Juries Act 2000, s 46(2); Jury Directions Act 2015, s 64B, s 64D.

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

1. Throughout August 2023, the applicant faced trial in the County Court on an indictment that alleged against him one charge of rape[2] (charge 10), two charges of making a threat to kill[3] (charges 3 and 12), one charge of recklessly causing injury[4] (charge 8) and eight charges of common assault[5] (charges 1 and 2, 4 to 7, 9 and 11).
2. On 11 August 2023, the jury found the applicant guilty on four charges - three by unanimous verdict (rape - charge 10; making a threat to kill - charge 12; and common assault - charge 9) and one by majority verdict (common assault - charge 6).
3. The jury also found the applicant not guilty on eight charges - seven by unanimous verdict (common assault - charges 2, 4, 5, 7 and 11; making a threat to kill - charge 3; and recklessly causing injury - charge 8) and one by majority verdict (common assault - charge 1).
4. Hence, there were majority verdicts on two charges only (both of common assault): not guilty on charge 1, and guilty on charge 6. All other verdicts - whether guilty or not guilty - were unanimous. For convenience, the jury's verdicts are reflected in the following table:

1. Following a plea, the trial judge sentenced the applicant to a total effective sentence of six years and eight months' imprisonment, with a non-parole period of four years and four months.[6]
2. The applicant - who requires an extension of time within which to do so[7] - seeks leave to appeal against his conviction on the following ground:
   1. A substantial miscarriage of justice was occasioned by the Judge erroneously;

(a) exercising his discretion to take a majority verdict in respect of a charge on which the jury had said it 'cannot agree' when it was not reasonably open to do so; and/or

(b) directing the jury to persevere in its deliberations at the same time as giving a majority verdict direction; and

(c) directing the jury to persevere with deliberations towards a majority verdict.

1. As we will explain, no aspect of the ground of appeal has substance. It would therefore be futile to grant an extension of time. The application for an extension of time should be refused.

1. It is necessary to provide a brief summary of the evidence at trial.
2. The applicant and 'AB' were in a relationship. In June 2017, AB gave birth to their son, 'KK'.
3. AB gave evidence that, on 21 November 2017, the applicant held KK upside down over stairs (charge 1, common assault - not guilty (majority)).
4. AB also gave evidence that, in February 2019, the applicant spat in her face (charge 2, common assault - not guilty (unanimous)).
5. In March 2020, the applicant, AB and AB's friend, 'TB', were at a music festival. The applicant was unhappy about TB wearing AB's pink top. TB gave evidence that the applicant said to her, 'I'm going to kill you' (charge 3, making a threat to kill - not guilty (unanimous)). AB gave evidence that the applicant grabbed her arm to stop her walking away (charge 4, common assault - not guilty (unanimous)).
6. AB gave evidence that, on 6 July 2020, she heard the applicant verbally abusing KK. She intervened. The applicant then pinched KK on the upper thigh causing him to scream and causing redness (charge 5, common assault - not guilty (unanimous)). KK hid under the bed. The applicant told AB that she was not leaving 'until we get pregnant'. She responded, 'I am not having another baby'. The applicant then pulled KK from under the bed and held him upside down by his legs (charge 6, common assault - guilty (majority)). He put KK down when AB apologised to him.
7. While AB was sitting on the bed the applicant shouted at her. His face was so close she could feel his spit on her face. Her evidence was that he spat on her (charge 7, common assault - not guilty (unanimous)). The applicant said that they were going to have sex to prove she loved him. AB pushed the applicant away. He then forced her onto the bed and held her arm down with his fingers digging into it. This caused bruising to her upper arm, which she photographed (charge 8, recklessly causing injury - not guilty (unanimous); charge 9, common assault - guilty (unanimous)).
8. The applicant again told AB she was not leaving him until they had a baby and that she had to prove she loved him. He said, 'I'm coming back in five minutes and we're gonna have sex'. When he returned, the applicant lifted up her top. AB was crying and said, 'I don't wanna do this'. The applicant then penetrated AB's vagina with his penis. While he did so she was crying loudly and repeating, 'I don't wanna do this'. The applicant said, 'Why are you crying?'. AB gave evidence that she was scared of what the applicant would do if she did not submit to having sex (charge 10, rape - guilty (unanimous)).
9. Later in the afternoon, the complainant sent a 'Snapchat' message to TB, saying the applicant forced her to have sex with him, that she was scared she would get pregnant and seeking help to get out of the relationship.
10. The next day, 7 July 2020, the applicant caught AB texting her ex-boyfriend. He took her phone from her and threw it at her, causing a small scratch at the same site as the bruising. AB photographed it (charge 11, common assault - not guilty (unanimous)).
11. Following this incident, the applicant moved out of the house for about three weeks. When the applicant visited the house, AB recorded him uttering threats to kill her father (charge 12, making a threat to kill - guilty (unanimous)).
12. On 21 August 2020, AB obtained an intervention order against the applicant. She was referred to the police and over three separate statements complained of the alleged offending.
13. At trial, the applicant put in issue the happening of all the charged acts except the words uttered in charge 12. On charge 12, the applicant put in issue the necessary state of mind. The applicant called witnesses who attested to his good character.

1. In the course of his charge to the jury, the judge gave a conventional direction on the need for any verdict to be unanimous. Among other things, he directed the jury that

in almost all criminal cases, a verdict of guilty or not guilty must be unanimous. That is, whatever decision you make, you must all agree on that decision, in relation to each charge. ... You may have noted that I said a verdict must be unanimous in almost all criminal cases. There are some circumstances in which a jury is allowed to give a majority verdict, instead of a unanimous verdict. This is not yet one of those cases and it may never be and I will tell you if that situation changes. Until I do, you should consider that your verdicts of 'guilty' or 'not guilty' must be unanimous, all right?

1. The jury retired just after 11:00 am on 9 August 2023. Throughout that day they asked a number of questions - it is unnecessary to set them out - before indicating late in the afternoon that they would not be able to reach a unanimous verdict that day. Since a juror had a commitment the next morning, the judge permitted the jury to reconvene at 12:30 pm the following day, 10 August 2023.
2. In the afternoon of 10 August 2023, the jury provided a note ('the first note') containing the following question:

The jury needs direction. We are unable to reach agreement on all the charges - unanimous agreement. There is a majority agreement on some of the charges. We need to know how to proceed.

1. Upon the court convening at 3:26 pm to deal with the question in the first note, the foreperson provided the judge with a further note ('the second note') as follows:[8]

On four separate charges, the jury is [hung].[[9]] On seven separate charges, the jury has a majority vote (significant majority). On one separate charge the jury has reached a verdict (a unanimous decision).

1. With the agreement of counsel, the judge then gave the jury the following directions, the major part of which constituted a perseverance direction in accordance with Black.[10] Thus, having read the jury's second note back to them, the judge directed them as follows:[11]

All right, well, I won't take the verdict at this point in respect of the charge where you've reached the unanimous decision. Obviously I told you in the directions that I gave you there are some circumstances where I can take a majority decision. I'm not satisfied that I should give you a direction about that at the moment.

So the direction that I'm about to give you relates to the balance of the charges in relation to which you get to make a decision, all right? That's the 11 charges that remain. So, ultimately, of course, I have the power to dismiss you without a verdict being reached but I should only do that if I'm satisfied you're not able to agree on a verdict, even if given more time for discussion, and I'm not satisfied yet about it in this case.

What I do urge you to do is return to the jury room and try and resolve your differences. Experience has shown that juries can often agree if given more time to consider and discuss the issues. Each of you has affirmed or sworn that you will give a true verdict according to the evidence. That is an important responsibility and you must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you're expected to judge the evidence fairly and honestly in that light. You have a duty to listen carefully and with an open mind to the views of every other juror and you should calmly weigh up each other's opinions about the evidence, test them by discussion. Calm and rational discussion of the evidence often leads to a better understanding of the differences of opinion, which juries may have. This discussion may convince you that your original opinion was wrong. That said, you must always reach your own decision according to your own view of the evidence. If after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with their conclusions, then you shouldn't change your mind simply to reach a unanimous verdict. Instead, you must not agree to a verdict that you do not - if you do not honestly and genuinely think it is the correct verdict. To do that would be a breach of your duty to this court but as I said earlier, experience has shown that often juries are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries re-examine the matters they disagree about and make a further attempt to reach a unanimous verdict and that is what I am asking you to do here, members of the jury, in this case.

1. The jury provided a further note ('the third note') to the judge in the afternoon of the next day, 11 August 2023:[12]

The jury seeks the court's advice. The jury had reached a unanimous verdict on nine separate charges and the jury has reached a significant majority on two separate charges. The jury cannot agree on one separate charge.

1. At 2:21 pm, the judge, having read the third note back to them, gave the jury the following majority verdict direction:[13]

Look, I'm now satisfied that I can give you a majority direction, members of the jury. I have the power to dismiss you without the verdict having been reached but I should only do that if I'm satisfied you won't be able to agree on the verdict even given a bit more time for discussion and I'm not yet satisfied of that in this case. Now obviously these directions relate to the three charges which you are undecided about.

I am now satisfied that you should be allowed to give a majority verdict. This means that if you cannot all agree on a verdict, I will accept a verdict that is agreed on by 11 of you. That is the majority, 11 of 12. Please return to the jury room and consult with one another. Listen carefully to the views of other jurors, discuss your differences, weigh up each other's opinions about the evidence, and test them. If 11 of the 12 of you reach agreement on a verdict, then you can decide to return a majority verdict_._ Now this, as I say, relates to the three charges you've identified on which you are undecided.

All right, so I'll give you that direction. Just consider that and go back into the jury room. If in the end you can't - after further discussion and in consideration of that direction if you're still stuck, well then you can send a note and we'll deal with it if that happens. All right?

1. We pause to note that the direction set out immediately above closely - although not exactly - conformed to the model direction in the Charge Book, which is in the following terms:[14]

I have been told that you have not yet been able to reach a verdict. Although I have the power to dismiss you without a verdict having been reached, I should only do this if I am satisfied that you will not be able to agree on a verdict even if you are given more time for discussion. I am not yet satisfied that this is the case.

However, I am satisfied that you should now be allowed to give a majority verdict. This means that if you cannot all agree on a verdict, I will accept a verdict that is agreed upon by eleven [10 or 9] of you.

Please return to the jury room and consult with one another. Express your own views. Listen carefully to the views of others jurors. Discuss your differences with an open mind. Calmly weigh up each other's opinions about the evidence, and test them by discussion.

If eleven of the twelve [10/11 or 9/10] of you - reach agreement on a verdict, then you can decide to return a majority verdict.

1. Following the giving of the direction above, the jury once more retired at 2:24 pm. Less than half an hour later, at 2:52 pm, the jury returned unanimous verdicts of guilty on charges 9 (common assault), 10 (rape) and 12 (making a threat to kill); and unanimous verdicts of not guilty on charges 2, 4, 5, 7 and 11 (common assault), 3 (making a threat to kill) and 8 (recklessly causing injury). The jury also returned a majority verdict of guilty on charge 6 (common assault); and a majority verdict of not guilty on charge 1 (common assault).

1. Before considering the arguments of counsel, it is convenient to set out several key legislative provisions relevant to their assessment.
2. The power to take a majority verdict in a criminal trial is found in s 46 of the Juries Act 2000. So far as presently relevant, it provides:
   1. Failure to reach unanimous verdict in criminal trials

(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;

...

(2) If, after deliberating for a period of time that the court thinks is reasonable, having regard to the nature and complexity of the trial, 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 subsection (4),[[15]] take a majority verdict as the verdict of the jury.

1. Further, div 2 of pt 7 of the Jury Directions Act 2015 ('JDA') sets out when perseverance and majority verdict directions may be given. It is in the following terms:

Division 2 - Perseverance and majority verdicts

64A Definition

In this Division -

majority verdict direction means an explanation that it is possible, or may be possible in some circumstances, for the jury to return a majority verdict instead of a unanimous verdict.

Note

Section 46 of the Juries Act 2000 provides for majority verdicts.

64B Restriction on when direction to persevere may be given

The trial judge must not direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction.

64C Trial judge need not give direction to persevere before giving majority verdict direction

The trial judge may give a majority verdict direction to the jury whether or not the trial judge has previously directed the jury to persevere to reach a unanimous verdict.

Note

R v Ahmet; DPP v Ahmet [2009] VSCA 86 includes a statement that it is preferable for the trial judge to direct the jury to persevere to reach a unanimous verdict before the trial judge gives a majority verdict direction. Under this provision, it is not necessary to do so.

64D Abolition of common law rules

Any rule of common law under which a trial judge is required or permitted to direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction is abolished.

Notes

1. This provision abolishes the rule attributed to R v Muto & Eastey [1996] VicRp 21; [1996] 1 VR 336 and applied in R v Ahmet; DPP v Ahmet [2009] VSCA 86.
2. Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Ground 1(a): Taking a majority verdict on a charge where the jury 'cannot agree'

1. By their second note the jury indicated they were 'hung' - presumably, could not reach verdicts - on four separate charges, and had reached a 'unanimous verdict' on one separate charge. The jury also indicated that they had a 'significant majority' vote on seven separate charges.[16]
2. In the third note - provided after the judge's perseverance direction[17] - the jury indicated that they had reached a 'unanimous verdict' on nine separate charges, and had reached 'a significant majority' on two separate charges. The jury also said they 'cannot agree' on one separate charge.[18]
3. We pause to note that the jury ultimately returned unanimous verdicts on not nine, but ten charges: three of guilty (charge 9, common assault; charge 10, rape; and charge 12, making a threat to kill); and seven of not guilty (charges 2, 4, 5, 7 and 11, common assault; charge 3, making a threat to kill; and charge 8, recklessly causing injury). As we have mentioned, the jury also returned majority verdicts on two charges (both of common assault): not guilty on charge 1, and guilty on charge 6. From these numbers, it is tempting to suggest that the 'one separate charge' upon which the jury said in the third note they 'cannot agree' ultimately resulted in a unanimous verdict (whether guilty or not guilty), albeit so much must remain the province of speculation.

1. Turning to the submissions of counsel, the applicant's counsel submitted in support of ground 1(a) that, whatever 'significant majority' meant to the jury, the words 'cannot agree' must have conveyed a level of disagreement beyond a single dissenting juror. Counsel submitted that the 'mixed' verdicts delivered can only be explained by the jury having difficulty accepting the evidence of the complainant beyond reasonable doubt. The majority verdicts for both acquittal and conviction suggest differently constituted majorities for the different charges, and are not indicative of a single, stand-alone juror. Where the principal issue is something as inscrutable as the assessment of the complainant, the risk of compromise must be at its highest.
2. Counsel for the applicant submitted that it was not reasonably open to the judge to exercise his discretion to take a majority verdict in respect of the charge on which the jury had told him they 'cannot agree'. That is so even where counsel for the applicant agreed with the giving of the direction and made no other application in respect of that charge. There was no forensic advantage to be obtained from the delivery of a majority verdict where the only other available conclusion would have been a discharge on that charge. In oral argument, the applicant's counsel submitted that, based on the information before him, the only conclusion that he judge could have reached was that a majority direction would not resolve the jury's apparent disagreement and result in a verdict on that charge. It is not possible to identify the charge on which the jury had, prior to the majority verdict direction, been unable to agree. Thus, it is not possible to conclude that, at best for the applicant, it must have been charge 6. The jury's process of reasoning towards verdict is inscrutable. Counsel submitted that all convictions should be set aside and a retrial ordered.

1. Counsel for the respondent submitted that there is no ambiguity in s 46(2) of the Juries Act 2000. The precondition to receiving a majority verdict is if, after the jury has deliberated 'for a period of time that the court determines is reasonable, having regard to the nature and complexity of the trial', the jury 'is unable to agree on its verdict' or 'has not reached a unanimous verdict'. In the third note the jury indicated they 'cannot agree' in relation to one charge. There is no distinction, counsel submitted, between 'cannot agree' and 'unable to agree'. If the jury cannot agree it follows that they are unable to agree.
2. By their third note the jury indicated that they had reached a 'significant majority' on two separate charges - meaning that they could not agree on a unanimous verdict on those two charges - and 'cannot agree' on another charge. As a result the precondition to taking a majority contained in s 46(2) was satisfied. Both the alternative bases enlivening the power in s 46(2) to give a majority verdict direction were satisfied, so that the trial judge was not precluded from giving a majority verdict direction. (The respondent's counsel also noted that the jury had not revealed to the judge the number of its members who agreed or disagreed in the relevant verdicts.)

1. We interpret the jury's third note[19] as conveying, first, that they had reached unanimous verdicts on nine charges; secondly, they could not agree on a unanimous verdict on two charges (there being a 'significant majority' vote on those charges); and, thirdly, the jury could not agree on a third charge. In those circumstances - and contrary to the submissions of the applicant's counsel on this aspect - we consider it was open to the trial judge to 'take a majority verdict as the verdict of the jury'.
2. Pursuant to s 46(2) of the Juries Act 2000 the trial judge was empowered to take a majority verdict if two preconditions were satisfied: first, the jury had been 'deliberating for a period of time that the court thinks is reasonable, having regard to the nature and complexity of the trial'; and, secondly, the jury was 'unable to agree on its verdict', or 'ha[d] not reached a unanimous verdict'.
3. Counsel for the applicant did not suggest that, having regard to the nature and complexity of the trial, the jury had not been deliberating for a period of time that the judge considered reasonable. The jury had retired just after 11:00 am on 9 August 2023, and did not provide the third note until the afternoon of 11 August 2023. Hence, the jury had deliberated for most of the morning and the afternoon of 9 August 2023; most of 10 August 2023 (save when the judge gave a perseverance direction after the delivery of the second note); and the whole of the morning of 11 August 2023. In those circumstances it plainly was open to the judge to consider that, having regard to the nature and complexity of the trial, the jury had been deliberating for a reasonable period of time, so much satisfying the first precondition in s 46(2).
4. Moreover, it is plain from the jury's third note that they '[had] not reached a unanimous verdict' on two charges on which there was a 'significant majority' vote, and were 'unable to agree on its verdict' on one charge (there being no material semantic difference between a situation where a jury 'cannot agree' or is 'unable to agree' on a verdict). That being so, the second precondition in s 46(2) was also satisfied.
5. In those circumstances, it plainly was open to the judge to take a majority verdict on those charges upon which the jury had not reached a majority verdict or was unable to agree.
6. For these reasons, ground 1(a) is without substance.

Ground 1(b) and 1(c): Directing the jury to persevere when directing on a majority verdict and to persevere towards a majority verdict

1. Under cover of ground 1(b), counsel for the applicant noted that s 64B of the JDA prohibits a direction to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) a majority verdict direction. Further, s 64D abolishes the common law practice which involved a form of perseverance direction being given at the same time as a majority verdict direction. Counsel submitted that the judge breached ss 64B and 64D at two points.
2. First, the applicant's counsel submitted that when the judge gave the perseverance direction set out above,[20] he immediately preceded it with a majority verdict direction within the meaning of s 64A when he said:

Obviously I told you in the directions that I gave you there are some circumstances where I can take a majority decision. I'm not satisfied that I should give you a direction about that at the moment.

1. Secondly, senior counsel submitted that when the judge explicitly gave the jury the majority verdict direction earlier referred to,[21] he coupled it with a perseverance direction, thereby infringing ss 64B and 64D. In particular, counsel submitted that the following amounted to a perseverance direction:

Please return to the jury room and consult with one another. Listen carefully to the views of other jurors, discuss your differences, weigh up each other's opinions about the evidence, and test them.

1. Counsel submitted that the prohibition in s 64D is directed to perseverance to reach a unanimous verdict. Neither the common law nor the JDA countenance any form of deliberation other than deliberation towards unanimity. Accordingly, counsel submitted, a prohibition on a direction to persevere to reach a unanimous verdict is, of itself, a prohibition on a direction to persevere. Counsel further submitted that the JDA could not be taken simply to prohibit such a direction while leaving intact the effect of the earlier unanimity direction given by the judge. Thus, counsel submitted, in the absence of a direction, the majority verdict direction given to the jury would inevitably produce at least an unacceptable risk of a belief in the jury that agreement among eleven of them was sufficient and was the new goal of deliberation.
2. The applicant's counsel submitted that, in that context, the judge gave to the jury a direction to persevere at the same time at which he gave the judge a majority verdict direction, by directing the jury to return to the jury room and consult with each other, to discuss their differences, and to weight up each other's opinions and to test those opinions. Albeit counsel appeared to accept that the judge's direction conformed to the model direction in the Charge Book,[22] counsel submitted that the direction by the judge to persevere in that way, at the same time as he gave the jury a majority verdict direction, gave rise to a risk of compromise, such as to entail a substantial miscarriage of justice.
3. In support of ground 1(c), counsel for the applicant submitted that, by encouraging the jury to persevere with its deliberations at the same time as permitting it to return a majority verdict, the judge in effect invited the jury to deliberate towards a majority verdict, so much constituting a fundamental departure from the prescribed processes of a criminal trial. Counsel submitted that the discretion to permit a majority verdict is, in effect, an alternative to the discretion of a judge to discharge a jury without verdict. Thus, counsel submitted, both of those alternative resolutions should be regarded as concluding the jury's deliberations. The discretion to permit a majority verdict should not be exercised until the judge is satisfied that any further deliberation would be futile or oppressive. Accordingly, counsel submitted, at the time at which a majority verdict direction is given to the jury, the judge should not simultaneously direct the jury to continue deliberations in the hope that it may reach such a verdict. During oral argument senior counsel submitted that the 'thrust' of ground 1(c) is that a majority verdict direction is given to 'conclude' deliberations, not 'continue' them. Indeed, in a somewhat adventurous submission, counsel contended that, when giving a majority verdict direction, a trial judge must instruct the jury cease deliberations at that point.

1. Counsel for the respondent relied on the fact that the impugned direction was given in accordance with the model direction in the Charge Book,[23] which instructs the jury to: listen carefully to the views of other jurors; discuss any differences in views with an open mind; calmly weigh up each other's opinions about the evidence; and test those opinions by discussion. Counsel for the respondent also relied on the fact that the applicant's trial counsel did not object to the direction now sought to be impugned.[24]
2. The respondent's counsel submitted that the statement that immediately preceded the perseverance direction did not amount to a majority verdict direction within the meaning of s 64A of the JDA, given that it was not a direction that the jury could return a verdict of 11. Instead, the jury was simply reminded of what they hade already been told in the course of the judge's charge, and were specifically told that a majority verdict was not available at that point. Moreover, the direction subsequently given, when the judge permitted the jury to return a majority verdict on the charges on which they were not agreed, did not contain or include the proscribed perseverance direction. In particular, unlike a perseverance direction, the direction, given to the jury did not contain any reference to the benefit of having more time to consider and discuss the evidence. Nor was there any reference to the jury reaching any sort of agreement. Further, the jury were not encouraged to persevere towards a majority verdict, and there was no suggestion or encouragement for a member or members of the jury to change their mind.
3. Counsel submitted that the majority verdict direction given by the judge did not involve a risk of members of the jury compromising in order to achieve a verdict. While a perseverance direction does encourage a jury to reach an agreement, the majority verdict direction given by the judge to the jury did no more than advise the jury of that option, and encourage the jury to discuss the matter further. Accordingly, counsel submitted, the judge did not erroneously exercise his discretion to receive a majority verdict in respect of one charge. Further, the judge did not erroneously direct the jury to persevere in their deliberations at the same time as he gave it a majority verdict direction. And the trial judge did not erroneously direct the jury to persevere towards a majority verdict.

1. When a trial judge has decided under s 46(2) of the Juries Act 2000 to take a majority verdict, it will be necessary to give the jury a majority verdict direction under 64A of the JDA, explaining that it is possible to return a majority verdict instead of a unanimous verdict. Section 64C of the JDA provides that the trial judge may give a majority verdict direction whether or not he or she has previously given a perseverance direction. Moreover, ss 64B and 64D prohibit the judge from giving a direction to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) he or she gives a majority verdict direction.
2. For the purposes of determining the issues raised by ground 1(b) and ground 1(c), it is necessary to understand that ss 64A to 64D of the JDA were introduced as an apparent response to this Court's decisions in Muto[25] and Ahmet.[26] Indeed, a specific purpose of the provisions was to abolish any rule established by those cases requiring or permitting a trial judge to direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction.
3. Muto was the first occasion upon which this Court considered the directions that should be given in a case where a majority verdict may be available. The Court held that, in the context of explaining the unanimous verdict that is required in a criminal trial, a judge should include a statement to the effect that, first, in 1994 Parliament introduced a provision which, in certain circumstances, gives the judge a discretion to take a majority verdict; secondly, those circumstances have not yet arisen and may not arise at all; and, thirdly, until they do, the jury should consider that their verdict of guilty or not guilty must be unanimous.[27] The Court then observed that if a perseverance direction is required in the course of the trial, the judge should consider whether or not the time has arrived after which a majority verdict may be taken. If that time has not yet arrived, the judge should give a modified Black[28] direction (the terms of which it is unnecessary to set out).[29] Further, the Court said that if the stage is reached that the judge considers that the time for a majority verdict has arrived, the jury should be directed along the following lines:[30]

At the beginning of my charge I told you that circumstances might arise in which I could take a majority verdict. In the circumstances of this trial that means a majority of 11 out of 12 [or as the case may be]. It is still preferable that you endeavour to reach a unanimous verdict of guilty or not guilty and, when you resume your deliberations, you should endeavour to do that unless you consider that it is hopeless. If you cannot all agree, the verdict of 11 of you [or as the case may be] may be taken as the verdict of you all.

1. Subsequently, in Ahmet, on a trial for rape and associated offences, after the jury had deliberated for a period sufficient for a majority verdict to be taken, the jury foreperson informed the judge that that there was a 'stalemate' in respect of one of the charges. Without first seeking submissions of counsel, the judge instructed the jury that, first, they should attempt to reach a unanimous verdict on all counts; secondly, the jury was able to give a majority verdict of 11/1 on any count on which there was not unanimity; and, thirdly, if there was a stalemate, then 'so be it'. The jury then returned a unanimous verdict on three charges, and a majority verdict on another. Ashley JA (with whom Buchanan and Vincent JJA agreed), held that the trial judge had not erred in deciding to exercise his discretion to instruct the jury that it could give a majority verdict on the one charge on which the jury could not unanimously agree,[31] although it would have been better if the judge had given a perseverance direction before he instructed the jury that he would take a majority verdict.[32]
2. Sections 64A to 64D were introduced into the JDA by the Jury Directions and Other Acts Amendment Act 2017. In the Second Reading speech for the relevant Bill, the Attorney-General said that

the bill will affect the order and timing of perseverance and majority verdict directions. If a jury is having difficulty reaching a unanimous verdict, trial judges can give a direction encouraging the jury to persevere. If this direction is given, trial judges can simultaneously explain the judge may say 'in some circumstances, I can allow you to give a majority verdict instead of a unanimous one. But it is not yet time for that, and may never be. So I urge you to return to the jury room and try to resolve your differences'. While these statements are technically correct, giving them at the same time is confusing and unhelpful, and may also put pressure on juries to compromise.

Accordingly, the bill will clarify this area by providing that trial judges must not give a perseverance direction immediately before, at the same time as, or immediately after, a majority verdict direction. In addition, trial judges will no longer have to direct the jury to persevere before accepting a majority verdict (as they are in the best position to determine whether such a direction is appropriate in the particular case). By separating the perseverance and majority verdict directions, each direction will be clearer and more helpful for jurors in understanding what they may or must do.[33]

1. And the Explanatory Memorandum to the of the Jury Directions and Other Acts Amendment Bill 2017 included the following:

If a jury is having difficulty reaching a unanimous verdict after a reasonable period of deliberation, trial judges can currently give a direction encouraging the jury to persevere to reach a unanimous verdict, while in some cases simultaneously explaining that the jury may return a majority verdict. This is unhelpful and confusing for jurors. Accordingly, this Division clarifies when directions about perseverance and majority verdicts may be given.

New section 64A defines majority verdict direction as an explanation that it is possible, or may be possible in some circumstances, for the jury to return a majority verdict instead of a unanimous verdict.

As the Note indicates, section 46 of the Juries Act 2000 provides for majority verdicts. Section 46 allows majority verdicts for all Victorian criminal offences except murder, treason and certain major drug offences. This Bill does not amend that part of section 46. (Clause 22 amends other parts of section 46.)

New section 64B provides that the trial judge must not direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction. By separating the perseverance and majority verdict directions, each direction will be clearer and more helpful for the jury in understanding what it may or must do.

New section 64C allows the trial judge to give a majority verdict direction regardless of whether the judge has asked the jury to persevere to reach a unanimous verdict. A trial judge is in the best position to decide whether it is appropriate to ask the jury to persevere in a particular case. This section addresses the statement in R v Ahmet; DPP v Ahmet [2009] VSCA 86 that it is preferable for the trial judge to direct the jury to persevere to reach a unanimous verdict before the trial judge gives a majority direction (see the Note to new section 64C).

New section 64D abolishes any rule of common law under which a trial judge is required or permitted to direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction.

Note 1 provides that this provision abolishes the rule attributed to R v Muto & Eastey [1996] VicRp 21; [1996] 1 VR 336 and applied in R v Ahmet; DPP v Ahmet [2009] VSCA 86.

1. It is plain from both the statutory language, and the extrinsic materials, that the evident purpose of ss 64A to 64D is to disaggregate perseverance directions and majority verdict directions, so that a trial judge is not permitted to give a direction to the jury to persevere towards a unanimous direction at the same time, or immediately before or after, the judge gives a majority verdict direction.
2. As we have said, counsel for the applicant contended that the trial judge infringed ss 64B and s 64D at two points: first, when delivering a perseverance direction, the judge in effect introduced that direction by coupling it to a majority verdict direction; and, secondly, when giving what was principally a majority verdict direction, the judge infused it with a perseverance direction.
3. We do not agree.
4. Turning to the introduction to the perseverance direction[34] - the first point at which the applicant's counsel contended that the judge infringed the prohibitions in s 64B and 64D - we consider that for the judge to remind the jury that he had previously told them in the charge that 'there are some circumstances' in which he could take a majority verdict, but that he was 'not satisfied that [he] should give [them] a direction about that at [that] moment', did not amount to 'an explanation that it is possible, or may be possible in some circumstances, for the jury to return a majority verdict instead of a unanimous verdict'. Indeed, in context, the judge's comments amounted to a refusal to give the jury a majority verdict direction. He certainly did not explain the circumstances in which it would be possible to take a majority verdict, nor provide any explanation of what might in some circumstances constitute a majority verdict. On a fair reading of what the judge said, he did not tether the perseverance direction to a majority verdict direction in the sense prohibited by ss 64B and 64D. In our view, the direction was not afflicted by the vice to which the prohibitions are directed. The message that the jury had to work harder towards reaching unanimous agreement was not undermined by any conflicting message that it was sufficient for them to settle on a majority verdict.
5. As to the majority verdict that the judge did give[35] - the second point at which the applicant's counsel contended that the judge infringed the prohibitions in s 64B and 64D - analysis of the impugned direction reveals that the judge informed the jury that he was satisfied that they could give a majority verdict of 11 on the 'three charges' on which they were 'undecided'. He requested the jury to return to the jury room and to: consult with one another; listen carefully to the views of other jurors; discuss their differences; weigh up each other's opinions about the evidence; and test their opinions. The judge directed the jury to 'consider' those things, and instructed them that if after 'consideration of that direction' they were 'still stuck', he would then 'deal' with the situation. He did not, however, exhort them to endeavour to reach a verdict (whether unanimous or otherwise).[36]
6. At common law, a judge was permitted to give the jury a perseverance direction if it appeared that they were encountering difficulty in reaching a unanimous verdict. The High Court spelled out the form of the direction in Black:[37]

Members of the jury,

I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict.

1. Clearly, the perseverance direction sanctioned in Black contemplates a situation where the jury has been unable to reach a unanimous verdict, and the only course available to the judge is to either discharge the jury or to permit further deliberation. It is for that reason that a trial judge will inform the jury that experience has shown that often juries are ultimately able to agree in a unanimous verdict if given more time to consider and discuss the evidence, and will request jurors to re-examine the matters on which they are in disagreement and to make a further attempt to reach a unanimous verdict before they may be discharged.
2. The directions given by the judge, impugned by the applicant under cover of ground 1(b) and (c), did not contain any exhortation to the jury to endeavour to reach a verdict. Although some of the comments contained in the challenged direction are reminiscent of some parts of the Black direction - 'consult with one another'; 'express your own views'; 'listen carefully to the views of others jurors'; 'discuss your differences with an open mind'; and 'calmly weigh up each other's opinions about the evidence, and test them by discussion' - taken in context none of what the judge said amounted to a request that the jury 're-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged'. It is that instruction in the Black direction which is the critical component of a direction to persevere. In the absence of that (or a similar) instruction from the directions given to the jury by the trial judge in this case, it cannot be concluded that the judge contravened ss 64B or 64D of the JDA by giving to the jury a perseverance direction at the same time as a majority verdict direction. The judge simply did not direct the jury to persevere to attempt to reach a verdict.
3. For these reasons, the contentions advanced by the applicant's counsel that the judge directed the jury to persevere in their deliberations - whether to a unanimous or majority verdict - at the same time as giving a majority verdict direction cannot be accepted. The prohibitions in ss 64B and 64D were not infringed.
4. Before leaving ground 1(b) and ground 1(c) we should observe that the contentions advanced by the applicant's counsel to the effect that a majority verdict direction must be taken to conclude deliberations; so that, when giving a majority verdict direction, a trial judge must instruct the jury cease any further deliberations, are devoid of substance. Quite clearly, nothing in the provisions of the Juries Act 2000 or the JDA could lead to acceptance of those contentions. Moreover, as Gordon J observed in Smith,[38] the process which contributes over time to the development of the individual and collective views of jurors is fluid, not static, that fluidity arising

because the process is a human endeavour. The development of each juror's assessment and understanding of the questions to be answered is necessarily unique. It does not happen at the same time and in the same manner. The fluidity in the process also arises because of the nature of the jury's task. A jury is usually required to consider not only the ultimate question of whether guilt has been established beyond reasonable doubt, but also particular questions that are steps along the way to the final conclusion reflected in a verdict, or the inability to reach a verdict. As a juror's understanding of one question changes, so might their understanding of others. Indeed, until the final verdict, each juror is entitled to change their mind[39] and they do.[40]

1. Since jurors are entitled to change their minds at any point prior to the jury's verdict or verdicts being returned, the giving of a majority verdict cannot foreclose further deliberations. Generally, at the time when a trial judge gives a majority verdict direction, the extent of the 'numerical split' will not be known. All the judge will know at the point when the majority verdict direction is given is that the jury is not in unanimous agreement. The judge will have no way of knowing whether or not further deliberation might lead to a verdict that may be taken.[41] It would be preposterous for the jury to be required to return to the jury room after receiving a majority verdict direction and not make any endeavour to strive for a verdict.
2. For these reasons, neither ground 1(b) nor 1(c) can be upheld.
3. In light of the foregoing, the application for an extension of time within which to file a notice of application for leave to appeal against conviction must be refused.

1. There is one final matter that requires comment. In our view, the emphasised portions in the third paragraph of the model direction in the Charge Book[42] set out above are not a necessary component of a majority verdict direction. Although they did not occasion any miscarriage of justice in the present case, consideration should be given to their removal in order to avoid confusion or difficulty in future cases.

[1] To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Crimes Act 1958, s 38(1). The maximum penalty is 25 years' imprisonment.

[3] Crimes Act 1958, s 20. The maximum penalty is 10 years' imprisonment.

[4] Crimes Act 1958, s 18. The maximum penalty is five years' imprisonment.

[5] Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, in the circumstances of this case, the maximum penalty is five years' imprisonment. (See also s 320A.)

[6] The judge imposed a sentence of six years and six months' imprisonment for rape (charge 10), 12 months' imprisonment for making a threat to kill (charge 12) - two months' of which was ordered to be served cumulatively - and sentences of six months' and eight months' imprisonment for common assault (charges 6 and 9).

[7] Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed 'within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313'. The judge imposed sentence on the applicant on 13 December 2023, but the notice of application for leave to appeal was not filed until 26 April 2024, some 107 days outside the prescribed period.

[9] Although the word 'home' appears in the transcript, the parties agreed that the word in the jury's note was 'hung'.

[10] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44, 51-2. See [66] below.

[14] Judicial College of Victoria, Criminal Charge Book, [3.13.2] ('Charge Book'). (Emphasis added.)

[15] Subsection (4) requires a unanimous verdict for murder; treason; offences under ss 71 and 72 of the Drugs, Poisons and Controlled Substances Act 1981; or 'an offence against a law of the Commonwealth'.

[16] See [24] above.

[17] See [25] above.

[18] See [26] above.

[19] See [26] above.

[22] See [28] above.

[23] See [28] above.

[24] At [27] above.

[25] R v Muto and Eastey [1996] VicRp 21; [1996] 1 VR 336 (Winneke P, Callaway JA and Southwell AJA) ('Muto').

[26] R v Ahmet [2009] VSCA 86; (2009) 22 VR 203 ('Ahmet').

[28] See [66] below.

[33] Victoria, Parliamentary Debates, Legislative Assembly, 22 February 2017, 298.

[34] See [25] above.

[35] See [27] above.

[37] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44, 51-2. (Emphasis added.)

[38] Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161, [34] 171-2 ('Smith'). (Footnotes as in original; emphasis added.)

[39] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 at 51.

[40] See, eg, Burrell v The Queen [2007] NSWCCA 65; (2007) 190 A Crim R 148 at 218-219 [290]- [294]; LLW v The Queen [2012] VSCA 54; (2012) 35 VR 372 at 378 [24]- [25], 381 [32], 383 [50], 385 [63].

[42] At [28] above.