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Court of Criminal Appeal 27 August 2025

Seo v R

[2025] NSWCCA 131

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION

Citation: Seo v R [2025] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 27 August 2025
Judges: Price AJA (primary judgment); Cavanagh J and Yehia J (agreeing)

Background

The applicant was convicted by jury in the District Court of two sexual offences against a former partner, arising from an incident on 22 December 2020. The offences were non-consensual sexual touching (Count 1) and sexual intercourse without consent (Count 2). He was sentenced to an aggregate term of three years and six months' imprisonment, with a non-parole period of two years.

This was the applicant's second trial on these counts. In a first trial in 2022, the jury acquitted him of two other counts and could not reach a verdict on the two counts that became the subject of the second trial. He did not appeal against his sentence.

Two irregularities arose during jury deliberations in the second trial. First, the jury was accidentally provided with portions of the trial transcript recording discussions held in the absence of the jury, which included references to the allegations on which he had previously been acquitted. Second, a juror was discharged for making an inquiry outside the courtroom, and the remaining eleven jurors returned majority guilty verdicts less than an hour later.

  • Whether providing the jury with a transcript containing prejudicial "in-chambers" discussions constituted a miscarriage of justice (Ground 1(a))
  • Whether the trial judge's direction to put that material out of their minds was a sufficient remedy
  • Whether continuing the trial after the discharge of a juror who could reasonably be inferred to have been a dissentient gave rise to a substantial miscarriage of justice (Ground 1(b))
  • Whether the principles governing discharge of a juror for reasons other than misconduct apply equally when a juror is discharged for misconduct under s 53A of the Jury Act 1977 (NSW)

Decision

Ground 1(a): Prejudicial transcript provided to jury

The jury was mistakenly given portions of the transcript recording discussions between the trial judge and counsel in the absence of the jury. Those discussions included references to allegations from the first trial on which the applicant had been acquitted. When the jury raised this, the trial judge directed them to put the material out of their minds. No application was made by either the Solicitor Advocate or the applicant's instructing solicitor (who appeared in the absence of trial counsel) for any further direction or for the jury to be discharged.

The Court held that a simple "put it out of your minds" direction was insufficient to address the unfair prejudice. What the trial judge ought to have provided was a clear direction that the applicant had been acquitted of the earlier allegations, that the jury must give full effect to those acquittals, that they must approach their task without regard to those allegations, and that the applicant had no prior criminal convictions. The good character direction given during the summing up should also have been repeated. The Court applied Brawn v The King [2025] HCA 20 and found that a miscarriage of justice had been established on this ground.

Ground 1(b): Discharge of a dissentient juror

Juror H was discharged on 7 December 2023 after making an inquiry outside the courtroom, a form of juror misconduct under s 53A of the Jury Act 1977 (NSW). The remaining eleven jurors returned majority guilty verdicts only 57 minutes later. No application was made by either party to discharge the jury following Juror H's discharge.

The Court held that the timing of the verdicts permitted a reasonable inference that Juror H and at least one other juror had been holding out for acquittal. Drawing on the framework from BG v R [2012] NSWCCA 139, which identifies categories of cases based on how a discharged juror could be expected to have voted, the Court found this case fell into the second category: one where it could be inferred prospectively that the discharged juror would have voted for acquittal. The Crown argued that the BG framework should not apply where a juror is discharged for misconduct, but the Court rejected that submission. The overriding principle remains the maintenance of a fair trial, regardless of the reason for discharge. The trial judge ought to have discharged the entire jury after Juror H's testimony and discharge; failing to do so gave rise to a substantial miscarriage of justice.

Orders Made

  • Leave to appeal against the convictions granted
  • Appeal allowed
  • Convictions and sentence quashed
  • Retrial ordered
  • Matter remitted to the District Court at Sydney for mention on 5 September 2025

Key Takeaways

  • A direction to a jury to disregard prejudicially inadmissible transcript material will not always be sufficient to cure the unfair prejudice arising from its accidental provision; where the material discloses prior allegations on which an accused was acquitted, a more detailed curative direction is required.
  • Where a transcript is to be provided to a jury, all parties and the court bear a responsibility to ensure that any material from discussions held in the absence of the jury is removed before provision, with the court reconvened (without the jury) to review what has been excised.
  • The BG v R framework for assessing whether to continue a trial after a juror is discharged applies whether the discharge arises from misconduct under s 53A of the Jury Act 1977 (NSW) or from other causes; the overriding principle is the maintenance of a fair trial.
  • A short interval between the discharge of a juror and the return of majority guilty verdicts can support a reasonable inference that the discharged juror had been holding out for acquittal, placing the case in a category where continuation of the trial risks substantial miscarriage of justice.
  • Absence of an application by trial counsel to discharge the jury does not preclude a finding of miscarriage of justice on appeal; the Court of Criminal Appeal is not confined to the trial judge's reasons when reviewing the exercise of discretion to continue after a juror's discharge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61KC(a), 61I
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Jury Act 1977 (NSW), ss 53A, 53C, 68C

Cases
- BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Phan v R [2018] NSWCCA 225
- Watson v R [2022] NSWCCA 208