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Court of Criminal Appeal 4 December 2015

Isika v R

[2015] NSWCCA 304

Sexual offences
CRIMINAL LAW INDECENT ASSAULT ACT OF INDECENCY APPEAL AGAINST CONVICTION 179 CLR 44

Citation: Isika v R [2015] NSWCCA 304
Court: Court of Criminal Appeal, NSW
Date: 4 December 2015
Judge(s): Macfarlan JA (leading judgment); Hall J and Bellew J (agreeing)

Background

The appellant was tried in the District Court in June 2014 on five counts involving alleged sexual offences against a complainant. The offences were alleged to have occurred on two separate dates in January 2010. The jury acquitted him on three counts relating to events on 16 January 2010 and convicted him on two counts (indecent assault and an act of indecency) relating to events on 25 to 26 January 2010.

During deliberations, the jury sent the trial judge a note containing six questions. The sixth asked: "What happens if we cannot agree?" The judge's response informed the jury that he would tell them "to go away and try harder," adding that trials are "very costly to run and very time consuming" and that a discharge would require "the whole process" to begin again.

The appellant appealed his convictions on two grounds: first, that the judge's response to the jury's question caused a miscarriage of justice; and second, that the convictions were unreasonable and inconsistent with the jury's acquittals on the other counts. The Court determined the appeal on the first ground only, rendering the second ground unnecessary to consider.

  • Whether the trial judge's response to the jury's question about non-agreement placed undue pressure on jurors to reach a verdict, contrary to the principles in Black v R (1993) 179 CLR 44
  • Whether the response encouraged individual jurors to compromise their genuine views in order to achieve a collective verdict
  • Whether leave was required to raise this ground of appeal, given that no objection was taken at trial
  • Whether, if leave were granted, the error warranted quashing the convictions and ordering a new trial

Decision

The Court held that the second part of the trial judge's response was impermissible. The reference to the cost and time of trials, and the prospect of having to "go through the whole process again," was apt to impose pressure on individual jurors to join the majority rather than maintain their own genuine assessment of the evidence. This is directly contrary to the principles established by the High Court in Black v R, which made clear that inconvenience and expense must not be weighed against justice, and that any suggestion that a minority juror should submit to majority views is antithetical to the jury process.

Macfarlan JA acknowledged that the first part of the response (up to the word "deadlocked") was unobjectionable, and noted that, strictly speaking, the jury had not yet indicated it was unable to agree. Nevertheless, a response along the lines of the standard direction approved in Black v R would have been both appropriate and helpful. What the judge actually said beyond that point carried the implicit message that jury members would not be performing their duties if they failed to agree on verdicts.

Because no objection was raised at trial, the appellant required leave to advance the ground of appeal. The Court granted leave, finding that the error was of a fundamental character and occurred at a critical stage of deliberations, such that the appellant had lost a real chance of acquittal. The fact that the jury here had to consider multiple counts and returned mixed verdicts heightened the concern that some jurors may have compromised their views in response to the impugned direction. The "proviso" under s 6 of the Criminal Appeal Act 1912 (NSW), which allows an appeal to be dismissed where no substantial miscarriage of justice has occurred, was found to be inapplicable.

Orders Made

  • The appellant's convictions on counts four and five of the Indictment issued in June 2014 were quashed.
  • A new trial was ordered on those counts.

Key Takeaways

  • A trial judge's direction that emphasises the cost and inconvenience of a hung jury is impermissible, as it places undue pressure on individual jurors to abandon their genuine views in favour of a collective verdict.
  • Under Black v R, jury directions addressing the prospect of non-agreement must carefully avoid anything that could be understood as encouraging a minority juror to submit democratically to the majority.
  • Where a fundamental misdirection occurs at a critical stage of jury deliberations, the Court of Criminal Appeal may grant leave to raise the point on appeal even where no objection was taken at trial.
  • The proviso under s 6 of the Criminal Appeal Act 1912 (NSW) does not apply where there is a real possibility that the misdirection caused jurors to compromise their genuine views.
  • Mixed verdicts across multiple counts can heighten, rather than diminish, the risk that an improper direction has caused a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61L, 61N
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4

Cases
- Black v R [1993] HCA 71; 179 CLR 44
- ARS v R [2011] NSWCCA 266
- R v TK [2009] NSWCCA 151; 74 NSWLR 299
- Timbery v The Queen [2007] NSWCCA 355; 180 A Crim R 232
- R v Accused (CA 87/88) (1988) 2 NZLR 46; 3 CRNZ 301
- R v Walhein (1952) 36 Cr App R 167