BR v R

Case [2014] NSWCCA 46 9 April 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BR v R [2014] NSWCCA 46
Hearing dates: 12/02/2014
Decision date: 09 April 2014
Before: Emmett JA at [1];
Hall J at [36];
Hulme AJ at [37]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - procedure - juries - majority verdict - Jury Act 1977 (NSW) s 55F - meaning of "deliberation" - whether eight hours had elapsed - whether jury continued to deliberate after note sent to the judge - whether lunch time is to be counted in the eight hour period
Legislation Cited: Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Justice Act 1967 (UK)
Jury Act 1977 (NSW), s 55F
Cases Cited: AGW v R [2008] NSWCCA 81
Black v The Queen [1993] HCA 71; 179 CLR 44
Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265
Cheatle v The Queen [1993] HCA 44; 177 CLR 541
Hunt v R [2011] NSWCCA 152; 81 NSWLR 181
R v Adams [1969] 1 WLR 106
R v Bateson [1969] 3 All ER 1372
R v Doherty [1999] VSCA 165; 3 VR 435
R v Rodriguez [1998] 2 VR 167
R v Young [1995] QB 324
R v VST [2003] VSCA 35; 6 VR 569
RJS v R [2007] NSWCCA 241; 173 A Crim R 100
Smith v Western Australia [2014] HCA 3; 88 ALJR 384
Category: Principal judgment
Parties: BR (Appellant)
Regina (Respondent)
Representation: Counsel:
C Bruce (Appellant)
N Adams SC (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/169599
Decision under appeal

Date of Decision:

2012-12-19 00:00:00

Before:

Payne DCJ

File Number(s):

2011/169599

JUDGMENT

EMMETT JA: On 28 September 2012, the appellant, BR, was convicted on four charges under the Crimes Act 1900 (NSW) (the Crimes Act) after he was found guilty on all four charges by a majority verdict of a jury of eleven. Two of the charges were under s 61M(2) of the Crimes Act, one was under s 61M(1) of the Crimes Act, and one was under s 66A of the Crimes Act. A total effective sentence of five years and nine months, with a non-parole period of three years and six months, was imposed on the appellant. By notice filed on 15 October 2013, the appellant seeks to appeal from the convictions on the ground that the trial judge erred in directing the jury as to returning majority verdicts in respect of the four charges.

Section 55F of the Jury Act1977 (NSW) (the Jury Act) provides for majority verdicts in certain circumstances. Relevantly, s 55F applies in respect of a verdict in criminal proceedings where the jury consists of not less than eleven persons. In such a case, the jury may return a majority verdict if two prerequisites are satisfied. The first is that a unanimous verdict has not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BR v R

Details

AGLC: BR v R [2014] NSWCCA 46
Case: [2014] NSWCCA 46
Decision Date: 09 April 2014

CaseChat Overview and Summary

The matter before the court involved a criminal prosecution where the defendant, BR, was charged with various offences. The dispute centred around the validity of the jury's verdict, particularly whether it was lawfully obtained under the Jury Act 1977 (NSW). The case was heard by the Supreme Court of New South Wales. The central legal issue was whether the jury had engaged in proper deliberation as required by section 55F of the Jury Act, which stipulates that a jury must deliberate for at least eight hours before delivering a verdict. Specifically, the court had to determine if the eight-hour period included the time taken for the jury to eat lunch, and whether the jury continued to deliberate after sending a note to the judge.

The court examined the meaning of "deliberation" within the context of section 55F. It considered whether the time the jury spent eating lunch should be included in the eight-hour deliberation period. The court also assessed whether the jury continued to deliberate after sending a note to the judge, which could potentially affect the validity of the verdict. In determining the outcome, the court relied on previous judicial interpretations and the legislative intent behind section 55F. The court concluded that the eight-hour period did not include the time taken for the jury to eat lunch, and that the jury had indeed continued to deliberate after sending a note to the judge. Therefore, the verdict was found to be lawfully obtained.

Based on the court's findings, the verdict was upheld as valid. The court dismissed any contention that the jury's verdict was improperly obtained due to non-compliance with the eight-hour deliberation requirement. Consequently, the final orders of the court confirmed the jury's verdict and the defendant's conviction on the various charges.

Orders