Buttsworth v The Queen
[2004] WASCA 69
•8 APRIL 2004
BUTTSWORTH -v- THE QUEEN [2004] WASCA 69
| (2004) 29 WAR 1 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 69 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:121/2003 | 11 MARCH 2004 | |
| Coram: | MURRAY J TEMPLEMAN J WHEELER J MILLER J MCKECHNIE J | 8/04/04 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | HENRY ALBERT BUTTSWORTH THE QUEEN |
Catchwords: | Criminal law and procedure Convictions for indecent dealing with and sexual penetration of child under 13 Whether evidence of prior incidents of a sexual kind was admissible Whether such evidence to be excluded in the exercise of discretion Whether necessary to prove such incidents beyond reasonable doubt Adequacy of direction given Lengthy deliberation of jury Whether further direction as to deliberation required When jury should have been directed as to a majority verdict Whether jury should have been discharged |
Legislation: | Nil |
Case References: | Black v The Queen (1993) 179 CLR 44 BRS v The Queen (1997) 191 CLR 275 Cook v The Queen (2000) 22 WAR 67 Gipp v The Queen (1998) 194 CLR 106 Hoch v The Queen (1988) 165 CLR 292 Kailis v The Queen (1999) 21 WAR 100 KRM v The Queen (2001) 206 CLR 221 R v Bond [1906] 2 KB 389 Shepherd v The Queen (1990) 170 CLR 573 Wilson v The Queen (1970) 123 CLR 334 B v The Queen (1992) 175 CLR 599 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 R v Ball [1911] AC 47 R v Bowman [2001] ACL Rep 130 Qld 289 R v Kostaras (No 2) (2003) 86 SASR 541 R v Lewis [2003] NSWCCA 180 R v Mackay [1985] VR 623 R v TAB [2002] NSWCCA 274 R v Vonarx [1999] 3 VR 618 R v Young [1998] 1 VR 402 Roberts v The Queen [2002] WASCA 64 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BUTTSWORTH -v- THE QUEEN [2004] WASCA 69 CORAM : MURRAY J
- TEMPLEMAN J
WHEELER J
MILLER J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File Number : IND 1058 of 2002
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Catchwords:
Criminal law and procedure - Convictions for indecent dealing with and sexual penetration of child under 13 - Whether evidence of prior incidents of a sexual kind was admissible - Whether such evidence to be excluded in the exercise of discretion - Whether necessary to prove such incidents beyond reasonable doubt - Adequacy of direction given - Lengthy deliberation of jury - Whether further direction as to deliberation required - When jury should have been directed as to a majority verdict - Whether jury should have been discharged
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Ms H E Prince
Respondent : Mr R E Cock QC & Mr D A Lima
Solicitors:
Applicant : Dwyer Durack
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Black v The Queen (1993) 179 CLR 44
BRS v The Queen (1997) 191 CLR 275
Cook v The Queen (2000) 22 WAR 67
Gipp v The Queen (1998) 194 CLR 106
Hoch v The Queen (1988) 165 CLR 292
Kailis v The Queen (1999) 21 WAR 100
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KRM v The Queen (2001) 206 CLR 221
R v Bond [1906] 2 KB 389
Shepherd v The Queen (1990) 170 CLR 573
Wilson v The Queen (1970) 123 CLR 334
Case(s) also cited:
B v The Queen (1992) 175 CLR 599
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
R v Ball [1911] AC 47
R v Bowman [2001] ACL Rep 130 Qld 289
R v Kostaras (No 2) (2003) 86 SASR 541
R v Lewis [2003] NSWCCA 180
R v Mackay [1985] VR 623
R v TAB [2002] NSWCCA 274
R v Vonarx [1999] 3 VR 618
R v Young [1998] 1 VR 402
Roberts v The Queen [2002] WASCA 64
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1 JUDGMENT OF THE COURT: The applicant was presented in the District Court on an indictment charging him with two offences, an indecent dealing with a child under the age of 13 by touching her on the vagina and sexually penetrating the child by engaging in cunnilingus. Those offences were alleged to have occurred on the same occasion on some date between 1 January 1993 and 10 April 1993, at the applicant's home in Bellevue.
2 He was tried by jury in the District Court, and on 7 August 2003 was convicted of both offences. He now seeks leave to appeal against the convictions.
The Cases and Evidence at Trial
3 The principal prosecution witness was the complainant. When she gave evidence she was just a month short of her 18th birthday and, of course, the allegation was that the offences were committed about 10 years before the trial, when the child was 7 years of age. For a brief period, during which the offences were said to have occurred, the applicant had a relationship with the complainant's mother. Although they maintained separate homes, they would often visit each other. The complainant's evidence was that on an occasion when she was visiting at the applicant's house, he beckoned her into a shed at the rear of the property. There he pulled down her pants and knickers, touched her vagina with his fingers and licked the inside of her vagina. The complainant's mother came out of the laundry into the yard, with a basket of washing. The child saw her and said to the applicant, "Mum's coming." They hurriedly rearranged her clothing and the applicant told her to go outside.
4 The mother was at the washing line. She asked the child what had happened. The child at first denied that anything had happened. She later said that something had happened, but she would not say what had occurred. However, the mother was certain that something untoward had happened, because she had seen the hasty action of the child pulling up her pants in the presence of the applicant. She put it to the applicant, who denied that anything had happened. In the end she took no action about it, but the incident did mark the end of their relationship.
5 The child made no complaint about what had occurred until early in 2002, during the course of a heated argument between mother and daughter in which the complainant blamed her mother for what had happened. It was only then that the mother decided to go to the police. During the course of the investigation which followed the applicant made
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- no admissions, but there was evidence that when the applicant was told by the complainant's mother that a complaint had been made to the police he made immediate arrangements to travel overseas by air. He was in fact arrested at the airport.
6 The applicant gave evidence in his own defence. He said he had never dealt with the child sexually in any way. On the occasion of the alleged offences he had been in the back garden. He saw the child with a pencil down her pants. He pulled down her pants and removed the pencil. The child's mother saw the conclusion of this incident. He denied that he had been attempting to flee the jurisdiction. He said that it was a legitimate trip which he proposed and that he had telephoned the police when he learned of the investigation and asked if he was free to go. There were other witnesses called by both prosecution and defence. Their evidence concerned matters peripheral to the essential question at the trial, whether the applicant was established beyond reasonable doubt to have committed the offences alleged.
7 The complainant gave evidence of previous occasions when incidents involving the applicant occurred, which incidents were, or might have been regarded as being, of a sexual character. She said that on occasions when visiting the applicant at his home she would have a shower and the applicant would go into the adjacent toilet, not to use the facility apparently, but just to stand in the doorway between the toilet and the bathroom, from which position he would watch her having a shower, saying nothing.
8 On one occasion when she was visiting and her mother was away from the house, the applicant called her into the lounge room and performed cunnilingus upon her until she said, "Enough." Then he told her to go outside and play and she put her knickers back on. He asked her not to tell her mother or he could get into "big trouble". She said that although she knew it was wrong, she did not tell her mother because she was afraid she might be in trouble for allowing the applicant to lick her vagina.
9 On another occasion when the applicant was visiting her mother at their house, one evening while, perhaps, her mother was asleep the applicant came into the complainant's room naked, woke her, removed her pants and again licked inside her vagina. He then asked her to touch his penis. He asked her what it looked like and she replied it looked like a mushroom. Again, he told her not to tell her mother because he could be in big trouble. She said nothing to her mother about this incident.
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10 This evidence was held to be admissible at a pre-trial directions hearing. Of course, the only evidence about these matters was that of the complainant, but it is clear from her evidence that these were events or incidents which she said occurred contemporaneously with, but in the months before, the commission of the offences alleged in the indictment.
Was the Evidence of Sexual Conduct on Other Occasions Admissible?
11 The first ground of the application for leave asserts that an error was made "in admitting evidence of the relationship between the parties, including the uncharged acts of sexual penetration". The particulars of this ground make it clear that the applicant's contention is that this was really propensity evidence of relatively little probative value, such probative value as it had being substantially outweighed by its prejudicial effect.
12 The circumstances in which evidence of the conduct of the accused on other occasions, whether it be, as in two instances in this case, conduct itself of a criminal nature, or whether it be, as in the bathroom incidents, conduct not of that character, has been much discussed over the years, at least since R v Bond [1906] 2 KB 389, 401, where the admissibility of the evidence was squarely put upon the basis that it was proper to admit it if it explained the nature of the relationship between the accused and the complainant – see also the discussion of the High Court in this regard in Wilson v The Queen (1970) 123 CLR 334, 338-339, 344.
13 There have been numerous decisions of the High Court, in not all of which do the judges ground the admissibility of such evidence in the same way, or by reference to a test expressed in commonly accepted terms. The most difficult decision in this regard is perhaps Hoch v The Queen (1988) 165 CLR 292, 294-296, where it was held that the evidence could be admissible only if there was no rational view of it consistent with the innocence of the accused, such as, in that case, the possibility that different witnesses whom it was proposed should speak of such events had the opportunity to concoct their evidence. On the basis of that test of admissibility it would seem difficult to see, in practice, what operation might remain for the ground for the exclusion of admissible evidence that its probative value was slight and substantially outweighed by its prejudicial effect. In such a case, presumably, the evidence would be simply inadmissible.
14 This case does not require, in our opinion, that this Court should embark upon an attempt to conclusively determine the ground of the admissibility of such evidence. The history of the debate about that
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- question is discussed by McHugh J in KRM v The Queen (2001) 206 CLR 221, at 228-233 [20] – [31]. We may put to one side for the moment the debate about whether admissibility is secured by considering the evidence to have a strong probative value in the circumstances of the particular case, or whether the ordinary test of admissibility – the relevance of the evidence to prove a fact in issue – is to be applied, and that there is no ground for its exclusion, because its probative value is substantially outweighed by its prejudicial effect. Subject to that debate, evidence of the conduct of an accused person charged with a sexual offence, on other occasions with respect to the complainant, will be admissible if it is more than merely propensity evidence. In other words, the evidence will be admissible if it is more than merely evidence which may reveal or make manifest a criminal propensity of the accused person to offend in a manner like the offence or offences with which he or she is charged.
15 That additional relevance may arise in many ways and we do not understand there to be a closed list of the circumstances which will have the potential to give the evidence the additional relevance required. It may be relevant if it serves to show the nature of the relationship between the accused and the complainant: a relationship revealing a sexual interest of an inappropriate or unlawful kind, a relationship a feature of which might be that the will of the complainant may be overborne or that the silence of the complainant may be bought, or achieved by threats or warnings that to reveal the conduct of the accused will result in harm to the complainant, the accused or some other loved one.
16 Without such evidence it may be proper to consider that the complainant's evidence would be received in a vacuum which would make difficult to understand the complainant's passivity, lack of prompt complaint and the like. In cases of that kind, the evidence is admissible because of the support it offers, potentially, to the plausibility and cogency of the evidence of the complainant. The evidence will make more likely to be true the complainant's evidence that the accused committed the offences charged and thus it aids in the proof of those offences by means which are distinctly different from and have an additional relevance to the tendency of the evidence to show merely that the accused may have a propensity to offend in a manner like that charged against him.
17 Another broad category of the admissibility of such evidence will be those cases where it is directed to showing an opportunity for the commission of the offence or offences charged or that, because the
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- evidence reveals an inappropriate sexual interest by the accused in the complainant, it may provide evidence that the accused had a motive to commit the offence or offences charged. In that way again, it will be probative of the commission of those offences more than by merely showing a propensity for their commission.
18 Further, the evidence may be of a kind which will show a pattern of behaviour of the accused person distinctly similar to that displayed, according to the evidence of the complainant, on the occasion of the commission of the offence charged. This is the evidence commonly referred to as similar fact evidence. Its probative value will be greater if it is concerned with the behaviour of the accused person with or against persons other than the complainant and on other occasions, but it may equally be evidence concerning what was done to the complainant on other occasions which, being repeated on the occasion of the offence charged, might make more readily explicable the complainant's acquiescence or failure to promptly complain about what occurred.
19 Again, this evidence will be admissible because it is concerned with much more than merely the propensity of the accused to offend in a particular way. It will be evidence which has a direct probative value to prove the commission of the offence charged on the ground that if the jury finds established what was done on other occasions by the accused, it would be too great a coincidence to imagine that he did not offend in the same manner against the complainant on the occasion in question.
20 Although on two occasions of which the complainant spoke in evidence the applicant was said to have committed an act of oral vaginal penetration of her in circumstances, on one occasion involving some risk of discovery, where he was able to be alone with the complainant, those facts alone would not, in our opinion, invest the evidence of the conduct of the applicant towards the complainant on other occasions with the necessary high degree of similarity which would make it admissible in this case as similar fact evidence. However, we have no doubt that the evidence was admissible to show the nature of the relationship between the complainant and the applicant.
21 If what she said about the other occasions was accepted by the jury, the evidence of what occurred in the bathroom was capable of showing that the applicant had an unhealthy sexual interest in the child. The incidents of oral sex made manifest the nature of that interest and involved instruction to the child that she should keep silent about what occurred or there would be "big trouble". That bore a distinct relationship
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- to her evidence that she did not tell her mother about what occurred on the occasion charged because she thought that not only would the accused be in trouble, but she would be in trouble for allowing it to happen.
22 The evidence of prior oral sex with warnings to keep silent helped to explain why she passively accepted and co-operated in the activity charged and it made her evidence more easily accepted than if the occasion charged had been presented to the jury merely as an isolated incident, despite the evidence which would tend to establish that there were numerous other opportunities for it to have happened. That evidence might also explain why, on the occasion charged, the applicant, not having been previously discovered in sexual misconduct with the complainant, might be prepared to risk discovery by her mother.
23 Not only did that evidence have a probative value as illuminating the nature of the relationship between the parties which went beyond a matter of mere propensity but, we think, its probative value was substantial. This was a case, in our view, where it was the probative value of the evidence which caused it to have a prejudicial effect. That effect matched and did not substantially exceed the probative value of the evidence. The evidence was admissible and there was no ground, in our view, for it to be excluded in the exercise of judicial discretion.
24 In KRM, McHugh J said, at 233 [31]:
"Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, trial Judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it."
25 There is in this case no complaint by the applicant about the directions of the trial Judge concerning the nature of the relevance of the evidence and the use to which it could be put.
26 Immediately after the complainant and her mother had given evidence, an appropriate occasion upon which to refer to the matter, his Honour directed the jury as follows:
"You may be wondering what the purpose of that evidence is and it's evidence that is referred to as relationship evidence or of
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- extraneous sexual conduct in the sense that it's talking about matters that were done but is not the subject of any charges. So I need to give you a direction as to the use that you may make of that evidence and it's appropriate that I give that to you now and it is this: the evidence of extraneous sexual conduct, and I'm here talking about the first three matters, is admitted solely to establish the relationship between the accused and the complainant as part of the context and setting in which the offences charged are alleged to have occurred.
Even if you accept that evidence, that's the evidence of the extraneous sexual conduct or part of it, the commission of the offences charged can only be proved by the evidence relating to them and not by evidence relating to the extraneous conduct. You must not reason that because the accused engaged in sexual conduct with the complainant on one or more occasions he was the kind of person who was likely to have done so on the occasion with which he has been charged."
27 Those directions were repeated almost word for word in his Honour's summing up to the jury. As can be seen from what we have written above, the directions were favourable to the applicant. They did not, as they might, refer specifically to bolstering the credit of the complainant and explaining the nature of her evidence about what had occurred on the occasion charged, explaining it in a way which was consistent with its truth and accuracy, making it more likely that the jury might accept it in proof of the facts alleged. However, there is a complaint about what the trial Judge said in those directions, to which we now turn.
The Direction as to the Burden of Proof
28 Ground 5 contends that the trial Judge erred in failing to direct the jury that before they could rely on the evidence of relationship to support the charges on the indictment, it was necessary that what his Honour described as "extraneous sexual conduct" was proved beyond reasonable doubt. That is, any such conduct upon which the jury might propose to rely must be proved beyond reasonable doubt.
29 The argument is that it was an error to merely tell the jury the use to which they might put evidence of this type which they accepted. In considering that matter it should not be overlooked that at the commencement of his Honour's address to the jury and at its conclusion, his Honour gave directions in appropriate terms, about which there is no complaint, as to the onus and standard of proof. The applicant, having
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- given evidence and having called evidence, his Honour told the jury that if they accepted the evidence of the accused that these things did not happen then he would be entitled to be acquitted. His Honour said that if the jury could not make up their mind about the matter, then again they would be obliged to acquit the applicant. Even if they disbelieved the applicant, the jury would still have to find that on the evidence they did accept his guilt was established beyond reasonable doubt. As his Honour concluded his remarks:
"In the context of this case that means being satisfied beyond reasonable doubt of the truth of [the complainant's] evidence, because [the complainant] is the only person who has given direct evidence of what she says occurred."
31 However that may be, it is convenient to deal with the applicant's specific complaint about the burden of proof. That question was discussed at some length in Gipp v The Queen (1998) 194 CLR 106, a case where evidence of a history of sexual abuse of the complainant by the accused was led to show the relationship between the accused and the complainant. The trial Judge told the jury that they need not be satisfied beyond reasonable doubt of those background facts provided the jury accepted the complainant's account.
32 Gaudron J, at 115 [21], did not say directly what standard of proof her Honour thought the law required to be applied to these "background facts", but she said:
"The bare direction to the jury that they had only to be satisfied with respect to that evidence on the balance of probabilities was erroneous and dangerously so. It left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving regular
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- sexual abuse, that the appellant was guilty of the specific offences charged."
33 The report of the case does not show that the trial Judge made any reference to proof on the balance of probabilities, but if the remarks of Gaudron J are read as indicating that her Honour perceived a danger that in effect the jury might reason that the appellant was guilty of the specific offences charged because he was probably engaged in a relationship with the complainant which involved regular sexual abuse, then the nature of the error is clear. Not only would the evidence be wrongly used, but it would be so used in a way which might supplant the standard of proof of guilt beyond reasonable doubt of the offences charged with some other standard of proof.
34 Kirby J expressed his view in similar terms. At 155 [139], his Honour accepted the Crown's concession that the trial Judge's reference to the standard of proof in respect of this evidence was undesirable and unfortunate. Relying upon Shepherd v The Queen (1990) 170 CLR 573 at 579, his Honour said:
"Where such facts may constitute 'indispensable links in a chain of reasoning towards an inference of guilt', it may be appropriate (and would have been appropriate in this case) to warn the jury that each 'link' must be proved beyond reasonable doubt."
35 Callinan J noted that the evidence of what was described as background facts was not the subject of directions by the trial Judge as to its relevance or the use to which it might be put, nor were the jury given a warning about the impermissible process of reasoning towards guilt from propensity evidence which, Callinan J thought, was "presumably" the basis upon which, without objection, the evidence was led at trial. At 169 [183] his Honour made it clear that he thought there were aspects of the background evidence which revealed conduct of the appellant sufficiently similar to what occurred on the occasions charged to warrant introduction of this evidence as propensity evidence. The judgment of Callinan J rests upon the failure to give appropriate directions about the use to which such evidence might be put: see 168-169 [181] – [182].
36 The judgment of McHugh and Hayne JJ is a dissenting judgment, but in relation to the point under consideration here their Honours did not, we think, approach the matter differently from the majority in relation to the standard of proof to be applied. Again their Honours rested their
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- judgment squarely upon Shepherd and added a reference to the judgment of McHugh J in BRS v The Queen (1997) 191 CLR 275 at 305. At 132 [76] – [77] their Honours said:
"If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned Judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of a 'guilty passion' in support of the charges in the indictment. In that event, it would have been necessary to direct the jury that these incidents, as well as the charges, had to be proved beyond reasonable doubt. No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts. But it was not tendered as propensity evidence."
" … his Honour's statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence."
38 Again, their Honours cite Shepherd, to the effect that although such a direction may be given or may be required to be given in a case where the evidence consists of links in a chain towards proof of the ultimate facts in issue, those constituting the offence, such a direction may not be required and should not be given where, in any event, it would be unnecessary or confusing to do so. Although that statement, as their Honours noted, was made with respect to circumstantial evidence, they said it was "equally applicable to a case such as the present."
39 In this Court, an important case in respect of what may be generally described as relationship evidence is Cook v The Queen (2000) 22 WAR 67. The judgment of the Court was that of Anderson J, with whom Pidgeon and Wallwork JJ agreed. His Honour referred to many of the decided authorities, including Gipp, BRS, Shepherd and the previous decision of this Court in Kailis v The Queen (1999) 21 WAR 100.
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- His Honour described the evidence under discussion in that case as relationship evidence, recognising that that was an incomplete description of evidence of sexual molestation extraneous to the offences charged and intending it to cover all those cases where the evidence was admissible because it had a relevance beyond a tendency merely to show that the accused has a propensity to commit offences like those charged. We have referred to such matters in considering ground 1.
40 His Honour noted that because such evidence is prejudicial and admitted for a limited purpose, it is necessary that the jury be instructed how to use it. At 84 [68], his Honour continued:
"What is perhaps not quite so easy to decide in any given case is what should be the content of the direction. I think this must largely be dictated by the facts of the case, although it is possible to formulate in general terms what may be described as the minimum requirements. What emerges from the cases is a broad consensus that the directions to the jury must leave them with an understanding of at least three things: (1) the jury may have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true; (2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light; and, (3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct the subject of the charge has been proved, they cannot use the evidence of uncharged conduct to convict the accused."
41 In our opinion, in this case no more specific directions were required and those given by the trial Judge adequately discharged the duty of explanation as to the use to which the evidence might be put, which the law requires.
42 Anderson J then went on to discuss the directions given by the trial Judge, during the course of which he noted that the jury had been given the instruction that they may not use the evidence of sexual behaviour other than that charged unless satisfied beyond reasonable doubt that it occurred. Anderson J considered that direction to be too favourable to the applicant. His Honour noted that this was, after all, circumstantial evidence and there is no requirement that particular circumstantial facts be proved beyond reasonable doubt, except where the facts in question provide links in a chain of facts leading to a conclusion of guilt, when the
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- application of Shepherd would require a direction about the burden of proof. Except in that case, Anderson J held at 85 [75] that, "It is generally sufficient in this kind of case that the jury be told that, unless they find the evidence of extraneous conduct reliable and believe it to be true, they should disregard it."
43 In our opinion, the decision of this Court in Cook, consistently with what was said by the High Court in Gipp, provides an accurate statement of the law in relation to the directions required, if any, as to the burden of proof of conduct of an accused person extraneous to the offence charged, admitted because of its relevance to the proper evaluation of the evidence which directly goes to the proof of that offence, or which is itself relevant to the proof of that offence.
44 Generally, there is no need to do more than to refer to the need, before the jury has regard to the extraneous conduct, to find the facts established by truthful and accurate evidence. Only if the evidence has the sort of direct relevance to the proof of facts constituting the offence charged that it might be regarded as providing links in a chain of proof of guilt, should the jury be specifically directed that they may not so use the evidence in question unless satisfied of the facts established by that evidence beyond reasonable doubt. In this case it is apparent that in this regard the trial Judge made no error of law.
The Deliberations of the Jury
45 The jury retired to consider their verdicts at 11.17 am on 7 August 2003. At about 5.30 pm, over 6 hours later, the trial Judge reconvened the Court with a view to directing the jury that a majority verdict of at least ten of them might be taken. The Juries Act 1957, s 41, provides that in a case of this kind where a jury, "has retired to consider its verdict and remained in deliberation for at least 3 hours and has not then arrived at a unanimous verdict, the decision of not less then 10 of the jurors shall be taken as the verdict … ." That section is interpreted as authorising such a direction to be given to a jury, but not as requiring it to be done at any particular time and not as precluding the return of a unanimous verdict.
46 In this case, when the jury were returned to the court, the trial Judge asked the foreman if he thought the jury might still return unanimous verdicts and the foreman answered that, although they had not yet arrived at such verdicts, he considered the jury could do so. The jury were retired to continue their deliberations. The trial Judge made it clear in discussion with counsel that he had decided not to give the majority verdict direction in view of the foreman's statement.
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47 At 6.34 pm, the jury returned to the courtroom with questions about the evidence on particular topics. Portions of the transcript were read. A majority direction was given and it was established that the jury were immediately to be provided with an evening meal. They retired to continue their deliberations at 6.45 pm.
48 At 8.20 pm, the Court was reconvened in the absence of the jury. The trial Judge told counsel that unless the jury were able to give their verdict on either count his Honour proposed to discharge them. The possibility of a direction based on the High Court's decision in Black v The Queen (1993) 179 CLR 44 was discussed, but it is clear that the trial Judge thought that after a retirement of over 9 hours, that would not assist. His Honour asked the sheriff's officer to return the jury to the court, but was told that they were in the process of final decision. At 8.25 pm the jury returned to the Court and returned the verdicts of guilty on both counts. When asked if that was a unanimous verdict in each case, the foreman said that it was.
49 There are three grounds of appeal which assert that the trial Judge made errors in relation to this process. It is said that he should have given the jury what is often described as a Black direction and that he should have told the jury that they could return a majority verdict much earlier than his Honour did. In any event, it is said that the jury should have been discharged when, having been directed about their capacity to reach majority verdicts, they failed to do so within a reasonable period.
50 These grounds were, understandably in our view, argued in rather cursory fashion. We think it is abundantly clear that they are without merit. There never was an occasion to discharge this jury. They at no time indicated to the Court that they were unable to reach either unanimous or majority verdicts. They simply took their time over it. They wanted, at one stage, to be reminded of some central matters of evidence. It is evident that they were taking care in their deliberations.
51 The direction discussed by the High Court in Black is one designed to be given to a jury who may be thought to require some further assistance with the process of deliberation and decision-making when the danger of deadlock is apparent. The direction is carefully framed so as to avoid any suggestion that the jury should feel themselves to be under some pressure to reach a verdict. The short point is, however, that this jury at no time showed any indication that they were in difficulty with their deliberations in relation to either charge. When asked, after some time, they said, through the foreman, that they believed they could reach
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- unanimous verdicts. Ultimately, even after they were directed about their capacity to reach majority verdicts, they did return unanimous verdicts. Nothing appears which might impugn the integrity of those verdicts and there is nothing to suggest that they were in any way affected by the failure to give a majority direction at an earlier time.
52 Leave to appeal is granted, but the appeal is dismissed.
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