O'Brien v R

Judgment

1. SIMPSON AJA: On 20 September 2016 (a Tuesday) the appellant was arraigned in the District Court on an indictment that charged him with three offences as follows: "1. On 12 March 2014, at Thredbo in the State of New South Wales, whilst in the company with Lawrence Richard Pashley [he] did rob Dane Sheridan of $20,305.80 in Australian currency, the property of Kosciuszko Thredbo Pty Ltd. 2. On 12 March 2014, at Thredbo and Jindabyne in the State of New South Wales, whilst in company with Lawrence Richard Pashley [he] did take Dane Sheridan without his consent and with the intention of obtaining an advantage, namely, delaying the notification of the robbery to the relevant authorities, and immediately after the taking actual bodily harm was occasioned to the said Dane Sheridan. 3. On 12 March 2014, at Thredbo in the State of New South Wales, [he] did take and drive a conveyance, namely, a white Hyundai iLoad Panel Van, registered number BM73ZT which was in the lawful possession of Kosciuszko Thredbo Pty Ltd."
2. Prior to jury selection, the jury panel was advised that the trial was estimated to occupy a week of hearing time, and to conclude the following Tuesday, 27 September or Wednesday, 28 September at the latest. The appellant entered a plea of not guilty to each count, and a jury trial commenced. On 4 October 2016, the jury returned verdicts of guilty on all counts. On 16 December 2016 the trial judge sentenced the appellant to an aggregate term of imprisonment of 14 years commencing on 13 January 2016 and expiring on 12 January 2030, with a non-parole period of 9 years, which will expire on 12 January 2025.
3. By notice of appeal filed on 21 December 2018 the appellant appeals against the convictions and seeks leave to appeal against the sentence. Due to a delay in filing the notice of appeal, the appellant seeks an extension of time in which to appeal.
4. The appellant initially pleaded a single ground of appeal against conviction and a single ground of appeal against sentence. They were framed as follows: "1. There was a failure to direct the jury, during deliberations, pursuant to the decision of Black v The Queen (1993) 179 CLR 44, 68 ALJR 91 and as a result of this, the trial has miscarried. 2. The sentencing judge erred in his assessment of the objective seriousness of the kidnapping offence, and in doing so passed a sentence which was manifestly excessive."
5. At the hearing of the appeal, the appellant sought leave to amend the grounds of appeal by adding a further ground against conviction: "3. The verdict of the jury should be set aside because it appears that a unanimous verdict was reached through pressure of time restraints rather than proper deliberations." The Crown did not oppose the application, and leave should be granted.
6. The first ground of appeal against conviction raises a question of law and is therefore brought as of right: Criminal Appeal Act 1912 (NSW), s 5(1)(a). However, since the complaint is of an omission to direct, and no objection was taken at the trial, by reason of Criminal Appeal Rules, r 4, that ground may not be allowed as a ground of appeal without the leave of the Court. Arguably, the same applies to Ground 3, although that is not so clear.

The Crown case

1. The relevant facts, as asserted by the Crown, can be outlined briefly. The appellant is a former employee of the Thredbo Alpine Hotel, which was owned and operated by Kosciuszko Thredbo Pty Ltd. He worked in various positions at the hotel until he was dismissed from his employment in January 2014. Through his employment, the appellant became aware of the hotel's internal operations, including its accounting procedures for daily takings. Dane Sheridan was also an employee of the hotel, and the appellant occasionally supervised him.
2. In the early hours of 12 March 2014, the appellant and a co-offender, Lawrence Pashley, drove to the hotel in a car owned by Mr Pashley's father. Mr Sheridan was working as a night auditor, and was the only person present in the hotel reception area. The appellant and Mr Pashley entered the reception area, armed with a hammer, screwdriver and a knife. They overpowered and restrained Mr Sheridan with duct tape, the appellant holding a knife to Mr Sheridan's face at one point. Mr Sheridan was led to the safe room, from which the appellant and Mr Pashley took $30,205.80 in cash.
3. They told Mr Sheridan they were taking him "for insurance" and took the key to the hotel's van. Mr Sheridan was escorted against his will to the van, and his legs were bound together with duct tape. The appellant drove the van with Mr Sheridan in the back towards Jindabyne, followed by Mr Pashley who was driving the car in which they had arrived. During the journey, the appellant made various threats to Mr Sheridan, leading him to fear for his safety and life.
4. Mr Sheridan was able to release himself from his restraints during the journey, and he decided to leap from the van to escape as it approached Jindabyne. He did this as the van approached a hill, suffering, as a result of his escape, extensive and serious injuries to his lungs, ribs, head, right arm and right hip. The appellant continued driving the van until he abandoned it, and he returned to Canberra with Mr Pashley.

The trial

1. For reasons that are not apparent, the appellant was tried separately from Mr Pashley. The trial proceeded over two weeks from 20 September to 4 October 2016. Until 29 September, notwithstanding that the trial had exceeded the estimate, there was nothing remarkable about the proceedings. It is necessary to set out certain events from that date.

Thursday, 29 September 2016 - the eighth day of the trial

1. On Thursday, 29 September a note was received from a juror in the following terms: "On Wednesday 5 October, I have a course to attend. The course has been booked since June at a cost of about $5,000. This course runs from Wednesday to Friday." It appears from the transcript that the note was received late in the day. The appellant had given evidence, and closed his case. What remained was for counsel to address, and the judge to sum up. The forthcoming weekend was a long weekend.
2. After discussion between the trial judge and counsel, the trial judge made the following statement to the jury as recorded in the transcript: "Thank you so much, ladies and gentlemen. I have received a note with respect to a particular juror, I assume, indicating that he or she has a course to attend commencing Wednesday 5 October. It has been booked since June at significant cost, and it goes from Wednesday to Friday. I understand that. Can I leave that on the shelf as it were and see how far we progress. Do not be alarmed some accommodation may well be able to be made, but I don't want to rush things. Can I say that from a practical sense, I don't want to rush the conduct of the trial, particularly now we're up to the crucial stage of addresses and summing-up. So I will retain that." (italics added)

Friday 30 September 2016

1. Before counsel's closing addresses, a further note was received from the juror in the following terms: "Re course next week. After speaking to the course provider last night unfortunately this [is] the last time the course will be held this year. The provider is unable to confirm any new dates. [I]f it was to be held, it would not be until next year. As the course has been paid in full and forms a critical element of my job I would like to be able to attend. I apologise for any inconvenience."
2. The trial judge discussed the note with counsel. Defence counsel initially took the position, at least tentatively, that if the parties agreed that the juror should be discharged, he or she should be released then and there. The Crown Prosecutor agreed, saying, inter alia, that it would be undesirable for either that juror or any other to be "put under pressure to come to a verdict". After taking instructions from the appellant, defence counsel agreed to the discharge of the juror. Following further discussion between the trial judge and counsel, the Crown Prosecutor offered an alternative proposal, saying: "I'm wondering is this a [compromise] position, your Honour, we wait until this afternoon. The reason I say that is that it may well be that after addresses, after your Honour's commenced summing-up we will know then how far we're going to be able to get on Tuesday. If it's clear we're not going to reach deliberations until the afternoon, then the juror could be discharged. My concern is that we don't know at this point in time, and while my initial response was, yes, this morning, discharge, on reflection we don't know how far we're going to get. [The appellant] is entitled to be tried by a jury of 12, so at this point in time it's a bit premature, perhaps we can revisit it again at lunchtime. I know that provides some inconvenience to the juror at this point in time, however, in the interests of justice, as I said, [the appellant] is entitled to be tried by a jury of 12, if it gets to a point where that's going to be impossible, then relevant action can be taken, your Honour. That would be my reconsidered view."
3. Defence counsel agreed, and the proposal was adopted. The trial judge then informed the jury: "All right, thank you very much and good morning, ladies and gentlemen. Just the first issue is I have received a note from the relevant juror who has a commitment. Can I indicate in summary, and I'm not going to read it all out, the position is that commitment can't be adjusted or moved, so what I'm proposing is to see how far we get with the trial today and then attempt to resolve that issue for that juror later today. All right? I'll leave it at that for the moment if you don't mind." (italics added)
4. At the conclusion of the Crown Prosecutor's closing address, the trial judge raised with counsel his concern that the summing-up was unlikely to finish that day and would be broken by the looming long weekend. Defence counsel indicated that he understood the trial judge's concern but urged him to "go some distance".
5. Following defence counsel's closing address, the trial judge raised the possibility of finishing the summing-up that day by sitting into the lunch break and discharging the juror. The Crown Prosecutor urged the judge to "not rush it", to discharge the juror that day and to complete the summing-up the following Tuesday. Defence counsel indicated that he did not want the jury to commence deliberations at 4pm on the eve of a long weekend. Eventually, it was agreed that the jury be asked their preference and that counsel consider the timing "because there is the looming asterisk of the person who has a commitment Wednesday".
6. The trial judge then commenced the summing up. Just prior to the lunch break, he said to the jury: "As I predicted yesterday I am going to go for at least a couple of hours if not more, this afternoon. It seems to me there are a number of possibilities that can occur. I can keep going right up until four or even longer then stop. If you want, you can then commence deliberating and we can stay on later today, if you want, up until say 6:00pm. That is satisfactory if that is what you want to do. On the other hand we can not go that far today. I can continue to sum up to a degree this afternoon, may even a bit earlier and let you go. On the view that you then come back Tuesday and I continue with my summing up and then send you out to deliberate. These are the variations that apply. What does concern me is the long weekend. It is not just a weekend, it is a long weekend. I do not want you to feel pressured to come to a view either way. I certainly do not want you to feel pressured to rush or try and squeeze things in or get the judge to squeeze things in and hold you here this afternoon et cetera. I just want to be very cognisant, aware, of your needs as civilians, citizens involved in a trial that has gone longer than anticipated and in circumstances now where it seems to me we will most likely roll into the Tuesday. So can I just leave it open like that? Within that I am very much aware of the concerns one particular juror has for the Wednesday. I propose to accommodate that juror, if need be. But I would like you to think about the scenario I have offered as to how long I go this afternoon, how long you stay this afternoon and [on] the Tuesday. I do not mean that to sound vague, but I am just trying to flag possibilities for you. All just to perhaps discuss during your lunch break and give me a feeling as to what you would like me to do. … The best way for me is a note so that I can just receive it maybe just before we finish our lunch and have a think about what your contingencies are, all right? Those contingencies should not be affected one way or the other by the needs of a particular juror. It is very important that I intend to accommodate that juror's wishes and there are ways I can do that and it will not affect all of you as jurors. It is to accommodate the circumstance, all right? So just be alert to that too. That should not be an overriding concern one way or the other, okay? I just want to accommodate your convenience as a juror on Friday at 1 o'clock, 2 o'clock with a long weekend ahead of us." (italics added)
7. After the lunch break, a note was received that indicated that the jury were happy to continue to 4pm that day, to resume with an earlier start the following Tuesday and "not to rush our decision". The trial judge then asked counsel whether there was an application regarding the juror with the work commitment. Both parties suggested leaving the juror on the jury, and "revisiting" the matter on Tuesday morning.

Tuesday, 4 October 2016

1. The summing up resumed on Tuesday morning. The jury retired to consider its verdict at 11:06am. The following exchange then occurred between the trial judge and defence counsel: "HIS HONOUR: The jury is out. You have no difficulty with the juror remaining today. DEFENCE COUNSEL: No. HIS HONOUR: Just so we are clear on that. That has been looming the last week and the decision has been taken and no difficulty from the defence point of view. DEFENCE COUSNEL: Yes, your Honour, that's correct. That judgment has been made and that's right, your Honour. There is no difficulty with that."
2. Following a request by the jury for transcript and other evidence, the jury returned at 1:38pm to be given some material. The transcript had not yet been made available. The jury resumed its deliberations at 1:46pm.
3. The following exchange then occurred between the trial judge and defence counsel in the absence of the jury: "HIS HONOUR: Righto. What do you say then about the imminence of a juror needing to be discharged for his course? That's my concern also now, gentlemen. It's 3:30, they still don't have an answer to what they requested. DEFENCE COUNSEL: I don't know whether - the transcript is imminent. HIS HONOUR: Okay. DEFENCE COUNSEL: I don't know whether the jury at some not very far distant time might be asked whether they want to continue this afternoon with it. HIS HONOUR: Whether they want to what? DEFENCE COUNSEL: Continue this afternoon with it. You know - HIS HONOUR: Yes, and the answer to that question might or might not be influenced by the pressures that one juror has already expressed as of last Friday to you and me and the Crown. DEFENCE COUNSEL: Look, it's a hard call, your Honour. I don't know whether it would be - HIS HONOUR: It's very much your call. I mean, I'm prepared to come to a view and make a decision. But I invite your contribution. DEFENCE COUNSEL: My contribution is that since the juror has been involved that - without being identified - in the negotiations - if I can put it that way about - HIS HONOUR: Deliberations? DEFENCE COUNSEL: Deliberations, about whether he's staying for the deliberations, inferentially at least, with a promise that he would be accommodated as far as his course tomorrow goes. We're getting very near the point where he'll have to go or she'll have to go. I would think, unless they're close to coming to a verdict, which -"
4. Shortly after this exchange, a note was received from the jury: "We are unable to reach a unanimous decision."
5. The exchange that followed suggests that the trial judge and the Crown Prosecutor considered the possibility of taking a majority verdict, which can, by the Jury Act 1977 (NSW), s 55F, be done if certain conditions are met. The relevant condition is that the jury has been "deliberating" for not less than 8 hours. Since that condition had not been met, no further time was taken on the issue. What is notable is that neither the trial judge, nor either counsel, appears to have contemplated the possibility of responding to the note, or what the jury ought to have been told about a potential deadlock. In particular no consideration was given to directing the jury in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71.
6. At 3:33pm, the jury was provided with a part of the trial transcript. At 3:47pm, the jury again resumed deliberations, after indicating that they were happy for the trial judge to check in with them at 4:30pm. The following exchange then occurred between the trial judge and counsel: "HIS HONOUR: Okay, we'll see how we go. That's your position, [defence counsel], for the moment, until 4:30? DEFENCE COUNSEL: Yes, your Honour. HIS HONOUR: As you may well imagine, I'll be asking you what you think and/or what approach you wish to consider regarding the jury and ongoing deliberations. I'm content for them to remain deliberating later. I'll make arrangements with the office as best I can to accommodate that. So, I'm certainly minded to do that, but really, I think consideration needs to be given, being aware of the juror indicating a commitment tomorrow. DEFENCE COUNSEL: I hear what your Honour says. HIS HONOUR: All right. Does that suit you too? CROWN: It does, thank you."
7. At about 4:30pm, a note was received from the jury: "We have come to individual decisions however we are not in agreeance." Again, there was no response from the trial judge. Again, nobody appears to have contemplated giving a direction in accordance with Black, or, indeed, any direction concerning the position the jury had reached.
8. Following discussion between the trial judge and counsel about whether to invite the jury to continue deliberations until 6pm, defence counsel stated the following: "DEFENCE COUNSEL: … we are in a different position now in terms of the state of the information than we were earlier on and I am very mindful of the majority verdict provision but simply ask at this stage that that juror, whoever he or she might be, stays at least for the next period of time that your Honour will be asking them to deliberate and thereafter, if there is no agreement and that juror would be seeking to be discharged, I would be asking that because of the possibility - we don't know where that juror stands in the debate but we know there is a debate and we know that there is some disagreement and I have not been prepared to consent to that particular juror to be discharged without the whole jury being discharged, at the risk of the detriment of [the appellant], hence that provision. My submissions at the present time though are, and I think my friend is in agreement, I would ask your Honour to exhort them to redouble their efforts and to invite them back at about 6.00."
9. The Crown Prosecutor agreed. At 4:44pm, the jury returned and the trial judge gave the following direction: "Ladies and gentlemen, what I am going to do is ask you to continue deliberating today. I am inviting you to remain for at least some time now. The court facilities can remain open. You are at a crucial time and I appreciate that it would be a challenging time for jurors as a group in your deliberations. It is important that you continue with your deliberations and my preference is that, if you can, you continue to do so this afternoon. What I propose to do is ask you to continue with your deliberations, perhaps with a view of bringing you back later this afternoon. I am mindful of difficulties that one juror raised previously. That remains. I am alert to that, so I am asking you as a jury [of] 12 to continue with your deliberations this afternoon. If you need to contact personnel to make relevant arrangements, please let me know via a note. I do not think there is any problem with that but it seems to me, having returned as you have after the long weekend, continued with the summing‑up and your deliberations commencing this morning some time after 11.00, then with the hiatus, as it were, while a transcript was prepared and made available to you at your request and that day, it is my view that it is important that you continue with your deliberations at least for some time longer this afternoon. That is what I propose to do. What I will do is respond to any note you have as to any difficulties that might create and deal with that, if necessary, but my present view, and accepting that the clock is correct and it is something like 12 minutes to 5, I am thinking of having you remain at least for the next hour, if not more, to continue with your deliberations. Thank you for that. I appreciate you bringing to my attention that which you have. If you need to contact personnel or something, let me know and I will discuss that with the parties and certainly, I would imagine, allow that to occur. Thank you. I will not call you back unless you need me and I will not trouble you until at least 6 o'clock. Thank you very much." (italics added)
10. The jury retired again. At 5:47pm the jury returned verdicts of guilty.

The appeal against conviction

1. There were two independent aspects to the appeal against conviction. The first concerned the two juror notes sent on the Tuesday, indicating inability to reach unanimous verdicts. The second concerned the manner in which the trial judge dealt with the position of the juror who had (by implication, at least) requested to be released in order to attend a work-related course. That course, it will be remembered, was to commence on the Wednesday.

The notes concerning failure to agree

1. With respect to the first aspect, counsel for the appellant on appeal contended that the circumstances called for a direction in accordance with that formulated by the High Court in Black (Mason CJ, Brennan, Dawson and McHugh JJ in a joint judgment, Deane J agreeing with additional reasons). The High Court considered, and disapproved, a previously standard direction given to juries who had indicated that they were encountering difficulties in reaching unanimity. The plurality noted: "… the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them" (at 50)
2. That fundamental principle was violated by references in the standard direction to: "… considerable public inconvenience and expense [occasioned] if a jury cannot agree" and also by a statement that: "… there must necessarily be … a certain amount of give and take and adjustment" in the process of deliberation. The latter, the plurality said, might be taken to suggest (wrongly) that compromise on the part of a possibly dissentient juror would not be inappropriate.
3. The Court promulgated a direction that should be given "should the occasion arise". It is unnecessary here to set out the whole of the direction. The appropriate direction, as reformulated by the High Court, strikes a balance between important competing considerations - the desirability of finality in criminal prosecution, the "fundamental principle" earlier referred to, that is that no juror should be subject to pressure to acquiesce in a verdict to which he or she could not conscientiously subscribe, and that the process involves consideration and respect for the views of other members of the jury, and a willingness to reconsider initial views.
4. What is to be noted is that, in its opening words, it informs the jury that the judge has the power to discharge the jury from giving a verdict. It goes on to specify the limitation on the exercise of that power - it should not be exercised unless the judge is satisfied that there is no likelihood of genuine agreement being reached after further deliberation. It then emphasises two things: on the one hand, the independence of each individual juror, and the need to adhere to conscientiously held opinions; and, on the other hand, the obligation to listen carefully to and consider the views of others.
5. Those opening words are designed to remove any suggestion of pressure upon a jury, and, more importantly, any individual member or members of the jury who conscientiously holds or hold a view different from that of other members of the jury. The direction affords comfort to the whole jury that, in the event of irreconcilable differences of opinion, the jury will not be detained beyond the point that unanimity is determined to be not possible. It removes any uncertainty in the minds of the jury and individual jurors about the length of time they will be required to remain.
6. In this case, no attention appears to have been paid to either of the two jury notes indicating deadlock. On behalf of the appellant, it was submitted that the failure to direct the jury in accordance with the Black formulation gave rise to a miscarriage of justice.
7. The Crown's response was twofold. First, it submitted that the second note did not clearly indicate deadlock. In the light of the earlier note, clearly stating "we are unable to reach a unanimous decision", I cannot accept that. In my opinion, the second note was a clear reminder of the first (to which no response had been given) with the additional information that all jurors had reached their final positions. The position could not have been made more clear: the jury was deadlocked.
8. A Victorian case with some echoes of the present is R v Gallagher [1986] VR 219, a case which pre-dates Black. The accused in that case was charged (as a trade union official) with 43 counts of receiving secret commissions contrary to Victorian criminal legislation. The trial was lengthy (although the judgment does not disclose its precise length). The jury retired in the early afternoon of Wednesday, 5 June 1986. On Friday, 7 June it sent a note to the trial judge saying that they could not reach agreement on any count. The trial judge directed them to continue their deliberations, which then continued over the following day, a Saturday. On the afternoon of Monday, 10 June the jury sent another note, indicating in clear terms that it could not reach agreement on 41 of the 43 counts. The note said, in part: "If there was any likelihood that unanimity could be reached we would continue; however, this achievement is impossible therefore we have come to a deadlock situation." (at 242)
9. The response of the trial judge was to exhort the jury to resume its efforts, in the course of which he made reference to the expense and inconvenience of a second trial. Thereafter, he declined a number of requests that the jury be discharged and the jury continued its deliberations.
10. On Thursday, 13 June the jury returned verdicts of guilty on 20 of the 43 counts on the indictment.
11. The Court of Appeal upheld a ground of appeal that complained of the manner in which the trial judge responded to the jury's communications. It referred to R v Mills [1939] 2 All ER 299, in which it was said: "It is of the greatest importance, indeed it is fundamental that a jury should not be led, either by a desire to acquiesce or to avoid eccentricity, or to save time and trouble, to represent themselves as holding an opinion which they do not in fact hold." (at 301)
12. Dissimilarities between the circumstances of Gallagher and the present case ought not be overlooked. Notably, the trial in Gallagher was a lengthy one, and was conducted at a time when jurors, on retirement, were sequestered until their deliberations resulted in verdict, or they were discharged. The jury in that case was sequestered for eight days, including over a long weekend. Those conditions no longer apply, and certainly do not apply in the present case.
13. Nevertheless, the parallels are not without significance, most notably the two notes indicating failure to agree, the second in clear terms. The criticism by the Victorian Court of Appeal in Gallagher was of the judge failing to enquire of the jury if "they meant what they said" about the absence of unanimity, and the failure of the judge to reinforce the importance of adherence to honestly held opinions.
14. Those criticisms are equally applicable in the present case.
15. The Crown's second response was that defence counsel did not perceive that the jury was deadlocked, and nor did he perceive any danger that the jury might be feeling undue pressure. Defence counsel made, it was submitted, a forensic decision that it was in the appellant's interests that all jurors remain.
16. That may well be the position with respect to the contemplated discharge of one juror, to which it will be necessary shortly to turn. It is not an adequate answer to the question of whether a direction in accordance with Black ought to have been given.
17. In my opinion, such a direction should have been given on receipt of the first note indicating lack of unanimity, and certainly, on receipt of the second. The jury ought to have been told that, in the event of deadlock (after further consideration), they could and would be discharged. The failure to inform them of this important consequence of deadlock meant that they were in a state of uncertainty, and imposed undue pressure on them. To ignore two communications of this nature was, of itself, apt to create pressure to reach verdict. As in Gallagher, it was also important that adherence to their independently and honestly held opinions be emphasised.
18. That is not, of course, to say that the jury ought to have been discharged at that point. The very point of the Black direction is to remove any underlying pressure on the jury, but nevertheless to invite them to continue their efforts, in the light of the advice concerning exchange of views.
19. The failure so to direct the jury was, in my opinion, an error productive of injustice sufficient to require that the appeal be allowed.
20. Since preparing these reasons, I have had the advantage of reading in draft the judgment of Adamson J, in which her Honour expresses a contrary view.
21. While her Honour's thoughtful reasons have not persuaded me to change my mind, they do prompt me to make the following further observations.
22. Black was decided in 1993. At that time the law required jury verdicts in criminal cases to be unanimous. Section 56 of the Jury Act provided: "56 Discharge of jury that disagree in criminal proceedings Where the jury in criminal proceedings have retired, the court in which the proceedings are being tried may discharge them if it finds, after examination on oath of one or more of them, that they are not likely to agree on their verdict."
23. In 2006 the Jury Act was amended by the Jury Amendment (Verdicts) Act 2006 (NSW). The significant amendment was the provision, in specified circumstances, for majority verdicts to be taken. Section 55F was inserted, and relevantly provided: "(2) A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation."
24. As a consequence, s 56 was omitted and replaced, relevantly with the following: "(1) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict or a majority verdict under section 55F. (2) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may not discharge the jury under this section if it finds, after examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict under section 55F."
25. The interplay of s 55F(2) and s 56(2) has created complications, specifically in cases where juries have indicated, before the expiration of the minimum period of deliberation of eight hours required by s 55F(2), an inability to reach agreement.
26. The practical effect of s 56(2) is to oblige a judge, before discharging a jury that has indicated an inability to achieve unanimity, to inquire as to the likelihood that it will reach a majority verdict.
27. The question that has arisen is the timing of such an inquiry. On one view of s 56(2), a judge could take that course on being advised by the jury that it was unable to reach unanimity. That, however, would sit uneasily with the reasoning in Black, which emphasises the importance of encouraging the jury to reach agreement. It is reasonably clear that a s 56(2) enquiry ought not be made until a Black direction has been given and the jury have had sufficient opportunity to resume deliberations in the light of the direction.
28. Decisions of this Court go further, and hold that no s 56(2) enquiry ought to be made until at least the minimum period of eight hours of deliberation has elapsed, and the judge has determined what is a reasonable time having regard to the nature and complexity of the proceedings, and that time also has elapsed: RJS v R [2007] NSWCCA 241 at [25]; (2007) 173 A Crim R 100; Hunt v R (2011) 81 NSWLR 181; [2011] NSWCCA 152.
29. Hunt is a case that aptly illustrates the complexities of the interplay between s 56, Black, and s 55F. In that case a jury had, well within the eight hour period, signified its inability to reach unanimous verdicts on the two counts in the indictment. The trial judge gave a direction that "reflected the essential requirements" of a Black direction. The response of the jury was to state, in strong terms, that agreement was not possible. The trial judge then asked the jury to continue its deliberations. Two hours later (which included the usual lunch break) the jury reiterated, in a note to the trial judge, that they were unable to reach unanimous verdicts. The trial judge then disclosed to the jury, in general terms, the majority verdict provisions and informed the jury that the circumstances in which such verdicts might be taken had not yet arisen. He asked the foreperson if there were a possibility of a majority verdict to which the foreperson replied in the affirmative. The signal was clear; one member of the jury held a view different to that held by the remainder.
30. In this Court, the trial judge was criticised for the course that he took in making that inquiry of the jury. The Court found that the inquiry by the trial judge as to the circumstances that might permit a majority verdict to be taken was "premature", and that no such inquiry should have been made prior to the point at which a majority verdict could be taken - that is, prior to the expiration of a minimum period of eight hours of deliberation (or such later time as the judge determined).
31. The Court continued: "33 In our view, it follows from the foregoing that when a Black direction is given in response to an indication by the jury that it is deadlocked or otherwise unable to reach a unanimous verdict, it would be prudent that, generally speaking, no subsequent direction should be given which does other than continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum eight hours of deliberation (and if necessary, a greater period having regard to the nature and complexity of the issues in the case) and that this is so notwithstanding that the jury may continue prior to the expiry of that period to advise the court that it is unable to reach a unanimous decision. In other words, if the jury indicates it is deadlocked before the time has come to consider a majority verdict, it should always be encouraged to continue its deliberations and to strive for a unanimous verdict without being advised that the time for accepting a majority verdict is imminent, or that such a verdict may be taken after the expiry of a particular period of time …" (internal citation omitted)
32. It was not suggested in Hunt that no response should be made to an indication of deadlock by a jury. No criticism was made of the direction that was in fact given to the jury in Black terms.
33. Opinions have been divided on whether the jury ought even be advised, prior to the expiration of the time determined to be reasonable, of the prospect of taking a majority verdict: see the review of decisions in Ingham v R [2011] NSWCCA 88 at [19] ff.
34. This is not a case in which any issue of a s 56(2) inquiry arises. The jury retired at 11:06am. The first note indicating disagreement was received at what might be calculated to have been a little after 2pm. The second was received at about 4:30pm. Both were therefore well within the eight hour period, which meant that a majority verdict could not have been taken and, on the authority of RJS and Hunt, a s 56(2) inquiry would have been premature and inappropriate.
35. What does arise for consideration is whether that circumstance has any bearing on the response that should have been made to either the first or the second of what I might call the jury disagreement notes. In my opinion it does not.
36. A jury that signifies disagreement is entitled, in my opinion, to information about the prospective course of the trial thereafter. An accused person is entitled, in my opinion, to have charges determined by a jury that is in possession of relevant information, and is therefore relieved of any pressure or concern about its future. I do not mean by this that the trial judge ought to have told the jury of the eight hour (or longer) time limit; that was frowned upon in RJS and Hunt as an invitation to "sit it out" until the deadline had arrived and passed. But the jury should have been given the benefit of the Black direction, the advice to listen to and engage with one another, and that the power to discharge existed.
37. It is for that reason that I consider that the appeal should be allowed.

The notes concerning the juror's work commitment

1. Uncertainty about the consequences of deadlock is not the only pressure to which the jury was subject; running concurrently with this was the lack of certainty concerning the position of the one juror who had twice sought a response to his/her wish to attend a work-related course.
2. It was not sufficient, in my opinion, for the trial judge to tell the jury, as he did, in the first instance (on the Thursday) "some accommodation may well be able to be made"; then, on the Friday, that he would "attempt to resolve that issue… later today"; and, later on the same day, that he proposed to "accommodate that juror, if need be"; and, finally, later again on the same day, that he intended to "accommodate that juror's wishes and there are ways I can do that" without explicitly stating that he could (and intended to) discharge the juror by, at the latest, Tuesday evening.
3. On the Tuesday, nothing at all was said about the position of the juror until 4:44pm, when all that was said was: "I am mindful of difficulties that one juror raised previously." In that context, the trial judge asked the jury to continue to deliberate into the evening "at least for the next hour, if not more". At the same time, he twice invited the jury to communicate with him if they "need[ed] to contact personnel or something" and anticipated that he would "allow that to occur". No doubt what his Honour intended by that was to tell the jury that they would be permitted to contact family to inform them that they would be later than expected, but that is not at all clear, and may well have been taken by the juror with the work course that he or she would not be able to attend and should communicate with his or her employer to that effect. The responses were cryptic to the point of obscurity.
4. The manner in which the juror's request was treated, too, was, in my opinion, sufficient to require that the appeal be allowed and the verdicts set aside. There can be no confidence that the verdicts of guilty were not influenced by the state of uncertainty concerning the position of that juror. The jury (and one juror in particular) was under undue pressure.
5. I have not overlooked the Crown submission that the decision not to seek discharge of one juror was a forensic one made by counsel. As a general rule, an accused person is bound by the way the trial is conducted by counsel. A decision by counsel made for tactical reasons will not ordinarily give rise to a successful appeal: R v Birks (1990) 19 NSWLR 677 at 683-4.
6. There are, inevitably, exceptions to the general rule, recognised in Birks. One such exception arises by reason of "flagrant incompetence" of counsel (which is not here suggested). The decision in Birks left open the possibility that "some other cause" might result in a miscarriage of justice. In Alkhair v R [2016] NSWCCA 4, Macfarlan JA reviewed a number of decisions in the High Court and in this Court in which miscarriage of justice was alleged to have flowed from less than optimal decision-making by defence counsel. From that review, Macfarlan JA (with whom Rothman and Bellew JJ agreed) derived four principles at [31], as follows: "(1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. (2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. (3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. (4) The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open."
7. This is not a case in which it is suggested that the conduct of the trial by counsel was incompetent. To the contrary, the Crown asserts that the decision made by defence counsel to seek to retain all 12 members of the jury was a legitimate forensic one, well within the scope of his authority as counsel with the conduct of the case, and, therefore, one by which the appellant was bound. That is not disputed.
8. But the issue here is not the forensic decision made by counsel not to seek discharge of that juror after the two jury notes (which undoubtedly complicated the decision).
9. The real difficulty was not caused by the failure to discharge the juror at any specific point of the events; it was the failure of the trial judge to make clear to the juror the position - that is, that he or she would be discharged at the end of the day's proceedings, whether or not verdict had been reached. The cryptic manner in which the juror's notes were answered conveyed no information at all, and created unnecessary pressure, not only on that juror, but also on the whole of the jury. Had the judge's intention been made clear, the jury could have continued its deliberations on the Tuesday and into the Wednesday. Instead, a decision was made which cannot confidently be said to have been uninfluenced by pressure.
10. In this case, there were twin issues defence counsel had to confront. The first was what position to take in relation to the juror who sought to be released. Initially, he was willing to accede to the immediate discharge of that juror. After discussion, he agreed to retaining that juror, on the understanding that he or she would be discharged in time to attend the course. There was, undoubtedly, some vacillation on the part of counsel.
11. There was, in this, no tactical decision. Nor was there any tactical decision involved in what subsequently went wrong. What went wrong, as I have indicated above, was not retaining the juror until the close of proceedings on the Tuesday; it was failing to inform the juror (and the jury) adequately that that juror would be released in time to attend the course. There was no involvement of defence counsel in this. True it is that counsel could have urged that more explicit information be given to the juror and the jury, but it could not be suggested that any tactical advantage lay in the failure to seek a more explicit explanation of what was in the mind of the trial judge.
12. The second issue was the response to the jury's twice notified inability to agree on verdicts. It was after the second of these that counsel did urge that all members of the jury be retained. This, I would infer, was for tactical reasons. No doubt counsel perceived that some possible advantage lay to his client in the apparent disagreement in the jury room. He could not be sure that the juror in question was not one of those (or the only one) not prepared to convict.
13. If the only issue were failing to discharge the entire jury, or one juror on the notification of disagreement, it would be difficult to avoid the conclusion that counsel had made a tactical decision by which the appellant must be bound. But that is not the only issue, and, indeed, not the issue in this case. That is the failure to inform the juror that he or she would be discharged in time to attend the course.
14. In my opinion, it is inevitable that the verdicts must be set aside and a new trial ordered.
15. That makes it unnecessary to determine the application for leave to appeal against sentence.
16. I propose the following orders: 1. Extend the time in which to appeal; 2. Grant leave to amend the notice of appeal filed on 21 December 2018; 3. Appeal against conviction allowed; 4. The convictions on each count set aside; 5. There be a new trial on each count.
17. WALTON J: I agree with the orders proposed by Simpson AJA for the reasons given by her Honour.
18. ADAMSON J: I have had the benefit of reading the reasons of Simpson AJA in draft and gratefully adopt her Honour's recitation of the facts and the submissions made by the parties. My reasons for coming to a different view as to grounds 1 and 3 and the appropriate orders are as follows. In order to explain the reasons for my view it has been necessary for me to include some of the salient facts.
19. As Simpson AJA has outlined in her Honour's recitation of the relevant facts, the trial began on Tuesday 20 September 2016. The original estimate was 5-6 days and the trial would have, if the estimate had proved to be accurate, concluded by Wednesday 28 September 2016. As it happened the jury did not commence its deliberations until Tuesday 4 October 2016 (being the day after the public holiday on the Monday) and returned verdicts shortly prior to 6pm on that evening. All concerned, the trial judge, the whole jury and trial counsel, were aware that one of the jurors had an important commitment to a work course from Wednesday 5 October 2016 for the rest of the week (the committed juror).
20. The question whether, and when, the committed juror ought be discharged plainly arose. On Friday 30 September 2016 the defence trial counsel indicated that the committed juror ought to be discharged. However, the Crown resisted the discharge on the footing that it was premature because the trial could continue on Tuesday 4 October 2016, without interfering with the arrangements of the committed juror. The defence, in response, changed his position and agreed to continue with all twelve jurors, including the committed juror. As is evident from jury note 11, the jurors indicated on Friday 30 September 2016 that they were content to start at 9am on Tuesday 4 October 2016 and continue until 4pm that day.
21. Before the luncheon adjournment on Friday 30 September 2016, the trial judge assured the committed juror in the following terms: "It is very important that I intend to accommodate that juror's wishes and there are ways I can do that and it will not affect all of you as jurors. It is to accommodate the circumstance, all right? So just be alert to that too".
22. Ms Carroll, who appeared for the appellant in this Court, accepted that the jury would have understood from what the trial judge said that, whatever happened, the committed juror would be able to attend the course.
23. Towards the conclusion of the summing up, the trial judge said: "Dealing with your deliberations. You all come from a wide range of backgrounds, no doubt, different attitudes, different opinions. You bring different and valuable perspectives to the facts in issue. You are all equals in that jury room. Each of you should participate in the jury room discussions. Each of you is responsible for your verdicts. Can I respectfully say do not take an immediate straw poll when you go in there to determine everyone's preliminary views. That position, that approach, might lock someone in early without having had the benefit of discussion. It is generally best to have a discussion about the issues for a time before you take any particular poll amongst your group."
24. The summing up concluded shortly after 11am on Tuesday 4 October 2016 at which point the jury was sent out to commence their deliberations. At some stage before 1.30pm, the jury sent a note which contained a request that two jurors have access to phones to contact family members who were in hospital. The second note contained a request for certain evidence, which was not completely answered (by the delivery of the evidence to the jury room) until after 3.30pm, although part of the requested evidence was provided earlier.
25. At about 3.30pm, the trial judge raised with counsel, in the absence of the jury, the issue whether the committed juror ought to be discharged. The discussion was as follows: "HIS HONOUR: Righto. What do you say then about the imminence of a juror needing to be discharged for his course? That's my concern also now, gentlemen. It's 3.30, they still don't have an answer to what they requested. WINCH: I don't know whether - the transcript is imminent. HIS HONOUR: Okay. WINCH: I don't know whether the jury at some not very far distant time might be asked whether they want to continue this afternoon with it. HIS HONOUR: Whether they want to what? WINCH: Continue this afternoon with it. You know‑‑ HIS HONOUR: Yes, and the answer to that question might or might not be influenced by the pressures that one juror has already expressed as of last Friday to you and me and the Crown. WINCH: Look, it's a hard call, your Honour. I don't know whether it would be‑‑ HIS HONOUR: It's very much your call. I mean, I'm prepared to come to a view and make a decision. But I invite your contribution. WINCH: My contribution is that since the juror has been involved that - without being identified - in the negotiations - if I can put it that way about - HIS HONOUR: Deliberations? WINCH: Deliberations, about whether he's staying for the deliberations, inferentially at least, with a promise that he would be accommodated as far as his course tomorrow goes. We're getting very near the point where he'll have to go or she'll have to go. I would think, unless they're close to coming to a verdict, which‑‑ HIS HONOUR: All right . . ."
26. At that point, the judge received another note informing him that the jury was unable to reach a unanimous decision. When the jury returned to Court at 3.33pm, the remaining transcript was given to them (in answer to the earlier question). After giving the jury a description of what they had been given and further directions, the judge said: "I have received your note about your concerns and unanimity. At the moment, I am now giving you the material that you sought and I am going to ask you to return and to continue with your deliberations. If there are any more inquiries, or matters you wish to raise about the evidence or any other aspect, please bring that to my attention. What I will do, is perhaps check in with you, maybe 4.30. Would that suit - rather than wait till 4 o'clock? That is only, I am guessing it is, I am not sure - the clock is throwing me - it has been changed. There we are, it has been changed. So, I thought I would wait at least until 4.30 or would you rather me, perhaps, wait till five before I check in with you? 4.30, five? FOREPERSON: 4.30. HIS HONOUR: 4.30? Okay, well we will do that. Please do not feel any pressure or urgency with respect to any matter. I am mindful of all matters, so please, if you can return to continue with your deliberations - I would be grateful. Thank you very much for your patience yet again." [Emphasis added.]
27. In the absence of the jury, the trial judge discussed timing with counsel who agreed that the jury should be invited to keep deliberating. Mr Winch indicated that they ought be invited to continue until 6.30pm, or another hour and a half (which would have taken it to 6pm). The discussion continued as follows: "HIS HONOUR: Is that your position and then depending on what the answer is, then a position needs to be sought regarding the juror? WINCH: That's right, your Honour, and we are in a different position now in terms of the state of the information than we were earlier on and I am very mindful of the majority verdict provision but simply ask at this stage that that juror, whoever he or she might be, stays at least for the next period of time that your Honour will be asking them to deliberate and thereafter, if there is no agreement and that juror would be seeking to be discharged, I would be asking that because of the possibility - we don't know where that juror stands in the debate but we know there is a debate and we know that there is some disagreement and I have not been prepared to consent to that particular juror to be discharged without the whole jury being discharged, at the risk of the detriment of [the appellant], hence that provision. My submissions at the present time though are, and I think my friend is in agreement, I would ask your Honour to exhort them to redouble their efforts and to invite them back at about 6.00." [Emphasis added.]
28. It is plain from what defence trial counsel said in this exchange that he did not want to deprive the appellant of the committed juror since it was at least possible that the committed juror was responsible for the lack of unanimity. Thus, defence trial counsel would have preferred for the whole jury to be discharged rather than for the committed juror alone to be discharged, with the trial continuing with the remaining 11 jurors.
29. At about 4.30pm, the jury sent a note which said: "We have come to individual decisions however we are not in agreeance."
30. When the jury returned to court at 4.44pm, the trial judge asked the jury to continue with their deliberations as follows: "Ladies and gentlemen, what I am going to do is ask you to continue deliberating today. I am inviting you to remain for at least some time now. The court facilities can remain open. You are at a crucial time and I appreciate that it would be a challenging time for jurors as a group in your deliberations. It is important that you continue with your deliberations and my preference is that, if you can, you continue to do so this afternoon. What I propose to do is ask you to continue with your deliberations, perhaps with a view of bringing you back later this afternoon. I am mindful of difficulties that one juror raised previously. That remains. I am alert to that, so I am asking you as a jury to [sic, of] 12 to continue with your deliberations this afternoon. If you need to contact personnel to make relevant arrangements, please let me know via a note. I do not think there is any problem with that but it seems to me, having returned as you have after the long weekend, continued with the summing‑up and your deliberations commencing this morning some time after 11.00, then with the hiatus, as it were, while a transcript was prepared and made available to you at your request and that day, it is my view that it is important that you continue with your deliberations at least for some time longer this afternoon. That is what I propose to do. What I will do is respond to any note you have as to any difficulties that might create and deal with that, if necessary, but my present view, and accepting that the clock is correct and it is something like 12 minutes to 5, I am thinking of having you remain at least for the next hour, if not more, to continue with your deliberations. Thank you for that. I appreciate you bringing to my attention that which you have. If you need to contact personnel or something, let me know and I will discuss that with the parties and certainly, I would imagine, allow that to occur. Thank you. I will not call you back unless you need me and I will not trouble you until at least 6 o'clock. Thank you very much." [Emphasis added.]
31. The jury retired again at 4.48pm. No note indicating that any juror had any difficulty with remaining until 6pm was received. The next note indicated that the jury had reached a decision. The jury returned verdicts of guilty of all charges at 5.47pm.

Ground 1: failure to give a Black direction

1. The appellant contended that, once the trial judge had been alerted to the disagreement between the jurors, his Honour ought to have given a direction in accordance with the suggested direction in Black v The Queen (1993) 179 CLR 44 at 51-52; [1993] HCA 71 (the Black direction). It is important to recall what the High Court said of relevance in Black v The Queen. After addressing the remarks by the trial judge which were held to place undue pressure on the jury, the plurality (Mason CJ, Brennan, Dawson and McHugh JJ) continued as follows, at 51: "Before we leave this aspect of the case we should say that we see no reason why a direction should not be given to a jury if it appears that they are encountering difficulty in reaching a verdict. But that direction should state quite clearly that each juror has a duty to give a verdict according to the evidence. Likewise, it is proper to remind the jurors that they should listen to each other's views, weigh them objectively and that an individual juror can change his or her mind if honestly persuaded that his or her preliminary view is not well founded. With these comments in mind we consider that, should the occasion arise, a trial judge should give a direction along the following lines: '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.'" [Emphasis added.]
2. The passage set out above indicated that whether a direction in the terms suggested ought be given was a matter for the trial judge to be determined as a matter of discretion. The High Court did not say that a trial judge was obliged to give such a direction whenever jurors indicated disagreement.
3. In the present case, there were two notes indicating disagreement. The first note was received when the jury had not yet received all of the material which they had requested. At this juncture, the trial judge's response was to remind the jury that they were, at that point, being given the material they had requested and to ask them to continue with their deliberations. I am not persuaded that anything more was required since there was at least the possibility that a review of the material provided would resolve the disagreement indicated by the first of the two notes.
4. The second note was received after the jurors had had an opportunity to review the material they had requested. However, the jury had, by that time, been deliberating for a net period of probably no more than about four and a half hours, taking into account the luncheon adjournment and the time spent in Court having their notes answered. I respectfully disagree with Simpson AJA that the trial judge gave "no response" to this note. As set out above, the trial judge asked the jury to continue with their deliberations and reminded them of the sequence of events that day in the following terms: "…but it seems to me, having returned as you have after the long weekend, continued with the summing‑up and your deliberations commencing this morning some time after 11.00, then with the hiatus, as it were, while a transcript was prepared and made available to you at your request and that day, it is my view that it is important that you continue with your deliberations at least for some time longer this afternoon. That is what I propose to do."
5. In effect, his Honour appropriately directed the jury to persevere. This direction did not amount to a Black direction because it neither informed the jury that they could be discharged if they did not agree, nor did it include a direction not to compromise their verdicts. As set out above, the trial judge also informed the jury that, if continuing to deliberate past 4pm caused any juror any difficulty, a note could be sent. I regard it as significant that a Black direction was not sought by defence trial counsel.
6. Whether, and when, a Black direction is given is pre-eminently a discretionary matter for the trial judge. As Hidden AJ said in CA v R [2019] NSWCCA 166 (by reference to Burrell v R [2007] NSWCCA 65; (2007) 190 A Crim R 148, McClellan CJ at CL (Sully and James JJ agreeing)) at [270]: "[W]hile a Black direction is conventionally given when a jury has indicated clear disagreement, the trial judge has the discretion whether or not to give that direction depending on the circumstances of the case at hand."
7. The "circumstances of the case at hand" included that the jury had been deliberating for no more than about four and a half hours and had only recently received the transcript and other material which they had requested. Although they had signified disagreement, their deliberations were at a sufficiently early stage to leave open the prospect that the disagreement could be resolved in time. Furthermore, the trial judge was plainly aware that, if the jury did not reach a unanimous verdict before they left for the evening, the appellant would be deprived of the forensic benefit of being tried by twelve jurors since the committed juror would have to be discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW).
8. While a Black direction must be given before a direction concerning the availability of a majority verdict is given, there is otherwise no fixed rule as to the timing of a Black direction. Black v The Queen was decided in 1993. The majority verdict provisions came into force on 26 May 2006 by the insertion of s 55F into the Jury Act. The effect of these provisions has been to make it more usual for a Black direction to be given closer to the expiry of the eight hour period than at an earlier stage. The reasons for this are obvious. A majority verdict is available only after the jury has been deliberating for at least eight hours: s 55F(2)(a) of the Jury Act. In the present case, the jury had been deliberating for significantly less than that period when each of the two notes indicating disagreement was sent. Had the trial judge given the Black direction in response to either of these two notes, his Honour would potentially have placed himself in the invidious position, had the jury sent further notes within the 8-hour period to indicate that they disagreed, of having to repeat the Black direction. In this scenario the potency of the Black direction would inevitably have been reduced. The decision as to when, and whether, to give a Black direction requires a judgment to be made which takes account of the time at which disagreement has been indicated relative to the total amount of time spent deliberating, as well as the complexity of the trial which may make it more likely that further discussion will resolve outstanding issues in the minds of one or more jurors. The trial judge was best placed to make that judgment.
9. Notwithstanding the "protective" aspect of the Black direction in which the jury is directed not to compromise, there was a risk in the present case that, had the jury, who had been deliberating for a relatively short period of time (and well short of eight hours), been told that the judge could discharge them, the jurors might have felt obliged to compromise to come to a verdict, particularly having regard to the imminent unavailability of the committed juror. Further, to give the Black direction at what was, in the context of the trial, a relatively early stage could create the risk that a jury might ask themselves when the power to discharge them would be exercised which might distract them from continuing to deliberate. It was, in my view, properly open to the trial judge to assess that it was better to encourage the jury to continue with their deliberations at that stage than to give the Black direction.
10. Although I would be disposed to grant leave pursuant to r 4 of the Criminal Appeal Rules (NSW), I am not persuaded that this ground has been made out.

Ground 3: alleged pressure applied to the jury to come to a verdict

1. The gravamen of the appeal on the third ground was that the jurors had been pressured to reach a verdict because they had not been told that they could have been discharged if they continued to disagree and had not been directed not to compromise their views.
2. A hallmark feature of the jury system is that, except to the extent to which the state of mind of the jury collectively is revealed by its questions or its verdict, the workings of the jury's deliberations before the return of a verdict are unknown. Two examples suffice to illustrate the point. When a jury returns a verdict at 4pm on a Friday, one available inference is that the jury wants to be free of their responsibilities before the weekend. When a jury returns a verdict at 10am on a Monday, one available inference is that some consensus was reached on Friday but that at least one member wanted to consider it over the weekend. While it is important to provide and safeguard an environment in which jurors feel comfortable about making serious decisions on a rational basis without undue pressure, this Court ought refrain from speculating about the reasons for jurors' conduct in circumstances where there is a number of available inferences.
3. It is also fundamental to the criminal trial process that litigants are, other than in exceptional cases, bound by the conduct of their counsel. Gleeson CJ (McInerney J agreeing) said in R v Birks (1990) 19 NSWLR 677 at 683: "In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information. As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case."
4. In the present case, the appellant's trial counsel was required to make judgments about whether to apply for a discharge of the committed juror or the whole jury and whether to seek to have the judge enjoin the jury to continue its deliberations. The trial judge consulted with counsel at every relevant point. There was no occasion on which his Honour did not accede to what had been proposed, after discussion, by defence counsel. The trial judge, the prosecutor and defence counsel had the undoubted advantage over this Court in that they had the opportunity to observe the individual jurors as they came into and went from the court room, including on 30 September 2016 and 4 October 2016. They were in a position to discern any physical indication of undue stress in the jurors' demeanour. The notes which emanated from the jury ranged from the practical (a request for access to mobile phones during an adjournment) to the substantive (an indication of an inability to agree). The content and frequency of the jury notes were sufficient to reveal the jury's familiarity with the process.
5. Had the trial judge discharged the committed juror before the return of the verdicts on 4 October 2016, the appellant would have lost the chance of being tried by 12 jurors. Although it is open to a trial judge to discharge an individual juror in accordance with the Jury Act, the exercise of the power to discharge an individual juror and continue the trial with the balance of the jury carries with it forensic disadvantages to an accused who is in the jury's charge: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [81] (Kirby J). A concern not to disadvantage the appellant in this way was evident from the prosecutor's response to defence trial counsel's initial suggestion on 30 September 2016 that the committed juror be discharged. It was also evident from defence trial counsel's preference, on the afternoon of the 4 October 2016, for the jury to continue to deliberate until at least 6pm on that day as the committed juror would not become unavailable until the following day.
6. Courts are entitled to assume that juries comply with directions given by trial judges (Demirok v The Queen (1977) 137 CLR 20 at 22; [1977] HCA 21). This Court is entitled to assume that any juror who was troubled by continuing to deliberate until 6pm ("at least for the next hour") would have responded to the trial judge's invitation to provide him with a note to that effect or in some other way would have indicated discomfort with the trial judge's proposal that the jury continue to deliberate. This Court ought not infer, in the absence of any such note or indication, that the verdicts returned involved some compromise or were other than in accordance with the directions.
7. The transcript of the summing up records the solicitous attention given by the trial judge to the needs, comfort and convenience of the jury as a whole and the committed juror in particular as well as the trial judge's concern for the rights of the appellant as an accused. This case is to be distinguished from others such as those where the judge expressed irritation about the cost and inconvenience if verdicts could not be reached: cf. Black v The Queen at 50-51; Timbery v R [2007] NSWCCA 355; (2007) 180 A Crim R 232 at [112]-[123] and Isika v R [2015] NSWCCA 304 at [6]-[17]. I am not persuaded that any such pressure was applied here. If the jury felt that it was, the jury, or any one of its number, can be expected to have communicated such apprehension to the trial judge with a note to that effect.
8. There are several available inferences as to why, the jury not having been able to agree earlier, the jury returned a unanimous verdict shortly prior to 6pm. One available inference is that it was only when the jury had an opportunity to examine the further material which they had requested and which was provided to them after 3.30pm that any residual concerns on the part of one or more jurors were sufficiently addressed. The process of deliberation takes time, particularly where twelve individuals of equal standing are involved.
9. For this Court to quash the convictions and order a retrial would be, in my view, to underestimate not only the capacity of the jury to follow directions and assert its collective will but also the capacity of individual jurors to express a preference for continuing or adjourning. It would also be inconsistent with the system of trial by jury for this result to follow from what can amount to no more than speculation as to why the jury returned its verdicts shortly before 6pm.
10. The appellant has not made out the third ground.
11. As my view is a minority one, it is not necessary to consider ground 2, which relates to sentence.

Proposed orders

1. I would propose the following orders: 1. In respect of ground 1, grant leave to appeal under r 4 of the Criminal Appeal Rules. 2. Dismiss the appeal against conviction.

Amendments 14 August 2019 - judgment published 16 December 2019 - [23] - "gentlemen" substituted for "gentleman" [25] - "deliberated" substituted for "been deliberating" [39] - "1986" substituted for "1985" [56] - "has" substituted for "have" [89] - quotation corrected [112] - "1990" substituted for "1999" 21 April 2021 - Coversheet - appellant's pseudonym revoked DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2021