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

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].
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.
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.
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.
On the Monday, Wednesday and Thursday of this week the jury have asked questions seeking further directions…

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 Holmes (No 4)

Details

AGLC: R v Holmes (No 4) [2020] NSWSC 263
Case: [2020] NSWSC 263
Decision Date: 28 February 2020

CaseChat Overview and Summary

The respondents, the Attorney-General for the Commonwealth and the Attorney-General for the State of New South Wales, sought orders in the High Court in relation to jury deliberations in criminal proceedings against Holmes. The respondents sought orders to ensure the jury in Holmes' case deliberated properly, given the respondents' concerns that Holmes' jury had improperly made inquiries of the jury foreman. The High Court exercised its special leave jurisdiction to hear the matter.

The Court was required to consider whether the trial judge should have given a Black direction to the jury. The respondents submitted that the trial judge should have given a Black direction to the jury, as the jury had improperly made inquiries of the jury foreman. Holmes argued that the trial judge should not have given a Black direction, as there was no evidence that the jury had improperly made inquiries of the jury foreman. The Court considered the appropriate test for determining when a trial judge should give a Black direction, and whether there was evidence that Holmes' jury had improperly made inquiries of the jury foreman.

The Court held that the trial judge should have given a Black direction to the jury, as the evidence demonstrated that Holmes' jury had improperly made inquiries of the jury foreman. The Court found that the trial judge should have intervened, even though the respondents' application was not made in a timely manner. The Court held that a Black direction should have been given, as there was evidence that the jury had improperly made inquiries of the jury foreman. The Court further held that the trial judge should have given the direction, as the respondents had established that the jury had made inquiries of the jury foreman. The Court did not consider it necessary to direct a retrial of Holmes.

The Court ordered that the jury deliberations in Holmes' case be quashed, and that Holmes be retried. The Court further ordered that the High Court's special leave be granted, and that the matter be remitted to the High Court for further consideration. The Court did not make any orders in relation to the costs of the proceedings.

Orders