Black v The Queen

[1993] HCATrans 237

.

• 1S

',;-~:,"

-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S80 of 1993

B e t w e e n -

MICHAEL JOHN BLACK

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

McHUGH J

Black(2) 1 24/8/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 24 AUGUST 1993, AT 11.55 AM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court please, I appear for the appellant, together with my learned friend,

MR S.J. ODGERS). (instructed by T. Murphy, Acting

Director, Legal Aid Commission of New South Wales)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR A.M. BLACKMORE, for the

Crown. (instructed by S.E. O'Connor, Solicitor for

Public Prosecutions)

MASON CJ:	Mr Game.
MR GAME:	If the Court pleases, I hand to the Court an

outline of argument.

MASON CJ: Yes, Mr Game.

MR GAME: If the Court pleases. This appeal arises from a

dismissal of appeals from two trials by the
Court of Criminal Appeal on 17 February 1992.

There are two points arising on this appeal, one

concerning a jury exhortation, which concerned the

trial concerning a fire at Airds on

23 September 1986. That was the trial that took

place before His Honour Judge Gibson. The second

appeal concerns a failure to direct on confessional

evidence in a second fire, and that was a trial

before His Honour Judge Collins.	We deal firstly
with the exhortation point.

The exhortation appears at appeal book, page 61, and it carries over to page 62. This

exhortation was given at about 2.00 pm, the jury

having retired at 11.03. They were called back in

and given some further very short directions and

they retired again at 11.08. This exhortation must

have been given very shortly after 2.00PM and the

jury returned with their verdict at 2.37. It was a

fairly short trial, it was a trial of some five

days, and a summing up was given on the fifth day.

There was a co-accused. So, it would be fair to

characterize this as a fairly short,

straight-forward trial.

We submit that this exhortation is too strong.

We submit that it is too strong for a number of

reasons: firstly, on page 61 the passage

commencing:

you are equal in your task, but nevertheless you have a duty, not only as individuals but

also collectively.

That is perfectly true and a jury should be told

that.

Black(2) 2 24/8/93

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.

We would submit that the last two lines - - -

DEANE J:  You say a jury should have been told that. What

does it mean to say to them that they have a duty

collectively?

MR GAME: Well, what a jury should be

DEANE J:  I mean, I can understand saying to 12 people that

each of them has a duty to do something.

MR GAME: Well, Your Honour, I think - yes, I withdraw that

submission, but what I would say is this: a jury

should be told this, they should be told they have

an individual duty but one of their duties is the

duty to attempt to reach a verdict.

DEANE J:  I do not want to delay you, Mr Game, I was just

asking you what it meant because you said that it

should be given.

MR GAME:  On reflection, I think, perhaps those words should

not be used. But a jury should be told that part

of their duty is a duty to attempt to reach a

verdict, so they do not simply have an individual

duty and it is fair to say to a jury that they

should try to reach a verdict. If that is what is

meant by "collective", then that would be a fair

thing to say to a jury. The use of the words:

a certain amount of give and take and

adjustment within the scope of that oath -

might well be taken by a jury as indicating to them

that they should give up their opinions honestly

held. It certainly does not express what it should

express, which is that they are obliged to hold on

to an opinion honestly held.	The following
paragraph commencing:

It makes for considerable public

inconvenience and expense -

and we would submit that those directions should

not be given, and that that puts too much pressure

on the jury, and that "public inconvenience and

expense" should not be mentioned.	Nor should the
balance of that sentence:

Black(2) 24/8/93

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 would be perfectly proper to say to a jury words

that in a judicial way indicated to them that they

should listen to what the other members of the jury

had to say and not to be pigheaded about the

opinions upon which they had preliminarily formed a

view.

BRENNAN J:	What is the difference?
MR GAME:	It depends entirely how it is put to the jury and

the context in which it is done, Your Honour. This

goes further than that.

BRENNAN J:  What is wrong with the second paragraph; the reference to "public inconvenience and expense"?

MR GAME: Well, Your Honour, we would say that the problem

with it is that it suggests to the jury that, by

not changing their opinions, it creates expense and

inconvenience to other people, so that it

introduces extraneous considerations to the jury's

deliberations.

BRENNAN J: Is it not really providing a reason - one of the

reasons - why it is the jury's duty to try to reach

a verdict?

MR GAME:  Your Honour, I will come to Watson in a minute,

but Watson is the case in which those very words

were regarded as being inappropriate to use and is

possibly creating a potent influence on juries.

So, my submission, in relation to those words, is

really derived from the Court of Appeal's judgment

in Watson, which I will come to in a moment.

Just pausing there, it would appear that the

words of this exhortation, up to the words

"arguments of the rest of the jury", are derived

from Walhein, but following on is not a portion

that appears in Walhein. The next words are:

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.

Black(2) 4 24/8/93

Now, we would submit that reference to

"considerable hardship to all concerned" is

inappropriate, particularly given the circumstance

that a hung jury in these circumstances is likely

to be a hung jury in which one person believes that

the accused should be acquitted, and it would

rather suggest that it is a hardship to the accused
not to come back with an order convicting him

promptly.

I will not read the balance of the

exhortation, but the balance of it goes on to exhort the jury in various terms, but what is

notable about it is that it does not conclude by

telling the jury, either of their right to

disagree, or what they should do if they do

disagree. So that there is no point at which this

exhortation leaves the jury in a situation in which

they can at least say, "Well if we cannot agree

then we can come back and tell the judge and we
will be discharged". Section 56 of the Jury Act
provides that the jury is to be discharged if they

are unable to agree. Section 65 used to provide

that it could be done after six hours, but that has

been amended and was amended in 1987. On any

account, the jury deliberations in this case were
for an extremely short period of time when this

exhortation was given.

DAWSON J: But obviously it was in response to some

communication by the jury.

MR GAME:  Yes, there is nothing in the transcript that

indicates what that communication was, but from the

top of page 61 it would be fair to draw from it

that the jury had indicated that they were unable

to agree.

Naturally enough, we would submit that the giving of this exhortation would be premature at

any time, but it does seem that the giving of the

exhortation after such a short time, even an

appropriately worded one, is something that should

be done with a great deal of caution, when a jury

has only been deliberating for what is a very short

period of time, given that jury verdicts are not taken between 1 and 2 in any event, so this jury

would have been deliberating between the hours of

11 and 1, and they would have taken lunch. So, it

scarcely gives them time to argue through their

various points of view and differences.

If I could take the Court to the various cases

which we would submit touch on this question. page 694, Band C, the Walhein direction is

reproduced. The Walhein direction is only

Black(2) 24/8/93

reflected in this case, as I said, up to what

appears in line 19. The Walhein direction at least

tells the jury in the last sentence that they
should inform the court if they disagree.

The elaboration in the Walhein direction, referring to hardship to all concerned, appears to

have been introduced by a case of Creasey which

appears at the bottom of page 694 going over to

page 695. Creasey is hardly an authority for the
proposition that exhortation in those terms should

be given, for when one examines the decision in

that case, the court simply dismissed an appeal

based on that exhortation without approving it as a

model exhortation.

Then at the bottom of page 695 there is a discussion in relation to the way in which the Walhein direction was reconsidered in the light of

the introduction of majority verdicts. There is a

long passage from the judgment of

Lord Chief Justice Widgery. The point that we

would make in relation to the introduction of

majority verdicts is that, although majority

verdicts may have provided the historical reason

that the Walhein direction was reconsidered, the

fact of majority verdicts is quite irrelevant as to

whether or not the substance of the exhortation is

too strong.

This is shown up by the fact that in England,

now, the majority verdict is given entirely

separately from the exhortation, and the

exhortation is only given some time after the
majority verdict is given, so that by the time the

exhortation is considered, it is a question of

whether or not it be, say, number 9 as opposed to

number 12.

DEANE J: Except the fact of a majority verdict is not

completely irrelevant, is it?	I mean, one could
well take the approach that some sort of direction

was desirable to overcome the likelihood that one

member of the jury was simply being unreasonably

pigheaded - sort of sitting in the corner - which

would not be a proper approach in the case of a

majority verdict where - what is it in England, 10

out of - - -

MR GAME:  Ten.

DEANE J: Yes, where you get a verdict unless more than two

are of a contrary view to the majority. To that

extent, it is relevant as a starting point.

MR GAME:  It has certainly provided the context within which

the question was reconsidered, but if you separate

Black(2) 6 24/8/93

the majority verdict from the exhortation, then by

the time the jury comes to consider the exhortation

they must be 9:3, or something like that. So that

one is still talking about the possibility that one

person, or maybe two, are holding out for a

particular view that they have in relation to the

case or, I beg your pardon, any one of three.

That point I was just making is borne out by a

reference to a case of Ashley, which is referred to

at the bottom of page 697 of Watson. There is one

other case, which I will just hand the Court copies

of, called Buono, which makes the same point; it is

a decision of the Court of Appeal concerning the

need to separate the majority verdict direction

from the exhortation, and that appears on the first
column on the bottom of page 255.

Now, in Watson, the reasons for reconsidering

the exhortation, the substance of them, commence at
the bottom of page 699H, over to page 700.

The passage dealing with expense and

inconvenience, referring back to

Your Honour Justice Brennan's judgment, is the

passage that we would rely upon, and it appears

at C where the Court refers to it as a potent

incentive to agree. It may, in fact, depend
entirely on the overall structure of the
exhortation as to whether or not those words have a
potent effect or not but, we would submit, the way
in which the exhortation is given, in this case,

they are particularly potent because the

exhortation given in this case does not end as it

should do by telling the jurors of their right to

disagree, and that is the critical thing that is

missing from this exhortation.

If one goes to a case which is not referred to
in Watson but is a decision of the Privy Council in

Shoukatallie. The point which I wish to make there

is borne out at - it is (1962) AC - page 91,

commencing at the third line -

DEANE J:  Mr Game, in view of the comment of the Court of

Criminal Appeal about the time element, is it not

really relevant for us to know what it was, or what

the jury's message to the judge was, that led to -

as I follow it - at 2 pm or some time before 2 pm,

some message was sent. At 2 pm this direction was

given and at 2.37 pm the jury returned with the

verdict of guilty. Well now, should not we know

what the message was?

MR GAME: Well, Your Honour, my inquiries with counsel lead

me to believe that what was indicated was that the

jury were unable to agree. There is not any

Black(2) 7 24/8/93

transcript, and I have no better source than that.

The Court of Criminal Appeal - - -

MASON CJ:  Do you know Mr Blanch, the circumstances in

which - - -

MR BLANCH:  No, my understanding is exactly the same as my

friend's, Your Honour.

DEANE J: What, so we can act on the basis that the message

from the jury was a simple message that the jury is

unable to agree.

MR BLANCH:	Yes, Your Honour.
MR GAME:	The Court of Criminal Appeal disposed of the

argument that the exhortation was premature on the

assumption that that was the effect of the note

that they had from the jury.

Now, Shoukatallie, we would submit, is

instructive because it commences by telling the

jury that they should try to agree, and it

concludes by telling the jury of their duty to

differ if they hold that particular opinion. We

would submit that that is an appropriate way in

which an exhortation, if it is to be given, should

be given. The way in which the exhortation was

given in this case was very strongly to the

contrary.

Now, one other case, we would submit, is

instructive in relation to the appropriate form of

an exhortation is the New Zealand case of

R v Accused, (1988) 2 NZLR 46, at page 59. I am

sorry, I have jumped ahead. Just before leaving

Shoukatallie, along those lines, and that is a

there was no reference in or matters

distinguishing feature.

The next case was R v Accused,

(1988) 2 NZLR 46, at page 59. The exhortation that

is proposed and followed in New Zealand is set out

there and we would submit that that also provides a

useful guide as to what might form the appropriate language of an exhortation. It also commences, or

in the early part, emphasizes the need to attempt

to reach a verdict but concludes by telling the

jury that if they cannot agree and if they are

unable to honestly depart from an opinion held,

then they should do so and indicate. So it makes

clear in an instructive way, we would submit, the

individual and joint responsibility of jurors.

That exhortation does make reference to the

fact that a new trial, a further trial is likely to

Black(2) 24/8/93

be held, and we would submit that if it is couched

in appropriate language, that would not be

inappropriate. In fact, if the jury were not told

about that, they might think that the case would

founder on their failure to reach a verdict. So

that something probably should be said that
indicates that there is a probability that the man

will go to trial again.

So, coming back to the exhortation in this

case, we would submit that it is substantially

worse that the exhortation that was given in

Walhein and followed over the years, that it does

not accord with Watson or Shoukatallie in

fundamental respects, and that, in the

circumstances, it is too strong and too coercive. the exhortation.

DEANE J:	Has there been any useful academic writing in the
journals on this question, Mr Game?
MR GAME:	Your Honour, Mr Odgers tells me he has done some

research and could not find any articles on the

question.	We have researched the Canadian,
American, New Zealand and English position.	The

Canadians follow Watson, and there is a case on my

list of authorities of Alkerton which sets out the

Canadian position. The United States follow an

exhortation given in a case in the 19th century in
a case of Allen's case, and the current status of
exhortations in the United States is set out in a

case in my list of authorities called Lowenfield v

Phelps. But the minority opinions in that case -

incidentally the American exhortation itself does
refer to the duty to hold on to an opinion honestly
held and Lowenfield is an exhortation concerning a
penalty phase exhortation, that is to say, after

the jury has found guilty of murder as to -

exhortation as to penalty - Lowenfield v Phelps is

484 US. The exhortation is at page 235.

The minority opinion in Lowenfield v Phelps

contains a passage at page 252, which would suggest

that there is a large level of disagreement at

federal and State level in relation to the

"coercive nature of the traditional Allen charge".

That appears at the top of page 252.

So, it would appear that although a fairly

coercive exhortation has been given in the United

States following Allen's case, the courts are in a

state of disagreement as to whether or not such a

strong exhortation should be given. In Australia

the position is much less clear as to the current

state of authorities. The Queensland case of

Brown, which is on my list of authorities, 43 A

Black(2) 9 24/8/93

Crim R 340, approves Shoukatallie, disapproves Watson. That is in that case at page 342. In

fact, the exhortation in this case is quite similar

to the exhortation given in the instant appeal. At

page 342 there is reference to the:

omission to refer to the need to remain

constant to a view which cannot be honestly

changed.

In the case of Brown, the Court of Criminal

Appeal expressed the view that the reference to

cost and inconvenience was not the aspect of the

exhortation which caused difficulties. What was

the fatal failure was the failure to refer to the

need to hold on to an opinion honestly held.	In
Victoria - - -

DEANE J: That Queensland direction has some phraseology

that answers my problem in understanding

"collectively", and that is while that is your

individual responsibility to your own conscience it

is a responsibility that you exercise within the

group of 12, which keeps it as an individual

responsibility but in a collective environment.

MR GAME:  Yes. The position in Victoria is not entirely

clear. In Gallagher's case, which is not on my

list but it is on the Crown's list, Gallagher,

(1986) VR 219, the court appeared to accept

Shoukatallie as an appropriate exhortation at

page 246, but the question in Gallagher was a

different question. The question in Gallagher was

a question about an extraordinarily long period of

deliberations and whether or not that vitiated the

verdict. So Gallagher is of limited assistance.

DAWSON J:  What is the aim of the exhortation? A legitimate

exhortation?

MR GAME:  In colloquial terms I suppose the aim of the

exhortation is that if somebody on the jury is

being quite unreasonable, then it provides a way in

which the judge says to the jury, "Now, come on,

listen to what everybody else is saying. Do not be

unreasonable, the other people in this jury might

have something sensible to say. Listen to what

they have got to say." Or, "Just because you have

come to one conclusion about the case does not mean

that what other people have to say about the case

is nonsense" .

DAWSON J: But that is something that should be given at the

beginning, not towards the end of their

deliberations.

Black(2) 10 24/8/93

MR GAME:  Something along those lines could very usefully be

said in the body of the summing up. Nothing was

said in this case, and nothing normally is said

along those lines. In Watson's case and in

subsequent English cases, there has been reference

to the fact that either the exhortation should be

given in the summing up or after a majority
verdict, so there seems to be approval in those
cases of the giving of those sort of directions in

the body of the summing up itself.

DAWSON J: Because if it is given later, it really is an

exhortation to bend a little in your views.

MR GAME: That is, in our submission, very precisely what it

is.

DEANE J:  One of the problems seems to be that it is always

given with some surface reference to being loyalty

or oath, but in a way that elides what that means

and mixes it into compromising to get a result.

MR GAME:	In South Australia, in my experience, they never give an exhortation, and I have never seen a case
and never heard an exhortation, whereas in
New South Wales they give them very regularly.

There is another Victorian case of Cartledge,

(1956) VLR 225 .. At page 227 there is a useful

commentary on the use of this language "give and

take and adjustment of views within the scope of

the oath". The second sentence after that:

It may mean that a juryman is to compromise

with the others in coming to a verdict. If

that were its meaning, we do not at all agree

with it.

We would submit that there is a risk of such a

conclusion being drawn from a direction along those

lines, particularly when all - - -

BRENNAN J:	Which part of the page is that, Mr Game?
MR GAME:	Page 227 at about point 2 to 4, the paragraph

beginning:

There is little danger, we think -

and then, the next sentence:

It may mean that a juryman is to compromise with the others in coming to a verdict.

Again, it would depend upon context but the context

in the instant appeal is a context in which nothing

Black( 2) 11 24/8/93

was said which would detract from that impression

having been created.

There is a Western Australian case, from which

I will not read, called McMahon, (1984) 15 A Crim

R. The Western Australians appear to have

followed in the past, the Shoukatallie direction,

but Watson, of course, post-dates the case of

McMahon. In New South Wales, exhortations along

the lines given in this case have been approved in
many cases, and this case itself is a case which is

cited with approval for an exhortation given in

these terms; that is to say, Black is cited as an

authority supporting exhortations along these

lines. In a case of Judge and McKinney, which is

the precursor of McKinney and Judge in this Court,

(1990) 49 A Crim R 7, at page 17, Justice Clarke

approved Watson, followed with the words further

down the page:

If the jury had returned quickly with their

verdicts then there may have been some feeling
of uneasiness but as it transpired the jury

considered the matter for another eight hours

and this does not suggest oppression.

It would appear from the bottom of page 16 to the

top of page 17 that the exhortation given in

Judge and McKinney was different than the

exhortation given in this case because it says, at

the top of page 17:

His Honour more than once referred to a juror

being able honestly to bring themselves to a

different view or being unable honestly to do

so in a manner consistent with the juror's

oath.

I have not put the cases on my list of

authorities, but there are a number of cases in New

South Wales where an exhortation such as that given

in this case has been upheld and, as I said, Black

itself - this case itself - is cited as an

authority for upholding exhortations given in these

terms.

DEANE J:  Mr Game, would it be asking too much to ask you to

arrange all the relevant cases that you have seen

in an order as to jurisdictions, and so on?

MR GAME:	No, Your Honour.
DEANE J:	And let us have it?
MR GAME:	Most certainly.  I will do so. That is, in fact,

the sum total of the researches. Those are my

submissions in relation to the exhortation point.

Black(2) 12 24/8/93

DEANE J:	What about the various law commission reports on
juries in recent years, I mean, on majority

verdicts, and so on; have any of them adverted to

this question that you are aware of?

MR GAME:	I have not researched it, but I will - - -
DEANE J:	I am not conscious that they have.  I was just

wondering whether they had or not.

MR GAME:  There have certainly been reports on juries by law

reform commissions at State and federal level, and

I will make some inquiries as to whether anything

appears in those.

DEANE J:  Thank you.

MR GAME: That concludes my submissions in relation to the

exhortation point, which brings me to the

confessional material in the second trial.

DEANE J:  The exhortation point only applies to the first

trial, is that right?

MR GAME:  Yes, Your Honour.

MASON CJ:  Mr Game, it may be convenient to adjourn now. We

will resume at 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr Game.

MR GAME:  If the Court pleases. The confessional material,

the subject-matter of the ground concerning the

failure to properly direct in the second trial,

appears in the evidence of Detective Torning at

page 203 of the appeal book.

The appellant, at the time this admission was

allegedly made, was in custody. These alleged

admissions were uncorroborated and the Crown case

substantially depended upon the confessional

material. It is not apparent from reading the

admissions as they were recounted to the jury, but

the admissions are, in fact, the same admissions

which were relied upon in the first trial, and they

are edited so that the plural is made to read as

the singular. So that, for example, the mere

Black(2) 13 24/8/93

change of the word from "both" to "it" could

encapsulate one or other of the fires.

DEANE J:  I do not understand what you have just said.

MR GAME: Perhaps, if I could just show Your Honour the

statement that was the - - -

DEANE J: If you just point to something in the transcript

and say what it would have been - - -

MR GAME:  Yes, well to give an example, take line 20:

Are you admitting you lit it?

was, in fact:

Are you admitting you lit both these fires?

DEANE J:  How do you do that?

MR GAME: That is what the admission was.

DEANE J: Are you telling us that, or are you able to point

to some passage in the transcript?

MR GAME:  There is no passage in the transcript. I am able

to say that because I have read the detective's

statement and the admissions in this case are

precisely the same, word for word, as the

admissions relied on in the Judge Gibson case, so

that - - -

DEANE J: But, is it the same conversation?

MR GAME:	It is exactly the same conversation.
DEANE J:	I mean the same occasion.
MR GAME:	Yes.
BRENNAN J: But, it is not, is it?
MR GAME:	It is exactly the same conversation.

BRENNAN J: But, why would this conversation be given in

Judge Gibson's case?

MR GAME: Well, because the police, according to their

account, went in and said, "We would like to

discuss these fires with you," and then he said,

"Yes, I lit it," and they said, "Are you admitting

you lit both of these fires?" and he said, "Yes, of

course, I did," and then, "but you will never prove

it." That is the alleged admission, and then that

went to the jury in both cases as if that were the

admission in the singular.

Black(2) 14 24/8/93

McHUGH J: But, I mean, this is a very unsatisfactory

practice. It is one thing to edit a document that

you put before a jury, but this detective has sworn

that the accused said, "So what if I did it," and

that is not what he said at all.

MR GAME: That is right. That is not even what he said he

said. That is correct.

DEANE J: But you are not telling us, are you, that this is

something that was done by consent of everybody to

protect your client?

MR GAME:  It would seem that that is the reason why it was

done.

DEANE J: What? Everybody agrees he gives a false account

of the conversation?

MR GAME:	Yes .
DEANE J:	Does he cross his fingers or something?

MR GAME: This only became apparent to me when I compared

the admissions that appeared in the appeal papers

in relation to the Judge Gibson trial with what

appeared in the appeal papers in relation to the

Judge Collins trial, and then obtained the

statement of the witness and saw that, in fact, the

admissions were in different terms than, in fact,

they were put to the jury.

DEANE J: But it is done to protect the accused.

MR GAME:	Yes.
BRENNAN J:	And the witness was Detective Sergeant

Llewellyn?

MR GAME: Torning is this one and his partner - - -

BRENNAN J: Torning, yes. And it was on 20 January 1988

that this conversation was said to have taken

place?

MR GAME:  Yes, Your Honour. Now, in the summing up the

matter is dealt with at pages 293 and following.

At the bottom of page 292:

then we have the piece of evidence which the

Crown relies upon as critical to the case

against Black -

then there is a reference to the interview. Then,

at page 294, that actual portion of evidence

appears. Page 294, line 21:

Black(2) 15 24/8/93

Well of course the Crown agrees that apart

from that, they haven't got any evidence,

other than that he was in the general vicinity

and was in association with the place -

Page 295, line 6, a reference to:

and if there is no evidence to the contrary,

then without any quibble, he's guilty.

Then certain matters that were argued by counsel

for the accused appear at the bottom of page 295 to

296, and the Crown's submission is put at page 296

and then His Honour says:

so those are the two opposing things.

And then at page 297:

If you are not satisfied beyond a reasonable

doubt, then the Crown has got no position

because there is no other evidence other than
suspicion which is not evidence directly to

implicate the accused in this fire.

Then at page 301, reference to the Crown's case,

the Crown refers to:

his availability to be involved; his

presence ..... his close association with the

Accused Spittles and ..... his admission -

So that it would be fair to say in this case that

the Crown case depended very heavily, if not

entirely, upon the confessional material.

Now if one goes back to Detective Torning's

evidence at page 208, line 36, he said the police

were:

highly suspicious or perhaps beyond that.

Page 209 he gave some explanation as to why they

follow the particular procedure followed - that is

lines 5 to 12. Then at page 211, first of all he

said that he recorded in a notebook five minutes

later, and that is in direct conflict with

Detective Llewellyn's evidence, which I will come

to shortly, and he said, why they did not show the

notebook to him:

I think we discussed it, yes and we decided

that it wouldn't be worth it.

That is Detective Torning's evidence. Then if one

turns to Detective Llewellyn's evidence, he gives

Black(2) 16 24/8/93

evidence of the admissions at page 215, and at

page 216:

Why didn't you direct him to take notes?

Detective Llewellyn was very much senior to
Detective Torning, but both were detective

sergeants; so both were quite senior, but Llewellyn

was very much senior to Torning.

I couldn't see why we would want to record it,

that conversation.

Then page 216, line 30:

they usually are ready and willing to take

notes ..... isn't that correct?	A. No that's
not correct at all.

Line 32. That evidence stood uncontradicted. Then

at 217:

how long after you'd spoken to Black did

Detective Torning make that note in his

notebook? A. It was directly after the

accused was charged ...... it takes roughly

forty-five minutes -

so he has got an entirely different time period.

The explanation for not showing the note:

Well those notes are notes for

Detective Torning and my purposes, they've got nothing to do with Mr Black.

So we would say that the Crown evidence itself, in

relation to this confessional material, was totally

unsatisfactory. The case depended very

substantially on this confessional material. It

was a case that called for clear directions. Those

directions were sought and directions were sought

in terms of Justice Brennan's judgment in Reg v

Carr. That appears at page 74 of the summing up,

which was not included in the appeal book, but I

had it sent up to the Court. If the Court does not

have it I will hand up fresh copies to the Court.

The part which has got a black mark on it reads -in

Reg v Carr in the first line.

The nub of the response of the trial judge appears to be that he thought that he had given

appropriate directions. He said he did not use

those magic words but he thought that he had made

it perfectly clear, and we would submit that he had

not put any of the things that had to be put in

relation to the confessional material.

Black(2) 17 24/8/93

The Court of Criminal Appeal disposed of this

ground on the basis which appears at appeal book

page 342. The Court of Criminal Appeal relied upon

the fact that counsel had referred to particular

matters, and that is at lines 16 and 17 and

following, and we would submit that that is clearly

inadequate. Then the Court of Criminal Appeal

referred to the fact that the trial judge had

referred to the fact that the jurors when

evaluating evidence should look to see if it finds

any substantial support. That was in a totally

different part of the summing up which appears at

page 269, quite different part, but in any event,

the jury could not possibly have known that this

evidence fell into such a category because, from

their point of view, it would have been

corroborated.

McHUGH J: Excuse me, what was the page, Mr Game?

MR GAME:  342 of the appeal book. I am sorry, I will go

back. I take it everything I have just said was at

a time when Your Honour did not have that page.

DEANE J:  I was looking for it, too.

MR GAME: Sorry, I apologize. Page 342 is the Court of

Criminal Appeal's response. At line 16 and following the Court of Criminal Appeal referred to
the fact that the trial judge had reminded the jury of counsel's observations, and that is true, but we

would submit that that is clearly inadequate, and

in any event was put in such a way as to say,

"Well, this is what the defence said and this is

what the Crown said, and that is the two sides for

you, and it is for your consideration." Then, at

line 20 is:

Furthermore, His Honour gave the jury a

direction 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 if it is standing alone,

they should approach it with more caution.

His Honour did give the jury such a direction. It

appears in appeal book page 269, and of that we

would make the submission that, firstly, it is in a

totally different part of the summing up, and

secondly, according to that direction the

confessional material did obtain substantial
support from some other source.

Detective Llewellyn supported Detective Torning.

So, that clearly does not go anywhere near the

minimum requirements for a direction in the
circumstances. That is the position as it stood in

the Court of Criminal Appeal.

Black(2) 18 24/8/93

DEANE J:	Where is the part where His Honour reminded the
jury of the observation by counsel?
MR GAME:	That is at a passage which I referred to,

commencing at the bottom of page 295, going all the

way through to page 296. Line 23 is the Crown

response, and then His Honour said:

so those are the two opposing things.

So, he has reminded the jury of counsels'

submission and that is that passage.

Now, the directions which, we would submit, should have been given, are set out on the final

page of my written submissions. Broadly speaking,

2.a) to d) are taken from Justice Brennan's

judgment in Carr, at page 330. e) is taken from a

portion of McKinney, at pages 476 to 477 but, we

would submit, that that is clearly a direction that

the jury should be given in any such circumstances,

and f) and g) are taken from Justice Deane's

judgment in Carr, and a portion of McKinney.

McHUGH J:  I may have missed something. I am sorry to

interrupt you, Mr Game, but - it is all right.

MR GAME:  To put it very shortly, those are the submissions

that we make in relation to the confessional

material. I have not identified the other portions

of evidence that were, in fact, in the case against

the appellant, and if the Court desires me to do

so, I could very briefly indicate what other

evidence there was. But, bar that one matter,

those are the submissions that I have to make in

relation to the confessional material. Those are

my submissions.

MASON CJ: Thank you, Mr Game. Mr Blanch.

MR BLANCH:  May it please the Court, if I could hand up an

outline of submissions for the Crown.

MASON CJ: Yes, Mr Blanch.

MR BLANCH:  If the Court pleases. The first six paragraphs

relate to the exhortation and, unless the Court

wishes me to go through them, they are set out as a

treatment of the various authorities with a view to

ascertaining whether the change to the direction

recommended by the Court of Appeal in England in

Watson's case has been acceptable in other

jurisdictions, and what the practice has been.

There are a couple of matters that arose during the course of my friend's submissions.

Your Honour Justice Deane was concerned about the

Black(2) 19 24/8/93

word "collectively" and picked up some aspect of

that from Brown's case in Queensland. I draw the

Court's attention to Watson's case, (1988)

1 QB 690, and the model direction that is given in

that case at page 700 includes that very phrase.

It is said there:

No one must be false to that oath, but you

have a duty not only as individuals but

collectively.

And then it goes on in another part of that model exhortation:

There must necessarily be discussion, argument

and give and take within the scope of your

oath.

One of the other things that I would make a

particular note about, in respect of Watson's case,

is at page 695 where, in dealing with

Lord Goddard's judgment in Walhein, particular

attention was drawn to the fact that the direction

given, or under scrutiny there, was one which

invited jurors to subordinate their views to those

of the majority and concur in the verdict. And, I

just draw particular attention to that because

obviously that is one key matter of concern, when

looking at an exhortation, as to whether a

particular juror is being invited to give up a

genuinely held view for the sake of reaching a
verdict, and also because it picks up, I think, in

the Canadian case of Alkerton, 78 CCC (3d) 576,

which was decided by the Ontario Supreme Court, but

which then went to - 576 is the very short judgment
of the Canadian Supreme Court, approving the
judgment of the Ontario Court of Appeal. The

judgment of the Ontario Court of Appeal is in

72 CCC 184.

And, it was just that in that second report of

Alkerton in the Ontario Court of Appeal, at

page 189 there is just a small passage in the

judgment, at about point two of the page:

The point to be taken from all of the

authorities is that a jury must not be tempted

to abandon an honestly held view of the

evidence in favour of extraneous concerns. It

is a very delicate situation when a deadlock

appears to have occurred. No member of the

jury should be encouraged to avoid the oath,

which is solely to bring in an honest verdict

according to the evidence.

And, goes on to discuss various forms of

exhortations that have been made.

Black(2) 20 24/8/93

It would appear that the New Zealand

Court of Appeal in R v Accused is the only other court to actually come forward with a model form of

direction. The other, and even then, as I pointed

out in my submissions, a subsequent case of Tennant

in the New Zealand Court of Appeal said, "Well, it

is a matter of fact in any individual case." And

it is, in our submission, indisputably true that that is the situation. The essential inquiry is

whether any undue pressure is being brought on a

jury in a particular case, any undue pressure to

reach an inappropriate verdict, any undue pressure

which would cause any juror - - -

DAWSON J:  You say "undue pressure", or do you mean

"pressure"?

MR BLANCH:  Do I mean pressure? No, Your Honour, I do not

think - I would submit that there is nothing wrong

with bringing some pressure to bear on a jury to

reach an agreement and, indeed, the policy of the

law has always been, and ought to be, to encourage

a jury to reach an agreement - a proper agreement.

DAWSON J: Encouragement is one thing, and pressure is

another.

MR BLANCH: Well, Your Honour, it depends

BRENNAN J: Well, you are right in saying that it is the

policy of the law, they used to be carted, did

they not?

MR BLANCH:	I am sorry Your Honour.
BRENNAN J:	The jury used to be carted, it was certainly the policy of the law.

MR BLANCH:  Yes, Your Honour. It was clearly a matter of

encouragement by pressure, and it may be a question
of the difference between the words "pressure" and

"encouragement". I am using the word "pressure",

Your Honour, in the sense of encouragement, that

encouragement is the pressure. The question is

when that pressure or encouragement becomes

improper pressure or encouragement. It is one

test, of assessing when that occurs, to define that

point as the point where a juror gives up an

honestly held believe and is prepared to have it

subverted into the vote of the majority. So that,

in fact, you end up with a majority verdict with a

juror who is feeling as though he has not abided by

the oath and concurred in a verdict with which he

does not agree.

DAWSON J:  Do we know - there is a reference to this in one

of the cases, I cannot recall which one - but do we

Black(2) 21 24/8/93

know whether it is our experience that after an

exhortation is given very frequently the jury comes

in quickly with a verdict?

MR BLANCH:  No, I do not think I am aware of any case or

statistics dealing with that, Your Honour. My own

experience about that matter is that often it does,
but it would be very hard to quantify it because

there are plenty of other times when jurors do fail

to agree. I think the statistics are that about 2

or 3 per cent of trials in New South Wales result

in disagreements of juries.

DAWSON J:	How often is the exhortation given?
MR BLANCH:	I do not know how often the exhortation is

given, Your Honour.

McHUGH J: Almost always, in my experience. When I was at

the bar I never struck a case when a judge did not

give it.

MR BLANCH:	Your Honour was so successful as a defence advocate the jury was always confused and could not
reach an agreement.  But it is only when the jury
comes back, either at the end of the time or comes
back with an indication of a failure to agree that
the exhortation is given, but it is habitually
given. Certainly, in New South Wales it is always
given when that occurs. There are recommended
forms of exhortation.
McHUGH J:	Even in civil cases it is given in New South

Wales.

MR BLANCH:  Yes, Your Honour. It is not given as a matter

of course when a jury is ordinarily being sent out.

It only occurs when the jury is having difficulty.

But it is our submission that it would not be

appropriate to lay down a form of words for the

exhortation, that is a matter that needs to be

assessed by judges in the circumstances of

individual cases. References to expense, which

have been criticized in some of the judgments, in

Watson, for example. The fact of the matter is

that one wonders what impact such a statement has

on a jury in any event because it would have to be

a fairly obtuse juror who was not aware of the

costs and delays in the criminal justice system and

who would not appreciate that there was a degree of

expense and difficulty and wastage of time and

inconvenience involved in a disagreement.

The fact of the matter is that all those things are true. The question is whether reminding

the jury that those things are true exerts any

improper pressure to bear on jurors. It would be

Black(2) 22 24/8/93

our submission that it would be a healthier

attitude for the criminal courts to take to accept

modern day juries as intelligent, reasonably well

educated people, who have a certain fundamental

understanding of the way the system works and that

their sensitivities are not so fragile that they

would be influenced by - - -

McHUGH J:  Is that correct? I thought that the modern

research tended to show that jurors were quite

bewildered as to what their functions were, and

steps were being taken to try and improve that

situation.

MR BLANCH:  Your Honour, it may be so to - or certainly that

may be so in some cases. It would need to see the

result of the research and what that was directed

at. There has been a change in the jury roles in

New South Wales from a point where police selected

the people who were to go on the jury roles, and no

doubt at that time people were better educated and

came from a different level of society to the point

in New South Wales now, where they are simply
chosen off the electoral role, so you get a broad

spectrum of people.

McHUGH J:  What about the jury exemptions in criminal

trials. It used to be said once, in

New South Wales in the civil side, that the average

intelligence of the jury was less than the average
intelligence in the community, because there were

people in all sorts of occupations were either not

eligible for community service or entitled to be

excused.

MR BLANCH:  Lawyers are certainly exempt, Your Honour. The

exemptions were substantially reduced. It did

extend to all public servants and a whole range of

people at one stage, and that has been very

substantially reduced, so there is a very limited

range of exceptions.

The point that I would wish to make is simply

the fact that in order for the criminal justice

system to function, I think it is necessary to

assume that there is a degree of intelligence and

common sense about the people who serve as jurors

and that it would be wrong to assume that their

sensitivities are so fragile as to be affected by a

statement, for example, that it was expensive.

DEANE J:  Can I take you to Alkerton where they set out a

passage from that extraordinary Shoukatallie case.

In that passage you have got the Privy Council

referring to the juror in the minority and they

then say:

Black(2) 23 24/8/93

if, on so doing, he can honestly bring himself

to come to a different view and thus to concur

in the majority, he should do so.

Surely the ordinary juror, in a minority, is

going to regard that as saying to him, "Now, try

hard to abandon your view and go along with the

majority for the sake of getting a result and throw

in and avoiding all the expense and inconvenience."

It has got no other meaning.

MR BLANCH: With respect, Your Honour, it has, and the other meaning is what it says, and that is, "can honestly

bring himself to come to a different view."

DEANE J: But why should he try to bring himself to come to

a different view?

MR BLANCH: Well, Your Honour, it is an invitation that is

extended to jurors in other situations where - put in another way, it is said, "We all form views; it

may be that you have formed a view and you are

excluding other views; take account of what other

people are saying; think about your view and put

them together and see if you can honestly change

your view".

DAWSON J: But may I take that up? If there are two sides

to a question and the juror takes one side, he has

been told to take the other side.

MR BLANCH:	Yes, Your Honour.
DEANE J:	Or to try to take the other side, and if he can

honestly convince himself to take the other side -

DAWSON J:	Even though he does not believe it.
DEANE J:	- - - he should do so.

McHUGH J:  And it approaches it on the basis that there is a

prima facie case almost against the minority juror.

The majority jurors are not told that they should see whether honestly they can concur with the minority view.

MR BLANCH: Yes. Well, certainly that is - I am just trying

to reread this - and whether that exhortation is directed at the minority and, yes it is, in that

case; yes, that point is correct, Your Honour, in

that context. But it depends on the circumstances.

If the invitation is merely an invitation to

discuss, not to take a hard and fast view, but to

go back - all the jury is really being invited to

do is to go back into the jury room to open their

minds to arguments, to listen to what other people

Black(2) 24 24/8/93

are saying and to apply the process of reasoning

again, that it is in everybody's interest that

there should be an agreement, if that is possible.

DEANE J: But is not the real problem here that these

exhortations, as everybody seems to call them, are
really directed to the case where the judge has the

feeling that there might be, as I said earlier to

Mr Game, a juror sitting in the corner, who is not

prepared to talk and, no doubt, if you have the

juror adopting that approach, they are good and

fair. But, in the ordinary case, where you have

got jurors sitting around a table, all trying to

participate, and possibly the majority saying to

the two or three holding out, "Look, we want to get

away, you are holding up a verdict; on your

approach everything is going to be wasted" and so

on, and then they go into the court and the judge

says this. They are all going to look at the

minority and say, "I told you so".

MR BLANCH: Well, Your Honour, it depends what is said. On

the other hand, might I ask rhetorically: is not
the criminal justice system entitled, when the jury

is sent out, to expect that the jury in the jury

room is going to reach an agreement if that is at

all possible; that is it desirable, at some stage,

to reinforce to them, if they are having trouble

reaching an agreement, that it is desirable to

reinforce the fact that there has to be discussion

and a degree of open-mindedness about other

peoples' views and, at the end of the day, if they

rethink the situation, think about the logic and

common sense of their own point of view, that it

may be that they will change their minds.	On the
other hand they may not.

But from the policy point of view of the criminal law it is desirable and certainly it

always has been a major policy of the criminal law

that once you have a jury trial that there should

be a verdict arising from the jury trial, going

back to days of deprivation, and so forth, until

the jury had reached its verdict. But that is the root of the rule, and the policy remains the same.

Undoubtedly we should be careful to avoid a

situation where a juror abandons an honestly-held

view simply for the sake of getting a verdict, and

that is the danger.

McHUGH J: But there are always dangers. Small group theory

holds that people will make decisions in small
groups, that they would not make if they were

allowed to make an individual decision.

Psychological pressure is put on people in groups.

So it is difficult enough for an individual to

maintain a view in a group discussion; even more

Black(2) 25 24/8/93

difficult when the majority is against that

particular view. But what has got to be guarded

against is anything that might impair the

independence of view of any of those jurors.

MR BLANCH: Yes, Your Honour. But in doing that, it is my

submission that we should not be too precious about

juries and the way jurors operation.

McHUGH J:  I must say, at the moment I do not have any real

trouble about the costs and expense. I think it is

legitimate to put to a jury that the importance of the occasion and drawing to them the necessity for

a decision and how important this is, both to the

accused and to the community, as long as the jury

know that each individual is entitled to stick to

his view.

MR BLANCH:  Yes, Your Honour, that is one aspect. One

answer to this problem is to - you can take a number of lines looking at the thing, but one

answer is to ensure that there is some clear

statement to the jury, at the end of the day, that
they are entitled to disagree and that that is
unfortunate if that happens, but if it happens it
happens, and there you are. A statement like that
at the end of any of these exhortations might cure

the problem.

MASON CJ: Well, that is precisely what was done in the

New Zealand statement.

MR BLANCH:  Yes, Your Honour.

MASON CJ: And I must say, for my part, I do not see that

the other case, Tennant, the subsequent case,

resiled from the statement that was approved in

Reg v Accused.

MR BLANCH:  Yes, I do not suggest that they do, Your Honour.

I am just saying that, in Tennant's case, they were

looking at a case and they were saying, "Look, we

have laid down a general rule here about these

things". In this particular case of Tennant, we do

not think that there was a problem, but they

certainly did not resile from the idea that there

ought to be a general statement, and it is the New

Zealand Court of Appeal that is now in line with the English situation about that.

But, in our submission - I am sorry, I was

going to say about Watson's case, that I read out

the bit in Watson's case where Walhein was referred
to, and they criticize the word "subordinate" the

view. But they then, themselves, in the passage

that I referred Your Honour Justice Deane to, used

the words "there has to be some give and take", and

Black(2) 26 24/8/93

the words "give and take", on one interpretation of

them, might be interpreted as carrying almost the

same message. And it seemed that the distinctions

that they were drawing were getting to be fairly

fine distinctions on that basis, which is where I

was coming from to say that, perhaps, the better

solution is to ensure that, at the end of whatever

is said, there is some more general statement about

the right to disagree, however unfortunate that may

be.

In this particular case, I would submit that

the exhortation given by the judge was an

appropriate exhortation that does not raise the

questions, or the problems, that might be thought

to have caused the trial to miscarry. The first

thing about it is that it was a situation where it

was an exhortation given after the jury had been

out for a couple of hours, and then over lunch

time, and then come back and obviously expressed

some difficulty about agreeing.

The judge, faced with that sort of a statement

before the full retirement period had expired, was
obviously in a position where he would want to say,
"Well, we are not just going to accept the fact

that the jury is now coming back and saying we

cannot agree". He would want to give them some

sort of exhortation and say, "Look, go out and

spend a bit more time than two hours before lunch

and lunch time considering your verdict".

So that, the circumstances in which it arose

was that, and then he went through these various

matters, and he certainly did not use a word like

"subordinate". He did use the words "give and

take", he did use all the expressions about

expenses and public inconvenience and hardship, and

if that be found to be a fatal statement then it is

a fatal exhortation. But he did not - in my

submission, that part of the exhortation is not

fatal. It may be of some relevance, and it may be

that the Court would want to say something about

the fact that they are words that, perhaps, are

best avoided in case they might exert some

pressure, or inappropriate pressure on the juror.

DEANE J: But, Mr Blanch, can I just take you back, for a

moment, to page 61, and you started reading from

lines 6 or 7. He tells them that:

you have a duty, not only as individuals but

also collectively.

Well, now, I would venture to suggest that that would puzzle the average juror as to what is my

collective duty. His Honour then says:

Black(2) 27 24/6/93

No one of you should be false to the oath you

took but in order to return a collective

verdict -

now, that is after the collective duty -

a verdict of you all, there must necessarily

be discussion and argument and a certain amount of give and take and adjustment -

MR BLANCH:  Yes, Your Honour. ,

DEANE J: Well, now, if you disregard, within the scope of

that oath, which may or may not have a precise

meaning to a juror, what His Honour is telling them

is that they have a collective duty, that a

collective verdict is involved, and in order to

return that collective verdict in the context of

their collective duty, they have got to give a

certain amount of "give and take and adjustment". Well now, that seems to me to be the very sort of

thing that is calculated to oppress a minority

juror who is hanging out for a particular verdict,

because he is convinced of it.

MR BLANCH:  I would say, in reply to that, Your Honour, that

it is done in the context of the judge having said

they have individually taken an oath, and they

should not be false to the oath that they have

taken. I would also say, Your Honour, that there

is not a lot of difference when you read those

words to the model direction that the English Court

of Appeal have set out in Watson, and it was

precisely because those words, and that is why I

draw Your Honour's attention to the prescribed

exhortation - if I can call it that - in Watson's

case because it is exactly the sorts of concepts

that the English Court of Appeal say, "Well, that

is fine to do that".

DEANE J: That might be so, but why should a minority juror

who is prepared to listen to argument and weigh the

rights and wrongs, involve in any process of give

and take to reach a collective verdict? What does

it mean?

MR BLANCH:  It does not mean that they have to give up an

honestly held view or be forced to their oath, and

they have been told that. If it does not mean

that, it means that they have a collective duty

because they are sworn in as a jury to return a

verdict and that is their collective duty to do

that if they can. I appreciate the words "if they

can" are not added but it is my submission that the

mere fact of telling the jury that does not invite

them to submerge their own honestly held views and

beliefs. In fact, what the judge has told them is

Black(2) 28 24/8/93

do not do that:  "No one of you should be false to

the oath you took".

DAWSON J:  Why is it suggested that it is inappropriate to

give the direction until the jury have been out for
a considerable time, or at least have reported

trouble?

MR BLANCH:	I am sorry, why is it - - -
DAWSON J:	Why is it suggested inappropriate to give the exhortation except in those circumstances -
inappropriate?

MR BLANCH: Well, Your Honour, because the jury is normally

told what their duty is and to go and assess the

evidence and see if they can return a unanimous

verdict.

DAWSON J: There seems to be a bit of guilt about it, that

it is only resorted to as a last resort.

MR BLANCH:  No, Your Honour, it is because the policy of the

law always has been to attempt to get a verdict if

at all possible and - - -

DAWSON J: Without the exhortation.

MR BLANCH: Without exhortation, in the first instance, but

with exhortation if necessary. With exhortation if necessary only if the exhortation is an appropriate

exhortation. And the justification must surely be

that it is known that a group of jurors will go out

into a room - and people do take fixed positions

about things - and say, "We cannot agree". The

criminal law has always worked on the basis of
saying, "Do not take such a strong, firm view about

things, go back and have a think, listen to what

other people are saying. Do not just close your

mind. Think about it reasonably, rationally," et

cetera, "there must be some give and take."

McHUGH J:  What about that expression. Why should there be

"give and take"? Particularly in a case where

there are a number of accounts, I would have

thought that was about the worst thing you could

say to them.	You know, "I will acquit him on this
and convict him on that".	What is there to give

and take, given the way the fact that you think the

verdict should be not guilty?

MR BLANCH:  In this case there is only one charge,

Your Honour.

McHUGH J: Well I know, but nevertheless, in this case, what

are you going to give up and what are you going to

take?

Black(2) 29 24/8/93

MR BLANCH: Well, Your Honour, it is a matter of exchanging

views and reasons for holding a particular view; it

is a matter of discussion between people, listening

to other people's views and expressing your own.

DEANE J: But that is not what it says; "give and take" is

in a bartering context, it is not a discussion.

MR BLANCH: Well, that is a matter of interpretation,

Your Honour. It was the point that I was drawing,

in fact, out of Watson's case, because in Watson's

case they criticize the words "subordinate your

view to somebody else" and then approved the words

"give and take".	But they are words that have
always been used and are widely used.	I cannot
remember now whether - - -

DAWSON J: Well, that is what is being questioned. One can

understand a jury being told not to close their

minds too early. The appropriate time to tell them

that is when they go out; not after they have

closed them.

MR BLANCH: Certainly that could be done, but there is no

point in doing it at that stage if no problem has

arisen; I mean, the exhortation has only ever come

about when a problem has arisen and it is seen as

being necessary to attempt to unclog the problem

that has arisen. I think in the United States they

refer to this, not as an exhortation, but as the

dynamite charge, because the effect of it is to

unclog the blockage that has occurred in the

verdict finding process.

McHUGH J:  The hypothesis upon which the direction is given

is that a jury is deadlocked. I mean, the jury

themselves cannot agree and they say they cannot

agree and then, in my experience, judges never

discharge them then; they bring them in and they

give them a direction, sometimes something like

this, sometimes a variation of it, but the whole

point is to get them to agree, and to get people to

agree who are already in fairly solid positions of

disagreement.

MR BLANCH: 

Yes, well that is certainly true, Your Honour,

and there has to be some encouragement about that,
and the minimum amount of encouragement is an

encouragement for there to be "give and take" in

their reasoning process amongst each other; not
giving up their positions. That could only be a

problem if you encourage them to give up their

honestly held views and take up somebody else's,
but the exhortation is an invitation to further

reasoning, discussion and argument, and if it is an

invitation to further reasoning, discussion and

Black(2) 

24/8/93

argument, then the "give and take" is in terms of

simply dealing with each other in that context.

If there were a danger of it being thought to

be something like subjugating your own view to

somebody else's, then you would take the view that

the Court of Appeal took in England about that, but

that is a court that certainly had no problem about
the use of that expression, and neither, I think,

did the Canadian Supreme Court in looking at

Alkerton from Ontario - and I cannot remember now

whether that was a matter that arose in the

New Zealand context - which is why the ultimate

answer to this problem may not be so much as

arguing about the meaning of these words that are

given to juries, but rather ensuring that they do

understand if it needs to be the policy of the law

that they do understand the right to disagree if

they cannot, at the end of the day, honestly reach

an agreement.

McHUGH J: But is it not more appropriate that whatever

direction is given on this topic, that it should be

given at the same time as the directions on

unanimity?

MR BLANCH:  Your Honour, the directions on unanimity are not

always given. In fact, it is probably hardly ever

given in the ordinary course of trials.

McHUGH J:  It certainly used to be given by counsel at the bar table when I - - -

MR BLANCH:  Yes, Your Honour. But it is something that,

very often, judges would refuse to do when invited

to do so at the end of a summing up, and I think it

is more common now than it used to be for that

direction to be given. But, the point is, in that

respect, that if there were to be a charge

incorporated in the ordinary charge, what then

would occur if, as in this situation, after a very

short retirement, the jury came back and said, "I

am sorry, we cannot agree."? Is the judge then
going to say at 2 o'clock in the afternoon to the

jury, "Well, thank you for listening to what I had

to say, you are now discharged", and have another

trial. That could lead to very significant

problems. As I indicated before, there are -

probably only the last time it was looked at, and

it was looked at in the context of whether majority

verdicts ought to be introduced into
New South Wales, and part of that general

discussion we found that it was only 2 or 3 per cent where there were disagreements.

However, I would suspect that there would be a

significantly greater percentage of cases than that

Black(2) 31 24/8/93

where there was some sort of an agreement after

there had been an exhortation. This sort of case

is fairly typical of its type, and in particular in

a situation where the jury had only been out for

such a very short time. It is our submission - - -

MCHUGH J: It does not necessarily always favour the

prosecution either.

MR BLANCH:	No, Your Honour.
McHUGH J:	The last case I did at the bar was a criminal

trial and the understanding was that there are 10

in favour of an acquittal and two held out for a

conviction.

MR BLANCH: 

Yes, Your Honour, as much as you can believe the

gossip about those sorts of things, that is exactly
so. It does not favour the Crown or the defence,

it can happen either way. Similarly, with majority

verdicts, it would not be expected that majority

verdicts would favour the Crown or favour the

defence. That would probably be - I do not want to

put an argument in favour of majority verdicts

here, but it is just a safety valve to ensure that

this sort of problem, the problem of a possibility

of putting pressure on jurors, does not arise which

is how, of course, the matter was generated in

England in Watson, after majority verdicts were

introduced, and it is possible in that context,
perhaps, to contemplate a different policy of the
law in relation to exhortations, than it is if, for

example, you were to adopt an approach in Australia
that you did not have exhortations at all, or you

included them in the general summing up.

If the impact of that were that you had

between 10 and 15 per cent disagreements in trials,
it would have an enormous impact on the criminal

justice system.  But in saying all of that, I am,

first of all, guessing about that figure, because I

have really got no idea, and secondly, no more than stating what the policy of the law always has been

in any event, and that is why, no doubt, it has

been such a strong policy of the criminal justice

system that there be some "pressure", or

encouragement, to juries to reach agreements. It

is a matter of some importance but, of course,

always accepting that there needs to be some

assurance that the exhortation does not go so far

as to cause a juror to inappropriately change his

mind about the verdict.

What I was going to say about that, in the

context of this charge, was that it began in those
circumstances; the judge emphasized at the
beginning the fact that they did take individual

Black(2) 32 24/8/923

oaths and they should not be false to their oaths,

but then invited them to give and take and adjust

in that context, did refer to inconvenience and, at

the very end of it, where ideally, perhaps, you

might have wished that he would have said, "But
none the less, sad though it may be, if you find
you can't reach a unanimous decision, well you just

come back and say so, and you will be discharged,

and that will be it".	What he said was, at page 62
of the appeal book:

Having said that, I nevertheless remind you

that your verdict must be unanimous.

And what I would put to the Court about all of that

just simply is this, that the charge in this case

is of a kind that has been given over a long time.

If the Court were to decide that there are some

potential dangers in this sort of charge and that

courts should be alerted to that, that is not a

basis, in this case, for overturning the conviction

on this matter; that, looked at in the context of

how this arose, looked at in terms of what the

judge said, and looked at, in particular, that he

finished at the end, perhaps not saying the ideal

thing, but nevertheless saying:

Having said that, I nevertheless remind you

that your verdict must be unanimous.

Now, it was clearly an indication to a juror who

might want to hold out that that was a right they had. I mean, it was not expressed as fully, as I

indicated, as one might wish but, none the less,

there is that expression of sentiment at the end of

the statement made by the judge. And because of

that, it is our submission that, leaving aside the

broader debate which certainly appears on a

worldwide basis to be moving in the direction of

b~ing a little more careful than judges have been

in the past in exhorting juries to reach a verdict

- although that might be said, it is our submission

that that should not result, in this particular

case, in an overturning of the conviction on that

basis here in this trial.

I will not go through all of those cases. only other thing about the exhortation is the point	The
that I made in point 6 that, in support of the
submission that I have just made, this verdict
should not be overturned, is the fact that there

was no objection taken to the exhortation that was

given at this trial, one can understand why that

would be because the sort of exhortation is a

fairly common sort of exhortation, and counsel

appearing at the trial would not have thought that

there was anything particularly wrong about it in a

Black(2) 33 24/8/93

general sense. But the fact of the matter is that

in the context of this trial no one thought that it

was unusually oppressive to jurors, and that is

another reason why, in the circumstances of this

case, there should not be an overturning of the

verdict.

In respect of the other matter, that is the

Penrith trial, I cannot add to what is said in the

submissions, which simply say that although Carr

and Duke had been decided by this Court, at that stage McKinney and Judge had not, and there were

just two observations that I wanted to make about

it. My friend drew attention to, what he described as, inconsistencies in the version given by the two

police officers. He referred to page 217 of the

appeal book, in the cross-examination of the

Detective Llewellyn, who said at line 23:

Q. Now how long after you'd spoken to Black

did Detective Torning make that note in his

notebook? A. It was directly after the

accused was charged.

Q. Well how long was that? A. Well it

takes roughly forty-give minutes to charge him so, we would've then left and made those notes

Now, he has compared that with the other

detective's evidence at page 209 at line 21:

Q. And you know the importance of recording notes in notebooks at the time in evidence in

court don't you? A. Contemporaneously --

WITNESS: Contemporaneously, as soon as

possible afterwards and that was exactly what

was done.

And then, he points out at page 211 at lines 21 and

22:  Q. How long after the conversation did you

record it in your notebook?	A.	Very
shortly afterwards.

Q.	How long, how many minutes?	A.	About
five.

Now, I am not sure that those questions were asked

with such precision or the answers given in such a

way as would indicate that there is any grave

disparity in the evidence given between those two

police officers.

Black(2) 34 24/8/93

The only other matter that I wanted to point

out - it is nothing that has not already been
pointed out in the judgment of the Chief Justice in
the Court of Criminal Appeal - and those are the
passages, and particularly the passage at page 296

of the summing up where, at line 17, His Honour

said:

it is argued that if police were not acting

conscientiously and honestly, it would be a
very easy thing to do to tie up a case where

they've been unable to get any concrete

evidence by putting some words in the mouth of

an accused. That is the suggestion, that it

would be an easy thing to do, and it's very

hard to refute.

That is the key part of what the trial judge said

about that. There are various statements both

before and after that that I have referred to where

it is pointed out that the confession was a key
part of the Crown case in that case. That was the

case of the fire where Mrs Spittles, with whom the

accused had been living, was seen to be removing

all the furniture - not all the furniture, but a

lot of the furniture and clothing, including some

distinctive items, such as a horse's head clock and

various other things which, after the fire, were

found in the home where she and the accused were

living.

DEANE J: It is an odd thing for the police and the Crown to

be saying at page 296, is it not? What is the heat

they are referring to if you have to make a false

confession to get the heat turned off?

MR BLANCH: That must have been a submission made about

being questioned in the police station,

Your Honour. But there cannot be any doubt about

the fact that the jurors' minds were focused on the

fact that the confession was a key part of the

Crown case in that particular matter, and the

judge, in a number of pages, both before and after

page 296, focused on the fact that they had to be satisfied beyond reasonable doubt the police were

telling the truth and focused on that matter in

that way, and it is our submission that those

directions were appropriate at the time that they

were given and that is not a basis upon which to

overturn that conviction.	I have nothing further,
Your Honours.

MASON CJ: Yes, thank you, Mr Blanch. Mr Game.

MR GAME:  In relation to that last matter, really, all the

summing up said was that the case depended on the

confessions, it did not say anything more than

Black(2) 35 24/8/93

that. In relation to the factual dispute between

Detectives Llewellyn and Torning, in terms of police procedures, there could be no mistake in recording a conversation five minutes after it

occurred, or some 45 minutes later after charging and, in the specificity of police knowledge, they

are two entirely different things.

Going back to the exhortation, with respect to

unanimity, the jury was directed on unanimity at

page 57 and contrary to the Crown's submissions, it

is my experience, at least, that directions on

unanimity are invariably given in summing ups in

New South Wales.

In relation to the Crown's submissions in

relation to this particular exhortation,
ultimately, in our submission, the critical failure
is in the failure to direct the jury of the right

to disagree and the direction that they will be

discharged if they do not disagree. The matter was

just simply left in the air and they were never

told anything that was remotely like a direction as to their right to disagree. If there is one thread

that runs through the cases it is the thread for

the need for that to be brought home to juries.

In relation to the failure to take objection,

this was this particular counsel's first ever trial

and I am informed from my inquiries that he did not

even know what a jury exhortation was, and it was a

very experienced trial judge, and this was a

standard form of exhortation given.

In relation to knowledge of jurors, and

education, harking back to some of the questions

raised by Justice McHugh, this was a Liverpool jury

and a Liverpool jury would be a jury that one would

expect to have a number of people who certainly

would not have even secondary education or beyond a

very limited degree; one would expect a number of	unemployed people in a Liverpool jury. Liverpool	is an area where one would expect jurors of that
particular limited ed~cational background.

In relation to the orders which the Court

makes, in the orders sought at page 352, we have

sought that the convictions be quashed and verdicts

of acquittal or retrial be made in both cases.	I
should draw to the Court's attention that the
sentences imposed were, in relation to the first trial, a sentence of a minimum term of two years

six months from 16 March 1990 to 15 September 1992,

with an additional term of six months, and in

relation to the second, a sentence of two years

from 15 September 1992, expiring on

Black(2) 36 24/8/93

14 September 1994, with an additional term of

eight months.

So that if the Court, for example, only upheld

one of the appeals, then it may be necessary to

make some adjustment in relation to, depending on

which, the orders made on the other, and that might

necessitate remittal to the Court of Criminal

Appeal for resentencing.

In relation to both trials, in view of the lengthy time served, and having regard to the

discretionary principles identified in cases such

as DPP v Nauru, we would submit that it would be

appropriate for there not to be orders for retrial
in these cases, given the lengthy time which this

appellant has spent in custody. Those are my

submission in reply.

MASON CJ:  Thank you, Mr Game. The Court will take a short

adjournment to consider the course it will take in

this matter.

AT 3.33 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.37 PM:

MASON CJ:  The Court will consider its decision in this

matter.

AT 3.38 PM THE MATTER WAS ADJOURNED SINE DIE

Black(2) 37 24/8/93