BR v R

The Jury's Deliberations 4At about 9.45am on 26 September 2012, the Sheriff informed the trial judge that one of the jurors was ill. When the trial judge called the matter on for hearing, her Honour informed counsel of that fact and senior counsel for the appellant requested that the juror be discharged and the trial continue. The Crown supported that position. Accordingly, the trial judge directed that the trial continue with a jury consisting of eleven persons. 5At 3.11pm on 26 September 2012, after a summing up by the trial judge, the jury retired to consider its verdict. The jurors returned to the courtroom at 4.05pm. Thus, on that day, the jury was absent from the courtroom for 54 minutes. 6On 27 September 2012, according to a record that was accepted as accurate by the trial judge (the Jury Record), the jurors recommenced their deliberations at 9.35am and returned to Court for questions at 10.26am. They retired for further deliberations at 10.38am. The Jury Record states that the jury took lunch at 1pm, and finished lunch and continued deliberations, at 2pm. At 2pm, the trial judge received a note from the jury in the following terms: Indictment 1 - unable to reach unanimous decision. Indictment 2 - unable to reach unanimous decision. Indictment 3 - unable to reach unanimous decision. Indictment 4 - unable to reach unanimous decision. Alternative Indictment - unable to reach unanimous decision. 7In the course of discussing the note with counsel, the trial judge enquired of the Crown how long the jury had been deliberating, indicating that her Honour did not wish to have the period for lunch included in the deliberations. The Crown asserted to her Honour that, as at 2pm, the jury had been deliberating for four hours and ten minutes. 8The jury returned to Court at 2.13pm and was given a direction by the trial judge. Her Honour informed the jury that she had the power to discharge them from giving a verdict but should only do so if satisfied that there was no likelihood of genuine agreement being reached after further deliberation. Her Honour told the jury that experience has shown that juries can often agree if given more time to consider and discuss the issues. Her Honour said that, if after calmly considering the evidence and listening to the opinions of the other jurors, a member of the jury could not honestly agree with the conclusions of the other jurors, that juror should give effect to his or her own view of the evidence. The jury was reminded that their verdict in relation to each count, whether guilty or not guilty, must be a unanimous one. Her Honour repeated that experience has shown that often juries are able to agree in the end if they are given more time to discuss the evidence and, 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 (see Black v The Queen [1993] HCA 71; 179 CLR 44). 9The jury was then asked to retire and see whether they could reach a verdict in the light of what the trial judge had said. At 2.17pm, the jury retired to deliberate further. However, at 3.11pm, the jury sent a further note to the trial judge saying, relevantly, as follows: We can see no possible resolution that would enable us to reach a unanimous decision. 10Senior counsel appearing for the appellant then made an application to the trial judge to discharge the jury. The Crown opposed the application. The trial judge then heard submissions from senior counsel for the appellant and from the Crown concerning the discharge of a jury before the expiration of eight hours of deliberation. Her Honour indicated that she would not decide the question of discharge that afternoon. 11The jury returned to Court at 3.34pm, when the trial judge indicated that their note had been received. Her Honour directed the jury to go home and to return the following morning to continue with their deliberations. Her Honour directed the jury to disperse quickly and not to discuss the case with anyone. The jury left the courtroom at 3.35pm. 12According to the Jury Record, the jury deliberated for 283 minutes on 27 September 2012, apart from twelve minutes when the jury was in the courtroom for questions during the morning, and four minutes devoted to the Black v The Queen direction in the afternoon, and apart from the period between 1pm and 2pm while the jury had lunch. At the end of that day, the Crown informed the trial judge that the total period of deliberation at that stage was five hours and 27 minutes. The trial judge suggested that the time should be treated as five hours and 20 minutes "for more caution". Senior counsel for the appellant and the Crown both agreed that eight hours of deliberations would conclude at 12.10pm on the following day, assuming that the jury began deliberating at 9.30am. 13On the morning of 28 September 2012, the trial judge gave her reasons for declining to discharge the jury on 27 September 2012. In her reasons, her Honour observed that, as at the time when the jury was sent home on that day, deliberations had continued for five hours and 40 minutes, although it would be treated as five hours and 20 minutes "to err on the conservative side in respect of times". 14According to the Jury Record, the jury recommenced deliberations on 28 September 2012 at 9.35am. Later that morning, the trial judge received a further note from the jury that was marked as having been signed at 11.10am and as having been received by the judge at 11:20am. The note was in the following terms: The jury can not reach a unanimous decision. This will not change with time. After exhaustive discussion and analysis, we have arrived at this conclusion. At some time after 11.20am, the trial judge informed counsel that she had received that note. 15At approximately 12.15pm, after a brief exchange, senior counsel for the appellant said to the trial judge "we are at the eight hours now". Senior counsel submitted that, having regard to the various deductions made by the trial judge, the Court was "on the safe side of eight hours" so that, if the trial judge were to proceed to bring the jury in to examine the foreman for the purposes of s 55F of the Jury Act, "your Honour will be safe". Senior counsel said that no one on either side could criticise that course. The trial judge enquired of counsel as to whether they were agreed that "a reasonable time" had elapsed in the circumstances of the case and both counsel agreed that it had. 16The trial judge then observed that both parties had indicated that eight hours had expired in the case and that both parties were of the view that that was a reasonable time in all the circumstances of the case. Her Honour then indicated that she would apply the provisions of s 55F of the Jury Act. 17The jury returned to the courtroom at 12.16pm. At 12.18pm, the foreman of the jury was examined by the trial judge and confirmed that it was unlikely that a unanimous verdict would be reached. Her Honour then announced that, having heard the evidence of the foreman, she was satisfied that the jury would be unable to reach a verdict in respect of any count after further deliberations. Her Honour said that, while she had power to discharge the jury from giving a verdict, she should only do so if satisfied that there was no likelihood of genuine agreement being reached after further deliberation. Her Honour said that the circumstances had arisen under which she may take a majority verdict and directed that, should the jury continue to be unable to reach a unanimous verdict, they may return, and she must accept, a verdict of ten as the verdict of the jury in the case. Her Honour directed the jury that they must consider all the counts separately and determine whether they can reach a unanimous verdict or a majority verdict of ten out of eleven in respect of each of the counts separately. At 12.25pm, the jury retired to consider its verdicts further. The jury returned at 12.40pm with a majority verdict of guilty to all four charges. The jury was discharged at 12.44pm.

The Grounds of Appeal 18The appellant contends that, in the circumstances just described, the jury had not deliberated for eight hours before the majority verdict was taken. More specifically, he contends that, had the trial judge turned her mind to the question, her Honour could not have been satisfied that the jury was, in fact, deliberating for the period of one hour and five minutes that elapsed between 11.10am on 28 September 2012, when the jury sent a note to her Honour, and 12.15pm, when the jury returned to the courtroom. He relies on the fact that the jury was given no direction by the trial judge as to how they were to proceed in the jury room from the time when her Honour received the note at 11:20am until the jury was recalled. He says that that failure by the trial judge to adhere strictly to the statutory prerequisites of s 55F breached the appellant's fundamental common law right to a unanimous verdict (see Cheatle v The Queen [1993] HCA 44; 177 CLR 541 at 552-3).

Relevant Legal Principles 19One of the principal difficulties in construing s 55F(2) is the absence of a definition of "deliberation". Notwithstanding the limitations inherent in the guidance provided by dictionary definitions in statutory construction (see Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265 at [37]), the Court was provided with a definition from the Macquarie Concise Dictionary, being "careful consideration before decision ... formal consultation or discussion". Similarly, in R v Young [1995] QB 324, the English Court of Appeal (at 331-2) considered the Oxford English Dictionary definitions, which included "weighing ... in the mind", "discussion of ... reasons for and against" and "debate". It is not to be doubted, however, that the provisions of the Jury Act should be construed in a practical way, having regard to the context in which Parliament intended them to operate (see R v Rodriguez [1998] 2 VR 167 at 186). 20The application of the term "deliberation" to the facts of individual cases may be usefully guided by two considerations. The first is whether the jury is sequestered in the same location (such as the jury room). The second is whether the jury is able to conduct discussions about the case at hand. 21Thus, discrete and substantial breaks from the performance of the jury's task, such as retirement overnight and adjournment for lunch, where lunch is not taken in the jury room, should be excluded from the eight hour period mentioned in s 55F. The members of a jury cannot be said to be engaged in deliberation while they are away from the courtroom for a prolonged period of time in the charge of strangers. Therefore, it is necessary to exclude from the calculation of the eight hour period any period during which the jurors are permitted to return to their homes or to repair to temporary accommodation. 22The period during which a jury is in court, such as for the purpose of listening to a direction from the judge or asking a question, has been held to be included in the calculation of the eight hour period (see R v Adams [1969] 1 WLR 106; R v Rodriguez [1998] 2 VR 167 at 186). However, although the jury is together while listening to a direction, there is no capacity for them to consider and discuss the case collectively. Thus, it is difficult to see how they could reasonably be said to be "deliberating". If it be accepted that a jury could be said to be deliberating "during even a prolonged redirection" (R v Rodriguez at 186), it would follow that a jury is deliberating during at least part of a summing up. However, one would not ordinarily regard that period as falling within the definition of "deliberation" for the purposes of s 55F(2). 23It must be doubted whether the time spent by a jury travelling between the jury room and the court room should properly be counted (as it was in R v Rodriguez; in R v Bateson [1969] 3 All ER 1372, the court refrained from expressing a view). Having regard to the two considerations described above, I would be disposed to conclude that such "travel time" should not be included in the eight hour period. Although the jury is together, there would not normally be any real opportunity for the members of the jury to consider and discuss the case as an entity. That question, however, does not arise in the present case. 24Having regard to the language of s 55F, and the nature of the right that it modifies, it would be prudent not to invite a majority verdict at the moment that eight hours have elapsed. The court has a discretion to exercise and, if there is a miscalculation of the time that the jury has been deliberating, an issue may arise not only as to non-compliance with s 55F, but also, if the miscalculation is substantial, as to whether that discretion miscarried on account of a mistake of fact. Accordingly, a court should be slow to make an assumption that, for the purposes of the calculation of the period of deliberation, time spent dining is necessarily a time spent in deliberation. It is not possible to enquire as to what actually occurs in the privacy of the jury room, such as while the jury takes lunch in the jury room. It would therefore be prudent for a trial judge, when determining the period of deliberation by a jury, to avoid the risk of miscarriage by refraining from acting immediately after the expiration of eight hours if there is any ambiguity about any component of the minimum period (AGW v R [2008] NSWCCA 81 at [24]-[25]).

Resolution of the Appeal 25In the present case, there was no engagement by the trial judge with the jury for the purposes of s 55F until after 12.15pm on 28 September 2012. There has been no suggestion that the trial judge gave the jury any direction following receipt of the note bearing the time "11.10am". In particular, there has been no suggestion that the jury was directed not to deliberate further. Thus, the present case can be distinguished from a case in which the judge directs the jury to cease deliberations. 26There can be no enquiry as to what occurred in the privacy of the jury room from 11.10am until 12.15pm, when the jury was brought back to the courtroom. Further, there is no basis for drawing an inference that, because the jury sent the note at 11.10am, the jury had ceased deliberating at that point. There had been no mention of the possibility of a majority verdict in the Black v The Queen direction given by the trial judge to the jury on the previous afternoon. That direction did not raise any question as to whether the jury should cease to undertake further deliberations. There was no suggestion in that direction, after the jury had sent its first note, that the jury should cease deliberations. 27There is no reason to draw any inference that the jury was not together in the jury room between 11.10am and 12.15pm on 28 September 2012. That being so, there was no reason to draw an inference that they did not continue to deliberate during that period. The jury had twice before sent a note indicating that they could not agree on a unanimous verdict. In particular, the second note had stated that the jury could see "no possible resolution" that would enable them to reach a unanimous decision. That note is quite adamant. 28Nevertheless, the jury was told to continue deliberating. There is, therefore, no basis for concluding that the third note was an indication by the jury that it had ceased deliberating on the question of the guilt of the appellant. The onus is on the appellant to establish that the trial miscarried because the jurors were not actually deliberating, notwithstanding that they were together during that period in the jury room. In the absence of any evidence to the contrary, an inference should be drawn that, while the jurors were confined together in the jury room, they were continuing to deliberate. It follows that the prerequisite of deliberation for an eight hour period was satisfied. 29The Crown contends, in the alternative, that, if an inference should be drawn that the jury had ceased deliberating when they sent the note at 11.10am on 28 September 2012, the period of one hour for lunch on 27 September 2012 should not be excluded from the calculation of the eight-hour period. That question is more difficult. In ordinary circumstances, there would be no reason to conclude that, simply because the jury was eating lunch in the jury room, it was not deliberating. However, the Jury Record is not without ambiguity. It states that at 1pm "jury takes lunch" and that at 2pm "jury finishes lunch and continues deliberation - note sent to Court". Those entries are capable of being construed as meaning that the jury ceased deliberation at 1pm and resumed deliberation at 2pm, although that is not entirely clear. It may simply reflect a working assumption on the part of the compiler of the Jury Record - an assumption that is almost certainly not entirely realistic - that the jury does not deliberate during its lunch period. 30The appellant points to three observations made by the trial judge as giving rise to an inference that the jury would expect that it was not required to deliberate during a lunch break. First, during the trial on 25 September 2012, the trial judge thanked the jury and asked them to take their luncheon break. Secondly, in the course of the summing up on 26 September 2012, the trial judge observed that it was an appropriate time to have the luncheon break and directed the jury to come back at 2pm. Later, on the same day, at the end of the summing up, her Honour observed that, in any trial when a jury commences deliberations, she never anticipates the length of the time the jury can take and that it is totally up to the jury. Her Honour said, however, that in any trial, she does not take a verdict between 1pm and 2pm, because it is the lunch break. The trial judge also observed that, at about 4pm, she almost invariably makes an enquiry as to whether the jury wants to sit on for a bit longer or come back with fresh minds on the following morning. 31The appellant contends that, in the light of those observations, an inference should be drawn that the jury would have understood that they were not expected to continue deliberations during the lunch break. I do not consider that such an inference should be drawn from those observations. In circumstances where the jury was provided with lunch and continued together in the jury room, there is insufficient evidence to justify an inference that they ceased to deliberate during that period. 32If the period between 1pm and 2pm on 27 September 2012 were to be included, there could be no doubt that the prerequisite for eight hours of deliberation was satisfied in the present case. I would be disposed to conclude that that is the position if I had drawn the inference that the jury ceased deliberating at 11.10am on 28 September 2012. However, it is not necessary to form a final view on that question. 33Section 6(1) of the Criminal Appeal Act 1912 (NSW) relevantly provides that, on any appeal against conviction, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The appellant contends that the proceedings had so far departed as to have ceased to be a trial according to law, such that it was not open to conclude that there had been no substantial miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act. 34Having regard to the stance taken by senior counsel for the appellant at the trial, to the effect that the eight hour period of deliberation had expired, and the adamant terms of the second note sent to the trial judge by the jury, I am not persuaded that the eight hour requirement in s 55F was not satisfied. It is thus not necessary to decide whether, if the question of eight hours' deliberation might have been decided in favour of the appellant, a substantial miscarriage of justice would be said to have occurred in any event. 35The appellant has not established that there is a basis for concluding that the jury did not deliberate for at least eight hours before returning their majority verdicts. Under s 5(1)(b) of the Criminal Appeal Act, an appeal on a question of mixed law and fact lies to this Court only with the leave of the Court. The question of whether the jury deliberated for at least eight hours may be one of mixed law and fact, although that is not entirely without doubt. In the circumstances, to the extent that leave is necessary, if at all, I would grant leave to appeal, but would dismiss the appeal. 36HALL J: I agree with the reasons of Emmett JA and the orders he has proposed. I have read Hulme AJ's judgment in draft. Save for his Honour's observation upon whether a jury's time spent listening to redirections and the like should be counted, I agree with his Honour's reasons. 37HULME AJ: In this matter I have had the advantage of reading the reasons for judgment of Emmett JA. His Honour has set out the facts relevant to the determination of the question posed for this Court and I need not repeat them. 38The statutory provision relevant is s 55F of the Jury Act 1977 and in particular ss (2): A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation. 39This provision was enacted in 2006 against the well-known long-standing rule that a court will not enquire into a jury's deliberations and what occurs in the jury room. (There is an exception to that last statement - see Smith v Western Australia [2014] HCA 3; (2014) 88 ALJR 384 - but the exception is of no present relevance.) 40In these circumstances "the jurors have deliberated" must be given a practical common-sense operation. It was never intended that the Court should be concerned with whether the jurors have, minute by minute, been discussing the case rather than e.g. talking about the latest cricket scores or anything else of topical interest. 41On the other hand, if the Court knows that at certain times a jury has not been deliberating, that time must be excluded from the eight hours referred to in s 55F(2)(a) of the Jury Act 1977. Thus, I agree with Emmett JA that the calculation of eight hours must exclude any time when a jury has been sent to overnight jury accommodation or a hotel for sleeping or eating purposes. Although there may well be some discussions between some jurors during such times, the jury as an entity would not be deliberating. This view is supported by R v Young [1995] QB 324; [1995] Cr App Rep 379 and R v Rodriguez [1998] 2 VR 167; (1997) 93 A Crim R 535 at [554]. 42Most commonly, at least in New South Wales, a jury is provided with lunch in the jury room. In that situation it is impossible to believe that a jury will immediately cease their deliberations at the commencement of the usual lunch hour (or on the delivery of the lunch) and resume them at the end of that time. It is highly likely that in fact some deliberations will occur within that period. This inability to decide how much of lunchtime is spent in deliberations means that the whole of that time or none of it should be included in the eight-hour calculation. 43It may be assumed that Parliament was aware of the way in which the jury system operated when the relevant provision of the Jury Act was passed. Given that, it is impossible to believe that, although the jury is sequestrated during such lunch periods, Parliament intended that that period should be excluded and accordingly all of it should be included in the calculation of the 8 hours. This view is supported by R v Doherty [1999] VSCA 165; (1999) 3 VR 435 and R v VST [2003] VSCA 35; (2003) 6 VR 569 at [13], [14]. 44On the other hand any time the jury spend listening to redirections and the like should not be counted. I appreciate that that approach is contrary to what was said in R v Adams [1969] 1 WLR 106; (1968) 52 Cr App R 588 - I doubt if the different terms of the Criminal Justice Act 1967, viz. that "the jury have had not less than two hours for deliberation", provides ground for distinction. It is also contrary to R v Rodriguez [1998] 2 VR 167; (1997) 93 A Crim R 535 at [555] where Callaway JA, whose judgment was concurred in by Hayne and Charles JJA, remarked that, "I should think that a jury deliberate during even a prolonged redirection". If that is so, logically they are likely to be deliberating during at least part of a summing up but, even independently of the operation of s 55F(2), one would not logically apply the concept of deliberation to that time. 45There will of course be situations not quite as clear. Commonly the time a jury enters or leaves the courtroom are recorded but the court system does not operate on the basis that the jurors are "clocked" in and out of the jury room except for their arrival and departure times of the day. Even those times are often not formally recorded, the sheriff officers simply informing the judge in chambers when the jury have arrived or left. When a jury leaves or returns to a courtroom, some time is inevitably occupied in its movement doing so. That time may be short where a jury room is immediately adjacent to a courtroom or somewhat longer when there is a longer distance between the two rooms. It is virtually certain that in the course of such a movement the jury as a group will not be deliberating but it is impossible to believe that when Parliament fixed the period of eight hours it intended that in a decision as to whether that time had passed, there should be an inquiry into how long it took for a jury to move between the court and jury room (and whether in a particular case there was any delay because, e.g. one of the members of the jury had dropped some papers). Again, practical considerations lead me to the view that it was intended that such movement time should be included in the 8 hours calculation. 46There are also other occasional interruptions. From time to time, one or more members of a jury are permitted to leave a jury room for the purposes of having a cigarette. It has not been the practice to record these times but it is at least reasonably arguable that the jury, as a group, is not deliberating during those periods. 47The above consideration leads to the view that more attention and recording than has been the practice during the past needs to be made as to the times when the full complement of jurors arrive and when any members of it leave a jury room to the intent that one can say with confidence when the jury as a body is present and able to deliberate. It also reinforces the need for a judge to be careful, in circumstances where there is scope for doubt, such as in my cigarette example, to ensure that at least eight hours of deliberations have passed. 48Turning then to the facts of this case, I accept the possibility that given the terms of the jury notes to which Emmett J has referred, the jury may have stopped their deliberations after the sending of those notes. However, one can never be certain for no further enquiry could be made. Be that as it may, the jury remained sequestered for the purposes of deliberation during that time and that time should be counted in the calculation required under s 55F(2). 49Accordingly, in my view, within the meaning of s 55F(2) the jury deliberated for not less than 8 hours being:- 54 minutes on 26 September 51 minutes being 9.35am - 10.25am on 27 September 3 hours 35 minutes being 10.38am - 2.13pm on 27 September 1 hour 17 minutes being 2.17am - 3.34pm on 27 September 2 hours 41 minutes being 9.35am - 12.16pm on 28 September 50These periods total 9 hours 18 minutes. 51There is one further matter to which I should advert. I take the view that compliance with the eight hour period prescribed in s 55F(2) is mandatory if a majority verdict is to stand and that non-compliance means that a substantial miscarriage of justice has occurred in the sense that the Appellant has not received a trial according to law. In those circumstances s 6(1) of the Criminal Appeal Act 1912 cannot be used to save the verdict. See RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100 at [19]; AGW v R [2008] NSWCCA 81 at [23]; Hunt v R [2011] NSWCCA 152; (2011) 81 NSWLR 181 at [189]. 52I agree that the Court should grant leave to appeal but dismiss the appeal.

Amendments 22 December 2014 - changed "juror" to "jury" in the last sentence Amended paragraphs: 2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2014