Page:HCF v The Queen.pdf/26

Gageler CJ Gleeson J Jagot J

informed member of the public that the jury or juror might have failed fully to appreciate and therefore apply a substantive direction about how a verdict is to be rendered. On this basis, the assumption, which is "fundamental to the criminal jury trial", that jurors understand and conform to a trial judge's directions continues to apply to the jurors in the present case other than in the proven respect of the identified misconduct.

The verdicts provide no more information other than that they belie juror X's initial and subsequent assertions that he would not convict the appellant of any offence. The jury acquitted the appellant of all charges relating to E and acquitted or could not reach a verdict in respect of all charges that the appellant raped K. Count 1, for example, discloses that the jury convicted the appellant of maintaining a relationship of a sexual nature with K, a child under 16 years, between 31 December 1989 and 19 September 1999, but could not reach a verdict on count 1 to the extent it charged that the appellant raped K during this sexual relationship. Count 17, for example, discloses that the jury convicted the appellant of unlawful carnal knowledge of K, between 18 September 1997 and 20 September 1999, but could not reach a verdict on count 17 to the extent it charged that the appellant raped K during this period. Count 18, for example, discloses that the jury acquitted the appellant of rape of K and unlawful carnal knowledge of K, between 31 December 1998 and 1 January 2000.

The reasons nothing can be drawn from this are as follows.

First, apart from the fact the jury acquitted the appellant or could not reach a verdict in respect of all rape charges against K, there is no consistent pattern as the jury both convicted and acquitted the appellant of charges of unlawful carnal knowledge of K relating to different periods of time.

Second, the issue of consent, being the essential difference between rape and unlawful carnal knowledge, was not the subject of cross-examination of K but was the subject of the Crown prosecutor's submissions and of directions by the trial judge. K's credibility was also in issue, it being part of the appellant's case that she had a motive to lie about the appellant. In the Crown's opening, the Crown prosecutor told the jury that, for rape, the jury had to be satisfied that penetration was without consent. In his summing up, the trial judge returned to consent being an essential element of rape, saying both that it was the appellant's case that