Vella v R [2022] NSWCCA 204

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Vella v R [2022] NSWCCA 204 Hearing dates: 20 June 2022 Date of orders: 21 September 2022 Decision date: 21 September 2022 Before: Beech-Jones CJ at CL at [1] Price J at [116] Lonergan J at [138] Decision: (1) The applicant be granted leave to raise grounds 1 and 3 of his appeal; (2) The applicant be refused leave to raise ground 2; (3) The tender of annexures A, B, C and D to the affidavit of Madeleine Schneider sworn 20 October 2021 be rejected; (4) The appeal be dismissed; (5) The respondent is to notify the Registrar of the Court of Criminal Appeal, two months in advance of the date fixed for the applicant's further trial, of that fact; and (6) Within 14 days of the completion of the remaining proceedings against the applicant at first instance, the respondent is to notify the Registrar of the Court of Criminal Appeal of that fact. Catchwords: CRIMINAL APPEAL – alleged indecent assaults by primary schoolteacher on Years 5, 6 and 7 students – three complainants – 19 counts – jury delivered verdicts on 4 counts relating to one victim – three guilty verdicts – one not guilty verdict – jury then discharged because of bullying allegation by one juror – Jury Act 1977 (NSW), s 73A – Sheriff investigation into bullying allegation – unfounded – applicant sought to rely on material produced by Sheriff's investigation to show juror bias – one juror alleged to invoke personal experiences of sexual assault in evaluating the evidence – one juror reported that another juror "had made up their mind on the first day basically" – whether evidence produced by Sheriff inadmissible by reason of exclusionary rule concerning evidence of jury deliberations – whether exclusionary rule applicable where evidence of deliberations derived from Sheriff's report – held that evidence that juror referred to own experience of sexual assault inadmissible – by a majority held that evidence that one juror perceived another to have their mind made up inadmissible – bias ground rejected – whether verdict unreasonable or could not be supported having regard to the evidence – ground rejected – in support of Count 1 complainant gave evidence that applicant kissed her in the storeroom throughout the year – in support of Count 2 complainant gave evidence that applicant kissed her in the laundry while tutoring her over a sustained period of time – whether trial judge erred in directing the jury that the relevant acts for Counts 1 and 2 was the "first time" that the applicant kissed her in the storeroom and the laundry – ground rejected Legislation Cited: Crimes Act 1900 (NSW) Crimes Act 1958 (Vic) Evidence Act 1995 (NSW) Jury Act 1977 (NSW) Jury Amendment Act 2004 (NSW) Supreme Court (Criminal Appeal) Rules 2021 Cases Cited: Agelakis v R [2020] NSWCCA 72 AJ v R [2022] NSWCCA 136 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 KRM v R (2001) 206 CLR 221; [2001] HCA 11 Libke v R (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Makarov v R (No 1) [2008] NSWCCA 291 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Petroulias v The Honourable Justice McClellan [2013] NSWCA 434 R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep) R v Czajkowski; R v Shepherd [2002] NSWCCA 530 R v Goodall (2007) 169 A Crim R 440 R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v SLJ (2010) 24 VR 372; [2010] VSCA 16 RD (a pseudonym) v R [2021] NSWCCA 94 REE v The Queen (2010) 203 A Crim R 11; [2010] VSCA 124 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Smith v The State of Western Australia (2013) 226 A Crim R 541; [2013] WASCA 7 Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 VP v R [2021] NSWCCA 11 Wade (a pseudonym) v The Queen [2018] VSCA 304 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58 Category: Principal judgment Parties: Ricky Joseph Vella (Applicant) Rex (Respondent) Representation: Counsel: Ms J Paingakulam (Applicant) Mr D Kell SC; Ms W Liu (Crown)