R v James

[1995] QCA 57

IN THE COURT OF APPEAL [1995] QCA 057

SUPREME COURT OF QUEENSLAND

C.A. No. 438 of 1994

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[R. v. James]

T H E Q U E E N

v.

TERRY ROBERT JAMES

(Appellant)

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 08/03/95

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDSCRIMINAL LAW - STEALING - Breaking & Entering - Judges directions to jury - Whether a reference to collective responsibility of jury could be understood by individual jurors as an invitation to subordinate his view to that of majority - Black v. The Queen (1993) 68 A.L.J.R. 91.

Counsel:	D. Lynch for the appellant L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant
Queensland Director of Public Prosecutions for the respondent
Hearing Date:28 February 1995 complainant's unit was broken into at 2.15 p.m. on 21 August 1993. A nearby resident who gave evidence saw it happen. He noticed a car, with the appellant in it, parked in the road outside the units, and then saw a man and a woman looking into the complainant's unit. They pulled a steel grille from a window, and the woman crawled inside while the man waited outside. After a couple of minutes she passed a sportsbag out of the window to her companion, followed by some other items. The car was then reversed from the road and was brought to a halt in the carpark close to the unit. Its rear door was	REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 8th day of March 1995

The appellant was charged in the District Court with one
count of breaking and entering a dwelling house with intent, and
a second count of stealing various items which were the property
of the occupier of that dwelling. At his trial he was found not
guilty on count 1, but guilty on count 2. He was convicted and
sentenced to probation with community service, and ordered to
make restitution. This is an appeal against that conviction.

opened, and the bag and other property was placed in the rear seat. The car was then driven off with all three persons in it. The witness had taken the car registration number and the vehicle was traced to the appellant's mother, who had lent it to the appellant that day. When interviewed by police the appellant said that after attending a party he had driven the other two persons to the address in question. The woman said she had left some of her property there, which she wanted to collect. The appellant said he did not know the woman's name or where she lived. He knew the man, whose name he said was Travis, and knew where he lived, which was in an old bus in a caravan park. When the police went there they found no man named Travis and no bus. In a subsequent interview with police that was tape-recorded, the appellant gave an account of what he had done which differed in certain material respects from what

he had said on the first occasion. That was after he had been

told that there was an eye-witness who had seen what had
happened.

The appellant did not give evidence at the trial, and the jury were entitled to conclude that the account he had given to

the police was not true. In finding him not guilty of breaking and entering, but guilty of stealing, the jury may well have concluded that the appellant first became aware that the goods were being stolen only when he assisted in loading them into the car and driving off. That would have been sufficient to make him a party to the stealing alone without his being party to the

breaking and entering offence.

On appeal no point is taken about any of this. What is said, however, is that the trial judge gave a direction that was not in accordance with the formula laid down in Black v. The Queen (1993) 68 A.L.J.R. 91, 95 col. 1 B-G. What happened at

the trial was that the jury retired to consider their verdict at 12.26 p.m. At 4.34 p.m. the judge had them brought back into court, where he addressed them as follows:
"HIS HONOUR:Members of the jury through your foreman, are
you making any progress in the matter?

FOREMAN:No, Your Honour, we are not.

HIS HONOUR:Yes, all right. Members of the jury, you
represent the community in this Court.
You have important duties to perform
and the community expects you to
perform those duties. The Crown
prosecutor and defence counsel have
discharged their duties. I have
endeavoured to discharge my duty and
now is the time for you to perform
your duties. It is just not good
enough to shrug your shoulders and say
it is too hard and walk away from this
case and go off home and watch
television. You have duties to

perform and the community expects you

to perform those duties.

Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues, but if after calmly considering the evidence and listening to the opinions of other jurors you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has sworn that you will give a true verdict according to the evidence.

That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light.

You also have a duty to listen carefully and objectively to the views of every one of your other jurors. You should calmly weigh up one another's opinion about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinions which you may have and may convince you that your original opinion was wrong.

That is not, of course, to suggest that you can consistently with your oath as a juror join in a verdict if you do not honestly and genuinely think that it is the correct one. Experience has shown that often jurors are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason, Judges usually request jurors to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged."

After hearing his Honour say this, the jury retired once more to consider their verdict. It was then 4.37 p.m. The verdict was returned at 5.40 p.m.

The complaint about the direction given by the judge is confined to the first paragraph of the extract set out above. The remainder of it beginning with the words "Judges are usually reluctant to discharge jurors ..." is taken exactly from the direction approved in Black v. The Queen. The first two

sentences of the Black direction refer to a case where the judge has been told that the jury have not been able to reach a verdict. That was not the case here, so that the inclusion of those two sentences was not appropriate in the circumstances of this case. That is obviously why the judge substituted the first paragraph contained in the extract set out in these

reasons.

It was not submitted on appeal that it was not within the exercise of a proper discretion for the judge to give a direction at the time he did. The case was a comparatively

simple one in which, having regard to what was said by the foreman, the members of the jury were not making any progress in the matter. Nor is it suggested that some departure from the precise form of words used in Black was not justified in the circumstances. What is argued is that the effect of what his Honour said in the first paragraph carried "the risk that references to a collective responsibility or duty may be understood more broadly by the jury and as an invitation to an individual juror to subordinate his or her views to those of the majority" (Black v. The Queen (1973) 68 A.L.J.R. 91, 94 col. 2E).

The form of words used here perhaps comes somewhat close to the margin in stressing, as it does twice in the first paragraph, the duties of the jury to the community and the expectation of the community that the jury will perform those duties. In the end, however, we do not think that, followed as

it was by the explicit cautions administered in the remaining

paragraphs, which were taken directly from Black, any individual juror would or might have been led to think he or she was being

invited to subordinate his or her views to those of the majority of jurors. The present appeal does, however, emphasise the problems that may arise from straying too far from the formula authoritatively laid down by the High Court in Black, or of including in it expressions that begin to shade into the area

which prompted their Honours' concerns in that case. strength of the evidence against the appellant at the trial, we do not consider that there has been any miscarriage of justice, or that his Honour's direction to the jury that has been challenged here had the effect of depriving the appellant of any chance which was otherwise fairly open to him of being acquitted of stealing.

The appeal should be dismissed.