The Queen v MB
[2014] ACTSC 59
•18 March 2014
THE QUEEN v MB
[2014] ACTSC 59 (18 March 2014)
CRIMINAL LAW – Juries – Black direction
Juries Act 1967 (ACT), s 38
Black v The Queen (1993) 179 CLR 44
Burrell v The Queen (2007) 190 A Crim R 148
Crosdale v The Queen [1995] 2 All ER 500
Makarov v The Queen (No 3) [2008] NSWCCA 293
Millar v The Queen [2003] WASCA 211
R v Munro [2005] VSCA 260
R v Rodriguez [1998] 2 VR 167
EX TEMPORE JUDGMENT
No. SCC 97 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 18 March 2014
IN THE SUPREME COURT OF THE )
) No. SCC 97 of 2013
AUSTRALIAN CAPITAL TERRITORY )
R
v
MB
ORDER
Judge: Refshauge J
Date: 18 March 2014
Place: Canberra
THE COURT ORDERS THAT:
The jury be given a Black direction.
The accused, MB, has been tried for six offences of a sexual nature, four being acts of indecency committed on, or in the presence of a young boy, the complainant, one being the use of the complainant to produce child pornography and the final being possession of child pornography.
The trial conducted before me, with a jury, commenced on 6 March 2014 and, at 2:19 pm on Thursday 13 March 2014, the jury retired to consider its verdicts.
Even though I had not, at that point, heard from counsel as to whether there were any further directions or redirections to be given, this is the time from which the period runs for the calculation of the period of six hours set out in s 38 of the Juries Act 1967 (ACT) after which I may discharge the jury. This I draw from what Callaway JA said in R v Rodriguez [1998] 2 VR 167 at 185-6.
At 5:30 pm on 13 March 2014, I permitted the jury to disperse and the jurors to return to their homes, a period that is clearly a break in their deliberation.
For reasons, not presently material, I could not sit on the following day, Friday 14 March 2014, and, of course, it is no longer practice, except on exceptional occasions, to sit during the weekend. Accordingly, the jurors did not recommence deliberations until 8:30 am on Monday 17 March 2013.
During the morning the jury asked a question and, as required, I consulted counsel and provided a detailed answer to the question. One of the jurors then sought to have leave to attend a funeral of a deceased colleague who was also the husband of a close personal friend. As she would have to leave at 3:45 pm to attend the funeral at 4:30 pm, and with the consent of both prosecution and defence, I agreed to that request. Of course I required the jury to then disperse again overnight.
Given that they had been deliberating continuously since 8:30 am, I considered that to be reasonable in the circumstances. About 2:30 pm, however, I received a message from the jury which was as follows:
The jury is not able to come to [sic] consensus. Despite intense debate there is no prospect of this jury reaching a unanimous decision.
Even though such a note seems evidence of a deadlocking of the jury, it has been held and, indeed, is frequently done that this might be the appropriate point for the judge to give a direction in accordance with that set out by the High Court in Black v The Queen (1993) 179 CLR 44, commonly referred to as a Black direction. See, for example, Makarov v The Queen (No 3) [2008] NSWCCA 293 at [105].
By the time I had conferred with counsel, it was 2:55 pm. I had decided I must reassemble the court at 3:30 pm to permit them to disperse so that the juror could attend the funeral.
Mr R Thomas, as counsel for the accused, submitted that I should discharge the jury. He opposed me giving a Black direction and inviting them to deliberate further. Mr T Hickey, Crown Prosecutor, urged me to give a Black direction.
At the time, I had empanelled a jury (the second jury) in a subsequent trial, which had commenced after the jury in this trial (the first jury) had retired to consider its verdict. The second jury was waiting while submissions were made in this matter. I concluded that, in fairness to the first jury, as well as to the parties in the subsequent trial and the second jury, I was required to permit the jury to disperse a little earlier than planned, namely shortly after 3:10 pm, and return the next day as I had not concluded consideration of the competing submissions of counsel on whether to give the direction or not.
The question I had to consider then was whether, when the first jury resumed its deliberations the next morning, I should give it a Black direction. It seemed to me that Mr Thomas, although urging a discharge, was submitting that, were I minded to invite the first jury to continue its deliberations, I should nevertheless not give them a Black direction.
He submitted that this would amount to improper pressure that may cause those jurors in disagreement to compromise their view, especially if there was a small minority of one view. He pointed out that, although the jury had been deliberating for about eight hours, each juror had had, in addition, three other days to think about the case and refine their views.
Of course, it cannot be known whether any or all of the jurors did much or any thinking about the case over that time.
There are here two competing interests that must be balanced. On the one hand, it is clearly to the substantial benefit and, therefore, in the interests of both the accused and of the community, that a jury should come to a verdict if at all possible. That permits a judge to encourage a jury to come to a decision.
On the other hand, jurors must be entirely free to come to their own views of the case and to maintain those views in the face of different views by other jurors, even if that means all the other jurors. Thus it is, as Lord Steyn said on behalf of the Privy Council in Crosdale v The Queen [1995] 2 All ER 500 at 510
a cardinal rule of criminal procedure that a trial judge must avoid any hint of pressure on a jury to reach a verdict: R v Watson [1988] All ER 897 at 303, [1988] QB 690 at 700.
As pointed out by Mason CJ and Brennan, Dawson and McHugh JJ in Black v The Queen at 51, improper pressure by a judge may result in
the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled.
In this case it may be said that the first jury has expressed a final inability to agree. In that event they should be discharged. On the other hand, there is no point in them deliberating further without some help as to why, after such an expression, they should do so.
I have been assisted by comments in three decisions of intermediate Courts of Appeal. In Millar v The Queen [2003] WASCA 211 at [36]-[37], McKechnie J, with whom Anderson and Steytler JJ agreed, said:
The Black direction is offered for guidance of trial courts in the future. Failure to give a Black direction does not automatically lead to the conclusion that there has been a miscarriage of justice.
The exercise of power to discharge a jury is a matter for a trial judge applying his or her experience to the particular circumstances. Whether a judge finds it necessary to give a Black direction a judge should, nevertheless, keep in mind the broad principles bound up within it. It is important that juries strive to reach verdicts and experience has shown that juries can often agree if given more time to consider and discuss the issues. The exercise of the judgment, whether to give a Black direction and when to discharge a jury from further deliberation, will be difficult and an appeal on this ground is unlikely to succeed unless it can be demonstrated that a real and perceptible risk that a miscarriage of justice has occurred.
More recently, in R v Munro [2005] VSCA 260 at [57], Nettle JA, with whom Eames and Ashley JJA agreed, said:
The decision in Black is clear and until and, unless the High Court says something different on the subject, it goes without saying that it should be followed. Where after a jury have been deliberating for some time, it appears the jury are having difficulty in reaching a verdict in a criminal trial, the judge should direct them along the lines which are now known as a Black direction and which are explained at greater length in the decision of this in The Queen v Muto & Easte [1996] 1 VR 336.
This echoes what was said in Black v The Queen at 51:
[W]e see no reason why a direction should not be given to a jury if it appears that they are encountering difficulty in reaching a verdict, that that direction should state quite clearly that each juror has a duty to give a verdict according to the evidence. Likewise it is proper to remind the jurors that they should listen to each other’s views, weigh them objectively and that an individual juror can change his or mind if honestly well founded.
Perhaps most helpful is the decision of the New South Wales Court of Criminal Appeal in Burrell v The Queen (2007) 190 A Crim R 148. In that case a juror had sent a note to the trial judge, details of which are set out at 206, in which he raised a number of matters, including saying:
The second matter is that we have been a hung jury now for days ... Under those circumstances, I firmly believe it is time to bring this trial to an end as swiftly as possible.
Counsel for the accused in Burrell sought the discharge of the jury. The trial judge declined to do so and gave a Black direction.
In dealing with the ground of appeal that the failure to discharge the jury after receipt of the note was a miscarriage of justice, McClellan CJ at CL, with whom Sully and James JJ agreed, said at 219; [295]
It is the nature of Black (Black v R (1993) 179 CLR 44) direction that at the time it is given the jury may be approaching the point where they are not able to reach an agreement. In these circumstances a Black direction may result in a miscarriage of justice if it creates a real risk of the jury failing to give the issues free deliberation (Tangye v The Queen [1997 92 A Crim R 545] at 551; R v Bisat (unreported, NSWCCA, 9 October 1995).
There were two judgments in Black v The Queen. The joint judgment of CJ Mason and Brennan, Dawson and McHugh JJ, provided a formal direction which may be appropriate in many cases. In Burrell v The Queen, the trial judge followed the form of that direction carefully. It is apparent that the form of words were carefully crafted and intended to encourage agreement between the jurors without putting pressure on them to change their views unless that change is voluntary, honest and genuine.
The issue in Burrell v The Queen was whether the trial judge erred by giving a Black direction when, because of the juror’s note, his Honour knew that the minority juror was under pressure from the majority. The giving of the direction was a matter for his Honour’s discretion. His Honour had the advantage of observing the atmosphere of the trial and demeanour of the jury.
The fact that the minority juror felt pressure from the other jurors was not surprising. It does not, of itself, arouse concerns of a miscarriage of justice. Any suggestion that the pressure which was being applied to the juror may have been improper, i.e. to the extent that the juror’s alleged breaches of the judge’s direction were being used as leverage against him or her, was addressed by his Honour’s directions.
It is a nice question, in this case, based on the message from the jury, as to whether it is having difficulties in reaching a verdict, to use the language of the authorities, or whether they have passed that point. I have given anxious thought to the question and it seems to me that there is no point in requesting the jury to continue deliberations unless I give them the kind of assistance that a Black direction would provide.
I have weighed carefully the risk that a small minority of jurors may be pressured by others to compromise their views. It is, of course, sometimes difficult to identify the difference between a genuine change of mind and a pressured compromise. It seems to me that the Black direction has been carefully drafted to preserve the position of the minority.
Contrary to the submissions of Mr Thomas, I do not consider that giving the jury a Black direction is to impose on it undue or improper pressure. I consider that in its message, the jury has evinced an element of asking advice as to what they should do. The Black direction makes clear the options available. It seems to me that it is appropriate to give a Black direction and I shall do so. I consider, however, that in light of the time that the jurors have deliberated, I should not leave them in an open-ended further deliberation but to inquire of progress after an hour or so, though, of course I will not tell them I propose to do that. If they have made no or no real progress they should then be discharged.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 19 June 2014
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr R Thomas
Solicitor for the defendant: Paul Edmonds and Associates
Date of hearing: 17 March 2014
Date of judgment: 18 March 2014
0
4
1