Ingham v R

Court of Criminal Appeal (NSW)|2010-08-09|Before: McClellan CJ, James J, Davies J

The applicant's submissions 82The applicant's submissions may be summarised as follows: (a) The applicant had a common law right to a unanimous verdict (the nature of which has been set out at [20] above). The terms of s 55F of the Jury Act set out essential preconditions (which were outlined at [21]) that had to be satisfied before the trial judge was able to accept a majority verdict. Unless and until those preconditions had been fulfilled, the applicant retained his common law right to a unanimous verdict. (b) The trial judge's directions (extracted at [39] above) served to significantly undermine essential features of the applicant's fundamental common law right to a unanimous verdict at a stage in the proceedings where the essential preconditions of s 55F had not yet been met, and (prospectively) may never have been met. One of those essential features was the deliberative process inherent in the requirement to reach unanimity, as opposed to any encouragement for jurors to simply "wait out" any dissenting view. The importance of that deliberative process was emphasised in the extract from Cheatle at [20] above. (c) Applying the relevant principles of statutory interpretation (referred to at [55] above) this Court would not read the amendments to the Jury Act as found in s 55F in a way that would unnecessarily derogate from the applicant's fundamental common law right prior to the fulfilment of the preconditions in s 55F. (d) There is conflicting authority on the issue of whether or not a jury should be told anything at all about majority verdicts prior to the fulfilment of the s 55F preconditions set out at [21] above. The view that a jury should be told nothing about majority verdicts unless and until such preconditions are fulfilled finds support in:

The obiter remarks of Spigelman CJ (Simpson and Harrison JJ concurring) in RJS at [25]-[26] (referred to at [60] above);
The obiter remarks in Hanna of James J at [23], Hoeben J at [25]-[26] and Hall J at [73]-[74] (referred to at [66]-[68] above);
The decision of the Western Australia Court of Criminal Appeal in Pearmine (referred to at [77]-[79] above);

The submissions of the Crown 83The Crown's submissions may be summarised as follows: (a) The procedure followed by the trial judge was in accordance with s 55F of the Jury Act and was consistent with the suggested directions in the Bench Book . (b) Nothing that the trial judge said as part of the direction under challenge watered down the plain instruction that a unanimous verdict was necessary. In relation to the subject of majority verdicts, his Honour merely told the jury that "[t]he circumstances in which I may take a majority verdict have not yet arisen". In this context, the following comments by Barr J in Ngati at [29] are applicable: "...The jury were told a second time that the circumstances in which a majority verdict might be accepted had not yet arisen. His Honour gave no indication when, or, I think, even whether, those circumstances would arise. In my view nothing his Honour said was calculated to water down the plain instruction that a unanimous verdict was necessary..." (c) The issues the applicant raises such as the common law right to a unanimous verdict and the relevant principles of statutory interpretation concerning statutory curtailment of that right were considered by the legislature in enacting s 55F. (d) The applicant appears to be arguing that the jury should be told nothing at all about majority verdicts unless and until all the essential preconditions identified in s 55F have been fulfilled. This argument of necessity carries with it a contention that the suggested summing up and "perseverance" Bench Book directions require amendment as each of those directions includes reference to majority verdicts. (e) In giving the direction which is challenged by the applicant, the trial judge did not refer to the circumstances in which a majority verdict could have been returned by the jury. Accordingly, his Honour did not make the errors referred to in the two decisions of the New South Wales Court of Criminal Appeal relied upon by the applicant, namely:

RJS in which the problem (referred to at [21]-[22]) was that the trial judge's Black direction to the jury to the effect that they should continue to try to reach a unanimous verdict was "undermined by the fact that at the same time his Honour directed the jury that in 15 minutes they could in fact resolve upon guilt with a majority of 11".
Hanna in which each member of the Court expressed reservations about the trial judge having given a Black direction and at the same time having said: "...you having now been deliberating for eight hours, the law provides that I can accept a majority verdict which would require eleven of you of the twelve to agree if you cannot reach unanimous verdict". (f) The applicant's reliance on the obiter remarks of Spigelman CJ in RJS and James, Hoeben and Hall JJ in Hanna is misguided because those remarks do not support the applicant's argument that the jury should be told nothing at all about majority verdicts unless and until all the essential preconditions have been fulfilled. (g) In the Victorian case of Muto the majority verdict provisions pursuant to s 47 of the Juries Act 1967 (Vic) were examined by Winneke P, Callaway JA and Southwell AJA, and a recommendation was made at [74] for certain changes to the Black direction where the preconditions for the taking of a majority verdict were not yet satisfied. With one minor exception, namely, the removal of the words "before they may be discharged" in the penultimate paragraph of the suggested perseverance direction at [56], the Bench Book has adopted those modifications. The applicant exhorts this Court to amend the Bench Book in accordance with the Victorian model direction, however this has already occurred.

The trial judge did not make an error 84In my opinion the applicant has not established the trial judge erred because he referred to the availability of majority verdicts prior to the fulfilment of the preconditions set out in s 55F (Ground 1(a) of the applicant's Notice of Appeal against Conviction) for the following reasons: (a) The jurors in the present trial were conscious of the potential availability of a majority verdict from the moment that they retired to consider their verdict, including immediately prior to the time at which the trial judge gave the "perseverance direction" the subject of this application. The trial judge referred to the potential availability of a majority verdict during the course of summing up, the relevant paragraphs of which are extracted at [23]. As already mentioned at [24] the applicant makes no complaint about that reference. (b) Even leaving to one side the trial judge's reference to a majority verdict during the course of his summing up, it is likely that, in light of the fact that majority verdicts had at the time of the trial been available in this State for almost two years, at least one if not more of the jurors would have known of their potential availability. Indeed, as noted at [41], the trial judge initially told counsel that he would leave out reference to majority verdicts in the challenged direction, but decided to include a reference after the Crown prosecutor requested that he "comply with the draft direction as it is recommended in the bench book because of the situation being that some of the jurors might be aware that there are majority verdicts available in NSW ...". In this regard, subject to the comment I make at [84g] below, the remarks of Doyle CJ (Lander and Bleby JJ concurring) in the South Australian Court of Criminal Appeal decision in R v K to which reference was made at [76] are apposite. (c) If it is accepted that t he jurors in the present trial were conscious of the potential availability of a majority verdict immediately prior to the time at which the trial judge gave the direction the subject of this application, then a failure on the part of the trial judge to make any reference at all to the issue of majority verdicts would have risked confusion amongst the jurors, one or more of whom may have raised the issue in the course of jury deliberations. Such a failure may also have diminished the jury's confidence in the trial judge. (d) This Court's decisions in RJS and Hanna are different from the present case. In both of those cases the trial judges gave "perseverance directions" that included information as to the time at which a majority verdict could be accepted (see [58] - [ 68 ] above) whereas in the present matter the trial judge merely stated that the circumstances in which his Honour was able to take a majority verdict had "not yet arisen" (see [39] above). The trial judge in the present matter neither identified the nature of those circumstances nor the time at which they would arise. (e) The obiter remarks of Spigelman CJ (Simpson and Harrison JJ concurring) in RJS referred to at [60] and James, Hoeben and Hall JJ in Hanna referred to at [66]-[68] do not support the proposition that the jury should be told nothing at all about majority verdicts unless and until all the s 55F preconditions have been fulfilled. Those remarks are limited to the proposition that a trial judge should not give a jury a Black direction and at the same time direct that the jury may return a majority verdict after a certain specified period of time has elapsed (as in RJS ) or without the need for any further deliberation (as in Hanna ). I appreciate that Spigelman CJ said in RJS at [22]: "No further direction [in addition to the Black direction] should have been given at this time" and James J said in Hanna at [23]: "in the present case it might have been a preferable course for the trial judge to have given a Black direction without referring to the possibility of a majority verdict", and that those remarks, when taken in isolation, may convey the impression that a trial judge should make no reference whatsoever to majority verdicts at any time before the fulfilment of the s 55F preconditions. However, when those remarks are read in context it is clear that they relate to the specific directions given by the trial judges and not to any direction that makes reference to majority verdicts. This is underscored by Hall J's framing of the relevant question in Hanna at [73] as "whether the trial judge ought to have first given a Black direction and not, at the same time, to have made reference to the fact or the circumstances in which a majority verdict may be returned by the jury " (my emphasis). (f) The terms of the direction given by the trial judge in Ngati were essentially the same as those given in the present matter in that the trial judge directed the jury that the circumstances in which a majority verdict might be accepted had "not yet arisen" but gave no indication when or even whether those circumstances would arise (see [62] above). In this context, Barr J's comment at [29]: "In my view nothing his Honour said was calculated to water down the plain instruction that a unanimous verdict was necessary" is applicable to the present matter. (g) As I have indicated there are differences between the legislative provisions relating to majority verdicts in New South Wales and the equivalent provisions in South Australia, Western Australia, the Northern Territory and particularly Queensland. In any event, the decisions of Pearmine and McClintock should be distinguished from the present matter. Pearmine was concerned with the issue of whether or not the trial judge erred in failing to advise the jury before they retired to consider their verdict that, after three hours of deliberation, his Honour would be able to accept a majority verdict. The case did not relate to the terms of a direction given by a trial judge after a jury had been deliberating for a period of time. Furthermore, the remarks of Burt CJ (extracted at [77]) to the effect that it is a better practice to tell the jury that a majority verdict can be taken when the time arrives at which it can be taken do not address the present situation in which the trial judge merely told the jury that the circumstances in which a majority verdict could be taken had not yet arisen and, importantly, did not go on to specify when such circumstances would arise. McClintock was concerned with the issue of whether or not the preconditions for the taking of a majority verdict had been satisfied prior to the trial judge directing the jury to attempt to reach a majority verdict. The case was not concerned with the separate issue of whether or not a trial judge should refer to majority verdicts at any time before the preconditions are fulfilled and is accordingly of no present relevance. (i) In CEV the Northern Territory Court of Criminal Appeal held at [16] that "an impression should not be created before the time after which a majority verdict must be accepted, that if jurors are unable to arrive at a unanimous verdict, the view of the majority will ultimately prevail". This statement does not support the proposition that the potential availability of a majority verdict should in no circumstances be mentioned to the jury prior to the satisfaction of the preconditions. This is plain from the Court's remarks at [17] to the effect that, if a jury asks what is the procedure for majority verdicts, they should be given a direction along the lines that the circumstances in which the court may take a majority verdict have not yet arisen and, until they do, the jury should consider that its verdict must be unanimous. 85In my opinion the applicant has also failed to establish that the trial judge erred because he referred to the availability of majority verdicts at a time and in a manner which failed to adequately safeguard the applicant's common law right to a unanimous verdict and accordingly undermining the effect of the Black direction (Ground 1(b) of the applicant's Notice of Appeal against Conviction). My reasons are: (a) The Victorian Court of Appeal decision in Muto is distinguishable. In Muto the trial judge gave a direction to the jury before they retired to the effect that they would be able to return a majority verdict if they were unable to reach a unanimous verdict after at least six hours deliberation (see [70] above). By contrast, in the present matter the trial judge gave the challenged direction after the jury had been deliberating for at least eleven and a half hours and in response to a note from the jury informing his Honour that no amount of deliberation would lead to a unanimous verdict and requesting advice as to how to proceed. Furthermore, the only reference made by the trial judge in the present matter to majority verdicts was to the effect that the circumstances in which his Honour was able to take a majority verdict had "not yet arisen". His Honour neither identified the nature of those circumstances nor the time at which they would arise. Moreover, in contrast to Muto where "[u]nanimity was never held out to the jury as anything more than an ideal", the trial judge in the present matter emphasised that the jurors "should still consider that your verdicts must be unanimous". (b) In my opinion, the failure of the trial judge to include the words "and may not arise at all" (which form part of the Victorian model direction set out at [72] above) did not leave the jury with the notion that it was simply a matter of time before a majority verdict could be accepted. The words "[t]he circumstances in which I may take a majority verdict have not yet arisen" did not convey an impression either that such circumstances would necessarily arise in the future or that their existence would be entirely dependent on the passage of a specific period of time. (c) The trial judge's direction did not fail to make clear to the jury that his Honour had a discretion as to whether or not to accept a majority verdict. The use of the word "may" in the phrase "[t]he circumstances in which I may take a majority verdict have not yet arisen" plainly indicated that the trial judge was not obliged to accept a majority verdict even if such a verdict was returned by the jury. (d) The trial judge in Ngati gave a direction in terms almost identical to those in the present matter. That direction was not found by this Court to have involved any error. 86It is significant that no issue was raised with respect to the direction at the trial. No doubt this was because defence counsel did not believe that in the circumstances there could be any concern about the trial judge's statement. In my opinion that view was correct. I would apply rule 4 and refuse leave to appeal. 87Since preparing these reasons I have become aware of the decision of this Court in R v Doklu [2010] NSWCCA 309 which considered a similar question and resolved it in a similar manner.

Application for leave to appeal against sentence 88The sentences imposed on the applicant were:

In respect of charge 2, digital penetration involving CBS, a non-parole period of ten years, from 20 October 2006 to 19 October 2016, and an additional period of three years and four months, which will expire on 19 February 2020.
In respect of charge 3, an act of indecency on CBS, a fixed term of eight years, from 20 October 2006 to 19 October 2014.
In respect of charge 4 of sexual intercourse (cunnilingus) upon CBS, a non-parole period of fifteen years, from 20 October 2006 to 19 October 2021, and an additional period of five years to expire on 19 October 2026.
In respect of charge 5, penile penetration upon CBS, a non-parole period of sixteen years, from 20 October 2006 to 19 October 2022, and an additional period of five years and four months to expire on 19 February 2028.
In respect of charge 6, attempt to have sexual intercourse upon CBS, a non-parole period of nine years, from 20 October 2006 to 19 October 2015, with an additional period of three years to expire on 19 October 2018.
In respect of charge 7 of sexual intercourse with JAW (fellatio), a non-parole period of fifteen years, from 20 October 2007 to 19 October 2022, with an additional period of five years to expire on 19 October 2027.
In respect of charge 8, indecent assault on JAW, a non-parole period of eight years, from 20 October 2007 to 19 October 2015. No additional period was imposed.
In respect of charge 9, penile penetration of JAW, a non-parole period of sixteen years from 20 October 2007 to 19 October 2023, with an additional period of five years and four months to expire on 19 February 2009.
In respect of charge 10, sexual intercourse by way of digital penetration of JAW, a non-parole period of ten years, from 20 October 2007 to 19 October 2017, with an additional period of three years and four months to expire on 19 February 2021.
In respect of charge 11, digital penetration of JAW, a non-parole period of ten years, from 20 October 2007 to 19 October 2017 with an additional period of three years and four months to expire again on 19 February 2021.
In respect of charge 12, sexual intercourse by way of cunnilingus on JAW, a non-parole period of fifteen years, from 20 October 2007 to 19 October 2022 with an additional period of five years to expire on 19 October 2027. 89The sentencing judge recognised that offences no 2, 3, 4, 5 7, 8, 9, 10, 11 and 12 each attract a standard non-parole period. His Honour thought that period was variously 15 or 8 years. However, with respect to offence no 3 and offence no 8 his Honour was in error, the non-parole period provided by the statute being 5 years and not 8 years. 90The sentencing judge recognised that having regard to his understanding of the appropriate standard non-parole periods there was an anomaly created by the operation of s 44 of the Crimes (Sentencing Procedure) Act 1999 because if the standard non-parole period should be applied it would not be possible to provide the period of parole which the legislation required. 91The sentencing judge said: "Firstly, I consider the overall narrative of what occurred on 13 and 14 October 2006 and all the surrounding circumstances which relate to each of the individual offences. I consider, for example, the background of the relationship between the offender and CBS's family, between the offender and CBS, as well as the background of the relationship which developed between the offender and JAW arising out of her relationship with CBS. I consider the sexual activities involving CBS on the weekend before, so that these offences, in my estimation, were not isolated incidents, not spur of the moment offences when the offender was suddenly overcome with sexual fantasy and drive. I take into consideration the position of trust enjoyed by Ingham vis--vis the CBS's family and both victims. He abused his position of trust. He ingratiated himself with a family, and with the children by entertaining them, by babysitting them, by showering presents on them, and then abusing that trust. I consider the degree of penetration and planning for the offence. The offender had had no sexual partner for two years, as appears from exhibit 1, a report from W John Taylor dated 31 July 2008, and yet he had condoms in his overnight bag. I consider the fact that all of the offences were committed in the presence of the other complainant, who on each occasion was under the age of eighteen years, and observed by each as her friend was being assaulted. I take account of the fact that the offences were committed in the home of one of the victims, which is also an aggravating factor; and that the offences were committed for the offender's own sexual gratification. The indecent assaults were carried out in the context of an intention to perform penile penetration, cunnilingus, digital penetration and fellatio. The overall sexual activity involved all those activities, as well as the application of a condom to at least one of the victims, and multiple acts over a period of two days. I consider that overall context when coming to a decision as to the objective seriousness of each offence, and where each one is positioned on a spectrum either side of a medium range offence. There was an element of force involved in at least one of the offences, where the offender placed his hand over the mouth of JAW to prevent detection, but there was no threat to ensure silence or nondisclosure. I consider also the two different victims. CBS was nine years and three months; JAW was just eight years old. The difference in age makes some difference in my assessment, since one girl was one year and three months younger than the other. It seems to me that the offences committed on JAW were somewhat more serious (because of the age at least) than those on CBS (though it is difficult to determine how much more) and in considering this factor, I am encouraged by the decision in R v AJP (2004) 150 A Crim R 574, and RJA [2008] NSWCCA 137. I also consider that neither victim seems to have suffered serious physical damage. JAW presented no medical evidence on physical damage; CBS's medical evidence was of some redness - though I do note, young and all as the girls were at the time, there are victim impact statements in which CBS states, inter alia that when Heath was doing - "Those things to me, I thought I was not a person. I felt embarrassed and ashamed. I couldn't tell anyone because I thought I would get into trouble". She said that she was very angry because Heath told her to do those things and what to do, and did not care about her..." "In coming to some assessment of the objective seriousness and the place of each offence in relation to the mid range offence, I also take into account that there is no evidence as to how long each offence lasted; no evidence of any full penile penetration, only limited entry into the genital region. There is evidence however, of the nature of the sexual act, which can also be important since in general terms at least, penile penetration is considered more serious than digital; and in general terms, full penile penetration more serious than the fellatio or cunnilingus, but only in general terms, so that circumstances of course vary cases". 92In relation to the objective seriousness of the offences his Honour made the following findings: "In respect of charge 2 , from the objective circumstances and factors I have considered, it seems to me that the digital penetration is below the mid range but only just. In respect of the indecent act (charge 3) of licking the breasts of CBS, I find this is a mid range offence. In respect of charge 4 , the sexual intercourse with CBS by way of cunnilingus, I find that is a mid range offence. In respect of charge 5 of penile penetration with CBS, I find this offence is above the mid range. In respect of charge 7 of fellatio with JAW, I find this to be mid range offence. As is offence 8 , an indecent assault with JAW whereby the offender sucked her breasts, a mid range offence. In respect of charge 9 of sexual intercourse by way of penile penetration of JAW, I find this to be above the mid range. In respect of charge 10 of digital penetration of JAW, I find this is below the mid range, but again only just. In respect of offence 11 of digital penetration, again of JAW, I find this too is below the mid range, but only just. And finally in respect of the act of sexual intercourse on JAW by way of cunnilingus, offence 12 , I find this offence is a mid range." 93With respect to subjective matters his Honour said: "The offender has a prior criminal record of two offences in 1998 or 1999. He has expressed no remorse or contrition, no sorrow. Of course he has maintained his innocence. There is no question of a guilty plea, and therefore no deduction to be drawn, and no discretion with regard to the standard non-parole period where it can be used as a guideline, or a consideration that must be borne in mind, but not a legislative requirement. As far as I can see at the moment, the damage inflicted on the two victims is not substantial in the sense that it is more than one would expect from such offences - certainly no physical damage to speak of. As to the emotional and personal damage, one may not know of that for a long time. It cannot be said that this offender is unlikely to reoffend. Mr Taylor identifies a moderate risk of recidivism. Since these are his second offences, and since he is unable to confront his problem, it seems to me that one cannot confidently say he is unlikely to reoffend". 94His Honour then concluded that he was bound to apply the standard non-parole periods and said: "I do not take account of the fact that he will need to serve his sentence on protection without some evidence of where that is going to be, and the conditions under which he will serve. I do not consider there are any special circumstances, or any mitigating circumstances which would allow me to drift away from the standard non-parole period; he is in all ways a very ordinary citizen. Ingham has no disability; no drug problem; no psychological illness; no excuses whatsoever for what he has done; no expression of remorse - just an ordinary man. So it seems to me that I am bound by the standard non-parole periods where I find the offences in mid range". 95The appellant advanced a number of grounds of appeal:

Ground 1: His Honour erred in determining the non-parole period and then the head sentence. In doing so he failed to pay proper regard to the maximum penalty.

Ground 2: The sentencing judge erred in finding if he assessed the offences as in the midrange "then it seems the legislation gives me, no, no discretion at all. My discretion is in the assessment of it".

Ground 3: For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table Crimes (Sentencing Procedure) Act 1999. His Honour erred in sentencing by assessment of a 'mid range' offence. 96The appellant submitted that his Honour erred by not first considering the total term before deciding the appropriate non-parole period. The appellant submitted that the error could be discerned from his Honour's remarks in relation to count 3. As I have indicated his Honour said that he could not impose a non-parole period because if he was to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999, having applied the standard non-parole period, the total term would exceed the maximum defined by the statute for this offence. 97The appellant emphasised the remarks of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v R [2005] HCA 25; (2005) 215 ALR 213 where at [30] their Honours stressed the significance of the maximum term provided by the parliament as a sentencing yardstick. It was submitted that by confining his consideration to the standard non-parole period his Honour had failed to have proper regard to the maximum penalty. 98With respect to the second ground of appeal the appellant submitted that the sentencing judge erred by concluding that where a standard non-parole period applied the legislature had removed the sentencing judge's discretion. His Honour said when sentencing: "As the law stands, because I have decided some of these offences are above the mid range, and some are at the mid range, and because Ingham did not plead guilty, I am in the circumstances very limited room to exercise any discretion to determine the length of the non-parole period. I must exercise the little discretion I have to decide a total sentence, by balancing periods of concurrence and periods of accumulation. 99In relation to ground 3 the appellant submitted that his Honour erred when he said: "I am bound by the standard non-parole period where I find the offences in the mid range." 100It was submitted that his Honour was in error in determining that the standard non-parole period applied to a range of behaviour that could be categorised as "mid range" rather than by assessing the offence against an "an offence in the middle of the range". It was submitted that his Honour effectively broadened the range of behaviour which attracted a standard non-parole period in an impermissible manner. It was submitted that the expression "in the middle of the range of objective seriousness" ought to be understood to mean in the middle (or mid point) of the scale of objective seriousness and not across the "mid range". 101The Crown responded by acknowledging that there were problems with the approach which his Honour took to counts 3 and 8. This was because his Honour understood that the appropriate standard non-parole period was 8 years whereas it was in fact 5 years. However, whether this has ultimately effected the overall sentence will need further consideration. Otherwise the Crown submitted that his Honour's approach to the sentencing was appropriate. His Honour first turned his mind to where in the range of objective seriousness of each offence fell, identifying relevant factors. In this respect the sentencing judge rejected some of the Crown's submissions as to where particular offences lay. His Honour then assessed the relevant subjective factors before determining the appropriate sentence. 102The Crown emphasised that his Honour did not overlook the maximum penalty and drew attention to his Honour's remark that "despite the gross nature of these offences, repulsive, distasteful, disgusting, the penalty is by any standards harsh." 103Apart from the difficulties to which I have referred in relation to counts 3 and 8 I am not persuaded that his Honour has erred as the appellant suggested. The appropriate approach to sentencing when the legislature has provided a standard non-parole period was discussed in R v Way (2004) 60 NSWLR 168 where at [130] the court said: "The approach which we favour is consistent with the disclosed legislative intention that Division 1A of Part 4 was to operate, not by way of any mandate or removal of sentencing discretion, but rather as providing a guideposts, or benchmarks, against which the case at hand could be compared. That is not to say that it should be merely acknowledged in the passing. It takes its place alongside the guideline judgments, and the prescribed maximum sentence for the relevant offence, which are to be taken into account in the same way that sentencing judges are required to take into account the provisions of s 21A, 22, 22A and 23, when exercising their sentencing discretion. 131 What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder the exercise, thereby fettering the important discretion which has been preserved by the Act". 104At [50] the court said: "In a case involving a Table offence, there are now two statutory guideposts or benchmarks or reference points available: namely the maximum sentence (that is, the term of the sentence) which the legislature has prescribed for the offence; and the non-parole period which applies to offences specified in the table". 105In GSH v R; R v GSH [2009] NSWCCA 214 at [48] Latham J emphasised that both the maximum penalty and the standard non-parole period have an important role to play in a sentencing exercise. 106There are obvious difficulties in the literal application of the standard non-parole period when it has been set at a term close to the maximum sentence. However, it is important that sentencing judges bear in mind the emphasis given to the discretion available to a sentencing judge. It may be that in the circumstances of a particular case the standard non-parole period is appropriate even though the statutory proportion cannot be provided. There will be other cases where a substantial period on parole will be appropriate requiring an adjustment of the non-parole period. However, it is important to bear in mind that even without standard non-parole periods there may be cases where the criminality of the offender and his or her personal circumstances require a non-parole period less than the statutory period. 107In the present case a careful reading of his Honour's remarks on sentence does not lead me to the conclusion that his Honour fell into error. He gave careful consideration to the circumstances of each offence and determined that in some cases the appropriate sentence reflected the standard non-parole period provided by the legislature. If, as his Honour determined, this had the consequence that a period on parole was inappropriate for a particular sentence this was within his Honour's discretion. Although it is important to be mindful of the caution in Way that the standard non-parole period should not dominate the whole of the sentencing exercise I do not believe that has occurred in the present case. 108With respect to ground 2 it was made clear in Way at [73] that there is no statutory definition or guide to determining the elements that will bring an offence within the middle of the range of objective seriousness. However, it would be inappropriate to conceptualise such an offence as falling at a mid point. The circumstances of the commission of a particular crime are such that a decision as to whether or not an offence falls within the middle of the range of objective seriousness will not be determined by hypothesising an offence with only a single set of characteristics. The circumstances of individual offences may differ but nevertheless be appropriately described as a mid range offence. 109It is also important to remember the remarks of Spigelman CJ in R v Mulato [2006] NSWCCA 282 at [37] "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open ...". 110I reject grounds 1, 2 and 3.

Ground 5: The sentencing judge erred in finding that "the offences were committed in the home of one of the victims, which is also an aggravating factor" 111In my judgment this ground of appeal is made out. With respect to the present offences the appellant was lawfully present at the premises in which they occurred. 112There is a clear line of authority in this Court that s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 does not operate to aggravate an offence in the present circumstances. In R v Comert (2004) NSWCCA 125 Hidden and Hislop JJ said that in the circumstances of that case where a husband had assaulted his wife it was not further aggravated by the fact that the assault was perpetrated in the matrimonial home. The remarks of Dunford J in R v Preston unreported 9 April 1997 NSWCCA are to similar effect. It will be an aggravating circumstances when a victim is assaulted in his or her own home by an unauthorised intruder. However, it is otherwise when the offender is lawfully on the premises. See EK v R [2010] NSWCCA 199 at [79] (per R A Hulme J, McClellan CJ at CL and Simpson J agreeing).

Ground 6: the sentencing judge erred in finding that the offences were aggravated as they were "committed for the offender's own sexual gratification." 113In my opinion this ground of appeal must also be upheld. It was inherent in the offence that it would be carried out for the purpose of the sexual gratification of the perpetrator. This would not be an aggravating factor.

Ground 7: the sentencing judge erred in finding that the standard non-parole period of 8 years applied to the offences under s 61M(2) of the Crimes Act .

Ground 8: in respect of count 3 his Honour erred by failing to set a non-parole period in respect of this offence. 114Again I am satisfied that these grounds are made out. The Crown conceded that his Honour erred in identifying the standard non-parole period for the s 61M(2) offence as 8 years. It was in fact 5 years at the time of the offending. The error impacts upon the sentence for count 3 and count 8. 115The Crown also accepted that there was also an error because his Honour did not to define a non-parole period in relation to count 3 and count 8 when his Honour imposed a fixed term.

Ground 9: the sentencing judge erred in his assessment of the "objective seriousness and the place of each offence in relation to a mid range offence." 116The appellant's submissions under this ground were directed to the sentencing judge's findings in respect of counts 5, 9, 4, 7 and 12. The appellant emphasised that his Honour found that "there is no evidence as to how long each offence lasted; no evidence of full penile penetration, only limited entry to the genital region." 117The appellant further contended that there was no physical damage to the complainant and a condom was used. It was further submitted that the sentencing judge failed to sufficiently describe the degree to which the criminality of offences 5 and 9 was above the mid range. Reference was made to R v Knight; R v Biuvanua [2007] NSWCCA 283; R v Woods [2009] NSWCCA 55. The appellant sought to support its submission by reference to other cases and the facts and findings in those matters. 118When criticising the sentencing judge's findings in respect of counts 4, 7 and 12 it was submitted that it was not open for his Honour to find that the fellatio and cunnilingus offences belonged in the mid range of objective seriousness regardless of the victim. In this respect the court's attention was drawn to the findings which were made in R v AJP [2004] NSWCCA 434 and R v PGM [2008] NSWCCA 172. 119In my judgment when his Honour determined that counts 5 and 9 fell "above the mid range" he did not complete the task required of him. His Honour should have provided some indication of the extent to which the offence fell above the mid range of objective seriousness. A limited appreciation of where he believed that assessment lay is available from the sentence which his Honour imposed which provided a non-parole period of one year above the standard non-parole period. 120It is important to emphasise the comments by Spigelman CJ in Mulato . It is the function of the sentencing judge to assess the objective seriousness of an offence and this Court will be slow to depart from the sentencing judge's conclusion. As I have previously indicated there are many factors which influence that judgment and it is important that this Court respect the role of the sentencing judge as the primary fact finder. In the present case although his Honour should have made more particular findings in relation to counts 5 and 9 I am not persuaded that it is necessary for that reason for this Court to intervene. 121When describing count 5 his Honour said: "As to charge 5, which involved penile penetration, Ingham pulled CBS's pants down and his own. It was not clear whether he had himself applied a condom to his penis, or whether CBS had done it. On the evidence I conclude that CBS had applied the condom to his penis, which indicated to me that she knew how to do it, that someone had previously taught her how to do it. Ingham lay on top of CBS, put his penis into her vagina and was "humping" and "jumping" on her, as vividly described by JAW". 122In relation to count 9 his Honour said: "As to charge 9, (is a charge of penile penetration) - JAW was lying on her bed on her back, when Ingham pulled her pants down, laid on top of her and put his penis inside her vagina, moving up and down. JAW felt pain at the time as he was "pushing it in"". 123It is apparent from this description that these were serious offences. I am not persuaded that his Honour could not determine that in all the circumstances they lay above the mid range of objective seriousness. However, they exceeded the mid range of objective seriousness to only a limited extent. With respect to counts 4, 7 and 12 his Honour said "As to charge 4, Ingham had oral sexual intercourse with CBS by using his tongue to lick her vagina. At the time he was sitting at the end of the bed where CBS was lying". "...beginning at charge 7, which involved an act of sexual intercourse by way of fellatio. The offender was in CBS's bedroom with JAW and CBS. JAW, aged eight that very day, was lying on her back on the bed when Ingham pulled his pants down, got on top of her, put his penis in her mouth and moved up and down with his penis". "And the final offence was one of sexual intercourse by way of cunnilingus when JAW was lying on the bed, Ingham was holding onto her legs and licking her on the outside of her vagina, moving his tongue around". 124His Honour characterised these offences as falling within the mid range. I am not persuaded that his Honour erred in making that characterisation.

Ground 4: the sentence is manifestly excessive 125The appellant submitted that the sentences imposed and the aggregate sentence were excessive and this Court should intervene. I have indicated that in my view the sentence in respect of counts 3 and 8 are affected by error and it will be necessary for this Court to resentence for those matters. I am not otherwise persuaded that the sentences imposed were excessive. 126The offences which the appellant committed were serious which was reflected in his Honour's findings as to the objective seriousness of those offences attracting a standard non-parole period. The appellant expressed no contrition for his crimes and pleaded not guilty. The evidence indicates that there is a "moderate risk of recidivism." The sentences which were imposed by the sentencing judge are largely a result of the legislated standard non-parole periods for the particular offences and his Honour's findings in relation to the objective seriousness of each offence. The legislative regime has the inevitable consequence that the overall sentence would be severe. It is not for a sentencing judge or this Court to do other than sentence in accordance with the regime provided by the Parliament. 127The applicant submitted that the sentences imposed upon the applicant were severe. A table of "comparable" cases was provided and it was submitted that by reference to those decisions it could be demonstrated that the sentences passed upon the applicant were manifestly excessive. 128The applicant emphasised the decision in SGJ v R; KU v R [2008] NSWCCA 258. It was submitted that the circumstances of the offences in that case were much worse than the present, involving as it did a greater number of offences, against 7 victims ranging in age from 5 to 10 years. In SGJ, some of the victims were contacted by advertising child minding services. The offences occurred over many months, were committed in company with a co-offender and were used to create a permanent photographic record in respect of 5 of the 7 victims. On appeal, the aggregate sentence of 22 years, consisting of a non-parole period of 15 years, and an additional term of 7 years was confirmed in the case of SGJ. However, in relation to KU, her sentence was reduced to include a non-parole period of 13 years with an additional term of 7 years. 129To my mind, the decision in SGJ and KU is not of great assistance. There are a number of differences between those two cases and the current case. Both SGJ and KU pleaded guilty to many of the counts. The present applicant pleaded not guilty. Both SGJ and KU had no history of committing offences of a sexual nature. The present applicant has a previous conviction for sexual assault upon a child under 10 in 1999. Furthermore, SGJ had a history of psychiatric illness associated with drug taking. The same is not true of the applicant, although I acknowledge that the applicant was diagnosed as having an avoidant personality disorder with some schizoid and self-defeating characteristics. Both SGJ and KU were remorseful for their actions. The same cannot be said for the applicant. In any event, the sentence imposed on SGJ of 22 years was the same as that imposed on the applicant although SGJ received a discount for his plea. 130In the result I have not found those decisions to be of particular utility in the sentencing of the offender. Each case has its own distinctive circumstances. The appropriate sentences for the appellant will reflect findings as to the circumstances of the offences, the appellant's subjective matters and the penalty regime provided by the Parliament. 131It is important to appreciate his Honour was required to sentence the appellant in accordance with the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. Having determined that an offence was in the middle of the range of objective seriousness in accordance with s 54A(2) his Honour was required by s 54B(2) to set the standard non-parole period as the non-parole period for the offence unless he determined that there were reasons for setting a different period. The sentencing judge determined that there were no reasons for setting a different non-parole period which contributed significantly to the sentence ultimately imposed.

Ground 9: The sentencing judge erred in his assessment of the "objective seriousness and the place of each offence in relation to a mid range offence". 132When sentencing the appellant the trial judge imposed sentences which were in the most part concurrent. The sentence for count 5 included a non-parole period of 16 years with a further term of 5 years and 4 months. The only other effective sentence is that for count 9 where his Honour imposed a non-parole period of 16 years with an additional period of 5 years and 4 months. 133The errors which I have identified in relation to grounds 5 and 6 have not significantly influenced the sentences which his Honour imposed and do not in all the circumstances require the intervention of this Court. Apart from the sentences for counts 3 and 8 in my judgment no other sentence was required in law. The sentences for those counts must be adjusted to reflect the appropriate standard non-parole period. 134I have considered whether in light of the adjustment in the sentence for counts 3 and 8 the overall sentence should be adjusted. In my judgment that would not be appropriate. The total sentence which the appellant received is both a product of his overall offending and the impact of the standard non-parole regime provided by the Parliament. To my mind given those matters no lesser total sentence was required in law.

Orders (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted. Apart from the sentences for counts 3 and 8 the sentences imposed in the District Court are confirmed. (3) In relation to counts 3 and 8 the sentences are quashed and in respect of count 3 the appellant is sentenced to a non-parole period of 5 years commencing on 20 October 2006 and an additional period of 1 year and 8 months commencing on 20 October 2011 and expiring on 19 June 2013. (4) In relation to count 8 the appellant is sentenced to a non-parole period of 5 years commencing on 20 October 2007 and an additional period of 1 year and 8 months commencing on 20 October 2012 and expiring on 19 June 2014. 135JAMES J: I agree with McClellan CJ at CL. 136DAVIES J: I agree with McClellan CJ at CL.

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: 08 April 2011

Juries (Amendment) Act 1993(Vic)

Juries Act 1967(Vic)

60 NSWLR 168 R v Woods (2009) NSWCCA 55 RJS v R [2007] NSWCCA 241; (2007) 173 A Crim R 100 Rusovan v The Queen (1994) 62 SASR 86 SGJ v R; KU v R [2008] NSWCCA 258 Texts Cited: Criminal Trial Courts Bench Book Category: Principal judgment Parties: Heath Jarrett Ingham (appellant) The Crown Representation: Counsel: M Dennis (appellant) V Lydiard (Crown) Solicitors: Legal Aid Commission of NSW (appellant) Director of Public Prosecutions (Crown) File Number(s): 2007/12182 Publication restriction: Non publication order re complainants' names and identifying details Decision under appeal Date of Decision: 2008-09-19 00:00:00 Before: Geraghty DCJ File Number(s): 2007/12182

Resolution of the appeal 55The principles of statutory interpretation which must be applied when dealing with a fundamental right, such as the common law right to a unanimous verdict, were enunciated in Coco v The Queen (1994) 179 CLR 427 where the High Court relevantly stated (at 437-438): "The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The court should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights [32]. ... The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasise that the test is a very stringent one [36]. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope." 56The Criminal Trial Courts Bench Book (the Bench Book ) is prepared by the Judicial Commission of NSW to assist Supreme Court and District Court judges in the conduct of trials. The Bench Book was amended in 2006 as a result of the introduction of majority verdicts in criminal trials in NSW. The Bench Book relevantly contains (and contained at the time of the applicant's trial in 2008) at [8-070] a suggested perseverance direction (set out in part at [40]) to be given to the jury where the preconditions of s 55F(2) of the Jury Act have not yet been satisfied. 57The suggested "perseverance direction" in the Bench Book is based on the model direction discussed in the joint judgment of Mason CJ, Brennan, Dawson and McHugh JJ in Black v The Queen (1993) 179 CLR 44 at 51-52; 69 A Crim R 248 at 253; [1993] HCA 71 at [15] (the Black direction). With the exception of the reference to majority verdicts in paragraph 2 and the omission of the words "Judges are usually reluctant to discharge a jury because" at the start of paragraph 3, the terms of the Bench Book direction are identical to those of the Black direction. 58In RJS v The Queen (2007) 173 A Crim R 100; [2007] NSWCCA 241 this Court decided that a trial judge had failed to properly consider the provisions of s 55F of the Jury Act before taking a majority verdict. The trial judge accepted a majority verdict after eight hours had elapsed but without giving consideration to the "nature and complexity of the criminal proceedings" as required by subs (2)(a) and failed to examine one or more jurors on oath before deciding that it was "unlikely that the jurors will reach a unanimous verdict after further deliberation" as required by subs (2)(b). 59Of present significance is the fact that when the trial judge gave a Black direction he also told the jury of the time at which a majority verdict would be open to them. The trial judge gave a Black direction and then said the following (at [11]): "... If, in fact, after further discussion you are unable to reach a unanimous verdict, then there is now in New South Wales as of very recently a provision whereby if eleven of you agree then a verdict can be returned. I have not mentioned that to you before because the law provides that that can only happen if the jury have been deliberating for eight hours. We have kept a note of the times and certainly by 2.30 today you will have been deliberating for eight hours. If 2.30 came and you were unable to reach a unanimous decision but eleven of you agreed, then you would be entitled to return a verdict at that time. So with those further matters in mind, members of the jury, can I ask you to retire and further consider your verdict." 60On the appeal to this Court, Spigelman CJ (Simpson and Harrison JJ concurring) said in relation to this issue: "[20] The second ground of appeal with respect to his Honour's directions to the jury focused on the timing that the directions were given. [21] His Honour gave the jury a direction in accordance with Black v The Queen (1993) 179 CLR 44; 69 A Crim R 248 urging them to continue to attempt to reach a unanimous verdict. However, the effect of that direction was, the Appellant submitted, undermined by the fact that at the same time his Honour directed the jury that in 15 minutes they could in fact resolve upon guilt with a majority of 11. This invitation to just wait, the Appellant submitted, was compounded by his Honour's statement to the jury that they 'need not worry' because the Court 'will not be keeping you here beyond a day'. [22] In my opinion, his Honour did undermine the effect of the Black direction. No further direction should have been given at this time. ... [25] In the present case, the course of events should have been to give the Black direction and then, in the absence of the jury, to take submissions from counsel as to when, in the particular circumstances of this case, a reasonable time could be said to have expired. It is inappropriate to determine that there should be a general practice about whether the trial judge, having determined what was such a reasonable time should, upon the elapse of that time, intervene with the jury's deliberations. What should occur will vary from case to case." 61In Ngati v R [2008] NSWCCA 3 the trial judge gave a Black direction which was modified to include the following reference to majority verdicts (a "modified Black direction"): "[22] ...The circumstances in which I may take a majority verdict have not yet arisen, and you should still consider that your verdict of guilty or not guilty must be unanimous. Now, when I refer to a majority verdict, the law now provides that in certain circumstances a verdict or guilty or not guilty agreed upon by eleven out of twelve jurors may be accepted. Those circumstances, as I have said, have not yet arisen, so you must confine yourself to attempting to reach a unanimous verdict either way of guilty or not guilty...." 62This Court held that a direction in these terms was not inappropriate in that case. Barr J (Hidden and Tobias JJ concurring) said: "[27] The principal contention [of the appellant] ... was that there was a miscarriage of justice because the jury were confused by the reference to a verdict by majority. Counsel referred to the judgment of this Court in R v RJS [2007] NSWCCA 241, a case in which, as in the present case, the jury delivered a verdict after they had reported having difficulty agreeing and after the consequent Black direction. The problem in RJS was that although the jury were told that they should continue to try to reach a unanimous verdict, they were at the same time told, in effect, that if they were unable to do so within quite a short time (effectively, I think, fifteen minutes) the Court would accept a verdict by majority. So the information which followed immediately upon the direction to return a unanimous verdict completely undermined it. [28] Counsel also referred to the Victorian case of R v VST [2003] VSCA 35, referred to in para [23] of RJS , in which the Victorian Court of Appeal considered it wiser for a judge sending a jury back to continue to try to reach a unanimous verdict to avoid telling them that the time at which a majority verdict might be accepted was imminent. [29] There was no such flavour in anything his Honour said to the jury in the present appeal. The jury were told a second time that the circumstances in which a majority verdict might be accepted had not yet arisen. His Honour gave no indication when, or, I think, even whether, those circumstances would arise. In my view nothing his Honour said was calculated to water down the plain instruction that a unanimous verdict was necessary. And after that, more than two hours elapsed before the jury delivered its verdict. ... [31] In my opinion this ground of appeal has not been made good. I would dismiss the appeal against conviction." 63In Hanna v Regina (2008) 191 A Crim R 302; [2008] NSWCCA 173 the trial judge gave a "modified Black direction" which included the following reference to majority verdicts (at [7]): "But I should say to you that you having now been deliberating for eight hours, the law provides that I can accept a majority verdict which would require eleven of you of the twelve to agree if you cannot reach unanimous verdict. But I emphasise to you that it is preferable that you continue to deliberate and try and reach a unanimous verdict. A unanimous verdict is preferable to a majority verdict." 64The appeal against conviction was allowed. The Court considering that the precondition set out in s 55F(2)(a) of the Jury Act to the return of a majority verdict by the jury was not satisfied because the trial judge had given no consideration to whether or not the period of time for which the jury had been deliberating was reasonable "having regard to the nature and complexity of the criminal proceedings": see James J at [10], Hoeben J at [24] and Hall J at [72]. 65The applicant in that case also submitted that the effect of the Black direction given by the trial judge was undermined by the reference to the availability of majority verdicts extracted at [63] above. This Court found it unnecessary to determine this issue as the appeal had been allowed for the reason identified above. However, each member of this Court made obiter remarks of relevance. 66James J said: "[23] I have concluded that, because it is unnecessary to make a decision on whether the further submission by counsel for the appellant should be accepted, in order to determine the appeal or to determine that both grounds of the appeal should be upheld and because the directions given by her Honour followed suggested directions in the Bench Book and because argument on this aspect of the appeal was fairly brief, I should not make a final determination on whether the submission should be accepted. It does appear to me that in the present case it might have been a preferable course for the trial judge to have given a Black direction without referring to the possibility of a majority verdict, to have allowed the jury some further time in which to endeavour to reach a unanimous verdict and only then, if the jury was still unable to reach a unanimous verdict, to have put into effect s 55F of the Jury Act ." 67Hoeben J said: "[25] For the reasons set out by Hall J and discussed by James J, I am inclined to the view that the effect of the Black direction was undermined by the fact that at the same time as giving the Black direction the trial judge directed the jury that they could return a verdict of guilty with a majority of eleven. [26] It is unnecessary to reach a final decision on that issue since the failure by the trial judge to comply with s 55F(2) of the Jury Act is sufficient to dispose of the appeal. Accordingly, I leave open for a future occasion whether her Honour's directions as a whole undermined the Black direction so as to entitle the appellant t succeed on the appeal." 68Hall J said: "[73] Although the circumstances in which the jury were also given a Black direction was somewhat different from the circumstances that arose in RJS , there is a question as to whether the trial judge ought to have first given a Black direction and not, at the same time, to have made reference to the fact or the circumstances in which a majority verdict may be returned by the jury. [74] Whilst it is, in my opinion, arguable that, by giving a Black direction followed immediately by a reference to the possibility of a majority verdict in respect of the two counts in question the force of the Black direction was thereby undermined, it is not necessary for that question to be finally resolved for the purposes of the present appeal." 69It is useful to consider the position in the other Australian States. Victoria permits majority verdicts in certain circumstances under s 46 of the Juries Act 2000 (Vic). Section 46 came into operation on 1 August 2001. Prior to that date, the relevant provision concerning majority verdicts was s 47 of the Juries Act 1967 (Vic). That section was inserted by s 7 of the Juries (Amendment) Act 1993 (Vic) on 1 February 1994. The case law prior to 1 August 2001 accordingly refers to s 47 of the Juries Act 1967 (Vic) rather than s 46 of the Juries Act 2000 (Vic). 70In Muto (referred to at [25] above) the trial judge directed the jury as follows at 13-14 of the charge (at 71): "In respect of your verdict, until recently the law in this state was that in all criminal trials the verdict of the jury, be it guilty or not guilty, had to be unanimous, the verdict of all 12 of you. Now with some exceptions by statute the law has been slightly changed by Parliament, and you may have read about this or seen something of it on television. The law now says that in this trial if all jurors after at least 6 hours deliberation are unable to agree upon a verdict, whatever that verdict may be, a majority verdict of, in this instance 11 of the 12, may be taken as the verdict of you all. The law further says that the court, that is me in this situation, must refuse to take a majority verdict if it appears to the court that the jury has not had a period of time for deliberation that the court thinks reasonable having regard to the nature and complexity of he trial. Here of course, we have had quite a long trial. Naturally you should endeavour to reach a unanimous verdict. It does not matter how you get there. Different arguments of counsel may appeal to some of you, different portions of the evidence may appeal to others. You can arrive at the same verdict, be it guilty or not guilty, by different routes. Ultimately of course, the ideal situation is that in each instance your verdict be a unanimous verdict." 71The Victorian Court of Appeal (Winneke P, Callaway JA and Southwell AJA) upheld an appeal against the direction and said at 344: "In our opinion the direction given in the present case involved a significant risk that the jurors would think that, if they were unable to arrive at a unanimous verdict, the view of the majority would ultimately prevail. It is unlikely that they understood that the judge retained a residual discretion. If that is so, they would have understood his Honour's direction in the sense that we have just indicated. That is not the law, quite apart from the deflection of the jury from their constitutional task. The common law is that a majority view never prevails; the effect of s. 47 is that a majority view may, not will, prevail in certain circumstances that usually do not arise. ... The Black direction that was then given did not rectify the position because, in its context, it was an exhortation to reach a majority verdict. Unanimity was never held out to the jury as anything more than an ideal. It is more than an ideal. Its pursuit, until the judge says otherwise, is the jury's duty." 72The Court discussed model directions that it considered should be followed in future. The Court said that, in the context of explaining the unanimous verdict that is required, the trial judge should include a statement along the following lines: "In 1994 Parliament introduced a provision which, in certain circumstances, gives me a discretion to take a majority verdict. Those circumstances have not yet arisen and may not arise at all. Until they do, you should consider that your verdict of guilty or not guilty must be unanimous." 73This form of direction has since been approved in obiter remarks by Eames JA (Smith AJA agreeing) in R v Rajakaruna (2004) 146 A Crim R 238; [2004] VSCA 114 at [159]-[160] and in obiter remarks by Ashley JA (Buchanan and Vincent JJA agreeing) in R v Ahmet [2009] VSCA 86 at [62]. 74A further relevant Victorian decision is R v VST [2003] VSCA 35. In a passage not reproduced in the report of the case at R v VST (2003) 6 VR 569, Phillips JA (Winneke P and Buchanan JA concurring) said at [38]: 'Where a jury returns pleading deadlock shortly before the expiry of the six hours referred to in s 46, then, even in a case where the judge considers that six hours is a reasonable time for deliberation, it would perhaps be wiser for the judge, instead of mentioning the possibility of taking a majority verdict once the six hours has expired, to send the jury back to their room to persevere in their deliberations, for the time being. In this case, that would have meant sending the jury back at, say, 4.30 pm to deliberate for a further period and then at, say, 5 pm, recalling them to the courtroom without any need for prior notice, to see if they had reached a unanimous verdict. If at that point the foreman said that they were still deadlocked although 11 were in agreement, it would be time enough for the judge to consider s 46(2) and (3). That should avoid any problem such as was agitated on this application.' These remarks were referred to with approval by Spigelman CJ in RJS at [23]. 75South Australia permits majority verdicts in certain circumstances - see Juries Act 1927 (SA), s 57. It is apparent from the remarks of Matheson J in Rusovan v The Queen (1994) 62 SASR 86 at 94 that in South Australia juries have with them, in the jury room, notes for their guidance which include an explanation as to the availability of majority verdicts. 76The South Australian Court of Criminal Appeal in R v K (1997) 68 SASR 405 considered a submission that nothing should be said to a jury during the course of a summing up concerning the availability of majority verdicts. That proposition was rejected by Doyle CJ (Lander and Bleby JJ concurring) at 413-414: "...In my opinion it is impractical to conceal from the jury knowledge of what the law provides in this respect. It is quite likely that the jury in a given case will include people who have been called for jury service on a previous occasion, or who will know from other sources that the law provides for a majority verdict. As the month for which a jury is called for service wears on, it becomes increasingly likely that the jury will include a juror who has served on a jury which has already returned a majority verdict. Failure to say anything about the power to return a majority verdict in the course of a summing-up may lead to confusion in the jury room, as a result of jurors aware of the power raising the matter in the course of the jury deliberations." Western Australia permits majority verdicts in certain circumstances - see Criminal Procedure Act 2004 (WA), s 114. 77The Western Australia Court of Criminal Appeal considered the issue of appropriate directions with respect to majority verdicts in R v Pearmine (1987) 37 A Crim R 424. Burt CJ stated at 425: "...the jury should strive to reach a unanimous verdict and I can see no reason for telling them at the outset that 'should the time come when it is possible for me to accept a majority verdict I will give you a further direction'. To tell the jury that at that time may encourage the view that whenever there is revealed to be a majority for one verdict or another the jury can cease to achieve unanimity comfortable in the expectation that the time will come at which they will be told that that is good enough. ... I think at least as a general rule it would be wiser not to tell the jury anything about a majority verdict when they retire for the first time. At that time a unanimous verdict is required by law and they should be so directed. In the fullness of time, which will be at some point of time after the jury has remained in deliberation for at least three hours and has not arrived at a unanimous verdict, the decision of not less than ten of the jurors shall be taken as the verdict and in my opinion it is a better practice to tell the jury that that can be done when the time arrives at which it can be done..." 78Kennedy J said at 430: "Prior to the introduction of s 41 in 1961, only a unanimous verdict could be accepted. I do not consider that, thereafter, an obligation rested upon the trial judge to inform the jury, when they retired, that, after three hours, he would accept a majority verdict in accordance with the section, for to do so might undermine their attempts to reach a unanimous verdict if they can properly do so. I would not, however, wish to be taken to be suggesting that to give such a direction would necessarily lead to a miscarriage of justice. In my opinion, juries should be encouraged to reach a unanimous verdict if they are able to do so, because that is the entitlement of an accused before s 41 operates. That is more likely to be achieved by refraining from telling them at some time in the future, if they have not reached a unanimous verdict, a verdict of not less than ten may be accepted." 79Wallace J concurred with both Burt CJ and Kennedy J at 425. 80The Northern Territory permits majority verdicts in certain circumstances - see Criminal Code Act (NT), s 368. 81The Northern Territory Court of Criminal Appeal considered the issue of appropriate directions in CEV v R [200] NTCCA 10. The Court (Mildren, Riley and Southwood JJ) held at [16]-[17]: "[16] The jury's question about what was the procedure to be followed if the jury were deadlocked was not novel. It is an important principle of the administration of criminal justice that a jury strive to reach unanimity in its verdict. An impression should not be created before the time after which a majority verdict must be accepted, that if jurors are unable to arrive at a unanimous verdict, the view of the majority will ultimately prevail. It is for this reason that this Court has said that trial judges should not tell the jury anything about majority verdicts when they first retire: Tipiloura v R (1992) NTLR 216 at 218; Fittock v R (2001) 11 NTLR 52 at 59. The consensus of all jurors which flows from the requirement of unanimity promotes deliberation and provides some assurance that the opinions of each of the jurors will be heard and discussed. It reduces the danger of hasty and unjust verdicts: Cheatle and Ors v R (1993) 177 CLR 541 at 552-553. [17] However, if a jury asks what is the procedure for majority verdicts they should be given a direction along the following lines: 'Parliament has introduced a provision which in certain circumstances allows a court to take a majority verdict. Those circumstances have not yet arisen and, until they do, you should consider your verdict of guilty must be unanimous."

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