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 hours, and, after one or more jurors are examined on oath and it is unlikely they will reach a majority verdict: s 55F(2) Jury Act 1977. For a jury of 12, as here, a majority verdict requires 11 jurors to agree: s 55F(3) Jury Act.

The Court of Criminal Appeal of NSW, in R v Hunt [2011] NSWCCA 152, which says a jury must be kept until there is a possibility of a majority verdict. It was said, at [33], that a judge should continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum of 8 hours deliberation … and that this is so “notwithstanding that the jury may continue to advise the court it is unable to reach a unanimous decision”. Hunt concerned a note saying a majority verdict was possible, not that no verdict was possible. Hunt gave a comprehensive interpretation of s 56 Jury Act, but this s 55 point was obiter. It could, if strictly applied, conflict with the common law obligation on a judge to ensure a fair trial. A requirement fundamental to the decision in H.M. That obligation could only be overcome by explicit legislative or appellate direction. I say that conscious of the principle which places an obligation on judges to follow binding decisions of superior courts and the need for “submission” to that higher authority: Fleming v White (1991) 2 NSWLR 719, at 726.

In my opinion a purposive approach to interpreting s 56 Jury Act would mean that those parts of s 56 Jury Act that relate to majority verdicts do not apply or operate until s 55F Jury Act comes into operation. To require a jury who clearly cannot agree to wait until s 55F Jury Act can be applied would undermine a fundamental requirement that the jury must be free to deliberate without any undue pressure. Absent clear and unambiguous legislative or appellant direction to the contrary that principle would mean s 56 Jury Act must be read down to avoid that risk.

A judge has a duty to ensure a fair trial. If keeping the jury locked up after they clearly indicate that they could not reach agreement would put inappropriate pressure on the jury to reach a compromise and abandon their oath. To keep the jury together where voting figures indicate a majority verdict direction would in any event be futile and compounds the problem. It would lead, as occurred in H.M. to the inevitable conclusion the trial from that point had become unfair because of the risk that were a verdict to be delivered it would bot be in fact the true opinion of the majority. Further a judge has an obligation to the jurors. Here they have given their time and apparently conscientiously gone about their task. To keep them locked up for a further 3 hours, which would require them to return tomorrow could further exacerbate the risk of a compromise verdict. That risk alone would mean any potential verdict would not be fair and would require the trial to be aborted and the jury discharged. A judge has this general power regardless of what is set out in sections 55 and 56 Jury Act.

In these circumstances I propose to deal with the matter by polling the foreperson and getting her on oath to indicate that what is set out in her note is correct and if that is the situation then I shall discharge the jury.