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

1. 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

2. 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.

3. 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 complainant's evidence, if accepted, could prove each allegation. Some evidence of recent complaint was available to the jury but the complaint evidence from the complainant's father was contradicted by the complainant's mother. The accused gave evidence. His case was supported by other witnesses. The issue in each count for trial was a simple one: can the complainant's accounts be accepted beyond reasonable doubt?

4. On 15 March 2018 a juror did not attend court. Efforts were made by the Sherriff to contact her without success. After considering s 53B Jury Act 1977 I felt obliged to discharge that juror. The trial could not be adjourned for further enquiries to be made as an expert witness, critical to the Crown's case, had been scheduled to give evidence that day and I had been told she was otherwise unavailable.

5. There was then discussion about whether the jury should be discharged. I refused a defence discharge application and continued the trial with a jury of eleven; applying s 22 and s 53C Jury Act 1977. The trial continued until lunch time on Friday 16 March 2016, when the trial adjourned for the weekend.

6. On Sunday 18 March 2018, the nearby town of Tathra was devastated by a bush fire. Many in the community from which the jury panel is drawn were affected. The disaster caused considerable inconvenience to the general public, the legal profession and court staff; some of whom came to court on Monday with only the clothes they were wearing at the time Tathra was evacuated.

7. Nevertheless, the trial was able to resume. Before it did I told the Sheriff to ask the jury whether they felt able to continue. I received a note; "WE THE JURY HAVE DISCUSSED THE SITUATION AND FEEL THAT WE ARE ALL ABLE TO CONTINUE!"

8. The trial continued. We were unable to sit on Thursday 22 March 2018 because of long-standing medical specialist commitment of the accused.

9. The jury retired to consider its verdict late in the afternoon on Friday 23 March 2018. The trial had by then taken days longer than had been originally anticipated.

10. The jury had been deliberating for about 50 minutes when this note was received: "YOUR HONOR,THE JURY REQUESTS TRANSCRIPTS…IT SEEMS YOUR HONOR THAT THESE DELIBERATIONS WILL MOST CERTAINLY FALL INTO MONDAY AND AS SUCH WE REQUEST TO BE EXCUSED THIS AFTERNOON AT YOUR EARLIEST CONVIENIENCE."

11. In accordance with their request the jury were allowed to separate for the weekend and return today, 26 March 2018. This morning a juror sent a message to the Sherriff saying she was not well. When spoken to by the Sheriff she said that she would be here as soon as she could manage. The remaining jurors, in accordance with my earlier direction not to deliberate until they were all assembled; waited. I am advised they commenced their deliberations as a jury of 11 at 10.50am. The requested transcripts were made available to them.

12. At about 12.50pm I received this note: "YOUR HONOUR, WE THE JURY AFTER CONSIDERABLE DELIBERATION ARE UNABLE TO REACH A UNANIMOUS VERDICT ON THE CHARGES PRESENTED."

13. The jury were given a Black direction: Black v The Queen (1993) 179 CLR 44.

14. A light lunch was made available to them in the jury room.

15. At about 3.15pm I received another note: "YOUR HONOUR, WE THE JURY ARDENTLY HAVE RE EXAMINED THE BRIEF BEFORE US. IT IS WITH REGRET AND A SENSE OF EXASPERATION THAT WE STILL CANNOT DECIDE UNANIMOUSLY."

16. Mr Lucas, on behalf of the accused, made an application that the jury to be discharged. There was a short discussion about the provisions of s 56 Jury Act 1977. I referred the parties to Hunt v R [2011] NSWCCA 152 and Villis v R [2014] NSWCCA 74 and the directives of the Court of Criminal Appeal that juries not be discharged until they had been given the opportunity to return a majority verdict. I expressed my concern that subservience to, and compliance, with that directive could lead to a miscarriage of justice by deflecting the jury from their primary purpose of returning unanimous verdicts on each count and by risking pressure being put on individual jurors to compromise.

17. Mr Fox, Crown Prosecutor, who had assumed responsibility for the conduct of the matter while the jury was deliberating, opposed their discharge. The trial had gone longer than expected and Ms Ratcliffe, Crown Prosecutor, who had prosecuted the trial, was required in Wollongong. Mr Fox suggested that rather than discharging the jury I enquire of the jury whether they could, with more time, reach a unanimous verdict and whether they would benefit from leaving early this afternoon and resuming fresh in the morning.

18. I called the jury into Court. I note that as the jury room in Bega is immediately adjacent to the Court room it takes no time to bring the jury into the courtroom.

19. I gave the jury the option of having a break and returning tomorrow and also gave them another shorter Black direction asking them to persevere and reminding them again of the requirement for unanimity.

20. At about 3.35PM I received the following note:

"YOUR HONOUR REGRETTABLY WE THE JURY ARE UNFORTUNATELY AT AN IMPASSE OF WHICH IT WOULD SEEM THAT WITH FURTHER CONSIDERATION AND TIME A UNANIMOUS DECISION WOULD SEEM INSURMOUNTABLE."

21. There was further discussion between the bench and counsel about what should occur. Mr Lucas reiterated his earlier request that the jury be discharged.

22. The foreperson of the jury was then sworn in the presence of the other 10 jurors. The foreperson on oath confirmed what was set out in the jury's last note. He said, even if given more time, it was highly unlikely that a unanimous verdict could be reached. It was apparent from the reaction of the other jurors that he was speaking for them all. He was not asked the question posed by s 56(2) Jury Act 1977: Hunt at [26].

23. After further short discussion with counsel the jury were discharged.

Binding CCA authority

24. At the beginning of the trial, in my introductory remarks, the jury were told that if they had heard about majority verdicts that those circumstances were unlikely to arise and that unanimous verdicts on each count (or its alternative) were required.

25. I am aware that the prospect of a majority verdict must not be raised with a jury who indicate they are having trouble reaching a unanimous verdict until all the preconditions set out in s 55F and s 56Jury Act 1977 are met: RJS v Regina [2007] NSWCCA 241. As McClellan CJ at CL set out in Ingham [2011] NSWCCA 88, at [22]:

"… three preconditions that have to be satisfied before a trial judge is able to accept a majority verdict being:

•   A unanimous verdict has not been reached after the jury has deliberated for a time that the trial judge considers reasonable given the nature and complexity of the criminal proceedings (that time not being less than eight hours): s 55F(2)(a); and

•   The trial judge is satisfied after examination on oath of one or more jurors, that the jury is unlikely to reach a unanimous verdict after further deliberations: s 55F(2)(b); and

•   The trial judge considers it to be appropriate to allow the jury to deliberate further on the basis that they may return a majority verdict, and gives appropriate directions. The language of s 55F(2) ["may"] is not mandatory."

26. In both Hunt and Villis the Court of Criminal Appeal were clear: A judge cannot discharge a jury who cannot agree unless both the preconditions in s 55F and s 56 are met. Both judgments note that the sections, when read together with what fell from the Court in RJS (which held that a trial judge cannot inform the jury of anything to do with provisions of s 55F) mean that a jury cannot be discharged for failing to agree until, at a bare minimum, they have been deliberating for 8 hours.

27. As a trial judge I am bound by a fundamental principle that places an obligation on judges of the District Court to follow binding decisions of superior courts and the need for submission to that higher authority: Flemming v White [1981] 2 NSWLR 719, at p726.

A specific problem

28. There is nothing in s 56(1) Jury Act 1977 that prevents a judge having a foreperson of a jury, who have indicated by a note or notes that they are unlikely to reach a unanimous verdict, confirm that position on oath. Further, having reviewed both Hunt and Villis and other authorities it appears that no intermediate Court of Appeal has confronted the specific problem now facing this court.

29. This is not the first time I have had to deal with this problem: R v Penrith [2013] NSWDC 198. The ‘worrying” consequences of the prescription or directive in Hunt and Villis were also raised in a comment to a case note to Villis: (2016) 23 Criminal Law Notes, LexisNexis, P Berman and RA Hulme, at [3694]. The authors there discussed the "worrying" consequences of that decision, particularly where the issues in the trial, as here, were not complex. The authors suggested that a jury, if told to persevere no matter how many times and how forcefully they convey to the judge they cannot reach a unanimous verdict, might, "get the message that the only way they could leave is to compromise their individual attitudes to a correct verdict. In such cases a jury may well feel that the only way out of their Kafkaesque predicament is to deliver a verdict. The integrity of such a verdict is obviously doubtful."

30. Although I am bound by the decisions of the Court of Criminal Appeal that requirement does not however absolve me as a trial judge of my fundamental responsibilities to avoid a mistrial or miscarriage of justice and to ensure a fair trial to both accused and prosecution. As Mason CJ said in Jago v The District Court of New South Wales (1989) 168 CLR 23:

"Subject to statutory provision to the contrary, a court also possess the power to control and supervise proceedings brought into its jurisdiction and that power includes power to take appropriate action to prevent injustice… the power is not confined to closed categories."

31. The approach to applying s 56 Jury Act 1977, adopted in Hunt and Villis compels a judge, having done what they can to encourage perseverance at reaching unanimous verdicts, to hold a jury in effective detention until the preconditions noted by McClellan CJ at CL in Ingham are met. The apparently dogmatic approach to compelling a jury to persevere until the option of reaching a majority verdict is open to them may not be the only approach available to a trial judge.

32. Section 56 Jury Act 1977 provides:

Discharge of jury that disagree in criminal proceedings

(1) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict or a majority verdict under section 55F.

(2) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may not discharge the jury under this section if it finds, after examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict under section 55F.

(3) Where a jury in criminal proceedings has retired, and the jury consists of 10 persons or less, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict.

33. In Villis, Justice Fullerton, speaking for the Court, said that the trial judge had failed to appreciate that he had:

"...no discretion to discharge the jury from returning a verdict until they had been deliberating for eight hours and were unable to reach a unanimous verdict or by majority as expressly provided by s 56(1) of the Jury Act."

34. Section 56(1) does not compel this conclusion. Section 56(1) has two limbs separated by the disjunctive 'or'. Section 56 (1) allows a judge to discharge the jury if, after examination on oath of one or more jurors:

1. it is found that it is unlikely that the jurors will reach a unanimous verdict, or,

2. it is found that is unlikely the jurors will reach a majority verdict under s 55F.

35. In ordinary speech 'and' is used conjunctively to allow for the cumulation of options and 'or' is used disjunctively to allow for alternative or dispersion of options. Neither the rules of grammar nor statutory construction require that both options or limbs be satisfied for the s 56(1) to operate effectively.

36. Ordinarily this would allow for those limbs to be dealt with separately. This is necessarily so as s 56(3) in conjunction with s 55F(1) allows a judge to discharge a jury, which consists of 10 persons or less, if after examination on oath of one or more jurors it finds that is unlikely the jurors will reach a unanimous verdict; that is, after only one option is satisfied.

37. Section 56(2) however was been read by the Court of Criminal appeal in Hunt and Villis to require a jury of 11 or 12 to be kept for at least eight hours before they can be discharged for disagreement. The restriction placed on questioning jurors, noted in RJS, has been read into the section. As the question about a majority verdict cannot be asked for at least eight hours the jury must continue to deliberate until it can be asked and the jury are given the option of a majority verdict. Further, to avoid potential injustice the jury must not be told of the reasons for delay until the option of a majority verdict is available to them.

38. This interpretation gives effect to what the Attorney General set out in the Second Reading Speech to the Jury Amendment (Verdicts) Bill 2006: NSW Legislative Assembly Hansard, Wednesday 5 April 2006. The Attorney explained that majority verdicts were being introduced into New South Wales despite a recommendation of the New South Wales Law Reform Commission, that the reform was not necessary: New South Wales Law Reform Commission, Report 111, Majority Verdicts 2005. The Attorney said that:

"Majority verdicts are not automatic. Eight hours of court time must elapse before a majority verdict can be considered…The practical effect of having an eight-hour threshold instead of six hours is that a jury will be compelled to deliberate for more than one court day before it or a judicial officer can entertain a majority verdict. Until eight hours has elapsed, it must strive to reach a unanimous verdict…There is no discretion to discharge a jury of 11 or 12 people simply because they have not agreed on a unanimous verdict."

The Attorney went on to say that the amendment was required to:

"[A]void undermining public confidence in the jury system and the criminal justice system as a whole … [so as to] …reduce the instances in which juries cannot agree on an outcome and, of course, in consequence, they will reduce the level of anguish faced by some victims of serious crime and persons who fall one juror short of securing an acquittal. The system will fairly benefit victims and accused persons."

39. It has long been accepted that a construction that promotes the purpose of the legislation is to be preferred: s 33 Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78] and Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404:

"In most cases the grammatical meaning of section will give effect to the purpose of the section… It must give way to a construction which will promote the purpose or object of the Act:" McHugh J at 423.

40. However, as Bathurst CJ succinctly noted in Bignill v DPP [2016] NSWCA 13:

"The task of statutory construction begins and ends with the text considered in context including the general purpose and policy of the provisions. Context includes legislative history and extrinsic material so far as it assists in ascertaining the meaning of the statutory text, but such material cannot displace the meaning of the text. Further, objective discernment of the statutory purpose is integral to contextual construction. Such purpose resides in the text and context of the statute. It neither permits nor requires a search for what those who pass the legislation had in mind when they enacted it."(Citations omitted- emphasis added).

41. The Court of Criminal Appeal in both Hunt and Villis took a broad and apparently purposive approach to interpreting s 55F and s 56. The Court has read into s 56 matters that are not in the text, for example; the restrictions on asking questions noted in RJS. The Court of Criminal Appeal have now required trial judges to impose on juries a degree of compulsion that is not strictly required by the text of the section and which, if applied absolutely and uncritically, may result in the very problems sought to have been avoided by the Courts in RJS and Ingram.

An alternative approach

42. Until the 1988 amendments to the Jury Act 1977 a judge’s power to discharge a jury that was not likely to agree was restricted. Section 56 then provided that where the jury in criminal proceedings have retired for more than six hours, the court in which the proceedings are being tried may discharge them if it finds, after examination on oath of one or more of them, that they are not likely to agree on their verdict.

42. As the Law Reform Commission's Report 48 set out, there was no maximum period of deliberation nor was there any obligation on the judge to inform the jury about the discretion to discharge. The six hour period the Report said was:

"[Q]uite arbitrary… It has no reference to the complexity of the case. In some cases, it will be too short, in others too long. We have been informed that some judges in fact take the view that the legislative provision requiring a minimum deliberation period of six hours is not mandatory. They have accordingly discharged a jury within the six hour period in appropriate cases." New South Wales Law Reform Commission Report 48 (1986); Criminal Procedure: The Jury in a Criminal Trial, at [8.4].

44. Section 56(1) by use of the disjunctive 'or' allows for a trial judge to enquire of a juror or jurors whether, "it is unlikely that the jurors will reach a unanimous verdict?"

45. Section 56(2) is, however, expressed in mandatory terms. The question posed by s 56(2) - is it likely the jury will reach a majority verdict can be contrasted with the question required by s55F - is it unlikely that the jurors will reach a unanimous verdict after further deliberation?

46. Breaking down s 56(2): A court may not discharge a jury (of 11 or 12 persons) under s 56 (that is: after examination on oath of one or more of the jurors it finds that it is unlikely that the jurors will reach either (a) a unanimous verdict or (b) a majority verdict under s 55F) - if it finds (after examination on oath of one or more of the jurors), that it is likely that the jurors will reach a majority verdict under s 55F.

47. Breaking the subsection down even further to discern its content reveals: A court may not discharge a jury because it finds that it is unlikely that the jurors will reach either, (a) a unanimous verdict, or, (b) a majority verdict - if it finds that it is likely that the jurors will reach a majority verdict.

48. The text of s 56(2) says nothing about when the question - is it likely that the jurors will reach a majority verdict – can be asked. The Court of Criminal Appeal, by applying what was said in RJS to the section, concluded the majority verdict question cannot be asked until s55F becomes operative, that is; at least 8 hours of jury deliberation have elapsed. Accordingly they found that a jury may not be discharged before this time has elapsed because the court is incapable of knowing that it is likely that the jurors will reach a majority verdict.

49. Although the argument has not found favour with an appellate court there is another way of reading the text of the section: As the majority verdict question cannot be asked, s 56(2) has no work to do. If it cannot operate until the precondition in s 55F arises it cannot prescribe a trial Judge’s discretion to discharge a jury up until that point.

50. The requirement of unanimity on a jury in a criminal case is a long-standing principle of a fundamental character: RJS at [18]. Section 55F allows for an exception but only if its preconditions are met. The decisions of the Court of Criminal Appeal in Black, RJS and Ingham restrict what a jury can be told given the primacy of unanimity in jury verdicts. A Judge cannot undermine the effect of the Black direction: Hunt at [22]. Nor can the judge just ask the jury to sit out the remaining period until the possibility of a majority verdict arises: Hunt at [29]. There should be no distraction from the jury’s primary obligation to return a unanimous verdict: Hunt at [31]. No subsequent direction should be given which does other than continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum 8 hours of deliberation: Hunt at [33].

51. The apparently mandatory provisions in s 56(2) only arise if the jury are asked a question that cannot be broached unless s 55F is operative: applying RJS and Hunt. The section says nothing about the situations that might arise before s 55F can apply. Neither s 55F, nor s 56, say anything about the procedures to be adopted other than that one or more jurors can be examined on oath.

52. Only the heading to s 56 mentions “discharge of a jury that disagree…” The concept of disagreement is not part of the text: s 35 Interpretation Act 1987. Although the heading remains an important extrinsic aid to interpretation of the section: s 34(2)(a) Interpretation Act 1987. Accordingly, while the jury cannot be discharged "under this section," this does not necessarily mean that a jury who disagree cannot be discharged at all until the section’s preconditions are met.

53. The Jury Act 1977 is not a code. The Jury Act should not be if at all possible subject to unnecessary prescription. Many aspects of the jury trial have been imported from the common law, as both the New South Wales Law Reform Commission Reports 48 and 111 demonstrate. There are many reasons why a trial judge might, to avoid a mistrial or miscarriage of justice, choose to discharge a jury: see the helpful list in Criminal Practice and Procedure NSW, R Howie and P Johnson, Editors, LexisNexis, Volume 4, at 29-5,000. As Spigelman CJ noted in RJS, "What should occur will vary from case to case …The practice should develop in accordance with the experience of the implementation of the majority verdict system over time:" At [26].

54. Parliament when amending the Jury Act in 2006 chose not to make it abundantly clear what the Attorney set out in his Second Reading Speech. All s 56 does is compel a jury to deliberate for more than one court day before they can consider a majority verdict. With respect to the opinions of those to whom I must defer, the text of s 56 does not compel a trial judge to hold a jury of 11 or 12 persons, who indicate they disagree and cannot reach a unanimous verdict, until the option of a majority verdict is open to them.

55. Had Parliament intended jurors to deliberate for a minimum period it could have reintroduced an equivalent to the old s 56; a provision that jurors could not be discharged under six hours if they failed to agree. I note that s59 Jury Act 1977 still places a time limit on the discharge of jury in the Coroner's Court who failed to agree.

56. Further, the practice prescribed by Hunt and Villis does not fit well with the direction suggested by the High Court in Black v The Queen. This creates an additional and particular problem for trial judges. The Black direction requires a judge to tell the jury, "Members of the jury, I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation…" If the trial judge does not have the power to discharge the jury, the jury should not be told something different.

A particular dilemma

57. In BC’s trial the jury have been deliberating for about 5 hours. They have, from all my observations, been diligent and attentive to their obligations, to the extent of picking up an error in the document that explains the elements of each count; an error missed by both counsel and me. During the course of the trial they have had much time together in the jury room to discuss the fundamental issues between the parties, an issue that has been obvious since the trial began.

58. The jury have had a reasonable time to discuss the evidence and the issues given the nature and complexity of the trial. That issue boils down so far as each count is concerned to one simple question: Have the prosecution proved beyond reasonable doubt that either sexual intercourse or acts of indecency occurred? Each of those propositions relies on the evidence of the complainant, a not unusual situation, although there is some evidence of complaint upon which the prosecution was entitled to rely.

59. The accused gave evidence. His evidence was supported by a number of witnesses. The jury told were during my Summing Up that this trial was not the stark choice of who is to be believed but a question of whether the prosecution had proved its case beyond reasonable doubt in respect of a count or its alternative. The arguments for the prosecution and defence were put to the jury in the course of very detailed submissions on Friday, 23 March 2018.

60. The dilemma I was faced with is this: What am I to do to prevent a potential miscarriage of justice?

61. In RJS Spigelman CJ noted that the implementation of the majority verdict system should develop in accordance with experience over time. What then given the decisions of the Court of Criminal Appeal noted above, and to which I must defer, are the options now available to a judge where a jury has been deliberating for well under 8 hours but has indicated they have exhausted all efforts to reach unanimity? They appear to be:

1. Continue to exhort the jury to strive for a unanimous verdict but otherwise keep the jury deliberating without further instruction?

2. Tell the jury that the power to discharge referred to in the earlier Black direction given them is circumscribed by a requirement they deliberate for a few more hours while continuing to exhort them to strive for a unanimous verdict?

3. Discharge the jury because the risk of miscarriage of justice given the possible impact of further deliberation time to the requirement for unanimity?

I chose the third option.

62. This jury have done everything they can to reach a unanimous verdict. So much is obvious from their notes to me. They have had both a long and a short Black direction. They did not embrace the suggestion that they return tomorrow. They have apparently exhausted all efforts to reach unanimous verdicts. The jury have attended on the trial with considerable diligence and in the face of community wide adversity. One juror came in late today, 26 March 2018, despite illness.

63. Were I to give effect to the strict view of s 56 in the decisions of the Court of Criminal Appeal, set out above, the jury would be compelled to return tomorrow and continue deliberations until a reasonable time had elapsed having regard to the nature and complexity of this trial so that they could be given the option of returning a majority verdict. Further, I would be unable to explain to them why they were being forced to do so. The integrity of any verdict returned would be questioned; and for good reason.

64. I took the view that no further "deft handling" could prevent the risk of injustice: Villis at [23]

Discharge of jury to prevent an injustice

65. In every authority and Report I have cited precedence is given to ensuring that the primacy and importance of the unanimous jury verdict be maintained until and unless the majority option becomes available. A blanket policy requiring a judge to force a jury to persevere until that option is available is contrary to that important principle and must yield where there is a danger any verdict will not be the considered and unanimous verdict of the jury.

66. Given the vehemence with which the Jury notes were expressed, there was a real risk that that any further attempt at persuading this jury to persevere and forcing their return the following day would lead to a compromise verdict. Where there is a real danger the jury will be deflected from its task of considering whether the Crown has proved guilt beyond reasonable doubt a judge has a duty to step in and end the trial.

67. For those reasons I discharged the jury. To make it clear, I did so not because they could not agree but to avoid the real prospect of injustice to both parties.    

68. The matter should go to the next call over which is Chief Judge's telephone call over on Wednesday 11 April 2018, so it can be relisted as soon as practicable.

69. I note that the complainant's evidence has been recorded and that if there is a re-trial the relevant provisions in the Criminal Procedure Act 1987 apply to its use at that re-trial.

**********

Amendments

18 February 2022 - [35] Correction of typographical error.

Decision last updated: 18 February 2022