DISTRICT COURT OF QUEENSLAND
CITATION:
R v NS [2017] QDC 148
PARTIES:
THE QUEEN
v
NS
FILE NO/S:
545/16
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Cairns
DELIVERED ON:
23 May 2017 (ex tempore)
DELIVERED AT:
Cairns
HEARING DATE:
23 May 2017
JUDGE:
Smith DCJA
ORDER:
Ruling in accordance with the reasons
CATCHWORDS:
CRIMINAL LAW- TRIAL BY JURY- VERDICTS- when 8 hours for majority verdict direction expires- are redirections excluded from the calculation of the 8 hour period
Criminal Code 1899 (Q) s 620
Criminal Justice Act 1967 (UK) s 13
Juries Act 1967 (Vic) s 47
Jury Act 1977(NSW) s 55F
Jury Act 1995 (Q) s 59A
BR v R (2014) 239 A Crim R 411; [2014] NSWCCA 46
Papazoglou v R (2014) 244 A Crim R 119
R v Rodriguez [1998] 2 VR 167
COUNSEL:
Ms M Franklin for the crown
Mr P Feeney for the defence
SOLICITORS:
Office of the Director of Public Prosecutions for the crown
Queensland Lawyers for the defence
In this case, an issue has arisen whether I can give a majority verdict direction at this stage. The situation is the jury retired yesterday at 4.20 pm. They were here until 5.52 pm – one hour, 32 minutes – and today, 23rd of May 2017 from 9 am until 1 pm – four hours. There was lunch for half an hour and then 1.30 pm until now, which is 4.39 pm. There was a redirection at 9 am which lasted for over two hours, which involved the replaying of the 93A statement and the pre-recording. The issue is this: has the eight hours referred to in section 59A expired? If the redirection is included as part of considering the verdict, on my calculations, that expired at 3.58 pm. Both counsel agree with that timing. If it’s not included, we’re not at the eight hour mark now.
Mr Feeney submits that section 59A should be read to exclude any period of redirections. He argues that we have not reached the eight-hour mark yet. In developing this argument, he refers to section 620 of the Criminal Code. He then refers to the important principle discussed in R v RJS (2007) 173 A Crim R 100 at 104, that the requirement of unanimity of a jury is a longstanding principle of fundamental character. He argues that the use of the word “consider” implies exclusion of redirections. He further submits that there is no consideration when the jury is watching tapes during redirections.
Ms Franklin, on the other hand, submits the legislative intention is clear. She submits that the eight hours starts once the jury retires, and the mere fact that a jury is in court watching tapes, for example, by way of redirection does not mean they are not considering the case. She argues that each of them is still considering the verdict. There might not…
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- AGLC
- R v NS [2017] QDC 148
- Case
- [2017] QDC 148
- Decision Date
CaseChat Overview and Summary
The court considered the reasoning in previous cases, such as R v Rodriguez and Papazoglou v R, and noted that the NSW Court of Criminal Appeal in BR v R held that 'deliberation' does not occur during a redirection. However, the Queensland position, aligning more closely with the UK position, suggested that each member of the jury was considering the matter individually during redirection. Given the short and straightforward nature of the evidence, the court concluded that it was reasonable to give the majority verdict direction.
In making its decision, the court weighed the complexity of the trial against the likelihood of reaching a unanimous verdict. With the jury having deliberated for a significant period and two notes indicating they could not reach a unanimous verdict, the court determined it was reasonable to proceed with the majority verdict direction. The final ruling was made in accordance with these reasons.
ORDERS:
The court issued a ruling in accordance with the reasons provided, allowing for the majority verdict direction to be given.
Orders
Orders of the court
Ruling in accordance with the reasons
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In R v Rodriguez [1998] 2 VR 167 the Victorian Court of Appeal considered section 47 of the Juries Act 1967 (Vic) which provided “… if all the jurors after at least 6 hours deliberation are unable to agree on their verdict a majority verdict may be taken as the verdict of all.” In this case it was held at page 186 that it was clear that any period during which the jury returns home must be excluded. Also at page 186 it was said that a jury is not deliberating “… whilst they were away from the court for a prolonged period of time in the charge of strangers”. But “I should think that a jury deliberates during even a prolonged redirection, although a prolonged redirection might well affect the exercise of the judge’s discretion.” The Victorian Court of Appeal in Papazoglou v R (2014) 244 A Crim R 114 also considered the issue. In that case the jury retired at 330pm on Friday and deliberated for 1 hour. On Monday the jury resumed deliberations. At about 1pm on Tuesday (about 7 ½ hours after the jury had retired excluding breaks) the Judge received a note that one juror was refusing to deliberate from the outset of deliberations on Monday. The judge gave a Black direction and a majority verdict direction. Counsel argued that there had been no deliberation because a juror had not taken part in the deliberations. By majority the appeal was dismissed. Maxwell P held [257] that the court was not concerned with how jurors used their time but that they had the capacity to deliberate. Physical separation denies that capacity. But that case did not specifically consider whether a redirection was excluded. Priest JA would have allowed the appeal.[1] [1]Special Leave was refused see [2015] HCA Trans 30. However, the New South Wales Court of Criminal Appeal in BR v R (2014) 239 A Crim R 411; [2014] NSWCCA 46 expressed the opinion that “deliberation” does not occur during a redirection because there is no capacity for them to consider and discuss the case collectively (para 22). This is because of the meaning of the term “deliberate” i.e. inter alia “discussion of reasons for and against” and “debate”.[2][2]See [19]- reference to Oxford English Dictionary. However, s 55F of the New South Wales Jury Act 1977 provides as follows: It may be noted that the NSW and Victorian Acts are different to the UK Act. Also in the Queensland legislation the words are “retire to consider” are used. The word consider is defined differently to “deliberate”. “Consider” means “contemplate mentally in order to reach a conclusion”. “Formed after careful thought”.[3] There is no requirement for discussion in the definition.[3]Oxford Concise Australian Dictionary. In my view each member of the jury is considering the matter after retirement when a redirection is given. Accordingly in my view BR may be distinguished from the Queensland position. The Queensland position is more in line with the UK position. The next question arises, of course, is whether the judge considers it reasonable, having regard to the complexity of the trial, to allow a further period. Now, the reality here is we have two notes now indicating they cannot reach unanimous verdict on both counts. Both counsel agree I should form the opinion that the jury is unlikely to reach unanimous verdict after further deliberation. The evidence was only short in compass in this trial. They’ve watched the interviews and the pre-recording twice now. They’ve been out since about 4 pm yesterday. I think it’s reasonable to give the majority verdict direction now, and I propose to do so.