Hunt v Regina

Court of Criminal Appeal (NSW)|2011-05-19|Before: Johnson J, Hall J

Judgment 1THE COURT : On 14 September 2010, Lee James Hunt (the appellant) was arraigned on two counts both of which were in the same terms, namely, that between 10 March 2006 and 7 March 2007 at Gwynneville, he did indecently assault JH in circumstances of aggravation, namely, that JH was at the time under the age of 16 years, namely, 11 or 12 years. The appellant entered a plea of not guilty to both charges. 2The trial before his Honour Judge Conlon SC commenced in the District Court at Wollongong on 14 September 2010. The jury was empanelled on 15 September 2010 and the evidence concluded on 16 September 2010. The trial judge commenced his summing up to the jury on 16 September 2010 and concluded his summing up the following morning, Friday. Later on that day, the jury returned a majority verdict of guilty on both counts. 3On 10 December 2010, the trial judge sentenced the appellant to imprisonment as follows:

With respect to count 1, a non-parole period of six (6) months to commence on 10 December 2010 and to expire on 9 June 2011 and a balance of term of six (6) months to commence on 10 June 2011 and to expire on 9 December 2011;
With respect to count 2, a non-parole period of eight (8) months to commence on 10 December 2010 and to expire on 9 August 2011 and a balance of term of 12 months to commence on 10 August 2011 and to expire on 9 August 2012. Accordingly, the aggregate term imposed was 20 months commencing on 10 December 2010 and expiring on 9 August 2012, consisting of an aggregate non-parole period of eight (8) months commencing on 10 December 2010 and expiring on 9 August 2011, with an aggregate balance of term of 12 months commencing on 10 August 2011 and expiring on 9 August 2012. 4The appellant raised five grounds of appeal, namely: Ground 1: the verdicts constituted a miscarriage of justice as the appellant did not have a trial according to law; Ground 2: the trial judge erred by failing to comply with the requirements of the Jury Act 1977 (the Act), s 55F before accepting a majority verdict; Ground 3: the trial judge could not be satisfied that the jury had spent not less than eight hours deliberating; Ground 4: the trial judge misdirected the jury by advising that he could take a majority verdict at 5.50 pm; Ground 5: the trial judge failed to properly put the defence case. 5The appeal was heard by the Court on 19 May 2011. In its written submissions at para 54, the Crown stated that in all the circumstances, this Court might consider that Grounds 1, 2, 3 and 4 had been established with the consequence that there had been a miscarriage of justice in that the appellant had not had a trial according to law. The Crown further conceded at para 55 of its written submissions that the proviso to s 6(1) of the Criminal Appeal Act 1912 was not available in a case such as the present where the proceedings had so far departed as to have ceased to be a trial according to law, as a finding in such circumstances that there had been no substantial miscarriage of justice was not open: AK v State of Western Australia [2008] HCA 8; (2008) 232 CLR 438; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358. Accordingly, the Crown accepted that in the circumstances and upon the basis the Court upheld any of Grounds 1, 2, 3 and 4, it should order that there be a new trial. 6In the foregoing circumstances, the Court accepted the concessions of the Crown that the course of the proceedings which resulted in a majority verdict of guilty on both counts was such that the appellant had not received a trial according to law. As the appellant did not oppose the ordering of a new trial, the Court announced the following orders:

The course of the proceedings leading to a majority verdict 8The trial judge did not refer to the possibility of a majority verdict either in his opening remarks to the jury or in his summing up. In the latter, he directed the jury that their verdicts were to be unanimous. No reference was made either by trial counsel for the appellant or for the Crown in their addresses to the jury with respect to the requirement of unanimity or otherwise. 9The jury retired to consider their verdicts at 9.47 am on 17 September 2010. Shortly before 12.10 pm, the jury sent a note to the trial judge, which stated, " We cannot reach a verdict ". The note was marked MFI 7. The jury returned to the court at 12.10 pm when the trial judge gave a direction encouraging the jury to persevere in their deliberations. That direction reflected the essential requirements for such directions referred to by the High Court in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 at 51-52. No complaint was made with respect to that direction which generally followed the suggested direction set out at [8-070] of the Criminal Trial Courts Bench Book. 10In response to that direction and while the jury was still in court, the foreman asked if he could be heard. His Honour declined to hear the foreman, but instead invited him to provide a further note which he wrote on the back of MFI 7. The further note stated: "We have debated vigorously both sides of the argument. Every juror has had time to present their argument for and against. The strength of convictions for both sides are such that even if we returned to the room, neither side could be persuaded to change their final verdicts. Extra time will not make a difference in this case thank you. Foreman." 11His Honour's response to the note was to state the following in the jury's presence: "My view is that the direction that I've just given the jury is appropriate and they need to go out to further deliberate the matter. It may well be that there is no movement but in view of the direction which I have given them I believe that I should ask them to retire again to further deliberate in accordance with that direction and if there is movement okay, if there is not well I will deal with that when the matter arises. Do either of you have anything to say about that?" Neither counsel had any comment to make. 12The transcript then records that the jury retired to further consider its verdict at 12.17 pm. At approximately 1.40 pm, a further note was received from the jury which was marked MFI 8 and which was provided to the court shortly before 2 pm. The note stated, " We cannot reach a unanimous verdict ". A discussion then took place between his Honour and counsel as to the appropriate response to this latest note. Reference was made by counsel to s 56 of the Act which provides as follows: " 56 Discharge of jury that disagree in criminal proceedings (1) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict or a majority verdict under section 55F. (2) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may not discharge the jury under this section if it finds, after examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict under section 55F." 13Section 55F is relevantly in the following terms: " 55F Majority verdicts in criminal proceedings (1) This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons. (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. (3) In this section: majority verdict means: (a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or (b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned. unanimous verdict means a verdict agreed to by all members of the jury." 14It is at this point that the trial process took a turn for the worse. It appears that the trial judge and counsel considered it necessary, the jury having indicated that it could not reach a unanimous verdict, to engage s 56(2) and, for that purpose, to examine on oath one of the jurors as to whether it was likely that the jury could reach a majority verdict. Although there was some confusion in the exchanges between his Honour and counsel, it appears that the focus of attention at that point may have been upon the discharge of the jury. Hence the enquiry appears to have been for the purpose of s 56(2) although that involved compliance with the requirements of s 55F(2). 15Accordingly, when the jury returned to court at 2.20 pm, the foreman entered the witness box, was sworn and the following exchange occurred: "HIS HONOUR Q. Now, your most recent note indicates that you believe that you are unable to reach a unanimous verdict. The first question I need to ask you is that, is that the situation, that you are deadlocked and even if you were to be given more time you believe that you would not be able to reach a unanimous verdict, is that correct? A. That is correct. Q. The second question is this, in New South Wales there is the provision for a majority verdict. The circumstances in which the Court would be permitted to take a majority verdict have not yet arisen. However, this is a question I need to ask you. The majority verdict in New South Wales is a verdict of - sorry, is a situation where there are eleven persons agree, so it is an eleven to one majority verdict. Without indicating the type of division that exists amongst you by way of numbers, without indicating that, can I pose this question to you. If you were to be given more time to you think there would be any possibility of reaching a majority verdict? A. I do. I do believe that." 16It is to be noted that at this point (2.20 pm), the jury had been out, but not necessarily deliberating, for only 4 hours and 33 minutes. His Honour then asked the jury to leave the court which it did at some point between 2.20 pm and 2.32 pm. Further discussion then occurred between the trial judge and counsel as to what further direction his Honour should give the jury. Notwithstanding that his Honour was referred to and apparently read the decision of this Court in RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100, when the jury returned at 2.32 pm, his Honour directed them in the following terms: "Sorry to keep you outside, ladies and gentlemen. The next direction I give you you may well find unsatisfactory. However, it is consequent upon the responses to the two questions I asked of your foreperson a few moments ago. The first was that would it be unlikely, extremely unlikely, that given more time you would ever be able to reach a unanimous verdict and you responded yes. The next question I had to ask and advise you that in this state there are circumstances in which a court can take a majority verdict of eleven to one, and in indicating that to you I had to pose the question given more time do you think it would be at all possible whether a majority verdict may be reached, and you indicated in the affirmative that it would be possible. As a result of that I have to tell you that the circumstances in which I can take a majority verdict have not yet arisen in this case. Accordingly, the only direction that I can now give you is that you should continue on with your deliberations and you should strive to reach unanimity. Of course, that is subject to the direction that I gave you earlier which is still applicable, that is of course you are to give every consideration to the views and opinions of others. However, consistent with your oath or affirmation as a juror you of course could not join in a verdict if you did not honestly and genuinely think it is the correct one. But at this stage, members of the jury, I have to ask you just to continue your deliberations in that vein seeking once again to reach unanimity and I can say nothing further to you at this stage. As I said, that direction may well be unsatisfactory to you, but at law that's the only direction I can give you. Thank you." 17The jury retired to further consider its verdict at 2.35 pm. It should be noted that this was the first occasion on which the jury had directly been informed by the trial judge as to the possibility of his receiving a majority verdict, although it was semaphored to them in the second question put to the foreman set out at [15] above. 18It would appear from the transcript that shortly after the jury retired at 2.35 pm, it sent a further note to the court, which was marked MFI 9 and was timed at 2.50 pm. It stated: "Your honour, we cannot reach a unanimous verdict. We have reached a majority 11/1 verdict. With all due respect, we require no more time to deliberate as we have reached a final decision." 19There was then further discussion between the trial judge and counsel in relation to the note which revolved around whether the jury should be informed as to when a majority verdict could be taken. Reference was made to the minimum period of deliberation of 8 hours referred to in s 55F(2)(a), it being stated that the 8 hours would expire at approximately 5.50 pm. Discussion then took place as to whether the jury should be required to continue its deliberations until that time, or whether they should be requested to return on the following Monday. 20Upon the jury returning to court at 4 pm, the trial judge directed them in the following terms: "Ladies and gentlemen I can understand your exasperation at this stage of still being kept here. I will try to, as you are probably aware the way in which I have couched the directions to you, the law restricts me as to what can be said to jurors under these circumstances. Now what you will remember is that I said that it is possible for the Court to take a verdict that is not unanimous, that is a majority verdict of eleven to one under certain circumstances and I said on the last occasion that the circumstances in which I could take a majority verdict had not yet arisen. As a result of what you have informed me in the note which I marked MFI 9 I think it is only appropriate and we have been discussing this. I think that it is only appropriate that I tell you that what those circumstances are. The law prescribes that a Court cannot take a majority verdict until the jury have been out for what the Court considers an appropriate time for deliberation and that time must be not less than eight hours from the time they first went out to consider their verdict. So that has been the problem. I think you went out at ten to ten this morning so that period of eight hours would be at ten to six tonight and this is a mandatory requirement. There is not a thing I or anybody else can do about it. We are not able to accept the verdict until that eight hours has passed, as strange as that may seem to you. So I am only left with the alternative of saying that you can remain here for that further period of time or you can disperse now and come back on Monday morning even at nine o'clock if you like for that remainder which would be about an hour and fifty minutes before I could receive that majority verdict and I appreciate that may cause lots of difficulties. I do not know if you want to just perhaps go outside and have a chat amongst yourselves as to what you think is appropriate as far as your circumstances are concerned." 21The jury then left the court at 4.03 pm and returned at 4.06 pm, indicating that they would like to stay until 5.50 pm. They retired again at 4.07 pm, but the transcript does not reveal what thereafter occurred. However, it was generally common ground that at approximately 5.55 pm, the jury returned to court and the foreman of the jury delivered a majority verdict of guilty on both counts. 22In the absence of a transcript of what occurred after 4.07 pm, affidavit evidence was placed before this Court to the effect that at approximately 5.50 pm, before the jury returned, the trial judge stated words to the effect that he considered 8 hours to be a " reasonable time " for the purpose of s 55F(2)(a). However, what his Honour apparently did not consider was whether the jury had in fact been actually deliberating for not less than 8 hours. Certainly, 8 hours had elapsed between the time it first retired to consider its verdict at 9.47 am and the time it returned and delivered its majority verdict at 5.55 pm. However, within that 8 hours, the jury had returned to court on a number of occasions and had had lunch, but no consideration was given by his Honour as to whether he could be satisfied that during those periods, the jury was in fact deliberating. 23A conflict in the evidence arose with respect to whether, when his Honour stated that he considered 8 hours to be a " reasonable time ", he had also stated that he considered that 8 hours was reasonable having regard to the nature and complexity of the issues at trial. However, it is unnecessary to resolve that conflict, except to emphasise that when determining whether the court considers that the jury has deliberated for the necessary period, regard must be had to the nature and complexity of the issues which they are required to resolve.

The appellant did not receive a trial according to law 24Although, as the appellant submitted, it is not without controversy as to what may be included and excluded when calculating the minimum time span for deliberation, nevertheless judicial consideration is required to establish that the jury has in fact deliberated for not less than 8 hours and, if necessary, for a longer period where the nature and complexity of the issues so requires. Accordingly, the statutory pre-condition referred to in s 55F(2)(a) is not satisfied by a trial judge simply acting upon the lapse of the minimum period of 8 hours, let alone 8 hours since the jury first retired. This point was well made by Grove J, with whom Hulme and Simpson JJ agreed, in AGW v Regina [2008] NSWCCA 81 in the following terms: "24 It was observed that in the present case the exchange between counsel and the bench showed an inclusion of the time when the jury were provided with lunch in making the calculation of eight hours. Inclusion of some period during which a meal break is taken is not without possible controversy: R v VST [2003] 6 VR 569. It is of course open to contemplation that jurors may deliberate whilst dining but as no attention at all was paid to making a determination of what period was reasonable, it is not necessary to finally determine the matter. I would comment that, in making a determination of what is a reasonable effluxion of time as is required by the statute, I would be reluctant always to make an assumption for that purpose that a time spent dining was necessarily also a time spent in deliberation. 25 In making that comment I am conscious that in respect of similar provisions it has been held that the time during which a jury is returned to the courtroom for asking a question of the judge: R v Adams & anor (1968) 52 Cr App R 588 or receiving supplementary directions or reminders of evidence: R v Rodriguez [1998] 2 VR 167, on which occasions the jury is literally not deliberating, are not excluded from the calculation of whether the minimum time point has been reached. It has also been held that when the jury eat a light lunch and remain in the jury room there is no requirement to calculate a period of exclusion: R v Doherty [1999] 3 VR 435. There can be no inquiry for this purpose about what occurred in the privacy of the jury room and in complying with the obligation to determine a reasonable period of deliberation it would be prudent for trial judges to avoid the risk of miscarriage by refraining from acting soon after the estimated expiry of eight hours where there is any ambiguity about a component part of that minimum span of time." 25In the present case, it is apparent that neither the trial judge nor counsel exercised the prudence to which Grove J referred in the last sentence of [25] of his reasons. This, of itself, involved a failure to comply with the procedural requirements of a trial as to constitute a miscarriage of justice, in the sense that the appellant did not get a trial according to law. 26In our opinion, the course taken by the trial judge at [15] above was premature. No enquiry of the jury for the purpose of s 56(2) should have been made by his Honour until the point had been reached at which a majority verdict was capable of being taken. Accordingly, he erred in asking the foreman at the time he did as to whether there would be any possibility of reaching a majority verdict of 11:1. 27At [16] above, we noted that the first occasion on which the jury was informed by the trial judge as to the availability of a majority verdict was in the direction which followed his Honour's engagement of the requirements of s 55F(2)(b). Given that that possibility had not previously been referred to except when his Honour posed to the foreman the second question referred to at [15] above, this direction when coupled with that question and the foreman's answer would have indicated to the jury that a majority verdict was, in effect, a real possibility, although the time for taking such a verdict had not yet arisen. In our view, the question and the direction which followed it had the potential to distract the jury from its primary obligation to reach a unanimous verdict and thus undermined the Black direction referred to at [9] above. This was sufficient of itself to cause the trial to relevantly miscarry. 28However, there were other significant problems which lead to the same conclusion. Section 55F(2) provides for two mandatory requirements which are prerequisites for the returning of a valid majority verdict: RJS at [18]-[26]. The relevant principles were extensively discussed by McClellan CJ at CL, with whom James and Davies JJ agreed, in Ingham v R [2011] NSWCCA 88 at [20]-[87]. In particular, that decision was the subject of a Special Bulletin amending the Suggested Direction at [8-070] in the Criminal Trial Courts Bench Book. 29In the present case, the Crown, in effect, conceded that neither limb of s 55F(2) was complied with. As to subpara (a), and apart from his Honour's failure to consider whether any particular periods should have been excluded from the mandatory minimum of 8 hours deliberation, it is clear that in his direction to the jury at 4 pm referred to at [20] above, his Honour, in effect, invited the jury to cease their deliberations at that time and to simply sit out the period from 4 pm until 5.50 pm, at the expiration of which he would receive a majority verdict. We would agree with the Crown submission that the nature of those directions would raise considerable doubt as to whether any deliberations of the jury after it retired at 4.07 pm were likely to have been conducted with a view to achieving unanimity. Rather, they were in effect informed that they should simply wait out the remaining period of 1 hour and 50 minutes and then deliver a majority verdict. 30The foregoing illustrates the danger of a trial judge prematurely and erroneously engaging with the jury for the purpose of s 55F(2) before the point is reached at which a majority verdict is capable of being taken. As we have already observed, in the present case the course taken resulted, or appears to have resulted, from a misunderstanding by the trial judge and counsel as to the proper time to engage s 56(2). No question of discharging the jury due to their inability to reach a unanimous verdict can arise unless and until the requirements of s 55F(2)(a) have been satisfied. That never occurred in the present case. 31Of further concern was the trial judge's apparent implementation of s 55F(2)(b) at 2.20 pm, to which reference has been made at [15] above. As the Crown conceded and as we have observed at [26] above, the direction then given to the jury at 2.32 pm referred to at [16] above, may also have indicated to the jury that their deliberations were thereafter affected by the terms of the second question posed by the trial judge, notwithstanding that the direction stated that the circumstances in which a majority verdict could be taken had not yet arisen. At this point, although the jury were directed to continue with their deliberations and to strive to reach unanimity, that direction was given in the context of the foreman making it clear that a unanimous verdict could not be reached, but that a majority verdict could. His Honour informed the jury that he could not take a majority verdict at that time; the implication being that the jury should continue with their deliberations until such time as they were informed by his Honour that a majority verdict could be accepted. The distraction from their primary obligation to which we have referred at [26] above thus becomes apparent, as they knew that it was just a matter of time before such a verdict would be received. 32We have already observed (at [26] and [30] above) that the exchange between the trial judge and the foreman set out at [15] above was premature. This was because of the trial judge's implementation of s 55F(2)(b) before s 55F(2)(a) had been satisfied. His Honour had given a Black direction at 12.10 pm, but a mere 2 hours later and long before the jury had been deliberating for at least 8 hours, extracted from the foreman that, although the jury was deadlocked and could not reach a unanimous verdict, it could reach a majority verdict. In our view, this clearly undermined the Black direction and was a significant error of process. Although not stated at the same time as that direction was given, it followed relatively soon thereafter and could not have had any effect but to modify the exhortation of the necessity to reach a unanimous verdict which the Black direction was intended to emphasise and encourage. The authorities well establish that once a Black direction has been given, at the very least care should be taken to ensure that it is not thereafter qualified by other directions given to the jury unless and until the mandatory requirements of s 55F(2)(a) have been satisfied. 33In our view, it follows from the foregoing that when a Black direction is given in response to an indication by the jury that it is deadlocked or otherwise unable to reach a unanimous verdict, it would be prudent that, generally speaking, no subsequent direction should be given which does other than continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum 8 hours of deliberation (and if necessary, a greater period having regard to the nature and complexity of the issues in the case) and that this is so notwithstanding that the jury may continue prior to the expiry of that period to advise the court that it is unable to reach a unanimous decision. In other words, if the jury indicates it is deadlocked before the time has come to consider a majority verdict, it should always be encouraged to continue its deliberations and to strive for a unanimous verdict without being advised that the time for accepting a majority verdict is imminent, or that such a verdict may be taken after the expiry of a particular period of time ( RJS at [23] and note [24]). 34This is not to say that it is inappropriate for a trial judge to make a passing or brief reference to majority verdicts in the summing up as contemplated by, and in the manner suggested in, [7-020] of the Criminal Trial Courts Bench Book. The reasons for this are referred to in Ingham which contains an extensive discussion of the circumstances in which it is or is not appropriate for a trial judge to refer the jury to the possibility of a majority verdict. It is unnecessary to add to that exegesis in the present case where the trial judge's errors are not in issue and, in any event, where he did not include a reference to that possibility in his summing up. 35In summary, the problem in the present case was that the trial judge, apparently for the purposes of s 56(2), explained to the jury the majority verdict formula and enquired of the foreman as to whether a majority verdict was possible well before a majority verdict was available in law. This error of process was then compounded by his Honour advising the jury as to the precise time when a majority verdict could be taken and inviting them to wait out the expiry of the minimum period of 8 hours upon the implied assumption that no further deliberations would be undertaken and without consideration of whether 8 hours of deliberation by the jury had occurred. These were clear failures to comply with the requirements of s 55F(2) as a consequence whereof the appellant did not receive a trial according to law. 36It was for the foregoing reasons that we accepted the Crown's concession that the directions of the trial judge to which we have referred constituted a miscarriage of justice and joined ordered that his conviction be quashed.

The order for a new trial 37The relevant principles with respect to the ordering of a new trial where an appeal against conviction succeeds were conveniently and accurately summarised by Johnson J, with whom McCallum J agreed, in Haoui v Regina [2008] NSWCCA 209 in the following terms: "164 The question arises as to whether this Court should order a new trial: s.8(1) Criminal Appeal Act 1912 . Section 8(1) confers a broad discretion to be exercised in accordance with settled principles: The Queen v Taufahema (2007) 228 CLR 232 at 249 [35]. It is appropriate to bear in mind (by reference to the separation of powers) the normal primacy of the prosecution authorities, within the executive government, in determining whether or not to put an accused person, whose first trial had miscarried, up for retrial: The Queen v Taufahema at 281 [144]. In determining whether to grant a new trial, the Court should take into account both the objective seriousness of the offence and the penalty likely to be imposed if the accused were again to be convicted: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630. A factor which may point against an order for a new trial is whether a significant part of a sentence has been served: The Queen v Taufahema at 256 [55]." 38In the present case, at the time we made the orders quashing the appellant's conviction, he had served only two-thirds of the non-parole period of imprisonment to which he had been sentenced. In these circumstances, we considered that it was a matter for the prosecuting authorities to determine whether or not, the appellant's trial having miscarried, he should be put up for retrial. This course was not opposed by the appellant and the Court ordered a new trial accordingly.

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