Seo v The King

[2025] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Seo v R [2025] NSWCCA 131

Hearing dates:

15 August 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Before:

Price AJA at [1];
Cavanagh J at [102];
Yehia J at [103]

Decision:

(1)   Grant leave to appeal against the convictions.

(2)   Allow the appeal.

(3)   Quash the convictions and sentence.

(4)   Order that there be a re-trial of the applicant.

(5)   Remit the matter for mention at the District Court at Sydney on 5 September 2025.

Catchwords:

CRIME – appeals – appeal against conviction – whether irregularity constitutes miscarriage of justice – where irregularity occurred by provision of a transcript containing discussions in the absence of the jury – where those discussions included details of allegations made by the complainant for which the applicant had been acquitted in a previous trial – whether irregularity met the threshold of materiality – whether continuing trial after discharge of juror occasioned a substantial miscarriage of justice – whether it would be inferred that discharged juror would have voted for an acquittal – where majority verdict followed a short time after juror was discharged

Legislation Cited:

Crimes Act 1900 (NSW), ss 61KC, 61I

Criminal Appeal Act 1912 (NSW), ss 5, 6

Jury Act 1977 (NSW), ss 53A, 53C, 68C

Cases Cited:

BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215

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

Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71

House v The King (1936) 55 CLR 499; [1936] HCA 40

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

Phan v R [2018] NSWCCA 225

Watson v R [2022] NSWCCA 208

Category:

Principal judgment

Parties:

Mark Seo (Applicant)
Rex (Respondent)

Representation:

Counsel:
D Carroll (Applicant)
K Jeffreys (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/365304

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter which could identify the complainant is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 December 2023

Before:

Turner DCJ

File Number(s):

2020/365304

HEADNOTE

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

The applicant, Mark Seo, sought leave to appeal against his convictions for two sexual offences following a trial by jury in the District Court. On 7 December 2023, the applicant was found guilty of one count of intentionally sexually touching the complainant, contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (“Count 1”), and one count of sexual intercourse without consent with the complainant, contrary to s 61I of the Crimes Act (“Count 2”).

On 9 August 2024, the applicant was sentenced by Turner DCJ (“the trial judge”) to an aggregate term of imprisonment of three years and six months with a non-parole period (“NPP”) of two years, commencing on 22 November 2023 and expiring on 21 May 2027. The applicant does not appeal against his sentence.

The counts on the indictment related to an incident that occurred on 22 December 2020, where the applicant had sexual intercourse with the complainant. The applicant and complainant had been in a relationship for about three years until it ended in March 2020.

An earlier trial took place from 12 to 27 July 2022 before Sutherland SC DCJ and a jury on an indictment containing four counts (“the first trial”). The jury in the first trial acquitted the applicant of two counts and was unable to reach a verdict on the other two counts. Those two counts gave rise to Counts 1 and 2, which the applicant entered pleas of not guilty (“the second trial”).

The second trial commenced on 20 November 2023. The jury of 12 retired to consider the verdicts at around 12:05pm on 30 November 2023.

On 4 December 2023, the jury gave a note to the trial judge that they could not agree on a unanimous verdict on either of the counts. Her Honour gave a Black direction. On the following day, the foreperson of the jury gave sworn evidence that the jury was still unable to come to a unanimous decision. The trial judge then gave a majority verdict direction and the jury retired again to consider its verdicts.

After a short adjournment, the jury handed up two notes. Those notes mentioned that the jury had noticed the transcript which comprised of discussions between the trial judge and counsel in the absence of the jury, and queried whether it was appropriate that those portions of the transcript had been given to them. Her Honour instructed the jury that they were given those portions of the transcript by mistake and directed them to put it out of their minds. No application was made by the applicant or the Crown to discharge the jury.

On 7 December 2023, a note was received that a juror (“Juror H”), had made an inquiry outside the courtroom. At about 10:15am, Juror H was discharged. The trial judge then directed the jury to disregard any of Juror H’s reasoning from his inquiry outside the courtroom and that a majority verdict was still available. At 10:46am the jury retired to consider its verdicts and at 11:43am, the jury returned with verdicts of guilty by majority on each count.

The applicant sought leave to appeal against his convictions on a single ground comprised of two sub-grounds:

“Ground 1: a miscarriage of justice was occasioned by virtue of a series of irregularities which occurred whilst the jury were on verdict, specifically:

a) The provision to the jury of a transcript which contained discussion between her Honour and the parties in the absence of the jury which contained unfairly prejudicial information; and

b) The discharge of a juror (Juror H) who was a dissentient, the continuation of the trial with a jury of 11, and with a direction that the jury were to disregard the reasoning of Juror H.”

The Court held (Price AJA, Cavanagh and Yehia JJ agreeing), granting leave to appeal, allowing the appeal against convictions, quashing the convictions and ordering a re-trial:

As to Ground 1(a):

1. The circumstances of this case demonstrate that care must be taken when a transcript of the trial is to be provided to the jury. Where a trial judge accedes to a jury’s request for a transcript, the Crown and an accused’s counsel together with their instructing solicitors, must assiduously ensure that all evidence or discussions in the absence of the jury are removed. The Court should be reconvened in the absence of the jury to enable counsel to take the trial judge through those parts of the transcript that have been removed and should not be before the jury. This degree of formality ensures that an accused’s right to a fair trial is not put at risk: [66]-[67] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

2. The trial judge was faced with a difficult task when the jury brought to her Honour’s attention that they had been mistakenly provided with various parts of the transcript which were unfairly prejudicial to the applicant. The trial judge was given little assistance by the Solicitor Advocate and the applicant’s instructing solicitor, who appeared in the absence of counsel. Her Honour’s direction that the jury should put out of their minds the portions of the transcript provided by mistake, did not remove the unfair prejudice that the applicant had suffered. Neither the Solicitor Advocate nor the applicant’s instructing solicitor asked for a further direction: [68]-[71] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

3. What was required by the trial judge was a clear direction to the jury that the applicant had been acquitted, that the jury must give full effect to those verdicts and must approach their task without any regard to the allegations of sexual touching that had been discussed. Her Honour should have emphasised that the applicant had no prior criminal convictions and repeated the good character direction given during the summing up: [72] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

4. A miscarriage of justice has been established and the appeal should be allowed: [75]-[78] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872, applied.

As to Ground 1(b):

5. Neither the Solicitor Advocate nor the applicant’s trial counsel applied to discharge the jury after Juror H was discharged. Whether or not the trial should have continued is a matter within the trial judge’s discretion which is only reviewable by this Court in accordance with the principles in HousevTheKing (1936) 55 CLR 499; [1936] HCA 40: [91]-[92] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

Watson v R [2022] NSWCCA 208, cited.

6. In reviewing a trial judge’s decision to continue the trial after a juror has been discharged, this Court is not confined to the trial judge’s reasons: [93] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, referred to.

7. The timing of the verdicts returning such a short time after the 11 jurors resumed their deliberations leads to the reasonable inference that Juror H and another juror were holding out as dissentient jurors for an acquittal of the applicant: [94]-[96] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

8. Adamson J’s reasoning in BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215, applies to when a juror has been discharged for misconduct pursuant to s 53A of the Jury Act 1977 (NSW). The overriding principle remains the maintenance of a fair trial. The trial judge should have discharged the jury after the testimony of Juror H and his discharge. The failure to do so gave rise to a substantial miscarriage of justice: [97]-[100] (Price AJA), [102] (Cavanagh J), [103] (Yehia J).

BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215, applied.

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Phan v R [2018] NSWCCA 225; Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71, cited.

JUDGMENT

1. PRICE AJA: Following a trial by jury in the District Court at Sydney before Turner DCJ (“the trial judge”), the applicant, Mark Seo, was found guilty of one count of sexually touching the complainant without her consent on 22 December 2020, contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (“Count 1”) and one count of sexual intercourse without consent with the complainant on that same day, contrary to s 61I of the Crimes Act (“Count 2”).

2. The applicant was sentenced by the trial judge to an aggregate term of imprisonment of three years and six months with a non-parole period (“NPP”) of two years, commencing on 22 November 2023 and expiring on 21 May 2027. The applicant is eligible for release to parole on 21 November 2025.

3. The applicant’s appeal is confined to his convictions. The notice of appeal identifies the sole ground of appeal as the following:

“Ground 1: a miscarriage of justice was occasioned by virtue of a series of irregularities which occurred whilst the jury were on verdict, specifically:

a)   The provision to the jury of a transcript which contained discussion between her Honour and the parties in the absence of the jury which contained unfairly prejudicial information; and

b)   The discharge of a juror (Juror H) who was a dissentient, the continuation of the trial with a jury of 11, and with a direction that the jury were to disregard the reasoning of Juror H.”

4. As the sole ground of appeal does not raise a question of law alone, the applicant requires leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). The applicant’s ground of appeal asserts that a miscarriage of justice was occasioned and seeks to invoke the third limb of s 6(1) of the Criminal Appeal Act. The Crown contended that if leave be granted, the appeal should be dismissed because there was no substantial miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act.

5. For the reasons below, I propose that leave to appeal should be granted and the appeal allowed.

6. In order to understand Ground 1(a) of the appeal, it is necessary to briefly refer to the applicant’s earlier trial before Sutherland SC DCJ in July 2022. The trial that commenced on 20 November 2023 before the trial judge was the applicant’s second trial.

The first trial

7. On 27 July 2022, the applicant was acquitted by a jury of two counts of intentionally sexually touching the complainant, contrary to s 61KC(a) of the Crimes Act. However, the jury in that trial was unable to reach a verdict on a further two counts, being one count of intentionally sexually touching the complainant, contrary to s 61KC(a) of the Crimes Act and one count of sexual intercourse without consent with the complainant, contrary to s 61I of the Crimes Act.

The second trial

8. In the second trial which commenced on 20 November 2023, the applicant was retried on the counts upon which the jury had been unable to reach a verdict in the first trial. These counts became Counts 1 and 2 on the indictment to which the applicant entered pleas of not guilty before the jury.

9. After opening addresses, the trial judge instructed the jury about the earlier trial as reference had been made to the applicant’s recorded evidence. Her Honour said:

“Her HONOUR: … All right, members of the jury, that means that that part of the trial is now complete. That was the opening addresses. So we’re going to commence with the evidence tomorrow. Before we do though, I’ve got a few things that I need to say to you. The first thing is you’ve just heard from [the applicant’s trial counsel] that [the applicant’s] evidence from a previous occasion will be played in this trial. There was a previous trial in this matter which did not complete. Now, what I want to say to you about that, and you may hear that during the course of this trial, about you’ve just heard about previous evidence that [the applicant] gave, and you may hear other references to it. So I want to say that to you upfront. You are not to speculate about why there was a previous trial that did not complete. I can say this to you, trials do not complete for all sorts of reasons. It’s not relevant to your considerations in this matter, that there was a previous trial, other than the fact that you’re going to hear about it, and hear some evidence from it. But what I want to say to you, it not being relevant, then clearly you would not, and cannot use the fact that there was a previous trial that did not complete in anyway against [the applicant] in this trial. As I said, it’s irrelevant. Trials don’t complete for a number of reasons, and so, you’re not to speculate about it, and you’re not to use that fact against [the applicant]. So that’s the first thing I want to say.”

Brief summary of the complainant’s and applicant’s evidence

10. These reasons do not require a detailed summary of the evidence adduced at the trial as the appeal focuses on what occurred whilst the jury was on verdict. A brief overview of the complainant’s and applicant’s evidence will suffice.

11. The applicant and complainant had been in a mostly long-distance relationship for about three years until March 2020. At trial, there was no dispute that the physical elements of Counts 1 and 2 were established. The Crown case was that despite the complainant’s resistance to the applicant, he persisted, even when she told him to stop. The applicant’s case was that the complainant was a willing participant, and she had made a false complaint against him to garner sympathy from her former partner, CL.

12. The complainant gave evidence that she and the applicant were in a relationship until March 2020. Following the breakdown of that relationship, the complainant formed a new relationship with CL in around April or May 2020, which lasted until November 2020. At this point, the complainant had stopped communicating with the applicant, who had moved to Western Australia in around October or November 2017.

13. In mid-May 2020, mutual acquaintances of the complainant told her that the applicant had been asking about her whereabouts and the identity of her new partner. The complainant texted the applicant and asked him to stop contacting her friends and asking about her.

14. In Exhibit A, which contains a series of text messages exchanged between the applicant and the complainant from 18 November to 23 December 2020. It appears that on 22 December 2020, the applicant sent a text message to the complainant saying he was in Sydney and that he wanted to see the complainant, which surprised her. The complainant contacted CL and another male friend, E, to express that she was concerned the applicant would come to see her. A short while later, the applicant sent a text message saying that he was downstairs from her unit. The complainant then went down and met him outside, where they spoke briefly, but a few minutes later they went upstairs and inside her unit to continue their conversation privately.

15. In the unit, the applicant told the complainant that he missed and still loved her, trying to persuade her about getting back together. She told him the relationship was over. He then approached the complainant and wrapped his arms around her body like a “clamp”. The complainant saw that her dog was in the room and trembling, and she went over to pick up her dog and comfort it. The applicant “clamped” his arms around her again and kissed her. He then pushed her onto the bed, and the complainant said, “stop, I don’t want to do this … [c]an we just stop it”. The applicant grabbed the complainant by her upper arms, interlocked his hands with both of hers, pushed her hands back, and held them near her ears. As she lay on the bed, he removed his clothing and lifted up her t-shirt and bra to her collarbone. He started kissing, biting and sucking her breasts and kissed her chest down to her belly button (“Count 1”). The complainant continued to say, “[n]o stop, I don’t want this”. The applicant then pulled down her leggings and underwear and removed his own underpants.

16. The complainant attempted to pull her garments back up, and the applicant ripped them off her and threw them away. He spread open her legs with his knees and said, “[l]et me put it in”. The complainant continued to say “[s]top this”. The applicant put his penis into the complainant’s vagina and moved his body and hips back and forth before ejaculating on her lower abdomen (“Count 2”). He asked for baby wipes to clean up, which she provided to him. They both got dressed and the complainant then told the applicant “[y]ou can’t stay here”. The applicant eventually left the unit.

17. Following his arrest on 24 December 2020, the applicant took part in a recorded interview with police (“ERISP”). The applicant told police that he and the complainant hugged and there was a bit of a spark. They then had sex. It happened all of a sudden and did not take that long. He did not ask her, but he never did in the past either. The applicant was asked:

“Q227.   Did she tell you, I don’t want to do this?

A.   Well, at the time, I think actually she did not want to do it at the time, like, when it was like, halfway or something like that, it wasn’t at the start. So like …

…

Q234.   What was your feeling at the time, when you started the sex? Did you feel like she was wanting the sex or not wanting the sex?

A.   Um, at the start, she did not really say anything, and um, I think that halfway through when she said, [s]top it, or something like that. I remember, like, she just did not want to do it or something.

…

Q237.    … halfway through she didn’t want to do it?

A.   Well, … if she didn’t want to do it at the start, I wouldn’t, I wouldn’t force her to like, you know, to do it at the time. Like, if, if she at the start, start, like if she just doesn’t want to do anything, there was a dog there and I, I’m the one who left there. I did not stay there …”

18. The ERISP was tendered and marked as Exhibit J in the trial. The Crown tendered an audio recording of the applicant’s evidence given in the first trial (MFI 9), during which he told the jury that the complainant hugged him back, she accepted his kiss, that there was a spark between them, that she never resisted and was getting along with it, and she took off her own clothes when they both went to the bed at the same time. When asked “[w]hat did you believe in relation to whether she was consenting or not to the sex?”, the applicant replied “I believe she consented to the sex”.

19. The applicant said that they had good feelings for one another and “she never resisted at the time … she didn’t and she never said ‘[n]o’ or ‘[s]top it’ at any time”.

20. The applicant said he was very nervous during the ERISP. He had not had any prior experience with police officers before. It was his first time, and he had not spoken to a lawyer.

21. Detective Stein, the officer in charge, gave evidence that the applicant did not have a criminal record in New South Wales or Western Australia.

The jury on verdict

22. On Thursday, 30 November 2023, the jury of 12 retired to commence their deliberations at 12:05pm. On the third day of their deliberations, the jury informed the trial judge that they were unable to reach a unanimous decision and her Honour gave a Black direction (Black v The Queen (1993) 179 CLR 44; [1993] HCA 71).

23. On Tuesday, 5 December 2023, the foreperson gave sworn evidence that a unanimous verdict would not be likely on either count, and a majority verdict direction was given by the trial judge.

24. After a short adjournment, the Court reassembled to deal with two jury notes. The first note, marked as MFI 29, stated the following:

“We have found examples in the transcript of [the complainant’s] evidence of discussions between your Honour [and] counsel while the jury had been sent out and was not present.

We are unsure if we should have seen this part of the transcript – do you have any directions regarding this?

eg. from page 109 of the transcript.”

25. Transcripts of the evidence of the complainant, CL and the applicant had been provided to the jury on 30 November 2023 and marked as MFI 21. The trial judge examined MFI 21 and initially identified that pages 108-112 of the transcript had been provided to the jury in error.

26. It was further found that the jury had also been provided with pages 31, 44-46, 53-54, 82, 198-208 of the transcript, all of which concerned discussions between the trial judge and counsel in the absence of the jury. No application was made by the Crown or on behalf of the applicant that the jury be discharged.

27. The trial judge informed the jury that the portions of transcript of proceedings in their absence had been given to them by mistake, that discussions were held in their absence so that they were not distracted in their task and that they were only considering the evidence in the trial. Her Honour informed the jury that the transcripts had been removed and that fresh transcripts without those portions would be prepared. Her Honour said:

“So I want to say this to you: as I have said, these are matters that are not evidence; that is not evidence before you. You know well and truly by now what evidence is, and that is not it. So, consistent with your oath or the affirmation that you took, you are only to determine this case based on the evidence and not upon discussions that were had between counsel in your absence. You are to disregard it. You are to ignore it. You are to put it from your mind. All right? It is not the evidence. You are only to determine this case on the basis of the evidence in this Court. So, it was an error that it was before you. Please, disregard it. Put it out of your mind, and, please, it should not form any part of your deliberations. You have another copy? Please, just put that at the end, sir. I will get the court officer to come over, and thank you so much for raising that with me. The jury has just found another copy. Are there any more transcripts that anyone has? Thank you. So, please, put it out of your mind. It does not form any part of your deliberation. And, members of the jury, I cannot put that to you any more strongly than I have, it is very important. As I said, it is not in accordance with your oath or affirmation if you were to take any of that material into your consideration. So, as judges, you are to separate it from your mind and not have any further regard to it.”

28. The second jury note, marked as MFI 30 was as follows:

“Regarding ‘[the applicant] is entitled to the presumption of innocence’, if there are two interpretations of an aspect of the incident, one that presumes [the applicant] is innocent and one that presumes he is guilty, should we presume he is innocent?”

29. In response to MFI 30, the trial judge began her directions to the jury by stating:

“Members of the jury, that can never be reasoning that you resort to, ‘one that presumes he is guilty’. That is not in accordance with anything that I have said to you in my directions to you. I have said to you that the Crown bears the onus of proof. There is no presumption that someone is guilty at all, so that is the first thing I want to say to you. That part of your question that presumes he is guilty, that is not the correct reasoning that you would go about considering this incident at all.”

30. Her Honour then reminded the jury of her directions in the summing up concerning the presumption of innocence, the onus and burden of proof; that the applicant did not have to prove anything; that the question was has the Crown established its case beyond reasonable doubt and there was no presumption of guilt.

31. No further directions were sought and the jury was dismissed at the end of the day.

32. On Wednesday, 6 December 2023, the jury continued their deliberations. The replacement transcript had been provided to the members of the jury and was marked as MFI 32.

33. When the jury returned to court later in the afternoon, the trial judge reminded the jury that there were two alternative ways that they could return verdicts in relation to Counts 1 and 2 and that was “unanimous or majority”.

34. On Thursday, 7 December 2023, the court was assembled in the morning after a note was received from the court officer. The Crown and the applicant’s trial counsel were present. The note, marked as MFI 33, stated as follows:

“Dear Judge, this morning, roughly before 9am, Juror H from 8A signed in [and] asked a disturbing question. Here is a rough recount of how the conversation happened:

- Juror H takes out a piece of paper with writing on it and asks, ‘how do I get a copy of … benchbook?’ indicating he wants a legal book of some kind.

- I responded, ‘[n]o, you are not allowed any legal docs or textbooks. Everything you need is in the room’.

- Juror H, ‘[b]ut it’s online’.

- I responded emphasising again, ‘you’re not allowed to Google anything to do with the case. Any questions related to the case or law goes directly to the judge. Any specific questions you’re unsure of goes to the judge. He/she will answer it in court. You are not allowed to look up anything about the case. That’s why you’re not allowed your phones during deliberation’.

- Juror H walks off to jury room.

Some other court officers saw/heard this conversation happen. We are concerned that he has already Googled something due to the remark, ‘but it’s online’.”

35. In answer to questions from the trial judge, Juror H confirmed that he had done a Google search the previous afternoon for the words “circumstantial evidence” as he “was thinking about what is direct evidence and circumstantial evidence”. He continued that he “came up to this part of the bench book which had an explanation about circumstantial evidence”. He read then “the difference between … circumstantial and direct evidence”. The following evidence was given by Juror H in answer to questions from her Honour:

“Q.   So what I’ve asked you is have you talked to anyone else on the jury about what you read in that thing online that you’ve told us you read? Have you talked to anyone else on the jury about what you’ve read?

A.   Not about - no, I never talked to them, never said I was …

Q.   No. But about the things that you read?

A.   About the things I read? Like, it’s - I’ve written down - where it says beyond - where - like, beyond reasonable doubt, it said in there, it said, ‘[t]he only reasonable conclusion’, was another way of interpreting beyond reasonable doubt. So, like, I wrote this and talked about this this morning.

Q.   With the other jurors?

A.   Yeah.

Q.   All right. Can I see that that you have there?

A.   Yeah.

Q.   Thank you.

A.   Cause I was explaining my thought process cause, yeah, to help them understand.

Q.   And that’s based on what you had read online, what you wrote there?

A.   I just - so that’s the terminology just - like, that - especially that phrase there about a reasonable conclusion. That’s what I put in there.

Q.   Yes. Is that based on what you read?

A.   Yeah.

Q.   Is that from what you read online?

A.   Those words are. But they’re, like, they’re - it’s been the same kind of concept all the way. Like, based on all our - all the information and evidence, [the applicant] is guilty or not - like - but I’m trying to show the other jurors that - about [the applicant] is entitled to the presumption of innocence. So therefore, like, the second part is …

Q.   Right, all right. But don’t tell me anymore about - just generally what you’re trying to tell because I don’t need to know about your deliberations. But this you wrote after you read what was on the internet? Is that right?

A.   Yeah, yeah.

Q.   And this you discussed with the other jurors this morning?

A.   Yes.

Q.   All right. Did you tell them how you’ve come to write this?

A.   No. I just said I’ve been thinking about it and I wrote that out to help explain to them. That’s all.” (emphasis added)

36. The juror’s handwritten note, marked as MFI 34, is as follows:

“Considering all the established facts and circumstances viewed as a whole:

the only reasonable conclusion is that [the applicant] is guilty.

there is another reasonable conclusion inconsistent with different to the [C]rown’s conclusion therefore [the applicant] is not guilty.” (crossing out in original)

37. The joint position of the Crown and the applicant’s trial counsel was to seek the mandatory discharge of Juror H pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW) (“Jury Act”), as he had engaged in misconduct: ss 53A(2), 68C(1) of the Jury Act. The Crown informed her Honour that both parties were satisfied that Juror H had not “discussed the content of that inquiry as it relates to the circumstantial evidence with the remaining jurors. There’s no application for the discharge of the whole jury”.

38. Her Honour disagreed with the Crown’s contention that Juror H had not discussed the content of the note, MFI 34, with other members of the jury. Her Honour said:

“… but I’m just saying exactly what the situation is here that [Juror H] has, in effect, told the jury this is how they should be thinking and that is not the way that I have directed them and it is not the way that they are to go about their deliberations.”

39. Both counsel informed her Honour that their position was that what had occurred could be fixed by a judicial direction.

40. Her Honour gave two brief judgments, the first discharging Juror H and the second making a finding in respect of s 53C of the Jury Act that “there was no risk of a substantial miscarriage of justice in continuing with the trial with 11 jurors”.

41. On 7 December 2023 at 10:15am, Juror H was discharged. After bringing the jury in, the trial judge said that she had discharged one juror as he had made an inquiry outside the courtroom and they were to continue their deliberations with 11 jurors. Her Honour said that the juror had come in that morning with a piece of paper and had spoken to them about what was written on the paper, which was a result of what the juror had looked up online. Her Honour said:

“Now, I do not know the extent of the conversation that [Juror H] had with you, but I can tell you that whatever was written on that piece of paper, if you read it or if he discussed it with you, it was as a result of what he learnt during an inquiry that was outside the Courtroom, it was not anything that I have said to you in my directions to you, and he may have used the word ‘circumstantial evidence’, I do not know. If he did, can I say to you, I have not used that word, nor have I directed you in relation to that type of evidence that is not the evidence that is in this case.

As you are well aware, you are nodding, so what I want to say to you is you are not to engage in any of the reasoning that he may have discussed with you this morning because it is not in accordance with what I have directed you, and it is as a result of an inquiry made outside of the Courtroom, so you are to disregard it entirely from your mind.”

42. Her Honour said that a majority verdict was still available which meant they could deliver a verdict of “10 out of the 11 of you, or otherwise a unanimous verdict”.

43. The following exchange then took place between members of the jury and her Honour:

“JUROR 1: Your Honour, just one thing for completeness, can we - do we need to hand back what he wrote and, or his - also his folders? Just purely, he wrote some stuff on - on butcher’s paper this morning. Do you want us to hand it …

JUROR 2: It’s the same as what you’ve got.

HER HONOUR: All right.

JUROR 3: No, I think …

HER HONOUR: Just hang on, just hang on, all right. What I think I am going to do, given what you have just said now is, members of the jury, I am going to get you to go out into the room nearby and just write to me a note about what else he did and said this morning, all right. And bring in whatever piece of paper it was, all right, when I next get you back. So I will just give you that time to do that now, thank you …

JURY RETIRED TO FURTHER CONSIDER ITS VERDICT AT 10.31AM.” (emphasis in original)

44. The trial judge then discussed with both counsel what the jurors had said, as her Honour was anxious that it was correctly recorded. Her Honour said:

“HER HONOUR: All right. So then that caused me to say - I’ll need to now know exactly what it is, all right. So we’ll now have to wait for that information. Madam Crown, [the applicant’s trial counsel], I thought that was prudent given that there seems to be more discussion than what has been revealed by juror H.”

45. Between 10:31am and 10:45am, the trial judge received a note from the jury (MFI 36), which read as follows:

“Material in the jury room: (we’re aware of):

- Butchers paper on pinned up on the wall.

- Notes on directions handout.

The juror did not show us or read directly from the piece of paper you showed us.

He did not tell us he had done research outside the trial and your directions.

We have not and will not be influenced by the information he presented.” (crossing out in original)

46. The trial judge informed counsel that she had also received a piece of butcher’s paper which her Honour estimated to be “two times A3 size”. The trial judge said on the butcher’s paper (MFI 34) was the following, which her Honour thought was the same as in Juror H’s small note:

“Considering all the established facts and circumstances the only reasonable conclusion is that [the applicant] is guilty. There is another reasonable conclusion different to the Crown’s conclusion, which means [the applicant] is not guilty.”

47. At 10:45am, the jury returned to the courtroom. Her Honour thanked them for the note and advised them that the butcher’s paper and Juror H’s folder had been removed from the jury room. Her Honour reiterated the directions that the jury had been given that morning. The jury retired to further consider its verdicts at 10:46am.

48. At 11:43am, the jury returned with verdicts of guilty by majority on each count.

Ground 1: a miscarriage of justice was occasioned by virtue of a series of irregularities which occurred whilst the jury were on verdict:

(a) the provision to the jury of a transcript which contained discussion between her Honour and the parties in the absence of the jury which contained unfairly prejudicial information

The competing arguments of the parties

The applicant’s submissions

49. The applicant submitted that the provision of transcripts which included discussions between the trial judge, the Crown and the applicant’s trial counsel was clearly a procedural irregularity. The applicant contended that he was entitled to a trial where he could be given the full benefit of a good character direction without previous allegations of sexual misconduct being before the jury.

50. The applicant submitted that in the course of the proceedings, in the absence of the jury, the following six significant issues were apparent in the transcripts, all of which were apt to substantially diminish the applicant’s case.

51. Firstly, as regards pages 44-46, the transcript described the applicant’s conduct that formed Counts 1 and 2 on the indictment in the first trial. Secondly, in relation to page 46, that page provides an explanation as to why the applicant’s trial counsel did not object to the evidence of the complainant’s dog trembling. Thirdly, with respect to pages 108-112, those pages contained the applicant’s trial counsel expressing a concern that the complainant was going to make reference to previous acts of non-consensual sex by the applicant, where tendency evidence did not form part of the Crown’s case. Fourthly, as regards page 110, there was reference by the trial judge regarding what should have been said to the jury about the applicant being held in custody. Fifthly, in relation to pages 198-208, the applicant contended that her Honour expressed a preliminary view that even on the applicant’s account in the ERISP, he may not have been entitled to an acquittal. Sixthly, with respect to page 204, there was discussion of the removal of medical evidence of bruising from the agreed facts.

52. As to the direction by the trial judge, the applicant submitted that it had been given approximately a week after the jury had been provided with the tainted transcripts. The applicant pointed out that by this time, the jury had committed themselves to positions that led to both a Black direction and a majority verdict direction. The applicant contended that in these circumstances, a direction to disregard what had been part of the deliberative process, either consciously or unconsciously, could not have the necessary effect of avoiding the risk of a miscarriage of justice.

53. A further submission was that the general direction given by the trial judge failed to engage directly with the prejudicial reasoning inherent within the information disclosed. There was no reaffirmation of the good character direction, nor a direction not to engage in tendency reasoning. The jury was not directed that the applicant had been acquitted of the sexual touching offences discussed in their absence. The applicant argued that her Honour’s general direction failed to address the reasoning process, that it was not as simple as accepting his ERISP or recorded evidence. The jury was not firmly directed that they should disregard the trial judge’s comments and the reason why they should be disregarded.

54. The applicant pointed out that although he was legally represented, his trial counsel was not present at court when discussions about how to resolve the irregularity took place. Trial counsel had been given leave to appear in another matter, and the decision to continue without discharging the jury was made expeditiously and apparently without full appreciation of the breadth of the inadmissible material.

55. The applicant submitted that the discussions between the trial judge and counsel in the absence of the jury were done so to enable the applicant to receive a fair trial. Similarly, the acquittals and the offences to which they related to, were intended to be kept from the jury so that both the Crown and the applicant could receive a fair trial. The applicant contended that this did not occur.

49. The applicant argued that the jury was informed of the previous charges from which the jury may have well-reasoned, that the applicant was more likely to have committed the offences for which he was standing trial, which was unfair as he had been acquitted of those charges.

The Crown’s submissions

57. The Crown accepted that the provision to the jury of the transcript that included proceedings conducted in their absence was an irregularity in the trial. The Crown submitted that to the extent the transcript contained material that was unfairly prejudicial to the applicant, the risk of unfairness was appropriately addressed by the trial judge’s direction to disregard and ignore the material that had been provided to the jury by mistake.

58. As to pages 44-46, the Crown submitted that the Crown’s description of the particulars of the acquittal counts was brief and unadorned. While there was no reference to the applicant’s acquittals, the jury had heard evidence that the applicant had no prior criminal convictions and had been given a good character direction. The jury could not have regarded the acquittal counts as established allegations.

59. The Crown argued that the acquittal counts were less serious than Counts 1 and 2. There was nothing striking or unusual about them and the description did not extend to physical protests by the complainant. By the time the jury received the transcript, they had heard coherent narratives of events in the complainant’s bedroom, without the acquittal counts, together with summaries and analysis of those narratives in addresses and the summing up. The Crown submitted that it would not have been a difficult task for the jury to put the acquittal counts out of their minds when directed to do so by the trial judge.

60. As to pages 108-112, the Crown submitted that the transcript reveals the applicant’s trial counsel was cautious to ensure that the complainant did not say something he was not expecting. The Crown contended that it would not cause the jury to speculate about the possibility of prior occasions of non-consensual intercourse, particularly once they were directed to disregard this material.

61. The Crown submitted that the reference to the applicant being held in custody did not invite speculation or disadvantage the applicant. The jury was subsequently given an orthodox direction about the applicant being in police custody at the time of the ERISP.

62. As to pages 198-208, the Crown submitted that in preliminary discussions about a Liberato direction (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66), the trial judge raised the question of whether acceptance of the applicant’s account in the ERISP would compel an acquittal, while making it clear that her Honour had not read all the material or formed a view. By the time the jury had access to the transcript they had heard the trial judge’s concluded directions on the applicant’s evidence during the summing up, and those directions were repeated immediately after the transcript issue was raised, in response to the second jury note.

63. The Crown submitted that bruising was referred to in a context that made it clear that bruising had no relevance to the issues in the trial and the complainant did not complain of any injury. Agreed facts were admitted later in the trial that did not mention bruising (Exhibit H), and the jury was given a direction as to the effect of that document.

64. The Crown referred to the steps that were taken in the trial to ameliorate the irregularity. The trial judge immediately had the offending transcript removed and gave the jury a firm and clear direction to disregard it and to put it out of their minds.

65. The Crown pointed out that no discharge of the jury or further direction was sought by either party. The Crown submitted that the applicant was not disadvantaged by his trial counsel not being present. The applicant’s trial counsel was consulted by both the Crown and his instructing solicitor in relation to the jury’s note and he made no further application when he returned to the trial on the following day. It was further submitted that the jury gave every indication of being diligent and communicative, and there was no reason to believe they would not follow the trial judge’s directions.

Determination

66. The circumstances of this case demonstrate that care must be taken when a transcript of the trial is to be provided to the jury. Unfortunately, it appears that the checking of the transcript was conducted informally which resulted in parts of the transcript that were unfairly prejudicial to the applicant being given to the members of the jury who were on verdict.

67. Where a trial judge accedes to a jury’s request for a transcript, the Crown and an accused’s counsel together with their instructing solicitors, must assiduously ensure that all evidence or discussions in the absence of the jury are removed. The Court should be reconvened in the absence of the jury to enable counsel to take the trial judge through those parts of the transcript that have been removed and should not be before the jury. This degree of formality ensures that an accused’s right to a fair trial is not put at risk.

68. Pages 44-46 from the transcript of 21 November 2023, which were unfairly prejudicial to the applicant were not removed and were provided to the jury. Those pages disclosed discussions in the absence of the jury between the trial judge and counsel concerning Counts 1 and 2 on the indictment in the first trial. The applicant had been found not guilty of those counts. At her Honour’s request, the Solicitor Advocate who appeared for the Crown at the trial provided details of those counts in the following exchange:

“HER HONOUR: All right. Madam Crown, perhaps at this stage can you just tell me what those other two counts are?

SOLICITOR ADVOCATE: We’ve already past them now, but the other two counts were after he hugged her he grabbed her during a further hugging and he grabbed her breast and bottom and he also kissed her.

HER HONOUR: I see.

SOLICITOR ADVOCATE: So he kissed her, she was avoiding him, and he then also grabbed her breast and her bottom. That was one count.

HER HONOUR: Yes.

SOLICITOR ADVOCATE: Then there was a further hugging, again a clamping, where this time he put his hand up her shirt …

HER HONOUR: I see.

SOLICITOR ADVOCATE: … and grabbed her breast.

HER HONOUR: All right. So the kissing on the face was in essence part of that but the conduct really was for that count the touching of the bottom and the breast, was it?

SOLICITOR ADVOCATE: The particulars that went to the jury with for count 1 was the kissing of her lips, the grabbing and the two grabbings. So it was …

HER HONOUR: Grabbing of bottom and breast.

SOLICITOR ADVOCATE: Yes, and the kissing.

HER HONOUR: And then during this clamping there was - so that was one count, and then during this clamping he put his hand up her shirt, did you say?

SOLICITOR ADVOCATE: Yes.

HER HONOUR: That was the allegation?

SOLICITOR ADVOCATE: Yes. So there are a number of times that he goes towards her hugging her and during one of those times is count 1, when there’s three different particulars. And then another one of those times he’s hugging or clamping her, is when he puts his hand up her shirt and grabs her on the breast.

HER HONOUR: And that was another count.

SOLICITOR ADVOCATE: Yes.”

69. Nothing was said which disclosed to the jury that the applicant had been acquitted of the counts that were being discussed.

70. The discussion about those counts deprived the applicant of the full benefit of the acquittals to which he was entitled. The disclosure of the complainant’s allegations of sexual touching was in a sense capable of placing the applicant in double jeopardy.

71. The trial judge was faced with a difficult task when the jury brought to her Honour’s attention that they had been mistakenly provided with various parts of the transcript. Her Honour was given little assistance by the Solicitor Advocate and the instructing solicitor who appeared on behalf of the applicant in the absence of trial counsel. Her Honour’s direction that the jury should put out of their minds the mistaken portions of the transcript which is quoted at [27] above, did not remove the unfair prejudice that the applicant had suffered. Neither the Solicitor Advocate nor the applicant’s instructing solicitor asked for a further direction.

72. However, in my respectful opinion what was required was a clear direction to the jury that the discussion in their absence at pages 44-45, concerned charges of which the applicant had been acquitted, that the jury must give full effect to those verdicts and must approach their task without any regard to the allegations of sexual touching that had been discussed. Her Honour should have emphasised that the applicant had no prior criminal convictions and repeated the good character direction given during the summing up.

73. Having reached this conclusion, it is not necessary to refer in detail to other parts of the transcript that should not have been with the jury. However, I will mention the discussion between the Solicitor Advocate and the trial judge at pages 204-205 which was as follows:

“HER HONOUR: So I give that. That was the only additional. But just in terms of these agreed facts. The medical stuff.

SOLICITOR ADVOCATE: Yes. If your Honour has some concern about the paragraph about the bruises …

HER HONOUR: Well, she’s given no evidence that there was any bruises, or injury. In fact she was asked by the triple-0 - the only evidence of this is she was asked by the triple-0 operator, ‘[d]id he injure you?’. I think she was asked, ‘[d]id he injure you?’, did he assault you, or - and she said no.”

74. The references to “bruises” were capable of being unfairly prejudicial to the applicant. It was capable of suggesting that violence was used, which would stand unhappily with the applicant’s case that the complainant was a willing participant. In order to remove any possible unfair prejudice, a direction was required that reminded the members of the jury that the complainant had not suffered an injury.

75. A fair trial demands a fair process. The irregularity with the transcript occurred whilst the jury was on verdict and was capable of providing support for convicting the applicant. In no sense could it be said that the irregularity supported an acquittal.

76. As was recently explained by the High Court in Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 (“Brawn”), the materiality threshold must be overcome before it can be established that an error or irregularity amounts to a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act. The High Court considered that the threshold of materiality will be met, where the error or irregularity was one that could realistically have affected the jury’s reasoning to a verdict of guilty. The High Court relevantly said at [9]-[11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ):

“A common circumstance relied on as giving rise to a miscarriage of justice is that there was an error or irregularity in the trial at which the appellant was convicted; that is, some defect in the trial such as a departure from the rules of evidence or procedure, improper cross-examination by a crown prosecutor or a misstatement of fact by the trial judge in the summing up. If such an error or irregularity was ‘fundamental’ in the sense discussed in the authorities then there will be a miscarriage of justice and no occasion to address the proviso separately will arise. The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.

For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, ‘could’ is to be understood as meaning ‘having the capacity to’, and ‘realistically’ distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.

In each instance where the materiality threshold is met, the error or irregularity will be one that could realistically have affected the jury’s reasoning to a verdict of guilty.” (footnotes omitted)

77. In my view, the materiality threshold has been met, as the mistaken provision of portions of the transcript could realistically have affected the jury’s reasoning to verdicts of guilty.

78. The Crown did not raise the proviso, the burden which rests upon the prosecution: Brawn at [16] and the authorities there cited. A miscarriage of justice has been established and the appeal should be allowed. The verdicts should be quashed and a new trial ordered.

79. In light of that conclusion, I will deal with Ground 1(b) succinctly.

Ground 1: a miscarriage of justice was occasioned by virtue of a series of irregularities which occurred whilst the jury were on verdict:

(b) the discharge of a juror (Juror H) who was a dissentient, the continuation of the trial with a jury of 11, and with a direction that the jury were to disregard the reasoning of Juror H.

The competing arguments of the parties

The Applicant’s submissions

80. The applicant submitted that whilst the trial judge had no discretion but to discharge Juror H, what followed should have been informed by the realisation that Juror H was part of the camp who were not prepared to convict the applicant. It was the applicant’s argument that great care had to be taken not to diminish a person who was advocating for an acquittal.

81. The applicant contended that there was nothing flagrantly wrong in Juror H expressing the basis of his doubts as “a reasonable conclusion different to the Crown’s conclusion”. The applicant’s argument was that it would be a permissible path to a not guilty verdict for a juror to conclude that there was a reasonable conclusion different to the Crown’s conclusion.

82. The applicant emphasised that the trial judge’s purported ameliorative directions had the effect of diminishing the standing of Juror H and the camp of jurors who favoured an acquittal. The applicant argued that it was an impermissible intrusion into the deliberative process of the jury by the trial judge to direct the jury to disregard any of the reasoning that Juror H brought to the jury on the morning of 7 December 2023.

83. The applicant contended that he was not only denied a juror who was a dissentient but also because of the trial judge’s directions, he was also denied consideration of arguments made by Juror H to support an acquittal. It was further submitted that all of the irregularities which occurred when the jury was on verdict worked unfairly to support the applicant’s convictions.

84. In oral submissions, the applicant’s counsel, Mr David Carroll, submitted that Juror H fell within the second category discussed by Adamson J (as her Honour then was) in BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215 (“BG”).

The Crown’s submissions

85. The Crown submitted that the trial judge did not use the word “misconduct” when addressing the jury and nothing was said that would have had the effect of diminishing Juror H or his position generally. The direction was to disregard what Juror H had said that morning in relation to what he had written down on the note. It was further submitted the fact that the verdicts were ultimately reached after the discharge of Juror H, which were by majority, indicated that the jury did not, in response to this direction, entirely set aside the arguments made on behalf of the applicant.

86. When referring to BG, the Crown submitted that the circumstances of the applicant’s trial differed from those in which a juror who can be identified as one who would have voted for an acquittal, either before or after the fact, is discharged pursuant to the discretion under s 53B of the Jury Act, which generally occurs due to a medical condition or unavoidable work or personal commitments, for a reason other than their own misconduct.

87. The Crown submitted that in those cases there is a real sense in which continuing without that juror impacts the maintenance of a fair trial. The Crown argued that the fairness of the applicant’s trial was not adversely impacted by the removal of a juror who had engaged in misconduct, nor by the direction to the jury to disregard the things said by Juror H on that morning.

88. The Crown submitted that the continuation of the trial with a jury of 11 did not amount to a material irregularity so as to constitute a miscarriage of justice.

89. The Crown further submitted the issues that arose in the course of the jury’s deliberations were addressed by the trial judge’s appropriate directions given with the agreement of the parties. Furthermore, it was to be assumed that the jury was capable of following the trial judge’s directions, including the direction to disregard certain material which had inadvertently come before them.

Determination

90. I am not persuaded that there is merit in the applicant’s argument that the trial judge’s direction (quoted at [41] above), was an impermissible intrusion into the deliberations of the jury. The real issue is the continuation of the trial with 11 members of the jury.

91. The trial judge addressed s 53C of the Jury Act and found there was no risk of a substantial miscarriage of justice with continuing the trial after Juror H was discharged. Neither the Solicitor Advocate nor the applicant’s trial counsel applied for a discharge of the jury.

92. Whether or not the trial should continue is a matter within the trial judge’s discretion which is only reviewable by this Court in accordance with the principles described in House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40: See, eg, Watson v R [2022] NSWCCA 208 at [43] (Bell CJ, Price and Yehia JJ) and the authorities there cited.

93. In reviewing a trial judge’s decision for continuing the trial, this Court is not confined to the trial judge’s reasons. In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (“Crofts”), the plurality of the High Court said in the following passage at 441 (Toohey, Gaudron, Gummow and Kirby JJ):

“Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.” (footnote omitted)

94. When Juror H was discharged on 7 December 2023, the jury had been on verdict for about six days. They had been given a Black direction on the third day of their deliberations and a majority verdict direction on the following day.

95. At the time the trial judge questioned Juror H, it was known that the jury was in a state of disagreement. Juror H’s answers (to which I have added emphasis at [35] above) indicated that he was likely to return verdicts of not guilty.

96. Juror H was discharged at 10:15am. After being addressed by the trial judge (see [41] above), the jury retired to consider its verdicts at 10:31am. The majority verdicts of guilty were returned at 11:43am. The timing of the verdicts returning such a short time after the 11 jurors resumed their deliberations leads to the reasonable inference that Juror H and another juror were holding out as dissentient jurors for an acquittal of the applicant.

97. In BG, Adamson J (with whom McClellan CJ at CL and McDougall J agreed) concluded that there were three categories of case in which the question may arise as to whether the trial should continue with a reduced number of jurors when one juror had been discharged. Her Honour said at [103]-[104]:

“On my analysis of the cases, there are three categories of case in which the question arises whether the trial should continue with the remaining jurors when one juror has been discharged. These are:

(1)   Where there is no indication how the discharged juror would have voted;

(2)   Where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and

(3)   Where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal.

By and large, the effect of the authorities is that is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors if the case falls into either the second or the third categories. In such cases, there is a risk of a substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.”

98. In my opinion, the present case falls within the second of the three categories identified by Adamson J’s analysis in BG.

99. I do not agree with the Crown’s submission that Adamson J’s reasoning in BG should not apply when a juror has been discharged for misconduct pursuant to s 53A of the Jury Act. The overriding principle remains the maintenance of a fair trial: Crofts at 440 (Toohey, Gaudron, Gummow and Kirby JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15] (French CJ, Bell, Gageler, Keane and Nettle JJ); Phan v R [2018] NSWCCA 225 at [122]-[128] (Price J, Hoeben CJ at CL and Fullerton J agreeing); Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 at [199]-[201] (Bellew J, Bell CJ and Ierace J agreeing).

100. In my respectful opinion, the trial judge should have discharged the jury after the testimony of Juror H and his discharge. Her Honour’s failure to do so gave rise to a substantial miscarriage of justice.

Orders

101. I propose the following orders:

1. Grant leave to appeal against the convictions.

2. Allow the appeal.

3. Quash the convictions and sentence.

4. Order that there be a re-trial of the applicant.

5. Remit the matter for mention at the District Court at Sydney on 5 September 2025.

102. CAVANAGH J: I agree with Price AJA.

103. YEHIA J: I agree with the orders proposed by Price AJA and with his Honour’s reasons.

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