Bailey (1988) 35 A Crim R 458

R v Nagrecha [1997] 2 Cr App R 401

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Eastough v The Queen, unreported; CCA, SCt of WA; Library No 980108; 12 March 1998

Eliasen (1991) 53 A Crim R 391

Lauritsen v The Queen (2000) 22 WAR 442; [2000] WASCA 203

M (1998) 104 A Crim R 154

Markuleski [2001] NSWCCA 290; (2001) 125 A Crim R 186

Narkle v The Queen (2001) 23 WAR 468; [2001] WASCA 31

R v Lawrence [2001] QCA 441

R v Smith (1987) 44 SASR 587

Sutherland [1994] SASC 4894; (1994) 76 A Crim R 447

1 ANDERSON J: I agree with the judgments of Steytler and McKechnie JJ and with the orders proposed.

2 The trouble is that the question asked by the foreman "I would like to know if there's another option" was ambiguous. In the context of the preceding exchanges between the foreman and the Judge it is possible that the jury, through the foreman, were seeking to be informed as to whether they were obliged to continue their deliberations that night until they had reached a verdict on at least some of the charges, however long that might take. The answer to that question (or to the foreman's question so understood) was, of course, that there were other options. The jury could have been given the Black direction or they could have been sent to a hotel for the night or they could have been discharged. In view of the hour, it was probably not practicable to try to arrange overnight accommodation. It was probably not appropriate to simply discharge them there and then without further ado. Therefore, the time had come to give the Black direction with a view to discharging them soon after if that step proved unproductive.

3 It is clear from her own observations made after the jury had retired again that the Judge took the foreman's questions to have another meaning namely, whether something less than a majority of ten would do. Her response "No, there's no other option" would have been entirely appropriate, of course, if that was the question which the foreman had intended to ask. But, as her Honour herself recognised, it was the wrong answer to a question whether there was any other option but to continue deliberations that night.

4 This being the position there was a real danger that the jury went back into deliberation with one or some of them being under the impression that they had to stay in continuous deliberation for as long as it took them to reach a verdict on at least some of the charges. The risk that an individual minority juror may have felt under pressure to compromise his or her genuine views in order to reach a result which accorded with the view of the majority was not insignificant. It is therefore not possible to be confident that the guilty verdicts were properly arrived at.

5 STEYTLER J: I have had the advantage of reading the reasons for decision of McKechnie J.

6 I agree, essentially for the reasons which his Honour has given, that ground 1 of the grounds of appeal has been made out.

7 By 7.47 pm on the evening of the third and last day of the trial, when the jury returned for the fourth time, they had been out, in order to consider their verdicts, for more than four and a half hours. Some one hour and 20 minutes had passed since they had first informed the trial Judge that they were very unlikely to change from the position in which they then were, being one of inability to reach a unanimous decision. At 7.47 pm, the jury was, according to the foreman, in the position in which it was "very unlikely" that they would be able to reach a unanimous or majority verdict in relation to any of the counts on the indictment, albeit that there had been a slight change since the last time they had been recalled. In those circumstances, when the foreman asked whether or not there was another option to that of being given more time to continue considering their verdicts, the jury should have been told of the option that they might be discharged, more particularly so in circumstances in which, as the trial Judge herself subsequently recognised, the foreman may have been asking whether discharge was possible.

8 In my respectful opinion, the failure to tell the jury of this option gave rise to a real danger that the jury might have felt pressured to reach a verdict. My unease in that respect is added to by the fact that, only 24 minutes later, they had reached a verdict on two counts on the indictment, leaving open the possibility that one or more of the jurors had, under pressure, decided to compromise on those verdicts, a possibility which looms larger in circumstances in which, in my opinion at least, there was little basis for drawing any distinction between the evidence as regards counts 1 and 2, on the one hand, and that regarding counts 3 and 4, on the other.

9 This conclusion makes it unnecessary to give any separate consideration to ground 2 of the grounds of appeal.

10 As to ground 3 of the grounds of appeal, it seems to me that even if the evidence the subject of that ground should have been admitted, for the reasons given by McKechnie J no miscarriage of justice followed from the failure to admit it.

11 I would consequently uphold ground 1 of the grounds of appeal, allow the appeal against conviction, quash the convictions on counts 1 and 2 and order a re-trial.

12 The appellant stood trial before Judge Jenkins and a jury in the District Court on four counts of indecent dealing with a child under the age of 16 years.

13 In very brief terms, the Crown case was that on 27 September 2000, the complainant, who was just over 13, travelled to Perth from a country town with the appellant, who was her uncle, in his truck, to deliver a load of wool and pick up some items to return to the country town. The complainant accompanied him. At about 4.00 pm they went to the Kewdale Hotel where, after a time, the appellant bought a quantity of alcohol, including Lemon Ruskis, for the complainant to drink. They returned to the truck and about 6.30 pm the appellant booked a room at the hotel. Another man joined them. After some time the complainant went to the only double bed in the room and got under the bedspread, still wearing her clothes. The Crown case was that after the other man left, the complainant was lying on her stomach on the side of the bed and while in that position the appellant put his hand under her shirt, up her back and under her bra strap, then removed his hand, rolled her onto her back and put his hand on the front of her shirt under her bra and circled his fingers around her right nipple. This alleged indecent dealing was count 1.

14 After a short time the appellant removed his hand from under the complainant's bra, commenced to undo her jeans, put his hand under her underwear and then rubbed the underneath part of her vagina. This alleged dealing was count 2.

15 After the touching of the vagina for approximately one minute, the Crown alleged the appellant got off the bed and turned off the television, returned to the bed, rolled the complainant onto her stomach and commenced to pull down her jeans and underpants. At this point the complainant asked the appellant "What are you doing?" and he replied: "Putting you to bed, is that alright?" She said she would stay in her clothes and pulled up her clothes and sat on the end of the bed. The appellant got back into bed, pulled her backwards and again put his hand on her right breast before undoing the buttons on her jeans when, the Crown case was, he pushed the complainant's shirt and bra off her breasts and kissed her on the right breast. These alleged indecent dealings comprised counts 3 and 4. On the Crown case both the appellant and complainant went outside and sat in the cab of the truck for a time. The complainant used the appellant's mobile to call her aunty who came to pick her up. The next morning the complainant spoke to her mother and told her mother what had occurred.

16 At trial the Crown played a video of the pre-recorded evidence of the complainant. It also led evidence of her aunt as to receiving a telephone call from the complainant, who was crying, and that she went to the Kewdale truck stop and collected her. The Crown also led short evidence from the complainant's mother and the police officer who interviewed the appellant.

17 The appellant gave evidence at trial. He denied at any stage attempting to undress the complainant or indecently dealing with the complainant. The defence also called the appellant's wife who gave evidence of, among other things, speaking to her husband on the mobile in the evening. She confirmed the appellant's evidence that he had clumsy hand syndrome, which meant he had little dexterity. The appellant also called two character witnesses.

18 On 22 May 2002 the jury returned majority verdicts convicting the appellant of counts 1 and 2 but they were unable to reach verdicts on counts 3 and 4 and were thereupon discharged. On 19 June 2002 the appellant was sentenced to a term of 6 months imprisonment on count 1 and 15 months imprisonment on count 2, both terms to be served concurrently and with a parole eligibility order.

19 Grounds 1 and 2 are to an extent connected with each other and may, for the most part, be conveniently dealt with together. Ground 1 asserts that the learned Judge erred in directing the jury that there was no option than to return verdicts on the four counts on the indictment by failing to give a jury a direction of the kind indicated in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44. This has become known as a "Black direction". Ground 2 is that the verdict of guilty on counts 1 and 2 is inconsistent and incompatible with the jury's inability to reach verdicts on the other two counts. Each ground is appropriately particularised.

20 To understand ground 1 it is necessary to refer to the course of events following the Judge's directions to the jury.

21 The Judge commenced her directions to the jury at 2.20 pm by advising them as to the procedure to be followed when they returned with their verdict. She said the Clerk of Arraigns will ask the foreperson: "Is that the verdict of you all?" and the foreperson will answer then "'Yes' because it must be the verdict of all 12 of you. You cannot reach a verdict in respect of any charge, whether it be guilty or not guilty, unless it be the verdict of all 12 of you." She then continued her summing-up and no issue is taken with her directions generally.

22 The jury retired at about 3.10 pm. At 4.28 pm court resumed in the absence of the jury when the Judge noted that the jury had a question. They wished to hear the transcript of certain events from the time the applicant got into the bed and a recount of the events after the other person left. After some discussion with counsel, at 4.37 pm the jury returned and the evidence was read to them. At 4.51 pm they retired.

23 At 6.27 pm the court reconvened and the Judge noted she had received another message from the jury:

"We cannot reach a unanimous decision and are very unlikely to change from this position. Could you please direct us?"

24 At 6.29 pm the jury returned and the Judge said:

"Members of the jury, the law requires that at this point of time you continue to try to reach a unanimous decision in relation to each of the charges on the indictment and I urge you as I said to you before to listen carefully to one another's opinion and to weigh up the evidence carefully. If that position changes, then I will of course advise you of that. Members of the jury, at the present time could you please retire and continue to consider your verdicts? ..."

26 The court reconvened at 7.03 pm the jury returned and the Judge asked the foreman:

"JENKINS DCJ: Mr Foreman, please answer yes or no to the following questions. Have you reached a unanimous verdict, that is a verdict of all 12 of you on any of the counts you are to deliver?

THE FOREMAN: No.

JENKINS DCJ: Is there any chance of you reaching a unanimous verdict on those counts?

THE FOREMAN: It's very unlikely."

27 The Judge then gave the jury a majority direction, noting at the end:

"... you would not be giving a verdict unless it was the verdict of at least 10 of you, that at least 10 of you had agreed upon it, ..."

28 The court resumed at 7.45 pm and the following occurred:

"JENKINS DCJ: We have not heard from the jury, but in view of the time that has elapsed I intend to call them in and ask them whether they have reached a verdict; if not, to ask them whether continued deliberation will assist them. If they say it's highly unlikely or very unlikely, I intend to discharge them. Bring in the jury, please.

(At 7.47 pm the jury returned)

JENKINS DCJ: Mr Foreman, please answer yes or no to the following questions. Have you reached a unanimous or majority verdict, that is, a majority being at least 10 of you - verdict in relation to any of the counts on the indictment?

THE FOREMAN: No.

JENKINS DCJ: Do you - sorry, I will start again. Is there any chance, do you think, of reaching a unanimous or majority verdict in relation to any of the counts on the indictment?

THE FOREMAN: It's very unlikely, but there has been a slight change since the last time we were in.

JENKINS DCJ: Then do you wish to have more time to continue considering your verdicts?

THE FOREMAN: I would like to know if there's another option.

JENKINS DCJ: No, there's no other option.

THE FOREMAN: We'll need more time, then, I'm afraid.

JENKINS DCJ: Then could you please retire and continue considering your verdict. Thank you.

(At 7.48 pm the jury retired)

JENKINS DCJ: The foreman's reply whether there was another option, my immediate reaction was it was a question as to whether or not there was a lesser majority possible. It may well be, of course, he was asking whether discharge is possible, but in the circumstances we will wait for an appropriate period of time and then I'll bring them back and inquire again. Thank you. The jury will return."

"JENKINS DCJ: I intend to bring the jury back and repeat the process. Thank you. Bring in the jury.

THE SHERIFF'S OFFICER: Excuse me, your Honour. The jury said could they just have one more minute, please?

JENKINS DCJ: Certainly. I think your client actually wishes to speak to you, Mr Doncon, so you might take this opportunity.

(At 8.12 pm the jury returned)

JENKINS DCJ: Mr Foreman, again just answer yes or no to the questions I ask you. Have you reached a unanimous or majority verdict, that being a verdict of at least 10 of you in relation to any of the counts on the indictment?

THE FOREMAN: Yes.

JENKINS DCJ: You have. Then I will ask Madam Clerk of Arraigns to take the verdicts.

THE CLERK OF ARRAIGNS: Members of the jury, have you reached a verdict?

JENKINS DCJ: In relation to count 1?

THE CLERK OF ARRAIGNS: Okay. How say you to count 1 of the indictment? Is the accused guilty or not guilty?

THE FOREMAN: Guilty.

THE CLERK OF ARRAIGNS: Is that the verdict of you all?

THE FOREMAN: No.

THE CLERK OF ARRAIGNS: Is that the verdict of at least 10 of you?

THE FOREMAN: Yes.

THE CLERK OF ARRAIGNS: How say you to count 2 of the indictment? Is the accused guilty or not guilty?

THE FOREMAN: Guilty.

THE CLERK OF ARRAIGNS: Is that the verdict of you all?

THE FOREMAN: No.

THE CLERK OF ARRAIGNS: Is that the verdict of at least 10 of you?

THE FOREMAN: Yes.

THE CLERK OF ARRAIGNS: How say you to count 3 of the indictment? Is the accused guilty or not guilty?

THE FOREMAN: We haven't reached a decision on number 3.

JENKINS DCJ: Continue.

THE CLERK OF ARRAIGNS: How say you to count 4 on the indictment? Is the accused guilty or not guilty?

THE FOREMAN: We haven't reached a decision.

JENKINS DCJ: Thank you. Take a seat please, Mr Foreman. In relation to counts 1 and 2 on the indictment I will record verdicts of conviction. Mr Foreman, can I ask you in relation to counts 3 and 4 on the indictment, is there any chance that you will reach verdicts in relation to those counts on the indictment?

THE FOREMAN: Very unlikely, almost certainly no."

31 The Judge then entered judgment of conviction in relation to counts 1 and 2 and discharged the jury from reaching a verdict on counts 3 and 4.

32 Counsel for the appellant argued that at the time the foreman asked whether there was another option the Judge should have given a Black direction.

33 It is submitted that the absence of such a direction gives rise to a danger that the jury may have felt pressured to reach a verdict and the fact that the jury returned with guilty verdicts in relation to two of the four matters, some 24 minutes later, illustrates that the danger was real.

34 It is the failure to advert to the option of discharge that is said to give rise to the impermissible risk of pressure to compromise the jury's verdict.

35 The relevant consideration in Black was the direction which had been given by the trial Judge to the jury in that case. The direction was a standard direction in New South Wales. The High Court considered directions which had been approved by the English Court of Appeal (R v Walhein (1952) 36 Crim App R 167, R v Creasey (1953) 37 Crim App R 179 and Shoukatallie v The Queen [1962] AC 81, a direction followed in Queensland (R v Brown [1990] 1 Qd R 370). The English position has changed: R v Watson & Ors [1988] 1 QB 690. The changes have been brought about by the ability of juries to return majority verdicts. The particular point at issue in Black was reference within the standard direction to considerable public inconvenience and to expense.

36 The Black direction is offered for guidance of trial courts in the future. Failure to give a Black direction does not automatically lead to the conclusion that there has been a miscarriage of justice.

37 The exercise of the power to discharge a jury is a matter for a trial Judge applying his or her experience to the particular circumstances. Whether a Judge finds it necessary to give a Black direction, a Judge should nevertheless keep in mind the broad principles bound up within it. It is important that juries strive to reach verdicts and experience has shown that juries can often agree if given more time to consider and discuss the issues. The exercise of the judgment, whether to give a Black direction, and when to discharge a jury from further deliberation, will be difficult and an appeal on this ground is unlikely to succeed unless there can be demonstrated a real and perceptible risk that a miscarriage of justice has occurred.

38 In Peers & Smitheringale v The Queen [1999] WASCA 295 the particular words used by the Judge did not convey a sense of urgency, pressure or coercion to reach agreement. In Roberts v The Queen [2002] WASCA 64; (2002) 25 WAR 501; the particular words used by the Judge were held to create a real risk of interfering with the jury's freedom to deliberate without pressure being imposed upon them. Limited assistance can be gained from the facts of other cases. For example, in Roberts, one of the points at issue was the Judge's comments about the length of time they had been deliberating and the fact that they may have to be sent to a hotel.

39 Returning to the present case, I have concluded that there has been a miscarriage of justice.

40 As the Judge belatedly recognised, it is possible the jury were seeking directions as to whether they could be discharged. It is the foreman's question and the Judge's response which gives rise to a perceptible risk of a miscarriage of justice.

41 While it may not have been incumbent on the Judge to advise the jury of the possibility of discharge prior to that point it became necessary to then give the jury all available options.

42 The verdicts a short time later, and the failure to reach a verdict on the other two counts, contribute to the conclusion that the jury may have felt pressured to return a verdict. It is difficult to understand the result in any other way.

43 In my opinion, ground 1 has been made out and, to the extent reflected above, so has ground 2.

44 To the extent that ground 2 is suggested to have any relevance beyond its relationship with ground 1, I would not uphold the submission.

45 The first thing to be noted is that there were not inconsistent verdicts. A majority of the jury were able to be satisfied as to counts 1 and 2 and there was no majority for any other verdict. It is wrong to equate this situation with an inconsistency.

46 Strict logic might suggest there was a difficulty but the life of the law has not been logic but experience: Oliver Wendall Holmes Jnr; see also R v Kirkman (1987) 44 SASR 591 at 593 and Spiteri v The Queen [2001] WASCA 82.

47 Ground 3 complains that the trial Judge erred in failing to allow the applicant to call the witness Louise Morgan to give evidence for the attendances by the complainant at the Bentley Clinic prior to the events in question.

48 As this ground was developed in argument, it was said the complainant gave evidence that she had never gone to the Bentley Clinic prior to the events in issue. Her mother gave evidence that the complainant had attended the clinic but that she had attended after the appellant had indecently dealt with her.

49 Ms Morgan's notes recorded that the complainant had attended the clinic for psychiatric assessment and treatment prior to the indecent dealing.

50 At the appeal, counsel was asked what evidence would have been led from Ms Morgan. His response was:

"Do you know this child? When did you first see her?---I first saw her on 11 August.

That's the first time she was admitted? Thank you."

51 He therefore did not seek to lead the evidence as relevant to the complainant's mental condition.

52 It is important to set out the relevant passage of the transcript (51). When the complainant was under cross-examination she said:

"Things got so bad come about August, didn't they, that you started to have psychiatric help?---Yes.

In about August, I think, you were seeking help from a number of venues, weren't you? The Kelmscott Mental Health Clinic?---Yes.

That's before any of this business you say happened with your uncle?---Yes.

And also the Bentley Psychiatric Clinic?---That was this year.

Well, it was last year too, wasn't it, before this all happened?---No.

You say you were only going to the Kelmscott Mental Health Clinic at that stage?---Yes.

I see. I (sic) was because of your difficulties at school, wasn't it?---Well, my mum wanted me to go.

Your mum wanted you to go. Did you see a nurse there called - a mental health officer, Louise Morgan. Do you remember seeing her?---Yes.

Do you remember seeing her in August 2000?---Yes.

About 6 weeks before all these things are supposed to have happened?---Yes.

Do you remember telling her that your mother - that you would be physically aggressive towards your mother and you couldn't control it?---No.

You didn't tell her that?---I might have but I don't remember.

And that you were having difficulties at school?---Yeah, I was having difficulties at school.

And that you had been this way for about 3 years?---Not having difficult (sic) at school though."

53 The effect of the complainant's evidence is that she did see Ms Morgan in August 200 prior to the events which allegedly occurred on 27 September 2002 although not, it would appear, at the Bentley Psychiatric Clinic. It was never in fact put to her that she saw Louise Morgan at the Bentley Clinic.

54 The issue further arose in cross-examination of the complainant's mother:

"PERCY, MR: She had been to the Bentley clinic to be seen before, hadn't she?---Sorry?

She'd been seen at the Bentley clinic before September 2000?---Not to my knowledge, not at the Bentley clinic where she had three admissions.

I'm putting to you she had been there before and before September?---Not to Bentley clinic, no.

She had been to the other clinic, though, hadn't she?---Which other clinic's that?

Where you say she went for anger management. Where was that? Kelmscott?---That was actually in our house, we had the anger management program through CAMS."

55 It may be accepted that the credit of the complainant is generally an issue in sexual assault cases so that the general collateral rule as to finality of answers does not apply: Smith v The Queen (1992) 9 WAR 99; Bannister v The Queen (1993) 10 WAR 484.

56 However, the complainant's actual answers agreed that she had seen Louise Morgan prior to the event. There was, in the circumstances, nothing relevant about the actual place at which she had seen Louise Morgan which reflected on her credit. The credit in relation to her mother was a different issue where I consider the cross-examiner was bound by the answers because the mother's credit on the matter was collateral. Even if I am wrong about that, the complainant's answers and the limited use to which counsel wished to put the evidence meant there was no miscarriage of justice.

57 I would allow the appeal against conviction, quash the convictions of counts 1 and 2 and order a new trial. In these circumstances the appeal against sentence falls away.

• Introduction
• The grounds of appeal
• Ground 2 - Inconsistent verdicts
• Ground 3