Gageler CJ
Gleeson J
Jagot J
23.
penetration did not occur but also that the Crown had to prove that K did not consent if it did occur.
Third, in the course of its deliberations, on 19 October 2020, the jury asked whether a child under 16 years could consent. The trial judge directed the jury that it was possible for a child under 16 years to consent to intercourse and again directed that the jury had to be satisfied beyond reasonable doubt that the appellant penetrated, relevantly, K's vagina, and that K did not consent to that penetration, to convict the appellant of rape. The trial judge said, for example, that whether "in the circumstances, there was a lack of consent is a matter for you to determine".
Fourth, the trial judge returned to the issue of consent arising from another jury question about unlawful carnal knowledge on 20 October 2020, explaining that if the jury did not agree that the Crown had proved beyond reasonable doubt that, relevantly, K did not consent to the penetration, then the appellant could not be convicted of rape and the jury had to consider the unlawful carnal knowledge charges.
What is left then is the undisputed misconduct of juror X in undertaking the internet research about the definitions of and sentences for rape and unlawful carnal knowledge and of the other jurors in not reporting these matters to the trial judge as directed. Might a fair-minded and informed member of the public reasonably apprehend that the jury might not have discharged its function as required? The "objective nature and extent"[1] of this misconduct, which is all that exists in this case, might provide a basis upon which someone might speculate that the jury might not have discharged that function as required. In our opinion, it provides no basis to conclude that a fair-minded and informed member of the public might reasonably apprehend that this jury might not have discharged its function according to law, on the evidence, and in accordance with the directions of the judge.
Conclusion
The appellant's convictions of the six sexual offences have not been demonstrated to involve a miscarriage of justice. The appeal should be dismissed.
- ↑ Smith v Western Australia [No 2] (2016) 263 A Crim R 449 at 466 [364].
