Gageler CJ
Gleeson J
Jagot J
12.
In his summing up, the trial judge directed the jury in these terms:
"In respect of each of the 19 charges … You must reach your verdict on the evidence and only on the evidence …
If you've heard or read or otherwise learned anything about this case or any other similar cases out of the courtroom, exclude that information from your consideration. Have regard only to the testimony and the exhibits put before you and the admissions made since the trial began. You should ensure that no external inference plays a part in your deliberations."
The transcript records that the jury sent notes to the trial judge during the afternoon of Friday, 16 October 2020. The jury asked in the notes: (a) what would happen in the event of a hung jury; (b) about the meaning of reasonable doubt; and (c) about dates relating to count 5. The trial judge instructed the jury: (a) that it was far too early to talk about the consequences of a hung jury at that time; (b) about the meaning of reasonable doubt; and (c) that count 5 had been changed to a charge relating to when K was under 16 years, not under 12 years. The jury again retired for further deliberations.
The jury continued deliberating on Monday, 19 October 2020. In the afternoon of 19 October 2020, the jury sent another note to the trial judge. The trial judge then gave further instructions to the jury: (a) about whether a child under 16 years could consent to intercourse in the context of counts 9, 17, 18 and 20; (b) about what was carnal knowledge including in the context of counts 17 and 18; (c) that if the jury could not agree beyond reasonable doubt that the four counts of rape were committed without the consent of the relevant complainant they could not convict the appellant of the rape counts, but could convict of the alternative unlawful carnal knowledge counts; and (d) about the offence of maintaining an unlawful sexual relationship with a child under 16 years. Later in the afternoon of 19 October 2020 the jury asked another question. The trial judge provided further instructions on the charges of maintaining an unlawful sexual relationship with a child under 16 years – counts 1 and 2 – and the circumstances of aggravation relating to those charges. By 4.23 pm on 19 October 2020 the jury had not yet reached agreement. The jury asked another question, and the trial judge then gave further instructions to the jury to the effect that it was important that serious criminal matters be resolved, if possible, by unanimous jury verdict. The trial judge also allowed the jury to go home and reconvene the following morning, Tuesday, 20 October 2020.
The jury's deliberations continued throughout Tuesday, 20 October 2020. The jury asked another question in the afternoon. The trial judge gave further instructions to the effect that consent was not relevant to the charges of unlawful carnal knowledge and was relevant only to the charges of rape and as to the manner
