Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Addo v R [2022] NSWCCA 141 Hearing dates: 3 June 2022 Date of orders: 30 June 2022 Decision date: 30 June 2022 Before: Beech-Jones CJ at CL Adamson J Bellew J Decision: (1) The time for filing of the notice of appeal is extended until 26 October 2021. (2) The appeal against conviction is allowed. (3) The convictions and sentences imposed on the appellant in the District Court are quashed. (4) The matter is remitted to the District Court arraignment list on 15 July 2022 at 9:30am. Catchwords: CRIMINAL LAW – Evidence – Tendency and coincidence evidence – Where Appellant charged with multiple counts of sexual offending – Where Crown served co-incidence notice – Where evidence admitted – Where direction by the Trial Judge failed to identify the relevant path of reasoning – Where the direction had the effect of reversing the reasoning process – Where the direction given resembled a direction as to tendency reasoning – Where evidence was admitted in the absence of the jury being given any direction as to how that evidence could be used in reasoning towards a conclusion that relevant aspects of the complainant's evidence should be accepted CRIMINAL LAW – Juries – Where individual juror discharged – Where the trial judge rejected an application to discharge the entire jury – Where the jury's verdicts were returned a short time after the discharge of the juror – Risk of substantial miscarriage of justice CRIMINAL LAW – Juries – Where individual juror discharged – Where appellant adduced evidence that the discharged juror had the appearance of a "man of black African ancestry" – Where the appellant was described as a "dark-skinned Aboriginal man" – Where it was submitted that the discharged juror would have been supportive of the appellant on the grounds of race – Where it was submitted that the there was a consequent risk of a substantial miscarriage of justice in not discharging the whole jury – Submission firmly rejected – Submission entirely overlooked the direction given by the trial judge to the jury to act impartially Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Evidence Amendment Act 2007 (NSW) Jury Act 1977 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW) Cases Cited: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40 Haile v R [2022] NSWCCA 71 Hofer v R (2021) 95 ALJR 937; [2021] HCA 36 House v The King (1936) 55 CLR 499 Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 Phan v R [2018] NSWCCA 225 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Ceissman [2010] NSWCCA 50 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Hiba Cornell [2015] NSWCCA 258 R v MR [2013] NSWCCA 236 R v Roberts [2005] 1 Qd R 408; [2004] QCA 366 R v WRC (2002) 130 a Crim 89; [2002] NSWCCA 210 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Versi v R [2013] NSWCCA 206 Texts Cited: ALRC Report 102: Uniform Evidence Law Judicial Commission of New South Wales, Criminal Trial Courts Bench Book Category: Principal judgment Parties: Stephen Addo – Appellant Regina – Respondent Representation: Counsel: D Carroll and K Fallah – Appellant C Curtis – Respondent Solicitors: Ross Hill & Associates – Appellant C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent File Number(s): 2016/120561 Publication restriction: Non-publication of any information or material which may lead to the identification of the complainant Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 25 January 2018 Before: His Honour Judge Williams SC DCJ HEADNOTE [This headnote is not to be read as part of the judgment] Following a jury trial in the District Court the appellant was found guilty of 12 counts of sexual offending committed upon the complainant. The Crown relied, in support of its case, on "coincidence evidence" adduced from the complainant's mother that the appellant had sexually assaulted her in a manner which bore strong similarities to the manner in which the complainant asserted that she had been assaulted. In the course of the jury's deliberations, it was indicated that unanimous verdicts could not be reached, following which the trial judge gave a Black direction. After that direction was given, the jury continued deliberations, before informing the trial judge that a majority verdict had been reached on some counts but not on others. Following further directions being given, deliberations resumed. The jury then indicated that they wished to try and reach a majority verdict on all counts. Following that indication, one member of the jury (Juror G) advised the trial judge that they could not continue because their blood pressure had been "continually increasing to dangerous levels". By agreement with the parties, the jury were allowed to separate for the day. Juror G was told to seek such medical attention as was necessary. The following day, an order was made discharging Juror G who failed to attend Court. The trial judge rejected an application to discharge the entire jury and verdicts were returned a short time later. The appellant appealed against his conviction on the grounds that the trial judge erred in: 1. admitting the coincidence evidence; 2. directing the jury as to that evidence; and 3. failing to discharge the jury following the discharge of Juror G. One of the submissions advanced in support of Ground 3 was that the appellant, a "dark-skinned Aboriginal man" had been deprived of the supportive voice of Juror G, described as "a man of black African ancestry", or in other words, that Juror G would have been supportive of the appellant in the grounds of race. Held (per the Court) rejecting ground 1, upholding grounds 2 and 3, quashing the appellant's convictions and ordering a new trial: As to Ground1: 1. There is no relevant point of distinction between tendency evidence and coincidence evidence. It followed that it was not necessary to review the reasons of the trial judge for admitting the evidence: at [94]. As to Ground 2: 1. The directions given by the trial judge as to the coincidence evidence failed to identify any relevant path of reasoning that involved determining, having regard to similarities in events, that it was improbable that such events did not occur coincidentally but had been committed by the appellant: at [85]. 2. The direction reversed the reasoning process and was in the nature of an invitation to the jury to engage in tendency reasoning: at [86]; [88]. 3. Section 98 of the Evidence Act 1995 (NSW) is an exclusionary rule. There was a basis for the admission of the evidence in the present case that was not excluded by s 98: at [95]-[96]. 4. However, the effect of the trial judge's directions were that the jury received evidence of the commission, by the appellant, of other offences against the complainant's mother that were similar to those alleged by the complainant without receiving any instruction as to how to use that evidence in reasoning towards a conclusion that the relevant aspects of the complainant's evidence should be accepted. The direction given did not identify a permissible basis for using the evidence of the complainant's mother as either coincidence evidence or tendency evidence and this was an irregularity in the conduct of the trial: at [100]. The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40; Versi v R [2013] NSWCCA 206; Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136; Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 considered. As to Ground 3: 1. The submission that Juror G would have been supportive of the appellant on the grounds of race should be firmly rejected. Quite apart from anything else, the submission completely overlooked the directions of the trial judge to the jury as to the need for impartiality: at [131]. 2. There was little doubt that Juror G was a "dissentient juror". Accepting that to be the case, it was necessary to bear in mind that when Juror G was discharged, the point had been reached where a majority verdict could be taken. Accordingly, if the verdicts which were ultimately returned were the unanimous verdicts of the remaining 11 members of the jury, the fact that Juror G was dissenting would be of no consequence. Given that the jury had already indicated that they had reached 11:1 verdicts on some counts, it could be reasonably inferred that at least some of the verdicts which were returned were the unanimous verdicts of the 11 jurors who remained: at [151]. 3. However, it was not possible to reach an affirmative conclusion that all of the verdicts which were returned were the unanimous verdicts of the 11 jurors who remained. Whilst it was likely that some were, there was also a possibility that some were not. If some were not unanimous, then the continuation of the trial in the absence of Juror G became significant. A risk of a substantial miscarriage of justice was made out: at [151]; [154]. BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215; Haile v R [2022] NSWCCA 71 considered. Judgment THE COURT INTRODUCTION 1. Following a trial before His Honour Judge Williams SC and jury in the District Court of NSW, Stephen Addo (the appellant) was found guilty of 14 counts of sexual offending committed upon TH (the complainant). He was sentenced to a total term of imprisonment of 26 years with a non-parole period of 16 years. He now seeks to appeal against his conviction on the grounds of appeal which are more fully discussed below. THE APPLICATION FOR AN EXTENSION OF TIME 1. In circumstances where the appellant was convicted in 2017 and sentenced in 2018, he requires an extension of time in which to bring the present appeal. In light of the views which have been reached regarding the grounds of appeal, an extension of time should be granted. THE CROWN CASE AGAINST THE APPELLANT 1. The appellant does not assert that the verdicts of the jury were not open. However, in order to deal with the grounds of appeal, it is necessary to summarise the Crown case against him. The following has been drawn largely from the summary of trial provided by the Crown. It should be noted that the appellant was found guilty on all counts other than counts 2 and 3. Those counts are therefore omitted from the summary. Background 1. The complainant was born on 19 February 1985 to her mother (LT) and her father (JS). Sometime after the complainant was born, LT formed a relationship with SD, following which the family moved to Eastern Creek. In 1992, LT and SD separated. Following the separation, LT and the appellant formed a relationship and commenced living together at the Doonside premises. The complainant lived with them. Count 1 1. Count 1 in the indictment alleged an offence of indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (the Act). 2. The Crown case was that late one night in 1992, when the complainant was 7 or 8 years old, she was in bed and either had a bad dream or was feeling ill (she was unable to remember), and went to look for LT. The appellant was in the bedroom he shared with LT. He told the complainant that LT was not there, but that she could lie with him if she wanted. While they were lying there, the appellant moved the complainant on top of him so that her belly was on top of his belly. She could feel his erect penis pushing against her pelvis and he asked: Do you know what that is? The complainant responded: No. The appellant said: You did that. 1. The complainant was wearing a nightie and underwear and the appellant was wearing boxer shorts. The complainant went back to her bed and went to sleep. She saw LT the next morning. She said that she did not tell LT what had happened because she was scared having regard to the fact the appellant had been violent towards LT. Count 4 1. Count 4 alleged an offence contrary to s 61M(2) of the Act. 2. In 1993 or 1994 the complainant's family had a black dog named Cato. One day, during the daytime, the appellant came into the complainant's bedroom with a jar of golden syrup. He was intoxicated, and was trying to hold down the complainant on her bed, using his body and holding her hands. The complainant was on her back. The appellant put golden syrup on the complainant's vagina and called the dog over to her. He attempted to make the dog lick the complainant's vagina by making "kissing" noises. When he did so, the dog would approach and try to lick the complainant's vagina, but the complainant kept kicking the dog away and it eventually stopped coming. The appellant laughed, and told the complainant that she was a "sook", before leaving. The complainant did not know where LT and the other children were at the time. She said that during the incident she felt upset and disgusting, and that she had not consented to what the appellant had done. The complainant also recalled that whilst she was in Year 6, the appellant had tried to make her watch a video of people having sexual intercourse with animals. Count 5 1. Count 5 alleged an offence contrary to s 61J(1) of the Act. 2. LT and the appellant had a child (KA) who was born in 1997 when the complainant was 12 years old and in Year 7. When LT was in hospital giving birth to KA, the complainant was at home with her siblings and the appellant. On one occasion, the appellant moved a mattress onto the lounge room floor and went to the complainant's bedroom, telling her to go into the lounge room. The complainant described the appellant as "quite drunk". The appellant then asked the complainant to take her pants off and to lie on the mattress on her stomach. The complainant said that she did so because the applicant was "really intoxicated and [she] was scared [she] would get hurt". She explained that when the appellant was intoxicated "you just didn't fight. He used to bash my mum when he was really drunk". She said that the appellant was behind and on top of her, and placed his penis into her bottom. She said that it was very painful, that she was crying and the appellant had told her to "shush". 3. The complainant described seeing blood, and experiencing a sharp stabbing pain in her bottom and stomach. She said that the appellant had told her to go and clean up in the shower, at which time she went and had a bath. She said that she was still bleeding and was scared that she was dying. She said to the appellant: I need to go to the doctor or hospital. The appellant said: No. 1. After the complainant had a bath, the appellant made her lie with him on the mattress on the lounge room floor. 2. The complainant thought that she would tell her aunt about what had happened when she was visiting LT in hospital the following day. However, she said that when she arrived her aunt was upset due to an unrelated issue, and so she decided not to say anything. The complainant explained that she had intended to tell her aunt because she felt that her aunt could protect her, but that LT could not do so because she was incapable of protecting herself. 3. The complainant said that the same year that KA was born, the appellant contracted an infection on his penis, and had showed it to her and blamed her for it, saying: Look at what you did. 1. The complainant said that the appellant wanted her to "kiss it better". She said that she felt disgusted when the appellant had asked that, and that she said did not do so. 2. The complainant also said that LT used to go to "Bingo" each Wednesday night and would leave her and her siblings at home with the appellant. The complainant said that on those nights she would try to go to a friend's house, or would ask LT to let her go to Bingo with her. She explained that she did not want to be left home alone as she knew that the appellant would "rape" her. She referred in her own mind to these nights as "fight night", because she would fight with the appellant when he wanted to rape her. By the term "rape" the complainant explained that she meant the appellant putting his penis in her vagina. Count 6 1. Count 6 alleged an offence contrary to ss 61J(1) and 61P of the Act. 2. The appellant had the complainant on her bed. She was fighting, and he was trying to hold her down by using his hands and his body weight. The complainant kicked the appellant so that he could not put his mouth on her vagina. The appellant responded by biting the complainant on the inside of her thigh, which caused a scar. The resulting wound was sore, and the complainant's netball uniform rubbed on it. She was worried people would see it when she was jumping during a game. Count 7 1. Count 7 alleged an offence contrary to s 61J(1) of the Act. 2. The complainant stopped resisting after the appellant bit her (the subject of count 6), following which the appellant put his penis in her vagina. Count 8 1. Count 8 alleged an offence contrary to s 61J(1) of the Act. 2. The complainant explained that appellant would apply pressure to a point behind her ear and push hard, which the complainant said "really hurt". When he did that, the complainant did what he wanted and opened her mouth. The appellant would then put his penis in her mouth. She said that this happened more than once. On one particular occasion when the complainant was in high school, the appellant pushed behind her ear to make her open her mouth, and when he put his penis in her mouth, she bit it. He responded by pushing her in the chest and abusing her. The push forced the complainant back into the wall, and left a bruise on her chest. She recalled buttoning up her shirt so that the bruise, which was in the middle of her upper chest just below the neckline, was not visible. Count 9 1. Count 9 alleged an offence contrary to s 61M(1) of the Act. 2. The complainant's home was adjacent to that of her uncle. A gate had been made in the fence so that people could move between the two properties. One night when LT was at Bingo and the complainant's siblings were in bed, she and the appellant were in her bedroom. The complainant explained that it was "fight night", and that she was struggling with the appellant because he was trying to rape her, and she was resisting. She said that the house was dark, and that she heard a loud banging noise at the back door. The appellant left the bedroom. The complainant was scared and lay still under the blankets, holding her breath. She heard her uncle ask for something and then sneak into her bedroom quietly and pull back a blanket. The complainant closed her eyes and lay still. Her uncle did not speak to her and left the room quickly. The complainant could not recall whether this incident had occurred before or after her sister [TA] was born, which was in 1999. Count 10 1. Count 10 alleged an offence contrary to s 61J(1) of the Act. 2. At one point, the appellant worked as a landscaper, laying turf at new building sites. The complainant recalled an occasion when the appellant wanted her to accompany him to a job site. She told LT that she would stay with her siblings so that LT could go with the appellant. However, the complainant herself went, in circumstances where she did not want to do so. She explained that she never wanted to be alone with the appellant because "this stuff would happen… him raping me". 3. The appellant and the complainant drove to premises in western Sydney. After doing some levelling work, the appellant asked the complainant if she needed to go to the toilet, access to which was gained through the garage of the premises. The complainant said she did not, but the appellant pulled her arm to go anyway. There was a struggle in the garage as the appellant tried to get the complainant down to the ground. The appellant then swept the complainant's legs out from underneath her and she fell down, grazing her elbow on the cement floor. The appellant then pulled complainant's pants down. When she was on her back, he got on top of her and placed his penis in her vagina until he ejaculated. Count 11 1. Count 11 alleged an offence contrary to s 61 of the Act. 2. The complainant recalled that she started to physically develop in 1999. She said that there was sexual contact between her and the appellant after she had commenced menstruating. She recalled a discussion with the appellant about her menstrual cycle, which arose because he was concerned that she may be pregnant, and that people would find out about what had been occurring. The appellant made the complainant lie down, and then stomped on her stomach whilst wearing what the complainant described as "wheat coloured Colorado boots". In doing so, he put all his body weight onto the complainant with his foot, which she said was very painful. She said that she developed a bad stomach ache, and that two days later she experienced a "really bad" period. She explained that whilst at school she had to leave class to go the toilet frequently because she was bleeding very heavily and "leaking everywhere". When the teacher stopped her going to the toilet, she packed her things, left the class and went home. After this incident, the appellant would place cling wrap on his penis before he had forced intercourse with the complainant. Count 12 1. Count 12 alleged an offence contrary to s 61J(1) of the Act. 2. Besides "Cato", the complainant's family owned a brindle staffy named "Tara" which had been given to them by the complainant's aunt. The complainant took the dogs for walks and explained that her family would "get pets and get rid of them". She said that the appellant had told LT that she [the complainant] should walk "Tara" because she was the one who had wanted a dog. On one occasion, the appellant drove the complainant and "Tara" (in what the complainant thought was a white station wagon) to a reserve located near a set of netball courts in Doonside. The appellant took a tarpaulin out of the car and walked into the reserve with the complainant. The complainant explained that she felt anxious because she did not know what was going to happen. The appellant then put the tarpaulin down on some grass and told the complainant to pull her pants down. She said that she did not fight the appellant that day because she was scared, and that she got on to the tarpaulin because he told her to. The appellant told the complainant to bend down. She got on to her hands and knees and was terrified. The appellant put his penis into the complainant's vagina from behind, at which time "Tara" barked because someone was coming. The appellant said: Get up and pull your pants up. 1. The complainant had already done so by that time, and then a man walked past. Count 13 1. Count 13 alleged an offence contrary to s 61J(1) of the Act. 2. On an occasion when the complainant and the appellant were in her bedroom, they had a struggle on the floor. The appellant used his forearms to pin the complainant's knees to her chest, following which he put a penis-shaped dildo into her vagina. The complainant explained that this caused a burning pain in her vagina, which made her bleed. Count 14 1. Count 14 alleged an offence contrary to s 61J(1) of the Act. 2. After using the dildo on the complainant which was the subject of count 13, the appellant put his penis in the complainant's vagina. RECORDED CONVERSATIONS 1. In the course of the investigation, police obtained warrants authorising the recording of conversations between the appellant and the complainant. Statements made by the appellant in the course of those conversations were relied upon by the Crown as admissions. It is not necessary to further detail them. THE APPELLANT'S CASE 1. The appellant did not give evidence at his trial. At the time of his arrest he was interviewed at length by police and that interview was before the jury. It is not necessary to set out its contents in detail. For present purposes, it is sufficient to note that although he denied the allegations, the appellant did admit to having what he asserted was consensual sexual intercourse with the complainant when she was a teenager. [1] 2. The appellant called two witnesses in his case, the first of whom was Mark Sweet. Mr Sweet was the appellant's brother-in-law, and was married to the appellant's sister. Mr Sweet gave evidence that he had met the complainant about eight years earlier when, having finished work one day, he had gone to the premises of the appellant's mother at Doonside to have a few drinks. He said that the complainant had arrived there with her daughters. He said that she was introduced to him, following which she left to go shopping, leaving her daughters alone with the appellant for about half an hour. It was put to Mr Sweet in cross-examination that the complainant had never left her children with the appellant in his (Mr Sweet's) presence, a proposition which he denied. [2] 3. The second witness called in the appellant's case was his daughter, SA. SA gave evidence that she had no memory of the appellant being physically violent to LT. [3] Whilst SA agreed in cross-examination that her memory was limited to a particular period of time, she maintained that she had never witnessed violence by the appellant towards LT. [4] THE GROUNDS OF APPEAL Ground 1 – The trial judge erred in admitting as coincidence evidence the uncharged sexual violence said to have occurred to the complainant's mother, LT Ground 2 – The trial judge erred in his Honour's direction of the jury in relation to the coincidence evidence of the uncharged sexual violence said to have occurred to the complainant's mother, LT 1. Over objection, the Crown adduced evidence from LT that the appellant had sexually assaulted her in a manner that bore strong similarities to the manner in which the complainant said she had been sexually assaulted. Ground 1 contends that the evidence should not have been admitted on the basis that it was excluded under s 98 of the Evidence Act 1995 (NSW) (the Evidence Act). Ground 2 contends that the trial judge erred in the directions that were given in respect of the evidence. To address these grounds, it is first necessary to outline certain aspects of s 98. Coincidence Evidence Where Identity Is Not In Issue 1. Section 55 of the Evidence Act provides that evidence is relevant in proceedings if it is evidence that, if it were accepted, could rationally affect the assessment of the "probability" of the existence of a fact in issue in the proceedings. In a general sense, evidence of the kind adduced in this case that, on a previous occasion, the appellant had used particular methods to subdue LT, forced her to perform fellatio on him and allowed him to perform cunnilingus on her, affected the assessment of the probability of facts in issue: namely, whether the appellant committed the similar acts alleged by the complainant. 2. However, the adducing of evidence of that kind is subject to exclusionary rules in respect of tendency and coincidence evidence found in Pt 3.6 of the Evidence Act. Within Pt 3.6, s 95 provides: 95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose. 1. This provision takes the opposite approach to s 60 of the Evidence Act, which enables evidence admitted for a non-hearsay purpose to be used as hearsay notwithstanding s 59 (the exclusionary rule in respect of hearsay evidence). The effect of s 95 is that evidence admitted for other purposes cannot be "used" to prove a "particular matter" if is not admissible under Pt 3.6 to prove that "particular matter". In the case of s 97, that "particular matter" is that a person has or had a tendency to act in a particular way or with a particular state of mind. In the case of s 98, the "particular matter" is that a person did a particular act or had a particular state of mind based on similarities in events and circumstances. 2. Within Pt 3.6, one of the exclusionary rules is s 97, which precludes the admission of evidence of the "character, reputation or conduct of a person, or a tendency that a person has or had" to prove they have or had a tendency to act in a particular way, or to have a particular state of mind unless reasonable notice was given and the Court determined that the evidence will, by itself or having regard to other evidence, have significant probative value. 3. The other exclusionary rule is found in s 98 which, at the time of the appellant's trial relevantly provided: 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless— (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note— One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceedings. 1. Further, even if evidence is not excluded by either ss 97 or 98 it cannot be adduced by the prosecution in a criminal trial unless "the probative value of the evidence outweighs the danger of unfair prejudice to the defendant" (s 101(2)). 2. Before considering the manner in which this section was engaged or sought to be engaged in these proceedings, two related aspects of s 98 should be noted. 3. First, s 98 creates an exclusionary rule that is "designed to prevent the adducing of evidence for a particular purpose or, more accurately, that seeks to invoke a particular form of probabilistic reasoning designed to establish a particular fact or state of mind, unless it has significant probative value". [5] Hence, the section creates an exclusionary rule that precludes the tendering of evidence on a particular "basis" unless ss 98(1)(a) and (b) are satisfied. 4. The above form of s 98(1) was introduced into the Evidence Act with effect from 1 November 2009 by the operation of the Evidence Amendment Act 2007 (NSW) (Act No 46 of 2007, schedule 1 s 3). In "ALRC Report 102: Uniform Evidence Law" at [11.20] to [11.25], the Australian Law Reform Commission ("ALRC") discussed the proposal that led to the introduction of that form of s 98 and stated: [6] The intention of the proposal is that s 98 will apply where the tendering party argues that the evidence is relevant to the issues in the case on the basis of improbability reasoning and that reasoning turns on similarities between the events, or in the circumstances surrounding those events, or both. 1. Thus, to apply s 98 it is necessary for the tendering party to identify the "basis" upon which the evidence is sought to be adduced. When that "basis" is articulated, it can then be determined whether the mode of reasoning envisaged by the section is engaged: that is, reasoning which involves inviting the tribunal of fact to conclude that, because of the similarities in the "events" and the circumstances in which they occurred, it is improbable that the events occurred "coincidentally". If that is not the form of reasoning sought to be employed by the tendering party, then the exclusionary rule is not engaged. Whether the evidence is otherwise admissible will depend on the effect of other provisions of the Evidence Act. 2. It follows that, in a case where the tendering party seeks to rely on s 98, there must be some significance attached to establishing that the relevant events did not occur coincidentally. The most obvious example of this was given by the ALRC in its report [7] as follows: For example, if the Crown has evidence that the accused committed another substantially similar crime, the evidence could go to the jury on the basis that, if satisfied beyond reasonable doubt that: (i) the accused committed the other substantially similar crime; and (ii) that the same person committed that crime and the crime charged, the jury should be satisfied that it was the accused who committed the crime which he or she is charged. 1. This form of reasoning was applied in MR where there was evidence connecting the respondent with a robbery at a fast-food restaurant and, because of similarities between that robbery and another robbery at another fast-food restaurant in the same area, it could be concluded that he committed that other robbery. [8] In MR, the evidence of both robberies was tendered on the "basis" that both "events", being the two robberies, and the circumstances in which they occurred, did not occur coincidentally but instead were committed by the same offender, namely the accused. 2. This reasoning would have been applicable in this case had the complainant described a sexual assault by an unknown offender that bore substantial similarities to the sexual assaults that LT described as having been committed against her by the appellant. In that case the adducing of evidence that the appellant perpetrated the sexual assaults on LT would be adduced on the basis of showing that the two assaults did not occur coincidentally but instead were both perpetrated by the appellant. The "Criminal Trial Courts Bench Book" published by the Judicial Commission of New South Wales (the "Bench Book") contains a standard form of direction that reflects this form of reasoning. [9] 3. However, this form of reasoning does not exhaust the operation of s 98. Numerous examples can be conceived of where demonstrating that various events were not "coincidental" might advance a prosecution case. For example, a pattern of similar trades by a stockbroker where, shortly after each trade, price sensitive information was released to the market which made the trade highly profitable might be adduced to prove that those trades were not coincidental but instead resulted from the offender having advance notice of the information from the "inside". This form of reasoning was sought to be employed in DSJ v R; NS v R. [10] In R v Hiba Cornell, [11] the involvement of a bank officer in numerous loan applications that contained bogus documents concerning the identity of the borrower and their capacity to pay the loan was ultimately relied on to demonstrate her knowledge of their fraudulent nature i.e. it was not a coincidence that bogus loan applications were submitted through her to the bank; instead they were submitted through her because she was a knowing participant in the fraud. [12] 4. The second matter to note is that the authorities in this Court establish that, in an appropriate case, s 98 can be satisfied by a form of reasoning that relies on the improbability of two separate victims describing separate but similar crimes committed by an accused unless they are telling the truth. Reasoning in that form is predicated on the relevant "event" being the giving of the account of the crime by the victim rather than the crime itself. [13] 5. The cases in relation to this reasoning start with the pre-Evidence Act position as stated in the following passage from Pfennig v The Queen: [14] An important distinction is to be drawn between cases such as the present case in which the 'similar facts' are not in dispute and cases in which such facts are in dispute. Thus, their Honours [Mason CJ, Wilson and Gaudron JJ] said [in Hoch v The Queen (1988) 165 CLR 292 at 295]: 'Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.' Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. (emphasis added) [some citations omitted] 1. The relevance or otherwise of the reasoning set out in the emphasised passage in this extract from Pfennig to s 98 of the Evidence Act arose in Versi v R [15] where the offender was convicted of "two counts of sexual misconduct involving his stepdaughter." For one of those counts (count 2), the victim gave evidence that the offender asked her "to assist him with putting cream on his penis and testicles." The Crown also adduced evidence of an uncharged act against another stepdaughter of the offender ("SD1") that when she was an adolescent, the offender invited her into the bathroom and requested she hold his erect penis "so that he could fix his hernia". Her evidence was that when she took hold of his penis, he "proceeded to sort of grind his hips against my hand". [16] 2. In Versi, the trial judge directed the jury [17] that: The Crown contends there is such a similarity between the acts and the circumstance and the circumstances in which they occurred that because of the improbability of the events occurring coincidentally it establishes that the accused committed the act that is the subject of the offence because coincidence is a very unlikely explanation for the similarity or similarities. In this case the Crown says that provided you are satisfied beyond reasonable doubt that the conduct... [SD1] complains of then that act and the circumstances in which it [was] done was so similar to the act that the Crown amounts to in count 2 in the indictment you would conclude that the accused must have committed the offence with which he has been charged. It is important to note that evidence of such a pattern of behaviour can only be used in the way the Crown asks you if you are firstly satisfied that the accused did the other act beyond reasonable doubt. You must be satisfied that the conduct alleged by... [SD1] occurred and be satisfied beyond reasonable doubt before in your reasoning it can assist in deciding whether or not the acts or the conduct alleged in count 2 in the indictment occurred... (emphasis omitted) 1. In Versi, Adams J concluded that what occurred at the trial revealed confusion about what the alleged coincidental events were. [18] Consistent with the emphasised passage set out above from Pfennig, his Honour observed that "[t]he relevant events here which were coincidental was not the sexual conduct itself but the circumstances alleged by SD1 and the complainant, and the facts that the offender was the stepfather of both girls, who were of the similar young age" and that, absent concoction by the victims, "it was open to the jury to consider that the similarities were such that it was highly improbable that the witnesses were telling lies". [19] His Honour found that the above direction "invited the jury to move directly from being satisfied that the [offender] acted towards SD1 as she alleged, to the consequential guilt of the [offender] on count 2 of the indictment" and did not identify the "correct line of reasoning" based on the emphasised passage from Pfennig. [20] 2. Despite Adams J's finding that the jury were given an erroneous direction in respect of the use to be made of coincidence evidence (at [138]), his Honour applied the "proviso" to s 6(1) of the Criminal Appeal Act 1912 and dismissed the appeal against conviction. [21] In doing so, his Honour noted that the "the judge's direction that it was necessary to be satisfied beyond a reasonable doubt that the applicant had misconducted himself with SD1's evidence before the coincidence between her account and that of the complainant could be used, favoured the defence". [22] 3. In Versi, Basten JA, with whom Latham J agreed, appeared to reject Adams J's approach by observing that what is "significantly probative of the charge is not the fact of other complaints, but proof that the other events occurred" [23] and that s 98 "distinguishes between 'evidence' and 'events'". [24] However, his Honour continued: [25] This analysis departs linguistically from that of Adams J … but not so as to affect the conclusion. I agree with Adams J that a direction that the jury be satisfied beyond reasonable doubt as to the allegations made by SD1 may have been unduly favourable to the [offender]. It was not necessary for the jury to consider the evidence of the complainant and SD1 independently before considering the cumulative effect. It is possible that the jury might have entertained a reasonable doubt as to the truth of each allegation, considered alone: but if that were so, the jury would have been entitled to consider both together in order to be satisfied beyond reasonable doubt that the conduct the subject of the charge occurred, as described by the complainant. …. The 'indispensable link' in the present case was the complainant's evidence as to the subject matter of the charge: the evidence of SD1 formed part of the web of circumstances which rendered it more likely that the complainant's account was truthful and reliable. The evidence of the complainant and SD1 was, in that sense, mutually corroborative. (emphasis added) 1. With respect, there are two uncertain aspects to this reasoning. 2. First, when his Honour stated that he "depart[ed] linguistically from that of Adams J … but not so as to affect the conclusion" it is not clear whether the "conclusion" was a reference to Adams J's conclusion that the summing-up was erroneous but the proviso should be applied, or the more general conclusion that the appeal against conviction should be rejected. 3. Second, when his Honour refers to the evidence of the two witnesses being "mutually corroborative" it was not clear how that engaged with so much of s 98 that refers to it being demonstrated that it was improbable that the events occurred coincidentally unless it was an endorsement of the substance of Adams J's reasoning based on Pfennig (even if it were not an acceptance of Adams J's linguistics). If it were an endorsement then, contrary to the Crown's submissions in this case, Versi is authority in this Court to the effect that the above direction was wrong in the circumstances of that case. If it was a rejection of Adams J's approach then it means that in Versi there was no articulation of how the evidence of the two witnesses of the offences committed against them could have operated to prove the guilt of the offender on one of those offences "on the basis that … it is improbable that the events occurred coincidentally". A mode of reasoning that simply asserts that, because the accused may have committed a similar offence against one victim, it is more probable that he committed such an offence against another victim, is not, without more, captured by s 98 if the evidence of both victims is that it was the accused who perpetrated the offences. Such a mode of reasoning does not involve any reasoning that it is improbable that both "events", being the offences, occurred coincidentally. That said, such evidence is clearly capable of being proof of the relevant offence on a tendency basis. [26] 4. In any event, any doubt about the effect of Versi on the use of s 98 to support the reasoning from Pfennig identified above appears to have been resolved in Saoud v R. [27] Saoud was a conviction appeal in which it was contended that the trial judge erred in admitting evidence of two similar sexual assaults by the accused on two victims in similar circumstances as evidence supporting proof of each set of assaults on both a tendency and coincidence basis. This Court rejected the challenge on the basis that the appellant had not demonstrated an error of the kind identified in House v The King. [28] Leaving aside any issue about the appropriate standard of review in this Court, Basten JA, with whom Fullerton and R A Hulme JJ agreed, observed as follows in relation to the use of evidence on both a coincidence and tendency basis: [29] … there is an awkwardness in the separation of 'tendency' evidence and 'coincidence", at least in some circumstances. Thus, in a case such as the 'present, where there was no issue as to the identity of the alleged offender, but rather a dispute as to the occurrence of the offences, evidence of the accused's conduct on another occasion will combine the implausibility of independent complainants both falsely describing similar conduct with the inference that a person who conducted himself in a particular way on one occasion may well have done so again on another. (emphasis added) 1. The bold portion of this passage describes tendency reasoning. The italicised portion of this passage describes coincidence reasoning of the kind addressed by s 98. The latter assumes that the relevant "event" is the description of the "similar conduct" given by each complainant (i.e., their account) as opposed to the conduct itself. The judgment of this Court in Magennis [30] treated Saoud in that manner and applied it accordingly. 2. This aspect of Saoud is cited in the Bench Book as the justification for a standard form of direction that notes a Crown argument "that the possibility of each [of two or more complainants] making allegations that are so similar by chance or coincidence is so remote that the only explanation is the accused acted in the same way towards both of them and, therefore, their accounts are true". [31] 3. For the sake of completeness, it should be noted that, with effect from 1 July 2020, Div 3.6 of the Evidence Act was amended by the Evidence Amendment (Tendency and Coincidence) Act 2020 which, amongst other amendments, inserted s 98(1A) into the Evidence Act as follows: (1A) To avoid doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding. 1. This provision must be considered with the relatively new s 94(5), which precludes a court from considering the possibility of collusion, concoction or contamination when determining the probative value of tendency evidence or coincidence evidence. These provisions were not applicable to the trial of the appellant. However, they confirm that the mode of reasoning set out in the emphasised passage from Pfennig is applicable to s 98. As will be explained, that form of reasoning was not reflected in the direction given to the jury in this case. The "Coincidence Evidence" in this case 1. In support of counts 6 and 7 of the indictment, the complainant's evidence was that she attempted to resist the appellant putting his mouth on her vagina and he responded by biting on the inside of her thigh which caused a scar. With count 8, the complainant said that the appellant pushed her from behind the ear to make her open her mouth for oral sex. Further, the complainant gave evidence of certain uncharged acts as "context evidence" including that another means by which the appellant would manipulate her jaw to open her mouth for oral sex was to pull her hair, bend her arm back and dig keys into her back. [32] 2. Prior to the trial, the Crown served a notice under s 98(1)(a) advising of its intention to adduce coincidence evidence. It identified the "events" that it relied on as those just noted as well as the appellant having "pinned LT down with a key to her back", "pulled LT's jaw by placing her jaw between his thumb and pointer finger and pushing down with his palm to force LT to perform fellatio on him" and he "bit LT hard on her inner thigh when she resisted his attempts to perform cunnilingus on her". [33] The notice stated that the evidence was sought to be tendered to prove the appellant engaged in the relevant sexual acts against LT that she described. The notice was drafted on the basis that the relevant "event" was those acts and not the account of those events. 3. A voir-dire was conducted in relation to the admission of this evidence. The Crown's submissions did not articulate the significance or otherwise of proving that it was improbable that the events, being the offences, occurred coincidentally. The appellant's counsel identified the "logic of coincidence reasoning is that similarities in the accounts of two or more witnesses regarding the conduct of the accused make it improbable similar allegations would be made independently by the witness unless they were true (in the absence of concoction or joint contamination of their evidence)". [34] Save for the reference to concoction or contamination, that contention reflects the emphasised passage from Pfennig set out above and is consistent with Saoud and Magennis. It was the only basis that satisfied s 98 that was articulated during the trial. 4. The balance of the defence submissions addressed the probative value of the evidence and its prejudicial effect, specifically the risk that LT's evidence may "divert the jury in [its] task by tempting [it] to convict the [appellant] on the basis of a general impression that he had participated in such offences, based only on suspicion." [35] The oral submissions on the voir-dire debated the significance of the potential for contamination, collusion, or concoction to the admissibility of the evidence. In light of The Queen v Bauer, [36] the potential for that to occur is not relevant to determining admissibility and is a matter for the jury. There is no reason why that is not equally applicable to coincidence evidence including evidence that seeks to invoke the reasoning set out in the emphasised passage in Pfennig. 5. The trial judge decided to admit the evidence. In describing the probative value of the evidence, his Honour appeared to accept the Crown's submission that "there is such value as both witnesses detail what are described as three identical mechanisms employed by the accused to coerce a person to submit to sexual activity". [37] The summing-up on Coincidence Evidence 1. At the trial judge's request, the Crown Prosecutor prepared a number of draft directions including a direction concerning coincidence evidence. The text of that direction was not provided to this Court but its content can be deduced from the events that followed its distribution. 2. Counsel for the appellant prepared a written response to the Crown Prosecutor's proposed directions that included the following: [38] "The direction on coincidence evidence proposed by the Crown also currently reads: The evidence of the pattern of behaviour can only be used in the way the Crown asks if you find two matters: firstly, that the accused did the other acts; and secondly, that they are so similar to the acts giving rise to the charge, that you find it is highly improbable that both acts were committed by a different person. If you accept those two matters, then you can use that evidence, together with the other evidence in the Crown's case, to be satisfied beyond reasonable doubt that the accused committed the acts giving rise to the offences charged in the indictment. This makes no sense in the present trial as it is not a question of some other person engaging in this alleged conduct. This passage ought be recast to accord with the reasoning processes available in this trial." 1. The reference in the submission to this not being a case in which there was a "question of some other person engaging in this alleged conduct" confirms that the direction prepared by the Crown Prosecutor was appropriate to the type of case described above (at [55]) i.e., a case where it is the identity of the offender that was the central issue. The reference by counsel for the appellant to the "reasoning process available in this trial" appears to be a reference to what counsel stated in her submissions on the voir-dire, namely the "improbab[ility] [that] similar allegations would be made independently by the witness unless they were true". 2. The content of this direction was the subject of debate between counsel during a break in the summing-up. [39] The Crown Prosecutor proposed the replacement of the words "that you find that is highly improbable that both acts were committed by a different person" with the words "it is highly improbable that it was a coincidence that the complainant alleges the three specific acts of making her comply to the sexual acts of the accused" [40] in what became [334] of the summing-up. Counsel for the appellant accepted that this change answered her submission. [41] 3. The relevant part of the summing-up delivered to the jury was as follows: [330] A related topic is the question of what has been referred to as the coincidence evidence. You have evidence before you that the Crown relies upon as establishing that he committed certain offences set out in the indictment, which include three mechanisms to force the complainant to submit to forced sexual activity. That is the pressure on her head to force her jaw open; the use of the keys in her back; and the biting on the inside thigh close to the genital region. [331] As part of its case against the accused, the Crown has also lead evidence from [LT], that when the accused forced sexual activity upon her, he used the same three mechanisms to force her to submit. That evidence is before you because sometimes there may be such a strong similarity between two different acts and the circumstances in which they occur, that a jury would be satisfied that the person who did one set of acts must have done the others. That is to say, there is such a significant similarity between the two acts and the circumstances in which they occurred that it is highly improbable that the events occurred simply by chance; that is, that it is a coincidence. [332] So [it] is the Crown case … [that] there are two people saying much the same thing and that is not just a coincidence. The improbability of two or more events occurring by chance or coincidence may lead to a conclusion that the accused person committed the act that is the subject of a particular charge. [333] Here, the Crown says that provided you are satisfied that the accused did use the three mechanisms described by the [LT], then those acts and the circumstances in which they were done were so similar to the acts alleged in the indictment against [TH], her daughter, that you would conclude beyond a reasonable doubt that the accused must have committed the offences with which he has been charged. [334] The evidence of the pattern of behaviour can only be used in this way if you find two matters. Firstly, that the accused did the other acts; and secondly, that they are so similar to the acts giving rise to the charge that it is highly improbable that it was a coincidence. That the complainant alleges the three specific acts of making her comply with the sexual acts of the accused. If you accept those matters, then you can use the evidence, together with the other evidence in the Crown case, to be satisfied beyond a reasonable doubt that the accused committed the acts giving rise to the particular offences. [335] However, that is the only way in which you can use evidence of these other acts. You cannot reason that because the accused may have committed the other acts, he is the type of person who will commit criminal activity generally, or he is a person who is likely to have committed the offences charged. That evidence is not placed before you for that type of general reasoning. You cannot punish the accused for other conduct attributed to him by finding the accused guilty of the charges [on] the indictment. [336] The address by counsel for the accused involves a contention that there was a significant difference between the complainant, and [LT], in relation to their accounts of the technique allegedly used by the accused to coerce them to perform fellatio, and the defence relies upon this as removing any striking similarity between those two witnesses in the area of coincidence. [LT's] evidence was that, 'He forced the mouth open and told me not to bite, and he put his hands onto my jawbone and squeezed and then pushed my bottom chin down.' She was asked, Q. It hurt, and that would cause you to open mouth. A. Yes, well, with the pressure on my chin down, yes. [Counsel] puts to you that that description is different to what the complainant alleges. 1. As noted below in relation to ground 3, the jury's deliberations continued over a number of days. After the trial judge gave them a majority verdict direction, the jury returned with a request for further directions about context evidence, tendency evidence and coincidence evidence. [42] His Honour provided them with a written direction on each topic. The written direction provided in relation to coincidence evidence [43] was not relevantly different to that set out above. 2. Four points should be noted about the above direction. 3. First, as noted, this direction appears to have been adapted from a coincidence direction of the kind provided in the Bench Book [44] and which was appropriate to the type of case where evidence of similar events is admitted to establish the identity of the accused as the person who committed the charge on the indictment. Hence, [331] of the summing-up refers to the jury being satisfied "that the person who did one set of acts must have done the others". That reasoning had no application to this case. There was never the remotest suggestion by anyone in this case that the "events" in the form of the sexual acts said to have been committed against LT and the complainant were coincidental. 4. Second, nowhere in this direction is there any identification of a path of reasoning that involves determining, having regard to similarities in events, that it was improbable that they did not occur coincidentally but instead were committed by the appellant. The direction uses the language of s 98 but it does not attempt to spell out the reasoning process that s 98 envisages. Instead, the jury were told (at [331] and [334] of the summing-up) that the similarities between these two events, being the acts described by LT and the complainant, made it improbable that they occurred by chance. 5. However, in the context of this trial, that direction reversed the reasoning process. The purpose of the direction was to enable the jury to conclude that "something" did not happen by coincidence and therefore to also conclude that the offence against the complainant was committed by the appellant. However, the summing-up at [331] and [334] invited the jury to reason, from a finding that the offences against both LT and the complainant were committed, that they did not happen by coincidence. 6. In this case the only permissible "something" was the similarity in the accounts given by LT and the complainant. The only available path of reasoning that satisfied s 98 was one that moved from concluding that it was improbable that such similar accounts would be given by different persons coincidentally, but instead were given because they were most probably true, to concluding that the complainant's evidence should be accepted and thus the appellant committed the relevant offences against the complainant. 7. Third, if anything, parts of the above summing-up especially at [333] amount to more of an invitation to the jury to engage in tendency reasoning rather than coincidence reasoning. However, it suffers from the defect that it does not identify any particular tendency of the appellant, although, no doubt, one could have been identified. More importantly, the summing-up includes an anti-tendency direction at [335] so that, in the end result, these directions did not give the jury any sensible assistance as to how to use the evidence of LT and its similarity to the evidence of the complainant in the context of determining whether the complainant's evidence should be accepted. 8. Fourth, the Crown submissions seek to make much of the role of counsel for the appellant in effectively "agreeing" to this direction. However, counsel's role needs to be placed in context. From the outset, counsel for the appellant objected to this evidence being admitted. Just as importantly, the appellant's counsel appears to have been the only participant in the trial that identified the proper "basis" upon which it could be admitted. The above direction was formulated by the Crown Prosecutor. Counsel for the appellant pointed out what at least she understood was the "basis" for this evidence and suggested something be added to the direction to reflect that. While her efforts may have not gone far enough, any detrimental impact on the fairness of the trial that flowed from the absence from the summing-up of any sensible path of coincidence reasoning was not something she caused or contributed to. At most, she only failed to prevent that impact. Parties' submissions 1. The appellant's written submissions addressed both grounds compendiously. It was contended that the grounds should be determined by reference to the principles in House v The King. [45] The appellant contended that, to engage in the reasoning that the Crown was asserting, it was necessary for the trial judge and the jury to assume the facts which the Crown was seeking to prove. The appellant contended that the decision to admit the evidence was based on that misconception and the terms of the above direction reveal that the trial judge invited the jury to adopt the same reasoning. [46] It was submitted that the effect of the direction was that the jury was advised that it was permissible to convict based "only on the suspicion that similar conduct occurred to LT" and the direction "marginalised the issue of contamination or concoction to the extent that it could play no role in his Honour's summing-up". [47] 2. The Crown contended that this Court's review of the decision to admit the evidence was governed by the "correctness standard", that is "it is for the court itself to determine" admissibility rather than "deciding whether it was open to the trial judge" to determine admissibility (Bauer at [61]). [48] The Crown characterised ground 1 as directed to the manner in which the Crown deployed the evidence and was left to the jury by the trial judge. [49] The Crown contended that the form of reasoning it proposed, and which was left to the jury, conformed with s 98 and was unduly favourable to the appellant: [50] "By contrast, the approach taken by the Crown, and the approach consequently left to the jury, required the jury first to decide whether or not they believed the complainant's mother. Having done so, however, the reasoning that the jury were permitted to engage in was consistent with section 98, namely, they were invited to reason that the complainant's mother's allegations were so similar to the complainant's that it was improbable that the latter's were the result of coincidence. In other words, the only distinction between the process of reasoning the applicant contends was available and the process of reasoning left to the jury was that the latter required the jury to consider the evidence of the complainant's mother in isolation before they were permitted to use it. This approach favoured the applicant and failed to take full advantage of the coincidence evidence but was not unlawful." (emphasis added) 1. The Crown cited R v WRC [51] as support for the contention that the jury did not have to be satisfied beyond reasonable doubt that LT's evidence was correct before they could use it to support coincidence reasoning. The submissions also referred to Versi as supportive of the above form of reasoning. [52] 2. In relation to ground 2, the Crown noted that part of the appellant's contention that the flaw in the above directions was that his Honour erred in failing to direct the jury about the need to exclude concoction and allowed the jury to convict the appellant based on LT's evidence alone. [53] In response, the Crown noted that no objection was taken with the direction by the appellant's counsel and there was little exploration of the possibility of concoction in the evidence at the trial. [54] It was submitted that the direction did not enable the jury to convict based on a "suspicion" that LT's evidence could be true but that it was instead instructed in the summing-up [55] that LT's evidence could be used "together with the other evidence in the Crown case" to conclude beyond reasonable doubt that the accused committed the acts giving rise to the possible offences. [56] It was also submitted that no miscarriage of justice was occasioned in relation to the directions and that was fortified by the failure of counsel for the appellant at the trial to seek additional directions. [57] Reasoning 1. In relation to ground 1, the Crown's submission that the approach in Bauer should be adopted by this Court in reviewing the admission of coincidence evidence should be accepted. There is no relevant point of distinction between tendency evidence and coincidence evidence. It follows that it is not necessary to review the trial judge's reasons for the admission of the evidence. However, contrary to the Crown's submissions, ground 1 does not address the manner in which the evidence was deployed at the trial or in the summing-up. It is concerned with the admission of the evidence and that is what should be addressed. 2. Section 98 is an exclusionary rule. To determine that the evidence was properly admitted, it suffices to identify a basis for its admission. Whether the evidence was deployed in the trial in a manner consistent with s 98, or whether the jury were instructed in a manner that reflected its terms, is not an issue that arises in determining the admissibility of the evidence, although it may separately give rise to an error or irregularity in the trial or a miscarriage of justice. Hence, in Cornell, evidence that was originally admitted as tendency evidence was ultimately deployed by the Crown as coincidence evidence and the trial judge directed the jury accordingly. As that use was consistent with the Evidence Act and the appellant's counsel embraced that course, no unfairness in the trial was demonstrated. [58] 3. In this case, as the appellant's submissions effectively conceded, there was a basis for the admission of the evidence of LT that was not excluded by s 98, namely by the process of reasoning that focused on the improbability of LT and the complainant giving similar accounts of the sexual assaults committed by the appellant against each of them by coincidence rather than because they were both telling the truth. It follows that ground 1 should be rejected. 4. However, ground 2 is directed to the manner in which the evidence was deployed, and specifically the trial judge's direction. To the extent that the appellant contended that the direction did not address the possibility of concoction or collusion, then the Crown's contention that the combination of the paucity of the evidence of such concoction or collusion and the absence of any complaint from the appellant's trial counsel meant that this complaint has no substance, should be accepted. 5. Further, contrary to the appellant's submissions, there is nothing in the direction that suggests to the jury that they were entitled to convict only on the "suspicion" that similar conduct occurred to LT. To the contrary, the jury were specifically instructed in the summing-up [59] that, before they considered the evidence of a "pattern of behaviour", they had to be satisfied that the appellant committed the relevant acts against LT. As noted by the Crown, this aspect of the direction was unduly favourable to the appellant in that it was not necessary to first accept LT's evidence before engaging in coincidence reasoning. 6. However, this only begs the question of what coincidence reasoning the jury were told they were permitted to engage in. The emphasised part of the Crown's submissions set out in [91] appears to embrace the coincidence reasoning identified by the appellant as the only permissible form that was engaged by this evidence, but contends that the directions given to the jury reflected that reasoning except that it was more favourable to the appellant because it required the jury to be first satisfied beyond reasonable doubt that LT's evidence was correct. That contention should be rejected. As already noted, the relevant part of the summing-up did not direct the jury's attention to the asserted similarities in the accounts given by LT and the complainant and then tell them they were entitled to reason that it was improbable that the provision of similar accounts about separate crimes was coincidental but was instead the consequence of the two witnesses telling the truth. Instead, as contended for by the appellant, the direction told the jury to conclude that the two assaults were not coincidental having first determined that both the complainant's and LT's accounts should be accepted. To the extent that it was provided with any assistance about how to reason towards a conclusion that the appellant committed the offences recounted by LT, it was in that part of the summing-up at [333] which best appears to resemble tendency reasoning, something the jury were later told it could not engage in. 7. The end result is that the jury received evidence of the commission by the appellant of offences against LT that were similar to those alleged by the complainant without receiving any sensible, much less permissible, instruction as to how to use that evidence in reasoning towards a conclusion that the relevant aspects of the complainant's evidence should be accepted. At the very least, the giving of a direction to the jury that did not identify a permissible basis for using the evidence of LT as either coincidence evidence or tendency evidence was an "irregularity" in the conduct of the trial. [60] Further, it constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) in that there was a "real chance" that the jury's consideration of that evidence without such an instruction affected the jury's verdict, [61] "realistically [could] have affected the verdict of guilt", [62] "had the capacity for practical injustice" or was "capable of affecting the result of the trial". [63] Otherwise, the Crown did not rely on the proviso. 8. Given the circumstances in which the evidence was admitted and the jury was directed, there may be some scope for argument as to whether r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is engaged in relation to ground 2. In any event, given the findings above, leave to raise that ground should be granted. 9. Accordingly ground 1 is rejected. However, leave to raise ground 2 will be granted and the ground is upheld. Ground 3 – A miscarriage of justice occurred by virtue of the discharged [sic] of Juror G and the continuation of the trial with a jury of 11 in the circumstances where: 1. prior to the discharge of Juror G there was a reasonable basis to concluding [sic] that Juror G was a dissentient to conviction; and/or 2. it can be concluded from the circumstances in which the verdict was returned that Juror G was a dissentient to conviction THE JURY'S DELIBERATIONS 1. The jury of twelve retired to commence their deliberations at 12:33pm on 11 October 2017. Following their retirement, the trial judge addressed a number of questions from the jury which are not relevant for present purposes. The deliberations continued for several days without a unanimous verdict being reached. 2. Late on the afternoon of 17 October, and in response to a note from the jury [64] indicating that they were unable to reach a unanimous decision and were "no longer moving forward", the trial judge gave a Black direction. [65] The jury deliberations then continued. 3. The following day, 18 October 2017, the trial judge received a further communication from the jury [66] asking that a number of directions be repeated. The jury were then provided with extracts from the summing-up of the trial judge setting out those directions. Shortly after being provided with those extracts, the Court was reconvened and his Honour said this: [67] "I've received a jury note which I can't share the entire contents with counsel at the moment, for reasons that'll become apparent. Just to refresh everyone's memory, I gave the jury a Black direction yesterday afternoon, and it was agreed that the correct course was that if there were no verdicts after that, I needed to be satisfied of the two preconditions under s 55F(2) before giving a further direction about majority verdicts. Well, it's clear that time of eight hours has expired, and a reasonable time has expired. The, to put it shortly, the jury has now given me a note and the, as the Court of Criminal Appeal said in Hawi v The Queen [2014] NSWCCA 83, 'the judge is not required to disclose the full content of jury notes which reveals specifics about the jury's deliberations, but my summary of the notes to counsel is sufficient'. But I can tell counsel on ten matters the jury has reached a majority verdict of 11 to 1, and on – well, they tell me on the note that they have – and on four as the jury has reached a majority verdict, but not 11 – 1, and the note concludes, the note says, 'We the jury cannot come to a unanimous agreement. We have reached the following', and the details are set out there, and I won't share them with counsel at the moment, and then it concludes, 'We feel if we return tomorrow there will be no change to our verdict'. Now, it seems to me that strictly speaking, what I should do because the jury has pre-empted the next stage, is to – if counsel wish me to – comply with the formalities and satisfy myself by questioning the foreperson as to s 55F(2), that is whether the jury is unlikely to reach a unanimous verdict. The question is whether I have to then give them a further perseverance direction, notwithstanding that they've already told me what they're up to. Certainly, I would give them another perseverance direction in relation to the four counts which are not 11 – 1 counts at the moment, and it may be prudent to give them a perseverance direction as the balance." 1. Counsel for the appellant agreed that evidence should be taken from the foreperson, and submitted that the trial judge should then give the jury a direction that a majority verdict was available, and should include a so-called perseverance direction. The Crown's final position was to acquiesce to this course. [68] The foreperson of the jury then gave evidence that she considered that a unanimous verdict was unlikely. When the jury returned to Court, his Honour said: [69] "Good afternoon, ladies and gentlemen. I have received your note and if you do not have a copy of it, we will give you a copy of it shortly if necessary. I am not permitted by law to disclose the contents of all of the voting patterns that are indicated in the note and I mean disclose that to the court. However, I am required to give you this direction, some of which may seem to be a repetition of what I've already said, but please bear with me. I have been told that you have not been able to reach a unanimous verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. The circumstances have now arisen which I may take a majority verdict. I direct you that should you continue to be unable to reach a unanimous verdict on any count then you may return, and I must accept, a verdict of 11 of you as the verdict of the jury in this case. However, you should consider that it is preferable that your verdict be unanimous and you should continue to strive to reach a unanimous verdict if you can do so because, as I have said, experience shows that juries can often agree if given more time to consider and discuss the issues but if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has promised to give a true verdict according to the evidence. That is an important responsibility which you must fulfil to the best of your ability, bearing in mind your individual experience and wisdom and the expectation that you will judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors and to calmly weigh up their opinions and test them by discussion because calm and objective discussion of the evidence can often lead to a better understanding of the differences of opinion which you may have and which may convince you that your original view was wrong but that is not, of course, to suggest that you can, consistently with your oath or promise as a juror, join in a verdict if you do not honestly and genuinely think that is the correct one. As I have said, you should continue your deliberations with a view to reaching a unanimous verdict. If, however, that becomes plainly impossible but you are able to reach a verdict by agreement of 11 of you then you may return such majority verdict on any account. That is to say, a verdict of 11 out of 12 of you. These alternate ways are the only ways in which you may return a verdict according to law. I am going to ask you to retire again in a moment to determine whether you wish to continue deliberations this afternoon. I have told counsel that on 10 counts, you have already come to a view, 11:1 and that on four counts you are not in a position where there is a unanimous verdict or an 11:1 vote so could I just ask you to retire for a couple of minutes, if you like, and please let me know whether, in the light of what I have just said to you, you are likely to be able to come to either a unanimous verdict on any count or majority verdicts on any counts in addition to what you've already told me because the direction that I have given you may indicate that your 11:1 view, for example, on any counts may change when you reconsider the other counts on which you are not at an 11:1 position. If I could just ask you to retire the jury room for a short time and let me know whether you wish to continue today. It is 3.35; you have been deliberating all day. There will be no problem if you wish to return tomorrow. We will just wait here until you are ready to let us know. Thank you." 1. His Honour then received a note form the jury which read: [70] We would like to return tomorrow to try to reach a majority verdict on the remaining indictments. 1. It was agreed that this request would be met. [71] However, shortly afterwards his Honour informed the parties that he had received a further communication from an individual juror [72] (Juror G) which was in the following terms [73] : I doubt I will be able to continue with this as my blood pressure has been continually increasing to dangerous levels. I need to visit a doctor. 1. Following a discussion between his Honour, the Crown and counsel for the appellant, a position was agreed, the terms of which were encapsulated in the following observation by his Honour: [74] "Well why don't I tell the jury go home, return tomorrow to try and reach a majority verdict and the juror who wishes to seek medical attention should do so as appropriate and communicate. If the juror's not able to attend at any stage tomorrow, to please provide a note or a communication to the court office about the juror's position." 1. The jury then returned to the courtroom and his Honour said the following: [75] "Thank you, ladies and gentlemen, I have two notes from you. Firstly, the one that reads: 'We would like to return tomorrow to try and reach majority verdict on the remaining indictments'. Of course you may do that in light of the directions I have given you, so in a moment I will ask you to retire for the day and then return tomorrow. The second may come from a juror who has not been identified other than by number, but the juror's number has not been disclosed to the Court. I do not know whether the jury is male or female and it is irrelevant, but it reads: 'I doubt I'll be able to continue with this as my blood pressure has been continually increasing to dangerous levels, I need to visit the doctor'. That juror should of course seek medical attention at any time whether tonight or tomorrow and if the jury needs to seek medical attention and is unable to attend for some or all of the day tomorrow, please let us know as soon as possible by communication to the court officer, preferably with some indication from the doctor as to what the prognosis is and as to whether you will be able to continue as a juror." 1. On resumption of the proceedings the following day, his Honour informed the parties of the following: [76] "I have the Sheriff here who I propose to call to evidence about the fact that one juror has not turned up this morning and has notified the court that he, 'Doesn't want to do this jury thing any more', so I propose to extract that evidence from the Sheriff if the parties are content with that?" 1. It should be noted at this stage that counsel who appeared for the appellant on this day was not counsel who had appeared for the appellant for the duration of the trial. In any event, both the Crown and counsel for the appellant agreed with the course that his Honour had proposed. The Sheriff then gave the following evidence, in answer to questions from his Honour: [77] "Q. Did you produce this morning a copy of an email sent by the duty officer of the Sheriff's office about 6:30pm last night to a number of people in that office, including yourself? A. Yes. Q. Did that identify a juror by name and recorded that the juror rang to say that he will not be coming in anymore. He was Juror G in court 10. He provided his mobile phone number which is in the email. He said he has the ID, that is, the jury identification and will try and bring it in tomorrow but, 'He doesn't want to do this jury thing any more'. A. That's correct, your Honour. That was the email received." 1. The Crown then asked: "Q. So this male juror – the party writes, 'I don't want to do this jury thing any more', and he leaves a mobile phone number, has anyone contacted him by that phone number? A. Not as yet, no. It was a phone call that was received in our operations centre – wasn't actually a note or anything and I wanted to report the matter to the attention of the judge pending his directions." 1. The Crown then sought to raise [78] with the Sheriff whether the juror who had sent that communication was Juror G, i.e. the author of MFI 30 which had been given to his Honour the previous day. It was agreed that whilst this was an appropriate avenue of enquiry, it was one to be made by taking evidence from the foreperson of the jury, and not from the Sheriff. The foreperson then gave evidence confirming that Juror G had not attended Court that day. The obvious conclusion was that Juror G was the author of the communication to the Sheriff and the member of the jury who had not attended Court on that day. [79] 2. After the foreperson had returned to the jury room, his Honour said: [80] "The evidence is at the moment – according to MFI 30 – that the juror who was absent today as just confirmed by the foreperson is a juror who wrote the note yesterday – MFI 30 – that says: 'I doubt I'll be able to continue with this is my blood pressure has been continually increasing to dangerous levels, I need to visit the doctor'. It seems to me that that's entirely consistent with the evidence that we've had from superintendent this morning saying that a juror rang and said that they do not wish to continue as a juror and that person is absent this morning. So it seems to me that the appropriate course will be to discharge the individual juror pursuant to s 53B which would then lead to consideration of the question of the exercise of the discretion to continue the trial with 11 jurors under s 53C which is an order that I would make if I am of the opinion that there's no risk of a substantial miscarriage of justice. Mr Crown, do you want to say anything against that course – that is an order that the trial would continue with the jury of 11?" 1. In response, the Crown confirmed his position that the trial should continue with a jury of 11. Having been given an opportunity to speak with trial counsel, counsel for the appellant submitted that "the provisions under the Jury Act… have not been sufficiently met for your Honour to discharge the juror". After further discussion, counsel for the appellant said the following: [81] "[I]t would appear based on that information, there's some irregularity that has occurred that could result in miscarriage of justice if the juror has been subject to perhaps some bullying or some intimidation in the jury room. There is no evidence or information on oath as to what the basis is. A juror undertakes an oath to participate in a trial and cannot just decide not to participate any longer. There are certain provisions – I'm not sure if they're offences under the Jury Act, but jurors cannot just cease to want to participate in a process in which they have sworn an oath to participate in. The possible scenario could be to cease all deliberations for the jury, to have the matter stood over until tomorrow, have the superintendent make some investigation and call that juror in, keep them away from the rest of the jury, and on oath give evidence as to what the nature and basis of the now reluctance to participate. If it is stemming from a cogent medical issue, or that if it is something – perhaps even more sinister, and that that juror is now feeling intimidated or even bullied." 1. After further discussions, the trial judge directed the jury, through the Court Officer, to suspend their deliberations, pending further directions. [82] 2. The Sheriff then gave further evidence [83] that he had made two attempts to call the mobile telephone number of Juror G, but that there had been no answer on either occasion. Following that evidence, his Honour repeated his preliminary view [84] that Juror G should be discharged and that the trial should continue with a jury of 11. That was opposed by counsel for the appellant, who said: [85] "The two telephone calls that have resulted in it not getting through to that juror are insufficient basis to explore whether there is one legitimate medical issue and concern, or whether the juror, him or herself, has been subject to some kind of bullying and intimidation or some other irregularity that would need to be investigated. The accused is entitled to have a jury of 12 persons. Your Honour, I believe, made a majority verdict direction yesterday in which your Honour must tell the jury to try to make a unanimous verdict. I'm aware that there was some indication provided about voting patterns about some of the counts on the indictment.…… I make the point that it is only now the next day we had one juror out of 12 has now provided, in my submission, inadequate information as to the basis of no longer participating or wanting to participate in the process; that the Jury Act itself needs to be – your Honour would have to be satisfied that there has been no miscarriage of justice and there has been no – –" 1. After further discussion, in which counsel for the appellant confirmed this position, [86] the Sheriff gave additional evidence that he had made further attempts to contact Juror G, without success. [87] His Honour then indicated [88] that he was not dissuaded from his preliminary view that Juror G should be discharged and that the trial should continue with a jury of 11. The Crown agreed with that course. Counsel for the appellant opposed it, and submitted that "an investigation would need to occur as to whether or not the other jurors have done anything that may constitute an offence under the Jury Act". [89] Counsel then made an application for the matter to be adjourned until the following day to give trial counsel the opportunity to reflect on the matter and obtain instructions. In making that application, counsel said: [90] "…… [Y]our honour, you can't exclude a possibility or a suspicion that something has occurred in that jury room, and absent any information by the juror other than blood pressure. And I would also submit that even in circumstances where there has been some medical issue, evidence to that effect needs to be provided. If a juror has suffered some heart attack or a stroke or something in the jury room, that's a very serious matter. However, I would submit that saying that 'blood pressure is rising' perhaps because of overexertion in deliberation or something else, is an insufficient basis under the Jury Act for your Honour to be satisfied that the medical condition is sufficient to discharge." 1. The trial judge then delivered an ex-tempore judgment in which he discharged Juror G and ordered that the trial continue with a jury of 11. In the course of that judgment, having recounted the chronology of events, his Honour said the following: [91] "[14] The question now arises as to whether the juror should be discharged and if so, whether the trial should continue with the jury of 11 which enlivens the provisions of s 22, s 53B and s 53C of the Jury Act. This morning, for the first time, [counsel] appears on behalf of the accused in lieu of [trial counsel] who has appeared for the accused throughout the trial but is, presumably to general prior commitment, unable to be here today, which is not a matter attracting any criticism, given that trial and the deliberations have substantially exceeded the initial estimate of the trial length and it is understandable that experienced counsel may have prior commitments which cannot be avoided. [15] [Counsel] ultimately submits that I should adjourn consideration of this issue until tomorrow to enable further reflection by counsel and by [trial counsel] on the matter. [Counsel] submits that the Court cannot exclude the possibility that there has been some misconduct or something in the nature of bullying which has led to the juror expressing his unwillingness to continue and explaining his failure to appear this morning. [16] I should add that after receipt of the initial information from [the Sheriff], the jury foreperson was called to give evidence and she confirmed that the juror who was absent today is the juror who provided the note yesterday indicating that he was having blood pressure difficulties and may be unable to continue. [17] So there is no doubt in my mind that the juror who is absent is the juror who contacted the court last night and has not been able to be contacted today. Neither counsel suggests a view to the contrary is open on the evidence. There is nothing in the evidence to justify any suspicion that there has been any impropriety or episode and the nature of bullying, which may have influenced the juror at all, let alone to such an extent that he may have chosen to absent himself for reasons, which do not coincide with those expressed in MFI 30, and in the contents of the phone call to the officer last night." 1. Having referred to a number of authorities, and to the provisions of s 53C of the Jury Act 1977 (NSW) (the Jury Act), his Honour continued: [92] "[20] Before one gets to that, there has to be consideration of whether the individual juror should be discharged under section 53B. The relevant parts of that section provide that I may discharge a juror if the juror has, in the Court's opinion, become so ill or incapacitated as to be likely to be unable to serve as a juror before the jury delivers their verdict, or c) a juror refuses to take part in the juries [sic] deliberations or d) it appears to the Court that for any other reason effecting [sic] the jurors [sic] ability to perform the functions of a juror the juror should not continue to act as a juror. [21] In my view, a combination of subparagraphs a), c) and d) indicates clearly that the juror is likely to be experiencing blood pressure problems, which may mean that he is ill and suffering stress and unable to continue as a juror. More importantly, the clear evidence is the juror has indicated that he refuses to take part in the jury's deliberations. A combination of those factors, given the stage at which the trial has reached and the length of time that the jury has been deliberating makes it clear that, in my view, subparagraph d) is also satisfied; namely, a combination of those reasons the juror should not continue to act as a juror. [22] So I will therefore make an order under s 53B discharging the juror who was identified as Juror G. I then turn to the question, arising under s 53C, as to whether the trial should continue with a reduced number of jurors. I must discharge the jury if I am of the opinion that to continue with 11 jurors would give rise to the risk of a substantial miscarriage of justice. If I am of the opinion that there is no such risk of a substantial miscarriage of justice then I must order that the trial continue with a reduced number of jurors." 1. His Honour then referred to the judgment of Adamson J in BG v R [93] before continuing: [94] "[25] As no verdict has been entered it is not possible to say whether the case would fall into category 3, which her Honour described as a case where there was no indication of how the discharged juror would have voted except with the benefit of hindsight following the return of a verdict. There has been no disclosure of the preliminary or, indeed, final views of the juror who has been discharged. [26] The other two categories identified by her Honour were, first, those where there is no indication that rises above speculation as to how a discharged juror would have voted. Secondly, where there was an indication of how the discharge juror would have voted prior to the return of the verdict. Her Honour said, at [104] By and large, the effect of the authorities is that it is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors of the case falls into either the second or third categories. In such cases, there is a risk of a substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to be at least unwilling to convict, if not determined to acquit. [27] In my view, even if the verdict, ultimately, lead to inference that the discharge juror may have voted to acquit that is the risk of a substantial miscarriage of justice in those circumstances is ameliorated or eliminated by the fact that the jury has already been given a majority verdict direction, and there has been an indication that the jury has reached an 11 – 1 decision on a number of counts." 1. Having referred to the two stage process in s 53C, and having referred to other authorities, his Honour concluded: [95] "[31] For the reasons that I have given, there is no evidence or indication at all that the juror who has not attended today has been improperly influenced at all. For those reasons, the order I make under s 53C is that the trial will continue with a jury of 11." 1. Following that judgment, counsel for the appellant made an application to discharge the jury. The basis of that application was articulated in the following terms: [96] "There is no basis to know the reason why this juror no longer wants to deliberate, and that there is a real possibility that there might be some contamination amongst the jurors, and that anything that has occurred in the jury room that we know nothing about, may have influenced other jurors and that on that basis, the jury should be discharged. This accused is entitled to be tried by jury of 12 people deliberating. The fact that one person now does not give a valid reason for no longer wanting to participate in that process, I would submit is unfair and it is not in the interest of justice." 1. That application was opposed by the Crown, following which his Honour delivered a further ex-tempore judgment, [97] in which he refused it, saying: "…… [T]he proposition that this jury should be discharged on the basis of some notion that investigation may unearth some evidence of bullying or improper conduct, a matter about which, as I have said in my earlier reasons, is a matter of complete speculation in the absence of any evidence. For those reasons I reject the application to discharge the jury." 1. Following that judgment, counsel for the appellant made an application for the matter to be adjourned until the following day, in order to allow trial counsel to reflect on terms of any further directions which might be given. That application was opposed by the Crown and rejected by his Honour in ex-tempore reasons as follows: [98] " "[Counsel] applies for the matter to be adjourned overnight and the jury sent home so the counsel can give further consideration to whether the standard perseverance direction should be given to the jury. I see no reason for any further delay, given, that as the Crown points out, the jury is when deliberating for the better part of six days and they have been here during the morning and there is no apparent reason as to why there should be any modification to the standard perseverance directions I will give the jury in those circumstances. So I refuse the application." 1. When the jury returned to Court at 12:44pm, his Honour said the following: [99] "Good morning, ladies and gentlemen. Firstly, I am very sorry for keeping you waiting this morning. As you are aware, one of your number is not present today and there have been important legal issues to be determined as a result of the absence of that juror. I have now determined those issues in the light of the evidence that I have had in your absence morning. I can tell you that I have made an order under the relevant legislation discharging the juror who is absent today, and I have made an order that the trial continue with the jury of the 11 of you who remain. I am required to give you this further direction which, to a certain extent, is a repetition of what I said to you yesterday afternoon but with modifications taking account of the fact that there are now 11 of you and not 12. The circumstances have arisen in which I may take a majority verdict, and I direct you that should you continue to be unable to reach a unanimous verdict on any count, you may return, and I must accept, a verdict of ten of you out of the 11 as the verdict of the jury. But you should consider that it is preferable that your verdict be unanimous and you should continue to strive to reach a unanimous verdict. As I have told you more than once, experience has shown that juries can often agree, if given more time to consider and discuss the issues, but if, after calmly considering the evidence and the opinions of the other jurors, you cannot honestly agree with them then you should give effect to your own view of the evidence, because each of you has promised to give a verdict according to the evidence. It is an important responsibility which you must fulfil to the best of your ability, having regard to your wisdom and commonsense and experience of life. You have, as I have already told you on more than one occasion, a duty to listen carefully and objectively to every other juror's views and calmly weigh up their opinions about the evidence and test them by discussion, because experience shows that calm and objective discussion can often lead to a better understanding of any differences of opinion which may exist. That, of course, is not to suggest that you join in a verdict consistently with your promise as a juror if you do not honestly and genuinely think that it is the correct one. So in the light of those further directions, I will ask you to retire again and see whether you can reach verdicts on the counts in this trial. Thank you." 1. The transcript records that the jury retired to continue deliberations at 12:47pm. [100] The jury's verdicts as previously outlined were returned at 2:20pm. [101] The additional evidence relevant to this ground 1. The appellant read an affidavit of Catherine Butler, solicitor, of 25 October 2021 in support of this ground. Ms Butler was the appellant's solicitor at his trial. Ms Butler stated the following in relation to the circumstances in which the jury returned to deliver the verdicts: [102] 23. Up until the time the jury were brought into court, the defence was unaware as to which juror had not wished to continue and was absent, apart from the fact that it was not the foreperson. 24. One of the original 12 jurors was a man of black African ancestry. No other juror was black. The [appellant] is a dark-skinned Aboriginal man. The absent juror was the man of black African ancestry. 1. The affidavit of Ms Butler was relied upon to support the proposition that the failure of the trial judge to discharge the jury gave rise to a miscarriage of justice because the appellant, a "dark-skinned Aboriginal man", had been deprived of the supportive voice of Juror G, a man of "black African ancestry". In other words, it was submitted that Juror G would have been supportive of the appellant on the grounds of race. 2. That submission should be firmly rejected. The description of Juror G is of no relevance. Quite apart from anything else, the submission advanced completely overlooks the fact that in the course of his directions to the jury, the trial judge said: [103] "You have, of course, taken a promise to act as judges, impartial and fair judges, and that role brings very important obligations to your task. The matter that you have to decide are very important not only to the accused but also to the community which is represented by the Crown Prosecutor, and you have a very significant privilege sitting in judgment on fellow citizens, and you must exercise that privilege impartially, and dispassionately and fearlessly, and not be guided by sympathy or emotion at any stage." 1. There is no reason whatsoever to conclude that any member of the jury carried out his or her functions in a manner contrary to that direction. 2. At the conclusion of the hearing before this Court, the Crown was granted leave to file further evidence and submissions in relation to this ground. Pursuant to that grant of leave, the Crown filed two affidavits, the first of which was that of Peter Mitchell Paish of 6 June 2022. Mr Paish was the Crown Prosecutor at the appellant's trial. His affidavit included the following: [104] 2. I have a general recollection of the verdicts being taken in Court the 19th October 2017. That recollection is that the verdicts of the eleven jurors was [sic] unanimous. 3. I have listened to the District Court audio recording of that date which has given me greater clarity of the events of that day. 4. I was in court when the trial Judge said words to the effect 'There has been a note from the jury that they have reached a verdict on all counts'. 5. I was in court when the jury of eleven delivered the two verdicts of Not Guilty and the twelve verdicts of Guilty. I was present when the Judge's Associate asked the Jury Representative to stand after the verdicts were delivered. My general recollection was that there was no dissent when the associate enquired whether the verdicts were of all jurors. I have listened to the audio recording and can hear no such dissent but can hear at least one juror agreeing with the verdicts. 1. Counsel for the appellant, in written submissions filed in response to this evidence, objected to the affidavit of Mr Paish on the grounds of relevance. The evidence is relevant and admissible, although what weight may be attached to it is a separate question and is discussed further below. 2. The Crown also filed an affidavit of Miriam Rottenberg, solicitor. Annexed to Ms Rottenberg's affidavit was the jury note provided to the trial judge advising that verdicts had been reached. The note records a time of 2:05 on 9 October 2017. It follows that although the transcript of the proceedings records the verdicts having been returned at 2.20pm, the verdicts had actually been reached 15 minutes earlier than that. The note was in the following terms: We have a verdict on all 14 indictments. 1. Ms Rottenberg also obtained access to the audio recording of the proceedings on the day on which the verdicts were returned, and annexed to her affidavit an audio file containing an extract of that recording. The extract commences with a discussion between the Crown, counsel for the appellant and the trial judge regarding the manner in which verdicts were to be taken from the jury in circumstances where there were, in some instances, alternative counts. When the jury entered the courtroom, and after the trial judge made reference to the note he had received from the jury indicating that verdicts had been reached, the following was recorded: "Associate: Have you agreed upon your verdicts according to law, that is, according to the directions you were given? Foreperson: Yes." 1. The verdicts were then taken from the foreperson, at the conclusion of which the following was said: Associate: Members of the jury, you say the accused is guilty of 13 charges on the indictment and not guilty of a single charge on the indictment… His Honour: No, not guilty of two counts… Associate: Not guilty of two counts on the indictment, my apologies. Not guilty of two counts on the indictment, but guilty of 12 counts in the indictment. So say your foreperson so say you all? 1. The foreperson (who was obviously speaking into a microphone when delivering the verdicts) is not heard to respond to that question. A faint voice in the background, clearly not that of the foreperson, appears to say the word "yes". Who that person might have been has not been identified. It is possible that it was a member of the jury. It is also possible that it was someone else. Submissions of the parties 1. Counsel for the appellant submitted that it was reasonable to infer, particularly given the speed with which the jury's verdicts were returned after his Honour's final direction, that Juror G was a "dissentient juror". It was submitted that to continue the trial after the discharge of Juror G in those circumstances "deprived the [appellant] of a sympathetic vote on the jury" and gave rise to a risk of a substantial miscarriage of justice. It was submitted that in all the circumstances, the only available inference was that had Juror G not been discharged, he would have voted for an acquittal. 2. Counsel further submitted that neither the jury's note indicating that verdicts had been reached, nor the audio recording of the verdicts being delivered, provided any support for a conclusion that such verdicts were the unanimous verdicts of the jury of 11 person who remained after the discharge of Juror G. It was further submitted that little or no weight could be placed on the affidavit of Mr Paish in circumstances where Mr Paish referred, amongst other things, to having a "general recollection" of the events, and where his affidavit had been prepared almost 5 years after such events had taken place. 3. The Crown emphasised that at the time of the discharge of Juror G, and having received a majority verdict direction, the jury had indicated that verdicts of 11:1 had been reached on a number of counts. The Crown also pointed to the fact that the jury were able to bring in a verdict on all counts a short time later. It was the Crown's submission that in these circumstances, there was no risk of a miscarriage of justice because a majority verdict had been permissible. The effect of the Crown's submission was that in those circumstances, even if it was accepted that Juror G had, up to the time of his discharge, expressed views which were contrary to those of the majority, his absence was immaterial because a majority verdict was allowed. 4. The Crown further submitted that based upon the evidence previously set out, this Court would be satisfied that the verdicts which were returned were the unanimous verdicts of the 11 members of the jury who remained after Juror G's discharge. In this regard, the Crown emphasised that no dissent was voiced by anyone when the trial judge's associate sought to confirm that the verdicts were unanimous. It was submitted that had the verdicts been other than unanimous, some audible dissent would have been expected. It was further submitted that the unanimity of the verdicts was confirmed by the absence of any contrary indication being given in the jury's note advising that verdicts had been reached. Consideration 1. Section 53C of the Jury Act is in the following terms: Discretion to continue trial or coronial inquest or discharge whole jury (1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must-- (a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors. (2) A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912 . (3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order. 1. In Haile v R [105] it was pointed out that because the circumstances which may give rise to a substantial miscarriage of justice are difficult to define, it is similarly difficult to formulate rigid rules governing the circumstances in which it may be necessary to discharge a jury because the risk of a substantial miscarriage of justice has arisen. It was observed that some guidance could be obtained from the decision of the plurality in Filippou v The Queen [106] where the following was said: "By 'substantial miscarriage of justice' what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal, which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description." 1. This definition applies to a determination under s 53C(1) of the Jury Act, the overriding consideration being the entitlement of the parties to a fair trial. [107] 2. In BG v R, to which the trial judge referred when delivering his reasons refusing to discharge the jury, Adamson J identified three categories of case in which a question may arise as to whether a trial should continue with a reduced number of jurors, namely: 1. where there is no indication how the discharged juror would have voted; 2. where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and 3. where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal. 1. Her Honour concluded that if a trial judge has discharged a member of the jury, and the case falls into either the second or third category, there is risk, if the trial continues with the remaining jurors, of a substantial miscarriage of justice because: [108] …[I]t is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit. 1. Her Honour also observed [109] that what distinguishes the second and third categories from the first, is that in each of those two categories, something is known, or can, including with the benefit of hindsight, be inferred, about what has transpired in the jury room, so as to give rise to a risk of a substantial miscarriage of justice if the trial were to continue with the remaining members of the jury. In reaching these conclusions, her Honour made reference to a number of authorities, including R v Roberts [110] in which Cullinane J observed: [46] To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict ….. 1. The complaint brought by the appellant under this ground centres, not on the determination of the trial judge to discharge Juror G, but on the determination of the trial judge to continue the trial with a jury of eleven. Counsel for the appellant sought to bring the circumstances of this case within the third of the categories identified by Adamson J in BG v R. The appellant's position is that the continuation of the trial with a jury of eleven, in the absence of Juror G, has given rise to a risk of a substantial miscarriage of justice. 2. There is little doubt that Juror G was, as counsel for the appellant described him, a "dissentient juror". There are two particular matters which support that conclusion. The first, is that prior to Juror G's discharge, the foreperson of the jury had indicated that unanimous verdicts were unlikely. The second, is that it was only shortly after that indication was given that the trial judge received MFI 30, in which Juror G explained the stress under which he had been placed. The overwhelming inference is that such stress stemmed from the fact that Juror G was dissenting from the majority. 3. Accepting that to be the case, it is necessary to bear in mind that when Juror G was discharged, the point had been reached where a majority verdict could be taken. Accordingly, if the verdicts which were ultimately returned were the unanimous verdicts of the remaining 11 members of the jury, the fact that Juror G was dissenting would be of no consequence. Given that the jury had already indicated that they had reached 11:1 verdicts on some counts, it can be reasonably inferred that at least some of the verdicts which were returned were the unanimous verdicts of the 11 jurors who remained. However, whether the evidence supports a conclusion that this is the case in respect of all of the counts is another question entirely. 4. The evidence which has been adduced in relation to that issue is equivocal at best. To begin with, little weight can be placed upon the affidavit evidence of Mr Paish. Mr Paish deposed [111] to the fact that he had a "general recollection" of the verdicts, before asserting that his recollection was that "the verdicts of the eleven jurors was [sic] unanimous". The basis of those assertions is not set out. Mr Paish then deposed to the fact that the audio recording had provided him with "greater clarity of the events of that day". His affidavit does not explain how or why this is the case. Mr Paish goes on to make reference to his "general recollection" that there was no dissent when the verdicts were returned. The generality of Mr Paish's affidavit, along with the fact that it was sworn almost 5 years after the relevant events (in circumstances where it is to be inferred that he did not have occasion to call the events to mind until he was asked to prepare his affidavit) are such that little weight can be placed on his evidence. 5. The note from the jury indicating that verdicts had been reached provides no indication one way or the other whether the verdicts were unanimous. The audio recording is similarly equivocal. In particular, when asked whether the verdicts were, in fact, unanimous the foreperson is not heard to respond. Whilst a voice in the background appears to utter the word "yes", whether that voice belonged to a member of the jury or someone else is unclear. 6. In those circumstances, it is not possible to reach an affirmative conclusion that all of the verdicts were the unanimous verdicts of the eleven jurors who remained. Whilst it is likely that some were, there is also a possibility that some were not. If some were not unanimous, then the continuation of the trial in the absence of Juror G becomes significant, and brings the circumstances of the case within the third category set out in BG v R. Bearing in mind the terms in which the phrase "miscarriage of justice" was explained in Filippou v The Queen, it is important to emphasise that s 53C of the Jury Act speaks of a risk of a substantial miscarriage of justice. 7. For all of these reasons, this ground is made out. ORDERS 1. The orders of the Court are as follows: 1. The time for filing of the notice of appeal is extended until 26 October 2021. 2. The appeal against conviction is allowed. 3. The convictions and sentences imposed on the appellant in the District Court are quashed. 4. The matter is remitted to the District Court arraignment list on 15 July 2022 at 9:30am. ********** Endnotes 1. See for example Q & A 449 – 525 at AB 378 – AB 380; Q & A 536 at AB 380; Q & A 542 – 551 at AB 381 – AB 382; Q & A 554 – 584 at AB 382 – 384. 2. AB 1123.38 – AB 1123.40. 3. AB 1124.42 – AB 1125.2. 4. AB 1126.22 – AB 1126.41. 5. R v MR [2013] NSWCCA 236 at [61], ("MR"). 6. At [11.25]. 7. At [11.27]. 8. At [84]-[97]; see also R v Ceissman [2010] NSWCCA 50; and R v Gale; R v Duckworth [2012] NSWCCA 174. 9. At [4-237]. 10. (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [20]. 11. [2015] NSWCCA 258. 12. At [87]. 13. A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [1024] (Magennis). 14. (1995) 182 CLR 461; [1995] HCA 7 at 482 (per Mason CJ, Deane and Dawson JJ). 15. [2013] NSWCCA 206. 16. At [12]. 17. At [117]. 18. At [129]. 19. At [129]. 20. At [134]. 21. At [142]. 22. At [134]. 23. At [14]. 24. At [15]. 25. At [16] to [17]. 26. See R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [58] ("Bauer"). 27. (2014) 87 NSWLR 481; [2014] NSWCCA 136. 28. (1936) 55 CLR 499 at 504 to 505 at [60]. 29. At [43]. 30. At [1021] to [1025]. 31. At [4-240]. 32. AB 892. 33. AB 469. 34. Def subs 2509/2017 at [9]. 35. Def subs at [13]. 36. (2018) 266 CLR 56; [2018] HCA 40 at [70] to [71] ("Bauer"). 37. AB 749 at [18] 38. AB 443. 39. AB 30. 40. AB 30.171. 41. AB 30.174. 42. AB 133. 43. AB 460. 44. At [4-237]. 45. At 504 to 505. 46. Appellant's submissions at [131] and [140] 47. Appellant's submissions at [141] to [142 48. Crown submissions at [108] 49. Crown submissions at [109] 50. Crown submissions at [112] 51. (2002) 130 A Crim R 89; [2002] NSWCCA 210 and BP v R; R v BP [2010] NSWCCA 303. 52. Crown submissions at [115] to [116] 53. Crown submissions at [123] 54. Crown submissions at [126] to [128] 55. At [334]. 56. Crown submissions at [129] 57. Crown submissions at [131] 58. At [113]. 59. At [334]. 60. GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40 at [24] at [24]. 61. Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [41] and [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J. 62. At [123] per Gageler J. 63. Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 at [74] per Edelman and Steward JJ). 64. MFI 26. 65. AB 124 – AB 125; Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. 66. MFI 26. 67. AB 135. 68. AB 135 – 136. 69. AB 139 – 140. 70. MFI 29; AB 142. 71. AB 142. 72. MFI 30. 73. AB 142. 74. AB 143. 75. AB 143 – AB 144. 76. AB 146. 77. AB 147. 78. AB 148. 79. AB 149. 80. AB 150. 81. AB 153. 82. AB 153. 83. AB154 – 155. 84. AB 155. 85. AB 155. 86. AB 156. 87. AB 158. 88. AB 158. 89. AB 159. 90. AB 162. 91. AB 176 – AB 177. 92. AB 178 – AB 179. 93. [2012] NSWCCA 139; (2012) 221 A Crim R 215. 94. AB 179 – AB 181. 95. AB 181. 96. AB 162 – 163. 97. AB 182 – 183. 98. AB 184. 99. AB 165 – AB 166. 100. AB 166. 101. AB 168. 102. At paras 23-24. 103. AB 11 at [15]. 104. At para 2. 105. [2022] NSWCCA 71 at [200] per Bellew J (Bell CJ and Ierace J agreeing). 106. (2015) 256 CLR 47; [2015] HCA 29 at [15] per French CJ, Bell, Keane and Nettle JJ. 107. Phan v R [2018] NSWCCA 225 per Price J at [128] (Hoeben CJ at CL and Fullerton J agreeing). 108. At [104]. 109. At [105]. 110. [2005] 1 Qd R 408; [2004] QCA 366 at [46]. 111. At para 12. Amendments 04 July 2022 - Representation added to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2022