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Court of Criminal Appeal 23 April 2021

Zheng v R; Li v R; Pan v R

[2021] NSWCCA 78

Also reported as (2021) 104 NSWLR 668
Sexual offences
CRIME JURY J URY DISCRETIONARY DECISION SEXUAL OFFENCES AGGRAVATED SEXUAL ASSAULT IN COMPANY

Citation: Zheng v R; Li v R; Pan v R [2021] NSWCCA 78
Court: Court of Criminal Appeal
Date: 23 April 2021
Judge(s): Bell P at [1]; Button J at [101]; Ierace J at [103]

Background

Three men were convicted at the District Court following a lengthy trial arising from sexual assaults committed against a complainant at an apartment in Wolli Creek on the night of 24 to 25 June 2017. The three accused were sentenced to terms of imprisonment ranging from 7 years to 13 years. One accused was acquitted on one count but convicted on others; the remaining two were convicted on multiple counts of aggravated sexual assault in company, among other offences.

During deliberations, two jurors were discharged by agreement for making inquiries contrary to the Jury Act, reducing the jury from 12 to 10 members. The trial judge then declined applications to discharge a third juror (Juror G2W) and to discharge the entire jury. Verdicts were returned the following day.

All three applicants appealed on the grounds that the trial judge erred in declining to discharge Juror G2W and the jury. Two applicants additionally contended that their convictions for aggravated sexual assault in company were unreasonable and could not be supported by the evidence.

Legal Issues

  • Whether section 53A(1)(c) of the Jury Act 1977 (NSW) is engaged by a mere possibility, reasonable apprehension, or risk that a juror engaged in misconduct, or whether a positive finding of misconduct on the balance of probabilities is required
  • Whether the trial judge erred in finding that Juror G2W had not deliberately lied on oath when examined about an overheard conversation concerning the meaning of a Mandarin expression used in evidence
  • Whether the trial judge erred in declining to discharge Juror G2W under the discretionary power in section 53B of the Jury Act
  • Whether the trial judge erred in declining to discharge the entire jury under section 53C of the Jury Act
  • Whether the verdicts of guilty on counts 5, 6 and 7 were unreasonable and unsupported by the evidence, particularly as to whether there was a joint criminal enterprise and whether the offences were committed "in company"

Decision

Ground 1: Proper construction of section 53A of the Jury Act

The Court held that section 53A(1)(c) requires a two-stage process: first, a finding on the balance of probabilities that the juror has actually engaged in the relevant conduct; and second, an assessment of whether that conduct constitutes an offence or gives rise to a risk of a substantial miscarriage of justice (at [66]-[67]). The word "risk" in section 53A(2)(b) governs the relationship between established conduct and the prospect of miscarriage, not the standard of proof for establishing the conduct itself (at [69]). The applicants' submission that a mere possibility or reasonable apprehension of misconduct suffices was rejected as inconsistent with the plain language of the section (at [65], [70]).

The Court also held that the Briginshaw observations apply when a court is asked to find that a juror has deliberately lied on oath, given the serious and adverse nature of such a conclusion and its potential consequences for the trial (at [72]-[73]). The contrast with section 53B, which expressly uses the language of "reasonable apprehension," reinforced this reading of section 53A (at [71]).

Ground 2: Discharge of Juror G2W under section 53A

The trial judge had examined Juror G2W about an overheard conversation in which he was said to have told another juror the meaning of the expression "lan drunk." The juror denied participating in such a conversation. A court officer corroborated that the conversation occurred. The trial judge accepted the Crown's submissions that the juror had not engaged in misconduct, effectively rejecting the defence submission that he had deliberately lied (at [80]-[84]). The Court of Criminal Appeal found no error in that conclusion, noting that the juror had not been directly confronted with the alleged date of the conversation, nor had the specific words attributed to him been put to him (at [87]). Because the premise for discharge under section 53A, namely a finding of deliberate lying, was not established, the trial judge was not required to proceed to the second stage of the inquiry (at [84]-[85]).

Ground 3: Discretionary discharge of Juror G2W under section 53B

The Court held that the trial judge's refusal to discharge Juror G2W on a discretionary basis under section 53B attracted the review principles in House v The King and was a decision the trial judge was best placed to make by reference to first-hand impressions of the juror. No House v The King error was demonstrated (at [88]).

Ground 4: Discharge of the jury under section 53C

The trial judge was found to have systematically and carefully considered each of the matters advanced in support of the jury discharge application (at [91]-[92]). Many of the arguments fell away once it was determined that Juror G2W had not engaged in misconduct. The foreperson's examination confirmed that the jury's deliberations had not been compromised (at [94]). A repeated rehearsal of trial arguments, combined with a submission that the trial judge had failed to address matters "cumulatively," was insufficient to engage the House v The King principles for interference with a discretionary decision (at [100]).

Ground 5: Unreasonable verdict on counts 5, 6 and 7 (joint criminal enterprise and "in company")

Ierace J (with whom Bell P and Button J agreed) rejected the contention that the evidence was incapable of establishing a joint criminal enterprise or the element of being "in company." The complainant's account, that Mr Pan and Mr Li entered the bedroom within a minute of each other, both already undressed, and immediately commenced sexual intercourse with her without any preliminary conversation, was described as a fundamentally different evidentiary proposition to that considered in cases such as R v ITA (at [136]). That evidence was capable of eliminating the reasonable inference of coincidental independent intention and instead compelling an inference of prior agreement (at [137]). The argument between the two men as to who should proceed first was not inconsistent with a joint criminal enterprise, as it concerned only priority, not the existence of any shared purpose (at [138]).

Orders Made

  • Appeals dismissed.

Key Takeaways

  • Section 53A(1)(c) of the Jury Act 1977 (NSW) operates in two distinct stages: the court must first find on the balance of probabilities that the relevant conduct occurred, and only then assess whether that conduct gives rise to a risk of a substantial miscarriage of justice. A mere possibility or reasonable apprehension of misconduct does not suffice to engage the mandatory discharge obligation (at [65]-[70]).

  • When a juror is alleged to have deliberately lied on oath, the Briginshaw observations about the gravity of serious adverse findings apply to the balance of probabilities standard, given the significant consequences of such a conclusion for both the juror and the trial (at [72]-[73]).

  • Discretionary decisions to refuse juror discharge under section 53B, and to refuse jury discharge under section 53C, attract the House v The King standard of appellate review. The trial judge's first-hand impressions of the juror and of the overall conduct of deliberations are given significant weight (at [88], [98]).

  • Ex tempore rulings on jury discharge applications made in the pressure of a running trial are to be read by appellate courts with proper consciousness of the conditions under which busy trial courts operate. A decision need not be expressly stated in every detail if it is apparent from the overall structure of the judge's reasons (at [81]-[83]).

  • For the offence of aggravated sexual assault "in company," a common purpose can be inferred from the circumstances of the assault itself. Where two men entered a bedroom within a very short time of each other, already undressed, and immediately engaged in sexual intercourse with the complainant without any communication with her, the jury was entitled to infer a prior agreement rather than a coincidence of independent intentions (at [136]-[137]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61I, 61J
- Criminal Appeal Act 1912 (NSW) s 7(2)
- Jury Act 1977 (NSW) ss 22, 53A, 53B, 53C, 55DA, 68C

Cases
- Barber v R; Zraika v R [2016] NSWCCA 125
- Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
- Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Dixon v R [2019] NSWCCA 85
- FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182
- Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226
- Helton v Allen (1940) 63 CLR 691; [1940] HCA 20
- Hoang v R (2018) 98 NSWLR 406; [2018] NSWCCA 166
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Karout v R [2019] NSWCCA 253
- Markou v The Queen (2012) 221 A Crim R 48; [2012] NSWCCA 64
- Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
- R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174
- R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135
- R v Majors (1991) 27 NSWLR 624
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180
- Salameh v The Queen (1991) 55 A Crim R 384
- Smith v The Queen (2010) 79 NSWLR 675; [2010] NSWCCA 325
- State Government Insurance Commission v Stevens Brothers Pty Ltd (1984) 154 CLR 552; [1984] HCA 32
- Trieu v R [2012] NSWCCA 169
- Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52