AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 2 December 2024

Profilio v R

[2024] NSWCCA 219

Sexual offences

Citation: Profilio v R [2024] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 2 December 2024
Judges: Bell CJ at [1]; Davies J at [6]; Sweeney J at [7]

Background

The applicant stood trial in the Sydney District Court in November 2023 on two counts of sexual intercourse without consent and one count of affray. The jury convicted him on count 1 (penile-vaginal intercourse) and the affray, and acquitted him on count 2 (penile-anal intercourse). He was sentenced to seven years imprisonment with a non-parole period of four years and nine months on count 1.

Both sexual assault counts related to a single incident on 14 February 2021. The Crown alleged the complainant was unconscious or blacked out and therefore unable to, or did not, consent to the acts, and that the applicant knew she did not consent. The applicant accepted that penile-vaginal intercourse occurred but maintained it was consensual; he denied that penile-anal intercourse took place at all.

During deliberations, the jury asked the trial judge about what would happen if they could not reach a unanimous decision. The trial judge directed them that they had no alternative but to reach unanimous verdicts, without informing them of the possibility of a majority verdict or of discharge. The applicant sought leave to appeal against his conviction on count 1 only.

  • Whether the trial judge erred by directing the jury it had no alternative but to reach unanimous verdicts, without explaining the possibility of discharge or a majority verdict (a "Black direction" issue)
  • Whether the trial judge erred by failing to give a "Markuleski direction," which would have specifically addressed how the jury might reason consistently in returning different verdicts on the two counts
  • Whether the guilty verdict on count 1 was unreasonable in light of the acquittal on count 2
  • Whether the guilty verdict on count 1 was unreasonable having regard to the evidence generally

Decision

Ground 1 (Jury direction on disagreement): Appeal allowed. When the jury asked "What are the potential next steps if we do not reach a unanimous decision?", the trial judge answered that jurors must deliberate "for whatever time it takes" and "must reach a unanimous verdict whatever it is." This omitted any reference to the possibility of the jury being discharged or, under section 55F of the Jury Act 1977 (NSW), returning a majority verdict. The Court of Criminal Appeal found this incomplete answer was apt to mislead jurors into believing their deliberations must continue indefinitely until unanimity was achieved.

Bell CJ emphasised that the direction, combined with correct statements that jurors must give effect to their own view of the evidence and return a "true verdict," created a real risk that some jurors may have abandoned their genuine views and acceded to others simply to bring deliberations to an end. The Court characterised this as a fundamental failure to observe the requirements of the criminal process, constituting a miscarriage of justice.

Ground 2 (Markuleski direction): Leave refused. The Court accepted it would have been desirable for the trial judge to direct the jury on how it could rationally reach different verdicts on the two counts. However, the evidence supporting each count was sufficiently distinct that the jury was well placed to differentiate between them. The applicant failed to demonstrate he lost a real chance of acquittal as a result of the omission.

Grounds 3 and 4 (Unreasonable verdict): Leave granted but grounds not made out. The Court conducted its own independent assessment of the evidence on count 1. All three judges were satisfied that the evidence, including the complainant's credible account, her early complaint made in a distressed state to her mother, the physical condition of her clothing, and witness accounts of admissions made by the applicant, did not give rise to a reasonable doubt as to guilt on count 1. The mixed verdict was explicable on the evidence and did not render the conviction on count 1 unreasonable.

Orders Made

  • Leave granted to rely on ground 1
  • Leave refused to rely on ground 2
  • Leave granted to appeal on grounds 3 and 4
  • Appeal allowed on ground 1
  • Conviction on count 1 quashed
  • New trial ordered on count 1
  • Matter listed for mention in the District Court at Sydney on 13 December 2024

Key Takeaways

  • A direction that jurors "must reach a unanimous verdict whatever it is" and should deliberate "for whatever time it takes" constitutes a fundamental misdirection where it omits any reference to the possibility of discharge or a majority verdict, and a conviction resulting from that direction will be set aside as a miscarriage of justice.
  • The requirements established in Black v The Queen (1993) 179 CLR 44 remain strictly applied: when a jury signals potential disagreement, the trial judge must inform jurors of all available outcomes, not only continued deliberation toward unanimity.
  • Failure to give a Markuleski direction is not automatically fatal to a conviction. Where the evidence supporting each count is sufficiently distinct and the jury could rationally differentiate between them, the omission will not establish a miscarriage of justice without proof that a real chance of acquittal was lost.
  • An appellate court conducting its own independent review under M v The Queen (1994) 181 CLR 487 may be satisfied beyond reasonable doubt of an applicant's guilt even where the conviction is quashed on a separate procedural ground, allowing a new trial rather than an acquittal to be ordered.
  • In cases involving mixed verdicts on factually related counts, an acquittal on one count does not automatically render a conviction on another count unreasonable, provided the evidence on each count discloses a rational basis for differentiation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 578A
- Criminal Appeal Act 1912 (NSW)
- Jury Act 1977 (NSW), s 55F

Cases:
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Obeid v R [2017] NSWCCA 221
- Joyce (a pseudonym) v R (2019) 99 NSWLR 562; [2019] NSWCCA 187 (now known as O'Brien v R)
- Keen v R [2020] NSWCCA 59
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Zhou v R [2021] NSWCCA 278
- Haile v R [2022] NSWCCA 71
- Tomlinson v R [2022] NSWCCA 16
- AK v R [2022] NSWCCA 175
- Saunders v R [2022] NSWCCA 273