(e) A result reflecting the "highest common denominator"
375In Woolworths at 200, Kirby P stated that the appropriate course was an attempt to find within the reasons and orders proposed by the judges the highest common denominator of rational agreement. That case involved the question of whether the appellant was liable to pay an annual pension to the respondent and whether the respondent held those payments which had been made as constructive trustee for the appellant. The trial judge had found for the respondent on both issues and his findings were the subject of the appeal. Kirby P would have allowed the appeal on both issues, Samuels JA on the first only whilst Mahoney JA would have dismissed the appeal.
376At 200, Kirby P described the traditional approach of the junior judge deferring to the senior judge as owing more to history than logic. He stated that the appropriate approach was to find what he described as the highest common denominator of rational agreement (perhaps more accurately the highest common factor, or as Brooking J described it in Pippos v Craig (1993) 1 VR 603 at 611 (Pippos), the least unsatisfactory outcome). Applying this approach Kirby P concurred in the orders proposed by Samuels JA.
377Kirby P applied this approach on a number of subsequent occasions: Superclinics at 78-79, New South Wales Medical Defence Union Ltd v Crawford (No 3) (Court of Appeal (NSW), 23 September 1994, unrep), Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 at 213-214, Lexington Constructions Pty Ltd v Coyne (Court of Appeal (NSW), 24 December 1992, unrep), Tsivinsky v Tsivinsky (Court of Appeal (NSW), 5 December 1991, unrep) and Attorney General for New South Wales v Barr (Court of Appeal (NSW), 11 October 1991, unrep). In Skulander at [74], Mason P accepted that the approach was rational but expressed concern that Kirby P had appeared to adopt it of his own volition and without the concurrence of his colleagues. In Pippos, Brooking J consulted with his judicial colleagues before adopting a similar course.
378A similar approach has been adopted in a number of cases in this Court: Robinson and R v Wilson [2005] NSWCCA 112; (2005) 153 A Crim R 257 at [38].
379In the present case, after consultation with Price and McCallum JJ and with their corroboration, I have concluded that notwithstanding the view I have expressed, it is appropriate that I concur in the orders proposed by Price J. This gives effect to the majority view that the appeal should be allowed whilst preserving the opinion of each of Price and McCallum JJ that the verdict was not unreasonable. It will of course be a matter for the Crown after consideration of the reasons of each member of the Court and such other matters as it considers appropriate to determine whether or not to retry the appellant.
380For these reasons I agree that the orders proposed by Price J should be made.
381PRICE J: I have had the privilege of reading the judgment of Bathurst CJ. His Honour's exposition of the evidence enables me to go to the appellant's contention that the jury's verdict of murder is unreasonable and cannot be supported by the evidence (Ground 1).
382The Chief Justice has detailed at [307] - [315] above, the principles on which this Court is obliged to deal with this ground of appeal and the question of an inconsistent verdict (Ground 2). In respect of the first ground, I would add what was said by Hayne J (Gleeson CJ and Heydon J agreeing) in Libke v R [2007] HCA 30; 230 CLR 559 at [113]:
"It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence... That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt."
383The Chief Justice has carefully analysed at [316] - [326] above, the inconsistencies in the evidence of the witnesses upon whom the Crown relied to establish beyond reasonable doubt that the appellant was directly responsible for the death of Anthony Zervas. The question is whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant deliberately struck the deceased's head with a bollard which substantially contributed to his death with an intent to kill or to cause grievous bodily harm and the act was not done in self-defence.
384During oral submissions in this Court, senior counsel for the Crown argued that it was open on the combined evidence of SP and Mr Ireland for the jury to find that the appellant actually inflicted the fatal blow. I understood from this submission that the Crown contended that it was open to the jury to find that there had been a deliberate act by the appellant which caused or substantially contributed to the death. It was the appellant's case that the evidence viewed as a whole, simply did not support the conclusion that he was actively involved in the killing of the deceased. The appellant criticised Mr Ireland's evidence as being unreliable and inconsistent with the independent evidence of the timing of the incident as established through the CCTV footage and the Deng video.
385The appellant argued that given the jury verdicts with regard to Mr Menzies, it was clear that the evidence of SP and AL was not accepted.
386The appellant further submitted that SP's evidence was not supported by the Deng video. As the Chief Justice points out at [325] above, the video does not assist in establishing that the appellant inflicted a fatal blow by using the bollard in an up and down motion. The footage does depict the appellant moving away from the location of the violence inflicted upon the deceased. However, it was not suggested that the video recorded all that occurred. The trial Judge directed the jury that "the Deng footage was recorded around about the time of the end of the incident in the departure hall". The footage runs for 16.16 seconds. In my opinion the Deng video neither strengthens nor weakens the Crown case.
387It was SP's evidence that he saw the appellant strike the deceased with a bollard once. He said that the appellant used a similar motion to Mr Menzies, picking the bollard up and striking it down. SP had been criminally concerned in the events at the airport and had received a 30 per cent reduction in sentence for his assistance to authorities. The trial Judge provided the jury with directions and warnings about SP's evidence, which included the obligation to approach that evidence with great caution, as it may be unreliable.
388Although it was not necessary for the trial Judge to direct the jury that SP's evidence must be corroborated, it is the Crown's contention that his evidence found independent support particularly in the evidence of Mr Ireland, who saw the man in white trousers and white shirt pick up a metal stand and appear to swing it with a putting action two to three times.
389Although Mr Ireland did not describe the appellant using the bollard in an up and down motion, it was not his evidence that he saw all that occurred. Mr Ireland described his concerns for his wife, looking at her and then looking back. He told the jury his head "was virtually on a swivel". It was open to the jury to reject the criticism of Mr Ireland's testimony and to consider that it supported SP's evidence.
390To a lesser extent, SP's evidence finds support in the testimony of Ms Xanthe Gray who saw the man wearing light coloured pants grab a nearby barrier pole and stamp it over the head of the man on the ground and Ms Karen-Ann Whyte's selection of the appellant's picture as the person who "bashed a man to death with an instrument". She also selected another photograph of a man who had a similar build to the one she saw hitting the man on the ground with the bollard, but was more reasonably confident that between the two it was photograph number 4 (the appellant) who was familiar to her. Whilst there were inconsistencies in the evidence of these witnesses, it was open to the jury to take their evidence into account in support of the case against the accused.
391SP's evidence is consistent with Dr Duflou's finding that the cause of death was the combined effect of blunt force head injury and stab wounds to the chest and abdomen. The jury plainly rejected the appellant's account of events at the airport.
392It seems to me that it was open to the jury to be satisfied beyond reasonable doubt that the appellant struck the deceased on the head with the bollard but not to be satisfied to the criminal standard that Mr Menzies did. Although AL testified that he saw Mr Menzies hit the man on the floor twice, AL was criminally concerned in the events at the airport and the jury was instructed to also approach his evidence with great caution. There was no independent evidence that supported AL.
393Unlike his evidence concerning the appellant, SP's evidence of Mr Menzies was not supported by Mr Ireland or any other independent witness nor was his photograph selected as being a person who struck the deceased. The same observation might be made about SP's evidence of Mr Abounader. I conclude that the verdicts are not inconsistent and do not demonstrate that SP's evidence of the appellant was not accepted by the jury.
394Having made my own independent assessment of the evidence, it is my view that it was open to the jury to be satisfied beyond reasonable doubt, that the appellant deliberately struck the deceased's head with a bollard which substantially contributed to his death with an intent to kill or to cause grievous bodily harm and the act was not done in self-defence. In the result, I do not agree with the Chief Justice that the jury should necessarily have entertained a reasonable doubt that the appellant struck the deceased with a bollard and was directly responsible for the death.
395I have also had the advantage of reading the judgment of McCallum J. Her Honour at [488] - [518], deals with the issues raised in the appeal as to the guilt of the appellant on the basis of joint criminal enterprise, or extended joint criminal enterprise if the conclusion as to guilt on the basis of direct responsibility entails error. I respectfully adopt the reasons and conclusions of her Honour.
396I would reject Grounds 1 and 2 of the appeal.
Ground 3: The trial judge erred in failing to leave provocation to the jury.
397During the course of the trial (5 September 2011), senior counsel then appearing for the appellant requested that the jury be directed in relation to the alternative verdict of manslaughter based on provocation. It was not in dispute that in the departure lounge, the first physical act of violence was when the deceased had tried to stab the appellant in the head. Senior counsel put to the trial Judge that this was a "highly provocative act" which had occurred before the attack alleged by the Crown and should the jury reject the appellant's account and find that the appellant was involved in the fatal attack on the deceased, both provocation and excessive self-defence arose.
398The Crown submitted that if provocation was raised on the evidence, there was no objection to the direction being given. His Honour determined on 20 September 2011 that provocation should not be left to the jury. His Honour said:
"I don't propose to leave provocation to the jury. I have come to the view that whatever might be relevant in terms of those types of defences, they are relevant to self-defence and there is no work left for provocation upon that material."
Argument
399The appellant submitted that this ruling was erroneous, as provocation as a basis for a verdict of manslaughter was available on the evidence relied on in the Crown case and should have been left to the jury. The appellant contended that it was not correct to say that provocation was consumed by the directions on excessive self-defence. The appellant referred to the observation of Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v R (1995) 183 CLR 58 at 68 that:
"Whilst anger is primarily a feature of provocation and fear a feature of self-defence, loss of self-control may be due to a mixture of fear and anger."
400The appellant noted that s 421 Crimes Act 1900 (NSW) (excessive self-defence) makes it essential that the conduct is not a reasonable response as he/she perceives them, "but the person believes the conduct is necessary: (c) to defend himself ... or another person..." The appellant pointed out there is no such requirement for belief that the conduct is necessary in defence of self or another, under s 23 Crimes Act (provocation). Rather, the focus of provocation, the appellant submitted, was on a loss of self-control induced by conduct of the deceased, which could have induced an ordinary person in the position of the appellant to have lost self-control such as to form the relevant intent to kill or inflict grievous bodily harm. The appellant argued that excessive self-defence does not subsume provocation, rather there is a real and substantial difference between the two, and there is a duty on the trial Judge to give directions on provocation even where an issue to be negatived is self-defence.
401The Crown submitted that the trial Judge did not err by failing to give directions on provocation, having regard to the evidence in the trial. The Crown referred to the sole reliance on self-defence in the appellant's case, the absence of "even the faintest suggestion" in the evidence that the appellant had or might have been acting in a manner that could successfully enliven the defence of provocation and the absence of any detailed application at trial by the appellant in support of the directions being given.
402The Crown argued that his Honour's remarks were made having regard to the complexity of the trial and the task that lay before him and the jury. The Crown suggested that the trial Judge was referring to the practical rather than the theoretical relevance of provocation to the issues litigated, and the evidence led before the jury by the Crown and in the respective defence cases.
403The Crown contended that if this Court was of the view that directions on provocation ought to have been given, the Court would nevertheless be satisfied that there has been no substantial miscarriage of justice. The Crown argued:
(a) the evidence demonstrates beyond any reasonable doubt that the pre-emptive strike by the deceased was undertaken in circumstances where a violent confrontation between the gangs was inevitable because of the appellant's conduct (during the fight at Gate 5 and by approaching and arguing with the deceased's brother in the Departure Hall) against a background of inter-club hostility; and/or,
(b) there is no reasonable possibility that the appellant might have lost self-control as a consequence of the conduct of the deceased towards or affecting the appellant that he participated in the fatal attack on the deceased intending that he be killed or suffer really serious bodily harm; and/or,
(c) there is no reasonable possibility that the conduct of the deceased towards or affecting the appellant could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intention that the deceased be killed or suffer grievous bodily harm.
Consideration
404The first question for the trial Judge was whether there was evidence which was capable of constituting provocation. The test has been summarised as being whether, "on the version of the events most favourable to the accused which is suggested by the material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense": Stingel v R (1990) 171 CLR 312 at 334.
405The appellant did not give evidence that he was provoked or lost self-control but that does not exclude the partial defence of provocation: Van Den Hoek v R (1986) 161 CLR 158 at 161. On the Crown case, the appellant was stabbed in the departure hall, behind the check in counters by the deceased. The deceased used scissors to strike at the temple area of the appellant's head. It was SP's evidence that the deceased came from behind and pulled scissors from behind his back, and took a strike at the side of the appellant's head. SP thought the appellant put his hand up and it [the scissors] connected on the side of his head. In cross-examination, he agreed that whilst the appellant and Peter Zervas were face to face, the appellant was attacked by the deceased from behind.
406AL gave evidence of a man running at the appellant with a clenched fist and AL could see metal extending out about 10 centimetres. He agreed that at the time he was not sure whether it was scissors or a knife. The man ran straight at the appellant and tried to stab him. AL said that the appellant put his arm up to protect himself and the person tried to stab him in the head. Both witnesses testified that these events occurred behind the check-in counters.
407It was the Crown case that the deceased's blow with the scissors, although blocked by the appellant, penetrated his skin occasioning injury to the appellant near his eye and on the Crown case, to his tricep. It was common ground that the deceased's attack took place shortly before he was killed in the check-in area.
408An agreed fact was that there was ongoing hostility between the Hells Angels and the Comanchero prior to 22 March 2009. Furthermore, all of the accused were aware of the ongoing hostility in existence between the two clubs.
409The Crown conceded that this attack by the deceased was the first physical attack in the departure hall, following which the riot ensued. It was not disputed that the appellant was unarmed at the time of the deceased's attack upon him.
410Accepting the version of facts most favourable to the appellant, it is reasonably possible that a jury might regard as highly provocative the deceased's attack upon the appellant with the scissors and conclude that the appellant lost self-control as a result of the deceased's conduct. The gravity of this conduct so far as the appellant is concerned, must be considered against the ongoing hostility between the members of the two motorcycle clubs, the heightened tension after the events at Gate 5, the fact that the appellant was unarmed, and the introduction of a weapon by the deceased. Furthermore, the savagery of the attack upon the deceased including the use of the bollard whilst he lay on the ground in the check-in area in the presence of members of the public suggests a loss of self-control. Moreover, the fighting continued after the confrontation behind the check in counters culminating in the death of the deceased a short time later. A jury might reasonably conclude that the appellant did not regain his self-control and that his acts causing the deceased's death resulted from a loss of self-control on his part.
411A more difficult question is whether the deceased's attack upon the appellant was such that it could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm. As I have previously mentioned, a jury might reasonably assess the deceased's conduct in attacking the appellant by reference to the appellant's characteristics as highly provocative, but the question is whether provocation of that high degree of gravity could cause an ordinary person to lose self-control and form an intention to kill or do grievous bodily harm and act upon that intention: Masciantonio at 67.
412In my view, it is reasonably possible that a jury might conclude as a result of that high degree of provocation, an ordinary person in the position of the appellant could so far have lost self-control as to have formed an intention to inflict at least grievous bodily harm, and to have acted upon that intention so as to give effect to it.
413It is well recognised that there is a substantial difference between provocation and self-defence. As Mason J observed in Van Den Hoek at 167:
"In Anglo-Australian criminal law provocation and self-defence are distinct and separate defences. Provocation is more limited in its area of operation and its consequences. And there is a difference in the elements of the two defences. Loss of self-control is essential to the first, but not to the second."
414And at 169:
"The failure of an accused person to testify to loss of self-control is not fatal to a defence of provocation or a case in which self-defence is raised. Because the admission of loss of self-control is bound to weaken, if not destroy, self defence, the law does not place the accused in a dilemma" (citation omitted).
415In my respectful opinion, I consider that the directions on self-defence did not consume provocation, should this have been what his Honour meant in the passage quoted at [398] above. For instance, the jury could reasonably have concluded that the appellant did not believe that it was necessary to do what he did in order to defend himself, but that he had lost self-control. The evidence disclosed that when the fatal blows were struck, the deceased was lying on the ground. The Crown may have eliminated self-defence as an issue before the jury was required to consider whether the appellant's use of force was excessive or otherwise unreasonable.
416This was a trial of considerable complexity and the trial Judge gave very careful and well-crafted directions. However, as there was reasonable evidence of provocation, his Honour in my respectful opinion, was obliged to leave the partial defence to the jury. The Crown bore the onus of proving beyond reasonable doubt that the appellant was not acting under provocation. If the Crown did not discharge that onus, the appellant was not guilty of murder but guilty of manslaughter. Accordingly, there has been a substantial miscarriage of justice. I would allow Ground 3 of the appeal and order a retrial.
Ground 4: The trial miscarried by virtue of:
a. the trial judge failing to disclose the full content of the jury notes MFI 118 and 119 to counsel thereby denying procedural fairness to the appellant on issues of substance in his trial;
b. the trial judge failing to discharge the jury in the circumstances prevailing at that time in the trial.
Ground 5: the trial judge erred by failing to direct the jury that they were free to deliberate in whatever manner was convenient to them and by directing them to consider the primary charge of murder before addressing the alternatives to murder.
417It is convenient to deal with these grounds of appeal together as they concern complaints by the appellant of matters that arose after the jury retired to consider its verdicts on 29 September 2011.
Background
418On 19 October 2012, the jury sent a note (MFI 114) asking:
"Can we please have clarification of the following: If we are unable to come to a unanimous verdict on murder, do we then address manslaughter or is this considered a compromise by the people who can meet the requirements of murder."
419The trial Judge proposed that the jury's question be answered by repeating an earlier direction and the jury also be directed with answers "no" (they should not then address manslaughter) and "yes" (this would be considered a compromise). Counsel for Mr Potrus disagreed, stating that the answer should be in the reverse and that the jury should consider manslaughter. Counsel for Mr Potrus submitted that the jury should be told "they can approach this any way they really can without compromising" and that if the jury did so and was unanimous as to the alternative only, then the jury would not return a verdict on the primary count. Counsel for the appellant did not express opposition to the course proposed by the trial Judge.
420When the jury later returned, the trial Judge gave directions as he had proposed, implicitly rejecting the argument by counsel for Mr Potrus. His Honour directed the jury in the following terms:
"The answer in short to the first part is no and the answer to the second part, whether it is a compromise, is yes but perhaps to be clearer about it I should repeat just a small portion of what I said to you on the subject in my summing-up to you.
I spoke about the fact that there were alternative charges for you to consider and I referred to the fact that six of the accused, as you well know, are charged with murder in count 1 and there is the alternative of manslaughter and then in count 2 the alternative of riot...But the critical part is I said to you:
'If you find that the more serious charge has not been proved beyond reasonable doubt but are satisfied that an alternative charge has been proved beyond reasonable doubt, then you may find an accused not guilty of the more serious offence and guilty of the other. This option only arises where you are all agreed that the Crown has not proved the more serious offence beyond reasonable doubt.'
I said:
'The important thing I need to emphasise is that you should not regard this as an invitation to compromise.'"
421On 25 October, the jury sent a note (MFI 117) to the trial Judge which read:
"We have been able to come to unanimous decisions of several of the charges placed. However, on the remaining charges, we have not been able to come to a unanimous verdict, which from our deliberations, appears that we will be unable to. Can we please be provided information as to where we go from here?"
422His Honour, with the concurrence of counsel, asked the jury to indicate "in respect of which accused, and in respect of which charges you have been able to arrive at unanimous decisions. I stress that I do not want you to tell me what those decisions are, just the name of the accused and the charges."
423The jury responded with a further note (MFI 118). The trial Judge informed counsel that he had received this note but he did not propose to read it out. His Honour described the note as being "open to two interpretations", both of which indicated to him that the jury had reached unanimous decisions on alternative counts, but the note was ambiguous as to whether the jury had reached unanimous decisions or not on the more serious charges. No further disclosure of the contents of MFI 118 was made by his Honour. As to the appellant, MFI 118 read;
"We have unanimous verdicts on the following Hawi - Riot and Affray"
424His Honour handed to counsel a sheet which listed each accused and each of the charges and proposed that the sheet be distributed to the jury who would be asked to indicate in relation to each charge whether unanimous decisions had been reached or whether they were unable to agree. His Honour asked counsel for comments or dissent. Counsel for the appellant did not respond to the trial Judge's invitation and did not object to the course proposed.
425The Jury returned to court and the question sheet was distributed. In relation to the sheet, his Honour said:
"It sets out each of the charges upon which a verdict, theoretically at least, is available, and it asks you to consider and tell me by ticking in whichever column is appropriate, against each of the charges for each of the accused. There is a column "Unanimous decision"? And another column "Unable to agree"?
So if you could perhaps go through this sheet and put a tick in the appropriate column for each of the charges for me, I will then be clear..."
426Following a short adjournment, the trial Judge informed counsel that, as anticipated, he had received a "further note" from the jury (MFI 119) which his Honour then summarised. The summary included "[f]or some accused, they have reached unanimous decisions in relation to a primary charge but not in respect of an alternative charge. For some accused, they have reached unanimous decisions in relation to an alternative charge but not in respect of a primary charge". The contents of the "note" were not further disclosed to counsel. The note was in fact the questionnaire that had been given to the jury. In respect of the appellant, the jury had indicated on MFI 119 that they were unable to agree on murder and manslaughter but had reached unanimous decisions on riot and affray.
427The trial Judge told counsel that he had in mind reminding the jury "that I cannot accept a verdict on an alternative charge until I have first received a verdict of not guilty on a more serious charge" and to also give a direction in accordance with Black v R (1993) 179 CLR 44 at 49.
428Mr Grant, junior counsel for the appellant, expressed a concern to the trial Judge that the jury had not been able to reach a verdict on a primary count but had in respect of the alternative count. Mr Grant said if that had been the case, the jury had not been following the trial Judge's directions. Mr Grant told his Honour that he was concerned that the jury note was "a way of bypassing [his] Honour's tick and flick document." He asked that the jury be told to complete the tick and flick document. His Honour responded:
"In effect that's what they've done by the note that they have sent me in response to the last discussion I had with them."
429During the exchange between the trial Judge and counsel, Mr Gordon, counsel for Mr Kisacanin expressed concern that the jury had not completed the tick box. His Honour replied that the jury had responded by ticking the boxes and that he had conveyed to counsel "the substance of what they indicated through that process." Mr Gordon asked to know what boxes were ticked. His Honour said: "I do not think it would be appropriate..."
430Upon the return of the jury, the trial Judge's directions included the following:
"Where you have reached an unanimous decision for an accused in relation to a lesser alternative charge, but you are unable to agree upon a more serious charge, I must point out to you that I can only accept a verdict on the lesser charge after you have returned a verdict or verdicts of not guilty on the more serious charge or charges. So, in relation to departure hall charges if I can call them that, they are as you know, murder then manslaughter then riot for the six Comanchero accused and riot and affray in the case of Mr Padovan.
First and foremost you must determine whether you can agree upon a verdict for the primary charge. Murder in the case of the six and riot in the case of Mr Padovan. Until you can do that it does not matter what you think of the alternative charges. If you do come to a unanimous decision on the primary charge, if it is guilty, then there is no need to make any decision on any alternative because you will be not asked to return a verdict on it or them. If it is guilty on the primary charge, that is the end of the matter.
If it is not guilty it is then and only then that you will be asked to return a verdict on an alternative. In the case of murder there are the two alternatives, if you were to find an accused guilty of murder no further verdict on the alternatives is required. If you find an accused not guilty of murder, then the next verdict you will be asked to return is on manslaughter. If you come to a unanimous decision that an accused is guilty of manslaughter, then for that accused that is the end of the matter. It is only if you come to a unanimous decision that the accused is not guilty of manslaughter that you will then be asked to return a verdict on riot.
Now, coming down the charges in the order in which I have explained, if you come to a point either at the beginning on the primary charge or subsequently on the next alternative, or as it is in the case of murder where there is the second alternative of riot, if you come to a point where you find you cannot agree let me know and I will give you some further directions."
431The trial Judge went on to give the jury a Black direction and told the jury that the circumstances in which majority verdicts may be accepted had not arisen.
432On the following day, Mr Grant made an application for the discharge of the jury, and alternatively for a majority verdict direction on the basis that the jury had not followed the directions of the trial Judge and "for the jury to continue, it raises the real spectre of a compromised verdict occurring..." The Crown opposed the application for a discharge. The application for a majority verdict was opposed by counsel for Mr Menzies and Mr Abounader.
433His Honour delivered an ex tempore judgment (R v Hawi & Ors (No 31) [2011] NSWSC 1677) (26 October 2011) in which he expressed the view that the content of MFI 114 did not indicate that the jury had not adhered to any instruction he had given. His Honour said that it was "unproductive to speculate" about what gives rise to jury questions but one view of that question, was that the jury were seeking confirmation of an instruction that he had given. His Honour referred to the communications received from the jury on 25 October 2011 which indicated that the jury "in some cases reached unanimous decisions on lesser charges without having reached unanimous decisions on primary charges."
434In rejecting the submission that such an approach was contrary to the jury instructions, his Honour said at [6]:
"[I]t is my view that there is nothing wrong with the jury considering how they might find in relation to any of the charges that are before them. The only requirement is that they return verdicts in only one order, that is, first for a primary charge before it may be possible to accept a verdict for an alternative charge if the verdict on the primary charge is not guilty."
435His Honour held at [9] that a fundamental problem with the application to discharge the jury is that he would not have the power to discharge unless he was "first to find, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a majority verdict: s 56 Jury Act."
436In relation to majority verdicts, his Honour noted that the Black direction had been given the previous afternoon and considered that it would be premature to unilaterally invoke the provisions of s 55F of the Jury Act 1977. The application was declined both as to the discharge of the jury and a majority verdict direction.
437The jury continued to deliberate for two more days. On 28 October 2011, the jury wrote a note (MFI 121):
"Update on where we are at. We are still finding it difficult to come to unanimous decisions on the primary charges. Is there any direction we can be provided to resolve our stalemate. There has been movement on individual decisions, however not to the point of a unanimous decision."
438The jury were then asked whether they could not reach unanimous decisions or it was simply unlikely. The jury replied (MFI 122):
"We believe at this point in time we will be unable to reach a unanimous verdict on the primary charges."
439The jury were subsequently given majority verdict directions on all counts. After deliberating for a further two and a half days, the jury returned majority verdicts in relation to five accused. In relation to the appellant, a majority verdict of guilty of murder was returned.