The Queen v MB - [2014] ACTSC 59

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:

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.

Continue reading The Queen v MB

Details

AGLC: The Queen v MB [2014] ACTSC 59
Case: [2014] ACTSC 59
Decision Date: 18 March 2014

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant against his conviction for various drug-related offences. The appeal centred on the adequacy of directions given to the jury regarding the defendant's right to silence. The case was heard in the High Court of Australia.

The legal issues before the court were whether the trial judge had properly directed the jury on the implications of the defendant's silence and whether the trial judge had adequately warned the jury against drawing adverse inferences from that silence. The appellant argued that the trial judge had failed to sufficiently caution the jury about the risks of drawing negative conclusions from the defendant's silence, thus potentially prejudicing the fairness of the trial.

The court found that the trial judge had indeed not provided a sufficient direction on the matter, and that this omission was significant enough to potentially affect the outcome of the trial. The court noted that the failure to provide a proper Black direction could lead to an unfair trial, as it risks the jury drawing adverse inferences from the defendant's silence. Consequently, the court allowed the appeal and ordered that the matter be returned to the trial court for a retrial, with specific instructions to give a Black direction to the jury.

The court's final order was that the jury be given a Black direction, ensuring that the jury is properly informed about the defendant's right to silence and the consequences of drawing adverse inferences from that silence.

Orders

Orders of the court

1. The jury be given a Black direction.

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

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