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Court of Criminal Appeal 15 September 2021

Gage v R

[2021] NSWCCA 222

Sexual offences
CRIME APPEAL CONVICTION UNREASONABLE VERDICT INCONSISTENT VERDICTS MULTIPLE COUNTS OF SEXUAL OFFENCES

Citation: Gage v R [2021] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 15 September 2021
Judges: Bathurst CJ, Beech-Jones J, Fagan J

Background

The applicant was tried on multiple counts of sexual offences against a single complainant, with the charges turning significantly on the issues of consent and knowledge of lack of consent. The jury acquitted on counts 1 to 3 and convicted on counts 4 to 9. Before delivering its verdicts on the later counts, the jury sent a note to the trial judge indicating it was having difficulty with consent.

The note included the sentence: "Some in the group are not satisfied beyond reasonable doubt that consent was granted." That phrasing, on its face, suggested some jurors may have believed it was for the accused to prove beyond reasonable doubt that the complainant had consented, rather than for the Crown to prove the absence of consent. The trial judge, after discussion with counsel, declined to give a specific redirection on the burden of proof, instead referring the jury back to its written directions and inviting a further note if a legal issue remained.

The applicant sought leave to appeal against conviction on two grounds: that the verdicts were unreasonable or inconsistent, and that the trial judge's failure to correct the apparent reversal of onus in the jury note caused a miscarriage of justice.

  • Whether the convictions on counts 4 to 9 were unreasonable, or whether the different verdicts across the counts were inconsistent in a legally impermissible way (Ground 1)
  • Whether the trial judge's failure to give a specific redirection on the burden of proof, in response to a jury note that appeared on its face to reverse the onus, caused a substantial miscarriage of justice (Ground 2)

Decision

The Court was unanimous in rejecting Ground 1. Fagan J (with Bathurst CJ and Beech-Jones J agreeing) found that the acquittals on counts 1 to 3 could be rationally explained by reference to differences in the evidence relating to each count, without needing to impugn the complainant's credibility. The Court declined to treat the jury note as an "objective indication" of why the jury differentiated its verdicts; attempting to divine jury reasoning from a single sentence in a note was regarded as an impermissible and incorrect approach.

On Ground 2, the Court divided. Fagan J would have dismissed the appeal, concluding it was unlikely in the extreme that any juror had applied a reversed onus. He placed weight on the fact that the trial judge had repeatedly and specifically directed the jury that the Crown bore the burden of proving each element of the offences, including absence of consent, and that experienced trial counsel had not objected to the course taken.

Bathurst CJ reached the opposite conclusion, albeit with some hesitation. His Honour identified four reasons why the failure to redirect specifically on the onus of proof carried a real risk of substantial miscarriage of justice: the note's last sentence reversed the onus on its face; it arose in the context of "vast disagreement" on consent; the importance of the onus question was highlighted by the mixed verdicts; and the trial judge, when recalling the jury, had read out the note without correcting it and had merely referred back to earlier directions, which was insufficient to eliminate the risk that at least one juror proceeded on a wrong understanding of the burden of proof.

Beech-Jones J agreed with Bathurst CJ's conclusion and reasoning, providing the majority on Ground 2. The majority held that the applicant had been deprived of a real chance of acquittal and that a miscarriage of justice had occurred. A retrial was ordered.

Orders Made

The orders recorded in the provided text reflect only Fagan J's proposed orders (leave to appeal granted, appeal dismissed). However, based on the majority reasoning of Bathurst CJ and Beech-Jones J, the Court's operative orders were:

  • Leave to appeal granted
  • Appeal allowed (Ground 2)
  • Retrial ordered

Note: The formal orders as extracted from the provided text record only Fagan J's proposed disposition. The majority outcome (retrial ordered) is drawn from the reasons of Bathurst CJ and Beech-Jones J as set out in the judgment.

Key Takeaways

  • A jury note that, on its face, reverses the onus of proof on an element of an offence is a serious indicator that redirection may be required, even where the trial judge has already given written directions on the burden of proof.
  • Where a jury note surfaces during deliberations and reveals potential confusion about a fundamental legal principle such as the onus of proof, referring the jury back to earlier written directions without specific correction may be insufficient to cure the risk of a miscarriage of justice.
  • Experienced trial counsel's failure to seek a further direction is a relevant factor, but the Court of Criminal Appeal confirmed it is not determinative when assessing whether a substantial miscarriage of justice has occurred.
  • The Court of Criminal Appeal declined to treat a single sentence in a jury note as capable of establishing how the jury reasoned to reach its verdicts, or as an "objective indication" supporting an inconsistent verdicts argument under Ground 1.
  • Under s 6(1) of the Criminal Appeal Act 1912 (NSW), the test for miscarriage of justice does not require the appellate court to conclude that the wrong verdict was inevitable; it is sufficient that the accused was deprived of a real chance of acquittal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61I, 61L
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1), 8(1)
- Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Burrell v R [2007] NSWCCA 65
- Caleo v R [2021] NSWCCA 179
- GBF v The Queen [2020] HCA 40
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Phan v R [2018] NSWCCA 225
- R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Smith v The Queen (2015) 255 CLR 161; [2015] HCA 27
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- WX v R (2020) NSWLR 467; [2020] NSWCCA 142