R v Bracken (Ruling No 15)

[2014] VSC 95

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0123

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v

PHILLIP PAUL BRACKEN  Defendant

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JUDGE:	MAXWELL P
WHERE HELD:	Melbourne
DATE OF HEARING:	4–28 February 2014
DATE OF RULING:	28 February 2014
CASE MAY BE CITED AS:	R v Bracken (Ruling No 15)
MEDIUM NEUTRAL CITATION:	[2014] VSC 95

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CRIMINAL LAW – Trial – Jury deliberations – Deadlock – Judge informed of numerical split of jurors – Whether procedural fairness required disclosure of jury numbers to counsel – Jury confidentiality paramount – Information not disclosed - HM v The Queen [2013] VSCA 100 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rose SC with Ms T Saville	Mr C Hyland, Solicitor for Public Prosecutions
For the Defendant	Ms R Shann with Ms K Argiropoulos	Galbally Role

HIS HONOUR:

1. In the course of yesterday afternoon, I was informed by the tipstaff by telephone that the foreman had indicated to him that the jury were having difficulty reaching a unanimous decision.  The foreman told the tipstaff, who quite properly told me, what the state of the numbers was.  The information in question concerned only the state of the numbers;  no indication was given of views associated with those numbers.  

1. I reconvened the court in the absence of the jury yesterday afternoon, to invite submissions from counsel as to what the proper course should be.  I drew counsel's attention to three successive decisions of the Court of Appeal dealing with circumstances comparable to this, where information about the state of the jury numbers had been provided to the judge but where that information had not been provided to counsel.[1]

   [1]MJR v The Queen (2011) 33 VR 306; LLW v The Queen (2012) 35 VR 372; HM v the Queen [2013] VSCA 100.

1. In the most recent of the decisions, HM v The Queen,[2] the majority (Redlich JA and Kaye AJA) helpfully elucidated the competing principles which need to be considered in assessing the proper course in these circumstances.  Their Honours referred to two underlying principles, each of which was

   [2][2013] VSCA 100.

of central importance to our criminal justice system.  The first proposition, that all communications between the jury and the judge should be disclosed to counsel and to the accused, is based on the right of an accused to a fair trial.  That entitlement is secured by adherence to the principle of procedural fairness.  In an adversarial system of justice, the significance of that principle is self-evident.  It is also important to the maintenance of public confidence in the administration of justice.  Ordinarily, there should be no secrets between the judge and the jury which may, in any way, relate to the substance of the task which the jury is performing, namely, its determination whether the prosecution has established the guilt of the accused beyond reasonable doubt.

The right to a fair hearing requires that a party be afforded an opportunity to be heard.  That opportunity is vital both to the reality and the appearance of justice.  A party who might be affected by a decision must be given the opportunity to make submissions bearing upon that decision.  Hence a relevant fact, upon which a judge may rest a decision, must be made known to the parties.  The parties cannot be denied the opportunity to make a submission as to a fact relevant to the decision, which has become known only to the judge.  Where a judge has taken account of a fact that has not been disclosed to and is unknown by the parties, a want of procedural fairness may arise without inquiring into the probative impact of that information.

The second proposition – that jury numbers or ‘votes’ should not be disclosed to the judge by the jury – is based upon the principle that jury deliberations should remain, so far as possible, confidential. That principle is of the highest significance in our justice system. It was zealously guarded by the common law, and is reflected and reinforced by s 78 of the Juries Act2000.  The principle ensures that, so far as possible, jurors are able to discuss matters between themselves, and to deliberate, with the utmost candour, and with the full confidence that the content of their deliberations remains confidential.  In that way, the principle protects the independence of juries, and the integrity of their deliberative processes.  It is for that reason that the law is rigorous in protecting and preserving the confidentiality of jury deliberations.

Usually, these principles of procedural fairness, and of the confidentiality of jury deliberations, operate in harmony.  However, a tension between these principles arises, as has occurred in this case, where the jury does reveal the status of its voting numbers in a note to the judge and that information is relevant to a decision which the trial judge must make.[3] 

[3]Ibid [3]–[6] (citations omitted).

1. The proposition established by these decisions is that information received by a trial judge about the state of the numbers in the jury’s deliberation should be disclosed to counsel if the information is ‘relevant to a decision which the trial judge must make’.  On ordinary principles of natural justice, if the information bears relevantly on a decision which the judge must make and in relation to which submissions will be sought, then the parties should be given the information. 

1. In each of the three cases referred to, that was the position.  The judge had to make a decision about whether to take a majority verdict.  Accordingly, it was held, it was an error which vitiated the verdict for the judge not to have informed the parties. 

1. Having read the cases, I indicated to the parties my provisional view that the present circumstances were different in that critical respect.  There is no occasion for a majority verdict.  The charge is murder, and the verdict of guilty or not guilty must be unanimous. Accordingly, in my view, the competing proposition — that jury deliberations should remain confidential — is the governing principle here.  It is not displaced by the requirements of natural justice in this case.

1. The prosecutor and defence counsel, having had an opportunity to reflect on the matter and read the authorities, are also of that view, that is, that there is no necessity for disclosure by me of that information, and that it should not be disclosed. 

1. I also indicated that, in the circumstances, it would be appropriate to give the Black direction or exhortation.[4]  Both counsel are agreed that I should give that direction, and I will do so immediately on the jury reassembling.

   [4]Black v The Queen (1993) 179 CLR 44.

1. The matter will then rest with the jury once again, and this will be just another day of deliberation for them.  I will say to them that, if they wish to communicate with me,  they must be sure to make no reference in any communication to the state of the numbers.

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