Court of Appeal (Vic)|2013-03-26|Before: Mr J, Priest JA, Weinberg JA

Nguyen v The Queen [2013] VSCA 65 (26 March 2013)

R v Nguyen [2011] VSC 632 (Lasry J)

CRIMINAL LAW - Appeal against conviction - Appellant found guilty after trial on charge of attempted murder - Juries - Majority verdicts - Disclosure of 11:1 majority by foreman in response to question from trial judge after two days' deliberations - Trial judge proceeded to give majority verdict direction, in conjunction with further Black direction - Majority verdict taken soon afterwards - Whether fact that judge aware of existence of an 11:1 majority meant that no majority verdict should thereafter have been taken - Whether substantial miscarriage of justice occurred - No objection taken at trial to course adopted by trial judge - No request for further direction - No denial of procedural fairness as numbers disclosed in open court - Undesirability of enquiring as to precisely how jury divided - Appeal dismissed - ; , distinguished.

1 I have had the advantage of reading in draft the reasons for judgment prepared by Priest JA. His Honour has concluded that this appeal should be allowed, and a new trial ordered. I respectfully disagree.

2 There is but one ground of appeal now before this Court. It is in the following terms:

A miscarriage of justice resulted from the learned trial judge improperly inquiring as to how the jury was divided.

3 Priest JA has set out the background facts, and the relevant passages in the transcript and charge that are said to give rise to this ground of appeal.

4 As will be seen from his Honour's judgment, the appellant was convicted of the attempted murder of her boyfriend, Bao Van Vo. There was no dispute that, after having had sex, she had stabbed him three times. The first stab wound was inflicted while he was in the bathroom washing his hands. Mr Vo's evidence was that he put his arm up to stop the blow, and suffered cuts to his arm. The appellant then stabbed him twice in the left side while he was in the shower washing blood from his body after the first attack. The medical evidence was that Mr Vo suffered lacerations to his arm and body, and direct wounds to his liver.

5 The appellant pleaded guilty, in the presence of the jury, to a charge of intentionally causing serious injury. However, the Crown persisted with a charge of attempted murder. The only issue in the trial therefore was whether the prosecution could establish that the appellant had the requisite intent for attempted murder, namely an intent to kill.

6 Pre-trial argument commenced on Wednesday 5 October 2011. The jury were empanelled on the following day. The evidence took only three days, and the jury commenced deliberations on Wednesday 12 October 2011. After more than two days, they asked a question, on the Friday afternoon, which indicated that at least one of their number was having difficulty with the meaning of the word 'intent'. The trial judge gave further instructions on that issue.

7 Later that same day, his Honour determined to give the jury a Black direction.[1] Having done so, he then permitted them to go home over the weekend.

8 On the following Monday, it became clear that the jury were having difficulty in arriving at a verdict. At 3.15pm on that afternoon, his Honour raised with counsel whether the point had been reached at which a majority verdict direction might be warranted. He added that, having regard to the jury's question on the previous Friday regarding the meaning of intent, he would be 'pretty uncomfortable' about taking such a verdict.

9 Shortly thereafter, the jury were brought back into the courtroom and the particular exchange that has given rise to this appeal took place. The transcript of that exchange is set out at paragraph [45] of Priest JA's judgment, and I will not replicate it here. It is sufficient to say that the judge asked a question that, viewed in hindsight, might be thought to have been unwise, and somewhat poorly expressed.

10 His Honour's question elicited the fact that there was an 11:1 majority in favour of a verdict, though it gave no indication of what that verdict might be. The jury were then sent back to their jury room.

11 What happened next is set out at paragraph [47] of Priest JA's judgment. What emerges from that discussion is that the judge considered that the foreman's answer to his question, to the effect that there was an 11:1 majority in favour of a verdict, 'rather change[d] things'. He added that to the extent that he had a discretion as to whether to give a majority verdict direction, the changed circumstances meant that he should 'probably' do so.

12 The prosecutor supported that course. Defence counsel agreed that there was power to give such a direction, and when asked whether he agreed that the discretion should be exercised in favour of doing so, answered simply: 'as your Honour pleases'.[2] He might, of course, have sought a further Black direction, or indeed a discharge of the jury. He did neither of those things.

13 The jury were once again brought back into Court. On this occasion, they were given what might be described as a further Black direction, but coupled with that, they were told that failing unanimous agreement a majority verdict might be taken. His Honour's direction is set out in full at paragraph [50] of Priest JA's judgment.

14 It can be seen from all of this that this appeal boils down to one point. Was the judge correct in allowing the jury to deliver a majority verdict once he had been made aware, as a result of the question he had posed, that there was already in existence an 11:1 majority in favour of a verdict?

15 In my view, the appellant has not established that a substantial miscarriage of justice occurred.[3]

16 First, although his Honour said, on the Monday afternoon, that he would feel 'pretty uncomfortable about taking a majority verdict', that cannot be regarded as a definitive conclusion on that point. In no sense had he foreclosed the possibility of doing so. It was nothing more than an indication to counsel as to how his Honour viewed the matter at that stage. It was a provisional opinion, and nothing more. It would be wrong, in my view, to make more of that expression now than it actually warrants.

17 Secondly, the judge was perfectly entitled to enquire of the jury how they were progressing, and whether there was any likelihood of an imminent verdict. It seems to me to have been unwise, however, to ask whether there was 'more than one' juror on each side of the argument. No harm would have been done had the answer to that question been 'yes'. Once his Honour was told, in effect, that the jury were divided 11:1, he was put into an awkward situation as regards whether to take a majority verdict.

18 Thirdly, this was not a case where either party was denied procedural fairness.[4] The information elicited from the foreman was given in open court. Both the prosecution and the defence were made fully aware of the fact that the jury seemed to be divided 11:1, as at 3:18pm on the Monday afternoon.

19 Fourthly, in so far as the judge stated that this information 'rather change[d] things', he did so in the context of inviting submissions from counsel on both sides. He said that it 'seem[ed] to him' that a majority verdict direction was now warranted, but invited submissions from both sides as to whether he should adopt that course. Defence counsel was invited to make any submission that he wished regarding this matter. It is fair to say that, at the very least, he acquiesced in the course that had been foreshadowed. Plainly, he was well aware that there were alternatives. He referred to the fact that the jury had been deliberating for a long time, but did not make any application for a discharge. He did not ask for a further Black direction, though in fact the judge did reiterate to the jury the need to take into account each other's opinions, to engage in calm and rational discussion, and to reach a unanimous verdict if at all possible. Viewed objectively, it would be difficult to resist the conclusion that, acting upon instructions, he decided to 'roll the dice'.

20 Fifthly, this is not a case in which it can be said that any such decision lacked rational justification.[5] Many would think that in a case where the appellant had already pleaded guilty, in the presence of the jury, to intentionally causing serious injury, and where there would be likely to be the usual forensic difficulties associated with proving an actual intent to kill, an 11:1 majority signified a majority in favour of acquittal.

21 Sixthly, although counsel who appeared at the trial also appeared on the appeal, and explained that he had failed to appreciate, at the time, that he ought to have persisted in asking for a further Black direction, or a discharge of the jury - and I have no reason to doubt his frankness in that regard - the fact remains that he was given every opportunity, at trial, to urge upon his Honour that he not give a majority verdict direction. His failure to do so cannot, in my view, be ignored. Counsel was no novice. He was experienced, and ran the trial entirely competently. He was, as the transcript reveals, well aware of his options. He must, as I have previously noted, be presumed to have acted in accordance with his instructions. This Court should be slow to set aside a conviction, effectively on the basis of a failure to discharge the jury, where counsel, having been fully aware of the fact that such an application might be warranted, did not pursue that course.[6]

22 Seventhly, when the judge brought the jury back and gave them the majority verdict direction, he accompanied it with a further Black direction. He asked them to go back into the jury room and discuss the issues between them to see whether more time could resolve their difference. Only if it were to 'become clear after some further discussion ... that [they were] never going to reach a unanimous verdict' were the jury to be permitted to return a majority verdict. It is true that the jury then deliberated for only a further 20 minutes or so before indicating that they had reached a majority verdict. It should not be assumed, however, that they disregarded his Honour's direction to them to attempt to reach a unanimous verdict before bringing in a majority verdict. This Court must proceed upon the basis that a jury, so instructed, would obey that direction, and at least try to reach unanimity. I do not accept the submission advanced on behalf of the appellant that the jury would have gone through a 20 minute charade once told that they could return a majority verdict.

23 Lastly, in a case where the trial has been impeccably conducted, and no complaint is made about any aspect of the charge, it is difficult to see how it can be said that there was a substantial miscarriage of justice merely because the jury were invited to deliver a majority verdict which, in fact, was perfectly open to be taken. It is true that the judge, and all others present in court, had available to them information to the effect that the jury were divided 11:1 prior to the majority verdict direction being given. I do not think that the availability of information of that kind, undesirable though it may be that the numbers are known, of itself necessitates the discharge of a jury. And I certainly do not think that there was a high degree of need to discharge this jury in circumstances where such a discharge was not sought by counsel for the appellant.

24 I should say one more thing. During the course of the appeal, senior counsel for the Crown submitted that not only was his Honour's question to the jury as to whether there was more than one juror holding out against the others entirely proper, and to be commended, but that the practice of ascertaining what the numbers are at any given stage of a jury's deliberation was one that should be expressly endorsed by this Court. It was submitted in that regard that cases such as M J R[7] and L L W v The Queen[8] were wrongly decided, and that judges should routinely ascertain from juries who appeared to be having difficulty arriving at a verdict exactly what the numbers are.

25 In my view, that submission should be emphatically rejected. The common law has long set its face against ascertaining exact numbers from jurors during the course of their deliberations. The introduction of majority verdicts changed nothing

in that regard. As a result of M J R, the Victorian Criminal Charge Book now recommends that jurors be told that no matter what happens, they should not indicate what the exact numbers are in favour of any particular verdict at any stage prior to delivery of a verdict.[9] If that course is followed in the future, trials in this State will run more smoothly, and this Court will be spared the need to consider appeals that are, in many cases, without merit.

28 On 18 April 2012, a judge of this Court gave the appellant leave to appeal against her conviction for attempted murder on a ground claiming that '[a] miscarriage of justice resulted from the learned trial judge improperly inquiring as to how the jury was divided'.

29 Although the ground as formulated is apt to obscure one of the significant issues in this appeal, in my opinion the appellant has demonstrated that a substantial miscarriage of justice has occurred, such that her conviction for attempted murder should be quashed. My reasons for reaching that conclusion follow.

30 In order to understand the sole ground of appeal, it is necessary briefly to outline some background.

31 On 22 February 2010, the appellant visited her doctor. She was angry, upset and crying. The appellant told her doctor that she wanted to kill her boyfriend because 'she doesn't want to share her love with somebody else' (the 'somebody else', apparently, being her boyfriend's wife). So concerned was the doctor about the appellant's mental state that he contacted a psychiatrist for advice.

32 Some eight days later, on 1 March 2010, the appellant's boyfriend, Bao Van Vo, visited the appellant at her residence in Springvale. He told her that they should see each other as friends, and that he did not 'want to be in an intimate relationship with her anymore'. Despite having expressed this attitude to the relationship, however, Mr Vo had sex with the appellant. Shortly after, when he went into an en suite to wash, the appellant entered and stabbed him in the arm with a knife. Not unreasonably, the appellant's boyfriend asked, 'Why? Why did you do this to me?'. The appellant answered, 'If I don't kill you, you could then still desert me'. Mr Vo then entered the shower area, and while he was occupied with washing, the appellant stabbed him again twice to the left side. Eventually the appellant dropped the knife and started to cry, and her injured boyfriend was able to leave. He collapsed outside. Police and ambulance attended.

33 Shortly afterward, the appellant was arrested. She made no admissions.

34 Later that day Mr Vo was operated on. The surgeon found him to have an abdominal laceration and haematoma; a laceration of the liver; and lacerations on the right arm.

35 On 6 October 2011, when arraigned before a jury panel in the Supreme Court, the appellant pleaded not guilty to attempted murder, but guilty to intentionally causing serious injury. There was no contest that the appellant stabbed Mr Vo. And by her plea she admitted that she intended to cause him serious injury. There was thus but one issue in the trial: at the time that she stabbed Mr Vo, did she intend to kill him; or, expressed perhaps more accurately, could the prosecution prove beyond reasonable doubt that, at the time she stabbed Mr Vo, the appellant intended to kill him?[10]

The issues on the appeal and summary of conclusions

36 As I have said, the single ground as drafted tends, to some extent, to obscure one of the real issues on the appeal. As pleaded, it claims that a miscarriage of justice resulted from the trial judge 'inquiring as to how the jury was divided' before taking a majority verdict under s 46(2) of the Juries Act 2000. Despite the narrow way in which the ground is formulated, in my opinion there has been a substantial miscarriage of justice arising in one or other, or both, of two ways. First, the question elicited information which the judge should not have had before he exercised his discretion to take a majority verdict. It was a serious irregularity in the trial process for the judge to have used the information as a basis for the exercise of his discretion. That the jury returned a majority verdict is no answer to this irregularity. The second way in which there has been a substantial miscarriage of justice does not arise from the impugned question itself - although it may have been the springboard for the error - but rather from the directions given to the jury immediately after the division of the jury was disclosed. In light of what the jury revealed to the judge, and the directions he gave concerning a majority verdict responsive to what he was told, it is highly likely that the environment in the jury room changed to the detriment of the appellant.

37 In order to understand why this is so, it is necessary to set out in some detail the course of the jury's deliberations, exchanges between the judge and counsel, and the directions given to the jury shortly before the verdict was taken.

The judge's question and the taking of a majority verdict

39 At 12.09 pm on 12 October 2011 they retired to consider their verdict. A separation oath was administered at 4.07 pm and the jury separated. The jury then deliberated all of 13 October 2011.

40 On 14 October 2011, after more than two days' deliberation, the jury asked for assistance:

Your Honour, you mentioned in your instructions that there were three elements to the crime, the first of these was that the prosecution must prove the accused woman intended to kill Mr Vo. We would welcome some clarity or legal definition around the word 'intent'.

41 It is remarkable that, following more than two days' deliberation in a trial where the single issue revolved around the appellant's intention, the jury would ask for a further definition of the very aspect that must have been the focal point of any rational deliberation. In any event, at 3.17 pm the judge gave further directions on intent which, for present purposes, are not contentious. The jury again retired at 3.24 pm.

42 Later, at 5.28 pm, the judge returned to the bench remarking that 'the jury are now in difficulty in reaching a verdict'. Both counsel agreed that a Black[11] direction should be given. After the jury entered the courtroom the direction was given. I need not set it out. It is enough to say, first, that it was in accordance with what Black requires of trial judges; and, secondly, that no mention was made of the possibility of a majority verdict. The judge invited the jury to return to the jury room to decide whether they wished to continue on Monday (it then being Friday afternoon). In the result the foreman indicated that the jury would like to have the weekend 'to think about it', and at 5.54 pm they left the court.

43 On Monday 17 October 2011 at 3.15 pm, the judge returned to the bench. The following discussion occurred with counsel:[12]

HIS HONOUR: We don't seem to be making much progress. We will find out how much in a minute. I looked at s 46 of the Juries Act and I must say, without having heard any argument about it, given the time that they've taken and given the question they asked I would be pretty uncomfortable about taking a majority verdict.

[PROSECUTOR]: You would be uncomfortable about it, would you, Your Honour?

HIS HONOUR: Yes. I don't know if it's an 11/1 problem. We have no idea but at the moment I must say I'm not inclined to raise it but I thought I would give you the opportunity to put arguments. If you want me to put a majority verdict I think I can. I think it's clear that a majority verdict is available in a case like this but it is at my discretion I think.

[PROSECUTOR]: The only thing I would say about it, Your Honour, and I hear what Your Honour says, I agree, we don't know where they are at. However, we do know that at the moment they are of the view they have to reach a unanimous verdict.

HIS HONOUR: Yes.

[PROSECUTOR]: What I do say, Your Honour, is that - pretty much similar to what I said on Friday, that if we can get a result, that is of course preferable. And if by getting a result is by way of a majority verdict, then I would urge Your Honour to go down that path. It really would, I would have thought anyway, require Your Honour to see how they are going first anyway at least.

HIS HONOUR: Yes. I thought I would do that first and then we can perhaps have another discussion about it. Mr [Defence counsel],do you want to say anything at this stage?

[DEFENCE COUNSEL]: No, Your Honour, I can't say anything until we see how they are going.

44 It is noteworthy that the judge made reference to s 46 of the Juries Act 2000, which regulates both the discharge of a jury or the taking of a majority verdict after six hours' deliberation, and remarked to counsel that he would be 'uncomfortable about taking a majority verdict' (particularly, so it seems, in view of the jury's earlier question about 'intent'). The judge also remarked that he did not know if it was an '11/1 problem', but he was 'not inclined to raise it'.

45 At 3.18 pm the jury came back into the courtroom, and the following critical exchange took place:[13]

HIS HONOUR: Mr Foreman and members of the jury, since you have now been deliberating for, not counting the weekend because you weren't deliberating over the weekend, of the order of three days, I think it is appropriate for me to find out, having given you the directions I gave you on Friday, whether you are making any progress. Depending on what you tell me about that, we will work out what to do next. Mr Foreman, are you making any progress?

MR FOREMAN: I think it's probably safe to say we have, we feel like we have made progress since the weekend. The weekend was useful for most people. This morning we felt like we made further progress. However, it still feels like a unanimous decision is not imminent.

HIS HONOUR: A unanimous decision, when you say not imminent, do you mean won't be reached?

MR FOREMAN: I don't know if it's possible for me to say won't be reached but it feels like ...

HIS HONOUR: It's unlikely.

MR FOREMAN: Unlikely at this stage, yes.

HIS HONOUR: I don't want you to give me the numbers particularly, but insofar as there are two sides of the argument, is there more than one of you on each side of the argument?

MR FOREMAN: Not more than one, no.

HIS HONOUR: Yes, Mr Foreman, members of the jury. Thank you for that. I will ask you to leave us now and we will work out what to do next. If you could continue your deliberations. Thank you.

46 Although I have considerable doubt that it was his intention to elicit the voting numbers, the phrasing of the judge's question had the capacity to do just that. Thus the judge's question drew out information which, in my opinion, ought not to have been known to him or to the parties. Importantly, by teasing out that there was not more than one of the jury 'on each side of the argument', it was revealed that there was an 11 to 1 majority in the jury room (there being no other sensible way to interpret the jury's comments). I will return to the significance of this revelation later.

47 The judge then had the following discussion with counsel:[14]

HIS HONOUR_: Well, that rather changes things. It seems to me in those circumstances I should, in effect, give them a majority verdict direction_, Ms [Prosecutor].

[PROSECUTOR]: I think that's right, Your Honour. They've been here probably almost longer than the trial itself and I think it's now a bit onerous on them. If they can reach a majority verdict - sorry, if they can reach a verdict and that's by whatever means, they are indicating that perhaps a majority verdict may be the way to go. I mean they are not indicating that but their answer to Your Honour's question was indicating that might assist.

HIS HONOUR: It does seem as though it is likely to be an 11 to one situation from what the foreman said.

[PROSECUTOR]: It may be. We still don't know.

HIS HONOUR: Mr [Defence counsel], do you want to say anything?

[DEFENCE COUNSEL]: I don't know there is a lot I can say, Your Honour. It has now been a long time.

HIS HONOUR: If the foreman had said, 'We are evenly divided'.

[DEFENCE COUNSEL]: It would be a different situation.

HIS HONOUR: It would be totally different but I think he has given a pretty clear indication that there is one person on one side and 11 on the other. In those circumstances, to the extent that under s 46 I have a - I take it you agree that this is a case that fits within the majority verdict provisions?

[DEFENCE COUNSEL]: I do, Your Honour.

HIS HONOUR: To the extent that there is a discretion involved I probably should exercise it in favour of taking a majority verdict.

[DEFENCE COUNSEL]: As Your Honour pleases.

48 It is clear, in my view, that the judge's initial view was that a majority verdict should not be taken. Thus, unless he was to make the jury persevere in order to try and reach a unanimous decision (which seems like an unlikely course), the judge was left with only one option - discharge the jury. Moreover, it is clear that his expressed view was that knowing that the jury were 11 to 1 'rather changes things'. It was only once the trial judge thought that the division in the jury room was likely to be 11 to 1 that he offered the view that the case thus fitted within the majority verdict provisions of the Juries Act (and he obtained the agreement of defence that it did); and that, to the extent that he had any discretion, it dictated exercise it in favour of taking a majority verdict.

49 Defence counsel does not appear to have demurred. Had he thought that the judge should not take a majority verdict, he should have said so. He did not. One might therefore be inclined to the view that he was prepared to 'roll the dice', and in thus concluding that his client should be bound by his conduct of the case.[15] In oral argument, however, counsel informed the Court that, rather than the lack of objection being a deliberate choice to 'roll the dice', he was taken by surprise by the quickly unfolding turn of events, including the fact that the judge's first position had been that he would be uncomfortable about taking a majority verdict. I will need to return to the consequences, if any, of counsel's conduct of the case.

50 The judge then had the jury brought back into court and he gave them the following instruction:[16]

Mr Foreman and members of the jury, in view of what was said by you, Mr Foreman, a little while ago I am now satisfied that I should exercise the jurisdiction I have to permit you, if you can reach it, to deliver a majority verdict. That would be a verdict which is agreed upon by 11 of the 12 of you. I emphasise it is preferable that you reach a unanimous verdict. I do ask you to go back into the jury room shortly and discuss the issues between you and see whether any more time will resolve that difference. As I said to you on Friday, you have, each of you, affirmed or sworn to give a true verdict in accordance with the evidence. That's an important responsibility, as I said to you then, and you obviously must fulfil it to the best of your ability, relying on your collective and individual experience and wisdom.

I also said to you on Friday that you should take into account each other's opinions about the evidence and engage in what might be described as calm and rational discussion, but you must reach your own decision.

As I also pointed out to you, you shouldn't change your mind simply to reach a unanimous verdict if it is not your genuine view as to the verdict that should be delivered.

But if it becomes clear, after some further discussion, that you are never going to reach a unanimous verdict, then you can instead return a verdict by majority of 11 of the 12 of you. If 11 of you agree in accordance with the relevant legislation, then you may deliver a verdict on that basis.

If that be the position you will be asked to indicate - as I think I have said to you during the trial, the procedure basically will be that if you reach a verdict you will be brought into court. My associate will ask you, Mr Foreman, whether the jury has reached a verdict, and what the verdict is, whether a verdict of guilty or not guilty, and once that verdict has been delivered then she will ask you whether you have reached that verdict unanimously or by a majority of 11 to one. Mr Foreman, it will be your responsibility to answer that question. We need to know whether it is a unanimous verdict or a majority verdict.

You only need say the verdict was reached unanimously or by a majority. It's not necessary, for example, to identify who was in favour of what. It is simply whether you have reached it unanimously or by majority, and you will not be asked for any information that reveals who took what position and you should not reveal that. It is part of your confidential discussions and you will not be asked to reveal it, certainly in this court or by anybody else.

So having said that to you, members of the jury, I will ask you to go back into your jury room and see if you can reach a verdict, either unanimously or by majority of 11.

51 For reasons that I will shortly explain, this direction is the source of the substantial miscarriage of justice in this case. Although the judge told the jury that 'it is preferable that you reach a unanimous verdict', that was against the backdrop that he had already informed them that he was 'now satisfied' that he should exercise the jurisdiction that he had to permit them to deliver a majority verdict. In my opinion, following these instructions, the chances that the jury would have strived to reach a unanimous verdict are slender. Indeed, it is highly likely that the environment in the jury room altogether changed. The 11 in the majority would have known that there was no need to try and persuade the one; and, very likely, the one would have felt even more isolated than he or she may have felt before the judge told the jury he would take a majority verdict. Moreover, the jury would have inferred from the judge's statement - 'in view of what was said by you ... a little while ago I am now satisfied that I should exercise the jurisdiction I have to permit you, if you can reach it, to deliver a majority verdict' - that judge thought that a majority verdict was appropriate.

52 In the result, the judge having given the direction, at 3.38 pm the jury again retired. A majority verdict of guilty to attempted murder was returned less than twenty minutes later, at 3.57 pm.

53 As I understood the appellant's submissions, there were two main themes. The first, which constituted the main thrust of the written submissions, was that there had been a denial of procedural fairness. Thus in the appellant's written submissions, it was said that the 'gravamen' of the appeal is that the inquiry made by the trial judge amounts to a material irregularity, leading to a substantial miscarriage of justice. It was submitted that the appellant was effectively prevented from making a submission to the judge that he should not take a majority verdict or, alternatively, that he should discharge the jury without verdict. Considerable reliance was placed on the words of Ashley JA in M J R[17] - taken I think, however, somewhat out of context - that the judge was 'disabled from dispassionately considering an application to discharge the jury without verdict'.[18] The gist of these submissions was repeated in oral argument.

54 During oral argument, the Court pressed counsel for the appellant to articulate clearly what constituted the 'substantial miscarriage of justice'[19] for the purposes of this appeal. It was then that the second main theme in the appellant's case emerged with any clarity. As I understood his submissions, counsel for the appellant did ultimately submit that the substantial miscarriage of justice in this case included the effect of the judge's question - and the response it elicited - on the nature of the jury's deliberations, in light of his Honour's almost immediately expressed resolve to accept a majority verdict.

55 Counsel for the respondent submitted that there was no procedural unfairness in the judge asking the question that elicited voting numbers. Indeed, counsel submitted that 'the judge was entitled to ask what the numbers are'. It is appropriate for a judge to have that information so as to exercise the discretions in s 46(2) of the Juries Act 2000 either to discharge the jury or take a majority verdict. In counsel's submission, such a course is authorised by s 78(3) of the Act.

The Juries Act and the discretion to take a majority verdict

56 It is necessary to set out relevant parts of s 46 of the Juries Act 2000. So far as is relevant, it provides:[20]

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 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 ... 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.

...

57 Section 46 gives the trial judge a discretion either to discharge the jury, or take a majority verdict, so long as the jury have deliberated for at least six hours, and the jury is unable to agree on its verdict or has not reached a unanimous verdict. Beyond those referred to, subsection (2) sets no preconditions for the exercise of the discretion; although subsection (3) requires the judge not to take a majority verdict - even if six hours' deliberation time has passed - if, due to the nature and complexity of the trial, the jury has not had a reasonable period of time for deliberation.

58 Importantly, there is nothing in s 46(2) that dictates that a judge must take a majority verdict. That the court retains a discretion whether or not to take a majority verdict appears from the word 'may' in s 46(2),[21] and the presumption that the legislature would intend to modify a fundamental common law right to the least degree reasonably consistent with the language of the statute.[22]

59 What factors bear on, influence or animate the exercise of the discretion beyond those in ss 46(2) and (3)? Or viewed another way, another way, what must a judge not have regard to in exercising the discretion? These are necessary questions to ask, since the appellant's case revolves around the proposition that the exercise of the discretion in this case miscarried because, so it is asserted, the trial judge 'improperly' inquired as to how the jury 'was divided'. In providing an answer to these questions, it is important to isolate the extent to which a judge may inquire as to, or be informed about, jury voting numbers.

60 Regard must also be had to s 78 of the Act, the relevant parts of which provide:

(1) A person must not -

(a) publish, or cause to be published, any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of a jury; or

(b) solicit or obtain the disclosure by a person who is or has been a juror of statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury.

Penalty: In the case of a body corporate, 3000 penalty units;

In any other case, 600 penalty units or imprisonment for 5 years.

(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.

Penalty: 600 penalty units or imprisonment for 5 years.

(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; ...

61 Counsel for the respondent submitted that s 78(3) permitted an inquiry by a trial judge as to a jury's voting numbers. I turn first to that submission.

62 In my opinion, the respondent's submission that s 78(3) of the Juries Act 2000 permits an inquiry by a judge during the course of a trial as to voting numbers cannot be upheld.

63 Section 78 is found in Division 1, 'Offences', of Part 10 of the Act, 'Offences and Enforcement'. The headings indicate the general subject-matter contained within them.[23] Division 1 concerns itself with a number of offences designed to protect the integrity and secrecy of the jury's identity and deliberations. Contextually, it is plain, in my view, that s 78(3) is directed towards irregularity in the jury process.[24] It does not displace the common law, [25] which sets its face against trial judges making inquiries to determine jury voting numbers.

64 Rose[26] was a different case from this, in that a judge had private communications with a jury, the content of which might have suggested that pressure was brought to bear on the jury to reach a verdict. Lord Lane CJ made some observations which are, however, of general application:[27]

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.

65 That was not, however, what occurred in this case. Although the judge introduced the impugned question by saying, 'I don't want you to give me the numbers particularly', he then asked a question that had the potential to reveal specifically how the jury was divided when he asked, 'insofar as there are two sides of the argument, is there more than one of you on each side of the argument?'. I very much doubt that it was the intention of the judge to elicit the fact of an 11 to 1 division; and with the benefit of hindsight I am confident that any question to the jury on the topic would have been differently expressed. But it will also be remembered that the judge had introduced the topic by saying, 'Depending on what you tell me about [progress], we will work out what to do next'. Thus, when the trial judge soon after brought the jury back into court and told them that they might return a majority verdict, the jury would have been in no doubt that the reason why they were permitted to do so was because the judge was aware that they were divided 11 to 1.

66 To some extent, this case represents a different side of the coin represented in many of the decided cases, which in general terms are concerned with a denial of procedural fairness, in situations where a judge has received communications from a jury (including voting numbers) which are not revealed to counsel. In Ramstead,[28] a trial judge received the jury foreman in his chambers for a private meeting, where the foreman discussed with the judge a 'rider' that the jury had to the verdicts that they had reached, the conversation not being revealed to counsel until after the jury delivered verdicts. The Privy Council held that the communication was a material irregularity.

67 In Gorman,[29] Lord Lane CJ discussed the kinds of mundane communications between judge and jury which need not be disclosed in open court and those that should. He then observed:[30]

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.

68 Townsend[31] was a case where the jury, within two hours of retirement, sent a note to the judge indicating the majority (the numbers being 8:4) were in favour of an acquittal. Without recourse to counsel, the judge sent a note back to the jury telling them to continue their deliberations until a unanimous verdict was reached. Disclosure of the interchange was not made until after verdict. Waller LJ remarked:[32]

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.

69 A similar approach has been taken in Australia. In Yuill,[33] the NSW Court of Appeal (Hunt CJ at CL; Abadee and Simpson JJ) expressed the 'basic rule', and exceptions to it, to be:[34]

It has always been the basic rule that the contents of any communication

between the jury and the trial judge must be disclosed to the parties in open

court and recorded in the transcript ...

There are two exceptions to that basic rule. The first is where the

communication concerns some subject which is unconnected with the issues

which the jury have to determine - for example, a request by a juror to pass

on a message to a relative about staying back late ... The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge - the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement: ...

70 Before proceeding further, I should mention Oduro,[35] a decision which Lord Lane CJ described in Gorman as 'not altogether free from ambiguity.'[36] With respect, in my opinion, it ought not be regarded as correctly decided. I mention it only for the sake of completeness. In Oduro, the jury, after retiring, sent three notes to the trial judge. One, which suggested that the jury were split seven to five on a guilty verdict, was not brought to the attention of counsel until one of two later notes was dealt with in open court. The Court of Appeal (UK) concluded there was no material irregularity in the judge adopting this course. In my opinion, however, it is clear that the conclusions reached in that case are inconsistent with decisions of this Court, and it thus should not be followed.

71 By way of example, in Black[37] the three appellants were charged with offences arising from a 'home invasion', and were convicted of aggravated burglary and associated offences. The trial judge had received written questions from the jury relating to joint enterprise and included a request for clarification of the difference between charges. These questions 'did not reveal information which the jury should not have imparted',[38] but they were answered by the judge without the appellants' knowledge. This fact resulted in this Court setting aside the convictions. Buchanan AP (with whom Eames JA and Kellam AJA agreed) said:[39]

There is no place in a trial for secret communications between the arbiters of fact and law. It is a fundamental requirement of the administration of the criminal law that the trial and every aspect of the trial take place in open court.

72 A similar situation arose in Hart.[40] The NSW Court of Criminal Appeal held there to be a miscarriage of justice in a situation where a juror handed a note to the trial judge which was not shown to counsel. Interestingly, the Court appears to have had no recourse to decided authority in reaching that conclusion, presumably because the applicable principles are trite.

73 As I earlier observed, the appellant placed a deal of reliance on this Court's decision in MJR. In that case, at 2.20 pm on the second day of deliberation in a trial of nine sex offences (the jury having retired at 12.29 pm the previous day), the jury sent a note that it was unable to reach a unanimous decision on any of the charges, and that it did not believe that further deliberation would change this position. The judge apprised counsel of the contents of that note. Defence counsel applied for a discharge of the jury. The judge refused the application, and gave a Black direction. Later that afternoon, the jury sent a second note to the judge, informing him 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. This second note stated that the majorities varied. It informed the judge that 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. The trial judge, however, said nothing to counsel that afternoon about the contents of the note.

74 The next morning, the judge advised counsel simply that the jury was still unable to reach a unanimous verdict on any count, without revealing the voting divisions. He invited submissions whether he should permit a majority verdict if the jury could not reach a unanimous verdict on any count. The prosecutor submitted that it was appropriate that the judge inform the jury straight away that he would take a majority verdict. Counsel for the appellant submitted, to the contrary, that the judge should discharge the jury, but the application was refused. The judge then gave a second Black direction; and informed the jury that he would take a majority verdict if it became clear that the jury was 'never going to reach a unanimous verdict'. A little less than an hour later, the judge returned to the bench and advised counsel that, shortly after he had given the second Black direction, a juror had informed his tipstaff that the juror was 'being harassed into giving a verdict'. Before submissions could be heard about that matter, however, the judge received a note from the jury saying that it had reached a majority verdict on three counts. Defence counsel again sought a discharge of the jury, that application also being rejected. The jury was brought in and the foreman confirmed that there was a majority verdict on three counts. After a brief retirement he further confirmed that there was no prospect of the jury agreeing upon a unanimous or majority verdict on other counts. Majority verdicts were accordingly taken on the three counts only.

75 On the appeal, senior counsel for the Crown put three principal submissions: first - and in sharp distinction to what senior counsel for the Crown submitted in the present case - the jury should not have apprised the judge of the details of votes cast in the course of deliberations; secondly, the judge should have informed counsel of the contents of the second note; and thirdly, if there was any breach of procedural fairness in what had occurred, it had not occasioned a miscarriage of justice. Counsel for the appellant agreed with the first and second submissions, but disagreed with the third. Ashley JA (with whom Weinberg and Harper JA agreed) expressed the view that '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'.[41] Of importance to the resolution of this appeal, he said:[42]

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.

76 Ultimately, Ashley JA concluded that there had been a want of procedural fairness. He expressed the view that, with respect to the three counts where a 'statutory majority' for conviction existed, the judge should have informed counsel what he had been told by the jury. But his Honour also expressed the view that it was not necessary for the trial judge to have told counsel what the state of votes was with respect to the other counts, or 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'.[43] Ashley JA thought that disclosure 'unusually' was required as a result of the combination of the nature of the information conveyed, its significance for the disposition of later applications, and the fact that the judge was seized, but defence counsel was not, of the information.[44] Again, of significance to the resolution of this appeal, Ashley JA expressed the view:[45]

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. 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.

77 MJR was considered in LLW[46] The Court (Maxwell P, Weinberg JA and Williams AJA) reaffirmed what had been said in the earlier case:[47]

As was said in MJR, juries should be told that they should not, under any circumstances, reveal the numbers in favour of conviction or acquittal when conveying to the judge that they are having difficulty in arriving at a unanimous verdict.

78 In my opinion, at least six complimentary propositions may be distilled from the authorities:

First, if six hours' deliberation time has elapsed, the judge may in open court ask the jury, through their foreman, whether there is any chance of agreement being reached.
Secondly, a jury ought never reveal voting figures (particularly disclosing votes in favour of one verdict or another), whether as a result of a direct inquiry or otherwise.
Thirdly, a judge should never inquire of the jury as to voting figures.
Fourthly, should the jury, however, reveal voting figures to the judge, but those numbers do not reflect a 'statutory majority', the judge need not disclose that information to the parties.
Fifthly, where a jury reveals privately to the judge that a 'statutory majority' exists, the judge must impart that information to the parties.
Sixthly, where a jury does reveal voting figures to the judge, he or she may discharge the jury on his or her own motion.

79 I emphasise again that it would not have been the intention of the judge deliberately to have had the jury reveal the precise numbers by which they were divided. So much seems clear from his introduction to the impugned question - 'I don't want you to give me the numbers particularly'. The question asked was, I think, an unfortunate slip (of a kind that can occur in any trial). It is impossible, however, to ignore its consequences. By going on to ask, 'but insofar as there are two sides of the argument, is there more than one of you on each side of the argument?', the judge had revealed to him that there was a 'statutory majority' (so called). This was information that he should not have had.

80 Quite plainly, therefore, what occurred was 'an error or irregularity' in the trial.[48] The live question is whether as the result of the error or irregularity there has been a 'substantial miscarriage of justice'. In my opinion, there has been.

81 There can be no doubt, in my view, that from the way in which events unfolded, an objective observer would conclude that the judge was minded to discharge the jury - and not take a majority verdict - right up until the time that he was told what he should not have been told: effectively that the jury were 11 to 1 (the 'statutory majority'). And given that the judge expressed the attitude, 'Well, that rather changes things', and then resolved to take a majority verdict, an objective bystander could not fail to conclude that the prominent factor which moved the judge to exercise his discretion that way was the information that he should not have had. Thus the conclusion is irresistible, in my opinion, that in exercising his discretion to take a majority verdict, the trial judge took into account something which he ought not to have.

82 The manner in which the issue of a substantial miscarriage of justice is to be approached under s 276 of the Criminal Procedure Act 2009 was considered by the High Court in Baini.[49] Having discussed various aspects of the interpretation of s 276, the majority (French CJ, Hayne, Crennan, Keifel and Bell JJ) observed:[50]

This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by encompassing, within the expression 'substantial miscarriage of justice', not only an error which possibly affected the result of the trial but also some departures from trial processes (sufficiently described for present purposes as 'serious departures), whether or not the impact of the departure in issue can be determined. It also recognises that an accused's guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a 'substantial miscarriage of justice' if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice ...

83 For the judge to exercise his discretion to take a majority verdict after having become apprised of the fact that there was a statutory majority was, in my opinion, a serious error or irregularity in the trial; or, expressed another way, a serious departure from the trial process. It is no answer to say that the jury convicted by a majority since, if there had been no error or irregularity, or serious departure, there might well have been no conviction at all. Certainly, had the trial judge followed his first inclination, unaffected by the information that he should not have had, he almost certainly would have discharged the jury, and there would have been no conviction.

84 Counsel for the appellant made no submission against the judge's resolve to take a majority verdict. I have no doubt that he should have. That is an obstacle in the way of the appellant.[51] But, in my opinion, it is not one which should be regarded as determinative. It seems that events unfolded quickly. Counsel was taken by surprise by the judge's change in attitude, particularly given that the judge's original position had been that he would be 'uncomfortable' about taking a majority verdict. And there are, in any event, two ends to the Bar table. The prosecutor, too, should have appreciated that the trial had steered into dangerous waters, and helped the judge navigate a course which would avoid the risk of justice miscarrying.[52] Indeed, had all involved had more time for reflection, there is every chance that a different course may have been followed.

85 For these reasons there has been a substantial miscarriage of justice and the conviction cannot be permitted to stand.

86 But in my opinion, there is another reason, to which I now turn, which also dictates that the conviction in this case should be set aside.

87 Since the fourteenth century, the common law has 'consistently and unequivocally insisted upon the requirement of unanimity' for verdicts in criminal

trials.[53] In Newell,[54] Evatt J remarked[55] that 'in common-law countries, trial by jury has been universally regarded as a fundamental right of the subject, and unanimity in criminal issues has been regarded as an essential and inseparable part of that right, not a subordinate or merely procedural aspect of it'. Well over a century ago, in Fitzgerald,[56] when speaking of the criminal process in Victoria, Hodges J described[57] 'the principle that the verdict must be unanimous' as lying 'at the foundation of the administration of criminal justice'. So it remained in this State, until in 1993 the legislature introduced majority verdicts (in limited circumstances) into criminal trials.[58]

88 Of course, majority verdicts are only available in trials for offences under the criminal law of the State. Verdicts of juries empanelled to try offences against the criminal laws of the Commonwealth must be unanimous. So much was established by Cheatle, where the High Court discussed the important difference in deliberative process between that where a unanimous verdict must be achieved, and that where a majority verdict is available:[59]

... Regardless of the origins of the requirement that the verdict of a criminal jury be unanimous, the common law's unwavering insistence upon the requirement since the fourteenth century has endowed it with the authority of settled doctrine. Indeed, the requirement constitutes one of the hallmarks of the common law institution of criminal trial by jury in that there is a significant difference in nature between a deliberative process in which a verdict can be returned only if consensus or agreement is reached by all jurors and a process in which a specified number of jurors can override any dissent and return a majority verdict. The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward into any ultimate verdict. A majority verdict, on the other hand, is analogous to an electoral process in that jurors cast their votes relying on their individual convictions. The necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each of the jurors will be heard and discussed. Thereby, it reduces the danger of 'hasty and unjust verdicts'. In contrast, and though a minimum time might be required to have elapsed before a majority verdict may be returned, such a verdict dispenses with consensus and involves the overriding of the views of the dissenting minority.

89 It is against that background that in Muto this Court considered the manner in which a judge should approach the taking of a majority verdict, including the things that the jury should be told:[60]

Because there is a residual discretion to be exercised, counsel should be invited to make submissions as to the appropriateness of a majority verdict at that stage. After hearing any submissions that are made the court should consider whether to exercise its discretion in favour of taking a majority verdict at that stage or to defer the matter. We put to one side exceptional cases where it may be appropriate not to take a majority verdict at all.

When the judge considers that the time for a majority verdict has arrived, the jury should be directed along the following lines: 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.

As a general rule the judge should not explain to the jury the conditions laid down by s 47 or comment on the exercise of his or her own discretion, but we acknowledge that there may be cases in which it is desirable to tell the jury something of the way in which the section operates or to answer questions that the jury may have.

90 The directions given mandate in the cited passage from Muto assume, I think, that the judge has not been provided with voting numbers. Moreover, the Court made it clear that the trial judge should not comment on the exercise of his or her discretion. In this case, it will be remembered that the trial judge specifically told the jury that he was prepared to exercise his discretion to take a majority verdict based on what the jury had told him about being divided 11 to 1 - 'in view of what was said by you, Mr Foreman, a little while ago I am now satisfied that I should exercise the jurisdiction I have to permit you, if you can reach it, to deliver a majority verdict'.

91 From the manner in which events evolved - the judge asking the question, the jury revealing the division was 11 to 1, and the judge telling the jury he was 'satisfied' he should permit a majority verdict 'in view of what was said' - two things would have been plain to the jury. First, the jury would have inferred that the judge's opinion was that a majority verdict was appropriate. Secondly, the jury already having reached the stage of being divided 11 to 1, the majority would have concluded that the views of the one would not be an impediment to a verdict, and the one would have known that a verdict would be taken no matter his or her view. Thus the chances that the jury would thus strive for unanimous consensus, or, indeed, indulge in any meaningful exchange of views, were, in my opinion, significantly reduced.

92 True it is that the judge emphasised that it is 'preferable' that the jury reach a unanimous verdict, and that he asked the jury to return to the jury room and discuss the issues to see whether any more time would resolve the issues between them, but this was against the background that I have discussed in some detail.

93 As I have endeavoured to explain, the manner in which the crucial events unfolded had the real potential to compromise the jury's deliberative process, and was productive of a substantial miscarriage of justice. For this reason the conviction must be quashed.

94 In my opinion, for the reasons given, the conviction and sentence for attempted murder should not be permitted to stand.

95 I have given anxious consideration to whether a retrial should be ordered on this count, particularly given that when she was arraigned the appellant pleaded guilty to intentionally causing serious injury. We were not asked to consider substituting a verdict for another offence.[61] In the end I have concluded that a retrial should be ordered, leaving it to the discretion of the Director of Public Prosecutions to determine whether it is in the public interest to again place the appellant upon her trial for attempted murder.

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

[4] Cf M J R v The Queen [2011] VSCA 374 ('M J R').

[5] See James v The Queen [2013] VSCA 55, [4]-[11] (Maxwell P), quoting Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954, 973 [113] (French CJ, Hayne, Kiefel and Bell JJ): '[w]here it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process'. See also this Court's statement in R v Miletic [1997] 1 VR 593, 600 (Winneke P, Charles and Callaway JJA) that: '[t]he fact that, in hindsight, the decision did not work the advantage for which counsel and the applicant hoped is not to the point.'

[6] That is not to say that there cannot arise circumstances where a trial judge is obliged to discharge the jury notwithstanding the fact that no application for a discharge has been made. Such cases will, however, be rare. That is particularly so where, as in the present case, there was a perfectly rational justification for not seeking a discharge, and the failure to do so cannot be attributed to incompetence on the part of counsel.

[9] Judicial College of Victoria, Victorian Criminal Charge Book 3.10.1: 'there is really only one thing that you must not include on any note, and that is the numbers involved in any part of your deliberations such as any vote within the jury. That matter must remain completely confidential to you and that includes even telling me about it in a note. Please in any note leave the numbers out'.

[10] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495; McGhee v The Queen [1995] HCA 69; (1995) 183 CLR 82; Cutter v The Queen [1997] HCA 7; (1997) 71 ALJR 638, 143 ALR 498.

[17] M J R v R [2011] VSCA 374 ('M J R').

[22] R v Muto and Eastey [1996] VicRp 21; [1996] 1 VR 336, 339 ('Muto').

[24] See M J R [2011] VSCA 374, [37]. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78].

[36] Gorman [1987] 1 WLR 545, 550.

[40] R v Hart (2002) 131 A Crim R 609. See also R v Pearson [2000] NSWCCA 149; (2000) 114 A Crim R 80.

[41] M J R [2011] VSCA 374, [34].

[49] Baini v The Queen (2012) 293 ALR 472.

[50] Ibid 480 [33]. See also Andelman v R [2013] VSCA 25, [85].

[51] See R v Wright [1999] VSCA 145; [1999] 3 VR 355, 360 [16]; R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501, 523-4 [93]-[97].

[52] R v Caine (1990) 48 A Crim R 464, 475; R v Roberts [2001] NSWCCA 163; (2001) 53 NSWLR 138, 150 [57].

[53] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541, 550, 552, 554 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) ('Cheatle').

[58] Section 47 of the Juries Act 1967, inserted by s 7 of the Juries (Amendment) Act 1993.

[59] Cheatle [1993] HCA 44; (1993) 177 CLR 541, 552-3 (citations omitted; emphasis added).

[60] Muto [1996] VicRp 21; [1996] 1 VR 336, 3423 (emphasis added).

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Nguyen v The Queen [2013] VSCA 65

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Nguyen v The Queen [2013] VSCA 65 (26 March 2013)

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