R v Gilson (No 2)
[2017] NSWSC 990
•25 July 2017
Supreme Court
New South Wales
Medium Neutral Citation: R v Gilson (No 2) [2017] NSWSC 990 Hearing dates: 25 July 2017 Decision date: 25 July 2017 Jurisdiction: Common Law Before: Button J Decision: A reasonable time has elapsed, since the jury retired to consider its verdict, that would permit the taking of a majority verdict.
Catchwords: CRIMINAL – procedure – whether a reasonable period of time has elapsed since the jury has retired to permit a majority verdict pursuant to Jury Act 1977 (NSW) – consideration of competing factors – time elapsed sufficient to permit taking of a majority verdict Legislation Cited: Jury Act 1977 (NSW), s 55F(2)(a) Category: Procedural and other rulings Parties: Regina
Trudy Jane Gilson (aka Sheiles)Representation: Counsel:
Solicitors:
R Herps (Crown)
P McGrath SC (Accused)
Office of the Director of Public Prosecutions (Crown)
Legal Aid (Accused)
File Number(s): 2014/344391 Publication restriction: Nil
EX TEMPORE Judgment
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The question has arisen in the context of this murder trial whether, pursuant to s 55F(2)(a) of the Jury Act 1977 (NSW), a reasonable time has expired since the jury retired that would permit me to take a majority verdict of 11:1 (the jury having been deliberating for over thirteen hours).
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There are a number of factors that argue against that proposition.
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First, the evidence extended over approximately three weeks.
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Secondly, the evidence was detailed and complex.
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Thirdly, the jury has to determine a number of legal issues. They include whether one of the two mental elements for murder has been proven beyond reasonable doubt; also, applying the two legs of self-defence, potentially, to murder or manslaughter, the former including, of course, possible consideration of excessive self-defence.
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Fourthly, the gravity of the proceedings. To my mind that has two aspects: first, the nature of the primary count itself, and, secondly, the fact that what is alleged in this particular case is a planned, and thereafter implemented, murder.
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On the other hand, to my mind there are a number of factors that argue in favour of the proposition that a reasonable time has passed.
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First, although the evidence was detailed, a substantial proportion of it was agreed. As well as that, it was presented in a generally chronological form that was readily understood.
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Secondly, each counsel opened, thereby aiding the understanding of the issues by the jury from an early stage.
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Thirdly, the two final addresses, in my respectful opinion, were exemplars of criminal advocacy, including in their clarity.
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Fourthly, I provided the jury, from a very early stage of the proceedings, with dot point “heads up” documents setting out the elements of murder, manslaughter, and self-defence. I also provided them with other written directions and documents before they retired.
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Fifthly, no questions have been received from the jury about any of those legal documents or, indeed, about any legal principle.
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Sixthly, the jury was taken on a view which, to my mind, very much aided understanding.
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Seventhly, the issues when boiled down are quite simple; namely, whether the Crown has proven beyond reasonable doubt an intention to kill or to inflict grievous bodily harm; and, separately, whether the Crown has disproven self-defence to the same standard.
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Eighthly, the position of the parties is unanimously that a reasonable time has expired.
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Ninthly, the jury has had the entirety of the trial transcript since shortly before they left us at 1pm on Friday on 21 July 2017.
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Tenthly, the jury has had a detailed exhibit list since retiring at 3.20pm on Thursday 20 July 2017.
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Eleventhly, the deliberations have been spread over a number of days: Thursday (albeit extremely briefly); Friday for a half day; the whole of Monday 24 July 2017; and now a substantial proposition of Tuesday 25 July 2017.
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Twelfthly, and finally, the two jury notes that have been received today are, in my opinion, firm in their message that there is no other way forward in terms of obtaining a verdict.
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In short, seeking to balance all of those factors, and bearing in mind their countervailing effects, I accept the joint position of the parties, and consider that a reasonable time has elapsed since the jury retired at 3.20pm on Thursday that should permit of a majority verdict being taken in this trial.
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Decision last updated: 26 July 2017
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