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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: NSW Court of Criminal Appeal
Date: 21 September 2022
Judge(s): Beech-Jones CJ at CL; Price J; Lonergan J

Background

The applicant was a primary schoolteacher charged with 17 counts of assault with an act of indecency in circumstances of aggravation and two counts of inciting a person under 16 to commit an act of indecency, allegedly committed between 2000 and mid-2002 against three student complainants. The trial judge directed a verdict of not guilty on one count before the jury retired. The jury returned verdicts of guilty on three counts and not guilty on one count, all relating to a single complainant (referred to as NS), before being discharged on a separate bullying allegation by a juror.

The three guilty counts concerned the applicant kissing NS in a classroom storeroom (Count 1), kissing NS in the laundry of her home during tutoring sessions (Count 2), and rubbing sunscreen on the inside of her leg and just outside her vagina prior to a theme park trip (Count 4). NS gave evidence that the kissing in the storeroom occurred "throughout the year" and in the laundry "all the time." The trial judge directed the jury that each of Counts 1 and 2 concerned the first occasion on which those acts occurred.

After the jury was discharged, the Sheriff conducted an inquiry under s 73A of the Jury Act 1977 (NSW) into the bullying allegation. That allegation was not substantiated. The applicant sought to use material from the Sheriff's investigation to argue juror bias, specifically that one juror had disclosed personal experience of sexual assault during deliberations, and that one juror believed another had "made up their mind on the first day."

  • Whether the guilty verdicts on Counts 1, 2 and 4 were unreasonable or unsupported by the evidence
  • Whether the trial judge erred by identifying the "first occasion" of the repeated conduct as the act charged, effectively particularising the counts in a continued course of offending
  • Whether material from the Sheriff's s 73A investigation was rendered inadmissible by the exclusionary rule applying to jury deliberations
  • Whether evidence that a juror disclosed and relied on personal experience of sexual assault during deliberations was admissible
  • Whether evidence that one juror perceived another to have made up their mind from the first day was admissible
  • Whether either of those matters gave rise to a reasonable apprehension of juror bias sufficient to constitute a miscarriage of justice

Decision

Unreasonable verdict (Ground 1): The court unanimously rejected this ground. Any doubt arising from NS's evidence on Count 1, in light of competing evidence, was of a kind the jury's advantage in seeing and hearing her give evidence was capable of resolving. On Count 2, NS's recollection of multiple occasions of kissing did not prevent the jury from being satisfied beyond reasonable doubt in relation to the particular occasion identified by the trial judge. The court also found that correspondence between the applicant and NS supported the Crown's case that he had groomed her, rather than being inconsistent with her account.

Particularisation of counts (Ground 2): The court unanimously dismissed this ground. Where an indictment is ambiguous as to which instance within a course of conduct is charged, a trial judge is obliged to require the Crown to identify the specific offence charged. By directing the jury that Counts 1 and 2 concerned the first occasion of kissing, the trial judge was ensuring a fair trial, not impermissibly assisting the Crown case. No objection had been raised by defence counsel at trial, and the directions given adequately protected the applicant.

Jury deliberations and the exclusionary rule (Ground 3): The court unanimously held that the exclusionary rule, which renders evidence of jury deliberations inadmissible after verdict, is not displaced merely because the material was obtained through a Sheriff's s 73A inquiry. Evidence that a juror disclosed and relied upon personal experience of sexual assault during deliberations fell squarely within the exclusionary rule and was inadmissible, as such disclosures are at the very heart of deliberative processes. On the related question of whether a juror's reported pre-judgment was admissible, Beech-Jones CJ at CL (with whom Lonergan J agreed on the outcome, though Price J dissented on admissibility) held that this too was inadmissible as it concerned the content of deliberations. Price J, in dissent on this point, considered the evidence admissible as going to pre-judgment rather than deliberation, but agreed it did not reach the threshold for a reasonable apprehension of bias in any event. The bias ground was dismissed by all three judges.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The exclusionary rule protecting the secrecy of jury deliberations is not abrogated or modified because evidence of those deliberations was obtained through a Sheriff's investigation under s 73A of the Jury Act 1977 (NSW). The source of the material does not determine its admissibility.
  • Evidence that a juror disclosed personal experience of sexual assault during deliberations, and relied on it in evaluating the evidence, falls within the exclusionary rule and is inadmissible. Sharing individual experiences and assessing evidence in their light is central to jury deliberation.
  • A majority held that evidence of one juror's perception that another had made up their mind from day one also falls within the exclusionary rule, as it concerns the content and quality of deliberations. Price J dissented on admissibility but agreed the evidence fell well short of establishing reasonable apprehension of bias.
  • Where a complainant gives evidence of repeated offending across a period, a trial judge may identify the first occasion of the conduct as the act charged on a particular count. This particularisation is an exercise in ensuring fairness, not an impermissible assistance to the Crown.
  • In dismissing the unreasonable verdict ground, the Court confirmed that credibility and reliability doubts arising from a complainant's evidence about repeated offending, or from an acquittal on a related count, may be resolved by the jury's advantage in seeing and hearing the witness give evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), former ss 61M(1) and 61O(1)
- Evidence Act 1995 (NSW)
- Jury Act 1977 (NSW), s 73A
- Jury Amendment Act 2004 (NSW)

Cases:
- Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- KRM v R (2001) 206 CLR 221; [2001] HCA 11
- Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- Petroulias v The Honourable Justice McClellan [2013] NSWCA 434
- Agelakis v R [2020] NSWCCA 72
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- AJ v R [2022] NSWCCA 136
- RD (a pseudonym) v R [2021] NSWCCA 94
- VP v R [2021] NSWCCA 11
- Makarov v R (No 1) [2008] NSWCCA 291
- R v SLJ (2010) 24 VR 372; [2010] VSCA 16