Black v the Queen

[1993] HCA 71

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON AND McHUGH JJ

BLACK v THE QUEEN (1993) 179 CLR 44, (1993) 68 ALJR 91,

(1993) 118 ALR 209

22 December 1993

Criminal Law—Evidence

Criminal Law—Practice—Jury trial—Difficulty in reaching verdict Direction to jury. Evidence—Criminal trial—Uncorroborated confession—Direction to jury.

Orders

Both appeals allowed.

Set aside the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof allow the appeals against conviction to that Court, quash the convictions and order that there be new trials.

Decisions

MASON CJ, BRENNAN, DAWSON AND McHUGH JJ The appellant was convicted of two charges of arson, the first relating to a fire in September 1986, the second relating to a fire in November 1987. The fires occurred at two townhouses in the suburb of Airds near Sydney. The appellant was tried before Judge Gibson and a jury in the Liverpool District Court on the first charge. He was tried before Judge Collins and a jury in the Penrith District Court on the second charge. Appeals against both convictions were dismissed by the New South Wales Court of Criminal Appeal. Pursuant to the grant of special leave to appeal, the appellant now appeals to this Court.

Appeal against conviction relating to the 1986 fire

2. The ground of this appeal is that the Court of Criminal Appeal erred in failing to hold that the trial judge's exhortation to the jury to reach a verdict was erroneous in that it infringed the fundamental rule that the jury must be free to deliberate without any form of pressure being imposed upon them. After the jury had been deliberating for about three hours, the trial judge directed them in these terms:

"Members of the jury, I understand you are having some problems and I propose to say a few words to you. You have been deliberating now for just under three hours and been unable to reach a verdict. You are a body of twelve individuals. Each of you has individually taken an oath to return a true verdict according to the evidence. As I told you in my summing-up, you are equal in your task, but nevertheless you have a duty, not only as individuals but also collectively. No one of you should be false to the oath you took but in order to return a collective verdict, a verdict of you all, there must necessarily be discussion and argument and a certain amount of give and take and adjustment within the scope of that oath. It makes for considerable public inconvenience and expense if a jury cannot agree and it is most unfortunate indeed if such a failure to agree is due to some unwillingness on the part of one or more members of the jury to listen to and consider the arguments of the rest of the jury. It is very desirable that you should come to a conclusion one way or the other, because if you don't, it will mean that some jury will have to later seek to do what you have been chosen to do. That would be a considerable hardship on all concerned with the case, including the accused and the various witnesses and if possible, should be avoided. There must be, in the process of arriving at a verdict, a willingness on the part of each member of the jury to listen to and carefully consider the views of others. There should be a recognition of the fact that some view points are sounder than others and that one's own view point may not necessarily be correct. Sometimes, as we all know, we are each inclined to form opinions and once they have been formed, we do not like to let go of them, even though we sometimes realise later that they really cannot be sustained and that another view was really a better one. When that happens, if it happens, we should not hold on to our original view. To approach the task you have in hand sensibly in the way I have sought to indicate, is quite within the scope of your oath, the oath that you took. Having said that, I nevertheless remind you that your verdict must be unanimous."

This direction is a standard direction in New South Wales.

3. In the Court of Criminal Appeal, Gleeson CJ (with whom Grove and Sharpe JJ agreed) disposed of the challenge to the direction
quite briefly. His Honour said:

"(I)t is complained that the reference to expense involved inappropriate pressure or coercion (cf Reg. v. Watson ((1) (1988) QB 690.) ). Having regard to the entire context, I do not accept this submission. It is necessary to observe that what

has

been said about the terms of exhortations in recent English

cases

is to be understood against the background that English legislation provides for majority verdicts. I consider that what his Honour said to the jury was not inappropriate to the circumstances of the case. This conclusion is in line with the decision of this Court in Judge and McKinney ((2) (1989) 49 A Crim R 7, per Clarke JA at p.16.)."

4. The first part of the direction appears to have been based on the form of direction which was approved by the English Court of Criminal Appeal in Walhein ((3) (1952) 36 Cr App R 167, at p.168.) where the Commissioner had instructed the jury as follows:

"Each of you has taken an oath to return a true verdict according to the evidence, but, of course, you have a duty not only as individuals, but collectively. No one must be false to that oath, but in order to return a collective verdict, the verdict of you all, there must necessarily be argument, and a certain amount of give and take and adjustment of views within the scope of the oath you have taken, and it makes for great public inconvenience and expense if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest. ... If you disagree in your verdict ... you must say so."

The last two sentences of the second paragraph in the direction given by the trial judge in the present case were somewhat stronger than the reference in the Walhein direction to public inconvenience and expense.

5. That direction was modified in Creasey ((4) (1953) 37 Cr App R 179, at p.180.) where the jury were instructed in these terms:

"It is very desirable that you should come to a conclusion one way or the other ... because it only means that some other jury have got to do your work for you all over again ... and that it is why it is highly essential that you should come to a definite conclusion. ... It is a hardship upon all concerned if you do not. The way that juries arrive at a verdict is ... by a method of one member listening to what the other has to say and by a process of give and take. ... it is a verdict which you must all be agreed upon one way or the other".

6. The giving of an instruction in terms similar to, though not identical with, that given in Walhein or Creasey has been approved by
courts in New South Wales ((5) Reg. v. Lusher (1976) 1 NSWLR 227.), Victoria ((6) Reg. v. Cartledge (1956) VLR 225 but note the reference to a possible danger at p.227; Reg. v. Gallagher (1986)
VR 219.), Western Australia ((7) McMahon (1984) 15 A Crim R 289.) and Canada ((8) Reg. v. Alkerton (1992) 72 CCC (3d) 184; affd (1993) 78 CCC (3d) 576; Reg. v. Newall (1983) 9 CCC (3d) 519; Reg. v. Halliday (1992) 77 CCC (3d) 481.).

7. In Queensland, in Brown ((9) (1989) 43 A Crim R 340.), the Court of Criminal Appeal held that a direction which otherwise conformed to that accepted by the Privy Council in Shoukatallie v. The Queen ((10) (1962) AC 81, at pp.90-91.) was deficient in that it failed to refer to the need to remain constant to a view which cannot be changed honestly. In Brown, the Court regarded the Shoukatallie instruction as being appropriate ((11) (1989) 43 A Crim R, at pp.341, 345.). In Shoukatallie, no reference was made by the trial judge to the expense and inconvenience of holding a new trial should the jury fail to agree. The trial judge emphasized both the need to consider the views of other jurors and the obligation to give an honest verdict. However, he expressed himself in very strong terms and, in that respect, the Privy Council considered that the direction might have been better expressed ((12) (1962) AC, per Lord Denning, at p.91.).

8. More recently, in England in Reg. v. Watson ((13) (1988) QB 690.), the Court of Appeal disapproved the Walhein direction and decided that a jury should be instructed in these terms ((14) ibid., at p.700.):

"Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily, (10 of) you cannot reach agreement you must say so."

9. The Walhein direction had been approved when there was a requirement, as there still is in New South Wales, for a unanimous jury verdict. In Watson, it was thought that the direction was no longer appropriate to a situation in which majority verdicts were permitted ((15) ibid., at p.696.) as they were in England before Watson. But a further reason given in Watson for rejecting the Walhein direction was that the second part of it contained a warning that it may cause "great public inconvenience and expense if jurors cannot agree". The Court of Appeal thought these words might be far from harmless ((16) ibid.) and that there was a significant risk that the Walhein direction imposed pressure on a jury ((17) ibid., at p.700.) contrary to the fundamental principle that a jury must be free to deliberate without any pressure being imposed upon them, whether by way of promise, threat or otherwise ((18) ibid.). The Court acknowledged that there are occasions when the circumstances will show that the Walhein direction did not impose any pressure on the jury but the risk was such as to make it necessary to bring use of the direction to an end ((19) ibid.).

10. Notwithstanding the decision in Watson, the Supreme Court of Queensland has continued to approve a Shoukatallie type direction ((20) Brown (1989) 43 A Crim R 340.) and the Walhein direction is still employed in Canada ((21) Reg. v. Alkerton.). On the other
hand, in Reg. v. Accused ((22) (1988) 2 NZLR 46; cf. Reg. v.
Tennant (1989) 2 NZLR 271.), the New Zealand Court of Appeal formulated a model direction which avoids the difficulties associated with the Walhein direction. The principal defect in that direction, as perceived by the Court of Appeal, was the reference to great public inconvenience and expense. As Cooke P pointed out ((23) (1988) 2 NZLR, at p.58.):

"Inconvenience and expense should not be measured against justice."

His Honour went on to say that it had not been the practice to use this part of the Walhein direction in recent years ((24) ibid.).

11. We agree with this criticism of the Walhein direction, and the criticism has equal application to the instructions given by the trial judge in the present case. More importantly, the reference to "considerable public inconvenience" is apt to impose pressure upon individual jurors to join in the view taken by a majority, thereby violating the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them. The statement that "there must necessarily be ... a certain amount of give and take and adjustment" might be taken to suggest, wrongly in our view, that a juror is to compromise with other jurors in reaching a verdict ((25) Reg. v. Cartledge (1956) VLR, at p.227.).

12. Moreover, the earlier reference to the jury having a "duty, not only as individuals but also collectively" may well have had the effect of reinforcing the impression that the jury were under some obligation to reach a result to which all the members of the jury subscribed. Jurors do have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the jury room. There is a risk that references to a collective responsibility or duty may be understood more broadly by the jury and as an invitation to an individual juror to subordinate his or her views to those of a majority of jurors. Consequently references to "give and take and adjustment" and collective duty or responsibility should be avoided.

13. In this case it follows that we consider that the trial judge's direction went too far and may well have resulted in the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled. Consequently, the conviction in relation
to the first fire must be set aside and a new trial ordered.

14. Before we leave this aspect of the case we should say that we see no reason why a direction should not be given to a jury if it appears that they are encountering difficulty in reaching a verdict. But that direction should state quite clearly that each juror has a duty to give a verdict according to the evidence. Likewise, it is proper to remind the jurors that they should listen to each other's views, weigh them objectively and that an individual juror can change his or her mind if honestly persuaded that his or her preliminary view is not well founded.

15. With these comments in mind we consider that, should the occasion arise, a trial judge should give a direction along the following
lines:

"Members of the jury,

I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict."

Appeal against conviction relating to the 1987 fire

16. The appellant contends that the Court of Criminal Appeal erred in concluding that the trial judge gave adequate directions to the jury with respect to certain admissions by the appellant to Detectives Torning and Llewellyn. In order to consider the significance of this submission, it is necessary to state shortly the nature of the Crown case.

17. The indictment named Mrs Spittles and Mr and Mrs Colby as well as the appellant. The appellant and Mrs Spittles were charged with deliberately setting fire to a townhouse, while the Colbys were charged with being accessories after the fact in that they told lies to protect Mrs Spittles.

18. The fire occurred in the early hours of the morning of 18 November 1987 at the townhouse occupied by Mrs Spittles, in which the appellant had also been living. There was evidence that the fire had been deliberately lit. There was also significant evidence of suspicious activity on the part of Mrs Spittles and others around the premises on the evening of 17 November before the fire. The Crown established that Mrs Spittles had moved a substantial quantity of her belongings out of the premises shortly before the fire started. She moved in with Mr and Mrs Colby.

19. The trial judge directed the jury that this evidence on its own was not capable of amounting to proof of the offence charged against the appellant or Mrs Spittles. However, the Crown relied also upon an admission of guilt to Detectives Torning and Llewellyn when they
investigated the fire. The detectives gave evidence that the appellant told them he had set the fire but that the police had no evidence against him and that they would not be able to prove it. The trial judge directed the jury that a critical question was whether they accepted beyond reasonable doubt the police evidence of the admission.

20. Mrs Spittles denied to the investigating police that she was involved in setting fire to the premises and asserted that the
appellant did it. She also said that she was scared of him.

21. The trial judge emphasized to the jury points of criticism of the police evidence made on behalf of the appellant, namely, that there were some inconsistencies in the police evidence of the interview of the appellant, that no effort had been made to make a written record of what the appellant might say and that no effort had been made to obtain a written confirmation of what he had said. The trial judge reminded the jury of the observation by counsel that an allegation by a police officer that a person has made an oral admission is one that is easy to make and very hard to refute. His Honour also directed the jury that, when evaluating evidence, they should look to see if it finds any substantial support from some other source and that, if it is challenged and standing alone, they should approach it with more caution. In the context of the summing-up as a whole, the jury might have been left in some doubt as to the application of this instruction because evidence of the making of the admission was given by the two detectives and the instruction was not specifically related to the making of the alleged admission.

22. The trial took place before this Court handed down its decision in McKinney v. The Queen ((26) (1991) 171 CLR 468.). With that in
mind, Gleeson CJ said:

"In my view, in the light of the law applicable to the trial at the time it was conducted, the observations made by his Honour to the jury about this matter were adequate."

23. The case presented by Mr Game for the appellant in this Court is that the trial judge should have given directions in terms of the judgment of Brennan J in Carr v. The Queen ((27) (1988) 165 CLR 314; see also Duke v. The Queen (1989) 63 ALJR 139; 83 ALR 650.). Such directions were sought by counsel for the appellant at the trial when he requested that the jury be instructed that it is dangerous to convict on the uncorroborated evidence of a verbal admission. In Carr, the Court held, by majority, that there was no rule of practice in criminal trials that, in every case where the sole
or substantial evidence against the accused is a disputed, uncorroborated oral confession, the judge must direct the jury that it would be dangerous for them to act upon it. Subsequently in McKinney, the Court, by majority, held that, in the future whenever police evidence of a confessional statement allegedly made by an accused while

in police custody is disputed and its making is not reliably corroborated, the judge should, as a rule of practice, warn the jury of the danger of convicting on the basis of that evidence alone. But that principle then enunciated had no application to the trial in this case.

24. Notwithstanding the rejection in Carr of the general rule of practice there contended for, it was recognized in that case ((28) (1988) 165 CLR, per Brennan J at pp.328-330.) and subsequently in McKinney that particular circumstances might require a judge to warn a jury of the danger of acting upon an uncorroborated, disputed confession. In this case, there were circumstances which called for the trial judge to take particular care in directing the jury as to how they should approach the allegation that the appellant had admitted the offence. The circumstances were: 1. The confession was oral and disputed. 2. The making of the confession was not corroborated. 3. It was made in the course of an interview at a police station,

the appellant having been brought there for the purpose of interrogation and the detectives having a very strong suspicion that he was guilty.

4. No preparations were made to make a record of interview; no note

of the confession was made until after the interview concluded and no attempt was made to obtain the appellant's signature to the note.

5. Conflicting and unpersuasive reasons were given for not showing

the note of the interview to the appellant.

6. The answer attributed to the appellant was, to say the least of

it, unusual - "I did like I said (but) you'll never prove it."

7. Acceptance by the jury of the making of the confession was

critical to the Crown case.

8. Taken in conjunction with Mrs Spittles' statement that the

appellant lit the fire, the absence of any challenge to the police evidence by the other accused would have given the police evidence some credibility in the minds of the jury.

25. Although the trial judge drew attention to certain deficiencies in the police evidence relating to the confession, he did not mention the fact that there was a significant departure from standard procedures in recording the admission; nor did he invite attention to the unsatisfactory explanations for the late recording of the admission. Further, while his Honour referred to the argument that it is easy for the police to put words into the mouth of an accused and very hard for the accused to refute it, his Honour went on to say:

"The police say this is not so, and ... the Crown says it is a very easy thing for an accused person when being interrogated to get the heat turned off by making an admission and then when you come to the crunch in court, saying 'Never said it', so those are the two opposing things."

The passage which we have just quoted has nothing to do with the circumstances of this interview as disclosed by the police evidence. According to the detectives, the appellant volunteered the admission at the very beginning of the interview without any effort being made by the interrogating officers to obtain answers to particular questions about the fire.

26. In our view, the trial judge did not instruct the jury adequately with respect to the deficiencies of the police evidence of the
interview. Those deficiencies, in conjunction with the other circumstances to which we have referred, required that the jury should have been told that they should scrutinize very closely the police evidence of the interview. The giving of such a warning might well have affected the jury's verdict. In the result, the conviction must be regarded as unsafe and unsatisfactory.

27. We would allow the appeals, set aside the convictions and order new trials.

DEANE J I agree with the judgment of Mason CJ, Brennan, Dawson and McHugh JJ I add some comments about the supplementary directions given by the learned trial judge to the jurors when they were unable to agree on a verdict after approximately three hours of deliberation in the trial of the appellant in relation to the 1986 fire.

2. In the first paragraph of those supplementary directions, the trial judge informed the members of the jury that they had "a duty, not only as individuals but also collectively". There followed, after a reference to the juror's "oath" ((29) See below.), an instruction that "in order to return a collective verdict, a verdict of you all, there must necessarily be discussion and argument and a certain amount of give and take and adjustment within the scope of that oath". Those directions were liable to be understood as suggesting that there was a "duty" on individual jurors to engage in a "give and take" process to discharge some collective obligation. In the context of the particular trial where only one count was involved, there is no danger that the trial judge's comments might have been misunderstood as endorsing a trading of verdicts of guilty and not guilty on individual counts. There is, however, a real danger that they might have been misunderstood by a minority juror, particularly one who had been under pressure in the jury room from a majority, as inviting a democratic submission to the views of the majority in order "to return a collective verdict".

3. That danger is exacerbated by what was said in the following three paragraphs of his Honour's supplementary directions. In the
context of earlier references to collective "duty" and to "considerable public inconvenience and expense", the likely effect of the statement that it is "very desirable that you should come to a conclusion one way or the other, because if you don't, it will mean that some jury will have to later seek to do what you have been chosen to do" was to suggest that, unless the process of a "certain amount of give and take" was adopted to the extent necessary to "return a collective verdict", there would be a failure by the members of the jury to "do what (they had) been chosen to do" with consequent social
detriment. The subsequent statements that there should be "a recognition of the fact ... that one's own view point may not necessarily be correct" and the emphasis upon the desirability of
being prepared to change an original view were, if viewed in isolation, unobjectionable. However, in the context of what had gone before, they could well have had the effect of subjecting an individual minority juror to unjustifiable pressure if he or she had understood the trial judge's earlier comments as intended to encourage submission to a majority view.

4. A juror who conscientiously holds out against a majority and thereby prevents unanimity has not failed properly to "do what (he or she was) chosen to do". To the contrary, he or she has done no more than discharge his or her duty to both the accused and society. Any suggestion that a minority juror should democratically submit to the view of the majority is antithetical to the jury process under the common law of this country ((30) See Cheatle v. The Queen (1993) 67 ALJR 760, at pp.763-764; 116 ALR 1, at pp.6-7.).

5. Accordingly, in a case where it appears that a jury has been unable to reach agreement after what is, in the circumstances of the particular case, a significant period, it is essential that a direction requiring the jury to continue its deliberations carefully avoids anything at all that might be misunderstood as encouraging a minority juror to join in returning a "collective verdict" which does not completely accord with his or her own genuine views. As I have indicated, the supplementary directions of the trial judge in the present case were likely to be so misunderstood by a minority juror, particularly one who had been under pressure from majority jurors to abandon his or her own genuine views. And that is so notwithstanding the trial judge's express instruction that no member of the jury should be false to the oath which he or she had taken to return a true verdict according to the evidence. While that express instruction may have reduced the danger of misunderstanding, it went nowhere near eliminating it. Indeed, the subsequent instruction that to approach "the task ... in hand sensibly in the way I have sought to indicate, is quite within the scope of your oath" would have been understood by a juror who thought that he or she was being encouraged by his Honour's earlier comments to yield to the majority view, as an instruction that it would be consistent with his or her oath or affirmation to adopt that course.

6. I agree with the orders proposed by the other members of the Court and with the suggested form of direction set out in their
judgment.