Hanna v Regina - [2008] NSWCCA 173

Reported Decision: 191 A Crim R 302

New South Wales

Court of Criminal Appeal

CITATION: HANNA v REGINA [2008] NSWCCA 173

HEARING DATE(S): Friday 23 May 2008

JUDGMENT DATE:
28 July 2008

JUDGMENT OF: James J at 1; Hoeben J at 24; Hall J at 27

DECISION: Allow the appeal against conviction. Quash the conviction in the District Court. Order that there be a new trial.

CATCHWORDS: CRIMINAL LAW - Appeal - Practice and Procedure - Majority Verdicts - Jury Directions - Preconditions for the application of s 55F Jury Act 1977 (NSW) - Giving of a majority verdict direction at the same time as giving a Black direction - Appeal allowed

LEGISLATION CITED: Jury Act 1977

CATEGORY: Principal judgment

CASES CITED: Black v The Queen (1993) 179 CLR 44
Regina v Forbes (2005) 160 A Crim R 1
Regina v Zoef [2005] NSWCCA 268
RJS v The Queen (2007) 173 A Crim R 100

PARTIES: Roger HANNA
v REGINA

FILE NUMBER(S): CCA 2007/3205

COUNSEL: Crown: P Ingram
App: J Hickleton/N Watson

SOLICITORS: Crown: S Kavanagh
App: George Sten & Co

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0385

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 15 June 2007

2007/3205

JAMES J
HOEBEN J
HALL J
MONDAY 28 JULY 2008

ROGER HANNA v REGINA

Judgment

1 JAMES J: I have the benefit of reading in draft the judgment of Hall J and I agree generally with the reasons given by his Honour for the decision by the Court, which was announced at the conclusion of the hearing on 23 May 2008, that the appeal against conviction should be allowed and a new trial ordered. I wish, however, to make some remarks of my own on two matters.

(1) Non-compliance with s.55F(2) of the Jury Act

2 The condition in par (a) of sub-s 2 of s.55F of the Jury Act, which must be satisfied before a majority verdict may be returned by a jury in criminal proceedings is that:-

“A unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings.”

3 In the present case the transcript of the trial proceedings on 22 May 2007 shows that, after the jury sent the note to the effect that the jury had been unable to reach agreement on two counts, the trial judge, in her discussion with counsel in the absence of the jury, explicitly referred to a period of 8 hours having elapsed since the jury commenced deliberating but made no explicit reference to whether her Honour considered that the period of time for which the jury had been deliberating was reasonable, having regard to the nature and complexity of the proceedings. Her Honour made no…

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 Hanna v Regina

Details

AGLC: Hanna v Regina [2008] NSWCCA 173
Case: [2008] NSWCCA 173
Decision Date: 28 July 2008

CaseChat Overview and Summary

The appeal was brought by the appellant against a conviction by a jury for a criminal offence. The central issue in the case was the manner in which the trial judge had directed the jury concerning the potential for a majority verdict. The appellant argued that the judge had erred in law by providing a direction on majority verdicts simultaneously with a direction on the presumption of innocence, commonly referred to as a Black direction. The High Court of Australia was asked to determine whether the simultaneous directions were compliant with the legislative framework and whether the error warranted the allowance of the appeal.

The High Court considered whether the trial judge's approach in delivering both a majority verdict direction and a Black direction at the same time was permissible under the Jury Act 1977 (NSW). The court examined the statutory language and the intent behind the provisions to assess if the simultaneous delivery of these directions could be considered a valid exercise of judicial discretion. The court found that the trial judge's method did not align with the legislative preconditions outlined in s 55F of the Act, which require separate consideration of majority verdict directions. The Court concluded that the error was significant and had the potential to mislead the jury, thereby affecting the fairness of the trial.

Consequently, the High Court allowed the appeal on the basis that the trial judge's direction concerning majority verdicts was given in conjunction with a Black direction, which was not in accordance with the statutory requirements. The Court determined that this procedural misstep was substantial enough to warrant setting aside the conviction. The appeal was thus upheld, and the case was remitted for a new trial. The Court did not detail specific orders for the retrial, leaving it to the lower court to manage the logistics of a fresh proceeding.

Orders