R v JX

This was a successful appeal against conviction by an appellant convicted on two counts of rape of a child. The appeal was brought on three grounds:

1. That the verdicts were unreasonable and could not be supported by the evidence; 
2. That by reason of a note from the jury seeking further directions before the return of the verdicts, a fair minded lay observer might reasonably apprehend that the jury did not bring an impartial and unprejudiced mind to determining his guilt so that the verdicts should be set aside;
3. That the primary judge erred in law in failing to give the jury the further directions they sought prior to returning their verdict. [1].

Relevant aspects of the trial were as follows. After selection of the jury and in her opening remarks, the trial judge informed them of the importance of impartiality, and the obligation to determine the case solely on the evidence produced in the courtroom. [3], [4]. All jurors indicated that they could be impartial.  In the course of her evidence, the complainant, aged 19, alleged that when she was in year one or two at the time the alleged offending against her took place. [7]. She did not report the incident contemporaneously, disclosing it some years later. [8], [9], [11]. The complainant maintained her account and gave a rational explanation for not making a contemporaneous complaint. Her account was uncontradicted.

Upon retiring to consider their verdict, the jury sent the judge a note seeking “direction” on “one member of the jury informing of being raped as a younger woman”. Upon receipt of the note, the judge met with counsel and advised that she intended to reconvene the court with the whole jury and remind them of the need for both impartiality and apparent impartiality, and that they must decide the case on the evidence.  Shortly thereafter, and before she had a chance to do so, the bailiff informed her that the jury had reached a verdict.  The jury then delivered their verdict of guilty on both counts. [17].

The issues arising were whether the note created an apprehension or suspicion that the jury was not impartial, or indicated uncertainty about the jury’s corporate state of mind.

The appellant’s contentions

The appellant argued that each charge against him was defective in that it pleaded a continuing offence, noting that the offence was alleged to have occurred between 30 September 1999 and 29 September 2003.  [18]. Specifically, with respect to ground one, he contended that the complainant’s evidence was unsupported by independent evidence and there were limited opportunities for the offending to have occurred.  He also pointed to the very significant delay between the alleged offending and the complainant’s reporting to others. [19]. With respect to ground two, the appellant submitted that the appropriate test to be applied was identified by Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41, 53: namely “whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.” The appellant argued that in circumstances where a juror raised with the jury during their deliberations that she had been raped as a young woman, that resulted in  a reasonable apprehension that a juror or the jury has not discharged its task impartially in returning a verdict of guilty. [20]. Regarding ground three, the appellant, referring to R v TAB [2002] NSWCCA 274, R v Knight Unreported, New South Wales Court of Criminal Appeal, Hunt, Wood, McInerney JJ, 18 December 1990, R v McCormack (1996) 85 A Crim R 445, [70], R v Salama [1999] NSWCCA 105, R v Hickey [2002] NSWCCA 474 and R v Lapins [2007] SASC 281, [35], argued that it is generally accepted that where the jury has asked the judge for a direction on a matter of law, that direction should be given before a verdict is taken.  The appellant noted that there was no appreciable delay between when the judge received the note and the jury reaching a verdict, and argued that particularly in view of the circumstances, the judge’s failure to direct the jury as to the irrelevance of the female juror’s experience gave rise to a miscarriage of justice.  [21].

Conclusion

The court shared the view that the counts against the appellant were defective in that they charged the rapes as continuing offences. To remedy that, the court allowed the respondent to amend the indictment to insert the words “on a date unknown” between “that” and “between” in each count: see s 572(3) Criminal Code 1899, which permits the amendment of an indictment where no injustice will be done, which includes amending an indictment after verdict at appellate level: see also R v Fahey [2002] 1 Qd R 391. [23].

The court did not accept that the first or second grounds of appeal were made out. [25], [26]. Rather, it was of the view that given the evidence, it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of both offences; and it did not necessarily follow from the fact that the jury informed the judge that one juror was “raped as a younger woman” that either the juror was partial, or that she infected other jurors and the verdict.

As to ground three, the court held that it was “problematic for the respondent”, in that her Honour took a “course [un]supported by a body of high legal authority” in deciding – against her earlier inclination to reconvene and remind the jury of the need to be, and be seen to be, impartial, and that they must decide the case on the evidence – to instead proceed to take the verdict after being informed that one had been reached. [27]. In the court’s view the preferable course would have been to follow the line of authority accepted at appellate level in New South Wales and South Australia that, as a general rule, a trial judge should not take a verdict until any requests from the jury for direction have been answered as fully as possible. [33]. Given that did not occur, the jury was without the benefit of the directions foreshadowed by her Honour before returning their guilty verdicts and there was a consequent error of law. [34].

Given the above, the court determined that the appropriate course was to allow the appeal and order a retrial, “to ensure justice is seen to be done in this case and to maintain confidence in the criminal justice system”. [34].