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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, NSW
Date: 23 April 2021
Judge(s): Bell P; Button J; Ierace J

Background

Three co-accused were tried in the District Court on eight counts relating to sexual offences committed against a complainant at a Wolli Creek apartment in June 2017. Following a lengthy trial, all three were convicted on various counts and received substantial custodial sentences ranging from seven to thirteen years.

During the trial, a complication arose involving juror conduct. A court officer reported overhearing a juror (referred to as Juror G2W) discussing with another juror the meaning of a Mandarin expression ("lan drunk") that had arisen in the evidence of one of the accused. When examined on oath by the trial judge, Juror G2W denied having such a conversation. The defence applied to have Juror G2W discharged for misconduct and, in the alternative, sought discharge of the entire jury.

The trial judge, in an ex tempore (oral) judgment, declined to discharge the juror or the jury. Two other jurors were separately discharged by agreement, reducing the jury from twelve to ten members before the verdicts were returned. The three accused appealed, challenging the juror-related rulings and also arguing that certain "in company" aggravated sexual assault verdicts were unreasonable and unsupported by the evidence.

  • Whether the trial judge erred in refusing to discharge Juror G2W under the mandatory misconduct provision in s 53A of the Jury Act 1977 (NSW)
  • Whether the trial judge erred in refusing to discharge Juror G2W under the discretionary provision in s 53B of the Jury Act
  • Whether the trial judge erred in refusing to discharge the entire jury under s 53C of the Jury Act, which applies where continuing the trial with the remaining jurors would risk a substantial miscarriage of justice
  • Whether the verdicts against two of the accused for aggravated sexual assault "in company" were unreasonable, in the sense that there was insufficient evidence to support the circumstance of aggravation

Decision

Juror misconduct under s 53A: The Court held that s 53A is engaged only where the court finds, on the balance of probabilities, that a juror has actually engaged in misconduct. A mere possibility, or a reasonable apprehension, that misconduct may have occurred is not sufficient to trigger mandatory discharge. Reading the trial judge's ex tempore reasons as a whole, the Court found that her Honour had in fact rejected the submission that Juror G2W deliberately lied when examined. The Court noted that ex tempore judgments should not be held to the same standard of completeness as reserved judgments, provided genuine consideration of the arguments is evident.

Discretionary discharge of Juror G2W under s 53B: No error of the kind identified in House v The King (1936) 55 CLR 499 was demonstrated in the trial judge's exercise of her discretion. The Court observed that this type of credibility-based assessment is one for which the trial judge, having directly observed the juror, was best placed to decide. An appellate court will not interfere with such a discretionary decision absent a demonstrated error of principle.

Discharge of the jury under s 53C: Similarly, no House v The King error was identified in the trial judge's refusal to discharge the jury. Because the foundation for the s 53C application rested on the premise that Juror G2W had committed misconduct, and that premise had not been established, the discretionary decision to keep the jury empanelled was upheld.

Unreasonable verdicts on the "in company" counts: The Court found that the evidence was compelling. The complainant's account described two of the accused entering the bedroom within a minute of each other, already undressed, and immediately engaging in sexual intercourse with her, one placing his penis in her mouth without a word. The Court held this evidence was quite capable of eliminating the contrary inference that the two men had independently and coincidentally formed the same intention. The jury could comfortably infer a prior agreement to have sexual intercourse with the complainant without her consent, or recklessly as to consent, and in each other's presence. That was sufficient to establish the alleged common purpose for both the joint criminal enterprise and the "in company" circumstance of aggravation.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 53A of the Jury Act 1977 (NSW), mandatory discharge of a juror for misconduct requires a finding, on the balance of probabilities, that the juror has actually engaged in misconduct. A possibility or reasonable apprehension of misconduct does not meet the threshold.

  • Where a trial judge delivers an ex tempore ruling on a juror application, appellate courts will not criticise the absence of detailed explicit findings, provided the reasons as a whole show genuine engagement with the arguments presented.

  • Discretionary decisions to discharge a juror under s 53B, or to discharge a jury under s 53C, will not be disturbed on appeal unless House v The King error is demonstrated. Credibility assessments of jurors examined in court are particularly within the province of the trial judge.

  • To establish the "in company" circumstance of aggravation in an aggravated sexual assault charge, the prosecution must prove a common purpose or joint criminal enterprise, not merely that offenders happened to be present at the same time. The evidence must be capable of excluding the inference of mere coincidence.

  • Sufficient evidence existed in this case to support the "in company" verdicts where the complainant described two co-accused entering the room moments apart, already undressed, and immediately committing acts of sexual intercourse, supporting an inference of a prior agreement rather than independent, coincidental conduct.

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
- 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
- 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