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[2001] VSCA 52
respondent. The application for leave to appeal against conviction was dismissed; the sentence application was abandoned by leave.
No linked legislation citations have been extracted yet.
The Court of Appeal held that the trial judge had exercised his discretion to accept a majority verdict, even though he did not expressly say so and asked the jury to keep trying for unanimity. In context, the judge's explanation that an 11-to-one verdict could be taken if the jury remained unable to agree showed that the option was available. The Court dismissed the application.
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2,108 words · generated 30/09/2026
In R v Di Mauro [2001] VSCA 52, the Victorian Court of Appeal considered whether a jury's majority guilty verdicts were permissible under s 47 of the Juries Act 1967 (Vic). The issue was not the evidence about the offences. Callaway JA said the circumstances of the offences “need not be rehearsed” because the appeal grounds concerned only the judge's handling of the jury's deliberations [19].
Di Mauro and a co-offender had been found guilty in the County Court of attempted armed robbery, false imprisonment and intentionally causing injury [12]. Di Mauro was sentenced to a total effective term of two years and four months, to be served cumulatively on a sentence he was already serving. The judge fixed a new single non-parole period of 21 months under s 14 of the Sentencing Act 1991 (Vic) [12]. Di Mauro initially sought leave to appeal both conviction and sentence, but abandoned the sentence application by leave when the applications were called on [12].
The jury had reached unanimous verdicts on some matters but reported difficulty agreeing on others. The trial judge told the jury that a majority verdict could be taken only if 11 jurors agreed, and that he also had power to discharge them without a verdict. He explained that the jury should continue trying to reach unanimity, but that if unanimity became impossible and 11 jurors agreed, he could take a majority verdict [19], [23], [26]. The judge asked them to deliberate a little longer.
At 3.04 pm, the jury retired again. At 3.43 pm, it returned unanimous guilty verdicts for the co-offender and majority guilty verdicts for Di Mauro [30]. Di Mauro's grounds contended, in substance, that the jury returned majority verdicts when the judge had not yet exercised his s 47 discretion and while the jury remained obliged to reach unanimity [15], [33], [36].
The Court dismissed the application. Callaway JA gave the principal reasons. Phillips CJ concurred in those reasons, and Charles JA agreed that the application should be dismissed [2], [7], [53].
The Court's reasoning turned on a distinction between the judge having a power to accept a majority verdict and actually exercising the discretion to do so. Section 47 did not make a majority verdict automatic once its conditions were satisfied. Callaway JA stated that the judge retained a “residual discretion” about whether to take such a verdict, even where the other conditions were met [42].
As described in the judgment, the statutory conditions included at least six hours of jury deliberation and a period of deliberation that the judge considered reasonable having regard to the nature and complexity of the trial [42]. The jury had deliberated for at least six hours before the directions in question. A footnote clarifies that the actual period was approximately eight hours. The Court described the case as straightforward and considered a majority verdict acceptable if the jury continued to be unable to agree [50].
The applicant argued that the judge's words showed that the discretion had not been exercised. In particular, the judge had said that he did not think the time had yet arrived to take a majority verdict or discharge the jury. He had spoken of having the “power” to act and of what he “could” do, rather than expressly stating that he was prepared to accept a majority verdict. Counsel also relied on the judge not having invited submissions about the appropriateness of a majority verdict [36].
The Court did not treat the judge's wording as a series of isolated statements. It considered the whole direction and the situation in which it was given. The judge had explained that an 11-to-one verdict was an available outcome if unanimity proved impossible, and then asked the jury to deliberate a little longer. Callaway JA accepted the Crown's submission that the directions showed the judge had decided to take a majority verdict if the jury remained unable to agree after further deliberation [45], [50].
Importantly, continuing to ask the jury to seek unanimity did not contradict that conclusion. The judge could consider unanimity preferable while also having decided that a majority verdict could be taken if agreement remained unattainable. The Court therefore held that, after the judge exercised the discretion, “it was permissible for the jury to return a majority verdict, although they were asked to endeavour a little longer to reach unanimity” [50].
The Court also addressed the absence of submissions from counsel. It treated that fact as relevant to whether the discretion had been exercised. The applicant did not argue that the discretion, if exercised, was vitiated by a denial of procedural fairness. Callaway JA said that such a submission was not before the Court and left it undecided [42].
The judgment describes the legal framework it applied, rather than setting out a comprehensive account of the law before and after the decision. It states that both the common law and s 47 required a deliberative process characteristic of unanimous decision-making [42]. A majority verdict was subject to statutory conditions, including the minimum deliberation period and a judicial assessment of whether the time spent deliberating was reasonable in the circumstances [42].
The decision's contribution, on the material provided, is its application of that framework to the question of how a judge may exercise the residual discretion. The judge need not use a particular formula expressly announcing, “I exercise my discretion.” Instead, the court determines from the words used and their context whether the judge had made the decision to accept a majority verdict if unanimity could not be achieved [45], [50]. The judgment's conclusion is that the judge's directions did show that decision, even though he also asked the jury to continue deliberating.
The Court situated its reasoning alongside R v Muto and Eastey [1996] 1 VR 336. Callaway JA described that case as having given authoritative guidance to trial judges about carrying out the s 47 task, and said the Di Mauro judgment should be read with it [39]. The Court discussed the model direction in Black v R [1993] HCA 71; (1993) 179 CLR 44, including the distinction between directions given before s 47 has been invoked and those appropriate after it has been invoked [23], [45]. It also referred to Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 for the common-law aspect of deliberative reasoning characteristic of unanimity [42].
The judgment does not state that it overruled or displaced those authorities. Rather, it applied their guidance to the particular words and timing of the trial judge's directions. It does not supply a later account of how courts treated Di Mauro. Any claim about subsequent treatment would require sources beyond this judgment.
At [42], Callaway JA stated: “Both the common law and s.47 require a process of deliberative reasoning characteristic of unanimous decision-making.” In plain English, a majority verdict is not a substitute for giving the jury a genuine opportunity to deliberate towards agreement. The majority-verdict power operates within a process that begins with deliberation in the manner associated with unanimity.
The same paragraph says that “the judge has a residual discretion, even where other conditions are satisfied, as to whether or not to take a majority verdict.” Put simply, satisfying the statutory preconditions does not compel the judge to accept a majority verdict. The judge must still decide whether to permit that outcome.
At [45], the Court explains why the directions mattered. It considered whether the judge's omission of a statement that the statutory circumstances had not yet arisen, together with the overall tenor of what he said, indicated a decision to exercise the discretion. The point was not whether the judge had used exact words, but what his directions conveyed when read as a whole.
At [50], Callaway JA gave the decisive conclusion: the judge had exercised his s 47 discretion when he gave the directions. He added that the judge had not expressly told the jury he was willing to take a majority verdict, but the words used showed that he was in the position of a judge who considered the time for a majority verdict had arrived. In everyday terms, an explicit declaration was not necessary on these facts because the direction, read in context, communicated the decision.
Also at [50], the Court said the jury could return a majority verdict even though they were asked to keep trying for unanimity. The passage makes clear that asking for further deliberation does not necessarily mean the majority-verdict option remains unavailable. The legal significance depends on whether the judge has already exercised the discretion and what the directions convey.
The judgment is most directly relevant to cases where a trial judge has given directions about majority verdicts under s 47 and a party later argues that the discretion to accept such a verdict was never exercised. In particular, it addresses directions that refer to the possibility of a majority verdict, encourage more deliberation, and do not expressly announce that the judge is prepared to accept a majority verdict.
The decision is tied to its circumstances. The jury had deliberated for at least six hours before the directions, and the judgment records that the actual period was approximately eight hours. The Court characterised the case as straightforward [50]. Those details formed part of the Court's reasoning about whether the statutory setting for exercising the discretion had been reached.
The judgment may also be relevant where the jury returns a majority verdict after receiving a further invitation to seek unanimity. It establishes that these two elements are not necessarily inconsistent: the jury can be asked to continue striving for unanimity while a majority verdict is an available outcome if unanimity remains impossible [50].
It does not establish that every reference to a possible majority verdict amounts to an exercise of discretion. The Court's conclusion depended on its reading of the judge's whole direction in context. It also does not decide the separate question of whether a particular exercise of discretion would be procedurally unfair. Callaway JA noted that this issue had not been argued and did not decide it [42].
The supplied judgment does not discuss any later decisions, and the material provided contains no subsequent judicial treatment of R v Di Mauro. It is therefore not possible, on this source alone, to say whether later courts followed, distinguished, limited or reconsidered the decision.
The judgment itself explains its relationship with earlier authorities. It describes R v Muto and Eastey as authoritative guidance on the s 47 task and says Di Mauro should be read with it [39]. It considers the model directions in Black v R and the modifications discussed in Muto and Eastey [23], [45]. It also cites Cheatle v R in support of the principle that the process should be characteristic of unanimous decision-making [42]. These are the authorities discussed in this decision, not evidence of later treatment of Di Mauro.
Several matters are expressly or implicitly outside the decision's scope. First, the Court did not determine what submissions from counsel might have been appropriate before a judge decides whether to accept a majority verdict. It noted the absence of submissions but treated it as relevant only to whether the discretion was exercised [42].
Second, the Court did not decide whether an exercise of the s 47 discretion could be challenged as procedurally unfair in circumstances where that issue was properly raised. The judgment says that no such argument was advanced and leaves the point undecided [42].
Third, the decision does not provide a universal verbal test for when directions amount to an exercise of discretion. It holds that the particular directions, read as a whole and in context, showed that the judge had exercised the discretion [50]. It does not say that any judge's statement of the power to accept an 11-to-one verdict would necessarily have the same effect.
Finally, the judgment's account of statutory conditions is limited to the matters material to the appeal: at least six hours of deliberation, a reasonable period having regard to the trial, and the residual discretion [42]. It does not set out the full text of s 47 or address other possible statutory questions. The source provided also does not establish later treatment of the case.
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[ 2001] VSCA 52
Criminal law - Appeal against conviction - Majority verdicts - Whether taken in conformity with Juries Act 1967, s.47.
"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."
"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."
"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."
[1] [1993] HCA 71; (1993) 179 C.L.R. 44 at 51-52.
[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.
10] Compare R. v. Muto and Eastey at 343 lines 4-17 and 344 lines 15-16.
R
Di Mauro [2001] VSCA 52
The application for leave to appeal against conviction was dismissed; the sentence application was abandoned by leave.