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Court of Criminal Appeal 25 May 2023

Rassi v R

[2023] NSWCCA 119

Sexual offences
CRIME APPEAL AGAINST CONVICTION JURY IRREGULARITY INDIVIDUAL JUROR DISCHARGED DECISION TO CONTINUE WITH JURY OF 11 WHETHER RISK OF MISCARRIAGE

Citation: Rassi v R [2023] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 25 May 2023
Judges: Beech-Jones CJ at CL; Button J; Hamill J

Background

The appellant was convicted after trial of four counts of sexual offending against a child, with the offending alleged to have occurred between 1995 and 1998. The prosecution relied in part on tendency evidence, which is evidence that a person has a tendency to act in a particular way and that this tendency is relevant to the charges they face.

Two significant issues arose during the trial. First, a juror mistakenly received and read a copy of a judgment dealing with the admissibility of expert evidence. The trial judge discharged that juror but declined to discharge the entire jury, allowing the remaining eleven jurors to continue. Second, the trial judge gave directions to the jury on how to use tendency evidence, and the appellant contended those directions were legally erroneous.

The appellant appealed against his convictions on both grounds.

  • Whether the trial judge's refusal to discharge the entire jury, after one juror read an inadmissible court judgment, occasioned a miscarriage of justice.
  • Whether the tendency evidence directions given to the jury were erroneous, including whether they permitted circular reasoning or misdirected the jury on the standard of proof.
  • How section 161A of the Criminal Procedure Act 1986 (NSW) applies where evidence is adduced both as tendency evidence and as direct proof of a charged element.

Decision

Ground 1: Jury irregularity

The Court upheld this ground. Where a trial judge's discretion to refuse to discharge a jury is challenged on appeal, the appellate court is not limited to reviewing the judge's reasoning process. It must determine independently whether the refusal to discharge created a real risk of a substantial miscarriage of justice. Here, the remaining jurors gave inconsistent accounts of their exposure to the inadmissible judgment, and the Court was not satisfied the directions given could cure the resulting prejudice. The continuation of the trial meant the appellant did not receive a fair trial according to law.

Ground 2: Tendency evidence directions

The Court dismissed this ground. Section 161A of the Criminal Procedure Act 1986 expressly contemplates that evidence may be adduced both as tendency evidence and as proof of an element of a charge. Where evidence serves both purposes, the jury must be clearly directed on the applicable standard of proof, but it does not follow that evidence of charged acts must be excluded from the tendency reasoning altogether.

The appellant's proposed jury directions were rejected. Their logical extension would have required the jury to exclude charged acts from tendency reasoning unless proved beyond reasonable doubt, a result the Court found flatly inconsistent with the terms of section 161A. Beech-Jones CJ, with Button J agreeing, held that it is not circular reasoning for a jury to assess whether a tendency is established and then use that finding, alongside other evidence, to determine whether a charged count is proved beyond reasonable doubt. Hamill J acknowledged a real risk of impermissible circularity where the same evidence is used for two purposes with different standards of proof, but agreed the directions actually given were adequate and did not occasion a miscarriage of justice.

Orders Made

  • Convictions on counts 2 to 5 quashed.
  • Retrial ordered.

Key Takeaways

  • On a jury irregularity ground, the Court of Criminal Appeal must form its own view of whether the refusal to discharge the jury created a real risk of substantial miscarriage of justice, not merely assess whether the trial judge applied correct principles.
  • Inconsistent accounts from jurors about their exposure to an inadmissible document can be sufficient to establish that a miscarriage of justice occurred, particularly where curative directions cannot reliably address the prejudice.
  • Under section 161A of the Criminal Procedure Act 1986, evidence adduced as both tendency evidence and as direct proof of a charged element does not need to be proved beyond reasonable doubt in its tendency-evidence capacity, except in circumstances specified by the section.
  • Proposed jury directions that would effectively require charged acts to be excluded from tendency reasoning unless independently proved beyond reasonable doubt are inconsistent with the express terms of section 161A.
  • A difference in emphasis emerged among the judges: Hamill J flagged a genuine risk of circular reasoning where the same evidence operates under different standards of proof, while Beech-Jones CJ held that tendency reasoning of this kind is not inherently circular, provided the jury understands that the final determination of guilt must be beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 161A
- Evidence Act 1995 (NSW), s 97(1)(b)
- Jury Act 1977 (NSW), s 53B

Cases
- Abdallah v R [2016] NSWCCA 275
- Addo v R (2022) 108 NSWLR 522; [2022] NSWCCA 141
- Beattie v R [2021] NSWCCA 291
- BRC v R (2020) 284 A Crim R 124; [2020] NSWCCA 176
- Carbone v R [2020] NSWCCA 318
- Chamberlain v The Queen [No 2] (1984) 153 CLR 521; [1984] HCA 7
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Gardiner v R [2023] NSWCCA 89
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- JS v R [2022] NSWCCA 145
- Kanbut v R [2022] NSWCCA 259
- Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75
- Phan v R [2018] NSWCCA 225
- R v Brown and Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324