Profilio v The King

[2024] NSWCCA 219

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Profilio v R [2024] NSWCCA 219

Hearing dates:

13 November 2024

Date of orders:

2 December 2024

Decision date:

02 December 2024

Before:

Bell CJ at [1];
Davies J at [6];
Sweeney J at [7].

Decision:

1. Grant leave under r 4.15 for the applicant to rely on ground 1.

2. Refuse leave under r 4.15 for the applicant to rely on ground 2.

3. Grant leave to appeal on grounds 3 and 4.

4. Allow the appeal on ground 1.

5. Quash the applicant's conviction on count 1.

6. Order that there be a new trial of the applicant on count 1.

7. Set a date for mention in the District Court at Sydney on Friday 13 December 2024.

Catchwords:

CRIME — Application for leave to appeal against convictions — Unreasonable verdicts — Black direction — Markuleski direction

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act1912 (NSW)

Jury Act 1977 (NSW)

Cases Cited:

AK v R [2022] NSWCCA 175

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71

Haile v R [2022] NSWCCA 71

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Joyce (a pseudonym) v R (2019) 99 NSWLR 562; [2019] NSWCCA 187 (now known as O’Brien v R)

Keen v R [2020] NSWCCA 59

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Obeid v R [2017] NSWCCA 221

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Saunders v R [2022] NSWCCA 273

Tomlinson v R [2022] NSWCCA 16

Zhou v R [2021] NSWCCA 278

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Tyson Profilio (Applicant)
Rex (Crown) (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
A Bonnor (Respondent)

Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW)(Respondent)

File Number(s):

2021/105071

Publication restriction:

Publication of the name of the complainant or any matter which could identify her prohibited pursuant to s 578A Crimes Act 1900 (NSW).

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

10-16 November 2023

Before:

King SC DCJ

File Number(s):

2021/105071

HEADNOTE

[This headnote is not to be read as part of the judgment]

After a trial by jury in the District Court, the applicant was found guilty of one count of sexual intercourse without consent (count 1) and acquitted of another count of sexual intercourse without consent (count 2).

Both acts were alleged to have occurred on the same occasion whilst the complainant was unconscious or blacked out and so unable to consent or did not consent and that the applicant knew she did not consent.

In response to a jury question about disagreement, the trial judge directed the jury that they had no alternative but to reach unanimous verdicts. His Honour did not tell the jury he had the power to discharge them if they could not reach agreement after further deliberation.

In summing up, the trial judge directed the jury that they were to consider each count separately. Trial counsel for the applicant did not seek a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 and no such direction was given.

The applicant sought leave to appeal against his conviction on four grounds:

1. His Honour failed to properly direct the jury with respect to the prospect of disagreement and the possible outcomes of their deliberations.

2. His Honour failed to give a Markuleski direction.

3. The verdict of guilty in relation to count 1 is unreasonable and cannot be supported having regard to the evidence and to the verdict of not guilty returned in respect of count 2.

4. The conviction in relation to count 1 is unreasonable and cannot be supported having regard to the evidence.

Held (per Sweeney J, Bell CJ and Davies J agreeing), granting leave to appeal on grounds 1, 3 and 4, refusing leave to appeal on ground 2 and allowing the appeal on ground 1

As to ground 1, in directing the jury that there was no alternative but to reach unanimous verdicts, there was a fundamental failure to observe the requirements of the criminal process which resulted in a miscarriage of justice (Bell CJ at [3]-[4], Davies J at [6], Sweeney J at [87]).

Haile v R [2022] NSWCCA 71; Black v The Queen (1993) 179 CLR 44; [1993] HCA 71; Joyce (a pseudonym) v R (2019) 99 NSWLR 562; [2019] NSWCCA 187 (now known as O’Brien v R); Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Zhou v R [2021] NSWCCA 278; Tomlinson v R [2022] NSWCCA 16; AK v R [2022] NSWCCA 175; Saunders v R [2022] NSWCCA 273 cited.

As to ground 2, whilst it would have been desirable for the trial judge to give a Markuleski direction, it was well open to the jury to distinguish between the evidence in support of counts 1 and 2 respectively. The applicant failed to show he lost a real chance of acquittal (Bell CJ at [5], Davies J at [6], Sweeney J at [98]).

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; Keen v R [2020] NSWCCA 59; Obeid v R [2017] NSWCCA 221 cited.

As to grounds 3 and 4, having conducted an independent assessment of the sufficiency and quality of the evidence, the Court did not have a reasonable doubt about the guilt of the applicant on count 1 (Bell CJ at [5], Davies J at [6], Sweeney J at [107]).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63 cited.

JUDGMENT

1. BELL CJ: For the reasons advanced by Sweeney J, I agree that the appeal on ground 1 must succeed and that leave, in accordance with r 4.15 of the Supreme Court (Criminal Appeal) Rules should be granted.

2. The jury’s questions to the trial judge were reasonable questions, and the judge’s answer to them gave an incomplete answer which was apt to mislead the jury into thinking that the jurors were bound to continue to deliberate until such time as they were able to produce a unanimous verdict which was, of course, not the case, given the ultimate possibility of a majority verdict being available under s 55F of the Jury Act 1977 (NSW), or the jury being discharged.

3. The incomplete answer given to the jury, coupled with the trial judge’s correct indication that its members must “give effect to your own view of the evidence” and give a “true verdict”, was apt to produce the real possibility that an unknown number of jurors may have felt compelled to accede to the views of fellow jurors in order to bring their important civic task to an end and that, if they did not do this, their deliberations would be required to continue indefinitely: see, in particular, the trial judge’s statement “you should deliberate for whatever time it takes you to reach a unanimous verdict” and that “you must reach a unanimous verdict whatever it is”, reproduced at [69] of Sweeney J’s reasons. This last aspect of the direction was given in response to the specific question “What are the potential next steps if we do not reach a unanimous decision?” It implied that there were no other potential steps other than to continue to deliberate indefinitely.

4. On that basis, the applicant’s conviction must be set aside and a new trial ordered.

5. Having conducted my own close review of the evidence, I otherwise agree with the analysis of Sweeney J, and the orders her Honour proposes.

6. DAVIES J: I have had the advantage of reading the judgment of Sweeney J in draft. In relation to grounds 1, 2 and 3 I agree with the reasons of Sweeney J. In relation to ground 4, from my own examination of the evidence, I consider that the jury should not have had a doubt about the guilt of the applicant in respect of count 1. I agree with the orders proposed by Sweeney J.

7. SWEENEY J: Tyson Profilio, the applicant, was tried before King SC DCJ and a jury in the Sydney District Court in November 2023 on two counts of sexual intercourse without consent (counts 1 and 2) and one count of affray (count 3). The jury found him guilty of count 1 and count 3, and not guilty of count 2. He was sentenced to 6 months imprisonment for the affray, which sentence commenced on 25 November 2023 and expired on 24 April 2024. For the offence in count 1, he was sentenced to 7 years imprisonment with a non-parole period of 4 years, 9 months commencing on 25 November 2023. The non-parole period will expire on 24 August 2028 and the sentence on 24 November 2030.

8. The applicant seeks leave to appeal against his conviction in respect of count 1. There is no application in relation to his conviction on count 3. The applicant seeks to rely on four grounds of appeal:

1. His Honour failed to properly direct the jury with respect to the prospect of disagreement and the possible outcomes of their deliberations.

2. His Honour failed to give a Markuleski direction.

3. The verdict of guilty in relation to count 1 is unreasonable and cannot be supported having regard to the evidence and to the verdict of not guilty returned in respect of count 2.

4. The conviction in relation to count 1 is unreasonable and cannot be supported having regard to the evidence.

Summary of allegations in the trial

9. The allegations the subject of counts 1 and 2 related to one complainant, whom I will not identify, in accordance with s 578A of the Crimes Act 1900 (NSW). Both acts of sexual intercourse without consent were alleged to have happened on one occasion, on 14 February 2021.

10. The applicant and complainant were known to each other. The act alleged in count 1 was penile-vaginal intercourse. The act alleged in count 2 was penile-anal intercourse.

11. The Crown case was that both acts occurred when the complainant was unconscious, so unable to consent, or blacked out and did not consent, and that the applicant knew from that circumstance that she did not consent to the sexual intercourse.

12. The applicant’s case at trial in respect of count 1 was that penile-vaginal intercourse occurred, but with the complainant's consent. The applicant's case at trial in respect of count 2 was that no act of penile-anal intercourse occurred.

13. I will summarise the evidence at trial in relation to the sexual assault offences charged, and then refer to the events in the course of the trial underpinning grounds 1 and 2.

Summary of relevant evidence in the trial

14. The evidence of the complainant, DC, was as follows.

15. In February-April 2021 she knew the applicant, and had known him for about eight years. They lived in the same suburb in parallel streets. They had met and knew each other in the context of their drug use.

16. On a day before the date of the alleged sexual assaults the complainant had obtained some drugs from the applicant in exchange for some clothes.

17. On another evening before the alleged assault the complainant had gone to the applicant's apartment and they had had a consensual sexual encounter. Ms C said they both consumed some drugs and alcohol and performed mutual oral sex, after which she left. Ms C said on that occasion the applicant "wanted to penetrate, but I said I didn't do that with people I wasn't in a relationship with."

18. Ms C said she went to the applicant's apartment looking for drugs on the evening of 14 February 2021. She said she was able to place the date because she had returned to Sydney after having been away for her mother's wedding. At a point during the evening, there was just her and the applicant in his apartment. He gave her a drink, of bourbon or scotch and coke, and they began watching a movie. She said the drink was very strong, more bourbon than coke. She consumed some of the drug known as "G", some more "G", some "ice" (methylamphetamine) which she took back to her house to inject herself with, then returned to the applicant's apartment, where she then took a Xanax pill. She said "I remember having a Xanax pill with [the applicant] and I remember watching the movie and that's all I remember until I woke up."

19. She said she last remembered being in a single chair before she woke up. She woke up in the morning of 15 February on the lounge with her pants around her ankles. Her underwear had been pulled down and taken off one leg, and it was still around the ankle of the other leg. Her pants she had been wearing earlier were on the floor. She had had her clothes on when she fell asleep. When she woke there was no one in the room. The front door was open, and both bedroom doors were closed. She called out to the applicant "to no avail" and she gathered her belongings and left. She said she went home and cried and called her mother.

20. She said when she arrived home, she went to the toilet and discovered that "somebody had scratched me internally" and she had "blood coming out of [her] bum". When she was urinating she felt stinging from a cut internally. When she wiped herself there was blood on the toilet paper. She said "I didn't know how it happened but I assumed it happened there because my pants were off."

21. She called her mother and told her "that I'd woken up the way I had and that I'd been raped." She told her mother she thought it was the applicant. She did not report it to the police at that time because she was "embarrassed and in a bit of shock".

22. She said between that date and a day or two before 15 April 2021 (the date of the affray offence by the applicant) she was spoken to by a neighbour GF, who told her she had had sex with the applicant. He said "You fucked him senseless" and "You were unconscious". She said she felt "ashamed, embarrassed, disgusted, angry" that he knew.

23. On 15 April 2021 she spoke to the applicant. She said to him "I find it disgusting you did what you did but I find it putrid you think it's worth bragging about". He said he did not tell anybody. She told him GF knew. The applicant began screaming out for GF. His conduct thereafter was the subject of the affray charge.

24. Ms C said that during that conduct the applicant said to her "You came to my house, you took my drugs, smoked my drugs, what else did you expect?" She said to him "Not to be fucked, especially when I’m unconscious". He said "Oh you wanted it".

25. Police attended in response to the affray being reported. GF told the police the complainant needed to speak to a female officer and told them what had happened.

26. DC said she spoke to police that day because when she had spoken to the applicant "He seemed to be so blatant that he had the right to do what he did to me, which made me quite upset." She said she had no intention of reporting the event to police until she spoke to the applicant and he did not apologise for his behaviour and said she deserved everything she got.

27. She said she told a person named BD that she had been raped. She denied she had suggested to BD that the applicant should pay her $10,000 or $20,000 and they would both be happy.

28. She denied that she was a party to a conspiracy to have the applicant arrested and break into his apartment and steal property of his.

29. Ms C disagreed with the applicant's case put to her in cross-examination that on the occasion when she said she was sexually assaulted she and the applicant each had a bath in his place, she put on a black robe or nightie, which was hanging on the door, they both went to the lounge room and engaged in consensual penile-vaginal sexual intercourse, after which she dressed and left. She maintained she was unconscious when the applicant had sexual intercourse with her.

30. She accepted she had a record of dishonesty offences but denied that her evidence about having been sexually assaulted was dishonest.

31. She confirmed she did not have sexual intercourse with people she was not in a relationship with. She maintained she did not have penile-vaginal sexual intercourse consensually with the applicant, that she was unconscious and that there was anal intercourse.

32. MS, the complainant’s mother, gave evidence that her daughter attended her wedding in February 2021 and returned home on 14 February. Her daughter called her on the morning of 15 February, distressed and crying. Her daughter told her that she had stayed at a neighbour's place and had woken up with her underwear down by her ankles, and she felt she had been sexually assaulted, that she had pain, she was sore in her vagina and anus, and she had felt fluid inside of her. She named the applicant by his first name.

33. GF, who lived in the same apartment block as the applicant, gave evidence that in April 2021 he was trying to “make a friendship” with the applicant. He also knew Ms C. He said before the date in April 2021 when police attended, he and his partner EL were at the applicant's apartment. He said EL said to the applicant that DC was saying she woke up with her pants around her ankles in the applicant's unit and she did know what happened. GF said the applicant said "If you want to come and drink all my drinks and use all my drugs and you pass out what do you expect". GF said the applicant was "real blasé about it".

34. GF said he then went over to DC's place and told her what the applicant had said. He said DC said "I fucking knew it" and she looked "really rattled and upset". Then later he heard the applicant calling him a "dog" (as part of the affray).

35. In cross-examination GF agreed that he was part of a conspiracy to break into the applicant's apartment after the applicant was arrested. He said DC was not part of it and described as "disgusting" the suggestion that he and DC came up with the plan to get the applicant out of his unit to steal the contents of his unit. He denied he had told DC something untrue about what the applicant had said, to elicit a reaction which got the applicant out of his apartment so he could rob him.

36. He agreed he had offences of dishonesty in his criminal record. He denied he was lying, and maintained that the conversation with the applicant did occur.

37. EL gave evidence that in April 2021 she lived in an apartment in the applicant's apartment block with GF, with whom she was in a relationship. She said she was an acquaintance of the applicant and DC. She said a day or two before 15 April 2021 she and GF had been with the applicant in his apartment, having a drink and a conversation. There was a conversation about DC, about the applicant admitting he had "slept with her". The applicant said "Well, if she comes up here, smokes all my smokes, drinks all my drinks, what does she expect is going to happen".

38. Before that conversation, EL had had a conversation with DC, about two weeks before 15 April, in which DC said she felt she had had sexual activity one night at the applicant's place, she was not entirely sure, but she felt all the signs were there, she felt sore and there was some problem or something different with her underwear or pants.

39. In cross-examination she agreed she had convictions for dishonesty offences.

40. She agreed she went into the applicant's apartment and retrieved some jewellery of hers. She denied breaking into his apartment or stealing his possessions.

41. SH gave evidence that in April 2021 she lived in the building next to the applicant's apartment building and knew him as a neighbour. She knew DC as a neighbour. She remembered a day in April when there was an incident at the applicant's apartment block. She was in her bedroom, adjacent to the applicant's place. She overheard a commotion and looked out. She heard DC "confronting” the applicant about "whether she was hurt or not by him”. She said the applicant responded "You want to take all my stuff, that's what you get" or "That's what you get from taking all my drugs".

42. LS, who lived in the applicant's building, gave evidence of witnessing some of the applicant's conduct in April 2021 (the affray). He agreed that in his statement to police made the following day, he said that during the affray he heard GF shout something like "You fucked my missus’ friend til she passed out" and he heard the applicant say “How can she not be wanting it if she rolled over and positioned herself doggy style".

43. BD gave evidence that he mentioned to the complainant that he had heard that something had happened between her and the applicant. He said the complainant said if the applicant gave her $10,000, he would be happy and she would be happy and no one would have to go to gaol. He said the complainant said the applicant did not apologise, and if he had she would not have been so upset and maybe worked it out with him.

14. He said he told the applicant about his conversation with the complainant about the applicant paying her $10,000, and he received a text message from the applicant that his solicitor wanted to talk to BD about what the complainant had said about the applicant "paying her off $10,000".

15. Petra Sonja Van Nieuwenhuijzen, a pharmacologist and toxicologist, gave evidence of opinions based on assumptions of the drugs and alcohol consumed by the complainant on the occasion of the alleged sexual assault, there being no precise evidence of the quantities of substances she consumed.

16. Ms Van Nieuwenhuijzen said with high blood alcohol levels some people might lose consciousness. She said alcohol can have quite a significant effect on memory; it disrupts the formation of memory. She said people may be able to function – go to bars, drive a car – but the next day they have no memory of what happened, depending on the amount of alcohol drunk and the speed of drinking it. She said cannabis can affect memory, Xanax can affect memory formation, and a high dose of the drug known as GHB can cause unconsciousness.

17. She said it was possible that with the depressant drugs she consumed, Ms C lost consciousness and was not able to move or function, or that a blackout occurred where she was conscious and able to function, but no memories were formed. In cross-examination she agreed that it was possible that the complainant did consent to sexual intercourse but "just cannot recall it".

18. Senior Constable Hayley Crees gave evidence that on 15 April 2021 she attended the applicant's apartment block in response to a report of the affray. While there she spoke to DC. DC told her that approximately three weeks before, she had been sexually assaulted by the applicant. Ms C told Senior Constable Crees she consumed some drugs, she believed she had passed out for approximately 30 minutes and when she woke up she was partly dressed, that her underwear was around one of her ankles. The complainant told Senior Constable Crees that the applicant had said to her, at the time of the event, "You came over, took my drugs and fell asleep".

19. The complainant told Senior Constable Crees she had confronted the applicant that day (15 April) about his having been bragging to other people about having had sex with her, and he said "There were no complaints when I rolled you over doggy style" and "You came over, took my drugs. What did you expect was going to happen?"

20. Senior Constable Samantha Kearsley gave evidence that on 15 April 2021 she went to the applicant's apartment block. She spoke to DC with Senior Constable Crees. She said DC told her she had had an argument with the applicant about what happened at the applicant's apartment a couple of weeks earlier. She took a Xanax and passed out and while she was passed out she "woke up to him fucking [her]". Senior Constable Kearsley said she made a note in her memory and later in a statement of the conversation with the complainant. She did not take a statement from DC.

21. Senior Constable Andrew Rutherford gave evidence that on 15 April 2021 he went to the applicant's apartment building with Senior Constable Kearsley. He spoke with DC. DC told him and Senior Constable Kearsley that the applicant had sexually assaulted her about two weeks earlier, while she was passed out in his apartment. He said she was very reluctant to provide a statement about the sexual assault.

22. He said later that day the applicant was arrested and spoke with police. He said when police raised the allegation of sexual assault the applicant said "Sexual assault, wow" and "She's not been a victim of sexual assault. She is 50 years old, she knows exactly what she’s doing."

23. On 15 April 2021, during his forensic procedure, which was recorded, the applicant said "I've just realised I'll get her. I've got her. I'm gonna work this one out. Good idea".

24. On 21 July 2021, in a recorded conversation, the applicant told a person Billie:

"Oh these kids have all conspired this obviously, to ah, have me arrested and [he identified one of the "kids" as GF] the girl, whose name’s DC ah, rang the police and said that I sexually assaulted her, which is a whole heap of bullshit... Um, basically the minute I was arrested they were in my apartment cleaning it out."

55. The applicant said to Billie "I definitely did not rape her by any means at all… Um, it was extremely consensual."

56. In another recorded phone call on 1 August 2021 the applicant told the person he was speaking to "And then I've got to get [BD] to do his statement again."

57. The applicant sent a text message to BD, on an unidentified date, saying “My solicitor would like to talk with you regarding what [DC] said to you about paying her off 10,000."

58. When the applicant was arrested in relation to the sexual assaults he said to the arresting officer "Yeah, she's just got the shits because I told that kid in the block that I had been with her, and then he went and told her".

Ground 1 - His Honour failed to properly direct with respect to the prospect of disagreement and the possible outcomes of their deliberations

59. The course of the trial, as relevant to this ground, was as follows.

60. The trial commenced on 14 November 2023. The evidence in the Crown case was completed on 22 November 2023. The applicant did not adduce any evidence, as was his right. The Crown Prosecutor and the applicant's trial counsel addressed the jury on 22 November 2023. The judge summed up on Thursday, 23 November 2023 and the jury retired to consider their verdicts at 12:08pm that day.

61. After lunch that day the jury asked for definitions of consent and knowledge of non-consent. The jury was directed on those issues and sent home at 3:44pm.

62. On Friday, 24 November 2023 the jury sent a note which gave rise to the impugned direction. At that time the judge observed the jury had been deliberating for five hours and 40 minutes. After the direction was given, the jury returned to deliberate. They were sent home on Friday afternoon, at which time the judge commented that the jury's deliberations were "Either past or at eight hours."

63. On Monday 27 November the jury returned their verdicts at 2:17pm, of guilty on counts 1 and 3 and not guilty on count 2.

The jury's questions

64. The jury's questions, as read onto the record by the trial judge, were:

"We have a unanimous decision on one count, and we are hung on the other two counts. What is the suggested process for deliberating from this stalemate? How long are we expected to deliberate for? What are the potential next steps if we do not reach a unanimous decision?"

65. When the judge first told counsel about the jury's note, the Crown suggested the jury be given "the perseverance Black direction" and not to undermine that direction by referring to a majority verdict. Trial counsel for the applicant said "I agree with what my friend has said".

66. His Honour expressed some concern that someone on the jury knew about majority verdicts. He indicated his intention to tell the jury that the decision was required to be unanimous and that whatever someone in the jury room might be saying about majority verdicts should be ignored.

67. The judge indicated to counsel his proposed answers to the jury's questions:

“I would think it’s appropriate to give them a Black direction, indicating that unanimity is required, and that answers the first of their questions, ‘What is the suggested process for deliberating from this point?’ It’s to continue. ‘How long are we expected to deliberate for?’ The answer to that is, whatever time it takes you to reach verdicts, unanimous verdicts.

‘And what are the potential next steps if we do not reach a unanimous decision?’ At which time I will remind them, that I have said nothing during the course of my summing up about unanimous verdicts, that it’s a possibility that someone on the jury has raised the issue of what happens, if you are not able to reach a unanimous decision. The requirement is that you reach a unanimous decision. Please ignore anything that anyone of your number has said about being able to reach a decision which is not unanimous. Now is that all right?”

68. Trial counsel for the applicant said "Yes, it's fine by the defence".

69. The judge then directed the jury in the following terms:

“All right, thank you, ladies and gentlemen, I have your note, which indicates that you have reached a unanimous decision in relation to one of the three counts, and that you are hung in respect of the other two counts, and you asked, ‘What is the suggested process for deliberating from this stalemate? How long are we expected to deliberate for? What are the potential next steps if we do not reach a unanimous decision?’ So I will give you the following directions. 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 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 either sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfill it to the best of your ability. Each of you takes into the jury room your individual experience, your wisdom, and you are expected to 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. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one. I remind you that your verdict, whether it be guilty or not guilty, must be a unanimous one.

All 12 of you must in the end agree upon that verdict. It may be that the particular paths which lead each of you to that unanimous decision are not quite the same, but nevertheless your verdict of guilty or not guilty must be the verdict of you all. In other words, provided that you all agree that a particular verdict should be given, it does not matter that you do not agree as to why that particular verdict should be given. As I have said, experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence for that reason. Judges usually request juries to reexamine the matters on which they are in disagreement, and to make a further attempt to reach a verdict.

Now, to deal specifically with three questions you asked, the first question was, ‘What is the suggested process for deliberating from this stalemate?’ Well, there is only one process and that is to continue deliberating. ‘Your next question is, how long are we expected to deliberate for?’ And the answer to that is, there is no time constraint on your deliberations, you should deliberate for whatever time it takes you to reach a unanimous verdict. And as to, ‘What are the potential next steps, if we do not reach a unanimous decision?’ You will, if you recall my summing up, note that I said nothing in my summing up whatsoever about a decision or a verdict which is not unanimous. I suspect someone on the jury has raised the issue of what happens if we are not unanimous, or that is the result of the fact that you have so far not been able to be unanimous in respect of two counts, but you should ignore that because you must reach a unanimous verdict, whatever it is.”

70. After his Honour gave that direction trial counsel did not ask for a further direction of the kind which the applicant now says should have been given. Therefore, the applicant requires leave to rely on appeal ground 1 in accordance with r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021.

The applicant’s submissions

71. Counsel for the applicant submitted that the direction Judge King SC gave to the jury in answer to their questions omitted the central part of the Black direction, that the judge had the power to discharge them from giving a verdict if they could not reach agreement. Counsel submitted that the jury should not have been placed under improper pressure but that the jury was given an ultimatum that they had to reach unanimous verdicts. Counsel submitted that there is a real possibility that in response to the judge's direction some jurors compromised their views.

72. Counsel submitted that the error in the direction was of such a fundamental character and occurred at such a critical stage of the jury's deliberations that the applicant has established that he lost a real chance of being acquitted. In so submitting counsel relied heavily on the statements of Bellew J, with whom Bell CJ and Ierace J agreed, in Haile v R [2022] NSWCCA 71 at [206]. Counsel submitted that this court could not conclude that "no substantial miscarriage of justice" occurred.

The Crown’s submissions

73. The Crown submitted that there was no miscarriage of justice from the direction. The Crown submitted that the direction judge King SC gave contained all of the matters identified by the plurality in Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 as fundamental, in the circumstances where the jury's note did not indicate that the jury could not reach unanimous verdicts, the jury's deliberations were relatively fresh, and the trial judge was concerned about the jury considering a majority verdict.

74. The Crown submitted that the circumstances in Haile could be distinguished from this case. Further, trial counsel did not raise any difficulty with his Honour's direction.

Consideration of ground 1

75. It is appropriate to refer immediately to the direction suggested by the plurality of the High Court in Black (at [15]):

“Members of the jury,

I have been told that you have not been able to reach a 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. Judges are usually reluctant to discharge a jury because 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 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 sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to 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. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often, juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict.”

76. In Joyce (a pseudonym) v R (2019) 99 NSWLR 562; [2019] NSWCCA 187 (now known as O’Brien v R) Simpson AJA, Walton J agreeing, said of the Black direction at [34]-[36]:

“[34] …The appropriate direction… strikes a balance between important competing considerations — the desirability of finality in criminal prosecution, the “fundamental principle” earlier referred to, that is that no juror should be subject to pressure to acquiesce in a verdict to which he or she could not conscientiously subscribe, and that the process involves consideration and respect for the views of other members of the jury, and a willingness to reconsider initial views.

[35] What is to be noted is that, in its opening words, it informs the jury that the judge has the power to discharge the jury from giving a verdict. It goes on to specify the limitation on the exercise of that power — it should not be exercised unless the judge is satisfied that there is no likelihood of genuine agreement being reached after further deliberation. It then emphasises two things: on the one hand, the independence of each individual juror, and the need to adhere to conscientiously held opinions; and, on the other hand, the obligation to listen carefully to and consider the views of others.

[36] Those opening words are designed to remove any suggestion of pressure upon a jury, and, more importantly, any individual member or members of the jury who conscientiously holds or hold a view different from that of other members of the jury. The direction affords comfort to the whole jury that, in the event of irreconcilable differences of opinion, the jury will not be detained beyond the point that unanimity is determined to be not possible. It removes any uncertainty in the minds of the jury and individual jurors about the length of time they will be required to remain.”

77. In Haile Bellew J said at [206]:

“I am unable to envisage any situation in which, that circumstance having arisen, and a discretionary determination having been made that a direction is appropriate, a departure from the terms of the direction formulated by the plurality in Black would ever be warranted. On the contrary, giving a direction which departs from those terms is not something which should be encouraged. The circumstances of this case simply affirm the proposition, if indeed any affirmation were needed, that when the circumstances require a Black direction, the terms of the direction set out by the plurality in Black should be followed. The present case serves as a stark example of the problems that can arise when those terms are not followed.”

78. It is clear that the circumstances in Mr Haile's trial underpinned Bellew J's emphatic statements. Those circumstances were quite different from those in this trial. That trial had taken almost three months from its commencement until the jury began deliberating, the jury had been deliberating for eight days when they sent a note to the trial judge that they were unable to reach a unanimous verdict, a juror had been discharged earlier in the trial, and after the direction was given in response to the jury's note a second juror was discharged and a third juror sought to be discharged.

79. Nevertheless, it is important that a Black direction given to a jury should refer to the judge's power to discharge the jury in order to avoid pressure being placed on a juror or a jury. In Joyce Simpson AJA regarded the avoidance of pressure on a juror to acquiesce in a verdict to which he or she could not conscientiously subscribe as fundamental (at [34]).

80. The applicant must establish, for the purposes of the "third limb" of s 6 of the Criminal Appeal Act1912 (NSW) that there was a miscarriage of justice by reason of Judge King SC's direction to the jury in response to their questions. The proviso to s 6(1) states that the court “may, notwithstanding that it is of opinion that the point… raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

78. In considering whether a miscarriage of justice occurred in the applicant's trial I have had regard to the High Court's consideration of that concept in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, as considered by this Court in Zhou v R [2021] NSWCCA 278, Tomlinson v R [2022] NSWCCA 16, particularly per N Adams J, AK v R [2022] NSWCCA 175 per Beech-Jones CJ at CL (as his Honour then was), and Saunders v R [2022] NSWCCA 273.

79. In Hofer, Kiefel CJ, Keane and Gleeson JJ said, at [41]:

“A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law, to the prejudice of the accused."

83. Gageler J (as his Honour then was) said at [118]:

“What is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential… to have affected the result of the trial."

84. In Saunders Simpson AJA said at [93] “It is necessary… to establish that the error did, or might have had, a prejudicial effect on the accused's prospects of acquittal."

85. In Hofer at [123] Gageler J said:

“Except in the case of an error or irregularity so profound as to be characterised as a ‘failure to observe the requirements of the criminal process in a fundamental respect’, an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred.”

86. It is clear that when considering the response to the jury's questions the trial judge and counsel were distracted by concerns that the jury were aware of and considering a majority verdict. Despite that, it is not clear why his Honour omitted from the direction he gave the jury that he had the power to discharge them if they could not reach agreement after further deliberation. Perhaps it was an oversight on the part of the trial judge and counsel. Regardless, during the direction his Honour referred several times to a unanimous verdict, and the last thing the trial judge said to the jury was "You must reach a unanimous verdict, whatever it is."

87. I have come to the conclusion that so informing the jury that there was no alternative but that they must reach unanimous verdicts, was a "failure to observe the requirements of the criminal process in a fundamental respect". Therefore, I would grant leave to the applicant to rely ground 1, and find that a miscarriage of justice occurred in consequence of that erroneous direction the subject of ground 1.

Ground 2: His Honour failed to give a Markuleski direction

Ground 3: The verdict of guilty in relation to count 1 is unreasonable and cannot be supported having regard to the evidence and to the verdict of not guilty returned in respect of count 2

Ground 4: The conviction in relation to count 1 is unreasonable and cannot be supported having regard to the evidence

88. In his summing up the trial judge directed the jury to separately consider the counts on the indictment, in the following terms:

"Can I just say this to you, as a final thing to remind you, that you consider each of the counts on the indictment separately, and of course there is a distinction in timing between counts 1 and 2, and count 3, of some weeks, but you consider each offence separately, even though counts 1 and 2 are said to have occurred on the one occasion. You need to consider the evidence that is relevant to each of those counts, and to give separate consideration to each of those counts, from each other. There may be general relevance in the general evidence, that is relevant to each of those, but that is a matter for you, and what you make of the evidence."

89. The applicant complains that his Honour did not give a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 in terms that "If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you have to consider how that conclusion affected your consideration of the remaining counts." (As per the Judicial Commission Criminal Trial Courts Bench Book.)

90. The applicant accepts that his trial counsel did not seek a Markuleski direction either before or after the summing up, and therefore r 4.15 applies.

91. In submitting that the verdict of guilty on count 1 was unreasonable counsel submitted that the verdicts in relation to count 1 and count 2 were illogical. Counsel submitted that both counts 1 and 2 depended on the evidence of the complainant, and on the defence case the credibility of her evidence was central.

92. In Markuleski, Spigelman CJ said:

"[31] Nothing in Jones (Jones v The Queen (1997) 191 CLR 439) casts any doubt on the appropriateness of the jury accepting a witness's evidence in one respect, whilst retaining a reasonable doubt about the commission of an offence about which that same witness is the only substantive witness."

and

“[186] … it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.

[187] Some form of direction assisting the jury in this respect should be given… ‘as a general rule’. Its absence is not necessarily fatal… Furthermore… the ‘general rule’ does not apply ‘where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore the balance of fairness.’

[188] It is not necessary to specify any precise words for such a direction. That
will depend on the circumstances of the case. It will often be appropriate to
direct a jury that where they entertain a reasonable doubt concerning the
truthfulness or reliability of a complainant's evidence in relation to one or
more counts, that must be taken into account in assessing the truthfulness or
reliability of the complainant's evidence generally.

[189] On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think
that there was nothing to distinguish the evidence of the complainant on one
count from his or her evidence on another count.

[190] Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

[191] The precise terminology must remain a matter for the trial judge in all the
particular circumstances of the specific case. The crucial matter is to indicate
to the jury that any doubt they may form with respect to one aspect of the
complainant's evidence, ought be considered by them when assessing the
overall credibility of the complainant and, therefore, when deciding whether or
not there was a reasonable doubt about the complainant's evidence with respect to other counts.”

93. Wood CJ at CL agreed in a separate judgment and Carruthers AJA agreed with Spigelman CJ.

94. In Keen v R [2020] NSWCCA 59, McCallum JA, with whom Wilson J and Cavanagh J agreed, said, at [76], that the decision in Markuleski does not mean that the direction suggested there is “crucial” or must be given in every case, but that the decision whether to give such a direction must be a matter for the assessment of the trial judge according to the particular circumstances of the specific case. Cavanagh J at [109] also said that when Spigelman CJ referred to "the crucial matter" (in [191]) his Honour was referring to the content of the direction rather than the circumstances in which such a direction might be called for.

95. In this case the evidence in support of count 2 was of a different nature and quality than the evidence in support of count 1.

96. The evidence of the complainant in relation to count 2 was that when she went home after having woken up she had "blood coming out of my bum" and "when I wiped myself I had blood on the toilet paper". The accused’s case in respect of count 2 was that there was no anal intercourse. There was evidence from the complainant’s mother, MS, that the complainant told her she was sore in her anus. There was no other evidence of such a specific complaint by the complainant.

97. The evidence in support of count 1 was quite different. The accused did not dispute that penile vaginal intercourse had occurred, but his case was that it occurred with the consent of the complainant. In addition to the complainant’s evidence there was her early complaint to her mother that she had been "raped", which, despite the jury having been directed about the legal definition of sexual assault, the jury may well have interpreted as a reference to penile vaginal sexual intercourse. There was the evidence of the disarray of the complainant's clothing, being inconsistent with consensual sexual intercourse. There was evidence of the applicant admitting to people that he had sexual intercourse with the complainant and there was evidence of the applicant admitting that the complainant was unconscious in his apartment. As I will explain below, in relation to the assertion that the verdict on count 1 was unreasonable, and despite the evidence the applicant places weight on in support of that assertion, the verdict on count 1 was not unreasonable. Had the trial judge directed the jury in accordance with Markuleski, it would still have been open to the jury to consider that there was a wealth of evidence supporting the evidence of the complainant in respect of count 1.

98. It would have been desirable in my view for the trial judge to have given the jury a Markuleski direction, but in the circumstances of this trial it was well open to the jury to distinguish between the evidence in support of count 2 and the evidence in support of count 1. Therefore the applicant has not shown that he lost a real chance of acquittal on count 1 by virtue of the misdirection of the jury (Obeid v R [2017] NSWCCA 221 at [24]). Therefore I would not grant the applicant leave under r 4.15 to rely on ground 2.

Unreasonable verdict

99. In considering the applicant’s unreasonable verdict assertion, the task of this court is to make an independent assessment of the sufficiency and quality of the evidence adduced at the trial, however, making allowance for the advantage enjoyed by the jury in seeing and hearing the witnesses, as stated by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (at 493-5):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

…

It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

Applicant’s submissions

100. In submitting that the verdict in relation to count 1 was unreasonable, counsel for the applicant placed great weight on the evidence of the expert pharmacologist, summarised above at [45]-[47]. Counsel placed emphasis on the expert's evidence about the difference between a person being unconscious and unable to consent and blacked out and consenting, although unable to recall afterwards. Counsel accepted that the evidence of the expert was highly qualified, on the basis of the assumptions made, but submitted that it was part of the evidence which this court must consider in its independent assessment of the evidence.

101. Counsel for the applicant submitted that the evidence of Ms EL and GF was unreliable by reason of their drug use and admitted dishonesty.

102. Counsel relied on the evidence of Senior Constable Kearsley that the complainant said to her she "woke up to [the applicant] fucking her", as a statement inconsistent with the complainant's evidence.

103. In respect of that last piece of evidence I have noted that Senior Constable Kearsley made her statement of the conversation with the complainant later, from her memory. Senior Constable Rutherford, who was present with Senior Constable Kearsley and spoke to the complainant, did not give evidence of the complainant having said that. Nor did Senior Constable Crees, who spoke with the complainant. It seems that Senior Constable Kearsey's recollection of the complainant's statement to her, when she came to make her statement, was not accurate.

104. On the other hand, the complainant's evidence was quite credible. Her early complaint to her mother, and her distressed and crying state when she made that complaint to her mother, provided support for the complainant's evidence. The state of her clothing, with her underpants still around one ankle, supported her evidence of a non-consensual sexual assault. If, as was the applicant's case, the complainant had engaged in a consensual sexual encounter with him it is unlikely she would have left her underpants dangling on one ankle.

105. The evidence of GF and EL appeared credible, despite their admitted past dishonesty offences and despite their admitted involvement, to different extents, in having gone into, or knowing of people having gone into, the applicant's apartment after he was arrested for the affray. There was a consistency among the witnesses who heard and reported statements by the applicant, in the statements attributed to the applicant. Those statements admitted that there had been penile-vaginal sexual intercourse with the complainant and some of them admitted that she was passed out in his apartment, as the complainant said she was.

106. The expert’s evidence was highly qualified and does not give rise to a reasonable doubt about the complainant's evidence, supported as it was by the other evidence to which I have just referred.

107. Having made my own independent assessment of the sufficiency and quality of the evidence I do not have any reasonable doubt about the guilt of the applicant in respect of count 1. Therefore he has not established ground 3 or ground 4.

Orders

108. Therefore I propose the following orders:

1. Grant leave under r 4.15 for the applicant to rely on ground 1.

2. Refuse leave under r 4.15 for the applicant to rely on ground 2.

3. Grant leave to appeal on grounds 3 and 4.

4. Allow the appeal on ground 1.

5. Quash the applicant's conviction on count 1.

6. Order that there be a new trial of the applicant on count 1.

7. Set a date for mention in the District Court at Sydney on Friday 13 December 2024.

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Decision last updated: 02 December 2024