Majority Verdicts

Spigleman CJ

1. The Appellant was found guilty by majority verdict of an offence of indecently assaulting TG who was then a person under the age of ten years, namely nine years. This was an offence contrary to s61M(2) of the Crimes Act 1900.

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The Majority Verdict Issue

4. Section 55F of the Jury Act 1977, which permitted for the first time the taking of majority verdicts from a jury in New South Wales, commenced on 25 May 2006. The present trial was conducted between 13 June and 23 June 2006.

5. The first basis for the Appellant’s challenge is that s55F was invoked in circumstances where it was not permissible to do so. Accordingly, the majority verdict was either a nullity or involved such a failure of compliance 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. On this appeal the Crown accepted the latter characterisation and it is unnecessary to choose between them. In either event, this Court would proceed to determine the Appellant’s final ground of appeal to the effect that the verdict is unreasonable and cannot be supported having regard to the evidence. (See Swansson v R [2007] NSWCCA 67; (2007) 168 A Crim R 263.)

6. The second ground of appeal relating to the majority verdict issue is to the effect that his Honour erred in the directions he gave to the jury as to the availability of a majority verdict. It is convenient to consider this ground together with the first ground.

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8. The jury retired to consider its verdict at 12.15pm on Thursday 22 June 2006.

9. At 1.40pm on Friday 23 June 2006, being a time not recorded on the transcript but not contested by the Crown, the jury sent a note in the following terms:

“Your Honour, we wish to communicate to you that, after exhaustive discussion and deliberation, the jury agrees that it would make no more progress in reaching the unanimous verdict this case requires. We now seek your direction on our current position.”

10. His Honour observed to counsel that the time at which a majority verdict could be taken was “getting close”. The Crown Prosecutor suggested that he and counsel for the Appellant had agreed it would be about 2.30pm and his Honour indicated that he would proceed on that basis and he said:

“I think I’ll bring them in and give them a short direction in accordance with Black, but I think I will also tell them that at 2.30 if they were unable to reach a unanimous decision, that provided eleven of them agreed, they would be entitled to return a verdict.”

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13. The jury returned to the court and a verdict of guilty was pronounced at 2.45pm.

14. The first criticism that is made by the Appellant of the trial judge in this respect is that his Honour did not in fact determine what “period of time” for deliberation was “reasonable having regard to the nature and complexity of the criminal proceedings”. I have set out above his Honour’s observations in this respect. It does appear that his Honour proceeded on the basis that the only pre-condition for the return of a majority verdict was if eight hours had elapsed.

15. The second criticism the Appellant makes is that his Honour failed to examine any juror on oath and, accordingly, could not have been “satisfied ... that it is unlikely that the jurors will reach a unanimous verdict after further deliberation” within s55F(2)(b). Again, I have set out the consideration given to this matter. This proposition is also clearly correct.

16. The Crown conceded that both these errors were made and, accordingly, that a miscarriage of justice had occurred and that the Appellant had not received a trial according to law. This concession was properly made. This ground of appeal should be upheld.

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25. In the present case, the course of events should have been to give the Black direction and then, in the absence of the jury, to take submissions from counsel as to when, in the particular circumstances of this case, a reasonable time could be said to have expired. It is inappropriate to determine that there should be a general practice about whether the trial judge, having determined what was such a reasonable time should, upon the elapse of that time, intervene with the jury’s deliberations. What should occur will vary from case to case.

26. In many cases, the trial judge may well decide to await a further indication from the jury that it is unlikely that the jurors would reach a unanimous verdict. That is not to say that after the passage of a further lengthy period of time, a matter to be determined by the trial judge, some kind of inquiry to the jury would constitute legal error. This is a matter with respect to which the practice should develop in accordance with the experience of the implementation of the majority verdict system over time. It does not require any definitive guidance from this Court.

Simpson J

60. I agree with Spigleman J.

Harrison J

61. I agree with Spigleman J.

Tobias JA

1. I agree with Barr J.

Hidden J

2. I agree with Barr J.

Barr J

3. The appellant, John Walsh Ngati, has appealed against a conviction entered in the District Court and has sought leave to appeal against the resulting sentence. The appellant was charged that on 15 June 2005 at Airds, while in the company of another person, he broke and entered a certain dwelling house and committed therein a serious indictable offence, namely the assault of Barbara Keeley, occasioning her actual bodily harm.

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17. The remaining two grounds of appeal may be dealt with together. They are that the trial judge erred in directing the jury in his summing up in relation to majority verdicts and that he erred in directing the jury in relation to majority verdicts when he gave a direction in accordance with Black v The Queen [1993] HCA 71; (1993) 179 CLR 44.

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24. It was submitted that the jury appeared to have been confused by the directions they had been given on majority verdicts and so inappropriately disclosed their voting figures. Then, after the Black direction, one or more jurors may have gained the impression that it was inevitable that a verdict by majority would be permitted eventually and might therefore have joined in a verdict with which they did not agree.

25. Before dealing with these grounds of appeal I should mention a further matter. The first passage extracted from the summing-up is taken almost verbatim from the Criminal Trials Courts Bench Book, a publication of the Judicial Commission of New South Wales now generally available to practitioners as well as judges. Counsel informed the Court that there was a divergence of opinion among judges in the District Court about whether it was appropriate for a judge directing a jury even to mention the existence of majority verdicts until the time had arrived when it was appropriate for such a verdict to be delivered. After a good deal of hesitation, counsel for the appellant invited the Court to deal with the appeal alternatively on the wider basis that a miscarriage of justice would follow if a trial judge so much as mentioned the existence of majority verdicts before the time arrived for the delivery of such of verdict.

26. In my view there are several features of the present appeal which make it inappropriate for disposal on such a wide basis, including the late emergence of the submission, without full and considered argument, and the fact that, for reasons which will appear, the jury in the present case plainly returned a unanimous verdict.

Were the jury confused?

27. The principal contention on these grounds was that there was a miscarriage of justice because the jury were confused by the reference to a verdict by majority. Counsel referred to the judgment of this Court in R v RJS [2007] NSWCCA 241, a case in which, as in the present case, the jury delivered a verdict after they had reported having difficulty agreeing and after the consequent Black direction. The problem in RJS was that although the jury were told that they should continue to try to reach a unanimous verdict, they were at the same time told, in effect, that if they were unable to do so within quite a short time (effectively, I think, fifteen minutes) the Court would accept a verdict by majority. So the information which followed immediately upon the direction to return a unanimous verdict completely undermined it.

28. Counsel also referred to the Victorian case of R v VST [2003] VSCA 35, referred to in para [23] of RJS, in which the Victorian Court of Appeal considered it wiser for a judge sending a jury back to continue to try to reach a unanimous verdict to avoid telling them that the time at which a majority verdict might be accepted was imminent.

29. There was no such flavour in anything his Honour said to the jury in the present appeal. The jury were told a second time that the circumstances in which a majority verdict might be accepted had not yet arisen. His Honour gave no indication when, or, I think, even whether, those circumstances would arise. In my view nothing his Honour said was calculated to water down the plain instruction that a unanimous verdict was necessary. And after that, more than two hours elapsed before the jury delivered its verdict.

30. Neither do I think that the manner in which the verdict was announced assists the appellant’s case. It is correct to say, as has been submitted, that the words usually uttered after a unanimous verdict viz “so says your foreman, so say you all” were absent. Even so, the foreman affirmatively answered the question whether the jury had agreed upon a verdict “accordingly to the directions that were given”. In view of the directions that were given that could only have meant that the verdict about to be delivered was the verdict of all twelve members of the jury.

31. In my opinion this ground of appeal has not been made good. I would dismiss the appeal against conviction.

McClellan CJ at CL

1. `Heath Jarrett Ingham ("the applicant") was convicted by a jury on 1 April 2008 of eleven offences under the Crimes Act 1900, being eight offences of sexual intercourse with a person under the age of 10 contrary to s 66A, 2 offences of aggravated indecent assault contrary to s 61M(2), and 1 offence of attempting to have sexual intercourse with a person under the age of 10 contrary to s 66B. The applicant was acquitted of a further charge of aggravated indecent assault.

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Application for leave to appeal against conviction

19. In his Notice of Appeal Against Conviction filed 9 February 2010, the applicant relied on two grounds of appeal. However, ground 2 was abandoned and the appeal was confined to the following ground:

His Honour erred in that his Honour's directions had the effect of undermining the applicant's fundamental common law right to a unanimous verdict at the relevant time by:

a. referring to the availability of majority verdicts at all prior to the fulfilment of the preconditions set out in s 55F of the Jury Act 1977 (NSW); or alternatively

b. referring to the availability of majority verdicts at a time and in a manner which failed to adequately safeguard the applicant's common law right to a unanimous verdict at that time and had the effect of undermining the effect of the Black direction.

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39. The jury returned to court at 11.10am. At this stage the jury had been deliberating for at least eleven and a half hours. His Honour gave the jury directions in terms complying with the directions in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 but included a reference to majority verdicts. His Honour said:

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“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. The circumstances in which I may take a majority verdict have not yet arisen, and you should still consider that your verdicts must be unanimous…

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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 jurors 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 or before a majority verdict can be taken.

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42. The jury retired to further consider its verdict at 11.15am. Later on the same day his Honour received a further note from the jury which read as follows:

"Your Honour, all twelve jurors believe that we have fulfilled our duty and that no further discussion will result in a unanimous decision. Can you please advise us as to how to proceed?"

43. On receiving this note, the trial judge told counsel that he thought that, in the circumstances, a reasonable time had elapsed.

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46. His Honour then gave the jury directions in accordance with the suggested "perseverance direction" and "majority verdict direction" after the preconditions of s 55F(2) Jury Act 1977 were satisfied and the time for taking a majority verdict had arrived as set out at [8-090] of the Bench Book. The applicant does not take issue with that direction.

47. The jury retired once again at 12.12pm and returned with its verdicts in relation to all counts at 12.28pm.

48. The sole ground of appeal pursued by the applicant relates to the trial judge's directions to the jury with respect to the availability of majority verdicts. The trial judge relevantly made three such references, which are referred to at [23], [39] and [44]. As I have indicated the applicant has no complaint about either the first or the third of those directions.

49. The only direction that is challenged is the "perseverance direction" given by the trial judge to the jury after they had been deliberating for at least eleven and a half hours but before the preconditions of s 55F(2) of the Jury Act had been satisfied. The terms of that direction are extracted at [39].

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The trial judge did not make an error

84. In my opinion the applicant has not established the trial judge erred because he referred to the availability of majority verdicts prior to the fulfilment of the preconditions set out in s 55F (Ground 1(a) of the applicant's Notice of Appeal against Conviction) for the following reasons…

(a) The jurors in the present trial were conscious of the potential availability of a majority verdict from the moment that they retired to consider their verdict, including immediately prior to the time at which the trial judge gave the "perseverance direction" the subject of this application. The trial judge referred to the potential availability of a majority verdict during the course of summing up, the relevant paragraphs of which are extracted at [23]. As already mentioned at [24] the applicant makes no complaint about that reference.

(b) Even leaving to one side the trial judge's reference to a majority verdict during the course of his summing up, it is likely that, in light of the fact that majority verdicts had at the time of the trial been available in this State for almost two years, at least one if not more of the jurors would have known of their potential availability. Indeed, as noted at [41], the trial judge initially told counsel that he would leave out reference to majority verdicts in the challenged direction, but decided to include a reference after the Crown prosecutor requested that he "comply with the draft direction as it is recommended in the bench book because of the situation being that some of the jurors might be aware that there are majority verdicts available in NSW...". In this regard, subject to the comment I make at [84g] below, the remarks of Doyle CJ (Lander and Bleby JJ concurring) in the South Australian Court of Criminal Appeal decision in R v K to which reference was made at [76] are apposite.

(c) If it is accepted that the jurors in the present trial were conscious of the potential availability of a majority verdict immediately prior to the time at which the trial judge gave the direction the subject of this application, then a failure on the part of the trial judge to make any reference at all to the issue of majority verdicts would have risked confusion amongst the jurors, one or more of whom may have raised the issue in the course of jury deliberations. Such a failure may also have diminished the jury's confidence in the trial judge.

(d) This Court's decisions in RJS and Hanna are different from the present case. In both of those cases the trial judges gave "perseverance directions" that included information as to the time at which a majority verdict could be accepted (see [58] – [68] above) whereas in the present matter the trial judge merely stated that the circumstances in which his Honour was able to take a majority verdict had "not yet arisen" (see [39] above). The trial judge in the present matter neither identified the nature of those circumstances nor the time at which they would arise.

(e) The obiter remarks of Spigelman CJ (Simpson and Harrison JJ concurring) in RJS referred to at [60] and James, Hoeben and Hall JJ in Hanna referred to at [66]-[68] do not support the proposition that the jury should be told nothing at all about majority verdicts unless and until all the s 55F preconditions have been fulfilled. Those remarks are limited to the proposition that a trial judge should not give a jury a Black direction and at the same time direct that the jury may return a majority verdict after a certain specified period of time has elapsed (as in RJS) or without the need for any further deliberation (as in Hanna).

I appreciate that Spigelman CJ said in RJS at [22]: "No further direction [in addition to the Black direction] should have been given at this time" and James J said in Hanna at [23]: "in the present case it might have been a preferable course for the trial judge to have given a Black direction without referring to the possibility of a majority verdict", and that those remarks, when taken in isolation, may convey the impression that a trial judge should make no reference whatsoever to majority verdicts at any time before the fulfilment of the s 55F preconditions. However, when those remarks are read in context it is clear that they relate to the specific directions given by the trial judges and not to any direction that makes reference to majority verdicts. This is underscored by Hall J's framing of the relevant question in Hanna at [73] as "whether the trial judge ought to have first given a Black direction and not, at the same time, to have made reference to the fact or the circumstances in which a majority verdict may be returned by the jury " (my emphasis).

(f) The terms of the direction given by the trial judge in Ngati were essentially the same as those given in the present matter in that the trial judge directed the jury that the circumstances in which a majority verdict might be accepted had "not yet arisen" but gave no indication when or even whether those circumstances would arise (see [62] above). In this context, Barr J's comment at [29]: "In my view nothing his Honour said was calculated to water down the plain instruction that a unanimous verdict was necessary" is applicable to the present matter.

(g) As I have indicated there are differences between the legislative provisions relating to majority verdicts in New South Wales and the equivalent provisions in South Australia, Western Australia, the Northern Territory and particularly Queensland. In any event, the decisions of Pearmine and McClintock should be distinguished from the present matter.

Pearmine was concerned with the issue of whether or not the trial judge erred in failing to advise the jury before they retired to consider their verdict that, after three hours of deliberation, his Honour would be able to accept a majority verdict. The case did not relate to the terms of a direction given by a trial judge after a jury had been deliberating for a period of time. Furthermore, the remarks of Burt CJ (extracted at [77]) to the effect that it is a better practice to tell the jury that a majority verdict can be taken when the time arrives at which it can be taken do not address the present situation in which the trial judge merely told the jury that the circumstances in which a majority verdict could be taken had not yet arisen and, importantly, did not go on to specify when such circumstances would arise.

McClintock was concerned with the issue of whether or not the preconditions for the taking of a majority verdict had been satisfied prior to the trial judge directing the jury to attempt to reach a majority verdict. The case was not concerned with the separate issue of whether or not a trial judge should refer to majority verdicts at any time before the preconditions are fulfilled and is accordingly of no present relevance.

(i) In CEV the Northern Territory Court of Criminal Appeal held at [16] that "an impression should not be created before the time after which a majority verdict must be accepted, that if jurors are unable to arrive at a unanimous verdict, the view of the majority will ultimately prevail". This statement does not support the proposition that the potential availability of a majority verdict should in no circumstances be mentioned to the jury prior to the satisfaction of the preconditions. This is plain from the Court's remarks at [17] to the effect that, if a jury asks what is the procedure for majority verdicts, they should be given a direction along the lines that the circumstances in which the court may take a majority verdict have not yet arisen and, until they do, the jury should consider that its verdict must be unanimous.

85. In my opinion the applicant has also failed to establish that the trial judge erred because he referred to the availability of majority verdicts at a time and in a manner which failed to adequately safeguard the applicant's common law right to a unanimous verdict and accordingly undermining the effect of the Black direction (Ground 1(b) of the applicant's Notice of Appeal against Conviction). My reasons are:

(a) The Victorian Court of Appeal decision in Muto is distinguishable. In Muto the trial judge gave a direction to the jury before they retired to the effect that they would be able to return a majority verdict if they were unable to reach a unanimous verdict after at least six hours deliberation (see [70] above). By contrast, in the present matter the trial judge gave the challenged direction after the jury had been deliberating for at least eleven and a half hours and in response to a note from the jury informing his Honour that no amount of deliberation would lead to a unanimous verdict and requesting advice as to how to proceed. Furthermore, the only reference made by the trial judge in the present matter to majority verdicts was to the effect that the circumstances in which his Honour was able to take a majority verdict had "not yet arisen". His Honour neither identified the nature of those circumstances nor the time at which they would arise. Moreover, in contrast to Muto where "[u]nanimity was never held out to the jury as anything more than an ideal", the trial judge in the present matter emphasised that the jurors "should still consider that your verdicts must be unanimous".

(b) In my opinion, the failure of the trial judge to include the words "and may not arise at all" (which form part of the Victorian model direction set out at [72] above) did not leave the jury with the notion that it was simply a matter of time before a majority verdict could be accepted. The words "[t]he circumstances in which I may take a majority verdict have not yet arisen" did not convey an impression either that such circumstances would necessarily arise in the future or that their existence would be entirely dependent on the passage of a specific period of time.

(c) The trial judge's direction did not fail to make clear to the jury that his Honour had a discretion as to whether or not to accept a majority verdict. The use of the word "may" in the phrase "[t]he circumstances in which I may take a majority verdict have not yet arisen" plainly indicated that the trial judge was not obliged to accept a majority verdict even if such a verdict was returned by the jury.

(d) The trial judge in Ngati gave a direction in terms almost identical to those in the present matter. That direction was not found by this Court to have involved any error.

James J

135. I agree with McClellan CJ at CL

Davies J

136. 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.

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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 55Fbefore 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.

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8. The trial judge did not refer to the possibility of a majority verdict either in his opening remarks to the jury or in his summing up. In the latter, he directed the jury that their verdicts were to be unanimous. No reference was made either by trial counsel for the appellant or for the Crown in their addresses to the jury with respect to the requirement of unanimity or otherwise.

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."

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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.

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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.

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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.

31. Of further concern was the trial judge's apparent implementation of s 55F(2)(b) at 2.20 pm, to which reference has been made at [15] above. As the Crown conceded and as we have observed at [26] above, the direction then given to the jury at 2.32 pm referred to at [16] above, may also have indicated to the jury that their deliberations were thereafter affected by the terms of the second question posed by the trial judge, notwithstanding that the direction stated that the circumstances in which a majority verdict could be taken had not yet arisen. At this point, although the jury were directed to continue with their deliberations and to strive to reach unanimity, that direction was given in the context of the foreman making it clear that a unanimous verdict could not be reached, but that a majority verdict could. His Honour informed the jury that he could not take a majority verdict at that time; the implication being that the jury should continue with their deliberations until such time as they were informed by his Honour that a majority verdict could be accepted. The distraction from their primary obligation to which we have referred at [26] above thus becomes apparent, as they knew that it was just a matter of time before such a verdict would be received.

32. We have already observed (at [26] and [30] above) that the exchange between the trial judge and the foreman set out at [15] above was premature. This was because of the trial judge's implementation of s 55F(2)(b) before s 55F(2)(a) had been satisfied. His Honour had given a Black direction at 12.10 pm, but a mere 2 hours later and long before the jury had been deliberating for at least 8 hours, extracted from the foreman that, although the jury was deadlocked and could not reach a unanimous verdict, it could reach a majority verdict. In our view, this clearly undermined the Black direction and was a significant error of process. Although not stated at the same time as that direction was given, it followed relatively soon thereafter and could not have had any effect but to modify the exhortation of the necessity to reach a unanimous verdict which the Black direction was intended to emphasise and encourage. The authorities well establish that once a Black direction has been given, at the very least care should be taken to ensure that it is not thereafter qualified by other directions given to the jury unless and until the mandatory requirements of s 55F(2)(a) have been satisfied.

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]).

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.

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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.”

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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…

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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.

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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.’

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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.

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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.

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91. The appellant submits that at no time did the trial Judge have regard to the first of the two requirements before a majority verdict may be returned, namely that set out in s 55F(2)(a) which required (assuming that the minimum time period had elapsed) the Judge to be satisfied that it was reasonable having regard to the nature and complexity of the criminal proceedings for a majority verdict to be returned. The appellant pointed to the principle established by authority, that each of the two limbs in s55F(2) are essential pre-conditions which involve a judgment by the trial Judge which could only be made after submissions were taken from counsel as to when, in the particular circumstances of the case, a reasonable time could be said to have expired: see RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100 at [18]- [19] and [25].

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94. The Crown submitted that whilst it may be accepted that the Judge did not address in terms whether it was reasonable having regard to the nature and complexity of the criminal proceedings for a majority verdict to be returned, such a consideration could be and ought be readily inferred by the Court.

95. The Crown submission was that in the course of discussion the Judge informed the parties that he had consulted “the charge book and directions book”, apparently a reference to the Criminal Trial Bench Book, and that he was aware that “to allow a majority verdict there are two aspects to it”. The Crown pointed to what was then said by the Judge which it submitted indicated that he had considered and determined that the test of reasonableness (s 55F(2)(a)) had been satisfied. The Judge said:

“First of all the court has to be satisfied that the eight hours as expired. I am so satisfied. The next thing is I have to take sworn evidence from one or other members of the jury... If I am then so satisfied the two precursor conditions have been satisfied and a majority verdict can be delivered.”

96. The Crown submits that the use of the expression “the eight hours has expired” was a shorthand way of referring to the requirements of the first limb to be considered in accordance with s 55F(2)(a).

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.