Peers v R [1999] WASCA 295

Customs Act 1901 (Cth) s 233

Respondent : Commonwealth Director of Public Prosecutions

Respondent : Commonwealth Director of Public Prosecutions

R v The Accused [1988] 2 NZLR 46

1 MALCOLM CJ: I would grant leave to appeal but would dismiss the appeal for the reasons to be published by Owen J with which I am in entire agreement.

2 IPP J: I have read the reasons to be published by Owen J. I am in agreement with those reasons and have nothing further to add.

3 OWEN J: This is an application by the first and second appellant ("the appellants") for leave to appeal against conviction on a charge of being knowingly concerned in the importation of a prohibited import, namely cocaine, contrary to s 233B of the Customs Act 1901 ("the Act"). The appellants seek leave to appeal on the ground that the learned trial Judge erred in her instruction to the jury by infringing the fundamental principle that the jury must be free to deliberate without any form of pressure being imposed upon them. The first appellant's notice of appeal included a second ground of appeal. This ground was abandoned by way of amendment.

4 On 9 March 1999 each of the appellants was convicted on three separate counts in a joint trial in the District Court. The first count was with respect to attempting to obtain possession of a prohibited import, namely MDMA or ecstasy. Count two was for being knowingly concerned in the importation of a prohibited import, namely cocaine, and the third count was with respect to attempting to obtain possession of a quantity of cocaine. All of these offences were contrary to s 233B of the Act. Each of the appellants was sentenced to 10 years' imprisonment. In relation to the conviction on count two, the subject of this application, the appellants were sentenced to 7-1/2 years' imprisonment. This sentence was to be served concurrently with the sentence imposed for count three but cumulative upon the 2-1/2 year sentence imposed in relation to the first count.

5 The trial ran for six days commencing on 2 March 1999 and concluding on 9 March 1999. On 9 March following the trial Judge's charge, the jury retired at 12.18 pm to consider their verdicts. At 7.33 pm the jury indicated by letter to the trial Judge that while they had reached unanimous verdicts in relation to the first and third counts they were unable to do so on the second count. After conferring with counsel, the trial Judge decided to call the jury into court to accept the unanimous verdicts for the two counts, and then, having done that, ask the jury whether, given some more time, there was any prospect of a verdict being reached on the remaining count.

6 Prior to the jury returning to deliver their verdicts on the first and third counts, counsel for the prosecution suggested to the trial Judge that once the verdicts were received it would be an appropriate time for the jury to be given a direction of the type enunciated by the High Court in Black v The Queen (1993 - [1993] HCA 71; 1994) 179 CLR 44 ("Black's case"). Although the trial Judge was familiar with this direction, a copy of the direction was handed up by counsel for the prosecution. Counsel for the defendants (the appellants in this appeal), indicated that in his opinion such a direction was a little premature. However, the trial Judge took the view that as the jury had indicated that they were unable to reach agreement on the second count it was the appropriate time for such a direction to be given. The decision as to the timing of the direction is not at issue in this appeal.

7 Having returned the verdicts on the first and third counts, the trial Judge then proceeded to ask the foreman whether there was any prospect, if the jury were to continue deliberating, that they might eventually reach a verdict in relation to the second count. Before allowing the foreman to respond to her question, the trial Judge proceeded to give to the jury a direction in terms similar to those outlined in Black's case. Following the direction, the foreman told the trial Judge that the jury would like to try and see whether they could agree on a verdict in relation to the second count. The trial Judge indicated that she was prepared to allow the jury to deliberate further, but she limited to one hour the time in which they could do so. The jury then retired and were recalled one hour later, at approximately 8.30 pm. At this point the jury indicated they would like another 10 minutes to deliberate. This was allowed, and at 8.43 pm the jury returned a guilty verdict for each of the appellants in relation to the second count.

8 It is important to set out the entire direction given to the jury, as the specific part of the direction which is objected to needs to be viewed in the context of the whole direction. The direction appears at 569 - 570 of the appeal book and is in these terms:

"Now, the accused may sit down and would you sit down a moment please, ladies and gentleman. Could I ask you, do you see any prospect, if you would continue deliberating, of eventually reaching a verdict in relation to count 2?

I just want to tell you a few things. I would be very reluctant to discharge you unless you are unable after all avenues have been looked down, of reaching a verdict in relation to count 2, and that is because it's often after calmly considering the evidence and listening to the opinions of other jurors - I'm sure you have done that already, but if you cannot honestly agree with the conclusions of other jurors - every juror must remain true to his or her oath; but at the same time, you appreciate, if you are unable to bring in a verdict in relation to this charge, it's a matter that continues to be pending and could necessitate another jury having to sit and consider it.

So each of you has sworn or affirmed that you would give a true verdict according to the evidence, and that's a unique personal responsibility all 12 of you have. You must fulfil that but, at the same time, part of your duty would be to listen carefully to the views of the others, of your fellow jurors, consider where your differences lie with the other jurors, review the evidence or if we can help in any way with the evidence or any directions, and do you think there would be a chance, if I asked you to continue your deliberation - not endlessly, because it has been a very long time now and I know you're getting tired; but do you think if you deliberated for another hour there's a chance, any possibility, of reaching unanimous agreement on count 2? I just ask you whether you think there could be some prospect of it.

9 The appellants submit that this direction offended the fundamental principle outlined in Black's case; the fundamental principle being that a jury must be free to deliberate without any pressure being imposed on them. Further, the appellants rely on Black's case for the principle that, in directing a jury where the jury is having difficulty reaching agreement, the Judge must not refer to the inconvenience and expense incurred in the event of a disagreement: Tangye (1997) 92 A Crim R 545 at 551.

10 The appellants claim that in a situation such as this, where the jury had been deliberating for seven hours, the inclusion in the direction of a reference to the possible consequences of the jury being unable to agree created a real risk that minority jurors could be put under pressure to conform to the view of the majority. Further, the appellants claim the reference to the fact that disagreement could "necessitate another jury having to sit and consider it" when combined with the imposition by the trial Judge of a one-hour time limit within which further deliberation was to take place, could only have further increased the pressure on the minority jurors to accede to the view of the majority.

11 Counsel for the first appellant submitted that the trial Judge's reference to the possibility of a re-trial offended the principle of free deliberation, as it was a reference to the inconvenience and expense incurred in the event of disagreement. Counsel contended that such a reference was akin to the reference to "considerable public inconvenience and expense" that was criticised by the High Court in Black's case.

12 In my opinion, the question whether a direction offends this fundamental principle and therefore is capable of placing undue pressure on minority jurors can be determined only by an examination of the effect the particular words used may have on a reasonable juror when read in the context of the whole direction given by the trial Judge. The Court must examine the phrases objected to in their full context: R v Biset, unreported; FCt SCt of NSW; Library No 607; 19 August 1994. For this reason it is not particularly helpful, as suggested by counsel, to compare the particular words used in one case to those used in another for the purpose of ascertaining evidence of undue pressure. However, as a result of the appellants' contention that the words used by the trial Judge are similar to those used in Black's case, I feel compelled to undertake a brief examination of the direction in that case, if only for the purpose of drawing a distinction between the direction in that case and the direction before this Court.

13 In my opinion, even if the expression used by the trial Judge in this case is similar to the expression "considerable public inconvenience and expense" used in Black's case, it does not automatically follow that the direction would be held to offend the fundamental principle of free deliberation. This is because the general prohibition set down in Black's case against references in a direction to the inconvenience and expense was not based solely on the use of the expression "considerable public inconvenience". Rather, the view taken by the High Court was arrived at after consideration of the whole direction and the use and effect of other expressions within that direction; namely, that "There must necessarily be ...a certain amount of give and take and adjustment", that there was a "duty, not only as individuals but also collectively" and that a disagreement was "not a pleasant prospect". It was only after having considered what the cumulative effect of these three expressions may have had on minority jurors that the Court found the trial Judge's direction went too far and could have resulted in the jury failing to give the issues free deliberation. In my view, it is clear from the reasons in Black's case that it was not, as the appellants contend, the use of the expression "considerable public inconvenience" alone that resulted in the direction in that case being held to infringe the principle of free deliberation.

14 Given the above, it seems to me that the direction given by the trial Judge in this case did not involve the same degree of potential interference as the direction in Black's case. The difference, in my opinion, is that the overall tenor of the direction in Black's case was in itself capable of exacerbating the risk of undue pressure. This undue pressure was created by the trial Judge's express use of references to a collective responsibility or duty and the need to give and take which may have been understood as encouraging a minority juror to subordinate their views to the majority.

15 Counsel for the first appellant submitted that the fact the jury had been sitting for six days and deliberating for seven hours would have meant that they would have been very mindful of the inconvenience and expense involved in conducting a retrial. As a result any reference to the possibility of another trial could only have served to increase the already existing pressure on them. Further, the appellants say that the imposition of a time limit of one hour would only exacerbate the sense of urgency in reaching a verdict. Counsel submitted that this sense of urgency was illustrated by the additional 10 minutes which the jury requested, after which a verdict was reached. I find it difficult to accept this submission. In my opinion, the words used by the trial Judge, when read in the context of the whole direction could, even if afforded a construction most favourable to the appellants, offer no more than a slight inference to the potential inconvenience of another jury sitting.

16 Further, the contention that the jury would have been very mindful of the public expense of another trial lacks substance, given there was no express or even implied reference to the expense of another jury having to sit. I am not convinced it can be inferred from the fact that the jury had sat through a lengthy trial and spent some time deliberating that they would have been particularly conscious of the possible public expense or inconvenience resulting from their failure to deliver a verdict to such an extent that undue pressure would be placed on them. Even where, as the case is here, a direction was given that made a slight reference to the inconvenience of another trial, I cannot accept that in these particular circumstances the direction could be criticised as creating a real risk of the jury failing to give the issues free deliberation.

17 Counsel for the appellants contend that, although the trial Judge properly instructed the jurors to remain true to their oaths, the trial Judge then fell into error by qualifying this obligation with a reminder that at the same time (as remaining true to their oath) they should appreciate that a failure to reach a verdict could result in another trial. The relevant part being:

"...every juror must remain true to his or her oath; but, at the same time, you appreciate, if you are unable to bring in a verdict in relation to this charge, it's a matter that continues to be pending and could necessitate another jury having to sit and consider it."

18 The appellants say that the effect of the word "but" serves to detract from the seriousness of the juror's oath and could have resulted in jurors understanding the passage to mean that the oath should give way to or be balanced against other considerations, such as the need for a retrial if no verdict is reached. However, once again, it seems to me that the force of the appellants' argument on this point falls away when the passage is considered in the context of the whole direction.

19 In this case the trial Judge, throughout her direction, made it clear to the jury that each juror had an individual duty to come to a conclusion on the evidence as they saw it. This was stressed to jurors both immediately prior to and immediately after the use of the words complained of. Each juror was told to "remain true to his or her oath" and that this was a "unique personal responsibility". Each juror was told that, along with their individual duty as a juror, they had a duty to listen carefully to fellow jurors and consider carefully where their differences were. In my view, the trial Judge's direction, with respect to the duties of each juror and the process required of each juror in reaching a unanimous verdict, was clear and very carefully worded. At all times it would have been apparent to the jury, from the trial Judge's words, that each juror was required to deliberate over the evidence and arrive at a conclusion that they felt was correct. The trial Judge also made it very clear that the oath was fundamental to their approach and that a unanimous verdict could be reached only if all jurors "honestly agree" according to their individual understanding of the evidence.

20 Further, it seems to me that if there was any possibility that a juror may have felt a slight degree of pressure as a result of the trial Judge's reference to another jury having to sit, that pressure would have fallen away by the conclusion of the direction. This is because, having made reference to the fact that a failure to reach agreement "could necessitate another jury having to sit and consider it", in the remainder of the direction the trial Judge proceeded to provide encouragement, support and empathy to the jury in relation to their task before finally asking the jury whether they could reach a verdict if given more time. In asking this the trial Judge qualifies her question by acknowledging that she is aware the jury are tired and then proceeding to couch her question by using words such as "chance", "possibility" and "any prospect". The trial Judge's concern for the jury was also evident in her comment that she was not contemplating that they deliberate "endlessly, but only for another hour". In my view, it would have been apparent to the jurors that the one-hour time limit that was placed on them was done primarily for the jury's welfare, as opposed to the appellants' contention that it was a device capable of placing more pressure on the minority jurors. The foreman's positive response of "We would like to try" does not, in my opinion, reflect the response of a jury placed under pressure, nor does it indicate any hesitancy in the jury's willingness to try to reach a verdict.

21 It was submitted by counsel for the second appellant that any reference in a direction to the possible consequences of the jury failing to agree would automatically infringe the fundamental principle of free deliberation on the basis that such a reference was not part of the model direction set down in Black's case. I cannot agree with this submission. The mere fact that something is said in addition to the model direction does not make the direction wrong where the direction does not create a real risk of interfering with the jury's freedom to deliberate without pressure imposed on them: Tangye (supra) per Hunt J at 551. The authorities make it quite clear that what the Court must decide is whether the words used infringe the fundamental principle set down in Black's case by creating a real risk of interfering with the jury's freedom to deliberate without pressure being imposed on them: See R v Biset (supra).

22 The appellants have not satisfied me that the trial Judge's reference to the fact that the jury's inability to bring in a verdict could necessitate another trial created a real risk that pressure was being placed upon the minority jurors. In my view, the words complained of were nothing more than a simple, unelaborated statement of fact informing the jury what the consequences would be if they were to fail to reach a verdict. There was no express reference to either the inconvenience or expense of another trial. The trial Judge merely stated that if they could not reach agreement another jury may have to sit and consider the matter, a fact clearly within the knowledge of any reasonable juror, regardless of whether the trial Judge mentioned it.

23 It seems to me that, when viewed in the context of the whole direction, the words complained of were not intended to, nor in my opinion did they, convey to the jury any sense of urgency, pressure or coercion to reach an agreement. Further, unlike Black's case, the trial Judge did not have recourse to expressions such as "considerable inconvenience and expense" or "not a pleasant prospect" to emphasise her point that another jury could be required to determine the matter. Nor did the trial Judge in any way imply that the jury had failed by not reaching an agreement. On the contrary the direction contained words of encouragement towards the jury and their task up to that point.

24 In the circumstances of this case there was no real possibility of the impugned parts of the direction having had an adverse impact on the integrity of the jury process. However, it is not difficult to envisage cases in which the mention of time limits or further proceedings could be misconstrued. For that reason, in my view, it would be preferable to avoid references to a specific time for further deliberation and references to the possibility of a re-trial.

25 I would grant leave to appeal but would dismiss the appeal.