R v Holmes (No 6)

[2021] NSWSC 116

Supreme Court

New South Wales

Medium Neutral Citation:	R v Holmes (No 6) [2021] NSWSC 116
Hearing dates:	1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18 February 2021
Date of orders:	18 February 2021
Decision date:	18 February 2021
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I propose to provide the majority verdict direction to the jury.
Catchwords:	CRIMINAL PROCEDURE – Majority verdicts – Whether majority verdict direction may be given
Legislation Cited:	Jury Act 1977 (NSW)
Cases Cited:	N/A
Texts Cited:	N/A
Category:	Procedural rulings
Parties:	Regina (Crown) Shane Holmes (Accused)
Representation:	Counsel: Robert Munro (Crown) Angus Webb (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Adrian Kiely Legal (Accused)
File Number(s):	2018/20429

EX TEMPORE Judgment – revised

1. I have received a note from the jury, which has been marked jury note 9 indicating that the jury, after much discussion, find themselves at a stalemate and require further direction with respect to achieving a unanimous verdict. This is the second note I have received from the jury indicating an inability to agree.

2. The first note was jury note 4, received during the morning of Wednesday 17 February 2021 when the jury had already been deliberating for over eight and one-half hours. I gave the usual Black direction and since then the jury have been deliberating for another day and some hours. During that time, they have asked a number of pertinent questions, which have been answered.

3. After I received jury-note 9 at 3 o’clock this afternoon I reassembled the Court and conducted an enquiry of three jurors under oath or affirmation. I asked each of them to provide their estimate of the chance of the jury coming to an agreement about the verdict in the case if given more time. The jury foreman thought the chances were good, given an extra day or two of deliberation. A female juror was firmly of the view that unanimity would not be achieved. Another male juror was very confident, given more time, that unanimity would be achieved. He rated his level of confidence at 9 out of 10. Both the foreman and that male juror indicated that their feeling was that progress was being made and had been made over the last couple of days and that the answers provided to their questions were helping them to make that progress.

4. My present concern is whether I am required by law to give the jury the majority verdict direction under s 55F of the Jury Act1977 (NSW). Section 55F(2) prescribes two conditions. The first is that the jurors have deliberated for a period of time, being not less than 8 hours, that the Court considers reasonable, having regard to the nature and complexity of the criminal proceedings. The jury have been deliberating for about 18 hours in this case.

5. Despite the importance of the proceedings, it being a murder trial, there are only two substantial issues, one relating to whether the Crown have proved beyond reasonable doubt that Mr Holmes had the necessary intent to constitute murder, and the second being whether the Crown has negatived any reasonable possibility beyond reasonable doubt of him having acted in self-defence. I accept that matters of intention involve a degree of complexity, conceptually and factually.

6. Notwithstanding that, the evidence has been straightforward, and I am satisfied that the jury have deliberated for a reasonable period of time so that the condition imposed by para (a) of sub-s (2) of s 55F is satisfied.

7. The question about the second condition is not so easily resolved. Paragraph (b) of sub-s 2 of s 55F is in the following terms:

“(if) the Court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation”.

8. Given the relative confidence of the foreman and the other male, one could easily answer that question in the negative and the appropriate approach would be not to give the majority verdict direction, unanimity being greatly valued by the common law. On the other hand, the female juror’s firmness in her assessment that it was not going to happen impressed me and it obviously goes without saying that it only takes one juror to stand against the tide of the views of other jurors to effectively block unanimity being achieved. I also call in mind that the usual direction given under s 55F exhorts the jury to continue to strive for unanimity. I am not for a moment suggesting that the female juror is a so-called “recalcitrant juror” but if one adopts the assumption that that could be the case, then obviously given her expressed attitude under affirmation, it is unlikely that the jurors will reach a unanimous verdict after further deliberation.

9. Although I have not found the question easy to decide in this particular case, given the length of time that the jury have been out deliberating, the consideration that this is the second time that they have reached a stalemate during their deliberations and asked for further directions, and the firmness of the evidence elicited or adduced from the female juror, I am satisfied that the s 55(2)(b) condition is also satisfied.

10. In the circumstances, I propose to provide the majority verdict direction to the jury.

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Decision last updated: 19 February 2021