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Court of Criminal Appeal 14 July 2021

KE v R

[2021] NSWCCA 119

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPEAL ALLOWED RETRIAL ORDERED

Citation: KE v R [2021] NSWCCA 119
Court: Court of Criminal Appeal, New South Wales
Date: 14 July 2021
Judge(s): Garling J, Beech-Jones J, N Adams J

Background

The appellant was convicted by jury of four counts of aggravated sexual intercourse with a child aged between 14 and 16 whilst that child was under his authority, contrary to s 66C(4) of the Crimes Act 1900. The jury acquitted him on the remaining three counts on the indictment. An aggregate sentence of 12 years imprisonment with a non-parole period of 8 years and 6 months was imposed.

The offences concerned allegations of cunnilingus by the appellant, then aged 30, on a 14-year-old female complainant who lived in the same household. DNA evidence was excluded under s 137 of the Evidence Act 1995 on the basis that its probative value, if any, was outweighed by the danger of unfair prejudice. Medical evidence was also not led by the Crown.

During the trial, the jury deliberated for an extended period. A juror sent a note indicating difficulty reaching agreement. The trial judge ultimately accepted a majority verdict. The appellant challenged his conviction on the grounds that the jury management process was flawed in two significant respects.

  • Whether the trial judge's intervention during defence counsel's closing address, and his direction to the jury arising from it, occasioned a miscarriage of justice (Ground 1).
  • Whether the trial miscarried by reason of the trial judge's refusal to give a Black direction (a direction addressing what jurors should do if they cannot reach a unanimous verdict) (Ground 2(a)).
  • Whether the trial miscarried because the judge permitted a majority verdict without properly considering, under s 55F(2)(a) of the Jury Act 1977, whether that course was reasonable having regard to the nature and complexity of the proceedings (Ground 2(b)).
  • Whether the aggregate sentence was manifestly excessive (Ground 3).

Decision

Ground 1 was resolved in the appellant's favour, with all three judges agreeing. Defence counsel had highlighted to the jury the absence of both DNA and medical evidence. The jury subsequently sent a note asking why that evidence had not been provided. The Court found that once defence counsel made submissions implying that the absence of evidence undermined the Crown case, medical evidence of the "neutral" kind (showing an examination occurred but found no injury) became relevant and admissible to counter that inference. The intervention by the trial judge and the consequent direction were found to have occasioned a miscarriage of justice.

Ground 2(a) concerned the failure to give a Black direction. A Black direction (from Black v The Queen (1993) 179 CLR 44) is a direction given to a deadlocked jury that explains the importance of each juror forming their own view, while encouraging them to reason together and, if possible, reach a unanimous verdict. The Court found that such a direction was at least highly desirable in the circumstances, particularly after a juror's note signalled difficulty. However, the judges expressed differing views on whether the failure to give a Black direction was, of itself, a legal error.

Ground 2(b) was decisive for all three judges. Section 55F(2)(a) of the Jury Act 1977 requires a trial judge to consider whether allowing a majority verdict is reasonable having regard to the nature and complexity of the proceedings before taking that step. The trial judge treated the power to accept a majority verdict as automatically enlivened once the minimum 8-hour deliberation period had expired, and immediately called the jury in. The Court found the judge did not address the statutory test at all. Critically, no proper Black direction had been given, the jury had not communicated any new difficulties since the individual juror's note, and other jurors had indicated they had not yet made their "full decision." This failure to address s 55F(2)(a) amounted to a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act 1912, as confirmed by GBF v The Queen (2020) 94 ALJR 1037.

The Court allowed the appeal, quashed the guilty verdicts, and ordered a retrial. No determination was made on the severity of sentence ground given the retrial order.

Orders Made

  • Leave to appeal granted.
  • Verdicts of guilty on the 4th to 7th counts of the Amended Indictment quashed.
  • The appellant to be retried.
  • Proceedings listed before the District Court on Friday 23 July 2021 for further directions.

Key Takeaways

  • The Jury Act 1977 s 55F(2)(a) imposes a substantive obligation on trial judges: before accepting a majority verdict, the judge must actively consider whether doing so is reasonable in light of the nature and complexity of the proceedings. Treating the expiry of the minimum 8-hour deliberation period as automatically sufficient does not satisfy this test.

  • A Black direction (also known as a perseverance direction) is not merely a formality. Where a juror's note indicates deadlock or difficulty, the failure to give a proper Black direction is itself a matter of "real significance" when considering whether it is reasonable to proceed to a majority verdict.

  • Where defence counsel in closing address invites the jury to draw an inference adverse to the Crown from the absence of medical or forensic evidence, that evidence can become relevant and admissible to rebut the implied suggestion, even if it would otherwise be characterised as "neutral."

  • The Court of Criminal Appeal confirmed that describing medical evidence as "neutral" (where an examination found no injury) remains an appropriate and longstanding direction in NSW. Such evidence can be relevant to prevent jury speculation and to contextualise the Crown's investigation.

  • A miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act 1912 can arise from procedural failures and irregularities, not only from legal error in a strict sense, as affirmed by reference to the High Court's approach in GBF v The Queen.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(4)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c), 6(1)
- Evidence Act 1995 (NSW), ss 55(1), 137
- Jury Act 1977 (NSW), s 55F(2)(a)

Cases:
- Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
- GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
- Adams v R [2018] NSWCCA 303
- CA v R [2019] NSWCCA 166
- Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541
- Hanna v R [2008] NSWCCA 173; (2008) 191 A Crim R 302
- R v Dann [2000] NSWCCA 185
- R v KE [2019] NSWDC 349
- Regina v RTB [2002] NSWCCA 104
- Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74
- RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100
- Tabalbag v R [2016] NSWCCA 48; (2016) 258 A Crim R 240