Verdicts

Nagle CJ at CL (with whom Street CJ agreed)

At 102 and 103

On 9th April, 1979, he appellant was indicted before Hunt J. and a jury of twelve on three charges of murder. The deaths of the three persons had occurred on 19^th September, 1978. The first charge was of the murder of a woman, Anne Margaret Hansen at Wetherill Park and the second and third charges related to the murders of Graham John Jacoby and Tamara Salwarowski at Hurwood. Graham John Jacoby and Tamara Salwarowski are referred to in the evidence as "Jake" and "Terry" and they will be so referred to in this judgment.

At 105

At the trial the issues raised were clear cut but the stories diverse. The Crown case was that the three deceased had met their deaths as the result of the deliberate intent by the appellant to kill them, his motive being his belief that they had been a party to his "rip-off".

The appellant's case, so far as the death of the woman Hansen was concerned, was that she had met her death as a result of the accidental discharge of the pistol in the car when he had been attempting to take it from Stojanovski who had threatened him with it. As to the deaths of Jake and Terry, the appellant's case was that he had been threatened by Jake inciting the large Doberman Pinscher dog to attack him and also at the same time he thought that Jake was reaching for a gun from under some cushions on the lounge on which he was sitting for the purpose of shooting the appellant. In the case of Terry the appellant said that he shot her after she lunged at him with a knife.

At 121 and 122

There remains to consider but two other submissions made to the court neither of which has been detailed in the grounds of appeal. The first of these concerns a second document, which his Honour handed to the jury containing a series of questions, which he suggested the jury might answer in the light of the verdicts upon which they decided. This document reads as follows:

The Queen v. Eugene Victorovitch Petroff

In relation to the death of Anne Margaret Hansen (Anne):

1. Do you find the accused guilty or not guilty of murder?

If 'not guilty':

2. Do you find the accused guilty or not guilty of manslaughter?

In relation to the death of Graham John Jacoby (Jake):

1. Do you find the accused guilty or not guilty of murder?

If 'not guilty':

2. Do you find the accused guilty or not guilty of manslaughter?

If 'guilty':

3. Is such verdict of guilty of manslaughter based upon:

(a) the use of more force in self-defence than was reasonably proportionate to the danger which the accused believed he faced?

and /or

(b) the existence of provocation which induced the act of the accused?

and/or

(c) the act being unlawful and dangerous and done with the intent of inflicting some physical injury which was not merely trivial or negligible?

At 122 and 123

However, it is submitted that as the question of the proper sentence to impose and the facts on which this should be based are matters for the trial judge it is wrong to seek any guidance from a jury. I cannot agree with this submission as the practice both here and in England for some years has been that juries have been asked to give the reasons for the verdict at which they arrive. But it is said that it is advisable if reasons are sought that they should be informed that they need not comply with the request. It is only necessary to refer to the judgment of Stephen J. in Veen (1979) 53 A.L.J.R. 305, at p. 308 and the cases therein cited. Other illustrations of the practice are to be found in Storey [1931] N.Z.L.R. 417, at p. 439; and Curry [1969] N.Z.L.R. 193, at p. 208.

Finally, it was argued that by directing the jury's minds to specific questions and requesting answers to them, the right of the accused to a unanimous verdict from the jury could be reduced. I confess I may not have properly appreciated this argument but I would have thought the reverse would have been the case, for it seems to me it would have been much more difficult to obtain unanimity on a variety of possibilities than if the discussions were confined to only the one issue at a time. As I understand the law, a jury's verdict of guilty would be proper notwithstanding their disagreement on the grounds for it. It is not farfetched to imagine the Crown arguing that the trial judge in adopting the course that he did, could have been taken by the jury as demanding a legally unnecessary unanimity of voices on particular questions for the verdicts they pronounced. Be this as it may, I cannot see any miscarriage of justice in what occurred.

Roden J

At 134

The jury were expressly directed that their verdicts must be unanimous. They were also told in the summing up that, with regard to the deaths of each of Jake and Terry:

"You will be asked: Is such verdict of guilty of manslaughter based upon (a) the use of more force in self-defence than was reasonably proportionate to the danger which the accused believed he faced?; and/or (b) the existence of provocation which induced the act of the accused?; and/or (c) the act being unlawful and dangerous and done with the intent of inflicting some physical injury which was not merely trivial or negligible?"

The formal steps to be taken in receiving the verdicts were explained. That explanation included the following:

"When each set of questions has been answered in relation to each death, my associate will repeat the verdicts you have returned and, where relevant, the answers you have given. She will then ask the important question of you all: So says your foreman, so say you all? That is the final check that your verdicts are, indeed, unanimous."

Although there is no requirement stated in express terms that the "answers", as well as the verdicts, be unanimous, there seems little doubt that that is the impression conveyed.

At 135

There is no other field of criminal law within which judges adopt the practice of seeking the assistance of jurors in this way when it comes to establishing the appropriate factual basis for sentencing. I do not believe that manslaughter verdicts should be made an exception to this general rule. Neither Stephen J.'s remarks, nor the authorities to which he referred, require this.

At 138 and 139

The relevant principles regarding jury verdicts in criminal trials I believe to be clear. They can be stated simply. The jury is required to return a verdict, and no more. More may be added by way of rider or recommendation, but ought not to be sought. Provided that the jury's verdict is as a matter of law supportable on the evidence, that is the end of the matter, and no question ought to be asked, as to the grounds upon which the verdict was arrived at as a matter of law, or as to the findings of fact upon which it was based. It is no part of the jury's function to decide questions of fact which are not necessary for the purposes of their verdict. Facts relevant to sentence are for the sentencing judge. His findings must be consistent with the verdict.

I see no reason for putting manslaughter verdicts into a special category outside the operation of those principles. In England there is good reason for putting diminished responsibility manslaughter verdicts into a special category. In such cases the courts in England seek to have the offender treated, and/or the community protected, by means of orders usually quite different from the corrective or punitive measures generally appropriate in other manslaughter cases.

There may be some ground for suggesting a similar approach to diminished responsibility cases here. But diminished responsibility apart, there is no difference between the availability of different bases for manslaughter verdicts, and the availability in many other cases of quite different versions of the facts upon which the jury's verdict may have been based. If we are to look behind manslaughter verdicts, why not others too? I fail to see why the "inscrutability" of juries' verdicts ought to be eroded in this one area only.

The Court (Gleeson CJ , Mason P , Hunt CJ at CL , Simpson and Hidden JJ)

At 375

The appellant was tried before Newman J and a jury on a charge of murdering Matthew Walsh. The jury found the appellant not guilty of murder, but guilty of manslaughter. Newman J, taking into account approximately fourteen months of pre-sentence custody, sentenced the appellant to penal servitude for nine years, involving a minimum term of five years, and an additional term of four years. The appellant seeks leave to appeal against the sentence.

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The facts of the case, so far as presently relevant, may be summarised as follows.

The appellant, the victim, and a number of other young people shared a flat.  One evening, in circumstances that will be described in more detail below, the appellant killed the victim by beating him about the head with a dowel. The principal defence raised at the trial was self-defence. That was rejected by the jury. Trial counsel for the appellant argued, in the alternative, that the case was one of manslaughter, not murder, because, although there was no intent to kill or cause grievous bodily harm, the death of the victim resulted from an unlawful and dangerous act on the part of the appellant. As well as leaving to the jury the possibility of finding manslaughter on that basis, Newman J also left to the jury, (although this had not been relied on by trial counsel), an issue of provocation capable of reducing the homicide to manslaughter.

At 376

After the jury returned a verdict of guilty of manslaughter, Newman J raised with counsel the possibility that he might ask the jury a question designed to discover the basis upon which they reached the conclusion that the case was one of manslaughter. Having regard to the way in which the matter was left to the jury, the two competing possibilities were provocation, and homicide resulting from a dangerous and unlawful act. The judge made it clear that he was not suggesting that the jury would be obliged to answer such a question. Trial counsel for the appellant argued against the adoption of such a course, and Newman J did not pursue the matter.

At 377

As a first step in the argument, senior counsel for the appellant advanced a submission which is the opposite of that advanced by trial counsel at first instance. It is now argued on behalf of the appellant that Newman J was in error in not asking the jury, when they brought in a verdict of guilty of manslaughter, a question as to the basis upon which they found manslaughter.

Further, it is submitted that there was error in the approach taken by Newman J to the task which confronted him on sentencing.

We would reject the first of those submissions. However, we agree with the second submission.

In the light of authorities extending back over a century, it must be accepted that there is a power in a trial judge, in a case such as the present, to ask a question of the jury, after verdict, of the kind in contemplation. However, we consider that the exercise of such a power is, save in exceptional circumstances, to be discouraged rather than encouraged. Far from criticising Newman J for not questioning the jury as to the basis of their verdict, we consider that it is ordinarily better not to ask such a question.

At 379 and 380

In our view the following considerations should lead trial judges to refrain from asking a jury the basis of a verdict of manslaughter, save in exceptional cases.

First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict.

Secondly, the jury's response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.

Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief.

Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel's address to a jury be expressed in terms appropriate to a plea in mitigation.

Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious.

Sixthly, the judge may be embarrassed if he or she does not agree with the jury's answer to the question.

Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others.

Accordingly, we do not accept the submission that Newman J should have questioned the jury as to the basis upon which they found manslaughter.

Grove J

1. This is an appeal against conviction following trial before Karpin DCJ and a jury in Sydney District Court. Consequent sentences are not the subject of appeal. They were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. It is necessary to set out some history to provide context for the appellant’s submissions, particularly in respect of the first of two grounds of appeal which have been presented.

2. On 26 March 2000 seven new Holden vehicles (“the seven Holdens”) were stolen from the yard of Suttons Motors at Rosebery. Jared Scott and Benjamin Walters worked there as mechanics. The value of the stolen vehicles exceeded $450,000. Investigations suggested that one or more of the stolen vehicles was delivered to premises at Kingsgrove occupied by Benjamin Walters and his brother Matthew. On 6 July 2000 police executed a search warrant at the Kingsgrove premises. Stolen car parts requiring two trucks for their removal were found. The Walters brothers were arrested. Included in the parts received were some identifiable as coming from other Holden vehicles (“the three Holdens”) and a Porsche (the white Porsche). The appellant was later tried in respect of these and one other vehicle.

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22. Ground 2 contends:

“Her Honour erred by failing to direct the jury that, in order to deliver a special verdict pursuant to s121 of the Crimes Act 1900, the jury had to unanimously find specially that they were unable to say whether the appellant stole or merely received the subject vehicle and that the jury could not make such a finding unless they were unanimous that they were unable to say which of those offences was committed.”

23. Section 121 of the Crimes Act 1900 provides:

“Verdict of ‘larceny or receiving’

Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they were unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawfully receiving, whichever of the two offences is subject to the lesser punishment.”

24. As the terms of the provision make clear it does not create a form of offence indictable by charging alternative ingredients of stealing or receiving, but makes available a verdict by a jury in a special form when the alleged offender has been indicted for the chargeable offences of stealing and receiving.

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27. Before a special verdict can be returned, an application of s 121 obliges verdicts of not guilty on each of the charged counts of stealing and receiving: Saleam v R 1989 41 A Crim R 48. That happened in relation to counts 7 and 8 and counts 9 and 10 in this case.

28. However, it is a further aspect of the operation of s 121 that the jury must be unanimously satisfied of two matters in order to bring in the special verdict. The situation was articulated by Hunt CJ at CL (Ireland J agreeing, Bell AJ dissenting) in R v Nguyen NSWCCA unreported 20 February 1997:

“Before the special verdict can be given, s 121 expressly requires the jury to make two special findings: (1) that the accused either stole the property or received it, and (2) that they are unable to say which of those offences was committed by him. They must be satisfied beyond reasonable doubt of the first of those matters (and) In accordance with ordinary principles, they must be unanimous in that satisfaction. I see no basis upon which it could be said that their special finding on the second of those matters should not also be a unanimous one.”

29. Hence, s 121 is not available where there has been compromise such as where some jurors are satisfied beyond reasonable doubt that the accused is guilty of theft whilst others are satisfied that the accused is guilty of receiving and, possibly others, satisfied that an accused is guilty of one or the other but cannot say which. None of the jurors satisfied of the guilt of an accused of stealing or of receiving would be being true to their oaths in such a hypothesized situation if they brought in verdicts of not guilty on the counts of stealing or receiving as the case may be. That is an implicit reason for the remark in the final sentence of Hunt CJ at CL quoted above.

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42. After the note was received but before the jury were brought back to court counsel, for the first time, drew attention to the decision in Nguyen. At the time there was no express complaint about misdirection but her Honour indicated that she regarded any further opportunity for direction as closed by reason of the jury’s indication in their note. That was not the situation. The notification from the jury did not inhibit correction of any requisite matter. The jury indication did not create an end point of their task. A barrier to further deliberation is created by the return of verdict but not by mere indication of a stage which the jury had reached. There is no reason why a judge, if becoming conscious of error, cannot redirect a jury which has not delivered its verdict and invite them to deliberate further in accordance with corrected, amended or supplementary direction then given.

Kiefel CJ, Keane and Nettle JJ (the trial judge should ask jurors which counts they found proved)

1. The principal question for decision in this appeal is whether, where an accused is tried before a judge and jury on a count of "[p]ersistent sexual exploitation of a child" contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA"), the judge should request that the jury return a special verdict or, if the jury returns a general verdict of guilty of the offence, whether the judge should question the jury to identify the underlying acts of "sexual exploitation" which the jury found to be proved. For the reasons which follow, in such circumstances, a judge should not request the jury to return a special verdict but, if the jury returns a general verdict of guilty, the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts of sexual exploitation the jury found to be proved.

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Section 50 of the CLCA

4. The sub-section prescribing the offence of persistent sexual exploitation of a child, s 50(1), requires only two acts of sexual exploitation separated by three or more days for the offence to be complete. It provides:

"An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

Maximum penalty: Imprisonment for life."

5. The prescribed age is 18 years in the case of an accused who is in a position of authority in relation to the child; and 17 years in any other case. A teacher is a person in a position of authority.

6. Section 50(2) defines an "act of sexual exploitation" for the purposes of s 50(1) as follows:

"a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence."

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13. In the second day of deliberations, the jury asked a question of the judge. The question was not recorded, but there is no dispute that the jury enquired whether they would be asked for a verdict on indecent assault and a verdict on unlawful sexual intercourse. When the judge then raised the issue with counsel, counsel for the appellant stated that, if the jury returned a verdict of guilty, she would ask for a special verdict. The judge responded that no special verdicts would be taken. Her Honour stated that the South Australian Court of Criminal Appeal in the case of R v N, SH had said that special verdicts should not be taken in relation to a charge under s 50(1) of the CLCA. The jury were thereafter directed to the effect that "there is one charge before this court, that is persistent sexual exploitation of a child. That's what you have to decide in this matter." The jury returned a verdict of guilty.

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24. Here, the trial judge directed the jury with respect to extended unanimity, and so it may be assumed that the jury reached the requisite agreement as to the commission of the same two or more acts of sexual exploitation separated by not less than three days. But, because the judge declined to ask the jury which of the acts of sexual exploitation they had so found to be proved, there was and is no way of knowing which they were. As has been recorded, her Honour took the view, consistently with what she perceived to be this Court's reasoning in Cheung, that it was her task for the purposes of sentencing to find the two or more offences that had been proved beyond reasonable doubt; and, on the basis of a very brief recitation of acceptance of the complainant's evidence as establishing guilt beyond reasonable doubt, the judge stated that she found that the appellant had committed all of the acts of sexual exploitation alleged. The appellant was sentenced accordingly.

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Separate questions

32. By contrast, where a jury has returned a general verdict of guilty of an offence of persistent sexual exploitation of a child, there is nothing in principle, or necessarily in practice, to prevent the trial judge asking the jury specific questions to ascertain the basis for the verdict. As Stephen J observed in Veen v The Queen, in cases where an accused had been tried for murder and the jury returned a general verdict of guilty of manslaughter, it was the practice in England from at least 1887 for trial judges to ask specific questions of juries in order to determine the reason for their verdicts. The same applied in Queensland. And although a trial judge's power so to question the jury is undoubtedly discretionary, Stephen J considered that ordinarily in such cases the discretion should be exercised in favour of asking questions.

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43. It is therefore no answer to say, as the Crown contended in this case, that, in the absence of questions being asked of the jury, a sentencing judge's consideration of the acts of sexual exploitation that might have comprised the actus reus of the offence as found will not be inconsistent with the jury's verdict because it is not known which of the alleged acts of sexual exploitation formed the basis of the verdict. To repeat, it is for the jury alone, not the judge, to find the acts which constitute the actus reus. Judges dealing with charges under s 50(1) should bear that in mind when exercising their discretion as to whether to ask questions of the jury designed to identify which of the underlying acts of sexual exploitation they have found to be proved.

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The verdict and questions in this case

46. In this case, the judge was right not to direct the jury to bring in a special verdict, and the jury's general verdict of guilty of the offence charged was not uncertain. This was a case, however, in which, after the jury had returned the general verdict, the judge should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved. For the reasons stated, the considerations which the Court of Criminal Appeal identified as weighing against the exercise of that discretion were inapposite in the context of an offence under s 50(1) of the CLCA.

47. There was also nothing to prevent the judge directing the jury before they retired to consider their verdict that, if they reached a verdict, they would be asked whether they found the accused guilty or not guilty of the offence charged and, if their verdict was guilty, they would be asked to state which of the alleged acts of sexual exploitation they were unanimously agreed (or agreed by statutory majority) had been proved. It would have been appropriate for her Honour to do so. Such an instruction would also have been aided by listing each of the acts of sexual exploitation particularised in the information on the aide memoire of the elements of the offence that was issued to the jury, so as to enable the jury, as it were, to tick off each of the alleged acts of sexual exploitation that they were agreed had been committed. Of course, in cases in which the alleged acts of sexual exploitation are not as clearly particularised as they were here, or in cases where the evidence of the complainant and the conduct of the trial involves allegations of a more general nature, a trial judge might need to adapt the form of his or her questions commensurate with the detail of the acts alleged.

Bell J (the trial judge should ask jurors which counts they found proved)

55. The factual background and procedural history, which I am grateful to adopt, are set out in the joint reasons of Kiefel CJ, Keane and Nettle JJ. I agree with the orders that their Honours propose.

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60. I also agree with the joint reasons that the trial judge did not err in refusing to invite the jury to return a special verdict. The appellant's complaint in the Court of Criminal Appeal was not so much with this refusal as with the trial judge's failure to question the jury following the return of the verdict as to the acts of sexual exploitation which the jury found proved. Vanstone J, giving the leading judgment in the Court of Criminal Appeal, considered the trial judge was right not to do so. Her Honour referred with approval to the statement in R v Isaacs that, save in exceptional cases, trial judges should refrain from asking the jury the basis of a verdict of manslaughter. Her Honour considered that there is no relevant distinction between the return of a verdict of manslaughter in a case in which the verdict might have been returned on more than one basis, and the verdict in the appellant's case.

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67. Our adversarial system of criminal justice is posited upon acceptance that jurors will understand and apply the trial judge's directions. There is no reason to apprehend that a properly directed jury would feel pressure to extend its deliberations in order to answer questions which its members were not otherwise disposed to address. Nor is there reason to apprehend difficulty in the foreperson being asked to identify those acts which the jury is satisfied (unanimously or by statutory majority after four hours' deliberation) the accused committed, in the event a verdict of guilty is returned. In my experience, jurors are mindful of the serious responsibility with which they are charged. I think it unlikely that, after attending to the evidence, and to counsel's submissions on the issue of whether the acts particularised in the Information occurred, jurors would find the prospect of being asked to inform the court of the outcome of their deliberations burdensome. At the trial of a s 50(1) offence in which acts of sexual exploitation of varying seriousness are particularised, the exercise of discretion following the return of a verdict of guilty will usually favour asking the jury to identify those acts which it finds proved.

Edelman J (the trial judge should ask jurors which counts they found proved)

82. In this Court, the appellant submitted that his conviction was uncertain because it was impossible to know which of the alleged acts of sexual exploitation had been found to be proved by the jury. I agree with the joint reasons that this submission should not be accepted. The appellant's alternative submission was that his sentence should be set aside, and that he should be resentenced on the basis that the only acts that occurred were the least serious acts of kissing because the judge should have asked the jury to answer special questions about the basis for the verdict. These are questions that at common law the judge is not required to ask and the jury is not required to answer.