R v Thompson
[2013] SADC 22
•13 February 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THOMPSON
[2013] SADC 22
Ruling of His Honour Judge Slattery
13 February 2013
CRIMINAL LAW - PROCEDURE - JURIES - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - VERDICT - GENERALLY
At the end of the 4 hour period after the jury had retired to consider its verdict, the Court reconvened in order to consider whether a Black Direction should be given.
The Jury foreperson indicated that the Jury was deadlocked and that because of the views of the members of the jury, no further time for deliberation would assist in coming to a verdict. The foreperson failed to announce that it was deadlocked on only the third of the three counts and that a verdict has been reached on the first and second counts.
Jury discharged. After discharge of the jury, the jury foreperson indicated to a Court officer that the jury had reached a verdict on the first and second counts and was only deadlocked on the third count.
Whether after the discharge of the jury an opportunity should be given to the jury to correct the error and to announce the verdict on the first two counts.
Held: Correction allowed and jury permitted to announce its verdict in respect of the first two counts.
Juries Act 1927 (SA) s57, referred to.
R v Cefia (1979) SASR 171 ; Reg v Vodden (1853) Dears. 229 (169 ER 706) , applied.
Wigmore on Evidence 3rd ed. VIII at para.2355 ; R v Harrison (1957) VR 117 ; R v Eyers 19 SASR 244 , considered.
R v THOMPSON
[2013] SADC 22RULING
The accused, Gordon William Thompson (Thompson), was charged on information on the following four counts:
“First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gordon William Thompson between the 3rd day of June 1958 and the 3rd day of June 1960 at Greenacres, indecently assaulted Victim 1, a child aged between 6 and 7 years.
Second Count
Statement of Offence
Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gordon William Thompson between the 3rd day of June 1958 and the 3rd day of June 1960 at Greenacres, committed an act of gross indecency in the presence of Victim 1, being a female aged between 6 and 11 years.
Third Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gordon William Thompson between the 3rd day of June 1963 and the 3rd day of June 1966 at Greenacres, indecently assaulted victim 1, a child aged between 11 and 13 years.
Fourth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gordon William Thompson between the 10th day of November 1963 and the 10th day of November 1968 at Greenacres, over a period of not less than three days, committed more than one act of sexual exploitation of victim 2, a child under the prescribed age.
It is further alleged that the particulars of the offence are that Gordon William Thompson touched the vagina of Victim 2 with his fingers, inserted a drill bit and a screw driver into her vagina, on numerous occasions and on different dates.”
The trial in this matter commenced in the District Court on the 5th day of February 2013. There was a two day voir dire hearing. By a Rule 15 application dated 1st of February 2013, the accused sought the following orders:
“Orders sought
1. That the counts 1, 2 and 3 on the information dated 4/10/11 be severed from counts 4, 5 and 6 and a separate trial be held with respect to each group of counts.
2. That evidence of complaint from;
a. Victim 1 with respect to the allegations relation to Victim 2 and
b. Victim 2 as to the allegations relating to Victim 1 and
c. Victim 2’s husband as to the allegations relating to Victim 2,
be entirely excluded. The evidence is not properly admissible as complaint pursuant to section 34M of the Evidence Act (‘the Act’).
3. That the prosecution provide further particulars for counts 1-6 inclusive.”
3The accused also provided the particulars in respect of each of the grounds.
I delivered my ruling in this matter on Wednesday 6 February 2013 and made Orders as follows:-
“1. That Count 2 on the information dated 14 October 2011 be severed from counts 1, 3 and 4 and a separate trial be held with respect to that count;
2. That pursuant to s34M of the Evidence Act, that Victim 1 be permitted to give evidence of the initial complaint made to her husband concerning the allegation relating to the accused but that otherwise, Victim 2 be prevented from giving any evidence in relation to any initial complaint either by herself or by Victim 1;
3. No Order necessary.”
The trial proper commenced on Thursday 7 February 2013.
6On Wednesday 13 February 2013, I directed the jury by way of summing up and they subsequently retired for their deliberations at 2.47pm.
7At 5.17pm, I returned to the bench after having received a question from the jury. It read:-
“P.5, in reference to the sentence “You, the jury, must be agreed as to the specific acts of sexual exploitation which make out the offence”. Does the jury as a whole need to agree on the same two specific acts of sexual exploitation or do we need to agree that at least two occurred; e.g. juror one agrees that screwdriver and contact incident happened but juror five agrees that screwdriver and piggyback happened?”
8I discussed this question with counsel before having the jury return to the courtroom. It was agreed that the explicit direction I should give to the jury was:-
“The prosecution must satisfy you that the accused committed the same two specific acts of sexual exploitation”
9 The jury re-entered the courtroom at 5.20pm and I provided that direction to the jury in response to their question.
The jury subsequently left the courtroom at 5.23pm to continue their deliberations.
At 6.51pm, I again returned to the courtroom to address another question from the jury. It read:-
“If the jury is unable to come to a majority verdict of 10 or more, what is the procedure? No juror is willing to change their decision.”
After discussions between bench and bar, I considered that there were two choices then available to me. One was to give a “Black Direction” and ask the jury to deliberate further. The second was to ask the jury foreperson whether in the opinion of the foreperson and the jury further time would be of assistance to reach their verdicts. I would therefore ascertain if the jury were then hopelessly deadlocked.
I had, by that time, received submissions from both counsel that it would be inappropriate for me to give a Black Direction to the jury at that time in light of the content of the question received from the jury.
The jury re-entered the courtroom at 6.55pm after expiry of the relevant four hour time period for s57 of the Juries Act 1927 and I had the following discussions with the foreperson of the jury:-
HIS HONOUR: Madam foreperson of the jury, I have a note that the jury is unable to come to a verdict, a majority verdict, that is 10 or more, and the position is that no juror is willing to change his or her or their position.
Madam foreperson, could you answer this question for me if you can: would the provision of further time to you, in your view, be of assistance in coming to that majority verdict?
FOREPERSON: No. I don’t believe so.
HIS HONOUR: You are quite certain of that?
FOREPERSON: Yes.
HIS HONOUR: Gentlemen, I am in a position where I think that the jury must be discharged; a hung jury.
MR HEFFERNAN: Yes.
HIS HONOUR: Ladies and gentlemen of the jury, that means that you are unable to come to either a verdict or a majority verdict. It is what is called ‘a hung jury’; that is, that you are unable to come to a decision.
Thank you very much for your attendance. Thank you for your deliberations. You are now free to go. Thank you, you are discharged.”
The jury was subsequently discharged.
I left the bench at 6.59pm.
As soon as I had done so and before I had re-entered my Chambers, my associate advised me of a conversation had between a Sheriff’s Officer and the jury foreperson to the effect that the jury had a verdict for counts 1 and 2.
I asked for the jury to remain in the jury room until I had resolved the position.
I returned to the bench at 7:09pm.
I received submissions from counsel that focused on the question of the position of a jury that had been discharged, it not having been in a position to reach a verdict or a majority verdict.
The substance of the submissions put to me on behalf of the accused were that, in effect, once the jury was discharged there was no “jury” as such remaining and that any decided case at common law relating to the question of delivery of a verdict being corrected was not authority for the present circumstances of this case because those cases were dealing with the question of the correction of a verdict delivered in a court. That is, as a matter of principle, there was a distinction to be made between the circumstances of a mistake made concerning a jury that had been discharged where it had indicated that it was unable to come to a verdict or a majority verdict on one side and on the other where it had indicated that it had reached a verdict but that the communication of that verdict was incorrect.
The position of the prosecution was the antithesis of the position put by the accused. Mr Fowler-Walker submitted that no distinction could reasonably be made between the announcement by the jury of a wrong verdict and the mistaken announcement of a position of a deadlocked jury on one count but failing to inform the Court of a verdict reached by the jury on the other two counts.
The matter to be decided by me in this case is whether as a matter of policy or principle there was a distinction to be made between an announcement that a jury is unable to reach a verdict or a majority verdict (which announcement is mistaken to the extent that it fails to inform the Court that a verdict has in fact been reached on two of the three counts that the jury has considered) and, on the other hand, an announcement by the jury of a verdict that is in fact wrong.
It became necessary to consider any relevant authority pertaining to the point in light of this question for my determination.
The first decision I was referred to was a decision by the Full Court of the Victorian Supreme Court in R v Harrison.[1] The facts of that case were that after a jury in a criminal trial had been empanelled, one of the jurors informed the trial Judge that he was a business acquaintance of the accused. The Judge then discharged the jury and a second jury was empanelled, which tried and convicted the accused on counts of obtaining money fraudulently by means of wilfully false promises. By a majority, the Court of Appeal decided that the first jury should not have been discharged but in any event decided that even if the discharge of the jury was erroneous, it constituted no legal bar to a trial by the second jury.
[1] (1957) VR 117 (Harrison).
Despite the fact that Gavan Duffy J was in the minority on the issue, in my respectful opinion, his Honour correctly stated the law when he said at page 118 as follows:-
“In my opinion, however, when a Judge determines that a jury should be discharged because it is discovered that one of the members thereof is so obviously prejudiced or so obviously likely to be prejudiced that to continue the trial with him as a member of the jury would work an injustice or would be likely to produce the belief that justice was not being done, he is not only doing something that he has jurisdiction to do but a Court of Appeal may only interfere on those grounds which have now been clearly enough established to apply to a review of the exercise of a trial Judge’s discretion.”
After having identified that his Honour’s finding was inconsistent with two settled authorities in the Victorian Court, his Honour went on to say at page 119:-
“It is quite apparent from the authorities that a trial Judge may in certain cases of necessity discharge a jury and I can see no reason why his authority to do so should not extend to cases where the presence of a certain member of the jury would be very likely to result in justice not being done or I may add, not appearing to be done…”
Although the decision is not on point and is therefore of limited assistance because it involves a question of an appeal against the discharge of a jury and the status of a judgment delivered in a subsequent trial, it does, to an extent, rely upon the application of what may be described as “common sense” in and about the control and discharge of a jury.
I was then referred to the decision of the Full Court of the Supreme Court of South Australia in R v Cefia.[2]
[2] (1979) SASR 171 (Cefia).
The relevant facts of that matter were that a foreman of a jury, when called upon to give a verdict of the jury, said ‘not guilty’. The trial judge then discharged the jury and the prisoner and some of the members of the jury then left the courtroom but were still in the court building. The registrar of the Court was in the process of adjourning the court and the Judge was leaving the bench when an officer of the Court who had been informed by one of the jury called out that there had been a mistake.
The trial Judge recalled the jury and upon questioning the foreman and each member of the jury ascertained that the verdict reached had been guilty and that the foreman had said ‘not guilty’ in error. The trial Judge then accepted the verdict of guilty and sentenced the prisoner.
On appeal, the ground of appeal was that the verdict originally announced should have remained the verdict. The Court of Criminal Appeal dismissed the appeal immediately and later delivered reasons.
The leading judgment of the Court of Criminal Appeal was that of King CJ and Sangster J. Hogarth J agreed with their Honours’ decision.
Their Honours held at page 173 of the report as follows:-
“The appellant’s contention is that the jury’s verdict as originally announced (albeit that it was not, in fact, the verdict agreed upon the jury - indeed, the very opposite) remains the verdict upon which the appellant is entitled to be acquitted. In answer to a question from the bench, counsel for the appellant answered that the same argument would equally apply had the jury’s verdict as originally announced been guilty but the jury had, in fact agreed upon a verdict of not guilty. It is of interest to note that in the present case there is no appeal or application for leave to appeal on any other ground.
At the conclusion of counsel’s arguments, the court dismissed the appeal and announced that it would publish its reasons later. It decided that the appellant should not be called upon to remain uncertain of his fate any longer than necessary.
In our opinion, the case is covered by the principle that where a jury has, in fact, agreed upon its verdict but by error has communicated not that verdict but something else, that jury - acting unanimously - may correct that error and correctly communicate the verdict actually agreed upon.”
Their Honours then quoted from Wigmore on Evidence, 3rd ed. VIII at para.2355 particularly at subpara.[2] at pp.707-708 as follows:-
“It has occasionally been said that this correction must be claimed before the jury are discharged; but this seems unsound, because such errors are seldom ascertained until after the jury have separated and conversed out of court; and if the error is satisfactorily established, there can hardly be any fixed time to limit its correction. Subject to this qualification, it is universally conceded that unanimous errors of the jury in delivering the verdict as already unanimously agreed on in the jury room may be shown for the purpose of correcting it to correspond, or, when this is not safely to be done, of ordering a new trial.”
At pages 173-174 of the report, their Honours discussed a series of decisions on similar but slightly different circumstances. In particular, their Honours said at page 174:-
“Reg v Vodden[3] (a criminal trial where the jury returned a verdict of “not guilty” which was entered in the minutes of the clerk; the prisoner was discharged out of the dock but members of the jury interfered and said the verdict was “guilty”: the prisoner was brought back and the jury was asked again for its verdict – they all said “guilty”. On appeal (Jervis CJ, Pollock CB, Parke B, Coleridge J and Williams J) the conviction was upheld. Parke B said “a wrong verdict was taken in the first instance and corrected on the spot”. Pollock B said:
“We do not think the Court is called upon to say what interval of time a correction should be made. All we do is to say that in the present case the interval was not too long. Nothing is being done but what daily takes place in ordinary transactions of life; namely, a mistake is corrected within a reasonable time, and on the very spot on which it was made.
We are all of the opinion that what took place was right.” (At page 231)
[3] (1853) Dears. 229 (169 ER 706).
Their Honours then referred to the decision in South Australia of R v Eyers and said as follows:-
“R v Eyers a criminal trial where the foreman said “not guilty” and almost immediately - certainly before the verdict could be said to have been taken - said “sorry guilty”: the questions were put again and a verdict of guilty accepted. On appeal, the court said:
“It is clear on the authorities that a jury has the right to correct its verdict at any time until it is discharged; and as the transcript shows it had not been discharged when the foreman attempted to correct his original statement of ‘not guilty’.”
Their Honours in Cefia at the bottom of p.174 went on to say:-
“We take the passage quoted from R v Eyers to mean that the correction could be made before the jury was discharged, but not to mean that the correction could not be made thereafter.”
There was then discussion of the timing in respect of which a correction might be made.
At p.175 of Cefia, their Honours held as follows:-
“There is certainly authority supporting the division of the problem into two parts - expunging the false “verdict” and choosing the consequences i.e. correction or a new trial. It is not necessary however for us to decide and we express no opinion as to what the position would have been in this case if the jury had separated and left the precincts of the Court before the error was disclosed.”
On my reading of the decision of the Court of Appeal in Reg v Vodden[4] the correct approach in relation to choosing the consequence may be guided by what takes place in the ordinary transactions of daily life namely a mistake is corrected within a reasonable time and on the very spot on which it was made. In this matter, the jury has not dispersed and, at my direction, has remained in the jury room during the time that I heard argument in relation to this matter.
[4] Supra.
In the resolution of this matter, it is immediately to be noted that when at p.173 in the decision in Cefia, the Court identified the relevant “principle”, it identified the principle generally as being connected with a verdict having been announced by error; the communication to the Court was not that verdict reached but was “something else”; the jury, acting unanimously may correct the error and communicate the verdict actually agreed upon.
In Cefia, their Honours relied upon the passage from Wigmore on Evidence. It is important to note that the passage from Wigmore was referring to the delivery of the “verdict” and hence Mr Heffernan’s submission in relation to the distinction to be made between the delivery of a “verdict” and the announcement that a verdict or a majority verdict could not be achieved because the jury is deadlocked.
It may immediately be observed that the principle as explained in Wigmore on Evidence and as referred to by their Honours, is not as broad as the “principle” referred to by the Court at page 173 of the Cefia decision.
In my view, on a proper reading, the principle announced by the Court in Cefia at page 173 does not confine itself only to a “verdict” but also the mistaken announcement by the jury of “something else”. That is, it is possible for a jury to communicate “something else” that is not its verdict – for example, that it is deadlocked – and so be in error. When in that paragraph the Court was referring to the “correction” it was deliberately using that expression broadly and referred generally to correcting an error so that the “verdict” may correctly communicate the verdict actually agreed upon and not what was earlier communicated by the jury in error.
In my view, it is clear from the decision of the Court in Cefia, particularly at page 174, that it is possible that once a jury has been discharged in circumstances where a mistake has been made by that jury, and if it is possible in the physical circumstances of the case, the jury may be recalled to make a correction. The issue for my decision is whether or not the correction may only relate to a “verdict” or to “something else” that is communicated by the jury to the Court
It is my view that, having regard to the relevant authorities cited above, the correction can be made to the mistaken announcement by the jury that they were deadlocked when in fact they had reached a verdict on count 1 and 2 and were only deadlocked on count 3. In my view, the jury should be permitted to correct the error made and to announce their verdict in relation to each count. It is my view, that in so doing the jury were “…doing what daily takes place in the ordinary transactions of life, namely correcting a mistake within a reasonable time and, as here, on the spot on which it was made…”
However, if I am wrong in that view, it is still my view that this case falls within the principles enunciated in Cefia and, in fact comes within the principles as explained by the author of Wigmore on Evidence as I have set them out above.
The reasons are these: the jury has only announced its position as it is now understood in relation to count 3 (i.e. that it is deadlocked) concerning the allegations of Victim 2. By an error, it has not announced its verdict in relation to counts 1 and 2 concerning Victim 1 and so there has been an error made in communicating (and therefore understanding) what is the actual position of the jury. In those circumstances, as a matter of common sense, the jury has been discharged only in respect of the matter in respect of which it was unable to come to a majority verdict and that position would not now change because, as I am informed, no error has been made in relation to that.
Consistent with the approach of the Full Court in Cefia, a correction may be made to a mistake concerning an announcement of the jury as communicated to the Court where the jury has now communicated its position as being something different than from what was erroneously communicated to the Court even if this was ascertained after the jury has been discharged.
In my view, the jury has been discharged only in respect of count 3. The reason I say that is because the misunderstanding within the Court was that the deadlock concerning the verdict or the majority verdict applied in relation to counts 1, 2 and 3 and that was in error. The misunderstanding therefore, was that the jury would be discharged in relation to all three.
There is no error that the jury is discharged in relation to count 3. The error is that the jury did not inform the court that it had reached a verdict in relation to counts 1 and 2. What was communicated by the jury was not its verdict but something else. That being the case, it is my opinion that following the decision of the Full Court in Cefia on both of the grounds that I have decided, it is necessary for me to recall the jury and to ask them whether it is conceded by them that a unanimous error had been made in informing the Court of the position in relation to counts 1, 2 and 3. If the answer is in the affirmative, then it is also my view that the jury should be entitled to make a correction to inform me that they were unable to reach a majority verdict only in relation to count 3 and that they have a verdict to deliver in relation to counts 1 and 2.
In those circumstances, it is my judgment that the jury be recalled to the Courtroom, that I question them in relation to their position and if I am satisfied that an error has been made and I was informed of something else other than the verdict that they reached, then an opportunity should be given to the jury to correct the position.
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