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11
Court of Criminal Appeal 8 August 2007

RJS v Regina

[2007] NSWCCA 241

Also reported as (2007) 173 A Crim R 100
Sexual offences
CRIMINAL LAW JURISDICTION, PRACTICE AND PROCEDURE VERDICT UNANIMOUS AND MAJORITY VERDICTS APPEAL UPHELD CRIMINAL LAW

Citation: RJS v Regina [2007] NSWCCA 241
Court: New South Wales Court of Criminal Appeal
Date: 8 August 2007
Judge(s): Spigelman CJ, Simpson J, Harrison J

Background

The appellant was convicted by majority verdict in the District Court of indecently assaulting a nine-year-old child, contrary to s 61M(2) of the Crimes Act 1900. The alleged offence involved a single incident during a piggyback ride. The complainant was the only direct witness to the alleged assault.

The appellant was sentenced to a total term of twelve months imprisonment, suspended entirely under s 12 of the Crimes (Sentencing Procedure) Act 1999. By the time the appeal was heard, the non-parole period had already expired and the head sentence was close to expiry.

The majority verdict had been reached on 23 June 2006, shortly after s 55F of the Jury Act 1977 came into force, permitting majority verdicts in New South Wales for the first time. The timing and circumstances of how the trial judge invoked that provision formed the centrepiece of the appeal.

  • Whether s 55F of the Jury Act 1977 was invoked in circumstances where its preconditions had not been satisfied, rendering the majority verdict a nullity or a miscarriage of justice
  • Whether the trial judge's directions to the jury about the availability of a majority verdict were legally adequate
  • Whether the cross-examination of the child complainant was conducted unfairly
  • Whether the verdict was unreasonable or unsupportable having regard to the evidence
  • Whether, in the exercise of the Court's discretion, a new trial should be ordered rather than a verdict of acquittal entered, given that the sentence had substantially been served

Decision

Majority verdict issue: The Court of Criminal Appeal found that s 55F was invoked impermissibly. Section 55F requires two conditions to be satisfied before a majority verdict can be taken: the jury must have deliberated for at least eight hours, and the court must be satisfied, after examining jurors on oath, that a unanimous verdict is unlikely to be reached. In this case, the trial judge told the jury at 2.15 pm that a majority verdict would become available at 2.30 pm, before the eight-hour deliberation period had elapsed and without conducting any examination of jurors on oath. The Crown accepted that this amounted to a miscarriage of justice, as the appellant had not received a trial according to law.

Jury directions: The trial judge also erred in directing the jury about the majority verdict option before the statutory preconditions were met, effectively signalling its availability prematurely. The Court considered this ground together with the first ground, as both went to the improper invocation of s 55F.

Cross-examination and unreasonable verdict: The Court addressed the ground that cross-examination of the child complainant was unfair. It found that any inconsistencies between child witnesses fell within normal bounds. The Court also rejected the submission that the verdict was unreasonable or unsupportable on the evidence, meaning the Crown's case was not so weak as to warrant a directed acquittal.

New trial: Having quashed the conviction, the Court considered whether to direct an acquittal or order a new trial. Spigelman CJ noted that the suspended sentence meant the "principal sting" of the conviction lay in the conviction itself rather than any term of imprisonment served. The registration obligations imposed under the Child Protection (Offenders Registration) Act 2000 weighed in favour of a new trial, as the decision whether to continue the prosecution was characterised as one properly belonging to the executive. A new trial was ordered, notwithstanding the likelihood that any further sentence, if the Crown proceeded, would be minimal.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • A new trial to occur

Key Takeaways

  • Under s 55F of the Jury Act 1977, a trial court must satisfy two distinct preconditions before accepting a majority verdict: the jury must have deliberated for at least eight hours, and the court must examine jurors on oath and be satisfied that a unanimous verdict is unlikely. Neither precondition was met in this case.
  • Invoking the majority verdict provision prematurely, and directing the jury about its availability before the statutory requirements are fulfilled, constitutes a miscarriage of justice entitling an appellant to have a conviction quashed.
  • Where a sentence has been substantially served by the time of an appeal, that fact is a relevant but not necessarily determinative consideration in deciding whether to order a new trial or direct an acquittal.
  • The registration regime under the Child Protection (Offenders Registration) Act 2000 can itself constitute a significant consequence of conviction, capable of supporting an order for a new trial even where the custodial component of a sentence has expired.
  • Inconsistencies between child witnesses, within normal bounds, do not of themselves render a verdict unreasonable or unsupportable.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 55F
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases:
- Swansson v R (2007) 168 A Crim R 263
- Black v The Queen (1993) 179 CLR 44
- Parker v The Queen (1997) 186 CLR 494
- Dyers v The Queen (2002) 210 CLR 285
- The King v Wilkes (1948) 77 CLR 511
- R v VST (2003) 6 VR 569; [2003] VSCA 35