R v Holmes (No 4)

[2020] NSWSC 263

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Holmes (No 4) [2020] NSWSC 263

Hearing dates:

10, 11, 12, 13, 14, 17, 18; 19; 20; 21; 24; 25; 26; 27; 28, February 2020

Date of orders:

28 February 2020

Decision date:

28 February 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 13

Catchwords:

CRIMINAL LAW – jury deliberation – Black direction given – making inquiries of the jury

Legislation Cited:

Jury Act 1977 (NSW) ss 56, 55F(2)(a)

Cases Cited:

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71

RJS v Regina [2007] NSWCCA 241, 173 A Crim R 100

Category:

Procedural rulings

Parties:

Regina (Crown)
S. Holmes (Accused)

Representation:

Counsel: L Carr SC (Crown)
P Krisenthal (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
J.A. Solicitors (Accused)

File Number(s):

2018/200129

Judgment

1. I have discussed with counsel the question of whether I should recall the jury to make an inquiry of them of the type discussed by Spigelman CJ in RJS v Regina [2007] NSWCCA 241; 173 A Crim R 100, at [23]-[26].

2. The circumstance that has brought this question to mind is that the jury retired to consider its verdict at 3.20pm on Thursday, 20 February 2020. It is now 11:55am on Friday, 28 February. I reconvened the Court in the absence of the jury at 11.30am today to hear counsels’ submissions about whether I should recall the jury to make an inquiry of them as to their progress. I should also say that the jury did not deliberate on Tuesday 25 February or during the afternoon of 27 February because of the illness of a juror or jurors. Counsel agree that, taking a conservative approach to the calculation of time, which approach excludes entirely the usual luncheon adjournment and, other than for today, commences at 10am when, generally speaking, all of the jury have been in by 9.30am, the jury have been deliberating for in excess of 17 hours.

3. This is a case in which Mr Holmes is charged with the murder of Mr Hadden. The facts, which were not very much in issue, are that Mr Holmes’ single forceful punch to Mr Hadden’s head knocked the latter down. When he fell, Mr Hadden struck his head heavily on the concrete pavement resulting in a very severe brain injury from which he died about five and a half months later.

4. When he was arraigned in the presence of the jury panel Mr Holmes pleaded not guilty to murder, but guilty to manslaughter and the matter has proceeded on the common-ground basis that the only issue for the jury’s determination is whether the Crown have proved beyond reasonable doubt that when he delivered that fatal punch Mr Holmes had the requisite actual intent of inflicting grievous bodily harm upon Mr Hadden, a necessary element of the crime of murder.

5. On the Monday, Wednesday and Thursday of this week the jury have asked questions seeking further directions which have been answered.

6. I should say that on Monday 24 February I received a jury note indicating that the jury felt unable to reach a unanimous verdict and asking how they should proceed. In response to that note I gave the jury the general perseverance direction in accordance with the requirements of the High Court of Australia in Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 at 51. It must be said that they seem to have taken that direction to heart in as much as they have continued to deliberate when they have been at court since.

7. I raised this same question with counsel yesterday. I was already harbouring some concern about the progress the jury was making and I was motivated as much as anything by concern for them as well as, of course, the overriding concern that the trial be fair especially from Mr Holmes’ point of view. I decided it was inappropriate to intervene then in view of the submissions of both counsel who cautioned me against that course.

8. I have greatly benefited from the submissions of counsel again today. At this stage the Crown submits that it is appropriate that I make some enquiry about the jury’s progress and that I have the power to do so at least under s 56 of the Jury Act 1977 (NSW). Mr Carr of learned senior counsel points out that if an enquiry was to be made, it should be made now rather than later today lest the jury feel some pressure to come up with a verdict on a Friday afternoon in the shadow of their separation for the weekend.

9. Mr Krisenthal of learned counsel submits that I should continue to stay my hand and that it would be inappropriate to make any enquiry of the jury today in the absence of some indication from them of the need for further assistance lest they in any event feel that I am pressuring them to make a decision.

10. In RJS Spigelman CJ said (at [25] and [26]):

In the present case, the course of events should have been to give the Black direction and then, in the absence of the jury, to take submissions from counsel as to when, in the particular circumstances of this case, a reasonable time could be said to have expired. It is inappropriate to determine that there should be a general practice about whether the trial judge, having determined what was such a reasonable time should, upon the elapse of that time, intervene with the jury’s deliberations. What should occur will vary from case to case

In many cases, the trial judge may well decide to await a further indication from the jury that it is unlikely that the jurors would reach a unanimous verdict. That is not to say that after the passage of a further lengthy period of time, a matter to be determined by the trial judge, some kind of enquiry to the jury would constitute legal error. This is a matter with respect to which the practice should develop in accordance with the experience of implementation of the majority verdict system over time. It does not require any definitive guidance from this court.

It is clear that his Honour was saying that absent further indication from the jury a judge may be justified in making some kind of inquiry but only “after the passage of a further lengthy period of time” following the Black direction. I interpolate that the anticipated development of a practice in this area has not eventuated, at least not in my experience, and the matter is still one that needs to be dealt with on an individual case by case basis.

11. It is clear from the submissions of counsel that they both accept that a reasonable period of time, as referred to in s 55F(2)(a) of the Jury Act has in fact elapsed. As I understand the position of counsel, and they will correct me if I am wrong, both would agree that that point in time, that is to say the reasonable period having regard to the nature and complexity of the issue in this case, probably elapsed some time on Wednesday, perhaps at the separation of the jury on Wednesday afternoon.

12. I am of the view that the time since I gave the Black direction qualifies as “a further lengthy period of time”. However I am also conscious of the cautionary language adopted by Spigelman CJ in terms of after such a period “some kind of inquiry to the jury would [not necessarily] constitute legal error”.

13. Given, if I may say with respect, the firm opposition of Mr Krisenthal, learned counsel for the defence, and the risk that intervention may involve, at this late stage, of causing the trial to miscarry for a fundamental error of law, despite my strong inclination in favour of an intervention, I will accede to his submission and continue to stay my hand.

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Amendments

19 February 2021 - Publication Restriction lifted