AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 21 September 2022

Vella v R

[2022] NSWCCA 204

Sexual offencesAssault & violence
CRIMINAL APPEAL THREE COMPLAINANTS 19 COUNTS THREE GUILTY VERDICTS ONE NOT GUILTY VERDICT JURY ACT 1977 (NSW), S 73A

Citation: Vella v R [2022] NSWCCA 204
Court: Court of Criminal Appeal
Date: 21 September 2022
Judge(s): Beech-Jones CJ at CL, Price J, Lonergan J

Background

A primary school teacher was convicted on three counts of indecent assault against a former student, NS, who was aged approximately ten to twelve at the time of the alleged offending. The offences occurred between 2000 and 2001 and involved kissing the complainant in a storeroom at school (Count 1), kissing her in the laundry of her home while tutoring her (Count 2), and applying sunscreen to her body including near her vagina during a trip to a theme park (Count 4). The jury returned guilty verdicts on those three counts and a not guilty verdict on a fourth count before being discharged when a juror raised a bullying allegation.

The applicant sought leave to appeal against the three convictions on grounds that included the unreasonableness of the verdicts, a misdirection by the trial judge about how the charges were particularised, and alleged juror bias. The applicant sought to use material produced by a Sheriff's investigation into the bullying allegation to support the bias ground, even though the bullying allegation itself was not pressed.

Legal Issues

  • Whether the convictions on Counts 1, 2 and 4 were unreasonable or could not be supported having regard to the evidence
  • Whether the trial judge's direction that Counts 1 and 2 concerned the first occasion of the alleged offending constituted a miscarriage of justice
  • Whether material produced by the Sheriff's investigation was admissible to demonstrate juror bias, and specifically whether the exclusionary rule concerning jury deliberations applied to evidence obtained through a Sheriff's report under s 73A of the Jury Act 1977 (NSW)
  • Whether evidence that a juror had referred to their own experience of sexual assault, or that one juror perceived another to have "made up their mind on the first day," supported a finding of juror bias

Decision

Ground 1: Unreasonable verdict

The court applied the principles in M v The Queen (1994) 181 CLR 487 and Pell v The Queen (2020) 268 CLR 123, asking whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of guilt. The applicant argued that Count 1 was likely committed outside the charge period and that Count 2 was supported only by evidence of a pattern of conduct rather than a specific incident. Both arguments were rejected. On Count 1, the date range was not an essential ingredient of the offence and the trial was conducted without complaint on the basis that it was not critical (at [43]-[44]). On Count 2, the court was satisfied that NS was professing an actual recollection of particular occasions when the applicant kissed her in the laundry, not merely describing habitual behaviour, noting that the use of the word "would" in her evidence did not change that characterisation in context (at [51]-[52]). The applicant's acquittal on Count 3 was capable of reflecting on NS's reliability, but any residual doubt was one the jury's advantage in observing her give evidence was capable of resolving (at [58]). The court concluded it was reasonably open to the jury to be satisfied beyond reasonable doubt on Counts 1, 2 and 4 (at [61]).

Ground 2: Misdirection on particularisation

The applicant argued the trial judge erred by directing the jury that Counts 1 and 2 related to the first occasion of the alleged offending, rather than leaving the matter to the Crown Prosecutor. The court rejected this characterisation. The trial judge had identified the particularisation problem before the close of the Crown case and clearly communicated the intended direction to both parties; the applicant's counsel did not object and in fact adopted the "first time" framework in their own address to the jury (at [64]). The court held the trial judge was fulfilling the obligation to ensure a fair trial by resolving ambiguity in the indictment, not assisting the Crown (at [68]). Leave to raise this ground was refused (at [71]).

Ground 3(a) and (b): Juror bias and the exclusionary rule

The applicant sought to tender the Sheriff's reports to show that one juror had referred to their own experience of sexual assault during deliberations (Ground 3(b)), and that one juror perceived another to have "made up their mind on the first day" (Ground 3(a)). Beech-Jones CJ at CL held that neither category of evidence was admissible. The court confirmed that the exclusionary rule established in Smith v Western Australia (2014) 250 CLR 473 is preserved by ss 9(1) and 9(2)(a) of the Evidence Act 1995 (NSW), and that nothing in s 73A of the Jury Act abrogates that rule (at [89]-[104]). A Sheriff's investigation may yield admissible evidence where it discloses juror misconduct that is extrinsic to the deliberative process, such as physical coercion or improper external inquiries, but evidence about what jurors said and thought during deliberations remains excluded (at [100]-[103]).

The evidence of a juror drawing on personal experience of sexual assault was held to be squarely within the deliberative process, consistent with standard directions given to juries (at [106]). The evidence that a juror perceived another to have reached an early conclusion was also held inadmissible as it concerned communications between jurors about the effect of the evidence at trial (at [107]). Price J disagreed on the admissibility of the "made up their mind" evidence, finding a juror's pre-judgment could cast a shadow over the administration of justice and fell outside the exclusionary rule (at [133]-[134]). However, Price J held that even if admissible, the evidence fell far short of establishing a reasonable apprehension of partiality: only one juror held that perception, no other juror shared it, and there was no evidence of bias against alleged sex offenders (at [135]-[136]). Lonergan J agreed with the Chief Judge's reasons on Grounds 2 and 3, and independently assessed the record on Ground 1 and found no basis to disturb the verdicts (at [138]-[139]).

Orders Made

  • Leave granted to raise Grounds 1 and 3
  • Leave refused to raise Ground 2
  • Tender of annexures A, B, C and D to the affidavit of Madeleine Schneider sworn 20 October 2021 rejected
  • Appeal dismissed
  • Respondent to notify the Registrar two months in advance of the date fixed for the applicant's further trial
  • Respondent to notify the Registrar within 14 days of completion of remaining proceedings at first instance

Key Takeaways

  • The exclusionary rule concerning jury deliberations, confirmed in Smith v Western Australia (2014) 250 CLR 473 and preserved by the Evidence Act 1995 (NSW), is not abrogated by s 73A of the Jury Act 1977 (NSW): a Sheriff's investigation may produce admissible evidence only where it discloses conduct that is extrinsic to the deliberative process, such as external juror misconduct, not evidence of what jurors communicated and reasoned during deliberations (at [100]-[104]).

  • Evidence that a juror drew on personal experience of sexual assault when evaluating the evidence is inadmissible under the exclusionary rule, as using personal experience in deliberations is precisely what standard jury directions invite (at [106]).

  • By majority, evidence that one juror perceived another to have "made up their mind on the first day" was also inadmissible, as it concerned communications between jurors about the effect of the evidence; and even on Price J's dissenting view as to admissibility, such a perception held by a single juror fell far short of establishing a reasonable apprehension that the jury did not discharge its task impartially (at [107], [135]-[136]).

  • Where a date range in an indictment is not an essential element of an offence and the trial proceeds without complaint on the basis that the range is not critical, a departure from the charge period does not of itself constitute a miscarriage of justice (at [43]-[44]).

  • Complainant evidence expressed using the word "would" is not automatically limited to proof of a pattern of conduct: the Court of Criminal Appeal confirmed that context determines whether such evidence amounts to an actual recollection of specific occasions, sufficient to ground a conviction on a particular count (at [51]-[52]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes Act 1958 (Vic)
- Evidence Act 1995 (NSW)
- Jury Act 1977 (NSW)
- Jury Amendment Act 2004 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021

Cases
- Agelakis v R [2020] NSWCCA 72
- AJ v R [2022] NSWCCA 136
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- KRM v R (2001) 206 CLR 221; [2001] HCA 11
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Makarov v R (No 1) [2008] NSWCCA 291
- Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Petroulias v The Honourable Justice McClellan [2013] NSWCA 434
- R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep)
- R v Czajkowski; R v Shepherd [2002] NSWCCA 530 R v Goodall (2007) 169 A Crim R 440
- R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v SLJ (2010) 24 VR 372; [2010] VSCA 16
- RD (a pseudonym) v R [2021] NSWCCA 94
- REE v The Queen (2010) 203 A Crim R 11; [2010] VSCA 124
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- Smith v The State of Western Australia (2013) 226 A Crim R 541; [2013] WASCA 7
- Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3
- VP v R [2021] NSWCCA 11
- Wade (a pseudonym) v The Queen [2018] VSCA 304
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
- WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58