and H M v The Queen

[2013] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0072
H M	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and WHELAN JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2013
DATE OF JUDGMENT:	3 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 100
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v H M (Unreported, County Court of Victoria, 17 December 2010)

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CRIMINAL LAW – Appeal against conviction – Majority verdicts – Procedural fairness – Trial judge given a note from the jury which revealed jury voting numbers – Judge informed counsel of the content of the note without revealing the numbers – Whether trial judge erred in failing to reveal voting numbers and failing to exercise her discretion to discharge the jury – Whether necessary to disclose voting numbers to counsel where numbers relevant to a question not yet determined – No established principle precluding disclosure – R v Townsend (1982) 74 Cr App R 218; R v Gorman [1987] 1 WLR 545; R v Black (2007) 15 VR 551; Burrell v The Queen (2009) 196 A Crim R 199; R v Yuill (1994) 34 NSWLR 179; MJR v The Queen [2011] VSCA 374 distinguished – LLW v The Queen [2012] VSCA 54 considered – Procedural fairness required disclosure – Non-disclosure could have affected outcome – Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492; Stead v State Government Insurance Commission (1986) 161 CLR 141 applied – Observations concerning undesirable course of inviting bench of three judges not to follow recent considered decisions of this Court – Juries Act 2000 – Appeal allowed – Conviction quashed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr I M Hayden	Ellinghaus & Lindner
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
KAYE AJA:

1. The central question raised by the appeal is whether the requirements of procedural fairness obliged the trial judge, before determining whether to discharge the jury or permit a majority verdict, to disclose to counsel the precise content of a jury note provided by the jury to the judge which set out the jury numbers for and against a verdict.

1. We have had the benefit of reading in draft the reasons of Whelan JA in which he has set out the relevant passages of the transcript that are germane to this appeal.  We agree with Whelan JA that the trial judge sought to act in conformity with the statements made in a number of the cases, that a trial judge should not reveal to counsel the details of the jury numbers, which have been disclosed to the judge by the jury.  His Honour concluded that the appeal should be dismissed because in his opinion those cases authorised the trial judge to withhold disclosure of the voting numbers of the jury.  We respectfully disagree.  The authorities to which his Honour has referred do not preclude the conclusion that where such information is relevant to a decision which the trial judge is required to make concerning the deliberations of the jury, procedural fairness requires the trial judge to provide the details of the jury numbers to counsel.  In our view the appeal should be allowed.

1. The first two propositions, stated by Whelan JA in paragraph [54] of his reasons for judgment, are well established by the authorities.  They reflect the application of two underlying principles, each of which are of central importance to our criminal justice system.  The first proposition, that all communications between the jury and the judge should be disclosed to counsel and to the accused, is based on the right of an accused to a fair trial.  That entitlement is secured by adherence to the principle of procedural fairness.  In an adversarial system of justice, the significance of that principle is self-evident.  It is also important to the maintenance of public confidence in the administration of justice.  Ordinarily, there should be no secrets between the judge and the jury which may, in any way, relate to the substance of the task which the jury is performing, namely, its determination whether the prosecution has established the guilt of the accused beyond reasonable doubt.

1. The right to a fair hearing requires that a party be afforded an opportunity to be heard.  That opportunity is vital both to the reality and the appearance of justice.  A party who might be affected by a decision must be given the opportunity to make submissions bearing upon that decision.[1]  Hence a relevant fact, upon which a judge may rest a decision, must be made known to the parties.[2]  The parties cannot be denied the opportunity to make a submission as to a fact relevant to the decision, which has become known only to the judge.  Where a judge has taken account of a fact that has not been disclosed to and is unknown by the parties, a want of procedural fairness may arise without inquiring into the probative impact of that information.[3]

   [1]Refugee Tribunal;  Ex parte AALA (2000) 204 CLR 82, 121 (McHugh J).

   [2]UCAR v Nylex Industrial ProductsPty Ltd (2007) 17 VR 492, 503 [27] (Chernov JA).

   [3]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 [40].

1. The second proposition – that jury numbers or ‘votes’ should not be disclosed to the judge by the jury – is based upon the principle that jury deliberations should remain, so far as possible, confidential. That principle is of the highest significance in our justice system. It was zealously guarded by the common law, and is reflected and reinforced by s 78 of the Juries Act2000.  The principle ensures that, so far as possible, jurors are able to discuss matters between themselves, and to deliberate, with the utmost candour, and with the full confidence that the content of their deliberations remains confidential.  In that way, the principle protects the independence of juries, and the integrity of their deliberative processes.  It is for that reason that the law is rigorous in protecting and preserving the confidentiality of jury deliberations.

1. Usually, these principles of procedural fairness, and of the confidentiality of jury deliberations, operate in harmony.  However, a tension between these principles arises, as has occurred in this case, where the jury does reveal the status of its voting numbers in a note to the judge and that information is relevant to a decision which the trial judge must make.  The authorities, to which Whelan JA has referred, contain a number of judicial statements to the effect of the third principle in paragraph [54] of his Honour’s reasons, namely, that, ordinarily, where the jury numbers are disclosed to the judge, the numbers should not be revealed to counsel and the accused.  It is to those authorities that we shall now refer.

1. The first express statement of the proposition, that the judge should not, in those circumstances, disclose the jury numbers to counsel, is contained in the decision of the English Court of Appeal in R v Townsend.[4]  As Whelan JA has noted, in that case, the trial judge received a note indicating a disagreement ‘not guilty – 8-4’.  The judge instructed the bailiff, who handed him the note, to tell the jury it must continue its deliberations until a unanimous verdict could be reached.  The bailiff conveyed that message to the jury.  Counsel for the defendant was not informed of that matter until after the jury returned a verdict of guilty.  Not surprisingly, the Court of Appeal allowed the appeal and set aside the conviction.  It did so on the basis that the judge had not informed counsel, in Court, of the fact of the communication by the jury to him, or of his communication back to the jury.  In that context, the observation by the Court in its judgment, that if the jury had been brought back into the Court, it would not have been necessary for the judge to divulge ‘the state of the division of the opinion’,[5] was, necessarily, obiter dictum.  Importantly, as the time for accepting a majority verdict had not yet been reached, the jury numbers had no relevance to any decision of the trial judge.

   [4](1982) 74 Cr App R 218; [1982] 1 All ER 509.

   [5]Ibid 511.

1. It was that dictum which formed the basis for the statement, by way of obiter dictum, to like effect in R v Gorman.[6]  The facts of that case are somewhat complex, and are summarised in Whelan JA’s judgment.  However, it is clear that the English Court of Appeal decided the case, and dismissed the appeal, on two grounds, which are not relevant for our purposes.  Its decision, on those grounds, rendered it unnecessary for the Court to express any conclusion concerning whether the judge, at the first trial, had erred in not revealing to counsel the note containing the ‘jury numbers’.  Nevertheless, the Court saw fit to state certain propositions concerning the content of the duty of the judge to disclose to counsel any communication between the judge and the jurors.  In formulating those principles, the Court referred to the judgment of Waller LJ in R v Townsend, and expressed its agreement with his Lordship that ‘… it would be clearly undesirable for information as to voting figures to be made public’.[7]  Again, it is evident that that statement, by the Court of Appeal, was obiter dictum.  Moreover, the propositions enunciated were directed towards the avoidance of any irregularity by the trial judge in dealing with communications received from a jury.  They were not designed to address circumstances where the communication contained information relevant to a decision that the trial judge was required to make.  They do not touch upon the content of jury communications which are relevant to issues such as the discharge of the jury or the taking of a majority verdict.

   [6][1987] 1 WLR 545.

   [7]Ibid 550.

1. The third English decision, which may be relevant for our purposes, is R v Oduro,[8] to which Whelan JA has also referred.  In that case, the judge received a series of notes from the jury.  He dealt with some of them in open court.  One of the notes stated that the jury could not agree and were split 7-5 on a guilty verdict.  The judge did not reveal the existence of that note, at that time, to counsel.  Subsequently, at some stage, he gave the jury a majority verdict direction.  Further, at some stage, the judge informed counsel that he had received another note indicating disagreement, but that he had taken no action upon that point.  As noted by Whelan JA, the principal issue on appeal was whether the judge had placed undue pressure on the jury to reach its verdict.  However, in dismissing the appeal, the Court distinguished the facts of the case from R v Townsend, and stated that there was ‘nothing wrong’[9] with the judge not revealing that he had received the note to counsel at the time he received it, and that later informing them of the note, which had indicated disagreement.  In Gorman, the Court of Appeal considered that the decision in Oduro was not free from ambiguity.[10] 

   [8](1982) 76 Cr App R 38.

   [9]Ibid 41.

   [10][1987] 1 WLR 545, 550.

1. The dicta in the decisions of the English Court of Appeal, to which we have just referred, formed the basis for the statements of principle by this Court, and by the New South Wales Court of Criminal Appeal, that except in particular circumstances, a judge should not reveal to counsel jury numbers which have been disclosed by the jury to the judge.

1. The first statement of that principle in a decision of this Court was in R v Black.[11]  That case did not concern the disclosure by the jury to the judge of its voting numbers.  Rather, in that case, the judge had not informed counsel of three questions of law asked of her, but, instead, her Honour only gave to counsel a summary of the substance of those questions.  Buchanan AP recognised that it is well established that a trial judge must disclose to the parties the precise terms of the questions asked by a jury, there being a fundamental requirement of the administration of justice that the trial take place in open court.[12]  Complete candour was required, not only to dispel any impression that the judge had been told things concealed from the parties, but also because the effectiveness of submissions which the parties could make depended upon the parties being precisely informed.[13]  Buchanan AP considered that the failure to so inform counsel amounted to a significant denial of procedural fairness.[14] In concluding that the trial judge had erred, Buchanan AP (with whom Eames JA and Kellam AJA agreed) also quoted, with approval,[15] a section of the judgment of the English Court of Appeal in R v Gorman, including the passage in which that Court had stated that, if the jury had revealed their voting numbers to the judge, the judge should not disclose that information to counsel.  Like Gorman, the case of Black was not concerned with information about jury numbers, or whether they should be disclosed where that information could be relevant to a decision the trial judge was required to make.

   [11](2007) 15 VR 551.

   [12]Ibid 554, 555, [14], [17].

   [13]Ibid 555 [16].

   [14]Ibid 556 [21].

   [15]Ibid 554–5 [14].

1. In R v Yuill,[16] the New South Wales Court of Criminal Appeal held that a direction by a judge to a jury, which had indicated its state of disagreement, that the jury should reach an agreement, contravened the principles stated by the High Court in Black v R,[17] because it contained an exhortation to the jury that it should bear in mind the amount of public money thrown away if a new trial were to be ordered.  The Court of Criminal Appeal held that the direction was a misdirection, and that it had led to such a miscarriage of justice as to warrant the appellant’s convictions being quashed.

   [16](1994) 34 NSWLR 179.

   [17](1993) 179 CLR 44.

1. The Court then turned to another point, which was raised on appeal, relating to the non-disclosure by the judge of the contents of the note sent by the jury.  In that note, the jury stated that it had not reached a decision, and it specified the votes ‘for the Crown’ and the votes ‘against or unsure generally’.  It was in that context that the Court of Criminal Appeal referred to the basic rule that the contents of any communication between the jury and the judge must be disclosed, and noted the exception, namely, where the communication concerns a subject which is inappropriate for the jury to communicate to the judge – ‘… the most obvious example being the disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement …’.[18]  In support of that proposition, the Court of Appeal referred to R v Townsend and R v Gorman.  It also referred to a third case, R v Rose,[19] but that case did not involve the disclosure by the jury to the judge of its voting figures.

   [18](1994) 34 NSWLR 179, 190.

   [19][1982] 1 WLR 614.

1. Pausing there, four observations may be made about the decision in Yuill.  First, the authority, relied on by the Court, for the proposition that the judge should not disclose to counsel the voting figures revealed to the judge by the jury, consisted of obiter dicta in two earlier decisions of the English Court of Appeal.  Secondly, the observation by the Court of Criminal Appeal in Yuill – that the judge should not reveal, to counsel, the jury numbers disclosed to the judge – was not, strictly speaking, necessary for the determination of the point then being addressed by the Court.  That point concerned the failure of the trial judge to reveal to counsel that the jury, in its note, had indicated its then voting numbers, and that the jury was then deeply divided. 

1. Thirdly, in a number of cases decided subsequently, courts have, albeit also by way of obiter dicta, cited Yuill as authority for the proposition that, as an exception to the principle that the judge should disclose to counsel any communication by the jury, the judge should not disclose to counsel the details of any jury numbers revealed to the judge by the jury.  In particular, that proposition has been stated, in those terms, by the New South Wales Court of Criminal Appeal in Burrell v The Queen,[20] by the Court of Appeal of West Australia in Martinez v Western Australia[21] and by the Court of Criminal Appeal of South Australia in R v TT[22] and in R v Lovegrove.[23]  Fourthly, neither Yuill nor those cases involved consideration of the issue of disclosure of jury numbers and procedural fairness where that information might be relevant to a decision that was to be made by the trial judge.

   [20](2009) 196 A Crim R 199, 245 [217]-[218].

   [21](2007) 172 A Crim R 389, [252] (Martin CJ, Steytler P and Miller JA).

   [22](2004) 90 SASR 567, [79]-[80] (Vanstone J, with whom Perry J agreed).

   [23][2007] SASC 283, [52] (Nyland J, with whom Anderson and Layton JJ agreed).

1. Thus, before the decision of this Court in MJR v R,[24] there were a number of decisions of the English Court of Appeal, and of appellate courts interstate, which contained statements to the effect that, ordinarily, the trial judge should not reveal to counsel details of voting figures, which have been disclosed to the judge by the jury.  Those statements were obiter dicta.  Further, they were not concerned with the principle of natural justice which would arise where the jury numbers were relevant to a decision of the trial judge. 

   [24](2011) 216 A Crim R 349.

1. Ashley JA in MJR v R (with whom Weinberg and Harper JJA agreed) referred to this line of authority.  In that case, the accused was charged with nine counts.  The note by the jury to the judge stated that it had reached majority verdicts, and stated, in respect of each count, precisely what the majorities were.  On three of the counts, there was said to be a majority in favour of conviction of 11-1.  As noted by Whelan JA, the judge did not inform counsel of the jury numbers disclosed to him.  Subsequently, after hearing submissions from counsel, the judge permitted the jury to return a unanimous verdict.  After further deliberation, the foreman of the jury confirmed that there was a majority verdict on three counts, and he confirmed that there was no prospect of the jury agreeing upon a unanimous or majority verdict on the other counts.  Accordingly a majority verdict was taken on the three counts only.  While it is not clear from the reasons for judgment, it would seem that the three counts, on which the appellant was convicted, were the three counts in respect of which the jury had previously indicated, to the judge, that there was a majority of 11 jurors in favour of conviction. 

1. As Ashley JA stated when referring to Gorman, what Lord Lane said about public non-disclosure of voting details ‘was in a context far removed from one where the judge became privately seised of information which would have permitted a majority verdict.’[25]  Furthermore, Ashley JA recognised that unlike Gorman, MJR involved the communication of information by the jury which was:

pertinent to a discretionary decision that the judge was thereafter called upon to make – which depending upon the way the discretion was exercised, was very likely to yield a conviction.[26]

[25]Ibid 359 [54].

[26]Ibid 359 [55].

1. His Honour went on to say:

It was the combination of the nature of the information conveyed, its significance for the disposition of later applications, and the fact that the judge was seised, but appellant’s counsel was not, of the information.  That is why, unusually, I consider that disclosure was required.[27]

[27]Ibid 359 [59].

1. In the context of the three counts upon which a majority verdict was returned, Ashley JA regarded it as critical that an exercise of the discretion to allow a majority verdict would at least very probably have meant a conviction on some counts and that the non-disclosure of the voting details denied the appellant procedural fairness.[28]  Ashley JA identified the submissions that the counsel was precluded from making because of the non-disclosure.[29]

   [28]Ibid 359 [57]–[58].

   [29]Ibid 360 [63].

1. As noted by Whelan JA, senior counsel for the respondent in MJR conceded that the judge should have disclosed to counsel the information revealed by the jury to the judge about its voting numbers.  After referring (inter alia) to the principle stated in R v Black, R v Townsend and R v Gorman, Ashley JA addressed that concession in the following passage:

In my opinion, in the particular circumstances of this case, counsel [for the respondent] was right – but for the wrong reason – to concede that the judge should have informed counsel what he had been told by the jury so far as it concerned three counts where a statutory majority for conviction existed.  I consider, however, that it was not necessary for his Honour to have told counsel what the state of votes was with respect to the other counts; nor to have informed counsel of the particular counts upon which a statutory majority for conviction existed.  The less that the jury’s deliberations were publicly revealed, the better.[30]

[30]Ibid 359 [57].

1. In MJR, the third ground of the appeal was directed to the failure of the judge to advise trial counsel of the contents of the note.  It was to that ground of appeal that the concession, by the respondent, was directed.  It was in response to that concession that Ashley JA made the observation that ‘it was not necessary’ that the judge advise counsel of the jury numbers in respect of the counts on which it had not achieved a ‘statutory majority.’

1. His Honour did not amplify his view that it was ‘not necessary’ that the voting numbers on the other counts be disclosed.  As we have said, the line of authority considered by his Honour did not oblige his Honour to reach such a view.  In any event the opinion expressed was unnecessary to a resolution of the question on appeal whether the three majority verdicts were affected by procedural unfairness.  It was obiter dictum, as the relevance of the jury numbers to the counts, on which there was disagreement and no verdict returned, was not an issue that required resolution in the appeal. 

1. MJR was referred to by this Court in LLW v The Queen.[31]  In that case, on the third day of the jury’s deliberations the trial judge was contemplating giving the jury a majority verdict direction.  Upon coming into court the jury provided the judge with a note which revealed their voting numbers on each count.  The judge and counsel did not think it necessary that counsel be informed as to that information.  The Court (Maxwell P, Weinberg JA and Williams AJA) said:

The judge was faced with the additional difficulty of having to deal with the note from the jury that set out precisely what the vote was in relation to each specific count.  Regrettably, that issue arose before her Honour had finally determined to exercise her discretion to allow the jury to bring in a majority verdict.  The problem that confronted the judge was almost identical to that which this Court resolved in MJR v The Queen, a case decided in November 2011.  There the Court held that the trial judge’s failure to inform counsel of the precise contents of a note, similar to the note in the present case, meant that the appellant had been denied procedural farness.  That was because the judge was in possession of information that was highly relevant to the exercise of his discretion to allow a majority verdict to be taken, but counsel was deprived of that information.[32]

As was said in MJR, juries should be told that they should not, under any circumstances, reveal the numbers in favour of conviction or acquittal when conveying to the judge that they are having difficulty in arriving at a unanimous verdict.

If it were necessary to do so, we would have granted leave to reinstate ground 3 of the original application for leave to appeal, despite the fact that that ground was expressly abandoned before the single judge who first heard that application.  We would do so on the basis that MJR had not been decided when the decision to abandon that ground was taken.[33]

[31][2012] VSCA 54.

[32]Ibid [69].

[33]Ibid [69]-[71].

1. It was the fact that the numbers were relevant to the question, whether majority verdict a direction should be given, which necessitated their disclosure.  Unlike MJR, this Court in LLW did not know what the voting numbers were.  Thus, unlike MJR, the decision in LLW did not rest on numbers, revealed to the judge, being such as to make it highly probable that a majority verdict would be returned.  The Court concluded that the appeal should be allowed inter alia because

the revelation by the jury to the judge of the voting patterns on each count, in circumstances where her Honour had not yet determined whether to allow a majority verdict to be brought in and had failed to reveal the contents of the note to counsel, denied the appellant procedural fairness.[34]

[34]Ibid [78].

1. Finally we should refer to the very recent decision, Trinh Nguyen v The Queen,[35] which was concerned with the question whether the trial judge had erred in allowing the jury to deliver a majority verdict once he had been made aware of the fact that there was already in existence an 11 to 1 majority in favour of a verdict.  That fact had been disclosed in open court in response to a question asked by the trial judge.  Hence no question of procedural unfairness arose.  The majority (Weinberg and Whelan JJA) concluded that no substantial miscarriage of justice arose as a consequence of the invitation to the jury to deliver a majority verdict following the revelation of the jury numbers. 

   [35][2013] VSCA 65.

1. Save for the obiter dictum in MJR, none of the authorities to which we have referred go so far as to state that if a jury does inform a trial judge as to its voting numbers, the judge should not disclose the numbers to counsel, notwithstanding that those numbers are relevant to a decision which the trial judge must make.  Indeed, the decision in MJR is an illustration of the principle that voting details which have come into the possession of the trial judge must be disclosed where such information is relevant to a decision which the trial judge is required to make.

1. The right to procedural fairness – to a fair trial – is a fundamental right of each accused.  Therefore, as a matter of principle, we consider that the tension between the dictates of procedural fairness, on the one hand, and the protection of the confidentiality of jury communications, on the other hand, must be resolved in favour of the former, in a case where the information revealed by the jury to the judge, may be relevant to a decision to be made by the judge in relation to the trial.

1. The principle of procedural fairness is critical to the right of an accused person to a fair trial.  Ordinarily, during deliberations, all questions relating to the trial should be asked of the judge by the jury in open court, apart, of course, from questions relating to personal matters relating to a particular juror, or the like.  As a practical measure, juries are encouraged to commit to writing any question which is to be asked of the judge.  That practice is beneficial, first, because it focuses the mind of the jury on the particular question which it needs to ask of the judge, and, secondly, because it gives to the judge notice of the question which is required to be answered to the jury.  It thus enables the judge to research the particular point of evidence or law, and to discuss the question with counsel, before answering the question to the jury in court.  Such questions, committed to writing by the jury, including the questions in this case, are essentially a part of the court process, which we have just described. 

1. We are not here concerned with information received which is irrelevant to any issue in the trial and which the trial judge may elect to deal with without informing counsel.  But any information received during this process, whether or not it was irregular for the jury to have provided it, and which is relevant to an issue yet unresolved in the trial, must be disclosed to the parties.  It enables counsel to make informed submissions on the issue.  It is, we consider, inconsistent with the principle of procedural fairness, for a judge to be apprised of the information concerning the state of deliberation of the jury – such as the precise numbers which constitute a majority and a minority – without the judge conveying that information to counsel, where argument of counsel and the decision of the trial judge may be influenced by such information.

1. We have considerable sympathy for the trial judge who quite understandably applied the statements made in a number of the authorities in determining not to reveal to counsel the precise jury numbers that had been disclosed by the jury to her.  In particular, her Honour did not have the time or the opportunity to give those authorities the detailed consideration and analysis which we have.  On appeal, the Crown relied upon the fact that the judge was not asked to disclose the precise details of the voting numbers to defence counsel.  The absence of a request from counsel that he be provided with the information did not relieve the judge of the obligation to disclose the voting details.  For the reasons we have stated, we consider that the judge was obliged to disclose the information to counsel, as the information was relevant to the questions whether the jury should be discharged, or an invitation extended to the jury to deliver a majority verdict. 

1. We turn to the question whether the absence of procedural fairness gave rise to a substantial miscarriage of justice.  It was submitted, on behalf of the appellant, that the precise information – that the jury were divided 7-5 – was relevant to the course followed by the judge, and that it may have affected the force and the emphasis with which counsel for the appellant had applied for a discharge of the jury.  The judge did inform counsel that the jury numbers were not ‘close enough’ to a statutory majority of 11.  Defence counsel understood, from what the judge had said, that the jury were ‘nowhere near’ attaining a statutory majority.  Nevertheless, that did not equate to counsel understanding that the division in the jury was almost equal.  Further, on appeal it was submitted with some force that the information might have affected the stance taken by the prosecution.

1. The evidence before the jury had only taken one court day.  The issue was relatively straightforward.  Yet the jury numbers showed that after six hours of deliberation the jury was almost equally divided.  Notwithstanding that the jury had already been given a Black direction, the jury informed the judge, forty minutes later, that the numbers had not changed.  If counsel for the appellant had then been informed of the numbers, he would have been well placed to submit that any verdict delivered in the case would have involved almost one half of the jurors abandoning a seemingly entrenched position.  In such a situation, a stronger argument could have been advanced by counsel against the judge allowing the jury to return a majority verdict.  In those circumstances, the judge, after better informed discussion with counsel, might either have been persuaded to discharge the jury, or, alternatively, her Honour might have given greater emphasis to her direction to the jury, that a juror should not, inconsistently with his or her oath or affirmation of office, abandon a conscientiously held position in order to accommodate the position of the majority.

1. Our concern in this regard is reinforced by the sequence of events which occurred in relation to the jury’s deliberations and verdict.  As we have stated, the evidence in the trial took just one day.  The jury retired to consider its verdict on Tuesday 16 November.  At 3.30 pm the next day, the jury informed the judge that it could not reach a unanimous verdict.  The judge gave a Black direction.  Approximately 40 minutes later, the jury gave the further note to the judge stating its numbers, and stating that the numbers had not changed.  It was then that the judge permitted the jury to return a majority verdict, and gave a further Black direction. The jury did not sit on the next day. On Friday, 19 November, it delivered its verdicts at 12.15 pm, namely, after three hours further deliberation. That sequence demonstrates that, notwithstanding that the jury twice was stuck on the same ‘numbers’, a significant number of the jurors did move from an apparently entrenched position in order to return verdicts of guilty. It was in the context of that sequence of events that the absence of an opportunity to counsel to address the judge about the significance of the numbers which the jury had revealed to the judge, but which were not disclosed to counsel, is to be judged. It is in that context that we have reached the conclusion that the absence of procedural fairness, which we have described, did give rise to a substantial miscarriage of justice.

1. We are here concerned with the fairness of procedures rather than the fairness of outcomes.  Where there has been a denial of procedural fairness during a criminal trial, relief may only be refused where the breach could not have affected the outcome.[36]  The provision of the voting detail to counsel may not have materially altered the submissions that were made, or the decision made by her Honour as to the course that should be followed.  However, there was no suggestion that the trial judge intended to disregard the precise information as to voting numbers that she had been given.  An appellate court does not attempt to assess the extent to which the departure from procedural fairness may have affected the judge’s decision.[37]  In our view, in the circumstances of this case, the reasonable possibility cannot be excluded that if counsel had been given these details, it could have led to a discharge of the jury, or a refusal to give a majority verdict direction.

   [36]Stead v State Government Insurance Commission;  Re Refugee Review Tribunal;  Ex parte AALA [2000] 204 CLR 82 [103];  Muinv Refugee Review Tribunal (2002) 76 ALJR 966 [140];  Ucar v Nylex Industrial Products (2007) 17 VR 492, 515 [63]-[64].

   [37]Kioa v West (1985) 159 CLR 550.

1. The considerations, to which we have just referred, add a practical content to our view that the principle of procedural fairness is paramount in a case such as this.  Further, while acknowledging the cardinal importance of the confidentiality of jury deliberations, by informing counsel of the jury numbers, that principle can, at least to some extent, be preserved, by a judge making appropriate orders, prohibiting or restricting the publication of that information.  It is also highly desirable that trial judges inform juries, before retirement, that they should not disclose to the judge their voting numbers, when asking any questions of the judge during deliberation.[38]

   [38]MJR v R (2011) 216 A Crim R 349, 362 [75] (Weinberg JA).

1. Finally, we should address a threshold submission made by senior counsel for the Crown.  He submitted that we should not follow previous authority of this Court, and endorse a practice of trial judges ascertaining what the voting numbers of the jury are at any given stage of the jury’s deliberations.  It was submitted that we should not follow MJR v The Queen,[39] notwithstanding that on 6 February 2012 this court in LLW v The Queen[40] had followed and applied MJR.  This argument had been advanced on the oral hearing of the appeal of Trinh Nguyen v The Queen,[41] on 21 February 2013, three weeks before the hearing of the present appeal.  In the reasons of Weinberg JA in Nguyen, published on 26 March 2013 (with whom both Whelan JA and Priest JA on this point agreed), his Honour dispatched the argument as follows:

During the course of the appeal, senior counsel for the Crown submitted that not only was his Honour’s question to the jury as to whether there was more than one juror holding out against the others entirely proper, and to be commended, but that the practice of ascertaining what the numbers are at any given stage of a jury’s deliberation was one that should be expressly endorsed by this Court.  It was submitted in that regard that cases such as MJR and LLW v The Queen were wrongly decided, and that judges should routinely ascertain from juries who appeared to be having difficulty arriving at a verdict exactly what the numbers are.

In my view, that submission should be emphatically rejected.  The common law has long set its face against ascertaining exact numbers from jurors during the course of their deliberations.  The introduction of majority verdicts changed nothing in that regard.  As a result of MJR, the Victorian Criminal Charge Book now recommends that jurors be told that no matter what happens, they should not indicate what the exact numbers are in favour of any particular verdict at any stage prior to delivery of a verdict.[42] - #

[39]Ibid.

[40][2012] VSCA 54.

[41][2013] VSCA 65.

[42]Ibid [24].

1. We entirely agree.  We should say something further as to the course which the Crown has followed.  It is highly undesirable that the Crown or any other party invite a Bench of three judges of this Court not to follow recent decisions of this Court where the issue has previously been the subject of consideration, and where it could not reasonably be said that the decisions were so plainly wrong that they should be overruled.  Even if the proposed argument had some degree of merit, it was inevitable that it would be rejected by a Court comprised of only three judges.  Assuming that these earlier decisions were not an appropriate vehicle for appeal to the High Court, and that the Crown wished to re-agitate the issue, it should, as part of its written case, have advised the court of its intention to advance such a submission in the present appeal.  

1. The appeal should be allowed, the conviction quashed and a new trial ordered. We are however conscious that the appellant has already served all but one month of the non-parole period that was fixed.[43] It will be a matter for the Director of Public Prosecutions whether it is considered appropriate that the appellant be retried.

   [43]After allowing for pre-sentence detention.

WHELAN JA:

1. The appellant was tried in the County Court on an indictment containing two counts of the offence of sexual penetration of a child under 16.  The jury found him not guilty of the first count charged, but by majority (11/1) found him guilty of the alternative offence of performing an indecent act with a child under 16.  The jury found the appellant guilty by majority (11/1) on the second count of sexual penetration of a child under 16.

1. In the course of the jury’s deliberations, and prior to the trial judge exercising her discretion to permit a majority verdict, the trial judge was handed a note from the jury which revealed how the jury was numerically divided, what is sometimes referred to as the jury ‘votes’.  The judge revealed to counsel the contents of that note without revealing the numbers. 

1. The appellant has leave to appeal his convictions.

1. All of the grounds upon which the appellant has leave to appeal concern the judge’s failure to reveal to counsel the numbers in the jury’s note.  This is the fourth appeal which has come before this Court recently concerning problems which arise when juries reveal their numerical division;  the most important of those decisions is MJR v The Queen.[44]

[44]MJR v The Queen (2011) 216 A Crim R 349 (‘MJR’).  The other appeals are LLW v The Queen [2012] VSCA 54 (‘LLW’) and Trinh Nguyen v The Queen [2013] VSCA 65 (‘Trinh Nguyen’). The Victorian Criminal Charge Book now addresses the position, [3.10.1].

Description of what occurred

1. The jury retired to consider its verdict on Tuesday 16 November 2010.  On Wednesday 17 November 2010 at around 3.30 pm the jury sent a note to the judge indicating that they could not reach a unanimous decision.  The judge gave a Black[45]  direction.  At 4.18 pm the judge returned to the bench and the following interchange occurred:

   [45]Black v The Queen (1993) 179 CLR 44.

HER HONOUR:  We have another jury question.  The jury question is the jury still cannot reach a conclusion and they have indicated the numbers which I do not think is appropriate to disclose the number.  They say that that has not changed.

What do you each seek – you first [the prosecutor]?

[PROSECUTOR]:  Without telling me the numbers your Honour, it’s nothing like an 11/1 I would imagine.

HER HONOUR:  I would say it would not make a difference if I said I would allow a majority verdict.  Not close enough to that. 

[PROSECUTOR]:  The option seems to be Your Honour whether we require them to come back on Friday.

HER HONOUR:  Or discharge them without verdict;  give them more time or discharge them without a verdict.

[PROSECUTOR]:  Yes.

HER HONOUR:  There’s no reason why I could not – I’m not prepared to say what the numbers are.  It would not be enough for a majority verdict but if I gave the next direction where a majority direction is allowed, I would then tell them what the number is, namely that it must be a verdict of 11 of them;  unanimous verdict of 11.

PROSECUTOR:  Yes.  Your Honour I don’t have a strong view either way.  They have indicated that they’re prepared to go until five. 

The prosecutor referred to Friday because the Court was not sitting the next day, Thursday 18 November.

1. There was then a discussion about whether the six hours of deliberation had taken place before a majority verdict could be taken.[46]  After counsel for the defence had made a submission about that issue, the following interchange occurred:

HER HONOUR:  So you want me to discharge them without a verdict or permit them to return a majority verdict at this stage;  is that your position?

[DEFENCE COUNSEL]:  The position is that the jury should be discharged as they’ve indicated that they’re nowhere near it.  But as I say Your Honour I’m thankful to Your Honour’s Associate for the provision of those cases.  I haven’t fully read through the VST case.[47]

[46]Juries Act 2000, s 46(2).

[47]The reference was to R v VST (2003) 6 VR 569. The case concerns the 6 hours deliberation issue.

1. Further submissions were made about whether the six hours had elapsed.  Defence counsel then addressed what should be done if it was determined that six hours had elapsed.  The following interchange occurred:

[DEFENCE COUNSEL]:  … it’s still a discretion for Your Honour as to give the jury some more time.  Ultimately, my submission is that given the position that the jury would seem to find themselves in, it would be unlikely that a direction would assist in any event and the jury should be discharged.

1. Her Honour asked for the prosecutor’s submission and he said:

It seems to me that we should give them the majority verdict option and ask them if they’re good enough to continue to the 5 o’clock, and see where we go from there.

1. Her Honour then ruled that the jury had been deliberating for at least six hours.  She then continued:

The next question is what course I should take?  Should I simply discharge the jury without verdict?  Or take a majority verdict as the verdict of the jury.  I’ve indicated, the question that has been given to me indicates the numbers are not 11:1.  There is a different number.  I’m not prepared to disclose what that number is but I am prepared to put the jury question in a sealed envelope, to sign it on the back of the envelope and to indicate that this is the question that includes the break up of the jury’s number should that be required for examination depending on the outcome of this case in the Court of Appeal.  I direct that that envelope not be opened other than by my direction or at the direction of the Court of Appeal.  I’m of the view that I should give the further perseverance direction including that a majority verdict be allowed.  I’ll then reassess the position later.

Her Honour proceeded in accordance with her ruling.

1. The jury did not reach a verdict that afternoon, and shortly after 5.07 pm they were released until Friday 19 November 2010.  The jury resumed their deliberations on the Friday morning.  The jury returned their verdicts at 12.15 pm that afternoon.

1. The trial judge did as she said she would and placed the jury question which contained the numbers in a sealed envelope. 

1. The first matter addressed upon the hearing of this appeal was whether the envelope should be opened.  Both counsel submitted that it should be and that the contents should be revealed.  A direction was then made that the envelope be opened.  The envelope was opened and the note was read by the Court and by counsel.  The note reads as follows:

JURY STILL CANNOT REACH

A CONCLUSION

NUMBERS ARE 7-5

WHICH HAS NOT CHANGED

Grounds of appeal

1. The appellant relies upon the following grounds:

1.(a)     The judge erred in editing the jury’s third question during deliberations by not reading the jury’s note to counsel in its entirety and in particular in deciding not to reveal the voting numbers to counsel;

(b)     the judge erred in failing to seek submissions from counsel before ruling that she would not reveal the voting numbers.

2. The judge erred in the exercise of her discretion in that she failed to discharge the jury pursuant to s 46 of the Juries Act 2000.

3.        The judge erred in the exercise of her discretion in not granting the defence applications for discharge of the jury.

4.        In all the circumstances, the verdicts are unsafe and unsatisfactory.  Leave on this ground was granted on the basis that it ‘excludes the contention that the verdicts are irreconcilable and is limited to the contention that the verdicts are unsafe or unsatisfactory for reasons relevant to the other grounds of appeal’.

5.        The judge erred in failing to tell the jury that they should not reveal their voting numbers.

6.        The judge in proceeding to exercise her discretion to allow a majority verdict to be taken after receipt of the jury voting numbers and in deciding to withhold that information from counsel and the accused occasioned a substantial miscarriage of justice.

The relevant authorities before MJR

1. This Court addressed the issue of revealing jury ‘votes’ in some detail in MJR.  In order to properly understand what MJR does and does not decide, it is necessary to review the position at the time MJR was decided.

1. The authorities decided before MJR seem to me to have established three relevant propositions.  They are:

1.        Subject to certain exceptions, all communications between the jury and the judge should be disclosed to counsel and to the accused.  There are many English and Australian authorities which establish this proposition.  The English authorities were collected in R v Gorman[48] and also include R v Rose,[49] a passage from which was quoted in MJR.[50]  There are also many Australian authorities to the same effect.[51]  In R v Black[52] this Court quoted with approval a long passage from the

[48][1987] 1 WLR 545 (‘Gorman’).

[49][1982] 1 WLR 614 (‘Rose’).

[50]Ibid 620-621 quoted in MJR, 356 [41].

[51]These include R v Yuill (1994) 34 NSWLR 179 (‘Yuill’);  R v Pearson (2000) 114 A Crim R 80; R v Hart (2002) 131 A Crim R 596.

[52](2007) 15 VR 551, 554-5 [14]-[15].

judgment in Gorman and that passage was in turn quoted with approval in MJR.[53]

[53]Ibid quoted in MJR, 356-7 [44].

2.        Jury numbers or ‘votes’ should not be disclosed to the judge by the jury.  In MJR this Court adopted the statement by Lord Lane LCJ in Rose to the effect that a judge should not enquire as to how a jury are divided, as the ‘counter point’ to Lord Lane’s later statement in Gorman that a jury should not volunteer voting numbers.[54]

3.        One of the exceptions to the general principle that all communications between the judge and the jury must be disclosed is that, generally, if jury numbers or votes are disclosed to the judge (which they should not be) those numbers should not be revealed to counsel and the accused.  This proposition is expressly stated in Black, Gorman, R v Oduro[55] and R v Townsend.[56]  Black, Gorman and Townsend were quoted with approval in MJR,[57] and Oduro was referred to with apparent approval.[58]

[54]MJR (2011) 216 A Crim R 349, 356 [41].

[55](1983) 76 Cr App R 38.

[56](1982) 74 Cr App R 218.

[57]Townsend is quoted in MJR (2011) 216 A Crim R 349, 356 [50], Gorman and Black are quoted, [44].

[58]Oduro is referred to in MJR, 357-8 [48] and see also 359 [56].

1. The general rule is that all jury communications should be disclosed.  The exception is that jury numbers (if revealed) should not be.  But that exception has exceptions.  This Court’s decision in MJR is one of them.  The New South Wales Court of Appeal decision in Yuill also recognised that there are limits to the principle that where jury numbers are revealed they should not be disclosed.

1. These principles are clarified by a review of the relevant authorities decided before MJR which specifically concerned disclosure of jury voting numbers.  It seems to me that those authorities are Townsend, Oduro, Gorman and Yuill.  Specific consideration of those decisions assists in understanding this Court’s statements of the applicable principles in Black, and in MJR to which I will then turn. 

1. In Townsend the English Court of Appeal dealt with a situation where a note had been handed to the bailiff by the jury which indicated disagreement and which included the following:  ‘8:4 not guilty’.  Counsel were not informed of the note at all until after a verdict of guilty had been returned.  The Court of Appeal dealt with the issue as follows:

The communication was not made known in open court in public in the presence of the accused person or his legal representatives and counsel for the appellant had no opportunity of dealing with the matter.  On receipt of the note from the jury indicating that there was a division of opinion the judge should have called the jury into court in the presence of the defendant and his counsel and indicated to them without disclosing in public the precise contents of the note (this would be clearly undesirable) that he had received a note showing that there was a division of opinion within the jury and telling them that it was not possible at that stage to accept a majority verdict and asking them to retire again and to endeavour to reach a unanimous verdict.[59]

[59](1982) 74 Cr App R 218, 220.

1. The court later continued:

In this case if the jury had been brought back into court it would be unnecessary to divulge the state of the division of opinion and only necessary to give the jury the direction which we have already mentioned.  Accordingly in the judgment of this Court there was a material irregularity in the trial.[60]

[60]Ibid.

1. In Oduro the trial judge received a note telling him that the jury were split ‘7 to 5 on a guilty verdict’.  Shortly after receiving the note the judge gave a majority verdict direction.  Later that same evening the jury returned a majority verdict of guilty (10 to 2).  The issue on appeal was whether the trial judge had placed undue pressure on the jury to reach a verdict, but observations were also made about the way in which the judge had dealt with the note.  The judge had revealed in open court (while dealing with a later note) that he had received the note and he told counsel that it had said the jury could not agree.  The Court of Appeal referred to the decision in Townsend, and to an earlier decision in R v Lamb[61] and observed:

Both those decisions are clear authority for saying that if a judge receives a communication from a jury and does something about it as between him and the jury, he must only do so in open court … There are other authorities for saying that if in this case the judge had communicated any message upon receipt of that note indicating that they could not agree and that they were divided 7 to 5 in favour, it would be a material irregularity.

However in this case he did not refer the matter back to the jury.  What he did was quite properly to inform counsel at a later stage, when dealing with one note which had to be dealt with in open court, that he had received another note indicating disagreement, but he had taken no action upon that point whatever.  There is, in the view of this court, a clear distinction in the facts of the instant case set against the facts of Lamb (supra) and Townsend (supra).  There was nothing wrong with it.  There is no material irregularity and this submission is also rejected.[62]

[61](1974) 59 Cr App R 196.

[62](1983) 76 Cr App R 38, 41.

1. The Court of Appeal in Gorman suggested that the decision in Oduro was not free from ambiguity.  On one reading at least, it seems that the English Court of Appeal in Oduro was of the view that not only was the trial judge’s decision not to reveal the numbers correct, but that to have revealed the numbers would itself have been a material irregularity.

1. In Gorman the English Court of Appeal was considering an appeal against conviction after the appellant had been convicted of rape on a re-trial by a majority verdict of 10 to 2.  The jury in his first trial had been discharged.  After his conviction in the second trial, it was revealed that the jury in the first trial had given the trial judge a note indicating that they had ‘reached a majority decision of 9/3 in favour of the accused.  9/3 not guilty.  The other three are adamant and will not change.’  The Court of Appeal decided the appeal on other grounds, but they said that it would be helpful to address the extent to which a trial judge should disclose any communication which he receives from the jury.  The Court reviewed earlier decisions, including Oduro and Townsend.  As I indicated earlier, they suggested that the decision in Oduro was not altogether free from ambiguity and they said that it did not assist.  They expressly approved of the decision in Townsend and said that the approach adopted by the judge in that case had been the same as that  adopted in the case before them, which was, in their judgment, ‘the right approach’.  They went on:[63]

We agree with Waller LJ that it would be clearly undesirable for information as to voting figures to be made public.

[63][1987] 1 WLR 545, 550.

1. The court then set out the applicable general principles in terms which were quoted and adopted by this Court in Black and again in MJR.  The Court said:

First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. …

Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel.  This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication. 

Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not reveal the detailed information which the jury ought not to have revealed.[64]

[64]Ibid 550-1.

1. In Yuill the New South Wales Court of Criminal Appeal was considering an appeal as to a misdirection.  The prosecution sought to have the appeal dismissed on the basis that the misdirection had only concerned an element of a count of which the accused had been acquitted in any event.  In that context, a note which the jury had given the judge became significant.  The note revealed jury voting numbers in relation to all of the counts.  The significance of the note in the context of the appeal was that it revealed that the jury question in response to which the misdirection was given was addressing an issue which the jury had in relation to all of the counts, not just the one upon which the accused was acquitted.  The trial judge had not read out to counsel the part of the note which contained the voting figures. 

1. The Court of Criminal Appeal in Yuill made some relevant observations as to the principles which apply to such jury notes before addressing what had occurred in the case before them.  They said:

It has always been the basic rule that the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript [cases cited including Gorman and Rose] …

There are two exceptions to that basic rule.  The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine – for example a request by a juror to pass on a message to a relative about staying back late [cases cited including Townsend and Gorman].  The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge – the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement [Townsend, Rose and Gorman cited].

It was no doubt this second exception which led to the judge in the present case to omit the introductory paragraph when he read out the note sent by the jury on the morning of the last day of the trial.  It was perhaps open to him to have concluded, in the circumstances of the trial as they then appeared to him, that it was inappropriate for the jury to have revealed the fact that there was at that stage a disagreement between its members in relation to one or to all of the counts.  That is a conclusion upon which minds may well differ, but we recognise the difficulty of recapturing in an appellate court the atmosphere of a trial as it appeared to the judge at that stage.  What is particularly unfortunate, however, is that the judge must have forgotten or overlooked what the jury had communicated to him that morning when he was later discussing with counsel the correct interpretation to be placed upon the two notes which the jury sent after lunch, and whether the disagreement which those notes revealed could properly be seen as having been confined only to the fourth ingredient of the first count rather than to all seven counts.  Had the extent of the disagreement as at the commencement of the final day’s hearing – concerning all of the counts – been disclosed to the parties during that discussion (but without disclosing the voting figures), a different submission may well have been made as to the nature of the further directions to be given, and none of the unfortunate consequences which have now flowed may have been created.[65]

[65](1994) 34 NSWLR 179, 190-1.

1. The New South Wales Court of Criminal Appeal, having found that greater disclosure was required in that particular case, still considered that the figures themselves ought not to have been disclosed. 

1. In Black this Court quoted with approval the passage from Gorman which I quoted earlier.[66]  The Court then emphasised that ‘complete candour’ was required in revealing to the parties communications between the judge and the jury.[67]  That observation must be read in the context of the Court’s express adoption of the quoted passage from Gorman which specified an exception whereby details of voting figures should not be revealed.  This brings me then to MJR. 

   [66](2007) 15 VR 551, 554-5 [14].

   [67]Ibid 555 [16].

MJR v The Queen and authorities since

1. MJR concerned a situation where the trial judge received a note from the jury indicating the jury votes on each of nine counts under consideration.  On eight of the nine there was a majority in favour of conviction and on three of those eight the majority was 11/1.  Having considered the matter overnight, the trial judge had simply advised counsel that the jury was still unable to reach a unanimous verdict on any count and invited submissions as to whether a majority verdict direction should be given.  Counsel for the accused submitted that the judge should discharge the jury.  The judge refused that application.  The judge directed the jury that they could give  majority verdicts. 

1. Ashley JA, with whom Weinberg and Harper JJA agreed, reviewed the legislation and the relevant authorities including Gorman, Townsend, Oduro, Rose, and Black.

1. In MJR senior counsel for the Crown submitted that the jury should not have appraised the judge of the details of the votes cast, that the judge should have informed counsel of the contents of the note including the details of the votes cast, but that if there had been a breach of procedural fairness in the judge’s failure to do so it had not occasioned a miscarriage of justice.  Ashley JA said that in his opinion the proposition that the jury should not have appraised the judge of the details of the votes cast was ‘probably correct’, that informing counsel of the votes ‘was the preferable course in the particular circumstances of the case’, and that the proposition that there had been no miscarriage of justice should be rejected.[68]

   [68](2011) 216 A Crim R 349, 355 [34].

1. Ashley JA quoted the passages from Rose, Black, Townsend and Gorman which I have quoted.  As I read his judgment, he adopted the principles set out in those cases.  But he held that there was a critical distinction between the position which had arisen in MJR and the position which had arisen in the earlier cases.  That was that in MJR the trial judge knew that there existed the necessary statutory majority for conviction on three counts if a majority verdict direction was given.[69] 

   [69]Ibid 359 [56], [59].

1. Ashley JA made it clear that this position was distinguishable from a position where the jury communication did not reveal that the requisite majority in favour of conviction existed.  Referring to Gorman, his Honour said:

… the facts were different in a key respect to those in the present case.  When the judge decided to take a majority verdict, he knew that there was no statutory majority for conviction.[70]

He later said:

… the factual situation in the present case, unlike that in Gorman, involved a private communication pertinent to a discretionary decision that the judge was thereafter called upon to make – which, depending upon the way in which the discretion was exercised, was very likely to yield a conviction.  In Gorman and Townsend, the jury’s adherence to its voting intention must have meant that there would be intractable disagreement, and a discharge.

Two general points may be made about the authorities which I have cited.  First, in none of them was it said that the judge should have told counsel precisely what the jury had conveyed about its voting intentions.  But second, in none of them did the jury’s stated intention place the judge in a position of knowing what counsel did not – that an exercise of the discretion to take a majority verdict would certainly, or at least very probably, result in conviction on some counts.[71] 

It was this characteristic which meant MJR differed from the earlier cases and which meant that non-disclosure of the voting figures had denied the appellant in MJR procedural fairness. 

[70]Ibid 358 [49].

[71]Ibid 359 [55]-[56].

1. His Honour’s relevant conclusion was in these terms:

In this case, however, there was a critical distinguishing characteristic.  It was the combination of the nature of the information conveyed, its significance for the disposition of later applications, and the fact that the judge was seised, but appellant’s counsel was not, of the information.  That is why, unusually, I consider that disclosure was required.[72]

He continued:

… the circumstances to which I referred in the preceding paragraph did constitute a critical distinguishing characteristic requiring disclosure to counsel, when ordinarily the specific voting intention of the jury (if, undesirably, it was disclosed to the judge) would not require such disclosure.[73]

[72]Ibid 359 [59].

[73]Ibid 359-60 [60].

1. The fact that the critical factor in MJR was that note had revealed an 11/1 majority in favour of conviction is confirmed by the fact that the Court held that there had been no error in the trial judge’s non-disclosure of the voting figures on the other counts.  Ashley JA said:

I consider, however, that it was not necessary for his Honour to have told counsel what the state of votes was with respect to the other counts;  nor to have informed counsel of the particular counts upon which a statutory majority for conviction existed.  The less that the jury’s deliberations were publicly revealed, the better.[74]

[74]Ibid 359 [57].

1. Since MJR there have been two further decisions of this Court on disclosure of jury notes, LLW and Trinh Nguyen. 

1. Observations made about revealing communications of jury voting numbers in LLW were made obiter.  One broad statement about revealing votes in that decision[75] should be read in the light of MJR itself and of the cases which preceded it. 

   [75][2012] VSCA 54, [78] – last bullet point.

1. Trinh Nguyen raised a different issue.  In that case there was no issue concerning non-disclosure as what occurred there occurred in open court.  I disagreed with Priest JA in Trinh Nguyen, but his distillation of the applicable general principles as to disclosure of voting numbers is consistent with the analysis I have set out, and his analysis of MJR is, in my view, correct.  As to general principles, as he explains, voting numbers should not be revealed to the judge but, if they are, they need not be disclosed to counsel and the parties unless there is an issue as to whether a majority verdict may be taken and they reveal that a ‘statutory majority’ exists.[76]  As to MJR, Priest JA accurately identified the significant distinction between the communication of the voting figures which indicated the existence of a ‘statutory majority’ and those which did not, and he recognised that the disclosure of voting figures which MJR did require (where there was a ‘statutory majority’) was unusual.[77]

   [76][2013] VSCA 65, [78].

   [77]Ibid [76].

Submissions on the appeal

1. Once the contents of the note were revealed, the parties to the appeal had to recast their submissions.  The submissions which had been filed, particularly those of the appellant, assumed that the note had revealed the existence of a majority in favour of conviction.  In fact, the note did not reveal which way the jury was divided 7/5, nor indeed did it expressly reveal upon which counts (or alternatives) it was so divided. 

1. The submission made on behalf of the appellant was that the numbers ought to have remained secret, but that if they were revealed to the judge then they ought to have been revealed to counsel.  It was submitted that there had been procedural unfairness in the judge’s failure to reveal the numbers because if they had been revealed the application to discharge the jury would have been made with more force and cogency and there was the possibility that, had the numbers been revealed, the prosecutor might have taken a different position and have joined in the application for a discharge.

1. On behalf of the prosecution it was submitted that this Court ought not follow MJR, and the earlier decisions to which I have referred, but should decide that there is nothing wrong in jury numbers being revealed and that that is a course which ought to be approved and encouraged.  I reject that contention.  It is inconsistent with long standing authority.  When pressed to put what the prosecution position was upon the assumption that MJR was correctly decided, the prosecution submitted that this Court in MJR had recognised that the usual position is that votes which are revealed to the judge will not be disclosed to counsel and that procedural unfairness only arises as a result of such non-disclosure in very particular circumstances, of which MJR is an example but of which this case is not.

Analysis and conclusion

1. The note in this case revealed that the jury could not reach a conclusion and that they were divided 7/5.  The note did not reveal which way they were split, nor did it expressly indicate whether that division was on both counts or perhaps whether it was on the alternatives that were open.  The judge revealed to counsel everything in the note other than the numbers.  The prosecutor expressly asked not to be told the numbers.  Defence counsel did not submit that the numbers should be revealed.  From what her Honour did say, defence counsel seems to have understood the position accurately in that he suggested that the jury had indicated they were ‘nowhere near’ the requisite majority and that ‘it would be unlikely that a direction would assist in any event’.

1. Jury numbers should not be disclosed to the judge, but, if they are, the trial judge, ordinarily, should not reveal what the numbers are.  In Townsend it was said that revealing the numbers was ‘clearly undesirable’.  In Oduro it was suggested (on one view at least) that revealing the numbers may itself constitute a material irregularity.  In Gorman the Court said that information the jury should not reveal to the judge and in particular ‘details of voting figures’ should not be revealed in open Court.  In Yuill the Court held the contents of the note should have been disclosed ‘without disclosing the voting figures’.  In Black this Court quoted and adopted what had been said in Gorman.  MJR does not depart from, and indeed endorses, this general position, but it also indicates that there are exceptional cases where disclosure of the numbers is required.

1. MJR itself represents an exception.  That arises where the judge is, or will be, considering taking a majority verdict and the jury reveals to him that there the requisite majority for conviction exists.  That exception arises because of the combination of circumstances referred to in MJR.[78]  In MJR this Court was not otherwise altering the established principles.  The earlier decisions were quoted and adopted.  The Court in MJR held that the trial judge had not erred in failing to disclose the voting details on the counts where there was not an 11/1 vote.  The note in this case was the same as the note in MJR insofar as it concerned the votes which were not 11/1.  The MJR  exception does not apply here.

   [78]MJR (2011) 216 A Crim R 349, 359 [59].

1. Turning then to the grounds relied upon, my conclusions are as follows.

1. The trial judge did not err in ‘editing’ the jury note so as not to reveal the numbers.  What she did was in accordance with the principles I have set out.  The MJR exception did not apply.  Nor, in my view was there a failure to seek submissions on the issue of whether the numbers should be revealed.  She did express the view at the outset that she did not think it appropriate to disclose the numbers.  That view accorded with authority.  She then gave counsel the opportunity to address her.  Counsel were free to address any aspects of what had occurred.  She did not ‘rule’ that the numbers would not be revealed without giving counsel the opportunity to be heard.

1. I do not consider that it has been demonstrated that her Honour made any relevant error in the exercise of her discretion[79] not to discharge the jury and to take majority verdicts. 

   [79]House v The King (1936) 55 CLR 499, 505.

1. This was not a case like MJR where the failure to reveal the numbers resulted in procedural unfairness.  Defence counsel did not seek to have the numbers revealed.  He addressed the relevant matters without knowing the numbers, and he appears to have accurately assessed the general position.  If disclosure were to be required in this case on the basis of procedural fairness, that would be inconsistent with well established principles in my view.  Indeed, it would, in my view, be contrary to MJR itself.

1. The trial judge did not err in failing to tell the jury that they should not reveal their voting numbers.  Recent experience has suggested that it is prudent to do so,[80] but I do not accept that it is an error to fail to do so.

   [80]As the Victorian Criminal Charge Book now suggests, [3.10.1].

1. I do not consider that the verdicts are unsafe and unsatisfactory because of what occurred in relation to the jury’s note.

Conclusion

1. The ‘votes’ having been disclosed, in my view the trial judge proceeded as she ought to have, and in the way which has been held to be the correct approach.  The peculiarly distinguishing feature of MJR, being the known existence of a statutory majority in favour of conviction, was not present here.  There was no error by the judge in the course she followed and there was no procedural unfairness in what occurred.  The appeal should be dismissed.

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