Jury deliberation

Mason CH, Brennan, Dawson and McHuch JJ

1. The appellant was convicted of two charges of arson, the first relating to a fire in September 1986, the second relating to a fire in November 1987. The fires occurred at two townhouses in the suburb of Airds near Sydney. The appellant was tried before Judge Gibson and a jury in the Liverpool District Court on the first charge. He was tried before Judge Collins and a jury in the Penrith District Court on the second charge. Appeals against both convictions were dismissed by the New South Wales Court of Criminal Appeal. Pursuant to the grant of special leave to appeal, the appellant now appeals to this Court.

Appeal against conviction relating to the 1986 fire

2. The ground of this appeal is that the Court of Criminal Appeal erred in failing to hold that the trial judge's exhortation to the jury to reach a verdict was erroneous in that it infringed the fundamental rule that the jury must be free to deliberate without any form of pressure being imposed upon them. After the jury had been deliberating for about three hours, the trial judge directed them in these terms:
   
   "Members of the jury, I understand you are having some problems and I propose to say a few words to you. You have been deliberating now for just under three hours and been unable to reach a verdict. You are a body of twelve individuals. Each of you has individually taken an oath to return a true verdict according to the evidence. As I told you in my summing-up, you are equal in your task, but nevertheless you have a duty, not only as individuals but also collectively. No one of you should be false to the oath you took but in order to return a collective verdict, a verdict of you all, there must necessarily be discussion and argument and a certain amount of give and take and adjustment within the scope of that oath.
   
   It makes for considerable public inconvenience and expense if a jury cannot agree and it is most unfortunate indeed if such a failure to agree is due to some unwillingness on the part of one or more members of the jury to listen to and consider the arguments of the rest of the jury. It is very desirable that you should come to a conclusion one way or the other, because if you don't, it will mean that some jury will have to later seek to do what you have been chosen to do. That would be a considerable hardship on all concerned with the case, including the accused and the various witnesses and if possible, should be avoided.
   
   There must be, in the process of arriving at a verdict, a willingness on the part of each member of the jury to listen to and carefully consider the views of others. There should be a recognition of the fact that some view points are sounder than others and that one's own view point may not necessarily be correct. Sometimes, as we all know, we are each inclined to form opinions and once they have been formed, we do not like to let go of them, even though we sometimes realise later that they really cannot be sustained and that another view was really a better one. When that happens, if it happens, we should not hold on to our original view. To approach the task you have in hand sensibly in the way I have sought to indicate, is quite within the scope of your oath, the oath that you took. Having said that, I nevertheless remind you that your verdict must be unanimous."

…

4. The first part of the direction appears to have been based on the form of direction which was approved by the English Court of Criminal Appeal in Walhein ((3) (1952) 36 Cr App R 167, at p.168.) where the Commissioner had instructed the jury as follows:

"Each of you has taken an oath to return a true verdict according to the evidence, but, of course, you have a duty not only as individuals, but collectively. No one must be false to that oath, but in order to return a collective verdict, the verdict of you all, there must necessarily be argument, and a certain amount of give and take and adjustment of views within the scope of the oath you have taken, and it makes for great public inconvenience and expense if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest. ... If you disagree in your verdict ... you must say so."

The last two sentences of the second paragraph in the direction

given by the trial judge in the present case were somewhat stronger

than the reference in the Walhein direction to public inconvenience

and expense.

5. That direction was modified in Creasey ((4) (1953) 37 Cr App R 179, at p.180.) where the jury were instructed in these terms:

"It is very desirable that you should come to a conclusion one way or the other ... because it only means that some other jury have got to do your work for you all over again ... and that it is why it is highly essential that you should come to a definite conclusion. ... It is a hardship upon all concerned if you do not. The way that juries arrive at a verdict is ... by a method of one member listening to what the other has to say and by a process of give and take. ... it is a verdict which you must all be agreed upon one way or the other".

…

11. We agree with this criticism of the Walhein direction, and the criticism has equal application to the instructions given by the trial judge in the present case. More importantly, the reference to "considerable public inconvenience" is apt to impose pressure upon individual jurors to join in the view taken by a majority, thereby violating the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them. The statement that "there must necessarily be ... a certain amount of give and take and adjustment" might be taken to suggest, wrongly in our view, that a juror is to compromise with other jurors in reaching a verdict ((25) Reg. v. Cartledge (1956) VLR, at p.227.).

12. Moreover, the earlier reference to the jury having a "duty, not only as individuals but also collectively" may well have had the effect of reinforcing the impression that the jury were under some obligation to reach a result to which all the members of the jury subscribed. Jurors do have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the jury room. There is a risk that references to a collective responsibility or duty may be understood more broadly by the jury and as an invitation to an individual juror to subordinate his or her views to those of a majority of jurors. Consequently references to "give and take and adjustment" and collective duty or responsibility should be avoided.

13. In this case it follows that we consider that the trial judge's direction went too far and may well have resulted in the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled. Consequently, the conviction in relation to the first fire must be set aside and a new trial ordered.

14. Before we leave this aspect of the case we should say that we 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. But 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 her mind if honestly persuaded that his or her preliminary view is not well founded.

With these comments in mind we consider that, should the occasion arise, a trial judge should give a direction along the following lines:

"Members of the jury, I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict."

Deane J

1. I agree with the judgment of Mason CJ, Brennan, Dawson and McHugh JJ I add some comments about the supplementary directions given by the learned trial judge to the jurors when they were unable to agree on a verdict after approximately three hours of deliberation in the trial of the appellant in relation to the 1986 fire.

…

4. A juror who conscientiously holds out against a majority and thereby prevents unanimity has not failed properly to "do what (he or she was) chosen to do". To the contrary, he or she has done no more than discharge his or her duty to both the accused and society. Any suggestion that a minority juror should democratically submit to the view of the majority is antithetical to the jury process under the common law of this country ((30) See Cheatle v. The Queen [1993] HCA 44; (1993) 67 ALJR 760, at pp.763-764; [1993] HCA 44; 116 ALR 1, at pp.6-7.).

5. Accordingly, in a case where it appears that a jury has been unable to reach agreement after what is, in the circumstances of the particular case, a significant period, it is essential that a direction requiring the jury to continue its deliberations carefully avoids anything at all that might be misunderstood as encouraging a minority juror to join in returning a "collective verdict" which does not completely accord with his or her own genuine views. As I have indicated, the supplementary directions of the trial judge in the present case were likely to be so misunderstood by a minority juror, particularly one who had been under pressure from majority jurors to abandon his or her own genuine views. And that is so notwithstanding the trial judge's express instruction that no member of the jury should be false to the oath which he or she had taken to return a true verdict according to the evidence. While that express instruction may have reduced the danger of misunderstanding, it went nowhere near eliminating it. Indeed, the subsequent instruction that to approach "the task ... in hand sensibly in the way I have sought to indicate, is quite within the scope of your oath" would have been understood by a juror who thought that he or she was being encouraged by his Honour's earlier comments to yield to the majority view, as an instruction that it would be consistent with his or her oath or affirmation to adopt that course.

6. I agree with the orders proposed by the other members of the Court and with the suggested form of direction set out in their judgment.

Hunt J

The appellant (Victor James Tangye) was found guilty by a District Court jury of two charges, one of maliciously inflicting grievous bodily harm and another of assault. Judge Robison imposed a sentence of penal servitude for two years upon the first (consisting of a minimum term of eighteen months and an additional term of six months) and a fixed term of imprisonment for six months upon the second, both sentences to be served concurrently.

…

The first ground of appeal is that the judge erred in failing to discharge the jury in relation to both counts at the time when they indicated that they could not agree upon a verdict in relation to the first count. The evidence had commenced shortly after midday on the first day and concluded sometime shortly after 11.00 am on the second day. The addresses by both counsel appear to have been brief, and the summing up started before lunch. The jury retired to consider their verdict at just before 3.00 pm. 

When the hearing resumed on the third day, the jury asked the judge "to re-explain the full meaning of common intent as there still seems to be some confusion over this point". Further directions were given and the relevant part of Ms McLaughlin's evidence was replayed. The jury retired again at 10.15 am. At some time after 11.00 am, the jury asked:

"Can you please explain how common purpose applies to the first charge of maliciously inflicting grievous bodily harm upon Stephen Grant?"

Further directions were given, and the jury retired again at 11.40 am. The Crown prosecutor suggested that yet further directions be given upon the same issue, and these were given. The jury retired once more at 11.50am.

At about 3.00 pm, the jury sent a note:

"Unable to reach a decision on the first charge. Where do we go from here?"

The jury were brought back into court and, without objection, the judge examined the foreman on oath pursuant to s56 of the Jury Act 1977. After correctly warning the foreman not to indicate any voting figures or the reasons for the lack of agreement, the judge ascertained from the foreman that it was a fact that "agreement cannot be reached" (this would obviously have been understood to refer only to the first count), that the foreman did not "think" that the judge could assist by explaining any legal or factual issues, and that the foreman's "personal opinion" was that a verdict could not be expected even if further time were made available. The judge then proceeded to give the jury a "Black" direction, asking them to re-examine the matters on which they were in disagreement and to make a further attempt to reach agreement

The jury retired at 3.15 pm. At 4.00 pm they asked for the judge's "explanation of common purpose" from that morning to be replayed, as well as the evidence of the second statement made by the appellant to the police. This was deferred until the following morning, after which the jury retired for the final time at 10.25 am and returned with two verdicts of guilty at 2.05 pm.

It has been submitted on behalf of the appellant that, as soon as the foreman had given evidence that agreement could not be reached, it was too late for any "Black" direction to be given, that the jury should have been discharged immediately without giving any verdict on either count, that the direction which was then given placed pressure upon the jury to bring in a verdict, with an increasing risk of compromise.

There is no doubt that the judge should have given a "Black" direction and waited to see whether it had any effect before examining the foreman on oath pursuant to s56 of the Jury Act. That procedure is undertaken only to ensure the satisfaction by the judge required by s56 before discharging the jury, that they are not likely to agree on their verdict. The need for a "Black" direction arose when the jury had sent the note disclosing their inability to agree on the verdict on the first count, and it was unnecessary for the judge to inquire further before giving the direction. The fact that the note referred to an inability rather than a difficulty in reaching agreement did not matter, as the judge was not obliged to accept that assertion without attempting to encourage the jury to reach an agreement.

The answers given by the foreman, so far as the transcript shows, could be interpreted either as unequivocally expressing the view that agreement could not be reached or as being contradictory - in that he said at first that agreement could not be reached, but then only that he did not "think" that any further explanation could be of assistance, and finally that his own personal opinion was that further time would not produce a verdict. It is a pity that the judge - having wrongly embarked upon the s56 procedure - did not clear up any possible qualification introduced by the word "think", but he was not asked to. Nor was any objection taken to the procedure followed by the judge or any application made for the jury to be discharged then and there, which does not suggest that the foreman's evidence was quite as unequivocal as was submitted to this Court.

In any event, it would have been entirely wrong for the judge to have discharged the jury from giving their verdict on the second count, about which no disagreement or difficulty in obtaining agreement had been expressed. Although the Crown relied upon the commission by the appellant of the offence charged in the second count in order to establish that he was also responsible for the offence charged in the first count - by showing that he was present and participating in a joint enterprise by the larger group to strike (or to assault) the members of the smaller group - his guilt of the offence charged in the second count did not depend in any way upon a finding of his guilt of the offence charged in the first count.

In my view, it was appropriate for the judge to have asked the jury to make a further attempt to reach agreement on the first count. Although the jury had obviously encountered some difficulty in understanding what was involved in relation to that count - with good cause, as I shall later discuss - this was the first intimation that they were unable to agree upon a verdict in relation to that count. As I have already said, the judge did not have to accept the first indication which he had received in the note. Nor was he bound to accept what the foreman had said on oath, because at that time the jury had not been exhorted to agree in accordance with Black's Case. It must be accepted that, although the exhortation settled by the High Court is carefully worded so as to avoid placing pressure on the jury, it is also designed to encourage agreement. I do not accept that the fact that the jury had already spent a substantial time considering their verdict required the judge to discharge them - either alone or in combination with the evidence of the foreman. Nor do I accept that there was any increased risk of compromise in relation to the second count, as to which, in my view, it was necessarily implicit that agreement had already been reached. The absence of compromise is made clear from the fact that the verdict upon each count was one of guilty.

I would therefore reject the first ground of appeal, that the jury should have been discharged in relation to both counts at the time when the foreman gave evidence. The suggestion that the judge had, by giving the "Black" direction after examining the foreman on oath, placed pressure upon the jury does, however, require further examination. This was discussed in connection with the second ground of appeal, that the judge erred in the direction which he gave.

I do not accept that the mere fact that the judge had examined the foreman would have placed any pressure on the jury. The jury would not have seen any significance in the procedure under s56 being adopted (wrongly) at too early a stage. Nor did the actual "Black" direction trespass beyond what the High Court laid down. What has to be considered is the observation made by the judge as a lead up to his question to the foreman as to whether he was of the opinion that there could be a verdict if further time were made available. The judge said:

"Mr Foreman, it is in the interests of everyone that the trial one way or another comes to a conclusion. A probable consequence of disagreement will be a retrial. "

It was not, of course, part of the judge's direction, but it is nevertheless likely that the jury would have taken the observation made to their foreman as part of the overall advice which the judge was giving them.

…

The mere fact that something is said in addition to the model direction suggested by the High Court in Black's Case does not make the direction given wrong if it does not create a real risk of interfering with the jury's freedom to deliberate without pressure being imposed upon them. For example, it clearly would not infringe that principle if the trial judge added to the "Black" direction in the appropriate case a reminder that, although the verdict must be unanimous, the particular paths which lead each individual juror to that unanimous verdict need not itself be the same for all the jurors. In Regina v Gary John Bisat, when dealing with a complaint that the judge had referred to the consequence of a disagreement in that case as being a new trial (described as "not a pleasant prospect from anybody's point of view"), this Court approached the issue by asking whether the judge's statement created a real risk of the jury failing to give the issues free deliberation. In my view, that is consistent with the approach which I have suggested.

There is no hint of expense involved in the judge's observation, but it could obviously have been interpreted by the jury as a reference to the inconvenience for both the appellant and the Crown witnesses should he have to stand trial again. As the Crown has submitted, it was no more than a statement of the obvious. The issue, however, is whether the fact that the judge referred to it - in the context of asking the jury to re-examine the matters on which they were in disagreement and to make a further attempt to reach agreement - created a real risk of interfering with the jury's freedom to deliberate without pressure being imposed upon them. Sometimes, the reference by the judge to a particular matter in that context will appear to place greater emphasis upon what is said, although this will not always be the case.

I am unable to distinguish this case from Bisat's Case. Even if I were to consider the statement challenged here completely afresh, I have difficulty in seeing the rather slight reference to inconvenience in the present case as creating a real risk that pressure was being placed upon individual jurors to join in the view taken by the majority against their personal views. That is not just a fine verbal distinction, The judge's observation was followed by a clear direction that nothing which he had said was to suggest that any individual juror could consistently with his or her oath as a juror join in a verdict which was not honestly and genuinely thought to be the correct one. The fact that counsel then appearing for the appellant made no complaint at the time suggests to me that the overall effect of what the judge said had sufficiently made that clear. I do not accept that such an interpretation offends the "spirit" of what was said in Black's Case. The fact that no complaint was made at the time suggests that counsel then present did not think that it did.

Even if I were wrong in that conclusion, the fact that no complaint was made also means that this ground of appeal may be relied on by the appellant only if leave be granted. That leave will not be granted unless it is demonstrated by the appellant that a miscarriage of justice has arisen as a result of the misdirection. It was submitted on behalf of the appellant that the risk of prejudice rendered the situation irretrievable. The prejudice was said to be the risk that individual jurors joined in the view taken by the majority against their personal views as a result of pressure. I do not accept that submission. Admittedly, my view is coloured by my belief that there was no real risk of pressure, but whatever prejudice there may have been must necessarily have been infinitesimal. There was no miscarriage of justice as a result of what was said. I would therefore reject the second ground of appeal.

McInerney J

I agree with the orders proposed by Hunt CJ at CL, for the reasons he has advanced.

Sully J

I have had the advantage of reading in draft the judgment of Hunt CJ at CL.

I agree with the orders which his Honour proposes; and, subject to the following observations, I agree with his Honour's reasons for those orders.

Mason P

1. Subject to one ultimately immaterial qualification, I agree with Smart AJ, I would have applied r 4 in

relation to appeal ground 4.

Adams J

2. I agree with Smart AJ.

Smart AJ

3. Joseph Anthony Timbery appeals against his conviction of 12 offences being two charges of malicious

wounding, one charge of maliciously inflict grievous bodily harm, one charge of assault occasioning actual

bodily harm, seven charges of aggravated sexual intercourse without consent (involving maliciously inflict

actual bodily harm) and one charge of sexual intercourse without consent. He was found not guilty of

eleven charges being eight charges of aggravated sexual assault without consent, two charges of sexual

intercourse without consent and one charge of assault. The complainant in each case was LB, the

appellant's former girlfriend. The 23 charges alleged offences between 16 April – 25 December 2000.

With the possible exception of count 2, being the charge of sexual intercourse without consent on

16 April 2000 alleging the insertion of a VO5 Mousse bottle into her vagina, there was some supporting

evidence, on all the other counts on which the appellant was found guilty. On the counts on which the

appellant was found not guilty there was either no supporting evidence or no satisfactory supporting

evidence.

…

Appeal ground 6 — A miscarriage of justice was occasioned as a result of the trial judge's direction to the jury in response to the jury note indicating that they could not agree on a verdict in relation to 17 of the counts

112. The jury returned at 11.35am on 9 March 2006. At 3pm they returned to Court and at the jury's request the judge read the evidence in chief of LB. This continued until 4pm. Late the following morning the jury wanted to know the particular acts which related to all counts between seven and twenty-two.

113. At 1.17pm on Friday 10 March 2006 the judge gave an extended answer and the jury retired again to consider their verdict and continued until 4pm. They resume their deliberations on Monday 13 March 2006. Late that morning the jury advised the judge:

“We have agreed on six counts, not agreed on 17 counts. What is our next step if we cannot agree.”

114. The judge then directed the jury:

“Ultimately if you cannot agree, I will take the verdicts on the six counts that you have agreed and discharge you as to the rest and there would have to be a retrial of the other seventeen counts. There is no provision after a certain time for a majority verdict, it has to be unanimous. In the light of that members of the jury, I urge you, I suppose I can say I plead with you, please go out and keep trying. I know it is difficult sometimes but if you remember this, it has to be unanimous but you do not all have to have the same reasons. You may come to the same conclusion via different pathways. All I can do is ask you to listen to each other, to reconsider your various positions, to deliberate further and to keep on deliberating. It is certainly far too early for me to discharge you after a trial of four weeks.

Do not be concerned about the amount of time it takes. Trials of this nature often take a number of days for a jury to reach a verdict but my direction to you is, please continue your deliberations and you ask what the next step is, ultimately to discharge you and have another trial on those matters, a matter which in a trial of four weeks would be just terrible. So I ask you to retire again and keep going.”

115. The jury enquired whether they were able to have the transcripts and the judge replied “No”. He offered to read to the jury any parts of the transcripts which they needed and to answer any questions. The jury retired to further consider its verdict at 12.25pm and continued until 4pm. They resumed on Tuesday 14 March 2006 at 10am and continued until about 2.30pm. Their verdicts were then taken.

116. The judge in his direction to the jury did not follow along the lines of that recommended in the joint judgment of four justices and agreed with by the fifth justice in Black v The Queen  (1993) 179 CLR 44 at 51-52 ; 69 A Crim R 248 at 253. The justices emphasised the importance of each member of the jury giving the issues that free deliberation to which both the accused and the Crown were entitled and not being subject to any risk of pressure.

117. The joint judgment said that the direction given to a jury if it appears that they are encountering difficulty in reaching a verdict “should state quite clearly that each juror has a duty to give a verdict according to the evidence”.

118. Importantly, the recommended direction stated:

“But if, after calmly considering the evidence and listening to the opinions of other jurors you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.”

119. Words along those lines do not appear in the directions given in the present case. The terms of the

recommended direction do not include words to this effect:

“I urge you, I suppose I can say I plead with you, please go out and keep trying.”

120. The judge was urging the jury to try and reach unanimity. The recommended direction is more measured. Nor does the recommended direction contain words along these lines:

“The next step is ultimately to discharge you and have another trial on those matters, a matter

which in a trial of four weeks would be just terrible.”

121. The Crown stated that it would have been better if the judge had not used expressions such as “urge” or “plead” or “would be just terrible” but it submitted that these were balanced by his directions that they should not be concerned about the amount of time it takes. The Crown pointed out that in trials of this nature juries often take a number of days to reach a verdict and that the judge made it clear that if ultimately they could not agree they would be discharged.

122. I do not agree that the words mentioned would have been balanced by his direction not to be concerned about the amount of time it took to reach a unanimous verdict. The words used were emotive and the direction, while seeking unanimity, did not state quite clearly that each juror has a duty to give a verdict according to the evidence. Too high a price can be paid for unanimity.

123. This ground of appeal must be upheld. Directions as to how a verdict is to be reached are of the essence of a fair trial. A miscarriage of justice has occurred. This alone warrants a new trial. While the necessity for this is greatly regretted and will probably cause distress to LB there is no alternative. There were serious questions raised as to her credibility. The jury had not agreed on 17 of the 23 counts charged prior to the impugned directions. Unfortunately, this Court does not know on which counts the jury were agreed and what their verdicts were. This means that there will have to be a new trial on the 12 counts on which the appellant was convicted.

McClellan CJ at CL

1. The appellant was convicted upon two counts, being:

1. On 6 May 1997 at a place unknown in the State of New South Wales he did detain Kerry Patricia Whelan with intent to hold her for advantage to the said Bruce Allen Burrell (contrary to s 90A of the Crimes Act 1900);
2. On or about 6 May 1997 at a place unknown in the State of New South Wales he did murder Kerry Patricia Whelan (contrary to s 18(1)(a) of the Crimes Act 1900.

2. The trial was conducted before Barr J and a jury commencing on 16 March 2006 and continuing until 6 June 2006. The jury retired to consider its verdicts at 12.58 pm on Wednesday, 24 May 2006. After deliberating for eight days, at 10.00 am on Monday, 5 June 2006 a juror sent a note to the trial judge which, in general terms, indicated that, at that stage of their deliberations, they could not agree and stated that further deliberations would serve no useful purpose. The juror requested that the jury be discharged. Barr J did not take this course and directed the jury in accordance with Black v The Queen [1993] HCA 71; (1993) 179 CLR 44. The jury returned the following day at 2.50 pm with verdicts of guilty upon both counts.

…

Ground 9: His Honour erred in:

(a) not discharging the jury and not giving in the circumstances a direction in accordance with Black v The Queen (1993) 179 CLR 44;

(b) not giving in the circumstances a modified direction to that outlined in Black;

(c) failing to enquire at the end of the day of 5 June 2006 having already given a Black direction as to whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance.

248. I have previously recorded the fact that after the jury had been deliberating for eight days one juror sent the judge a note. An edited version of the note was supplied by his Honour to counsel. The edited version was as follows:

              [other matters]

              The second matter is that we have been a hung jury now for days…

              [edited by judge]

Under those circumstances, I firmly believe it is time to bring this trial to an end as swiftly as possible. Can you please advise if the new laws regarding majority verdicts, now apply to us? If they do, I am sure they will be used.

If they do not – then I have to ask that the continued deliberations, that no longer serve a purpose, please be brought to an end.

Yours respectfully

Juror 19 91 024

…

250. Having received the note the trial judge decided that significant portions should not be disclosed to counsel and were not relevant to the future conduct of the trial. His Honour took this course because he was of the view that the details referred to the manner in which the jury conducted its deliberations. The transcript contains the following discussion between the trial judge and counsel:

              …

251 Although the trial judge had provided counsel with an edited version of the juror’s note no application was made to his Honour for disclosure of the balance. The parties were content to accept his Honour’s decision that the edited portions of the note should not be disclosed. On the hearing of the appeal the court determined that counsel should have access to the complete note and invited submissions as to whether it should be admitted into evidence on the appeal. The confidentiality of the complete note was otherwise maintained.

252 After having access to the complete version of the note, counsel for the appellant sought leave to supplement Ground 9 by contending that the trial judge had erred by:

not disclosing the full terms of the note, or at least disclosing that the minority juror:

o did not feel the deliberations were any longer genuine;

o was intimidated by fear of exposure of two possible transgressions of directions;

o based his or her assertion that the deliberations were serving no useful purpose, and his or her pleas to bring the proceedings to an end, to a significant degree on having been told by the group that rather than accept his or her decision they would drag the deliberations out further and further and treat him or her in an extremely unpleasant manner by “freezing” him or her out until he or she “came across;”

not requesting evidence on oath pursuant to s 55 [sic] of the Jury Act so material could be properly before the Court without contravention of s 68B; and

not discharging the jury because of the irregularity caused by the juror’s breach of the Jury Act in writing the note.

253 These supplementary contentions, and the original ground 9, raise a number of interrelated issues concerning the functions of the trial judge, the jury and counsel for the parties.

…

271. It is likely that the juror felt that his or her refusal to change their mind would prompt the other jurors to disclose the alleged breaches of the judge’s directions. The trial judge did not need to reveal any more of the note or say anything else further in order to communicate this matter to counsel. Moreover, the judge made it clear in his subsequent directions that the juror had in effect done nothing wrong and did not deserve censure from the judge or the other jurors. Any possible irregularity in the jury process was cured by this direction, which would have removed the impact of any threats if they had been made by other jurors.

272. Even if there was no suggestion that the juror’s breaches of directions were being used as leverage against him in the jury room, it was appropriate for the trial judge to have disclosed (as he in fact did) the details of the alleged transgressions in open court. A juror’s breach of directions, if it occurs, is an issue about which the parties should be informed and about which they should have an opportunity to make submissions.

273. The appellant submitted that the trial judge erred by not disclosing that the minority juror felt that further deliberations would be not genuine. However, his Honour included the juror’s comment in the note that “I have to ask that the continued deliberations, that now no longer serve a purpose, please be brought to an end.” The appellant contended that his Honour erred by not disclosing that the latter assertion was largely based on the fact that the other jurors had said that they would drag out the deliberations and freeze the minority juror out until he or she came around to their way of thinking. This assertion by the minority juror, even if true, was solely concerned with the jury’s deliberations. His Honour was correct not to disclose it.

…

Discharge of the jury and the Black direction

290. The appellant contended that the trial judge erred by failing to discharge the jury after receipt of the note. The submission is based on the suggestion that the note revealed that the jury was intractably deadlocked and unable to meaningfully continue their deliberations…

…

294. The submission must be rejected. The jury had, by the time the note was written, been in deliberations for a number of days. It is not surprising that firm positions had been taken and rigorous debate was occurring. It could not rationally be suggested that all jurors must come to the same conclusion at the same time before they may enter a valid verdict. If it could be argued that a minority juror’s decision to join the majority gives rise to an inference of bias, then in almost any case where the jury deliberated for any length of time there may be grounds for discharge. Any delay in reaching a verdict may indicate that one of the jurors (at least) was not immediately convinced of the accused’s guilt or innocence and had to be convinced to change their mind.

295. It is the nature of a Black (Black v The Queen [1993] HCA 71; (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 at 551; R v Bisat (unreported, NSWCCA, 9 October 1995)).

296. There were two judgments in Black. The joint judgment of Mason CJ, Brennan, Dawson and McHugh JJ provided a form of direction which may be appropriate in many cases. In the present case the trial judge followed the form of that direction carefully. It is apparent that the form of words was intended to encourage agreement between jurors without putting pressure on them to change their views unless that change is voluntary, honest and genuine.

297. The issue in the present case is whether the trial judge erred by giving a Black direction when, because of the juror’s note, he 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 directions were being used as leverage against him or her), was addressed by his Honour’s directions. If there was a threat by other jurors to disclose the suggested breaches by the minority juror to the trial judge it would have lost all of its force when his Honour said, unequivocally, in open court that he was not concerned about them.

298. The appellant submitted that even if this analysis is correct, the juror would have been placed under further pressure because the trial judge revealed that the juror had, in effect, “dobbed” on the other jurors. This submission is directed to the relationship between the jurors in the jury room. Even if it had substance, and I do not believe it does, it invites this Court to speculate about matters about which inquiry cannot be made. As I have already indicated, the deliberations of the jurors are not matters for this Court. Antipathy between individuals, however caused, is, unfortunately, an unavoidable fact of life and must be expected to exist amongst jurors from time to time. It could not provide a reason to discharge the jury.

299. In the present case I am satisfied that it was appropriate for his Honour to give a Black direction. Although he had received information that the jury were having difficulty reaching agreement he was also informed that discussions were ongoing. Indeed, the essence of the communications from the juror was that debate was continuing. The juror was being asked to explain his or her position. There is no reason to believe that in the hours which followed, the debate did not resolve the remaining difficulties, resulting in a unanimous verdict.

300. The appellant contended that if it was correct to give a Black direction, his Honour should have modified the usual direction so that:

(a) the jury was told that such a direction was normal; and

(b) the fact of giving the direction or its terms should not be perceived as pressure exerted by the Court on any juror to compromise their decision nor be used by a majority to try and force a minority to compromise their position.

301. I am satisfied that his Honour’s direction adequately addressed the first matter. His Honour said:

“Experience has shown that often juries are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and make a further attempt to reach a verdict before they may be discharged.”

302. In relation to the second matter, his Honour addressed the role of the individual juror in following terms:

“Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But, if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has sworn that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light.

You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can consistently with your oath as a juror join in a verdict if you do not honestly and genuinely think that it is the correct one.”

303. In my opinion, his Honour’s directions were appropriately formulated.

304. Ground 9(c) alleged that the trial judge erred in failing to enquire at the end of the day of 5 June 2006 (having already given the Black direction) as to whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance. There is no substance to this ground. Having given the direction, it was a matter for his Honour to determine when it may be appropriate to enquire of the jury’s progress. Given the time the jury had already taken, the fact that he did not make enquiry as to their progress at the end of 5 June 2006 was of no moment.

305. Ground 9 entirely fails.

Sully J

332. I agree with McClellan CJ at CL.

James J

333. I agree with McClellan CJ at CL.

The Court (Tobias AJA, Johnson and Hall JJ)

1. On 14 September 2010, Lee James Hunt (the appellant) was arraigned on two counts both of which were in the same terms, namely, that between 10 March 2006 and 7 March 2007 at Gwynneville, he did indecently assault JH in circumstances of aggravation, namely, that JH was at the time under the age of 16 years, namely, 11 or 12 years. The appellant entered a plea of not guilty to both charges.

2. The trial before his Honour Judge Conlon SC commenced in the District Court at Wollongong on 14 September 2010. The jury was empanelled on 15 September 2010 and the evidence concluded on 16 September 2010. The trial judge commenced his summing up to the jury on 16 September 2010 and concluded his summing up the following morning, Friday. Later on that day, the jury returned a majority verdict of guilty on both counts.

…

4. The appellant raised five grounds of appeal, namely:

Ground 1: the verdicts constituted a miscarriage of justice as the appellant did not have a trial according to law;

Ground 2: the trial judge erred by failing to comply with the requirements of the Jury Act 1977 (the Act), s 55F before accepting a majority verdict;

Ground 3: the trial judge could not be satisfied that the jury had spent not less than eight hours deliberating;

Ground 4: the trial judge misdirected the jury by advising that he could take a majority verdict at 5.50 pm;

Ground 5: the trial judge failed to properly put the defence case.

…

9. The jury retired to consider their verdicts at 9.47 am on 17 September 2010. Shortly before 12.10 pm, the jury sent a note to the trial judge, which stated, " We cannot reach a verdict ". The note was marked MFI 7. The jury returned to the court at 12.10 pm when the trial judge gave a direction encouraging the jury to persevere in their deliberations. That direction reflected the essential requirements for such directions referred to by the High Court in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 at 51-52. No complaint was made with respect to that direction which generally followed the suggested direction set out at [8-070] of the Criminal Trial Courts Bench Book.

10. In response to that direction and while the jury was still in court, the foreman asked if he could be heard. His Honour declined to hear the foreman, but instead invited him to provide a further note which he wrote on the back of MFI 7. The further note stated:

"We have debated vigorously both sides of the argument. Every juror has had time to present their argument for and against. The strength of convictions for both sides are such that even if we returned to the room, neither side could be persuaded to change their final verdicts. Extra time will not make a difference in this case thank you. Foreman."

11. His Honour's response to the note was to state the following in the jury's presence:

"My view is that the direction that I've just given the jury is appropriate and they need to go out to further deliberate the matter. It may well be that there is no movement but in view of the direction which I have given them I believe that I should ask them to retire again to further deliberate in accordance with that direction and if there is movement okay, if there is not well I will deal with that when the matter arises. Do either of you have anything to say about that?"

Neither counsel had any comment to make.

12. The transcript then records that the jury retired to further consider its verdict at 12.17 pm. At approximately 1.40 pm, a further note was received from the jury which was marked MFI 8 and which was provided to the court shortly before 2 pm. The note stated, " We cannot reach a unanimous verdict ". A discussion then took place between his Honour and counsel as to the appropriate response to this latest note. Reference was made by counsel to s 56 of the Act which provides as follows…

…

14. It is at this point that the trial process took a turn for the worse. It appears that the trial judge and counsel considered it necessary, the jury having indicated that it could not reach a unanimous verdict, to engage s 56(2) and, for that purpose, to examine on oath one of the jurors as to whether it was likely that the jury could reach a majority verdict. Although there was some confusion in the exchanges between his Honour and counsel, it appears that the focus of attention at that point may have been upon the discharge of the jury. Hence the enquiry appears to have been for the purpose of s 56(2) although that involved compliance with the requirements of s 55F(2).

15. Accordingly, when the jury returned to court at 2.20 pm, the foreman entered the witness box, was sworn and the following exchange occurred…

16. It is to be noted that at this point (2.20 pm), the jury had been out, but not necessarily deliberating, for only 4 hours and 33 minutes. His Honour then asked the jury to leave the court which it did at some point between 2.20 pm and 2.32 pm. Further discussion then occurred between the trial judge and counsel as to what further direction his Honour should give the jury. Notwithstanding that his Honour was referred to and apparently read the decision of this Court in RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100, when the jury returned at 2.32 pm, his Honour directed them in the following terms:

"Sorry to keep you outside, ladies and gentlemen. The next direction I give you you may well find unsatisfactory. However, it is consequent upon the responses to the two questions I asked of your foreperson a few moments ago. The first was that would it be unlikely, extremely unlikely, that given more time you would ever be able to reach a unanimous verdict and you responded yes. The next question I had to ask and advise you that in this state there are circumstances in which a court can take a majority verdict of eleven to one, and in indicating that to you I had to pose the question given more time do you think it would be at all possible whether a majority verdict may be reached, and you indicated in the affirmative that it would be possible.

As a result of that I have to tell you that the circumstances in which I can take a majority verdict have not yet arisen in this case. Accordingly, the only direction that I can now give you is that you should continue on with your deliberations and you should strive to reach unanimity. Of course, that is subject to the direction that I gave you earlier which is still applicable, that is of course you are to give every consideration to the views and opinions of others. However, consistent with your oath or affirmation as a juror you of course could not join in a verdict if you did not honestly and genuinely think it is the correct one.

But at this stage, members of the jury, I have to ask you just to continue your deliberations in that vein seeking once again to reach unanimity and I can say nothing further to you at this stage. As I said, that direction may well be unsatisfactory to you, but at law that's the only direction I can give you. Thank you."

17. The jury retired to further consider its verdict at 2.35 pm. It should be noted that this was the first occasion on which the jury had directly been informed by the trial judge as to the possibility of his receiving a majority verdict, although it was semaphored to them in the second question put to the foreman set out at [15] above.

18. It would appear from the transcript that shortly after the jury retired at 2.35 pm, it sent a further note to the court, which was marked MFI 9 and was timed at 2.50 pm. It stated:

"Your honour, we cannot reach a unanimous verdict. We have reached a majority 11/1 verdict. With all due respect, we require no more time to deliberate as we have reached a final decision."

19. There was then further discussion between the trial judge and counsel in relation to the note which revolved around whether the jury should be informed as to when a majority verdict could be taken. Reference was made to the minimum period of deliberation of 8 hours referred to in s 55F(2)(a), it being stated that the 8 hours would expire at approximately 5.50 pm. Discussion then took place as to whether the jury should be required to continue its deliberations until that time, or whether they should be requested to return on the following Monday.

20. Upon the jury returning to court at 4 pm, the trial judge directed them in the following terms:

"Ladies and gentlemen I can understand your exasperation at this stage of still being kept here. I will try to, as you are probably aware the way in which I have couched the directions to you, the law restricts me as to what can be said to jurors under these circumstances. Now what you will remember is that I said that it is possible for the Court to take a verdict that is not unanimous, that is a majority verdict of eleven to one under certain circumstances and I said on the last occasion that the circumstances in which I could take a majority verdict had not yet arisen.

As a result of what you have informed me in the note which I marked MFI 9 I think it is only appropriate and we have been discussing this. I think that it is only appropriate that I tell you that what those circumstances are. The law prescribes that a Court cannot take a majority verdict until the jury have been out for what the Court considers an appropriate time for deliberation and that time must be not less than eight hours from the time they first went out to consider their verdict.

So that has been the problem. I think you went out at ten to ten this morning so that period of eight hours would be at ten to six tonight and this is a mandatory requirement. There is not a thing I or anybody else can do about it. We are not able to accept the verdict until that eight hours has passed, as strange as that may seem to you. So I am only left with the alternative of saying that you can remain here for that further period of time or you can disperse now and come back on Monday morning even at nine o'clock if you like for that remainder which would be about an hour and fifty minutes before I could receive that majority verdict and I appreciate that may cause lots of difficulties. I do not know if you want to just perhaps go outside and have a chat amongst yourselves as to what you think is appropriate as far as your circumstances are concerned."

21. The jury then left the court at 4.03 pm and returned at 4.06 pm, indicating that they would like to stay until 5.50 pm. They retired again at 4.07 pm, but the transcript does not reveal what thereafter occurred. However, it was generally common ground that at approximately 5.55 pm, the jury returned to court and the foreman of the jury delivered a majority verdict of guilty on both counts.

…

25. In the present case, it is apparent that neither the trial judge nor counsel exercised the prudence to which Grove J referred in the last sentence of [25] of his reasons. This, of itself, involved a failure to comply with the procedural requirements of a trial as to constitute a miscarriage of justice, in the sense that the appellant did not get a trial according to law.

26. In our opinion, the course taken by the trial judge at [15] above was premature. No enquiry of the jury for the purpose of s 56(2) should have been made by his Honour until the point had been reached at which a majority verdict was capable of being taken. Accordingly, he erred in asking the foreman at the time he did as to whether there would be any possibility of reaching a majority verdict of 11:1.

27. At [16] above, we noted that the first occasion on which the jury was informed by the trial judge as to the availability of a majority verdict was in the direction which followed his Honour's engagement of the requirements of s 55F(2)(b). Given that that possibility had not previously been referred to except when his Honour posed to the foreman the second question referred to at [15] above, this direction when coupled with that question and the foreman's answer would have indicated to the jury that a majority verdict was, in effect, a real possibility, although the time for taking such a verdict had not yet arisen. In our view, the question and the direction which followed it had the potential to distract the jury from its primary obligation to reach a unanimous verdict and thus undermined the Black direction referred to at [9] above. This was sufficient of itself to cause the trial to relevantly miscarry.

…

30. The foregoing illustrates the danger of a trial judge prematurely and erroneously engaging with the jury for the purpose of s 55F(2) before the point is reached at which a majority verdict is capable of being taken. As we have already observed, in the present case the course taken resulted, or appears to have resulted, from a misunderstanding by the trial judge and counsel as to the proper time to engage s 56(2). No question of discharging the jury due to their inability to reach a unanimous verdict can arise unless and until the requirements of s 55F(2)(a) have been satisfied. That never occurred in the present case.

…

33. In our view, it follows from the foregoing that when a Black direction is given in response to an indication by the jury that it is deadlocked or otherwise unable to reach a unanimous verdict, it would be prudent that, generally speaking, no subsequent direction should be given which does other than continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum 8 hours of deliberation (and if necessary, a greater period having regard to the nature and complexity of the issues in the case) and that this is so notwithstanding that the jury may continue prior to the expiry of that period to advise the court that it is unable to reach a unanimous decision. In other words, if the jury indicates it is deadlocked before the time has come to consider a majority verdict, it should always be encouraged to continue its deliberations and to strive for a unanimous verdict without being advised that the time for accepting a majority verdict is imminent, or that such a verdict may be taken after the expiry of a particular period of time ( RJS at [23] and note [24]).

34. This is not to say that it is inappropriate for a trial judge to make a passing or brief reference to majority verdicts in the summing up as contemplated by, and in the manner suggested in, [7-020] of the Criminal Trial Courts Bench Book. The reasons for this are referred to in Ingham which contains an extensive discussion of the circumstances in which it is or is not appropriate for a trial judge to refer the jury to the possibility of a majority verdict. It is unnecessary to add to that exegesis in the present case where the trial judge's errors are not in issue and, in any event, where he did not include a reference to that possibility in his summing up.

35. In summary, the problem in the present case was that the trial judge, apparently for the purposes of s 56(2), explained to the jury the majority verdict formula and enquired of the foreman as to whether a majority verdict was possible well before a majority verdict was available in law. This error of process was then compounded by his Honour advising the jury as to the precise time when a majority verdict could be taken and inviting them to wait out the expiry of the minimum period of 8 hours upon the implied assumption that no further deliberations would be undertaken and without consideration of whether 8 hours of deliberation by the jury had occurred. These were clear failures to comply with the requirements of s 55F(2) as a consequence whereof the appellant did not receive a trial according to law.

36. It was for the foregoing reasons that we accepted the Crown's concession that the directions of the trial judge to which we have referred constituted a miscarriage of justice and joined ordered that his conviction be quashed.

MacFarlan JA

1. Following a trial in June 2014 in the District Court before a judge and jury, the appellant was convicted of an offence, contrary to s 61L of the Crimes Act 1900 (NSW), of one count of assaulting the complainant (and at the time also committing an act of indecency) and of one count of an offence, contrary to s 61N(2) of the Crimes Act, of committing an act of indecency towards the same complainant. The Indictment alleged that those offences occurred between 25 and 26 January 2010. The appellant was acquitted of three other charges which concerned acts of a sexual nature alleged to have been committed on 16 January 2010 in relation to the same complainant.

2. The appellant’s first ground of appeal asserts that “[a] miscarriage of justice occurred as a result of the trial judge’s direction to the jury in response to a question from the jury” whilst it was considering its verdict. The question was what would happen if the jury members could not agree.

…

5. For the reasons given below, the appellant succeeds on his first ground of appeal. As a result, his convictions should be quashed and a new trial ordered. To address the second ground, it would be necessary to examine the evidence given at the trial in some detail. As there is to be a new trial by reason of the success of the first ground, it would be undesirable for this Court to express any view about that evidence unless it was necessary for it to do so. As that is not necessary, I shall not address the second ground.

The jury’s question and the trial judge’s response

6. The jury retired to consider its verdict at 12:22pm on 17 June 2014. At 4:10pm it sent a note to the trial judge asking six questions, the first five of which are presently irrelevant. The sixth question was: “[w]hat happens if we cannot agree?”. The trial judge’s response to the jury was:

“Now finally you ask ‘What happens if we cannot agree?” Well the answer to that is that I will tell you to go away and try harder, so take it from me that you will be encouraged to go away and think more deeply and consider each other’s views more deeply if you believe that you are deadlocked because these trials are very costly to run and very time consuming and if I had to discharge you it would mean we would all have to go through the whole process again” (Summing-Up p 32).

7. The trial judge then excused the jury for the day. It reconvened at 9:55am the next day and continued deliberations until 11:42am, at which time it returned verdicts of not guilty on three of the counts in the Indictment and guilty on two counts (see [1] above).

DETERMINATION OF THE APPEAL

Whether the judge’s response placed undue pressure on the jury

8. The appellant’s oral argument on the appeal focused on the question of whether the judge’s response to the jury placed undue pressure on it to reach verdicts and was therefore apt to encourage its members to compromise their views in order to achieve agreed verdicts, contrary to the principles stated in Black v R [1993] HCA 71; 179 CLR 44.

…

15. The first part of the response that the judge in fact gave (that is up to the word “deadlocked”) was unobjectionable but what followed was objectionable. As I have indicated, the High Court in Black v R specifically disapproved of the reference by the trial judge in that case to “public inconvenience and expense” as likely to put undue pressure upon the jury to reach a verdict. The trial judge’s statement in the present case that “we would all have to go through the whole process again” compounded his Honour’s error as it increased the pressure on the jury and arguably implied that jury members would not be performing their duties if they did not agree on verdicts. This was “apt to impose pressure upon individual jurors to join in the view taken by a majority”

Hall J

20. I agree with Macfarlan JA.

Bellew J

21. I agree with Macfarlan JA.

Judgement of the Court (Bathurst CJ, Basten JA and Button J) delivered by Basten J

1. The applicants for leave to appeal are two of four accused put on trial together for offences arising out of the death of Raymond Pasnin in Pendle Hill in October 2013. There was no dispute that one of the accused (Daniel Haile) shot the victim. He claimed that he acted in self-defence, but the jury convicted him of murder.

2. A second offender and former girlfriend of the victim, Louise Spiteri-Ahern, was charged with the murder and, in the alternative, with soliciting Haile to murder the victim. The jury was unable to agree in relation to Ms Spiteri-Ahern.

3. Shortly after 3pm on Thursday, 9 June 2016, the jury having advised that they were unable to reach a verdict, the trial judge, R S Hulme AJ, discharged them both with respect to the charges against Ms Spiteri-Ahern and with respect to the present applicants. The applicants, who thereby lost an opportunity for an acquittal following a lengthy trial, sought leave to appeal the decision to discharge the jury with respect to them.

4. Counsel for the applicant April Barber applied to the trial judge for a stay of his order discharging the jury: that application was refused. The following morning, Friday, 10 June 2016, there was an application to this Court for a stay. Although the jury had already been discharged, and over the objection of counsel for the prosecution, this Court ordered a stay and gave directions to the Sheriff to advise the jurors that the order discharging them was the subject of an appeal, that this Court had stayed the order, that the appeal would be heard on Tuesday, 14 June 2016 and that pending further advice from the Sheriff, they should abide by the orders made during the trial not to discuss the case with others or inquire of others about matters relating to the trial.

5. Following that order and direction, the long weekend intervened. On Tuesday, 14 June 2016 the Court heard the application for leave to appeal. Leave was granted in each application, but the appeals were dismissed. The Court reserved its reasons. These are the reasons of the Court for the orders made on Tuesday, 14 June. It is convenient to outline first the circumstances which gave rise to the application.

Background circumstances

6. There were only two issues to be determined by this Court, namely (a) whether the trial judge was wrong to discharge the jury with respect to the charges against the applicants, and (b), if so, whether the Court should set aside the order, or grant other relief.

7. The indictment provided to this Court included four counts. The first charged Daniel Haile and Louise Spiteri-Ahern with murder; the second was an alternative count against Ms Spiteri-Ahern that she “did solicit” Daniel Haile to murder the victim. The third count charged April Barber with inciting Haile and Spiteri-Ahern to murder the victim. The fourth count charged Amin Zraika with concealing a serious indictable offence because he knew of the matters alleged against Ms Barber and failed to report those matters to the authorities.

…

10. After setting out some circumstances relating to the lengthy period of deliberation, the judge explained the final steps taken in the following terms:

“The jury could not find Ms Barber or Mr Zraika guilty unless they also found Ms Spiteri-Ahern guilty. I took the view that it was not appropriate to ask them to consider the case against Ms Barber and Mr Zraika when the only result could be a verdict of acquittal or an absence of agreement.”

11. The first question is whether the judge was correct in discharging the jury on that basis. However, before considering that question it is necessary to set out some further details in relation to the procedure adopted immediately prior to the discharge of the jury.

12. First, the trial had run, with some short interruptions, from 22 February 2016 until 20 May 2016 when the jury were directed to consider their verdicts with respect to Mr Haile and Ms Spiteri-Ahern. The jury returned its verdict of guilty of murder with respect to Mr Haile on 6 June 2016. They were directed to continue to deliberate with respect to Ms Spiteri-Ahern and did so for three further days before they reported that they were unable to reach agreement.

13. Secondly, over the period of the trial, the jury had been reduced to nine members. It was open for the trial to proceed despite the reduction in numbers, pursuant to s 22 of the Jury Act 1977 (NSW). However, the reduction below 11 members meant that any verdict was required to be unanimous.

14. There was no dispute in this Court that, as a result of the formulation of the charges, the trial judge was correct in saying that, given the failure to agree with respect to Ms Spiteri-Ahern, the only affirmative verdict that could be reached with respect to the applicants was the acquittal of each. Accordingly, the discharge of the jury in circumstances where it had not been required to consider its verdict with respect to the applicants, left open the possibility that they and Ms Spiteri-Ahern could be put on trial again with respect to the unresolved charges.

…

18. Although there was no discussion with counsel immediately prior to the statements set out above, there had been consideration in the morning as to what steps should be taken if the jury were deadlocked. The trial judge noted that they could not convict Ms Barber if they did not convict Ms Spiteri-Ahern, noting with respect to Ms Barber that “they could theoretically acquit her, they could, on the other hand, disagree.” The prosecutor agreed with that assessment but said that “to send a jury out where the only verdict they could reach is a verdict of not guilty would be manifestly unfair because the danger that there would be pressure on the jury to produce a result in such a circumstance has in it such a degree of procedural unfairness that it should not be done.”

…

28. Nevertheless, the result that the jury was unable to agree in relation to Ms Spiteri-Ahern was seen to give rise to a dilemma as to what course should be taken with respect to the two accused whose cases had not been addressed by the jury.

29. There is much to be said for the position taken by the applicants in this Court, namely that, having been charged and tried with serious offences which, at least with respect to Ms Barber, could have led to a conviction for being an accessory to a murder, they were entitled to have verdicts unless the trial had miscarried.

30. There are a number of ways in which a jury trial might not reach a final verdict. One possibility is that, where jurors are discharged in the course of a trial, so that, by a process of attrition, there is no longer an adequate number to allow the trial to continue, in accordance with s 22 of the Jury Act. That had not occurred in this case, but it appears that the trial judge was concerned about the length of the trial (which had exceeded expectations). The jury had retired to consider the charges against Mr Haile and Ms Spiteri-Ahern at about 11am on May 20 and had concluded that they could not agree with respect to Ms Spiteri-Ahern at 3pm on 9 June, a period of some 15 days.

31. The judge stated in his report:

“While I cannot point to any concrete evidence to this effect, and recognising the possibility in error in making such a judgment or that what I saw may only have been frustration, I also had the impression from the demeanour and long pause by the foreman yesterday morning when called to the witness box and answering my questions as to the likelihood of agreement and also from the demeanour of the jury itself when in court yesterday that they had had enough.”

32. Whether such circumstances could have warranted the discharge of the jury, over the objection of an accused, was not addressed specifically in submissions before this Court. It is sufficient to say that the material which was before the Court did not warrant the discharge of the jury over the objection of two of the accused. That factor justifies a grant of leave to appeal.

…

48. A combination of the circumstances set out above satisfied the Court that, the jury having in fact been discharged, it was not an appropriate case in which to intervene. Accordingly, the appeal was dismissed.

Hoeben CJ at CL

1. I agree with Price J and the orders which he proposes.

Price J

2. The appellant, Tri Thanh Phan, was charged with one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine and heroin, contrary to ss 11.1 and 307.5(1) of the Criminal Code (Cth) (“the Code”). He was jointly tried on an indictment with Man Fu Vico Lee, Hin Yiu Tang, and Hung Kai Lok in the District Court at Sydney before Judge M Williams SC (“the judge”) and a jury. With no disrespect to the co-accused, I will refer to them by their surnames.

…

4. The trial commenced on 13 July 2015 and the jury retired to consider its verdicts on 12 October 2015. The jury was, at that time, constituted by 12 jurors.

5. A verdict of guilty against Lee had been returned by the jury on 14 October 2015 which was the third day of the jury’s deliberations. On 22 October 2015, the ninth day of deliberations, the jury returned a verdict of guilty against Tang.

6. On 5 January 2016, the jury which was then constituted by nine jurors, found the appellant guilty of the offence of which he had been charged. This was the forty-sixth day of the jury’s deliberations. Earlier on that same day, the judge had discharged the jury in relation to Lok.

7. The appellant was sentenced to 14 years imprisonment with a non-parole period of 8 years by the judge. He appeals against his conviction upon the following grounds:

“Ground 1: His Honour erred in ordering that the trial continue with nine jurors on 4 January 2016, following the discharge of Juror 3 on that date.

Ground 2: His Honour erred in declining to discharge the jury on 5 January 2016, following receipt of MFI #115 and examination of Juror M and the foreperson on 4 January 2016.

Ground 3: The trial miscarried by reason of the duration of, and the circumstances pertaining to, the jury deliberations and delivery of the verdict.

Ground 4: His Honour erred in failing to hold that s 22(a)(iii) of the Jury Act 1977 (NSW) is not picked up and applied by s 68(2) of the Judiciary Act 1903 (Cth) to a trial on indictment in the District Court of New South Wales of a person who is charged with one or more offences against the laws of the Commonwealth.”

…

A brief chronology of the trial itself

32. After commencing on 13 July 2015 with 15 jurors, the evidence concluded on 17 September 2015. The Crown’s closing address commenced on 17 September 2015 and finished just before lunch on 24 September 2015. Ms Moody’s closing address commenced after lunch and was relatively short, being it appears, completed by mid-afternoon. Ms Moody’s address occupies 19 pages of transcript. The closing address by counsel for the co-accused took place between 24 September 2015 and 8 October 2015. The judge’s summing up commenced on Friday 9 October 2015. Following the weekend break, the judge re-commenced on Monday 12 October 2015 and upon concluding the summing up, his Honour conducted a ballot to eliminate three of the 15 jurors. The remaining jury of 12 retired to deliberate at 12.53pm.

A chronology of jury deliberations

33. The jury deliberated for a total of 46 days.

…

99. On 5 January 2016, the final day of deliberations, the Crown submitted that the jury should be discharged in relation to Lok only, and was supported by counsel for Lok.

100. Ms Moody made submissions in support of an application that the jury should be discharged in the appellant’s case. She submitted that the jury had been deliberating for three months and had been deliberating on Lok and the appellant since 22 October 2015, when the verdict was returned in respect of Tang. She submitted that the foreperson was somewhat ambivalent in her responses about the possibility of the jury reaching a verdict in the appellant’s case. She then renewed her application for Juror M to be further questioned. She argued that the environment in the jury room had become too toxic to continue; his Honour observed that part of Juror M’s note may have only related to deliberations in the case of Lok. Ms Moody further contended that the evidence in relation to the appellant was of very short compass and that the majority of the jury was keeping the minority prisoner. She submitted that it was essential that the jury be discharged in order to avoid a miscarriage of justice. The Crown repeated its submission that his Honour could not be satisfied that the jury could not reach a verdict in relation to the appellant, given that the note and questioning did not relate to the appellant.

101. The judge decided that the jury should be discharged in relation to Lok, which had been positively agreed to by counsel for Lok and the Crown. The judge then found at [16]:

“...I am unable to find that the note from Juror M when considered in the light of her evidence means that the jurors are unlikely to be able to reach a unanimous verdict in the case of [the appellant]. ... I do not accept the submission put by counsel for [the appellant] that there is a war of wills or some process of intimidation occurring in the jury room in relation to deliberations concerning [the appellant]”.

102. His Honour decided that the jury would not be discharged in relation to the appellant because his Honour was “unable to find that it is unlikely that the jurors will reach a unanimous verdict” and that “there is a reasonable basis for permitting the jury... a little bit more time for consideration of [the appellant’s] case”.

103. The following then occurred:

(1) At 11.33am the judge discharged the jury in relation to Lok;

(2) At 11.35am the jury deliberations in relation to the appellant continued;

(3) At 12.45pm a note was received from the jury which indicated that a verdict had been reached, and the jury returned with a verdict of guilty against the appellant at 1.04pm.

127. The third limb of s 6(1) is of relevance in this appeal. The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. The plurality further explained at [15]:

“Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate…”

128. The same principles can be said to apply to decisions on the continuation of a jury trial with fewer than 12 members. The overriding principle must be the maintenance of a fair trial.

…

132. The jury retired to consider its verdict on 12 October 2015. The judge provided the jury with agreed bundles of case summaries on 14 October 2015, and advised the jurors that they could deliver a verdict against any of the accused, at any time, throughout their deliberations. On that same day, the jury returned a verdict of guilty against Lee.

133. On 22 October 2015, the ninth day of deliberations, the jury returned a verdict of guilty against Tang. At the time these verdicts were delivered, the jury was constituted by 12 members.

134. The bulk of the evidence of the Crown’s case concerned these accused. The sole issue for the jury’s consideration in the case of the appellant was whether the Crown had proved beyond reasonable doubt that he knew or believed the substance inside the packages in the boxes he collected at the warehouse was a border controlled drug. The principal issue in the Crown case against Lok was duress.

135. After the verdicts against Lee and Tang, another verdict was not returned for some 10 weeks and 6 days. This was the verdict of guilt against the appellant that was delivered on 5 January 2016 by the jury then constituted by nine members. It is to be noted that during that time the Court did not sit due to the following reasons (other than on weekends):

1. On six separate days, due to juror illness;
2. On one day due to a juror travelling;
3. On two days due jurors attending funerals;
4. On one day due to a juror attending a family member’s graduation;
5. Ten days due to the Christmas break;
6. Half days on most Friday’s; and
7. Half days on four further occasions.

136. The following is a summary of the jury’s deliberations after the verdicts of Lee and Tang:

1. On 5 November 2015, two weeks after returning a verdict of guilty in relation to Tang, a jury note was received seeking clarification as to the elements of duress, an issue raised in relation to Lok only. The next day, the jury were given directions about the elements of duress and were reminded that their verdict must be unanimous. Further clarification as to duress was sought that afternoon.
2. On 10 November 2015, the jury indicated in a note to the judge that they were having difficulty reaching a unanimous decision. The judge ascertained from the jury that the difficulty was in relation to Lok, and gave the jury a Black direction in relation to that accused.
3. Further clarifications were sought by the jury as to duress in the following week.
4. On 20 November 2015, a jury note was received by the judge in relation to the elements of the appellant’s case. This was the first reference in a jury note to the appellant’s case which was almost one month after the verdict was returned against Tang.
5. On 26 November 2015, a jury note was sent to the judge requesting a copy of the judge’s summing up “particularly in regards to [the appellant]” and for further explanation on the indictment.
6. On 1 December 2015, the jury sought certain video evidence. The next day the jury were directed that the video contained nothing relevant to the case and that the woman in the video was not the appellant’s girlfriend.
7. On 3 December 2015, the jury sought court transcripts of the judge’s directions in relation to duress.
8. On 9 December 2015, the jury notified the judge that two jurors had holidays booked over the upcoming Christmas period (departing 19 December and 25 December); the note asked what would happen if deliberations were continuing after that time.
9. On 11 December 2015, the judge reminded the jury that he had the power to discharge them in relation to any individual accused should they be unable to reach a verdict, and asked them to let him know if they were experiencing any similar difficulty. This direction was considered by counsel to be a “partial” Black direction (see [59]-[60] above). The judge also told the jury that he had the power to discharge an individual juror but that ultimately their verdict must be unanimous.
10. On 17 December 2015, counsel for Lok and the appellant opposed the discharge of Juror 1 and the continuation of the trial with 11 jurors. The judge discharged Juror 1 and ordered that the trial continue with 11 jurors pursuant to s 53C(1)(b) of the Jury Act.
11. On 21 December 2015, the judge told the jury that if they needed assistance in the appellant’s case, they were free to send him a note. The jury informed the judge that they were still deliberating and would “outline specific questions shortly” (see [72] above).
12. On that same day, another jury note was received seeking further directions in relation to duress.
13. On 23 December 2015, Juror 2 was questioned by the judge as to his travel plans after which Juror 2 was told to resume deliberating with the balance of the jury. The judge delivered a judgment dismissing the applications of counsel for each accused to discharge the jury as a whole. Later that day, the judge gave a Black direction to the jury in relation to both the appellant’s and Lok’s cases.
14. At 11.05am on 24 December 2015, the judge received a jury note that informed him that a juror was unwell. Counsel were told by the judge that a juror was very unwell and was lying on the jury room floor. His Honour sent the juror home. The sick juror was Juror 3.
15. After hearing submissions from counsel for Lok and the appellant, that Juror 2 should not be discharged and the trial should not continue with 10 jurors, the judge discharged Juror 2 and ordered that the trial continue with 10 jurors pursuant to s 53C(1)(b) of the Jury Act. An order was made for the separation of the jury until 4 January 2016.
16. On 4 January 2016, on the recommencement of jury deliberations, the judge received a medical certificate concerning Juror 3 in which the doctor opined that the juror was “suffering from a recurrence of a severe anxiety disorder as a result of his jury duty and is no longer fit to serve on jury duty” (see [86] above). Juror 3 was discharged.
17. Counsel for Lok and the appellant opposed the continuation of the trial. The judge ordered that the trial continue with nine jurors pursuant to s 53C(1)(b) of the Jury Act.
18. On that same day, a jury note was received from “Juror M” (who was not the foreperson) which indicated that a unanimous verdict was not likely to be possible in relation to the juror’s deliberations on Lok. Juror M was then examined in court by the judge, and when questioned, confirmed that the note was “principally directed” to Lok and that a unanimous verdict was unlikely.
19. The judge also examined the foreperson, who gave evidence that it was her view that further deliberations in each case may lead to a unanimous verdict.
20. On 5 January 2016, the Crown and counsel for Lok submitted that the jury be discharged in relation to Lok. The appellant’s counsel argued that the jury should be discharged in the appellant’s case.
21. The judge discharged the jury in relation to Lok, but ordered that the appellant’s trial continue.
22. At 11.35am, the jury continued to deliberate.
23. At 12.45pm, the judge received a jury note that indicated a verdict had been reached. The jury returned a verdict of guilty against the appellant at 1.04pm.

137. Although a jury’s deliberations are secret, it is evident from the jury notes and the length of the deliberations that the jurors were experiencing difficulties with reaching verdicts in respect of Lok and the appellant. It appears that the question of duress in the case against Lok particularly troubled the jurors. The jury was given a Black direction in respect of Lok’s trial on 10 November 2015 and a Black direction in respect to both accused on 23 December 2015. The jury was unable to reach a unanimous agreement prior to the discharge of the jury in Lok’s trial on 5 January 2016.

…

145. In the present appeal, the length of time of the jury’s deliberations presents a troubling feature. After retiring to deliberate, the verdicts against Lee and Tang were delivered on the third and ninth day, respectively. Thereafter, the focus of the jury’s deliberations in accordance with the judge’s directions and submissions of trial counsel were on single issues. In relation to the appellant, the issue was one of knowledge, and the issue was duress in respect of Lok. This was not a trial where the jury was required to consider multiple counts against the accused. The length of time of the jury’s deliberations cannot be explained by there being four accused or what was said by Ms Abraham to be the complex nature of Commonwealth trials.

…

161. On the material before the judge, the present case falls within the first category of cases in her Honour’s analysis as there was no indication of how Juror 3 may have voted. When the judge came to consider this issue, he correctly rejected the submission as speculation.

162. The same may be said for his Honour’s conclusion that the discharge of three jurors was likely to upset the balance of the jury. Unlike this Court, the judge did not have the benefit of hindsight.

163. The judge did not accept the submissions made by Lok’s counsel as to the significance of the doctor’s medical certificate on the basis that they invited speculation as to whether Juror 3’s anxiety disorder was disclosed and had any influence on the balance of the jury. The doctor’s opinion was that the recurrence of the disorder resulted from jury duty. This opinion was supported by the juror being found unwell on the floor of the jury room before the Christmas break. Whilst the doctor’s opinion may not have been known to the jurors, it was the jury who informed the judge by a jury note that the juror was unwell, should rest at home and seek medical attention.

164. It is not being speculative to infer that a cause of the recurrence of the illness was the length of the jury’s deliberations. Although a degree of disagreement in the jury room may be expected, the inability of the jury to reach a unanimous verdict in the cases of Lok and the appellant is unusual. The jury’s consideration of Lok’s case cannot explain the inability to reach an agreement in the appellant’s case as the jury was well aware that they could deliver a verdict against an accused at any time.

165. As the judge was required to decide whether to continue the trial with nine jurors would give rise to the risk of a substantial miscarriage of justice, the reasonableness and well-being of the remaining jurors had to be considered.

166. It is plain that the judge took into account that the jury had returned after a ten day break. At that time, there was little to indicate that Juror 3’s illness may have affected the remaining jurors’ reasonableness and well-being. It was open to the judge to conclude that whatever impact Juror 3’s illness had upon the remaining jurors could amount to no more than speculation.

167. His Honour also took into account that a Black direction had been given on 23 December and there had been little opportunity for deliberation since that time. It was appropriate for his Honour to do so on the material before him.

168. In my opinion, it was open to the judge to reach a conclusion that there was no risk of a substantial miscarriage of justice by continuing the trial with the remaining nine jurors. In reaching that conclusion, the judge did not take into account anything which he ought not to have taken into account nor did he fail to consider any matter which he ought to have considered. His Honour’s reasons are to be considered in combination with the judgments of 17 and 23 December 2015.

169. I would reject ground 1 of the appeal.

170. Within a few minutes of asking the jury of nine to resume their deliberations, the judge was informed that a court officer had received a note from an individual juror. This note was marked MFI #115.

171. The note provides insight into tensions within the jury room. Juror M wrote that:

“…individual verdicts and decision-making have not and continue not to be respected and further deliberation is proving unconstructive, toxic and futile.”

…

183. Ground 2 of the appeal asserts that the judge erred in declining to discharge the jury on 5 January 2016, following the receipt of MFI #115 and examination of Juror M and the foreperson on 4 January 2016. The assertion in Ground 3 is that the trial miscarried by reason of the duration of, and circumstances pertaining to, the jury deliberations and delivery of the verdict.

184. In declining to discharge the jury in respect of the appellant, his Honour’s reasons for judgment were confined to the question of the unlikelihood of the jurors reaching a unanimous verdict. Although the judge did not expressly say so, his Honour was considering s 56(3) of the Jury Act which permits a trial judge with a jury of less than 10 members to discharge the jury, if the judge finds, after the examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict.

…

190. The views of Juror’s 2 and 3 were not known at the time of the juror’s discharge. Nevertheless, the timing of the verdict such a short time after the nine jurors resumed their deliberations leads to the reasonable inference that to continue with the remaining jurors gave rise to the risk of a substantial miscarriage of justice. With the benefit of hindsight, a fair-minded informed observer could conclude that either Juror 2 or Juror 3 (or both of them) was holding out as a dissenting juror for an acquittal of the appellant, or at least was unwilling to convict. A fair-minded informed observer could also conclude that the reason Juror 3 was unwell and lying on the jury room floor on 24 December and suffered from a recurrence of a severe anxiety disorder was that he was in the minority. This is more than mere speculation. In my opinion, the case falls within the third category of Adamson’ J’s analysis in BG.

191. In any event, Ms Moody’s submissions to the judge went beyond the issue of the likelihood of disagreement in the jury. Her submissions raised once again the risk of a substantial miscarriage of justice which his Honour appears not to have considered after the receipt of MFI #115. Ms Moody was right to do so as the tensions in the jury room, and the conflict in the testimony of Juror M and the foreperson had come to the Court’s attention. Considered in combination with the length of the jury’s deliberations and the recurrence of Juror 3’s anxiety disorder, the reasonableness and well-being of the remaining nine jurors could not be ignored.

192. Although the extent of the disharmony in the jury room was unclear from Juror M’s evidence, the judge was aware of the medical opinion that Juror 3’s illness resulted from jury duty. Furthermore, the jury had been unable to reach a unanimous verdict in the appellant’s trial even though they had been directed upon the single issue of knowledge and had been out on verdict since 12 October 2015. There was a reasonable possibility that the tension in the jury room was not confined to disagreement over Lok’s verdict.

193. The appellant had been deprived of the views of three jurors in the jury room. The judge was obliged to consider, on what was known or could be inferred from what had transpired in the jury room, whether the ability of the nine remaining jurors to carry out their function had been compromised. In my respectful opinion, the judge erred in not re-considering, on the material then available, whether to continue the trial would give rise to the risk of a substantial miscarriage of justice.

194. In all the circumstances, it is my conclusion that the appellant has not received a fair trial and it follows that there has been a substantial miscarriage of justice.

195. Accordingly, grounds 2 and 3 of the appeal have been established.

Fullerton J

200. I agree with Price J

Simpson AJA

1. On 20 September 2016 (a Tuesday) the appellant was arraigned in the District Court on an indictment that charged him with three offences as follows…

                  …

2. Prior to jury selection, the jury panel was advised that the trial was estimated to occupy a week of hearing time, and to conclude the following Tuesday, 27 September or Wednesday, 28 September at the latest. The appellant entered a plea of not guilty to each count, and a jury trial commenced. On 4 October 2016, the jury returned verdicts of guilty on all counts. On 16 December 2016 the trial judge sentenced the appellant to an aggregate term of imprisonment of 14 years commencing on 13 January 2016 and expiring on 12 January 2030, with a non-parole period of 9 years, which will expire on 12 January 2025.

3. By notice of appeal filed on 21 December 2018 the appellant appeals against the convictions and seeks leave to appeal against the sentence. Due to a delay in filing the notice of appeal, the appellant seeks an extension of time in which to appeal.

4. The appellant initially pleaded a single ground of appeal against conviction and a single ground of appeal against sentence. They were framed as follows:

“1.    There was a failure to direct the jury, during deliberations, pursuant to the decision of Black v The Queen (1993) 179 CLR 44, 68 ALJR 91 and as a result of this, the trial has miscarried.

2.    The sentencing judge erred in his assessment of the objective seriousness of the kidnapping offence, and in doing so passed a sentence which was manifestly excessive.”

5. At the hearing of the appeal, the appellant sought leave to amend the grounds of appeal by adding a further ground against conviction:

“3.   The verdict of the jury should be set aside because it appears that a unanimous verdict was reached through pressure of time restraints rather than proper deliberations.”

6. The Crown did not oppose the application, and leave should be granted.

…

Thursday, 29 September 2016 – the eighth day of the trial

12. On Thursday, 29 September a note was received from a juror in the following terms:

“On Wednesday 5 October, I have a course to attend. The course has been booked since June at a cost of about $5,000. This course runs from Wednesday to Friday.”

It appears from the transcript that the note was received late in the day. The appellant had given evidence, and closed his case. What remained was for counsel to address, and the judge to sum up. The forthcoming weekend was a long weekend.

13. After discussion between the trial judge and counsel, the trial judge made the following statement to the jury as recorded in the transcript:

“Thank you so much, ladies and gentlemen. I have received a note with respect to a particular juror, I assume, indicating that he or she has a course to attend commencing Wednesday 5 October. It has been booked since June at significant cost, and it goes from Wednesday to Friday. I understand that. Can I leave that on the shelf as it were and see how far we progress. Do not be alarmed some accommodation may well be able to be made, but I don’t want to rush things. Can I say that from a practical sense, I don’t want to rush the conduct of the trial, particularly now we’re up to the crucial stage of addresses and summing-up. So I will retain that.”

Friday 30 September 2016

…

16. Defence counsel agreed, and the proposal was adopted. The trial judge then informed the jury:

“All right, thank you very much and good morning, ladies and gentlemen. Just the first issue is I have received a note from the relevant juror who has a commitment. Can I indicate in summary, and I’m not going to read it all out, the position is that commitment can’t be adjusted or moved, so what I’m proposing is to see how far we get with the trial today and then attempt to resolve that issue for that juror later today. All right? I’ll leave it at that for the moment if you don’t mind.” (italics added)

…

19. The trial judge then commenced the summing up. Just prior to the lunch break, he said to the jury:

                  …

The best way for me is a note so that I can just receive it maybe just before we finish our lunch and have a think about what your contingencies are, all right? Those contingencies should not be affected one way or the other by the needs of a particular juror. It is very important that I intend to accommodate that juror’s wishes and there are ways I can do that and it will not affect all of you as jurors. It is to accommodate the circumstance, all right? So just be alert to that too. That should not be an overriding concern one way or the other, okay? I just want to accommodate your convenience as a juror on Friday at 1 o’clock, 2 o’clock with a long weekend ahead of us.”

…

Tuesday, 4 October 2016

…

24. Shortly after this exchange, a note was received from the jury:

“We are unable to reach a unanimous decision.”

…

27. At about 4:30pm, a note was received from the jury:

“We have come to individual decisions however we are not in agreeance.”

…

29. The Crown Prosecutor agreed. At 4:44pm, the jury returned and the trial judge gave the following direction:

“Ladies and gentlemen, what I am going to do is ask you to continue deliberating today. I am inviting you to remain for at least some time now. The court facilities can remain open. You are at a crucial time and I appreciate that it would be a challenging time for jurors as a group in your deliberations. It is important that you continue with your deliberations and my preference is that, if you can, you continue to do so this afternoon. What I propose to do is ask you to continue with your deliberations, perhaps with a view of bringing you back later this afternoon.

I am mindful of difficulties that one juror raised previously. That remains. I am alert to that, so I am asking you as a jury [of] 12 to continue with your deliberations this afternoon. If you need to contact personnel to make relevant arrangements, please let me know via a note. I do not think there is any problem with that but it seems to me, having returned as you have after the long weekend, continued with the summing up and your deliberations commencing this morning some time after 11.00, then with the hiatus, as it were, while a transcript was prepared and made available to you at your request and that day, it is my view that it is important that you continue with your deliberations at least for some time longer this afternoon. That is what I propose to do.

What I will do is respond to any note you have as to any difficulties that might create and deal with that, if necessary, but my present view, and accepting that the clock is correct and it is something like 12 minutes to 5, I am thinking of having you remain at least for the next hour, if not more, to continue with your deliberations. Thank you for that. I appreciate you bringing to my attention that which you have. If you need to contact personnel or something, let me know and I will discuss that with the parties and certainly, I would imagine, allow that to occur. Thank you. I will not call you back unless you need me and I will not trouble you until at least 6 o'clock. Thank you very much.”

30. The jury retired again. At 5:47pm the jury returned verdicts of guilty.

…

36. Those opening words are designed to remove any suggestion of pressure upon a jury, and, more importantly, any individual member or members of the jury who conscientiously holds or hold a view different from that of other members of the jury. The direction affords comfort to the whole jury that, in the event of irreconcilable differences of opinion, the jury will not be detained beyond the point that unanimity is determined to be not possible. It removes any uncertainty in the minds of the jury and individual jurors about the length of time they will be required to remain.

37. In this case, no attention appears to have been paid to either of the two jury notes indicating deadlock. On behalf of the appellant, it was submitted that the failure to direct the jury in accordance with the Black formulation gave rise to a miscarriage of justice.

…

48. In my opinion, such a direction should have been given on receipt of the first note indicating lack of unanimity, and certainly, on receipt of the second. The jury ought to have been told that, in the event of deadlock (after further consideration), they could and would be discharged. The failure to inform them of this important consequence of deadlock meant that they were in a state of uncertainty, and imposed undue pressure on them. To ignore two communications of this nature was, of itself, apt to create pressure to reach verdict. As in Gallagher, it was also important that adherence to their independently and honestly held opinions be emphasised.

49. That is not, of course, to say that the jury ought to have been discharged at that point. The very point of the Black direction is to remove any underlying pressure on the jury, but nevertheless to invite them to continue their efforts, in the light of the advice concerning exchange of views.

50. The failure so to direct the jury was, in my opinion, an error productive of injustice sufficient to require that the appeal be allowed.

51. Since preparing these reasons, I have had the advantage of reading in draft the judgment of Adamson J, in which her Honour expresses a contrary view.

52. While her Honour’s thoughtful reasons have not persuaded me to change my mind, they do prompt me to make the following further observations.

…

64. Opinions have been divided on whether the jury ought even be advised, prior to the expiration of the time determined to be reasonable, of the prospect of taking a majority verdict: see the review of decisions in Ingham v R [2011] NSWCCA 88 at [19] ff.

65. This is not a case in which any issue of a s 56(2) inquiry arises. The jury retired at 11:06am. The first note indicating disagreement was received at what might be calculated to have been a little after 2pm. The second was received at about 4:30pm. Both were therefore well within the eight hour period, which meant that a majority verdict could not have been taken and, on the authority of RJS and Hunt, a s 56(2) inquiry would have been premature and inappropriate.

66. What does arise for consideration is whether that circumstance has any bearing on the response that should have been made to either the first or the second of what I might call the jury disagreement notes. In my opinion it does not.

67. A jury that signifies disagreement is entitled, in my opinion, to information about the prospective course of the trial thereafter. An accused person is entitled, in my opinion, to have charges determined by a jury that is in possession of relevant information, and is therefore relieved of any pressure or concern about its future. I do not mean by this that the trial judge ought to have told the jury of the eight hour (or longer) time limit; that was frowned upon in RJS and Hunt as an invitation to “sit it out” until the deadline had arrived and passed. But the jury should have been given the benefit of the Black direction, the advice to listen to and engage with one another, and that the power to discharge existed.

68. It is for that reason that I consider that the appeal should be allowed.

The notes concerning the juror’s work commitment

69. Uncertainty about the consequences of deadlock is not the only pressure to which the jury was subject; running concurrently with this was the lack of certainty concerning the position of the one juror who had twice sought a response to his/her wish to attend a work-related course.

70. It was not sufficient, in my opinion, for the trial judge to tell the jury, as he did, in the first instance (on the Thursday) “some accommodation may well be able to be made”; then, on the Friday, that he would “attempt to resolve that issue… later today”; and, later on the same day, that he proposed to “accommodate that juror, if need be”; and, finally, later again on the same day, that he intended to “accommodate that juror’s wishes and there are ways I can do that” without explicitly stating that he could (and intended to) discharge the juror by, at the latest, Tuesday evening.

71. On the Tuesday, nothing at all was said about the position of the juror until 4:44pm, when all that was said was:

“I am mindful of difficulties that one juror raised previously.”

In that context, the trial judge asked the jury to continue to deliberate into the evening “at least for the next hour, if not more”. At the same time, he twice invited the jury to communicate with him if they “need[ed] to contact personnel or something” and anticipated that he would “allow that to occur”. No doubt what his Honour intended by that was to tell the jury that they would be permitted to contact family to inform them that they would be later than expected, but that is not at all clear, and may well have been taken by the juror with the work course that he or she would not be able to attend and should communicate with his or her employer to that effect. The responses were cryptic to the point of obscurity.

72. The manner in which the juror’s request was treated, too, was, in my opinion, sufficient to require that the appeal be allowed and the verdicts set aside. There can be no confidence that the verdicts of guilty were not influenced by the state of uncertainty concerning the position of that juror. The jury (and one juror in particular) was under undue pressure.

…

75. This is not a case in which it is suggested that the conduct of the trial by counsel was incompetent. To the contrary, the Crown asserts that the decision made by defence counsel to seek to retain all 12 members of the jury was a legitimate forensic one, well within the scope of his authority as counsel with the conduct of the case, and, therefore, one by which the appellant was bound. That is not disputed.

76. But the issue here is not the forensic decision made by counsel not to seek discharge of that juror after the two jury notes (which undoubtedly complicated the decision).

77. The real difficulty was not caused by the failure to discharge the juror at any specific point of the events; it was the failure of the trial judge to make clear to the juror the position – that is, that he or she would be discharged at the end of the day’s proceedings, whether or not verdict had been reached. The cryptic manner in which the juror’s notes were answered conveyed no information at all, and created unnecessary pressure, not only on that juror, but also on the whole of the jury. Had the judge’s intention been made clear, the jury could have continued its deliberations on the Tuesday and into the Wednesday. Instead, a decision was made which cannot confidently be said to have been uninfluenced by pressure.

78. In this case, there were twin issues defence counsel had to confront. The first was what position to take in relation to the juror who sought to be released. Initially, he was willing to accede to the immediate discharge of that juror. After discussion, he agreed to retaining that juror, on the understanding that he or she would be discharged in time to attend the course. There was, undoubtedly, some vacillation on the part of counsel.

79. There was, in this, no tactical decision. Nor was there any tactical decision involved in what subsequently went wrong. What went wrong, as I have indicated above, was not retaining the juror until the close of proceedings on the Tuesday; it was failing to inform the juror (and the jury) adequately that that juror would be released in time to attend the course. There was no involvement of defence counsel in this. True it is that counsel could have urged that more explicit information be given to the juror and the jury, but it could not be suggested that any tactical advantage lay in the failure to seek a more explicit explanation of what was in the mind of the trial judge.

80. The second issue was the response to the jury’s twice notified inability to agree on verdicts. It was after the second of these that counsel did urge that all members of the jury be retained. This, I would infer, was for tactical reasons. No doubt counsel perceived that some possible advantage lay to his client in the apparent disagreement in the jury room. He could not be sure that the juror in question was not one of those (or the only one) not prepared to convict.

81. If the only issue were failing to discharge the entire jury, or one juror on the notification of disagreement, it would be difficult to avoid the conclusion that counsel had made a tactical decision by which the appellant must be bound. But that is not the only issue, and, indeed, not the issue in this case. That is the failure to inform the juror that he or she would be discharged in time to attend the course.

82. In my opinion, it is inevitable that the verdicts must be set aside and a new trial ordered.

Walton J

85. I agree with the orders proposed by Simpson AJA for the reasons given by her Honour.

Adamson J

86. I have had the benefit of reading the reasons of Simpson AJA in draft and gratefully adopt her Honour’s recitation of the facts and the submissions made by the parties. My reasons for coming to a different view as to grounds 1 and 3 and the appropriate orders are as follows. In order to explain the reasons for my view it has been necessary for me to include some of the salient facts.

…

90. Ms Carroll, who appeared for the appellant in this Court, accepted that the jury would have understood from what the trial judge said that, whatever happened, the committed juror would be able to attend the course.

…

96. It is plain from what defence trial counsel said in this exchange that he did not want to deprive the appellant of the committed juror since it was at least possible that the committed juror was responsible for the lack of unanimity. Thus, defence trial counsel would have preferred for the whole jury to be discharged rather than for the committed juror alone to be discharged, with the trial continuing with the remaining 11 jurors.

…

101. The passage set out above indicated that whether a direction in the terms suggested ought be given was a matter for the trial judge to be determined as a matter of discretion. The High Court did not say that a trial judge was obliged to give such a direction whenever jurors indicated disagreement.

102. In the present case, there were two notes indicating disagreement. The first note was received when the jury had not yet received all of the material which they had requested. At this juncture, the trial judge’s response was to remind the jury that they were, at that point, being given the material they had requested and to ask them to continue with their deliberations. I am not persuaded that anything more was required since there was at least the possibility that a review of the material provided would resolve the disagreement indicated by the first of the two notes.

103. The second note was received after the jurors had had an opportunity to review the material they had requested. However, the jury had, by that time, been deliberating for a net period of probably no more than about four and a half hours, taking into account the luncheon adjournment and the time spent in Court having their notes answered. I respectfully disagree with Simpson AJA that the trial judge gave “no response” to this note. As set out above, the trial judge asked the jury to continue with their deliberations and reminded them of the sequence of events that day in the following terms:

“…but it seems to me, having returned as you have after the long weekend, continued with the summing up and your deliberations commencing this morning some time after 11.00, then with the hiatus, as it were, while a transcript was prepared and made available to you at your request and that day, it is my view that it is important that you continue with your deliberations at least for some time longer this afternoon. That is what I propose to do.”

104. In effect, his Honour appropriately directed the jury to persevere. This direction did not amount to a Black direction because it neither informed the jury that they could be discharged if they did not agree, nor did it include a direction not to compromise their verdicts. As set out above, the trial judge also informed the jury that, if continuing to deliberate past 4pm caused any juror any difficulty, a note could be sent. I regard it as significant that a Black direction was not sought by defence trial counsel.

…

107. While a Black direction must be given before a direction concerning the availability of a majority verdict is given, there is otherwise no fixed rule as to the timing of a Black direction. Black v The Queen was decided in 1993. The majority verdict provisions came into force on 26 May 2006 by the insertion of s 55F into the Jury Act. The effect of these provisions has been to make it more usual for a Black direction to be given closer to the expiry of the eight hour period than at an earlier stage. The reasons for this are obvious. A majority verdict is available only after the jury has been deliberating for at least eight hours: s 55F(2)(a) of the Jury Act. In the present case, the jury had been deliberating for significantly less than that period when each of the two notes indicating disagreement was sent. Had the trial judge given the Black direction in response to either of these two notes, his Honour would potentially have placed himself in the invidious position, had the jury sent further notes within the 8-hour period to indicate that they disagreed, of having to repeat the Black direction. In this scenario the potency of the Black direction would inevitably have been reduced. The decision as to when, and whether, to give a Black direction requires a judgment to be made which takes account of the time at which disagreement has been indicated relative to the total amount of time spent deliberating, as well as the complexity of the trial which may make it more likely that further discussion will resolve outstanding issues in the minds of one or more jurors. The trial judge was best placed to make that judgment.

108. Notwithstanding the “protective” aspect of the Black direction in which the jury is directed not to compromise, there was a risk in the present case that, had the jury, who had been deliberating for a relatively short period of time (and well short of eight hours), been told that the judge could discharge them, the jurors might have felt obliged to compromise to come to a verdict, particularly having regard to the imminent unavailability of the committed juror. Further, to give the Black direction at what was, in the context of the trial, a relatively early stage could create the risk that a jury might ask themselves when the power to discharge them would be exercised which might distract them from continuing to deliberate. It was, in my view, properly open to the trial judge to assess that it was better to encourage the jury to continue with their deliberations at that stage than to give the Black direction.

110. Although I would be disposed to grant leave pursuant to r 4 of the Criminal Appeal Rules (NSW), I am not persuaded that this ground has been made out.

Ground 3: alleged pressure applied to the jury to come to a verdict

111. The gravamen of the appeal on the third ground was that the jurors had been pressured to reach a verdict because they had not been told that they could have been discharged if they continued to disagree and had not been directed not to compromise their views.

112. A hallmark feature of the jury system is that, except to the extent to which the state of mind of the jury collectively is revealed by its questions or its verdict, the workings of the jury’s deliberations before the return of a verdict are unknown. Two examples suffice to illustrate the point. When a jury returns a verdict at 4pm on a Friday, one available inference is that the jury wants to be free of their responsibilities before the weekend. When a jury returns a verdict at 10am on a Monday, one available inference is that some consensus was reached on Friday but that at least one member wanted to consider it over the weekend. While it is important to provide and safeguard an environment in which jurors feel comfortable about making serious decisions on a rational basis without undue pressure, this Court ought refrain from speculating about the reasons for jurors’ conduct in circumstances where there is a number of available inferences.

113. In the present case, the appellant’s trial counsel was required to make judgments about whether to apply for a discharge of the committed juror or the whole jury and whether to seek to have the judge enjoin the jury to continue its deliberations. The trial judge consulted with counsel at every relevant point. There was no occasion on which his Honour did not accede to what had been proposed, after discussion, by defence counsel. The trial judge, the prosecutor and defence counsel had the undoubted advantage over this Court in that they had the opportunity to observe the individual jurors as they came into and went from the court room, including on 30 September 2016 and 4 October 2016. They were in a position to discern any physical indication of undue stress in the jurors’ demeanour. The notes which emanated from the jury ranged from the practical (a request for access to mobile phones during an adjournment) to the substantive (an indication of an inability to agree). The content and frequency of the jury notes were sufficient to reveal the jury’s familiarity with the process.

114. Had the trial judge discharged the committed juror before the return of the verdicts on 4 October 2016, the appellant would have lost the chance of being tried by 12 jurors. Although it is open to a trial judge to discharge an individual juror in accordance with the Jury Act, the exercise of the power to discharge an individual juror and continue the trial with the balance of the jury carries with it forensic disadvantages to an accused who is in the jury’s charge: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [81] (Kirby J). A concern not to disadvantage the appellant in this way was evident from the prosecutor’s response to defence trial counsel’s initial suggestion on 30 September 2016 that the committed juror be discharged. It was also evident from defence trial counsel’s preference, on the afternoon of the 4 October 2016, for the jury to continue to deliberate until at least 6pm on that day as the committed juror would not become unavailable until the following day.

115. Courts are entitled to assume that juries comply with directions given by trial judges (Demirok v The Queen (1977) 137 CLR 20 at 22; [1977] HCA 21). This Court is entitled to assume that any juror who was troubled by continuing to deliberate until 6pm (“at least for the next hour”) would have responded to the trial judge’s invitation to provide him with a note to that effect or in some other way would have indicated discomfort with the trial judge’s proposal that the jury continue to deliberate. This Court ought not infer, in the absence of any such note or indication, that the verdicts returned involved some compromise or were other than in accordance with the directions.

116. The transcript of the summing up records the solicitous attention given by the trial judge to the needs, comfort and convenience of the jury as a whole and the committed juror in particular as well as the trial judge’s concern for the rights of the appellant as an accused. This case is to be distinguished from others such as those where the judge expressed irritation about the cost and inconvenience if verdicts could not be reached: cf. Black v The Queen at 50-51; Timbery v R [2007] NSWCCA 355; (2007) 180 A Crim R 232 at [112]-[123] and Isika v R [2015] NSWCCA 304 at [6]-[17]. I am not persuaded that any such pressure was applied here. If the jury felt that it was, the jury, or any one of its number, can be expected to have communicated such apprehension to the trial judge with a note to that effect.

117. There are several available inferences as to why, the jury not having been able to agree earlier, the jury returned a unanimous verdict shortly prior to 6pm. One available inference is that it was only when the jury had an opportunity to examine the further material which they had requested and which was provided to them after 3.30pm that any residual concerns on the part of one or more jurors were sufficiently addressed. The process of deliberation takes time, particularly where twelve individuals of equal standing are involved.

118. For this Court to quash the convictions and order a retrial would be, in my view, to underestimate not only the capacity of the jury to follow directions and assert its collective will but also the capacity of individual jurors to express a preference for continuing or adjourning. It would also be inconsistent with the system of trial by jury for this result to follow from what can amount to no more than speculation as to why the jury returned its verdicts shortly before 6pm.

119. The appellant has not made out the third ground.

120. As my view is a minority one, it is not necessary to consider ground 2, which relates to sentence.

The Court (Bathurst CJ, Hoeben CJ at CL and Gleeson JA)

1. Michael John Issakidis (the applicant) was charged on indictment dated 30 March 2017 with two offences contrary to the Criminal Code (Cth), namely conspiring to dishonestly cause a loss to the Commonwealth and conspiring to deal with property of a value greater than $1,000,000 believing it to be the proceeds of crime.

…

3. Following a jury trial which commenced on 10 April 2017, the jury returned verdicts of guilty for both counts on 13 June 2017.

…

6. The applicant has appealed against his conviction on the following grounds:

“Ground 1: The trial judge improperly applied pressure to the jury thereby interfering with their free deliberation to which the accused was entitled in reaching a true verdict according to the evidence.

In addition to and separate from this ground of appeal –

Constitutional contention:

That the trial judge’s interference with the free deliberation by the jury to which the accused and the community (including individual jurors) were entitled was in breach of s 80 of the Commonwealth Constitution…

…

The jury deliberations

51. The jury was sent out to deliberate at 1pm on Day 3 of the trial judge’s summing up, being Thursday, 25 May 2017. At this time, the trial judge told the jury:

              …

52. The jury was sent home at 4pm that day.

53. On Day 4, Friday 26 May 2017, the jury commenced deliberations and were sent home at 12.55pm.

54. On Day 5, Monday 29 May 2017, the jury commenced deliberations at 10am and were sent home at 3.55pm.

55. On Day 6, Tuesday 30 May 2017, the jury commenced deliberations at 10am. At 3.50pm, Court resumed in the absence of the jury. The trial judge read out the following jury note sent that day:

“Re Friday a juror has a commitment for the afternoon of Friday the 2nd of June. If we are still deliberating we propose to finish at 1pm on Friday but we will be starting earlier on Thursday and Friday with shortened breaks to compensate”.

56. Subsequently, the trial judge stated in the presence of the jury:

“Thank you for your note. I have discussed that with the parties and we have no difficulties at all with that. It obviously bears witness to the fact that you have all been working very hard, a fact for which everybody is appreciative.”

57. After making reference to the following day, Wednesday 31 May 2017, being a “lay day” where the jury would not deliberate due to one juror attending a funeral, the trial judge stated:

“You should also not feel under pressure from the Court to speed up, and certainly not to rush your decision. I do understand, however, that after 30 or 31 or more days it is likely or at least possible that one or some of you may be feeling pressure from one or other source extraneous to the Court. That is just the nature of service as a juror. It is not something which I or people in my position are unaware. We are fully aware that you will be, possibly, if you like, to use the vernacular, being pulled in more than one direction.

You should, however, do the best you can to ensure that the major pull on your time and resources is the decision in this case and I have no doubt that this is how you approach the matter.”

58. On Day 7, Thursday 1 June 2017, the jury commenced deliberations at 10am and were sent home at 3.55pm.

59. On Day 8, Friday 2 June 2017, the jury commenced deliberations at 10am. Court resumed at 12.50pm in the absence of the jury and the trial judge stated:

“I have received a jury note requesting effectively letters that they might be able to use to appease their employers. I anticipate some are getting a bit of flack. I have given you the terms of the jury note. … And I have prepared a letter which I think you are agreed should be given to each of the jurors”.

60. Subsequently, in the presence of the jury the trial judge said:

…

61. The jury was sent home at 1pm.

62. On Day 9, Monday 5 June 2017, the jury commenced deliberations at 10am and were sent home at 4pm.

63. On Day 10, Tuesday 6 June 2017, the jury commenced deliberations at 10am. Prior to the jury being sent home, the trial judge noted in the presence of the jury that a jury note had been received requesting a copy of the Crown and Defence closing submissions. The trial judge granted the request.

64. On Day 11, Wednesday 7 June 2017, the jury commenced deliberations at 10am and were sent home at 3.30pm after the trial judge granted the requests in two jury notes received that day: first, to adjourn at 3.30pm that day, and second, to allow a juror access to his or her phone at lunch time.

65. On Day 12, Thursday 8 June 2017, the jury commenced deliberations at 10am and were sent home at 4pm after the trial judge stated that he trusted that the jury had received the testimony of Dr Ralph pursuant to a request in a jury note sent that morning.

66. On Day 13, Friday 9 June 2017, the jury commenced deliberations at 10am and were sent home at 1.35pm. Prior to being sent home, the trial judge thanked the jury for their “persistent attention to matter” and stated that jury deliberations would resume on Tuesday due to a long weekend.

67. On Day 14, Tuesday 13 June 2017, the jury commenced deliberations at 10am. In the absence of the jury, the trial judge noted the receipt of two jury notes; Jury Note 21 and Jury Note 22. Jury Note 21 requested a calculator and then stated:

“On Tuesday could we please finish at 1.30pm. A juror has a job interview that they have tried to postpone at [a] later date in time and this is the only time available for the interview. Thank you.”

68. In response to Jury Note 21, the trial judge stated:

“Subject to what anybody says my present inclination is to tell the jury, and necessarily the particular juror, that I do not propose to adjourn at 1.30. I suppose there is an adjunct to that; that juror ought to have access to his or her phone to indicate to that prospective employer what the position is”.

69. The trial judge subsequently read the content of Jury Note 22 in the absence of the jury:

“I understand that you provided all of us with a letter, however my work requires further documentation saying that the case has gone into the tenth week and will continue until the jury comes to a verdict. I apologise for the inconvenience”.

70. The trial judge subsequently stated:

“That is the end of that note. I think I will tell the jury in response to that note and in parallel with the request in the previous one that if any employer, present or prospective, has any difficulty with the fact that a juror either cannot attend an interview or cannot attend work then he or she will have to come along and tell me about that here in court. The case is in its eleventh day of jury deliberation at the moment and I think the case has to take precedence”.

71. The Crown and trial counsel for the applicant agreed with the course of action proposed by the trial judge. At 10.30am, the jury was returned to Court and the trial judge made the following remarks to the jury:

…

72. After these remarks, the jury continued their deliberations at 10.35am. The jury returned with a verdict of guilty to both counts on the indictment at 2.35pm.

Ground 1 and constitutional contention

The parties’ submissions

The applicant’s submissions

73. The applicant sought leave pursuant to r 4, to raise this ground of appeal.

74. In written submissions filed on behalf of the applicant, the applicant submitted that the trial judge’s refusal of to adjourn at 1.30pm to allow the juror to attend his or her job interview (Jury Note 21) and the refusal to grant a second letter to a juror’s employer (Jury Note 22) “put impermissible pressure on the jury which had not at any stage indicated that they were having difficulties with or in relation to their deliberations”. The applicant referred to the fact that no Black direction had been considered or given, and that no jury note indicating that the jury was having problems in deliberating had been received. In written submissions, the applicant submitted that “[t]he thrust of both jury notes was a request for more time to deliberate”.

…

97. A trial can miscarry when a trial judge puts undue pressure on a jury to conclude their deliberations or to reach a particular result.

…

101. The question in the present case is whether the course taken by the trial judge, in particular his refusal to grant an adjournment to permit a juror to go to a job interview and provide a second letter to a juror’s employer, put improper pressure on the jury to reach a verdict and thereby interfered with their free deliberation.

102. We do not think that the course taken by the trial judge had that effect. At the outset of his directions, the trial judge stated that “[t]here is absolutely no time pressure” on the jury “to reach a verdict by any particular time or date”. He accepted the request on 30 May to adjourn early on Friday 2 June if the jury was still deliberating. He again emphasised that the jury should “not feel under pressure from the Court to speed up” or rush their decision. On 2 June he gave a letter to the jurors which he said they could supply to their employers stating that they were “entirely protected in the sanctifying task” they were carrying out. He indicated that if there were difficulties the employers could come to Court to discuss it with him.

103. We have set out the events of 13 June 2017 at [67]-[72] above. As can be seen, the trial judge refused to adjourn early that day to allow a juror to go to a job interview, concluding that the case had “to take precedence”. He again offered to discuss the matter with an employer (or prospective employer).

104. We do not think that the trial judge’s refusal to grant the adjournment put pressure on the jury to reach a verdict. The jury had been deliberating apparently without difficulty for 13 days and the judge was entitled to conclude that the case had “to take precedence”. His insistence on the case taking precedence did not seem to me to place any pressure on the jury to reach a verdict one way or the other or to constrain them in their deliberations. Indeed, counsel for the applicant conceded that to state that it did was speculation.

105. Irrespective of the application of r 4, we are fortified in this view by the fact that the trial judge adopted the course he took after consultation with both the Crown and the accused’s representatives who agreed with the approach. They were familiar with the course of the trial and would have been in a position to judge the pressure put on the jury by the refusal to grant the adjournment.

106. There seems, with respect, no basis for the suggestion that the refusal to supply a second letter to be delivered to the juror’s employers in some way pressured the jury to reach a verdict. The judge had given a letter which was not suggested by the parties to the appeal to be inadequate and had invited any employer who had further concerns to come to Court. This could not be said to be placing pressure on the jury.

107. In those circumstances, this ground of appeal has not been made out.

Garling J

1. The applicant (who has been given a pseudonym to protect the juvenile victim of his crimes) was found guilty by a jury of four offences, each consisting of aggravated sexual intercourse with a child between the ages of 14 and 16 whilst that child was under his authority. This is an offence contrary s 66C(4) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 12 years. The standard non-parole period of 5 years applies.

…

4. The applicant seeks leave to appeal upon the following grounds:

“Conviction

The trial judge's intervention in the appellant's trial counsel's address to the jury and subsequent insistence that trial counsel withdraw a part of her submissions to the jury and his Honour’s directions to the jury about this issue occasioned a miscarriage of justice.

The trial miscarried by reason of the trial judge’s:

(a) Refusal to give the jury a Black direction;

(b) Decision to allow the return of a majority verdict without considering, pursuant to s 55F(2)(a) of the Jury Act, whether such a course was reasonable having regard to the nature and complexity of the criminal proceedings.

(c) Severity of Sentence

(d) The aggregate sentence is manifestly excessive.”

…

Jury Deliberations

31. According to the transcript, on Thursday 18 July 2019, the jury commenced to consider its verdict at 10am. Whilst the jury were deliberating, the prosecutor made submissions to the Judge about the terms of the Indictment. The Judge then moved to deal with submissions which had been made in writing that morning by counsel for the appellant…

…

34. The jury returned to the court 10:20am, when the Judge granted leave to the Crown to amend the Indictment in respect of Count 4. His Honour then dealt with the jury note MFI 13 in unexceptional terms. The jury then retired to further consider their verdict at 10.26am.

…

38. Prior to sending the jury home, the Judge received a further jury note which was marked MFI 15. After it was read aloud to counsel in open court an exchange with counsel occurred in the absence of the jury. The transcript records the following:

“One of the jurors has written a note. It is dated 19 July. We can discuss this with counsel in the absence of the accused. What I am inclined to do is as a result of the note that has been prepared to tell the jury that a majority verdict is available but the time has not come as yet where I can accept a majority verdict, and the reason I say that is because of this note which reads:

‘Your Honour, I apologise in advance to you, the barristers, the accused, the complainant and the families here today. When this case began and we the jury were advised of the nature of the case I did feel capable of carrying out the role that was expected of me. I took very seriously the oath before the trial began. Yesterday at the conclusion of the day I approached the Court attendant and privately conveyed to her that I was not coping. I following the guidelines set out by you in the manner to which a decision is to be made, that is head not heart, evidence presented, caution with a one witness case. I have your advice all written down to guide me.

I, like the others, have come to a decision. My decision is a sole minority for many of the counts. Some jurors have not completely come to their full decision.

I write this letter with the concerns I have for myself as others have this same freedom to write to you, if they desire. I believe myself to be a reliable member of society with commendable personal judgment [sic] skills of which I have drawn on to come to a decision about the evidence placed before us. With this in mind, I am at the minority end and I shall not be persuaded to change, nor [be] pressured to change my decision. Thus why I spoke privately to the Court attendant yesterday and expressed my feeling of I am not coping, the Court attendant dutifully inquired had I experienced any bullying or feeling of pressure. I truthfully replied “No”.

I am writing to you so I am not placed in a situation of pressure. When we, the jury, were not coming to a unanimous decision, I asked the foreman to ask what we do in the situation. The foreman and other jurors said “We have to stay here until we agree”. Yesterday in the private conversation I had with the Court attendant, I conveyed that information for clarification. The Court attending advised “you cannot be locked up forever”. This is a private message to you and not from the foreman or jury but solely for myself. I don’t want the other jurors to know of this. I need your direction as I do not want to show emotion derived from unpleasant situations that could occur today as we continue deliberation proceedings. Do I ask to be excused, what do I do please, thank you. Again I apologise, I took my oath seriously and the words “beyond reasonable doubt” are how I have come to my decision.’

…

His Honour: I am not intending to mention the note at all in front of the jury. I will simply say to them that a majority verdict is available to them but the circumstances have not yet arisen in relation to it. A majority verdict is 11-1 but they must treat each other as equals and they should take into account the views of each other in their deliberation process. Then I will send them away until Monday. I will not pass the note around whilst the jury is here. Have a look at it later on.

JURY RETURNED TO COURT AT 1.17PM.”

39. His Honour spoke to the jury along the lines he discussed with counsel and then sent them away for the weekend.

40. The trial resumed on Monday 22 July 2019, when the transcript records that the jury continued to consider its verdict from 9.30am. Ms Lewer, counsel for the appellant, was not in attendance, although her instructing solicitor was. The transcript records the following:

              …

41. His Honour informed counsel that he did not intend to give the jury a Black direction but “... I'll give them a general thing about how they can come to a majority verdict”.

42. The jury was asked to return to court, which they did at 9.46am. Upon their return, his Honour said:

“... I wanted to reinforce again what I said on Friday about a majority verdict. A majority verdict is 11-1 and the circumstances have yet to arise where I can take a majority verdict from you. When those circumstances do arise I'll get you back into Court and speak to you then about the fact that a majority verdict is available to you. So, at this stage you are still required to deliver a unanimous verdict until I tell you otherwise. As I've said the prospects of a majority verdict are available to you under certain circumstances and they have not yet arisen yet but when they do arise I'll certainly let you know relation to it.”

43. The jury retired to further consider its verdict at 9.48am.

44. Both counsel agreed that the eight hour time period specified in the Jury Act 1977 would expire at 2:22pm that day. This time calculation was not challenged on appeal.

45. Having been informed of that time, his Honour then said that he was proposing to:

“... get the jury in and then in the presence of the jury...get sworn evidence from the foreman as to whether or not with continued deliberations they would be able to reach a unanimous verdict and if he says no, I'll ask with continued deliberations are they able to reach a majority verdict, being 11-1. If he says yes, I'll tell them they can go back and continue their deliberations and can deliver a majority verdict.

46. It was drawn to his Honour's attention by the prosecutor that his Honour had not given the jury “a full Black direction”. His Honour informed counsel that he was of the belief that, in light of the letter which the juror had written (MFI 15), that a Black direction was not going to be of any assistance, and accordingly he was proposing to proceed as he had indicated. He said this:

“To allow majority verdict there are two aspects of it. First of all the Court has to be satisfied that the eight hours has expired. I am so satisfied. The next thing is I have to take sworn evidence from one or other members of the jury that the continued deliberations will not result in a unanimous verdict. If I am then so satisfied that the two precursor conditions have been satisfied and a majority verdict can be delivered. That is what I'm proposing to do.”

47. The solicitor for the appellant reminded the Judge that counsel for the appellant had raised the view that it would be appropriate to have a Black direction which should take place separately and in advance of any majority verdict decision.

48. The Judge indicated that he had considered that question, but in light of MFI 15 he did not propose to take that course. His Honour then made this remark:

“Once the accused is up then I will get the jury in. What the juror says is ‘I shall not be persuaded to change nor pressured to change my decision’. That is purely in accordance with what the Black direction is, that if they are of that view than they are entitled to keep that view. That is when you then move into asking about the majority verdict. That is why I have taken the view that I can now safely ask about the majority verdict and take evidence from the foreperson.”

49. The prosecutor agreed with the Judge that the juror appeared to be firm in their view, and submitted that it in relation to some of the Counts, it would be relevant for a full Black direction to be given because it would be of some assistance to the jury.

50. His Honour invited the jury to return at 2:37pm. Upon their return he informed the jury that circumstances relating to a majority verdict may have arisen, but he had to take some evidence from the foreperson.

51. The foreperson was sworn in and he was asked these two questions and gave these two answers:

“Q. If deliberations continue is there any prospect that the jury would be able to reach a unanimous verdict in relation to any one of the counts?

A. I do not believe so.

Q. If deliberations continue, is it your view that a majority verdict which is 11-1 may be able to be reached by the jury in relation to any of the counts?

A. I would say yes.”

52. His Honour then said:

“In light of that I am satisfied that a majority verdict can be brought in by you as the jury and what I would like you to do is to go back to the jury room and continue your deliberations and if you are satisfied relation to 11-1 then you may bring in a majority verdict into any one of the counts.”

53. The jury retired to further consider its verdict at 2:41pm and about 10 minutes later sent a jury note to the Court indicating they had reached a verdict. The jury returned to court at 2.55pm and entered verdicts of not guilty on the first three counts and guilty on the 4th to 7th counts inclusive. The foreperson stated that the verdicts were of 11 of the jury. The jury was then discharged.

…

Ground 2

74. It is convenient to deal with both parts of Ground 2 together. They both concern the integrity of the jury’s deliberation and verdicts. The appellant submits that the trial miscarried because the Judge refused to give the jury a Black direction and decided to allow the return of a majority verdict without first considering, pursuant to s 55F(2)(a) of the Jury Act, whether such a course was reasonable having regard to the nature and complexity of the proceedings.

…

80. It is not in doubt that a Black direction should only be given when the circumstances warrant. As was said in Black at p.51, the direction should only be given “should the occasion arise”.

81. The essence of a Black direction means that it is rightly described as a perseverance direction. The Court is directing the jury to persevere with its deliberations towards a unanimous verdict, by calmly considering the evidence and listening to the opinions of other jurors. It reminds jurors that they have a duty to listen carefully and objectively to the views of every one of their fellow jurors, and that they should test the views of others by discussion in a calm and objective way so as to enable an understanding of the differences of opinion and how those differences may be perceived. It acknowledges the fact that there are matters for decision upon which the jury are disagreed.

82. That was the circumstance here. On some of the counts the Court was informed that the juror who wrote the note was the only juror in the minority. There were other counts where some of the jurors had not reached their final conclusion. The effect of a Black direction in this case would have been not only to invite the single juror to listen in the way directed by the Judge to the views of others, even though she maintained that she would not change her mind, but more importantly to encourage the other jurors to listen to that juror’s view in a calm and considered way.

83. It was not known to the Judge whether there might have been other jurors who were prepared, upon further consideration, to go along with the single juror's view.

84. However, it seems that the Judge, having received the note, MFI 15, formed the view that the jury had already reached a conclusion on all counts with 11 jurors in favour of one outcome and one juror against it. It was the fact that the juror was “in a minority position” which led the Judge to conclude that a Black direction was not appropriate at that stage, but a majority verdict direction was.

85. Curiously, however, the Judge's reasoning was that it was too far too early to give a Black direction, but he thought it appropriate to give some sort of modified direction saying that the jurors were all equals in the jury room and they should listen to each other. The direction that was given was this:

“I'm proposing to let you go and bring you back Monday morning, but I want to say a couple of things about that before I do release you for the day. In certain circumstances a majority verdict is available to you. A majority verdict is 11-1. Those circumstances have not arisen as yet. You are all equals in the jury room and you should take into account the views of each other when it comes to discussing this case.”

86. The direction could not be regarded as a proper or an appropriate perseverance direction. In fact, because the direction commenced with informing the jury that a majority (11-1) verdict may in certain circumstances be available although those circumstances had not yet arisen, the clear message which the Judge was sending to the jury was that a majority verdict would be taken at an appropriate time once “the circumstances” had arisen. The addition of the words that “all jurors were equals in the jury room” and that “... they should take into account the views of each other when discussing the case” was inadequate immediately after the majority verdict indication to encourage further discussion. If anything, it would not have encouraged any further discussion, but rather it gave the impression that the jury simply had to wait before delivering a majority verdict.

87. In my view, what was required was for a Black direction to be given before the jury departed indicating that the Court, upon their return on Monday morning, would remind them of the direction and encouraging them on Monday morning, when deliberations resumed, to persevere and attempt to reach a unanimous verdict. It would then have been appropriate on the Monday morning to again remind the jury of the need to engage in consideration and discussion of the kind encouraged by a Black direction.

88. I am persuaded that the direction given on Friday at lunchtime before the jury left was erroneous. I am also persuaded that it was an error of law, falling outside the Judge's discretion, to have failed to give a Black direction.

89. The second part of this ground of appeal is that the Judge's decision to allow a majority verdict to be returned caused a miscarriage of justice because the Judge did not first consider and determine each of the requirements of s 55F(2) of the Jury Act.

…

97. I reject this submission. To the contrary of the Crown submission, what the Judge said indicated that he regarded the expiration of eight hours, without more, as sufficient satisfaction of the first precondition. The statement of the Judge indicated that he gave no consideration to the question of reasonableness. The mere fact that a Judge states that they have had regard to the relevant authority, does not mean that everything which is said thereafter accords with that authority or can be taken to be application of the relevant authority or legal principle.

98. Spiegelman CJ noted in RJS at [25], that whether or not the Court considered that reasonable time had expired having regard to the nature and complexity of criminal proceedings, was, in that matter, something upon which the Court should invite submissions of counsel, and then make explicit what factors it had considered, and how the Court reached its decision that it was reasonable to invite a majority verdict. This does not need to be complex or lengthy, but clarity is required.

99. Accordingly, I am satisfied that the appellant has made good this ground and that a miscarriage of justice, to which the proviso does not apply, has been demonstrated.

Beech-Jones J

105. In relation to Ground 2, I do not wish to express any view on whether either the failure give a direction in accordance with Black v Regina [1993] HCA 71; (1993) 179 CLR 44 (a “Black direction”) on Friday 19 July 2019, or the direction that was given on that day (see [42]), was erroneous in law for the purposes of the second limb of s 6(1) of the Criminal Appeal Act 1912 or itself occasioned a miscarriage of justice within the third limb of s 6(1), although I agree that it was highly desirable that a Black direction be given at that time or on the following Monday morning. That said, if a trial Judge receives information that a jury is acting under the misapprehension that they have to “have to stay here until we [all] agree” then they can advise a jury that in some circumstances, which have not yet arisen, that the Court can receive a verdict which is not unanimous (and at the same time reiterate the desirability of a unanimous verdict). It would be destructive of the necessary trust that must exist between a trial Judge and a jury for the trial Judge to be somehow restricted from correcting any misunderstanding that the jury were acting under on such a topic.

106. However, I agree with Garling J that it has been demonstrated that, in determining that the jury could bring in a majority verdict, the trial Judge failed to address s 55F(2)(a) of the Jury Act 1977. Instead, the trial Judge simply treated the power to allow a majority verdict as being enlivened on the expiry of the minimum 8-hour period. In that regard it is to be remembered that when that 8-hour minimum period expired the trial Judge immediately called the jury in and took evidence from the foreman. Thus, the direction to the jury enabling them to return a majority verdict was given without any communication from the jury itself about whether any difficulties were being experienced in returning a unanimous verdict other than the individual juror’s note that had been sent the previous Friday. However, that note indicated that a number of other jurors had not yet made their “full decision”. Otherwise, the fact that the jury had not received a proper Black direction was itself a matter of real significance to whether it was “reasonable” to allow a majority verdict. At the very least the failure to properly address s 55F(2)(a) amounts to an “irregularity or failure to strictly comply with the rules of procedure” and as such “is a miscarriage of justice within the third limb” of s 6(1) (GBF v The Queen [2020] HCA 40 at [24]; [2020] HCA 40; (2020) 94 ALJR 1037).

107. I agree with the orders proposed by Garling J.

N Adams J

108. I have had the advantage of reading the draft judgment of Garling J and agree with the orders proposed by his Honour.

109. As to ground 2, I agree with Garling J that the trial miscarried as a result of the manner in which the trial judge dealt with the statutory test in s 55F(2)(a) of the Jury Act 1977 (NSW). His Honour failed to address the question of whether the jurors had deliberated for a period of time that he considered “reasonable” having regard to the nature and complexity of the trial. I am also satisfied, in the circumstances of this case, that permitting a majority verdict to be taken without ever giving a Black direction contributed to the error under his ground.