R v Di Mauro [2001] VSCA 52

Court of Appeal (Vic)|2001-05-01|Before: PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A.

Criminal law - Appeal against conviction - Majority verdicts - Whether taken in conformity with Juries Act 1967, s.47.

I have had the benefit of reading the judgment of Callaway, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

I have had the advantage of reading the reasons for judgment of Callaway, J.A. I agree that the application should be dismissed for the reasons given by his Honour.

The applicant, who is now aged 23, and a co-offender were each found guilty in the County Court on one count of attempted armed robbery, one count of false imprisonment and one count of intentionally causing injury. The applicant was sentenced to a total effective term of imprisonment of two years and four months, to be served cumulatively upon a sentence that he was then undergoing. A new single non-parole period of 21 months was fixed pursuant to s.14 of the Sentencing Act 1991. He originally sought leave to appeal against both conviction and sentence, but the latter application was abandoned by leave of the Court when the applications were called on for hearing.

"1. The trial of the applicant miscarried in that the jury returned majority verdicts in relation to the counts which the applicant faced, following a direction from the learned trial judge that he would not accept a majority verdict at that stage. 2. The trial of the applicant miscarried in that the jury returned majority verdicts in relation to the counts which the applicant faced, following a direction from the learned trial judge that they were still required to reach an unanimous verdict. 3. The trial of the applicant miscarried in that the jury returned majority verdicts in relation to the counts which the applicant faced, at a stage in the trial when by law they were not entitled to do so."

The circumstances in which the offences were committed need not be rehearsed. They are not relevant to any of the grounds of appeal, which relate solely to the course that was taken when the foreman informed the learned trial judge that the jury were unanimous on some counts but unable to reach a unanimous decision on others. His Honour said:

"I do now have the power to take a majority verdict from you, but only a majority of 11 to one. There are no other majorities allowed. I also now have the power to discharge you without verdict in respect of the matters where you cannot agree. Those are the two options. In other words, if you are presently in disagreement, shall we say, six to six, or seven whatever, then I would have the power to discharge you. If your position was that you are 11 to one then I have the power to take a majority verdict. However, it is appropriate before I do anything I should tell you what the High Court, which is the highest court in Australia, has laid down as an appropriate thing for judges to tell jurors at this stage. And I am talking now only about the matters in respect of which you cannot agree. Those where you have agreed, that is fine. If I sound a bit constrained it is because I am reading it. It is not my own words, it is what the High Court says ought to be said."

His Honour continued, "You should consider that it is preferable that your verdict be unanimous and you should continue to strive to reach such a verdict, that is, if you are contemplating a majority verdict, as I have described." (The shorthand writer thought that that was part of the passage from the High Court judgment that the judge was reading, but a comparison with Black v. R.[1] shows that they were his Honour's own words.) He then read the model direction from Black's Case, beginning at the third sentence, with the modifications suggested in R. v. Muto and Eastey[2] at 342 lines 37-41 but not the modification suggested at lines 35-36. In other words, he did not say, "The circumstances in which I may take a majority verdict have not yet arisen and you should still consider that your verdict of guilty or not guilty must be unanimous." That omission was, of course, consistent with the opening words of the passage set out at [5].

After the modified Black direction, the judge concluded as follows:

"Now, you should continue your deliberations with the view to reaching a unanimous verdict if you can. If that becomes impossible, but you can reach a verdict by agreement of 11 to one, then I can take a majority verdict from you in respect of those counts in which there is a majority. If, on the other hand, you are locked in disagreement then I do ultimately have the power to discharge you. But I do not think the time has quite yet arrived for me to take you - either a majority verdict from you or discharge you, and I would ask you to consider your deliberations a little longer."

At 3.04 p.m. the jury retired to give further consideration to their verdicts. At 3.43 p.m. they returned unanimous verdicts of guilty in relation to the co-offender and majority verdicts of guilty in relation to the applicant.

Mr Dann acknowledged that the three grounds of appeal were variations on a single theme. He accepted that, at the time the judge gave the directions set out above, the jury had been deliberating for at least six hours[3], but he submitted that those directions showed that his Honour had not yet exercised his discretion under s.47 of the Juries Act 1967 to take a majority verdict. Accordingly, so the submission proceeded, the jury were obliged to continue to engage in the process of deliberation characteristic of unanimous decision-making, for the judge had not yet said that they might do otherwise, and the verdicts returned in relation to the applicant showed that they had not continued in the pursuit of unanimity.

Counsel laid particular stress on the fact that the judge had expressly said, at the end of his directions, that he did not think the time had yet arrived for him to take a majority verdict or to discharge the jury. He also pointed out that his Honour had said no more than that he had power to take one or other of those courses and that he could do so. It was submitted that there is a difference between saying that one has a discretion and deciding to exercise it. Moreover, his Honour had not invited submissions from counsel at the trial as to the appropriateness of a majority verdict at that stage.[4]

In R. v. Muto and Eastey this Court gave what was intended to be authoritative guidance to trial judges as to how they might go about their task under s.47 of the Juries Act. I shall not repeat everything that was said at 342-344, but those pages were the foundation of Mr Dann's argument and this judgment should be read in conjunction with them.

Both the common law and s.47 require a process of deliberative reasoning characteristic of unanimous decision-making.[5] For a person to be lawfully convicted by majority, the conditions in s.47 must be satisfied. For example, the jury must have deliberated for at least six hours and be unable to agree on their verdict[6] and it must not appear to the judge that they have not had a period of time for deliberation that he or she thinks reasonable having regard to the nature and complexity of the trial.[7] Importantly, the judge has a residual discretion, even where other conditions are satisfied, as to whether or not to take a majority verdict. The complaint made here is that that discretion was not exercised and accordingly that the applicant was deprived of his common law and statutory right. The question is not so much whether the judge followed the recommended procedure in R. v. Muto and Eastey as whether his Honour exercised his discretion at the time he gave the directions set out and summarized above.[8]

At 342 in R. v. Muto and Eastey the Court dealt with what should be done if a perseverance direction is required in the course of the trial. If the time has not yet arrived after which a majority verdict may be taken, a direction should be given along the lines of the model direction set out in Black's Case with three modifications. None of those modifications is necessary after s.47 has been invoked. Mr Hicks submitted that the judge's omission to say that the circumstances in which he might take a majority verdict had not yet arisen, together with the general tenor of what his Honour did say, showed that he had then decided to exercise his discretion to take a majority verdict if, after the jury had deliberated a little longer, they still could not reach unanimity. His Honour's request to the jury to consider their deliberations a little longer was consistent with that decision. Moreover, counsel said, the words on which Mr Dann relied at the end of the directions were functionally equivalent to the model direction in R. v. Muto and Eastey at 343 lines 6-12, where it is contemplated that a judge who does consider that the time for a majority verdict has arrived will nevertheless tell the jury that it is still preferable that they should endeavour to reach a unanimous verdict but that, if they cannot all agree, a majority verdict may be taken.[9]

In my opinion those submissions should be accepted and we should conclude that the judge exercised his discretion under s.47 at the time he gave the directions set out and summarized above. Thereafter it was permissible for the jury to return a majority verdict, although they were asked to endeavour a little longer to reach unanimity. It was a straightforward case where, after eight hours' deliberation, a majority verdict was acceptable if the jury continued to be unable to agree. It is true that his Honour did not expressly tell them that he was willing to take such a verdict[10] but what he said shows that he was in the position of a judge who, in the words of R. v. Muto and Eastey at 343 line 4, considers that the time for a majority verdict has arrived.

For these reasons I do not consider that the applicant was deprived unlawfully of the common law and statutory right referred to at [12] above and I would dismiss the application.

[3] The actual period was approximately eight hours.

[4] Compare R. v. Muto and Eastey at 342 lines 48-50.

[5] Cheatle v. R. [1993] HCA 44; (1993) 177 C.L.R. 541 at 552-553; R. v. Muto and Eastey at 343-344.

[8] That is, for example, the only relevance of his not having invited submissions from counsel. It was not suggested that his Honour did exercise his discretion but the exercise was vitiated by a denial of procedural fairness. I do not think that such a submission would have been accepted in the circumstances of this case but the point need not be considered further.

[9] See also his Honour's words quoted at the beginning of [[].

10] Compare R. v. Muto and Eastey at 343 lines 4-17 and 344 lines 15-16.

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