M J R v The Queen [2011] VSCA 374

Sections 46, 78(2) and (3), Juries Act 2000.

1 MJR ('the appellant') was found guilty by majority verdict after trial in the County Court of two counts of incest (Counts 7 and 9) and one count of indecent act with a child aged under 16 (Count 6). The jury could not agree on its verdict on six other counts (four of incest and two of indecent act).

2 Following conviction, the appellant was sentenced to terms of imprisonment which, with cumulation, produced a total effective sentence of 7 years' imprisonment. The judge fixed a non-parole period of 4 years and 6 months.

3 Now, by leave, the appellant appeals against conviction. Leave was granted on the following grounds:

Ground 1: A miscarriage of justice resulted from the learned trial judge's failure to discharge the jury following an indication by a juror they were being harassed into giving a verdict.

Ground 2: The guilty verdicts on counts 6, 7 and 9 are unsafe and unsatisfactory having regard to the jury being unable to reach a verdict on counts 5 and 8.

4 Not long before the appeal was fixed for hearing, this Court was apprised of circumstances concerning the jury's deliberations which it made known to the parties. The appellant then applied for leave to rely upon these additional grounds:

Ground 3: The trial miscarried because the applicant was denied natural justice by the failure of the learned trial judge to advise trial counsel of the contents of a note provided to the learned trial judge by the jury.

Ground 4: A miscarriage of justice resulted from the failure of the trial judge to discharge the jury without verdict when he received information as to votes cast by the jury in the course of their deliberation.

6 This was the appellant's third trial. On two earlier occasions, a jury had been unable to agree on a verdict on any count, and had been discharged.

7 The principal Crown witness was the appellant's daughter, a girl born on 24 January 1990.

8 Her evidence at trial on this occasion consisted of her evidence given at the first trial, held in mid February 2010. It had been videorecorded. Although the jury could not agree on its verdict on six of the nine counts after three trials, even by a statutory majority, I will set out the full gist of her allegations. Thus -

Count 1, incest, between 1 January 1994 - 31 December 1994: When she was aged four, (that is, in 1994) and whilst she was watching television, the appellant put a blanket over the two of them. He then pushed his fingers into her vagina.

Count 2, indecent act, between 1 January 1994 - 31 December 1994: After tucking the complainant into bed, the appellant touched her face, legs and back. He put his hand under her underpants and touched her on the bottom and vagina.[1]

Count 3, indecent act, between 24 January 1994 - 23 January 1995: The complainant was feeling unwell. She went to her parents' room and the appellant told her to get into bed with him. He held her against him and she felt his erect penis. He grabbed her head and pushed it towards his penis. Her mouth contacted it. He put her hands around his penis.

Count 4, incest, between 1 April 1995 - 30 April 1995: At a shopping centre, the complainant was trying on a dress. The appellant came in and assisted her to do so. Then he digitally penetrated her vagina.

Count 5, incest, between 1 June 1996 - 31 July 1996: The complainant went into her parents' bedroom. Her mother was in hospital at the time, to give birth to her sister. The appellant was naked in bed. His penis was erect. He tried to force her head down onto his penis. It was in her mouth for a short period.

Count 6, indecent act, between 1 June 1996 - 31 July 1996: On the occasion the subject of count 5, and subsequent to the penetrative incident, the appellant took the complainant's hands, and made her masturbate him to ejaculation.

Count 7, incest, between 24 January 1996 - 23 January 1998: When the complainant was aged between six and eight, and in the bedroom, the appellant digitally penetrated her. He commented that she was tighter than her mother, and said that it was their secret and that he loved her.

Count 8, incest, between 24 January 1996 - 23 January 1998: A short time after the incident the subject of count 7, the complainant was in the appellant's bedroom. He lay on top of her and penetrated her with his penis.

Count 9, incest, between 13 June 1998 - 30 June 1998: In June 1998, the complainant's mother was in hospital, again to give birth. The complainant and a sister were in the appellant's bed, watching television. She went to sleep. When she awoke the appellant was in bed, between them. He rubbed her bottom, then digitally penetrated her.

9 The appellant was interviewed by police on 10 June 2008. He denied the allegations. The record of interview was put in evidence.

10 The jury was empanelled on 24 May 2010. It retired to consider its verdict at 12.29pm on 26 May 2010.

11 Shortly before 2.20pm on 27 May 2010, the jury indicated by a note that it was unable to reach 'a unanimous decision on any one of the charges', and that it did 'not believe that further deliberation would change this position'. The judge informed counsel about that communication.

12 Counsel for the appellant applied for the jury to be discharged. She pointed out that this was the appellant's third trial, and that the jury was (by reference to a question earlier asked) having no success in resolving the appellant's guilt to the criminal standard. The judge refused the application, and gave a Black[2] direction.

13 Late on the afternoon of 27 May, the jury sent a further note ('the second note') to the judge. He read it. The note informed the judge that the jury was still unable to reach a unanimous verdict, but that it had reached majority verdicts for conviction on eight of the nine counts. The note stated that the majorities varied. It told the judge precisely what the majorities were. On three counts, there was said to be a majority in favour of conviction of 11/1 - that is, a statutory majority if the numbers remained unchanged, and if the judge permitted a majority verdict to be delivered.

14 His Honour said nothing to counsel that afternoon about the matter. In a report to this Court, he has stated that this was because - I interpolate, understandably - he wanted to consider to what extent he should discuss the contents of the note with counsel.

15 In the event, on the morning of 28 May his Honour advised counsel simply that the jury was still unable to reach a unanimous verdict on any count. He invited submissions whether he should permit a majority verdict if the jury could not reach a unanimous verdict on any count.

16 The prosecutor submitted that it was appropriate that the judge inform the jury straightway that he would take a majority verdict.

17 Counsel for the appellant submitted, to the contrary, that his Honour should discharge the jury. She noted that at the second trial the option of a majority verdict had not been given. She submitted, correctly, that s 46 of the Juries Act 2000 does not mandate the taking of a majority verdict. She referred to R v Muto & Eastey[3] in which, inter alia, this Court referred to the option of deferring consideration whether to take a majority verdict 'put[ting] aside exceptional cases where it may be appropriate not to take a majority verdict at all'.[4] She further submitted that the jury should be discharged because - (1) this was the appellant's third trial; (2) the earlier trials had not been mistrials, but 'hung' juries; (3) a Black direction had been given at one, if not both, of the earlier trials; (4) a majority verdict direction had been given at the first trial, without result; (5) the issues at trial were not of such complexity as could explain the repeated failure of juries to agree.

18 The judge refused the application to discharge. Instead, he gave a second Black direction; and informed the jury that he would take a (statutory) majority verdict if it became clear that the jury was 'never going to reach a unanimous verdict'.

19 In the ruling which preceded those directions, his Honour said this:

After considering all of their submissions including and in particular the matters advanced by [counsel for the accused] in support of her contention, I have decided that I should exercise my discretion under s.46 and advise the jury of their right to return a majority verdict in the situation that after further deliberations they cannot reach a unanimous verdict.

In my view the threshold criteria under s.46, have been satisfied; in my view the jury have had a period which is reasonable in which to deliberate. Further it is my view that the trial has not by its nature or degree of complexity, been such as to militate against exercising my discretion in favour of inviting the jury of their right to return a majority verdict.

20 A little less than an hour later, his Honour returned to the bench. He advised counsel that, shortly after he had given the second Black direction, a juror had informed his tipstaff that he/she was 'being harassed into giving a verdict'. The word 'bullied' had been mentioned. The juror had spoken of being 'really upset and distressed', but had indicated that he/she 'had not changed their opinion'.

21 His Honour stated that he intended to hear counsel as to what should be done. But before the matter reached that point, he told counsel that he had just received a note from the jury saying that it had reached a majority verdict on three counts.

22 Counsel for the appellant then told his Honour that, before knowing about the jury's most recent note, she had been going to apply for the jury to be discharged on the basis that 'there must be some real doubt about the jury process'. After taking instructions, she pursued such an application, submitting that there was 'no guarantee that the entire deliberating process and these verdicts haven't been tainted by the information passed to [the] tipstaff'.

24 The jury was brought in. The foreman confirmed that there was a majority verdict on three counts. He confirmed, the jury having briefly retired, that there was no prospect of it agreeing upon a unanimous or majority verdict on other counts.

25 A majority verdict was accordingly taken on the three counts only.

26 In order to fully understand the import of grounds 1, 3 and 4, it is necessary to say a little about verdicts in criminal trials. Throughout the history of the criminal law in Victoria, until 1993, a jury verdict in a criminal trial was required to be unanimous. That requirement was described as a principle lying at the foundation of English law.[5]

27 By s 46 of the Juries Act 1967, provision had been made for taking a majority verdict (five of six jurors) in certain circumstances in civil trials in the Supreme Court.

28 Then, by the Juries (Amendment) Act 1990,[6] the taking of a majority verdict in a civil trial in the County Court was authorised.

29 I mention these developments on the civil side to emphasise that change on the criminal side, which had the effect of eroding a fundamental principle of the criminal law, was late in coming.

30 By the Juries (Amendment) Act 1993, provision was first made for taking majority verdicts in criminal trials in all but the case of specified offences. The provision, then introduced as s 47 of the Juries Act 1967, is now, with some modification, s 46 of the Juries Act 2000. The section is relevantly as follows:

(1) In this section, majority verdict means -

(a) if, at the time of returning its verdict, the jury consists of 12 jurors - a verdict on which 11 of them agree;

(b) if, at the time of returning its verdict, the jury consists of 11 jurors - a verdict on which 10 of them agree;

(c) if, at the time of returning its verdict, the jury consists of 10 jurors - a verdict on which 9 of them agree.

(2) If, after deliberating for at least 6 hours a jury in a criminal trial -

(a) is unable to agree on its verdict; or

(b) has not reached a unanimous verdict -

the court may discharge the jury or, subject to subsections (3) and (4), take a majority verdict as the verdict of the jury.

(3) A court must refuse to take a majority verdict if it considers 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 the trial.

31 Several points may immediately be made. First, a judge is not required to permit a jury to return a majority verdict. There is always the option of discharging the jury if a unanimous verdict has not been reached after at least six hours of deliberations.[7] Second, a judge may delay advising a jury that he or she will take a majority verdict. That is, a decision whether or not to take a majority verdict need not be made as soon as six hours of deliberations have passed by.

32 Senior counsel for the Crown advanced three submissions: (1) the jury should not have apprised the judge of the details of votes cast in the course of deliberations; (2) the judge should have informed counsel of the contents of the second note; (3) if there was a breach of procedural fairness in what had occurred, it had not occasioned a miscarriage of justice.

33 Counsel for the appellant disagreed with only the third of those propositions.

34 In my opinion, the first proposition was probably correct; the second was the preferable course in the particular circumstances of the case; and the third should be rejected.

35 Counsel for the Crown's concession that the jury should not have told the judge the details of votes cast was based upon the common law position, said to have been stated by Lord Lane in R v Gorman.[8] It did not depend upon the operation of s 78(2) of the Juries Act 2000, which reads as follows:

(2) A person who is or has been a juror must not disclose any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury if the person has reason to believe that any of that information is likely to be or will be published to the public.

36 Counsel referred to s 78(3)(a)(i) of the Act, which reads as follows:

(3) Nothing in this section prevents -

(a) a person who is or has been a juror disclosing to -

(i) a judge or court;

...

any information about the deliberations of a jury;

37 Counsel submitted that the provision is intended to address, despite its broad language, cases of possible irregularity in the jury process. But, he contended, s 78(2) did not apply in the circumstances, because none of the jurors had reason to believe that the information as to votes cast was likely to be or would be published to the public.

38 It is unnecessary to decide if s 78(2) did, or could, apply in circumstances such as these. Whether or not the jury's note constituted an offence by a juror, it was not suggested that the common law position was displaced by s 78(2) and (3).

39 In Gorman, Lord Lane, LCJ referred to information which the jury should not impart, 'such as details of voting figures'. That was said in a case in which his Lordship re-affirmed the basic principle that ordinarily a judge should state in open court the nature and contents of communications received from the jury.

40 Lord Lane referred to other instances where the jury had informed the judge of the state of voting: R v Townsend[9] and Oduro.[10] In those cases, as in Gorman, the outcome of the appeal turned upon whether non-disclosure of the jury's note constituted a material irregularity. They were silent about the propriety or otherwise of the jury conveying the particular information to the judge.

41 In R v Rose,[11] the problem was that the judge had communicated privately with the jury about its verdict in a way which could be construed as applying pressure upon it to reach its verdict. In describing what course a judge should follow, Lord Lane LCJ said this:

It is axiomatic that where it appears from the length of their retirement and the circumstances of the case, even after a majority direction has been given to them, the jury may be unable to agree on a verdict and therefore further deliberation by them may be simply a waste of time, the judge should re-assemble the court, send for the jury and in open court ask the jury, through their foreman, whether there is any chance of their reaching an agreement, emphasising, needless to say, that he is not inquiring as to how they are divided. According to the answer which the judge receives from the jury, he will then decide whether to discharge the jury there and then, or whether he should ask the jury to retire once again to make a further effort to reach agreement between them.[12]

42 His Lordship's insistence that a judge should not, in effect, step into the jury room was the counterpoint to his later statement in Gorman that the jury should not volunteer its voting intention to the judge.

43 The authorities which suggest that a judge should not be told with precision about the state of the jury's voting intentions coincide, in my opinion, with principle. It is commonplace, and necessary, for a jury to inform the judge, if that be the situation, that it cannot agree on a verdict. Further, in the event that a majority verdict direction is given, the jury must be able to inform the judge, in general terms, of the impossibility (if that be the case) of it arriving at a statutory majority. In either of those situations, there can be no impediment to the judge informing counsel what he has been told. To greater or lesser degree, however, there is the potential for difficulty, particularly in the context of s 46 of the Juries Act, if the judge is informed by the jury of the precise votes cast in respect of any charge. That takes me to the second proposition advanced by senior counsel for the Crown.

44 The general principle, that a judge should inform counsel about any communication received from the jury, has often been stated - in this country, and overseas. In R v Black, Watts and Black,[13] Buchanan JA put it this way:

[14] It is well established that generally a trial judge must disclose to the parties questions asked by a jury. In R v Gorman the English Court of Appeal referred to a number of cases in which judges had said that communications from a jury to the trial judge must be read out in court. Lord Lane CJ, delivering the judgment of the court, said:3

Accordingly it seems to us that certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to consider its verdict.

First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel ...

Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.

Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.

We may add, before parting with the case, that the object of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret communication between the court and jury, and secondly, to enable the judge to give proper and accurate assistance to the jury

on any matter of law or fact which is troubling them. If those principles are borne in mind, the judge will, one imagines, be able to avoid the danger of committing any material irregularity.

[15] The same basic rule and exceptions have been stated by Australian courts.[14]

45 The question then arises whether, if a jury imparts information about votes cast to the judge, the information falls into the category which is an exception to the general rule, so that the judge is not required to disclose it - at all, or at least in terms - to counsel. The question, in my opinion, does not admit of a single answer.

46 In R v Fitzgerald,[15] it was said by Williams J that:

It is, as I have always understood, the very essence of the administration of our criminal law that the trial of prisoners should take place in open court. The trial certainly does not terminate until the jury have given their verdict or until they have been discharged; and I take it to be not a novel, but a well and long-established principle of law - 2 Hales P.C., p. 296 and pp. 306 and 307, and Chitty's Criminal Law, Vol. I., p. 633 - that the prisoner or his counsel is to be afforded the opportunity of hearing and seeing all that takes place during such trial. By 'all,' I mean all that is material to the issues joined between the Queen and the prisoner. I do not of course comprise within that expression those matters and incidents which frequently arise during the progress of a trial immaterial to and in no way connected with the issues joined, as, for instance, sending in word to the jury-room in answer to inquiries therefrom that a verdict of less than twelve cannot be taken, or that they (the jury) may have certain refreshment.[16]

47 But that was said at a time when a unanimous verdict was required. There was no possibility of controversy such as in the present case.

48 In Oduro,[17] the judge was informed by the jury that it was split seven to five for conviction. The judge told counsel that he had received a note indicating disagreement. Later, he gave a majority verdict direction. Later still, the jury returned a majority verdict of ten to two for conviction. It was held that there had been nothing wrong with what the judge did.

49 Two points may be made. First, in Gorman , Lord Lane described the decision as 'not altogether free from ambiguity', and stated that 'we do not find that it assists us in coming to any conclusion...'.[18] Second, the facts were different in a key respect to those in the present case. When the judge decided to take a majority verdict, he knew that there was no statutory majority for conviction.

50 In R v Townsend,[19] the jury informed the judge that a majority, the details of which it disclosed, was in favour of acquittal. The judge said nothing to counsel about the matter. He sent a note back to the jury, telling it that it must continue deliberations until a unanimous verdict was reached. The accused was convicted. His appeal succeeded. Waller LJ said this:

On receipt of the note from the jury indicating that there was a division of opinion the judge should have called the jury into court in the presence of the defendant and his counsel and indicated to them without disclosing in public the precise contents of the note (this would be clearly undesirable) that he had received a note showing that there was a division of opinion within the jury and telling them that it was not possible at that stage to accept a majority verdict and asking them to retire again and to endeavour to reach a unanimous verdict.

and

In this case if the jury had been brought back into court it would unnecessary to divulge the state of the division of opinion and only necessary to give the jury the direction which we have already mentioned.[20]

51 That was another case in which a statutory majority for conviction did not exist - even if it had then been possible for the judge to direct the jury that he would take a majority verdict. To say that the judge should have communicated the general thrust of the note (but not its detail) to counsel, in the course of further instructing the jury, does not address the present problem.

52 Gorman was a very unusual case. A man charged with rape had a first trial. The judge was told by note that it stood nine to three for acquittal. He told counsel that the jury could not agree. After the jury confirmed in open court that it could not agree, he discharged it. Then there was a second trial. The accused was convicted by majority. He appealed. By then, he had discovered the content of the note at the first trial. He sought to argue that there had been a material irregularity at the first trial which rendered the conviction at the second trial unsafe and unsatisfactory.

53 The appeal raised three questions. The first was whether the appeal court had any jurisdiction to review the alleged irregularity at the first trial after the jury had been discharged. The second was whether the exercise of the discretion to discharge could be challenged. The third, which in the event did not have to be answered as part of the resolution of the appeal, was how a judge should react when provided with details of jury voting. Lord Lane, by reference to authority, formulated the propositions cited by Buchanan JA in Black, Watts and Black - see [44] above -when disposing of the question.

54 I make these observations: First, what his Lordship said about public non-disclosure of voting details provided by a jury to a judge was said in a context far removed from one where the judge became privately seised of information which would have permitted a majority verdict. As in R v Townsend, a majority of the jury in Gorman stood in favour of acquittal. The situation in the present case was the factual obverse.

55 Second - it is a related matter - the factual situation in the present case, unlike that in Gorman, involved a private communication pertinent to a discretionary decision that the judge was thereafter called upon to make - which, depending upon the way in which the discretion was exercised, was very likely to yield a conviction. In Gorman and Townsend, the jury's adherence to its voting intention must have meant that there would be intractable disagreement, and a discharge.

56 Two general points may be made about the authorities which I have cited. First, in none of them was it said that the judge should have told counsel precisely what the jury had conveyed about its voting intentions. But second, in none of them did the jury's stated intention place the judge in a position of knowing what counsel did not - that an exercise of the discretion to take a majority verdict would certainly, or at least very probably, result in conviction on some counts.

57 In my opinion, in the particular circumstances of this case, counsel was right - but for the wrong reason - to concede that the judge should have informed counsel what he had been told by the jury so far as it concerned three counts where a statutory majority for conviction existed. I consider, however, that it was not necessary for his Honour to have told counsel what the state of votes was with respect to the other counts; nor to have informed counsel of the particular counts upon which a statutory majority for conviction existed. The less that the jury's deliberations were publicly revealed, the better.

58 The reason why, unusually, the judge should have disclosed the relevant information to counsel was that the non-disclosure denied the appellant procedural fairness, which is a principle applicable to both civil and criminal cases.[21] Counsel for the Crown justified his second proposition by recourse to the general statement of principle. But the general statement did not provide sufficient justification. In the authorities to which I have referred, a jury's communication about its precise voting intention had not been held to require exact recapitulation to counsel.

59 In this case, however, there was a critical distinguishing characteristic. It was the combination of the nature of the information conveyed, its significance for the disposition of later applications, and the fact that the judge was seised, but appellant's counsel was not, of the information. That is why, unusually, I consider that disclosure was required.

60 Counsel for the Crown submitted, as I understand it - this was his third proposition - that there was no denial of procedural fairness in the circumstances; but that, if there was, the relevant decision - which he treated as being the jury's verdict and the convictions then recorded - was not vitiated. Later in these reasons, I reject each aspect of that submission. I mention its rejection now to emphasise that the circumstances to which I referred in the preceding paragraph did constitute a critical distinguishing characteristic requiring disclosure to counsel, when ordinarily the specific voting intention of the jury (if, undesirably, it was disclosed to the judge) would not require such disclosure.

61 I should say that there was, in my view, an alternative to disclosure. Of his own motion, the judge could have discharged the jury. It was well open to his Honour to have concluded that in the circumstances there was a high degree of need that he do so.[22] The intractable difficulties which he would inevitably face in dealing with an application to discharge, or to take a majority verdict, show why that is so. Such a discharge would have preserved confidentiality of information which, according to authority, should not have been conveyed to his Honour.

62 Counsel for the appellant twice submitted on the morning of 28 May that the jury should be discharged without verdict. She resisted the taking of a majority verdict. The matters which she raised, particularly on the first occasion - see [17] above - were in my opinion weighty. But in light of what the judge knew - which counsel did not - there was no realistic prospect of her submissions being accepted. Fairness and commonsense demanded that counsel be apprised of the relevant information - that is, in the event that the judge did not discharge the jury of his own motion.

63 Non-disclosure, in my opinion, was relevant in at least two ways. First, counsel was precluded from advancing a submission that, although the events which had occurred were no fault of the judge, his Honour was on the face of things, at least as a matter of reasonable perception, disabled from dispassionately considering an application to discharge the jury without verdict. Second, counsel was unable to advance a submission that his Honour was disabled from dispassionately considering a submission that he should not take a majority verdict - either at all, or at least not then. In either case, it might have been submitted, the only course was for his Honour to discharge the jury without verdict. The ruling which I noted at [19] above had about it, in these unfortunate circumstances, something of the appearance of a charade.

64 In the circumstances, in my opinion, whether the decision is viewed as the judge's decision not to discharge the jury, or his decision to take a majority verdict, or the jury's verdict on the three counts, or the convictions which followed, it was vitiated. For reasons which I will explain, neither of the bases upon which relief may be refused[23] was applicable.

65 Counsel for the Crown mainly relied upon, as he asserted, there being no causal link between the judge's non-disclosure and the verdicts returned. It should be assumed that the verdicts of guilty were in respect of the counts upon which there had been a statutory majority, according to the jury's note, the previous afternoon. The unhappy juror on the morning of the verdicts should be assumed to be the dissentient in the case of those verdicts.

66 I accept, for sake of argument, the factual assumptions referred to in the preceding paragraph. Had the judge not known the voting intentions of the jury when the applications to discharge were made on the morning of 28 May, his rejection of those applications, and his exercise of discretion to take a majority verdict, would have been unremarkable. It is at least extremely probable that the appellant would have been found guilty by majority on the three counts. But that misses the point. The authorities show that the question is not whether it is likely that the impugned decision would have been the same.[24] Procedural fairness must

66 be upheld for its own sake. Relief will be refused only where, put shortly, the court can say that, had procedural fairness been accorded, the result could not have been different.[25]

67 Here, the effect of the non-disclosure was that it precluded the making of an application, of evident force, that the jury should be discharged without verdict (and thus that no majority verdict be taken) - that is, not because of the length of the deliberations without unanimous verdict, but because his Honour would at least be reasonably perceived as being unable to bring a dispassionate mind to such a discharge application. It cannot be assumed, had appellant's counsel been seised of the contents of the note, that the rulings not to discharge, and to take a majority verdict, would necessarily have been the same. Nor, in consequence, can it be assumed that verdicts would have been returned at all.

68 Counsel for the Crown submitted that the state of the evidence provided a logical explanation why the jury found the three counts established, but could not arrive at a verdict on the others.[26] He argued that the evidence was in one instance 'more powerful and vivid', and that it was 'considerably more detail[ed]' in the case of the two other counts on which a guilty verdict was returned.

69 It is difficult to establish that verdicts were inconsistent, which is the gist of ground 2. I have some doubts that the quality of the evidence, count by count, could sensibly explain why majority guilty verdicts were returned on three counts whilst there was disagreement about the others. It is certainly difficult to explain the guilty verdict on count 6, but the disagreement on count 5.

70 Nonetheless, having considered all the evidence, I am not persuaded, despite the jury's failure to agree on verdicts on six of the nine counts, that it must have had

a reasonable doubt of guilt on the three counts on which it returned majority verdicts of guilty.

71 In my opinion, the appeal should be allowed, and a re-trial directed. But I am very mindful that the appellant has now been tried three times, and that, save with respect to three counts by majority verdict, no verdict has been returned. There is an argument of substance that a fourth trial should not be had. But that is a matter for the Director.

73 First, I wish to make it clear, if I have not already done so, that the trial judge should not be criticised for what occurred. He was placed in an invidious position by what the jury did. He could not have known in advance what was in the critical note. Once he was seised of its contents, he had to make a choice about what to do, unassisted by counsel's submissions. The circumstances were in my experience, and the Court's experience, unique. Viewed with the wisdom of hindsight and the assistance of counsel, I have concluded that his choice was the wrong one. But that does not reflect adversely upon his Honour, who fairly - as I would have expected - placed the entire circumstances before this Court.

74 Second, in my view an instruction for juries should be developed which will prevent a repetition, unlikely though it might be, of what happened in this case.

75 I agree for the reasons given by Ashley JA that this appeal should be allowed. I note that there is nothing currently in the Charge Book (prepared by the Judicial College of Victoria) which informs the jury that they should not reveal the numbers in favour of conviction or acquittal when conveying to the judge that they are having

difficulty arriving at a unanimous verdict. In my view, it would be sensible to include in the Charge Book a specific instruction to that effect.

76 I agree, for the reasons given by the learned presiding judge, that the appeal should be allowed and a new trial directed. I wish particularly to associate myself with his Honour's postscript.

[1] The complainant also gave evidence of uncharged acts of this kind, said to have happened once or twice weekly thereafter.

[2] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44.

[3] [1996] VicRp 21; [1996] 1 VR 336.

[5] Winsor v The Queen (1866) LR 1 QB 289, 303 (Lord Cockburn CJ), referred to by Hodges J in R v Fitzgerald (1899) 15 VLR 40, 53.

[7] The power of a judge to discharge a jury, at common law, was affirmed in Winsor v The Queen (1866) LR 1 QB 289. It was statutorily provided for by s 46(2) of the Juries Act 1967. See now s 46(2) of the Juries Act 2000.

[8] [1987] 1 WLR 545.

[9] [1982] 1 All ER 510.

[11] [1982] 1 WLR 614.

[13] [2007] VSCA 61; (2007) 15 VR 551.

[15] [1889] VicLawRp 15; (1889) 15 VLR 40

[18] R v Gorman [1987] 1 WLR 545, 550.

[19] [1982] 1 All ER 509.

[21] In a civil context, see Nylex Industrial Products Pty Ltd v Ucar [2007] VSCA 181; (2007) 17 VR 492. In a criminal context, see R v Mielicki (1994) 73 A Crim R 72, R v Healey [2008] VSCA 132 and Davey v The Queen [2010] VSCA 436. In a quasi-criminal context, see Clark v Ryan and anor [2005] VSCA 311.

[22] R v Boland [1974] VicRp 100; [1974] VR 849, cited with approval in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.

[24] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 505 [33] (Chernov JA), 519 [75], 520-521 [79]-[80] (Redlich JA); Davey v The Queen [2010] VSCA 346 [29] (Redlich JA, dissenting in the result).

[25] See Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141.

[26] See MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.