Black v The Queen

The High Court of Australia heard an appeal from the dismissal of appeals by the Court of Criminal Appeal concerning two separate trials of the appellant. The appellant was represented by Mr T.A. Game and Mr S.J. Odgers, while the Crown was represented by Mr R.O. Blanch, QC, and Mr A.M. Blackmore. The dispute involved two grounds of appeal: one relating to a jury exhortation given during a trial for a fire at Airds in September 1986, and the second concerning a failure to direct the jury on confessional evidence in a trial for a second fire.

The primary legal issues before the High Court were whether the jury exhortation given in the first trial was unduly strong and potentially coercive, and whether the trial judge in the second trial erred by failing to provide adequate directions to the jury regarding confessional evidence. Specifically, regarding the exhortation, the appellant argued that certain passages suggested jurors should compromise their honestly held opinions to reach a collective verdict, and that the mention of public inconvenience and expense placed undue pressure on the jury.

The Court considered the specific wording of the exhortation, which included phrases such as "you have a duty, not only as individuals but... to return a collective verdict," and that there must be "discussion and argument and a certain amount of give and take and adjustment within the scope of that oath." The appellant contended that these phrases could be interpreted as an instruction to abandon honestly held beliefs, rather than to engage in reasoned deliberation to reach a unanimous verdict. The Court also noted the timing of the exhortation, given shortly before the jury returned their verdict, and the appellant's submission that this timing, coupled with the content, was coercive. The appellant argued that the jury should have been instructed that they were obliged to hold onto an opinion honestly held, and that the exhortation failed to adequately convey this principle.