Factual and Procedural Background
The Applicant was convicted after trial of controlling or coercive behaviour, three counts of rape, and assault occasioning actual bodily harm. The Applicant was acquitted on another rape count, and the jury did not reach verdicts on four further rape counts. [1][2][3]
The Applicant appealed against conviction. The application for leave to appeal was referred to the full Court of Appeal by the Registrar. [4]
The appeal concerned the removal of some or all of the jury’s papers while the jury may still have been deliberating, shortly after a majority direction had been given. [5][6][7][8]
The court noted that statutory reporting restrictions applied to information capable of identifying the complainant as the victim of a sexual offence. [9][10]
Legal Issues Presented
- Whether the removal of the jury’s papers while deliberations were continuing constituted a material irregularity. [11]
- Whether that irregularity rendered the Applicant’s convictions unsafe. [12][13][14]
- Whether the matter required investigation by the Criminal Cases Review Commission. [15][16]
Arguments of the Parties
Applicant’s Arguments
- The Applicant argued that the jury’s deliberation, or possible deliberation, without access to its papers constituted a material irregularity rendering the convictions unsafe. [11]
- The Applicant submitted that the relevant period was not merely the ten minutes after the majority direction, because the jury did not return to court until later. [17][12]
- Reliance was placed on the fact that some jurors answered positively when asked whether the absence of their papers had affected their deliberations or verdicts, creating a risk that the convictions would be perceived as wrongful. [12]
Crown’s Arguments
- The Crown accepted that the circumstances were unusual but submitted that there was no basis for treating the convictions as unsafe. [13]
- The Crown relied on the lengthy period during which the jury had access to its papers and subsequently reached unanimous verdicts. [13]
- The Crown submitted that the judge’s question was so ambiguous that a positive answer had little meaningful significance. [13]
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court’s Reasoning and Analysis
The court accepted that the jury should have had access to its papers throughout its deliberations and that removing them before verdicts had been taken on all counts was inappropriate. [14]
It nevertheless concluded that the issue could safely and fairly be determined on the appeal application and that a referral to the Criminal Cases Review Commission was unnecessary. [16]
The court found that the jury had already reached unanimous verdicts on the counts resulting in convictions before being brought back into court. This was supported by the jury’s response to the bailiff and the Foreperson’s statement in court. [18]
The jury had deliberated for eight hours and twenty minutes, with access to its papers for the overwhelming majority of that period. The period without papers was approximately ten minutes before the jury returned to its room following the majority direction and sent its note. [19]
Having reviewed the note, the court concluded that it confirmed the jury’s ability to reach unanimous verdicts on the counts resulting in convictions, while identifying other counts on which the jury could not agree. [20]
The court considered it implausible that verdicts reached after lengthy deliberations with access to the papers could have been rendered unsafe by the short period without them. It also considered it unlikely that deliberations on the counts already resolved unanimously continued while the jury was being brought back to court. [21]
The positive answers given by three jurors were attributed to the ambiguity of the question and the fact that deliberations on the unresolved counts were continuing. Those answers could not reasonably be understood as showing that the unanimous convictions had been affected. [22]
Holding and Implications
Leave to appeal against conviction was refused. The court held that the jury-paper incident did not undermine the safety of the convictions. [23]
The convictions therefore remained effective, while the unresolved counts were discharged and the Crown indicated that it would not seek a retrial on them. [24][23] The opinion identifies no broader implication or new precedent.