:

42. [57]

    In a passage in her ex tempore reasons which assumed particular significance on appeal, the trial judge in terms accepted the Crown’s submissions as “persuasive”. Her Honour then went on to say:

43. [58]

    Her Honour declined to discharge Juror G2W on a discretionary basis under s 53B of the Jury Act.

44. [59]

    In the balance of her judgment, the primary judge proceeded to consider the s 53C application, that is the application to discharge the jury on the assumption that Juror G2W would remain a member of the jury.

45. [60]

    It is sufficient for present purposes to note that her Honour conscientiously worked through the various matters that had been raised by defence counsel and which had been the subject of detailed written submissions by the Crown before declining to exercise her discretion to discharge the jury.

46. [61]

    The arguments presented on appeal in relation to the mandatory discharge application made pursuant to s 53A of the Jury Act were, in essence, threefold. The first related to the proper construction of s 53A and the question of what needed to be established to engage that section. The second related to what the trial judge in fact found on Juror G2W’s (or Juror C’s) evidence and whether or not her Honour should have found that he had been deliberately lying to the Court when giving that evidence.

47. [62]

    It was also put that if, on a proper understanding of the trial judge’s reasons, her Honour had made no finding one way or the other as to whether or not the juror was being honest or truthful in his evidence, her failure to do so was in itself an error which deprived the Applicants of the opportunity to argue that the jury should have been discharged.

48. [63]

    It may be accepted that “misconduct” within the meaning of s 53A(1)(c) of the Jury Act is a term of broad ambit and need not constitute an offence. Whether or not there has been “misconduct” such as to engage s 53A involves a process of evaluation, a matter that has implications for the extent to which an appellate court may interfere with such an assessment: see Hoang v R (2018) 98 NSWLR 406; [2018] NSWCCA 166 at [138] (Hoang). Furthermore, it has been held that “[t]he terms of s 53A are unequivocal: if the trial judge is satisfied that a juror has engaged in misconduct there is no other course available but to discharge the juror”: Hoang at [73] per N Adams J, Hoeben CJ at CL agreeing. Sometimes, depending on the nature of the misconduct and the extent, if any, to which it has infected other members of the jury, the discharge of a juror may lead to the discharge of the entire jury pursuant to s 53C(1) of the Jury Act.

49. [64]

    Both Mr Lange for Mr Zheng and Ms Lewer for Mr Li submitted that s 53A(1)(c) would be satisfied and engaged if the Court formed the view that there was a “reasonable apprehension”, “reasonable possibility” or a “real risk” that the juror had given false evidence. This submission took as its foundation the reference in s 53A(2)(b) to “a risk of a substantial miscarriage of justice” in defining “misconduct” for the purposes of s 53A(1)(c).

50. [65]

    No authority was cited in support of this suggested construction and it is not consistent with the plain language of the section which has been set out at [9] above. Section 53A(1)(c) will be engaged where the court finds that “the juror has engaged in misconduct” (emphasis added). The section’s directive to discharge a juror is dependent upon a finding to this effect. The section is not expressed in terms of “risk” or “possibility”. So, also, the definition of “misconduct” in s 53A(2) requires a finding that certain “conduct” has occurred. Section 53A(2)(b) is concerned with conduct that gives rise to a risk; it is not concerned with a risk that actual conduct has occurred.

51. [66]

    In Smith v The Queen (2010) 79 NSWLR 675; [2010] NSWCCA 325 at [28], it was held, undoubtedly correctly, that such a finding does not need to meet the criminal standard of “beyond reasonable doubt”. At common law, there are only two standards of proof: “beyond reasonable doubt” and “on the balance of probabilities”: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 360–361; [1938] HCA 34 (Briginshaw); see also Helton v Allen (1940) 63 CLR 691 at 712; [1940] HCA 20. It follows that before s 53A can be engaged, there must be a finding on the balance of probabilities that the juror has in fact engaged in misconduct which is defined either as:

52. [67]

    Whichever aspect of the definition is applicable, certain conduct must be found to have occurred. It is only if that conduct constitutes an offence or, in the opinion of the court, gives rise to the risk of a substantial miscarriage of justice that it will amount to misconduct. The key point, for present purposes, is that s 53A(1)(c) involves a two stage process: (i) a finding that certain conduct has occurred; and (ii) an analysis of its character, whether that be as amounting to an offence against the Act or as giving rise to the risk of a substantial miscarriage of justice.

53. [68]

    The expression “gives rise to”, like the expression “arising out of”, connotes a causal relationship (even if not necessarily proximate) or, when coupled with the word “risk”, a potential causal relationship: compare State Government Insurance Commission v Stevens Brothers Pty Ltd (1984) 154 CLR 552 at 555 and 559; [1984] HCA 32; Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 at [53], [94] and [110]–[111]; and see P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [4.350].

54. [69]

    In the context of s 53A(2)(b), the relationship to be examined is that between the established conduct, on the one hand, and whether it is potentially (“a risk”) causative of a substantial miscarriage of justice. The word “risk” in s 53A(2)(b) does not warrant a dilution of the standard of proof in relation to the conduct or misconduct with which the section is concerned. That conduct must be established on the balance of probabilities as the first step in the s 53A(1)(c) inquiry before the second stage, namely whether it “gives rise to” the relevant risk, is undertaken.

55. [70]

    It follows that the Applicants’ submission that, on its proper construction, s 53A(1)(c) does not require the establishment of misconduct on the balance of probabilities but simply the possibility of, a reasonable apprehension of, or a risk of misconduct, must be rejected.

56. [71]

    This conclusion is reinforced by a number of further considerations. First, it may be noted that, in contrast to s 53A, s 53B(b) authorises a discretionary discharge where it “appears to the court … that the juror may not be able to give impartial consideration to the case because of … any reasonable apprehension of bias … or any similar reason” (emphasis added). This is conspicuously different language to that which is employed in s 53A, and this difference is not only significant in itself but is reinforced by the fact that, once misconduct is established and the court forms a positive opinion as to the existence of a risk of a substantial miscarriage of justice, the court is required (“must”) to discharge the juror; it has no discretion to do otherwise.

57. [72]

    It is a serious matter for a juror to be discharged. This is why, in undertaking an inquiry whether there has been misconduct for the purposes of s 53A(1)(c), it is appropriate in my opinion to apply the observations of Dixon J in Briginshaw at 360–361. (The expression “the observations in Briginshaw” is, in my opinion, preferable to the expression “the Briginshaw standard” as that expression is apt to suggest, wrongly, some intermediate standard of proof).

58. [73]

    The application of Briginshaw to a finding of misconduct for the purposes of s 53A(1)(c) is appropriate notwithstanding the fact that a juror’s identity will invariably be anonymised in any judgment or ruling discharging the juror from service. To discharge a juror for deliberately lying under oath, that is to say, perjury, as was sought in the present case, involves a serious and adverse conclusion and one with serious potential consequences, not just for the juror in question (who could be subject to a referral if such a conclusion were reached) but also for the trial. In the present case, a successful challenge would have resulted in the discharge of the entire jury as its number would have fallen under the statutorily required 10 jurors: see s 22 of the Jury Act.

59. [74]

    The serious consequences of discharging a juror also powerfully militate against the interpretation for which the Applicants contend. If that interpretation were correct, serious disruption to and possibly the abortion of a criminal trial could occur on the finding of a mere possibility or reasonable apprehension that a juror lied in answer to a judge’s question. Furthermore, the discharge of a juror carries consequences that might, in certain cases, be adverse or detrimental to an accused or co-accused, reducing the jury to less than the 12 for which the Jury Act makes provision and thereby depriving an accused of what the common law regarded as a “long standing right”: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [28] and [49] (Wu).

60. [75]

    For all of the above reasons, I would reject the Applicants’ novel construction argument in respect of s 53A.

61. [76]

    It also follows that to the extent that the trial judge acknowledged that there was a possibility that the juror had lied on his oath when examined (see [47] and [57] above), this possibility was not sufficient to engage s 53A(1)(c), contrary to Ms Lewer’s argument.

62. [77]

    Attention is now turned to the arguments advanced, in particular by Mr Lange, that the trial judge:

63. [78]

    I would reject each of these arguments.

64. [79]

    Reliance was placed on the passages from the trial judge’s ex tempore reasons reproduced at [47] and [57] above to suggest that, rather than reaching a decision or making a finding, all that her Honour did was raise two logical possibilities, namely, that the juror was either mistaken in his recollection or deliberately lying.

65. [80]

    A careful reading of the trial judge’s decision, however, makes it clear that she rejected the submission that had been made by defence counsel that the juror was lying in his evidence. This can be demonstrated simply in three steps. First, defence counsel asked the trial judge to make such a finding, as her Honour recorded in the passage referred to at [46] above. Second, Crown counsel asked the trial judge to make a finding that the juror was mistaken in his recollection: see [56] above. Third, the trial judge expressly accepted the Crown’s submissions that Juror G2W had not engaged in “misconduct” (see [57] above) although her Honour did not in terms say that she found that the juror was simply mistaken in his evidence to her and was not deliberately lying.

66. [81]

    To the extent that such a finding may not have been explicitly stated, no criticism should be made of the trial judge. Her Honour’s reasons on the various applications were given ex tempore, whilst juggling other matters in her list and in circumstances where the applications were made after the jury had already been deliberating for some eight days.

67. [82]

    It has correctly been acknowledged that, in such circumstances, an appellate court should read such reasons with a proper consciousness of the pressures under which District Court judges (and indeed Local Court magistrates) work, with large volumes of cases in busy lists and the need, because of the nature of the types of cases in their respective jurisdictions, to make difficult decisions with great speed to facilitate the progress of a trial or jury deliberation: see, for example, Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226 at [37]–[38]; Karout v R [2019] NSWCCA 253 at [60]; Dixon v R [2019] NSWCCA 85 at [49]–[50]; Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180 at [18]–[19]; see also Salameh v The Queen (1991) 55 A Crim R 384 at 394; R v Majors (1991) 27 NSWLR 624 at 628; and R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [90].

68. [83]

    In this context and provided that a judge has given genuine consideration to the arguments presented, as was undoubtedly the case in the present matter, it is quite legitimate for reasons to be expressed by short hand reference to aspects of the parties’ written or oral submissions.

69. [84]

    The trial judge having made a decision that Juror G2W did not deliberately lie on oath, the premise for the application for his discharge pursuant to s 53A(1)(c) of the Jury Act fell away and her Honour did not err in rejecting it. The trial judge’s reference in the ex tempore judgment to the possibility that the juror had lied (see [47] above) is properly to be understood as a reference to one of two logical possibilities that arose on the juror’s evidence in light of the trial judge’s acceptance of the reliability of the Court Officer’s account of the overheard conversation.

70. [85]

    The trial judge’s second reference to this possibility (see the passage extracted at [57] above) was to make the forensic observation that, even if the juror had engaged in such conduct, it would still be necessary to demonstrate that that conduct would generate, in a causative sense, at least the risk of a substantial miscarriage of justice along the various lines that had been suggested by defence counsel in argument. However, because of the trial judge’s finding that the juror had not deliberately lied to the Court on oath, it was not necessary for the trial judge to embark on what has earlier in these reasons been referred to as this second stage of the process required by s 53A(1)(c) of the Jury Act: see [67] above.

71. [86]

    For completeness it should be added that, were it the case that the trial judge was not, on the evidence, able to reach a conclusion as to whether or not the juror had been deliberately lying in his evidence, it would have been open to the trial judge simply to state a conclusion that she was not convinced on the balance of probabilities that the witness was deliberately lying. Such a conclusion would not establish that he was mistaken but simply that, on the evidence before her and bearing in mind Briginshaw considerations, she was not able to reach a conclusion of perjury on the balance of probabilities. The burden of establishing juror misconduct in this regard fell upon the parties seeking the juror’s discharge.

72. [87]

    Finally, I would reject the submission that the trial judge should have found that the juror was deliberately lying when he gave his evidence. In that regard, I would note, in addition to the matters which had been referred to by the Crown in MFI 50 (see [40] and [56] above), that the particular date of the alleged conversation was not put to the juror, nor was the entire conversation said to have been overheard by the Court Officer and, in particular, the response attributed to the juror, namely that “lan drunk” meant “deathly” or “deadly drunk”. It was also relevant that the juror did not in terms deny that any such conversation could have occurred, and that it was not put to him that he was deliberately lying in saying that no conversation of the vague and general nature put to him had occurred at some unspecified time over the previous two months.

73. [88]

    It follows from the above analysis that the trial judge also did not err in dismissing, in the exercise of her discretion, the alternative discharge application to the extent that it was advanced under s 53B of the Jury Act. Such a discretionary decision not only attracts the strictures appropriately placed on appellate interference by decisions such as House v The King (1936) 55 CLR 499; [1936] HCA 40 but also is a decision of a kind which the trial judge is best placed to make by reference to “first hand impressions” rather than the “review of a cold record”: see Wu at [101]–[102]; R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 at [40] (Lamb).

74. [89]

    The application that was made to the trial judge to discharge the jury pursuant to s 53C of the Jury Act was advanced by reference to a number of considerations including but not limited to the circumstances surrounding the overheard conversation and the subsequent examination of Juror G2W in respect of that conversation.

75. [90]

    Other matters relied upon in support of this discharge application included:

76. [91]

    It was not seriously contended that the trial judge had failed to consider each of the matters that were said, cumulatively, to justify a discharge of the jury or that the trial judge had erred in some material way in her approach to the consideration of those factors.

77. [92]

    In truth, the trial judge dealt systematically and impressively with each of the matters that had been presented for her consideration and the Court was helpfully taken by the Crown Advocate through each of those matters. Many of them fell away in light of the trial judge’s decision that Juror G2W had not engaged in misconduct. Moreover, when the overheard conversation was originally reported to the trial judge and then to trial counsel, it was dealt with by the direction to the jury which has been extracted at [30] above and about which no complaint was or is now made.

78. [93]

    To the extent that there had been a degree of disharmony in the jury room, that had also been the subject of a direction to the jury that was evidently considered entirely appropriate. As to the fact that one of the two jurors who had been discharged (Juror M) had been identified as the source of some disharmony, that juror’s discharge also ameliorated this complaint.

79. [94]

    The trial judge was evidently satisfied from her examination of the foreperson of the jury (the transcript of which has been extracted at [39] above) that the jury’s deliberations had not been irregular or compromised in any material way. That was important evidence which informed the exercise of her Honour’s judicial discretion and negated a number of the more speculative arguments that had been suggested to warrant the jury’s discharge.

80. [95]

    Other factors relied upon were neutral or equivocal. For example, the fact that the jury had been retired for eight days was not a basis for considering that the jury’s deliberations were unsound or likely to generate a miscarriage of justice. The trial had run for some eight weeks, there were three accused and multiple counts, and there had been lengthy and detailed addresses and a thorough summing up. Furthermore, the foreperson of the jury had indicated in his evidence to the trial judge that unanimous verdicts had been reached on all but one of the counts in the week prior to the discharge application.

81. [96]

    In Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22, albeit in the context of a non-statutory test for the discharge of the jury, Toohey, Gaudron, Gummow and Kirby JJ emphasised the discretionary nature of a decision whether or not to discharge a jury and said:

82. [97]

    Reference may also be made to the observations of Rothman J (McClellan CJ at CL and Johnson J agreeing) in Trieu v R [2012] NSWCCA 169 at [28] (Trieu) in the context of a review of a refusal to discharge a jury:

83. [98]

    It is, of course, axiomatic that in order to challenge a discretionary decision of the kind made by the trial judge, House v The King at 505 requires it to be demonstrated that the decision under challenge was made upon a wrong principle, was tainted by extraneous or irrelevant matters or a mistaken view of the underlying facts, or failed to take into account a material consideration: see, as to the appropriateness of the House v The King standard of review to a challenge to a jury discharge application pursuant to s 53C of the Jury Act, Trieu at [21]; Barber v R; Zraika v R [2016] NSWCCA 125 at [24]; and Lamb at [36].

84. [99]

    Moreover, the mere fact that an appellate court may have reached a different conclusion were the discretion being exercised afresh is not to the point: House v The King at 504–505; Norbis v Norbis (1986) 161 CLR 513 at 518–519; [1986] HCA 17; and Lamb at [39]. Having said that, my own review of the evidence and submissions made would not have led me to a different decision on the jury discharge application than that reached by the trial judge.

85. [100]

    No basis has been advanced to warrant an interference with the trial judge’s discretionary decision to decline to discharge the jury pursuant to s 53C of the Jury Act. The mere repetition of the arguments advanced at trial coupled with a submission that the trial judge had failed to deal with the various considerations “cumulatively” did not engage the principles applicable to review of a discretionary decision. There was no relevant error and this ground of appeal should be refused.

86. [101]

    BUTTON J: I agree with Bell P with regard to the grounds of appeal based on failures to discharge.

87. [102]

    I also agree with Ierace J with regard to the grounds of appeal based on the state of the evidence. In my opinion, it was well open to the jury to find that the relevant applicants were acting together in the commission of the offences in question.

88. [103]

    IERACE J: I have had the advantage of reading in draft the reasons of Bell P and respectfully agree with his Honour’s judgment and reasons as to the ground advanced by Mr Zheng and grounds 1 and 2 advanced by Messrs Pan and Li: the “failure to discharge” grounds.

89. [104]

    The third ground of appeal advanced by Messrs Pan and Li is that the verdicts of guilty for counts 5, 6 and 7, which were counts of aggravated sexual intercourse without consent, were unreasonable and could not be supported, having regard to the evidence. Mr Pan did not make written or oral submissions in support of the ground, being content to rely upon those made by Mr Li.

90. [105]

    As to the principles that apply to an unreasonable verdict ground of appeal, in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Bathurst CJ (Johnson and Fullerton JJ agreeing) said:

91. [106]

    The essence of Mr Li’s submission is that the circumstance of aggravation in each of those counts, that the sexual intercourse without consent was committed “in the company of another person or persons”, did not have a sufficient evidentiary basis; in particular, that the evidence was incapable of establishing that the two accused in those counts had a common purpose to sexually assault the complainant. It was expressed in his written submissions as follows:

92. [107]

    If this ground is made out, the appropriate result would be to quash the convictions and, for counts 6 and 7, that verdicts of guilty on the alternative counts contrary to s 61I of the Crimes Act 1900 (NSW) be substituted, pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW).

93. [108]

    It is necessary to relate more of the evidence concerning those counts. It was the complainant’s evidence, as noted above at [22], that during the dinner party she and Mr Zheng consensually kissed in a common area of the apartment. On the Crown case, this was shortly before 2am. The complainant said she told Mr Zheng that she felt drunk and asked to be driven home. Mr Zheng told her that he could not, as he was drunk as well. He said that he could drive her home “a bit later” and, indicating a bedroom, suggested that she “go into a room and have some sleep”. The complainant went into the room, which was dark, and sat on the bed. She opened the Uber app on her phone, intending to book a ride home. Mr Zheng entered, and they again consensually kissed. Mr Zheng started to take the complainant’s dress off. She told him not to, saying that she had her period, but he took off all of her clothes against her protestations, she being too drunk to physically prevent him. Mr Zheng took his clothes off and sucked the complainant’s nipples, that behaviour being the basis of count 1. Mr Zheng then engaged in penile-oral and penile-vaginal intercourse with the complainant, which was the basis of counts 2 and 3 respectively. Mr Zheng then left the bedroom, closing the door behind him.

94. [109]

    While Mr Zheng was in the bedroom with the complainant, the other three women at the dinner party departed, accompanied downstairs by Mr Pan and Mr Jiahao Zou, who was the fourth man at the dinner party. Mr Pan and Mr Zou then returned. The womens’ departure was captured on CCTV in the vestibule of the apartment building, fixing a time for that event.

95. [110]

    The complainant said that she was in shock at what Mr Zheng had just done to her. Less than a minute after Mr Zheng left the room, Mr Pan entered. She said: “I can’t remember exactly but I think he wasn’t dressed”. He introduced himself as “Jimmy” and, with nothing further being said, got on top of her and commenced penile-vaginal intercourse; this being the basis of count 4. She told him “not to do that.” Mr Li then entered, naked, saying nothing, and put his penis in her mouth, while Mr Pan was still having penile-vaginal intercourse with her. This was the basis of counts 5 and 6, as explained by the Crown Prosecutor in her opening:

96. [111]

    The complainant’s evidence was that, after about a minute, Mr Li withdrew his penis from her mouth and Mr Pan withdrew his penis from her vagina. They spoke in English and Chinese, each saying to the other in English that he wanted to “go first”. In cross-examination on behalf of Mr Pan, the complainant agreed that in a statement to police she made later the same day, she told police that Mr Pan said to Mr Li, “Get out of the room” and Mr Li pushed Mr Pan “out of the way”. A notebook entry made by a police officer during an interview with the complainant that occurred by telephone the same morning, to the effect that one of the men said to the other in the course of the argument, “She’s mine”, was elicited by counsel for Mr Pan. The entry had not been adopted by the complainant and was not put to her in the trial.

97. [112]

    Mr Li then placed his penis in her vagina. The complainant said to him: “If you really, really want to do this, at least use a condom”. Mr Li did not respond, and continued to have intercourse for about three minutes, while Mr Pan was on the bed alongside the complainant, watching. This was the basis of count 7. Mr Li then left the room, closing the door behind him, and Mr Pan again had penile-vaginal intercourse with the complainant, which was the basis of count 8. Mr Pan then left the room.

98. [113]

    Shortly afterwards, Mr Li opened the door, saying, “I brought condoms, let’s do it”. The complainant said, “Please don’t do this to me, please leave”. Mr Li left, closing the door behind him. The complainant said, in relation to the three offenders, “they did things to me when I said no. So when those men did those things to me, after I said no, I was scared of them”. The complainant lay in the room for a while, then dressed, googled a phone number on her phone for the police, dialled triple-0 and made a complaint of having been sexually assaulted, as a result of which police attended the address.

99. [114]

    Mr Zheng was interviewed by police late in the afternoon of the same day. A video recording of the interview was tendered in the trial. He did not give evidence. His account, in so far as it was peripherally relevant to counts 5, 6 and 7, was that he was in the bedroom with the complainant for about 20 minutes. He consensually licked her nipples and had oral-penile intercourse, and denied he had penile-vaginal intercourse. When he emerged from the bedroom, he closed the door and noticed that the other three women had left. He was not sure if all three men were there, or whether one or more had gone downstairs with the other women. He had a cigarette on a balcony but felt sick and quickly went to the bathroom, where he vomited for “5, 10 minutes” and then went into Mr Li’s bedroom. Mr Li was not there, and he fell asleep on his bed, not waking until 7am.

100. [115]

     The terms of this ground of appeal do not challenge the jury’s finding to the requisite standard of proof that Mr Li sexually assaulted the complainant by penile-oral and penile-vaginal intercourse, so it is unnecessary to canvass the sufficiency of that evidence. Mr Li did not give evidence in the trial. A video of a police interview of him, conducted on the evening of the same day as the incident, was tendered into evidence. Essentially, Mr Li told police that he had been very drunk the previous night and variously denied he had sexual intercourse with anyone and said that he was so drunk that he could not recall if he did or not. He admitted to “maybe some kissing” of the complainant.

101. [116]

     Mr Pan was interviewed by police the same evening, a video recording being admitted into evidence. He told police that he arrived at the dinner party at about 7pm and, after about two hours, he fell asleep. At some point after, he awoke and saw Mr Zheng and the complainant go into a bedroom. While they were in the bedroom, the other women left. He farewelled them outside, returned upstairs and went to sleep on the sofa.

102. [117]

     Mr Pan denied he had any form of sexual intercourse with the complainant. He denied that he was known as “Jimmy” and said he was not aware of anyone at the dinner party who went by that name.

103. [118]

     A high and low vaginal swab of the complainant, and a skin swab of her breasts, yielded a DNA profile that matched Mr Pan to a high probability. A DNA profile from a swab of Mr Pan’s penis could not exclude the complainant as a major contributor. Mr Pan gave evidence in the trial, being the only accused who did so, and admitted that he had lied to police. He said that the other three women left the apartment about an hour after Mr Zheng and the complainant had gone into the bedroom. He and Mr Zou escorted them downstairs. A few minutes after he returned, he saw Mr Zheng leave the bedroom, take a cigarette and go onto the balcony. Mr Pan then fell asleep on a couch. He awoke after about an hour and entered the bedroom Mr Zheng had left, thinking it was unoccupied by then. He saw the complainant lying under a quilt and lay down beside her, on top of the quilt. He touched her on the shoulder and she asked, “Who are you?” and he replied, “My name is Jimmy”. She then turned towards him, “her two breast exposed” and they consensually kissed. He took off his clothes and had consensual penile-vaginal intercourse for a short period of time, after which she pushed him away. He started to dress, and she said she wanted to go home. He replied that he had drunk too much to drive her home, but would do so the next morning. He said, “Meantime, you sleep here.” He denied engaging in any sexual acts with the complainant in the presence of Mr Li, or being present when Mr Li did so.

104. [119]

     Mr Zou gave evidence in the trial, to the effect that the complainant and Mr Zheng were showing “some intimate actions” during dinner. They went into a room. Mr Zou said that at about 2am, at which time Mr Zheng and the complainant were still in the room, he and Mr Pan escorted the three women downstairs to the lobby. After they returned, Mr Zheng emerged from the room. Mr Zou said that he remained in the lounge area with Messrs Zheng, Li and Pan from that time until he left the apartment, which was about 50 minutes later, a time that was corroborated by CCTV images taken from the foyer. Mr Zou denied that during that time Mr Li or Mr Pan undressed and entered the room where the complainant was. He said that he had no recollection of whether the complainant was discussed by them in that 50 minute period.

105. [120]

     It is apparent from the jury’s verdicts that they did not accept Mr Zou’s evidence to the effect that Messrs Li and Pan were with him from the time Mr Zheng emerged from the room where the complainant was, until he left the apartment, 50 minutes later. In the context of the jury’s verdicts, Mr Zou’s evidence did not shed any light on what discussions occurred between Messrs Li, Pan and/or Zheng outside the bedroom concerning the complainant, before Mr Li and Mr Pan entered it.

106. [121]

     The Crown case was that, in respect of counts 5, 6 and 7, there was a joint criminal enterprise between Messrs Pan and Li to have sexual intercourse with the complainant without her consent, which could be inferred from the evidence as to the circumstances of the sexual assaults by them. In relation to count 5, the sexual intercourse without consent by Mr Pan was within the terms of the joint criminal enterprise agreed between them, so that Mr Li, as well as Mr Pan, was guilty of Mr Pan having sexual intercourse with the complainant without her consent and in his company. In relation to counts 6 and 7, the joint criminal enterprise operated to render Mr Pan guilty of the aggravated sexual intercourse without consent by Mr Li. In relation to counts 6 and 7, in respect of Mr Li, if the jury had been satisfied beyond reasonable doubt that he had sexual intercourse without consent but not that it was committed in company, the alternative count of sexual intercourse without consent simplicter was made out, contrary to s 61I of the Crimes Act.

107. [122]

     For all three counts, pursuant to s 61J(2)(c) of the Crimes Act, the jury had to be satisfied beyond reasonable doubt that the direct perpetrator (Mr Pan in relation to count 5 and Mr Li in relation to counts 6 and 7) committed the sexual intercourse without consent “in the company of another person”, which was pleaded in the indictment as “in the company of each other”. The trial judge’s direction to the jury in that regard is not challenged as to its correctness:

108. [123]

     This direction as to the meaning of “in company” is consistent with authority: FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182 at [121]-[126]. There is a degree of overlap between the elements of joint criminal enterprise and an offence being committed “in company”, notably, there being a common purpose. In order to establish that an offence was committed “in company”, it is necessary that the applicant was also physically present, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant. Physical presence at the commission of the offence is not a necessary element of a joint criminal enterprise; Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 per Bathurst CJ (Johnson and Fullerton JJ agreeing) at [47].

109. [124]

     The evidence relied upon by the Crown in order to establish that counts 5, 6 and 7 were committed in company, was circumstantial in nature. In her closing address, the Crown identified aspects of the evidence which, in combination, it was submitted, established beyond reasonable doubt that the presence of both men was pursuant to a common purpose:

110. [125]

     The applicant submitted that the evidence as to Messrs Li and Pan sharing a common purpose was deficient; that it did not extend beyond a “mere coincidence of common actions”. In written submissions, the applicant stated:

111. [126]

     Accordingly, count 5 is not made out at all in respect of Mr Li, since his liability for that count is dependent upon there being a common purpose pursuant to the doctrine of joint criminal enterprise in order to hold him liable for the sexual assault by the direct perpetrator (Mr Pan), as well as to establish the element of aggravation of being “in company”.

112. [127]

     Mr Li submitted that none of the evidence identified by the Crown, except for the two men entering the bedroom in a very short time of each other, was particularly probative of a common purpose shared by Messrs Pan and Li to have sexual intercourse with the complainant without her consent, to the exclusion of a competing available reasonable inference of a coincidental intention of each of them to independently pursue that objective.

113. [128]

     Mr Li relied upon R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 which was a case of competing inferences as to whether co-offenders of sexual assault were acting in company. The applicant was convicted at trial of aggravated sexual intercourse without consent, the circumstance of aggravation being that he was in company with another man (“AK”), who also had sexual intercourse with the complainant without her consent. A ground of appeal was that the verdict was unreasonable and against the weight of the evidence, as to the circumstance of aggravation. Ipp JA (Buddin and Shaw JJ agreeing) upheld the ground, and in so doing referred to the relevant evidence:

114. [129]

     Mr Li also relied upon Markou v The Queen (2012) 221 A Crim R 48; [2012] NSWCCA 64, in which Macfarlan JA (R S and R A Hulme JJ agreeing) said, at [28]:

115. [130]

     Mr Li submitted that, as in R v ITA and consistent with Macfarlan JA’s observation in Markou v R, there were competing inferences and no compelling evidence to exclude the reasonable possibility of Mr Li having acted opportunistically and independently of Mr Pan, rather than with a common purpose.

116. [131]

     As to the evidence relied upon by the Crown to base the inference of the men acting in company, Mr Li submitted that the Crown’s closing submission to the jury that the complainant had said that both men were naked when they entered the bedroom was incorrect, submitting that the complainant’s evidence was that she “could not recall Pan’s state of dress” and that Mr Li “might not have been dressed.”

117. [132]

     As well, Mr Li suggested that the fact of the argument between the two men, in which Mr Pan told Mr Li to leave the room, is suggestive of Mr Pan regarding Mr Li’s presence as frustrating his intention, rather than encouraging, emboldening or reassuring him.

118. [133]

     It is appropriate to consider the evidence as to Messrs Pan and Li’s state of dress when they entered the bedroom. In her evidence in chief, the complainant gave the following evidence in relation to Mr Pan:

119. [134]

     The complainant’s degree of uncertainty as to Mr Pan’s state of dress (“I can’t remember exactly but I think he wasn’t dressed”) was a matter the jury could take into account in determining whether they accepted her recollection and, if so, what weight they placed upon it. If they accepted the complainant’s evidence that when Mr Pan entered the bedroom he told her his name (“Jimmy”) and got on top of her and put his penis in her vagina, they were entitled to take it into account in determining the weight to attribute to her conclusion that he was already undressed when he came in.

120. [135]

     It is relevant to this aspect of the third ground of appeal that counsel for Mr Pan and Mr Li did not object to the Crown’s characterisation of the complainant’s evidence that Mr Pan was naked when he entered the bedroom. Nor did Mr Pan’s counsel submit otherwise to the jury in the course of his closing address, instead referring to the conflicting evidence as to whether Mr Pan was naked or fully clothed when he entered the bedroom and reminding the jury that his client’s account was that he did not take his clothes off until after he engaged in consensual sexual acts with the complainant on the bed.

121. [136]

     The complainant’s account of Messrs Pan and Li entering the bedroom within a minute of each other, already undressed and immediately engaging in sexual intercourse with the complainant, Mr Pan having said only his name and Mr Li saying nothing at all, simply placing his penis in her mouth, is a fundamentally different evidentiary proposition to that which was considered in R v ITA and, in my view, is one that was quite capable of eliminating the availability of the contrary inference; that is, that Messrs Pan and Li coincidentally had the same intention independently of each other.

122. [137]

     It was compelling evidence from which the jury might comfortably infer that the sexual intercourse by both men was pursuant to an agreement reached before they entered the bedroom that each would have sexual intercourse with the complainant either without her consent or being reckless to whether she consented or not, and in each other’s presence. This was a sufficient evidentiary basis to establish the alleged common purpose for both the joint criminal enterprise for all three counts and being in company.

123. [138]

     As to the terms of, and actions during, the argument between Messrs Pan and Li that were related by the complainant, it appears that the dispute was only as to which of them should have priority in the acts of penile-vaginal intercourse with the complainant. In any event, regardless of what they said to each other during the argument, the effect of the complainant’s evidence of the outcome, that Mr Li had penile-sexual intercourse while Mr Pan waited his turn on the bed alongside the complainant, which was the basis of the last joint count, was not inconsistent with the alleged terms of the joint criminal enterprise.

124. [139]

     Accordingly, I am of the view that the third ground advanced by Messrs Pan and Li should also be refused.