R v Doherty - [1999] VSCA 165

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…

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 Doherty

Details

AGLC: R v Doherty [1999] VSCA 165
Case: [1999] VSCA 165
Decision Date: 7 October 1999

CaseChat Overview and Summary

The case of R v Doherty involved the defendant, Doherty, who was convicted of certain criminal offences. The dispute centred around the calculation of time spent by the jury in deliberation prior to reaching a verdict. The case was heard in the Supreme Court of Victoria. The central issue before the court was the interpretation of sections 47(2), (3) and (4) of the Juries Act 1967, specifically regarding how to calculate the time spent by a jury in deliberation.

The court was required to determine whether the time spent by the jury in deliberation included all time from when the jury was first directed to retire to consider their verdict, or whether it should only include the period from when the jury had retired to the room and was actually deliberating on the case. The interpretation of these sections was crucial to establishing whether the jury had complied with the statutory time limit for reaching a verdict.

The court found that the statutory provisions did not explicitly state whether the calculation of deliberation time should commence from when the jury was first directed to retire or from when they had retired and were actually deliberating. However, the court concluded that the more logical interpretation was that the time should start when the jury had retired and was actively deliberating, as this would align with the purpose of the statutory time limit. The court also noted that if the legislature intended the former, it would have used clearer language. The court thus decided that the time spent by the jury in deliberation should only include the period from when they had retired and were actually deliberating.

The court's decision clarified the interpretation of the relevant statutory provisions, ensuring that juries would be aware of the correct starting point for calculating deliberation time. This ruling provided a clear guideline for future jury deliberations and ensured consistency in the application of the statutory time limits.

Orders