R v Doherty
[1999] VSCA 165
•7 October 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 154 of 1998
THE QUEEN
v
RICHARD HENRY DOHERTY
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JUDGES: PHILLIPS, C.J., CHARLES and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATES OF HEARING: 20 and 23 September 1999 DATE OF JUDGMENT: 7 October 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 165
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CRIMINAL LAW – Jury – Majority verdict – Calculation of time spent in deliberation.
JURIES ACT 1967 s.47(2), (3) and (4).
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APPEARANCES: Counsel Solicitors For the Crown Mr. P.A. Coghlan, Q.C. P.C. Wood, Solicitor for with Mr. R.A. Alston Public Prosecutions For the Applicant Mr. J.W. Lee Dwyer Mahon & Robertson
PHILLIPS, C.J.:
The applicant, who is aged 59, was presented before a jury in the County Court at Bendigo upon a presentment containing seven counts. These were four counts of incest (counts 1, 3, 4 and 6 on the presentment) and three counts of indecent assault (counts 2, 5 and 7). It is unnecessary to be more specific as to the detail of the charges and equally unnecessary to detail the evidence proffered at the applicant’s trial. The jury convicted him on counts 1, 2 3, 4 and 5 and acquitted him on counts 6 and 7. He was subsequently sentenced to be imprisoned. He later lodged notices of application for leave to appeal against conviction and sentence pleading certain grounds. The learned Registrar later allowed a fourth ground touching conviction “that the learned trial judge erred by directing the jury he would accept majority verdicts.”
Before this Court the other grounds touching conviction and the application touching sentence were not argued.
The provisions of s.47(2), (3) and (4) of the Juries Act are relevant.
(2) Subject to sub-sections (3) and (4), in any criminal inquest if all the jurors after at least six hours deliberation are unable to agree on their verdict, a majority verdict may be taken as the verdict of all. (3) A court must refuse to take a majority verdict if it appears to it that they jury have not had a period of time for deliberation that the court thinks reasonable having regard to the nature and complexity of the inquest. (4) A verdict that the accused is guilty of murder or treason or of an offence against the law of the Commonwealth must be unanimous.
It was common ground between the parties that on 19 March, 1998, the jury retired to consider its verdict at 12:34 p.m. They returned to the court at 1:03 p.m. and were given a further direction before returning to their jury room at 1:07 p.m. At 3:57 p.m. the jurors returned to the court room and the Court was adjourned for the day, the appropriate oath being administered to the jurors before they separated at 4:02 p.m. On 20 March, 1998, the jury resumed their deliberations at 9:00 a.m. At 12:10 p.m. they asked a question to which the learned trial judge made response. They returned to their jury room at 12:11 p.m. and re-entered the court at 12:17 p.m. The learned judge gave an answer to the question and at 12:22 p.m. the jury again left the court room. Their verdicts were taken at 1:45 p.m.
The question asked by the jurors was put by the Foreman in these terms:
“I just want to ask you, what is the course of action if we cannot come
to a unanimous decision on one count?”
The learned judge responded:
“Yes. If you cannot come to a unanimous decision on one count, then I have indicated to you that each count must be considered separately. Now, in respect of one count, at this moment I am in a position to hear some discussion from counsel about the matter so what I shall do, Mr Foreman, is this; I shall ask you to retire back to your jury room just temporarily. I want to discuss one particular matter with counsel and I will be in a position to call you back I would have thought, in about five to ten minutes. That is the only question you wish to put to me?
Foreman: Yes.”
Subsequently, there was discussion as to what period of time had elapsed since the jury’s retirement had commenced. The learned judge stated that six hours and more had expired and both counsel agreed that the taking of a majority verdict was open to his Honour.
The learned judge then directed the jury:
“Mr Foreman and members of the jury, you have been deliberating now for several hours and indeed you retired to consider your verdict I think at about 12:40 p.m. yesterday afternoon before the luncheon adjournment. The time has now arrived at which I may take from you a majority verdict, but a majority verdict – it is a particular type of majority verdict: If a jury at the time of returning its verdict consists of 12 jurors as you do, I can take a verdict of 11 of the jurors as the verdict of you all. Do you follow? I cannot take a verdict unless that verdict is agreed to, whether for guilty or for not guilty, I cannot take a verdict unless that verdict is a verdict at least 11 of the jurors.” (679- 680)
His Honour continued to give more detail, but in my view it is unnecessary to cite more than the above.
The transcript shows that, in making his calculations as to deliberation time for 19 March, the learned judge allowed for “a little in excess of three hours”. It would appear in so doing his Honour included the short period of redirection which had occurred from 1:03 to 1:07 p.m. and also the period when the jurors had their lunch. In my opinion, it was correct for him to do so.
In R. v. Rodriguez [1998] 2 V.R. 167 this Court considered s.47. It held that discrete and substantial breaks from the jury’s deliberation time such as an overnight retirement or an adjournment for a meal, must be excluded in the calculation of deliberation time. It is clear from that decision that time spent listening to a redirection counts as such time. The court also made it clear, in my opinion, that for an adjournment for lunch to be excluded it would involve the jurors leaving the court, in the charge of jury keepers, to go to a hotel or restaurant for lunch. That is not what happened in the instant case. The transcript (662) makes it clear that the jury were given a light lunch in their jury room. Keepers were sworn but only for the purpose of taking the jurors for a stroll if they so wished.
Accordingly, his Honour was correct in his calculation of deliberation times for 19 March. His Honour calculated some three hours and 15 minutes deliberation time for 20 March. By the time the answer was given by him to the jurors’ question it was 12:17 p.m. I am satisfied his answer was given after the expiration of six hours deliberation time. At the end of the day I did not understand counsel for the applicant to argue otherwise.
Both counsel also agreed that at a point after their retirement the jurors and their keepers went for a walk in the open air for “about 30 minutes”. In the absence of any further information I have assumed this excursion to be a discrete and substantial break from the jury’s deliberations which must be excluded from the calculation of deliberation time.
I should add that the Court was informed by counsel for the applicant that he had listened to a tape-recording of the trial proceedings with an officer from the Director of Public Prosecutions and all of the indications were that, notwithstanding the jury’s earlier question, each of the verdicts convicting the applicant was unanimous.
Mr Lee, for the applicant, in an argument both concise and economical, submitted that there was an unacceptable risk that a miscarriage of justice had occurred. He contended that it could be inferred from the question that at the time it was put some jurors were not prepared to convict the applicant. There was an unacceptable risk, so the argument went, that the mention of the availability of majority verdict might have occasioned these jurors to compromise their previous conscientiously held views. Any count may have been involved in the jury question. When the question was asked, counsel submitted, the learned judge should simply have, consistently with authority, exhorted the jurors to seek unanimity because “it was so close to six hours”. What occurred here, counsel contended, was a “rush to judgment”. Mr Lee relied on a comment of Callaway, J.A. in Rodriguez supra:
“…Given the language of s.47(2) and the nature of the right it modifies, it would be prudent not to invite a majority verdict the moment six hours have expired.” (186)
(Hayne, J.A. made a similar comment (169) and Charles, J.A. said he agreed in the
judgment of Callaway, J.A.)Both counsel accepted this was obiter. If I may say so, it is a comment with which I entirely agree. But it has no application to the instant case. The learned trial judge did not “invite” a majority verdict. He was asked a straight question. His answer was doubtless actuated both by a desire to convey accurate information and courtesy to the tribunal of fact. In my opinion, the risk of a juror or jurors being consequently deflected from their duty may be safely dismissed.
Thus, the sole ground argued fails. I would dismiss this application and also that touching sentence.
CHARLES, J.A.:
I agree that the applications should be dismissed for the reasons given by the
Chief Justice.
BUCHANAN, J.A.:
I agree that the applications should be dismissed for the reasons stated by
Phillips, C.J.
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