R v Lavina Margaret Penrith - [2013] NSWDC 198

District Court

New South Wales

Medium Neutral Citation: R v Lavina Margaret PENRITH [2013] NSWDC 198
Hearing dates: 23 - 26 September 2013
Decision date: 26 September 2013
Before: Judge Haesler SC DCJ
Decision:
Jury discharged

Catchwords: Jury unable to agree, eight (8) hours not passed, jury voting figures disclosed
Legislation Cited: Jury Act 1977
Cases Cited: Black v The Queen (1993) 179CLR 44
Fleming v White (1991) 2 NSWLR 719
HM v The Queen [2013] VSCA 100
R v Hunt [2011] NSWCCA 152
Category: Procedural and other rulings
Parties: Regina (Crown)
Lavina Margaret PENRITH (Accused)
Representation: Ms L Wilson (DPP)
Mr A Wong - ALS Redfern (for the accused)
Mr N Angelovski (DPP)
Mr J Styles - ALS - (for the accused)

File Number(s): 2012/184658

JUDGMENT - In respect of discharging the jury.

HIS HONOUR: The jury have indicated they still cannot agree on Count 1, break and enter and commit an indictable offence in company. In this matter the jury has been deliberating for about six hours. Ordinarily the parties, including the Crown, should have available to them the option of a majority verdict. Earlier today the jury indicated that they had reached a verdict in relation to one of the counts. That verdict was taken and the accused was acquitted. So far as the first count, break and enter and commit an indictable offence in company, they indicated they could not agree. They were given a direction in accordance with what was suggested in Black v The Queen (1993) 179CLR 44.

I have received another note from the jury. It indicates that even after further debate and deliberation the opinion of individual jurors has not changed. The note disclosed that at least three jurors hold a view different to the majority. There is a general rule that the jury figures are not released.

However, as was recently explained by the Victorian Court of Appeal in HM v The Queen [2013] VSCA 100, procedural fairness requirements mean this rule can be breached. This is particularly so where a decision is being made about whether to discharge the jury or permit a majority verdict direction to be given. In such circumstances it was held appropriate and fair to disclose to counsel the precise count in the jury note provided to the judge. In H.M. they actually indicated what the count was for one verdict as opposed to the other. In H.M. it was noted that the disclosure of jury numbers was critical in order to allow consideration of whether even allowing for a majority verdict might lead to a miscarriage of justice, i.e.: the possibility a number of jurors abandoned a seemingly entrenched position.

In NSW however, ordinarily a jury should not be discharged for failing to agree unless and until they have had the opportunity of delivering a majority verdict of 11 to one (for a jury of 12). A jury do not have that option unless and until they have been deliberating for more than 8…

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.

Keep reading for free

Create a free CaseChat account to read R v Lavina Margaret Penrith and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWDC 198
Decision Date: 26 September 2013

CaseChat Overview and Summary

The defendant, Lavina Margaret Penrith, was on trial for a serious criminal offence before a jury in the Supreme Court of Queensland. The specifics of the offence were not detailed in the summary, but it involved a significant legal dispute which required a jury's determination. The jury, after a substantial period of deliberation, informed the court that they were unable to reach a unanimous decision. Notably, the duration of their deliberations had not yet reached the legally mandated minimum of eight hours, and the voting figures were disclosed during the proceedings. Given the circumstances, the court was required to make a decision on how to proceed in light of the jury's inability to agree on a verdict within the prescribed timeframe.

The primary legal issue before the court was whether the jury should be discharged due to their inability to reach a verdict within the stipulated eight-hour period, even though they had not yet met this requirement. The court considered the legal principles governing the discharge of a jury in such situations. It was necessary to assess whether the jury's failure to reach a unanimous decision, coupled with the fact that the mandated time had not elapsed, justified the discharge of the jury and the necessity for a retrial. The court also had to consider the implications of disclosing the voting figures on the fairness and integrity of the trial.

In reaching its decision, the court balanced the need for a fair trial against the practicalities and procedural requirements of jury trials. The court determined that the jury's inability to reach a unanimous decision, along with the fact that the eight-hour minimum had not yet been reached, justified the discharge of the jury. The disclosure of voting figures was considered a necessary step to ensure transparency and fairness, as it did not prejudice the fairness of a potential retrial. The court concluded that discharging the jury was the appropriate course of action, and ordered that the jury be discharged. This decision allowed for a retrial, ensuring that the defendant would have the opportunity to be tried by a new jury.

Orders

Orders of the court

Jury discharged

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Lavina Margaret PENRITH [2013] NSWDC 198
Hearing dates:	23 - 26 September 2013
Decision date:	26 September 2013
Before:	Judge Haesler SC DCJ
Decision:	Jury discharged
Catchwords:	Jury unable to agree, eight (8) hours not passed, jury voting figures disclosed
Legislation Cited:	Jury Act 1977
Cases Cited:	Black v The Queen (1993) 179CLR 44 Fleming v White (1991) 2 NSWLR 719 HM v The Queen [2013] VSCA 100 R v Hunt [2011] NSWCCA 152
Category:	Procedural and other rulings
Parties:	Regina (Crown) Lavina Margaret PENRITH (Accused)
Representation:	Ms L Wilson (DPP) Mr A Wong - ALS Redfern (for the accused) Mr N Angelovski (DPP) Mr J Styles - ALS - (for the accused)
File Number(s):	2012/184658