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Court of Criminal Appeal 7 July 2021

Bourke (a pseudonym) v R

[2021] NSWCCA 145

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION TRIAL BY JURY DIRECTIONS TO JURY NECESSITY FOR ORAL DIRECTIONS

Citation: Bourke (a pseudonym) v R [2021] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 7 July 2021
Judge(s): Garling J, Beech-Jones J, N Adams J

Background

The appellant (referred to throughout proceedings by a pseudonym to protect the identity of victims) was found guilty by a jury in the District Court of 11 offences against one complainant, including multiple counts of sexual assault. He was subsequently sentenced to an aggregate non-parole period of 12 years, with an additional term of 4 years and 6 months.

At trial, the presiding judge provided the jury with written documents in the form of question trails. These question trails were not orally explained to the jury during the summing up. Instead, the jury was invited to retire during the summing up and read the written directions themselves.

The appellant sought leave to appeal against both his convictions and sentence. During the appeal hearing, he was granted an adjournment to file amended grounds of appeal, which ultimately focused heavily on the adequacy of the jury directions.

  • Whether written question trails provided to the jury, without accompanying oral directions, reversed or diminished the onus of proof
  • Whether the trial judge erred by inviting the jury to retire during the summing up to read written question trails, without speaking to their contents
  • Whether the trial judge erred by failing to identify the evidence supporting each count when using the question trails
  • Whether the written directions, unaccompanied by oral explanation, diverted the jury from the real issues in the trial
  • Whether the trial judge adequately summed up the case for the accused

Decision

Shortly after the appeal hearing was adjourned, the Court of Criminal Appeal (differently constituted) delivered its decision in Trevascus v R [2021] NSWCCA 104, which directly addressed the same practice by the same trial judge. In that case, the Court held that no statutory provision, including section 55B of the Jury Act, abrogates the common law obligation on a trial judge to give oral directions. Providing written directions and having the jury read them silently, without any accompanying oral explanation, was held to be an error.

Trevascus established that oral directions remain obligatory even where written directions are provided. At minimum, those oral directions must include reading and explaining the written directions in their entirety, differentiating between elements in issue and those not in issue, identifying evidence relevant to contested elements, and emphasising to the jury that written directions are not a substitute for oral directions.

Applying Trevascus, the Court of Criminal Appeal in this case found that grounds A2, A3, and A4 were made out. The Crown conceded that ground A4 was established and that the convictions could not stand. The remaining grounds of appeal were not considered, as the established errors were sufficient to warrant quashing the convictions and ordering a retrial.

The Court also quashed the convictions relating to a second complainant (which had arisen from a post-verdict guilty plea and were not before the jury), as well as the two offences dealt with under section 166 of the Criminal Procedure Act 1986. Those convictions were quashed because they had been entered consequent upon the legally flawed jury verdicts. Allowing them to stand would have prejudiced the appellant for succeeding on appeal and would have unduly constrained sentencing in the event of conviction at a retrial.

Orders Made

  • Leave to appeal granted
  • Convictions on Counts 1 to 11 of the Indictment dated 16 September 2019 quashed
  • Other convictions entered on 19 September 2019 quashed
  • Aggregate sentence imposed on 14 February 2020 quashed
  • Retrial ordered
  • Proceedings listed in the District Court of NSW at the Downing Centre on 16 July 2021

Key Takeaways

  • The Court of Criminal Appeal confirmed that the common law obligation to give oral directions to a jury is not abrogated by any statutory provision permitting written directions, including section 55B of the Jury Act.
  • Written question trails provided to a jury, without any oral explanation during the summing up, constitute an error of law sufficient to warrant the quashing of convictions and the ordering of a retrial.
  • Where written directions are used, oral directions must at minimum cover: reading and explaining the written content in full, distinguishing contested from uncontested elements, identifying evidence relevant to contested elements, and making clear that written directions are not a substitute for oral directions.
  • Allowing the jury to retire during the summing up to read written question trails, rather than having the trial judge speak to them, is a practice that runs contrary to the established common law obligation.
  • Convictions entered consequent upon legally flawed jury verdicts, including post-verdict guilty pleas incorporated into an aggregate sentence, are liable to be quashed alongside the primary convictions where allowing them to stand would prejudice the appellant or unduly constrain future sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Jury Act 1977 (NSW), s 55B (referenced in judgment)

Cases:
- Trevascus v R [2021] NSWCCA 104
- R v Bourke (a pseudonym) [2020] NSWDC 10