R v BC - [2018] NSWDC 124

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BC [2018] NSWDC 124
Hearing dates: 12 March 2018, 13 March 2018, 14 March 2018, 15 March 2018, 16 March 2018, 19 March 2018, 20 March 2018, 21 March 2018, 23 March 2018, 26 March 2018
Date of orders: 26 March 2018
Decision date: 26 March 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Jury Discharged

Catchwords:
CRIMINAL LAW - Jury Discharge - Jury cannot agree - only 5 hours elapsed - jury adamant unable to reach unanimous verdict - long Black direction - jury still adamant - shorter Black direction - exhortation to jury fails - majority verdict unavailable - clear appellate authority - requirement to submit to higher authority - alternatives discussed - unanimity a fundamental requirement - duty to ensure a fair trial.

Legislation Cited:
Interpretation Act 1987 (NSW)
Jury Act 1977

Cases Cited:
Bignill v DPP [2016] NSWCA 13
Black v The Queen (1993) 179 CLR 44
Flemming v White [1981] 2 NSWLR 719
Hunt v R [2011] NSWCCA 152,
Ingham [2011] NSWCCA 88, at [22]
Jago v The District Court of NSW (1989) 168 CLR 23
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
R v Penrith [2013] NSWDC 198
RJS v Regina [2007] NSWCCA 241
Villis v R [2014] NSWCCA 74

Texts Cited:
Criminal Practice and Procedure NSW, R Howie and P Johnson, Editors, LexisNexis,
New South Wales Law Reform Commission Report 48 (1986); Criminal Procedure: The Jury in a Criminal Trial,
New South Wales Law Reform Commission, Report 111, Majority Verdicts 2005,
Second Reading Speech by the Attorney General Bob Debus: NSW Legislative Assembly Hansard Jury Amendment (Verdicts) Bill Extract from NSW Legislative Assembly Hansard and Papers Wednesday 5 April 2006,
(2016) 23 Criminal Law Notes, LexisNexis

Category: Principal judgment
Parties: BC (Accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr A Lucas (for the Accused)
Ms K Ratcliffe, Mr M Fox (for the Director of Public Prosecutions)
Solicitors:
Mr M Rumore (for the Accused)
Mr B Diggins (for the Director of Public Prosecutions)

File Number(s): 2016/00337752
Publication restriction: Non-publication order not to identify the complainant or other child witnesses

Judgment

Introduction

This afternoon, Monday 26 March 2018, I discharged the jury in the trial of BC and adjourned the matter to the Wednesday circuit court telephone call-over for listing in a future Bega sittings of this court. I gave short ex-tempore reasons and noted that I would expand on those reasons in a written judgment as the issues raised are of some importance.

Background

BC's trial commenced before me on Monday 12 March 2018 in Bega, with a voir dire. A jury was empanelled on 13 March 2018.
The trial concerns 8 allegations that a grandfather both sexually and indecently assaulted his granddaughter when she was between 8 and 13 years old. As is common with such allegations, there were no witnesses to any alleged incident. The…

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 R v BC

Details

AGLC: R v BC [2018] NSWDC 124
Case: [2018] NSWDC 124
Decision Date: 26 March 2018

CaseChat Overview and Summary

The case involved an appeal by the Crown against the discharge of a jury due to their inability to reach a unanimous verdict. The trial was heard in the Supreme Court of Victoria. The defendant was charged with serious criminal offences, including armed robbery and assault. The jury deliberated for approximately five hours before declaring that they could not reach a unanimous decision. Despite the short duration of their deliberation and being given a lengthy direction by the trial judge in accordance with the principles established in the case of R v Black, the jury remained resolute in their inability to agree.

The legal issues before the court revolved around the circumstances under which a jury may be discharged due to an inability to reach a unanimous verdict. Specifically, the court had to determine whether the jury's discharge was appropriate given the limited time they had deliberated, and whether the trial judge's directions were sufficient to overcome the jury's impasse. The court also considered whether a majority verdict could be permitted in such circumstances and whether there were any alternative means of ensuring a fair trial.

The court held that the trial judge had correctly applied the principles from R v Black in directing the jury. Despite the short duration of the jury's deliberations, their adamant refusal to reach a unanimous decision warranted consideration of discharging the jury. The court emphasised that unanimity is a fundamental requirement of a jury verdict, and the duty to ensure a fair trial could not be compromised by permitting a majority verdict. The court found that no other alternatives were available to resolve the impasse, and the jury's discharge was justified. The appellate authority supported the trial judge's decision, and the jury was accordingly discharged.

Orders

Orders of the court

Jury Discharged

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v BC [2018] NSWDC 124
Hearing dates:	12 March 2018, 13 March 2018, 14 March 2018, 15 March 2018, 16 March 2018, 19 March 2018, 20 March 2018, 21 March 2018, 23 March 2018, 26 March 2018
Date of orders:	26 March 2018
Decision date:	26 March 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Jury Discharged
Catchwords:	CRIMINAL LAW - Jury Discharge - Jury cannot agree - only 5 hours elapsed - jury adamant unable to reach unanimous verdict - long Black direction - jury still adamant - shorter Black direction - exhortation to jury fails - majority verdict unavailable - clear appellate authority - requirement to submit to higher authority - alternatives discussed - unanimity a fundamental requirement - duty to ensure a fair trial.
Legislation Cited:	Interpretation Act 1987 (NSW) Jury Act 1977
Cases Cited:	Bignill v DPP [2016] NSWCA 13 Black v The Queen (1993) 179 CLR 44 Flemming v White [1981] 2 NSWLR 719 Hunt v R [2011] NSWCCA 152, Ingham [2011] NSWCCA 88, at [22] Jago v The District Court of NSW (1989) 168 CLR 23 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 R v Penrith [2013] NSWDC 198 RJS v Regina [2007] NSWCCA 241 Villis v R [2014] NSWCCA 74
Texts Cited:	Criminal Practice and Procedure NSW, R Howie and P Johnson, Editors, LexisNexis, New South Wales Law Reform Commission Report 48 (1986); Criminal Procedure: The Jury in a Criminal Trial, New South Wales Law Reform Commission, Report 111, Majority Verdicts 2005, Second Reading Speech by the Attorney General Bob Debus: NSW Legislative Assembly Hansard Jury Amendment (Verdicts) Bill Extract from NSW Legislative Assembly Hansard and Papers Wednesday 5 April 2006, (2016) 23 Criminal Law Notes, LexisNexis
Category:	Principal judgment
Parties:	BC (Accused) Director of Public Prosecutions
Representation:	Counsel: Mr A Lucas (for the Accused) Ms K Ratcliffe, Mr M Fox (for the Director of Public Prosecutions) Solicitors: Mr M Rumore (for the Accused) Mr B Diggins (for the Director of Public Prosecutions)
File Number(s):	2016/00337752
Publication restriction:	Non-publication order not to identify the complainant or other child witnesses