R v Goodall [2007] VSCA 63

"We want ... juries to be objective about the facts and the questions of guilt and innocence but committed to building upon what they already know about the world, ... and human beings."[2]

5 This is reflected in directions to juries which instruct jurors to bring an impartial mind to the decision-making process, but to draw on their own experience in drawing inferences and reaching conclusions on the facts in issue.

6 There is no reason to think that the jury in this case was incapable of conscientiously discharging its duty.

Summary of facts

7 During the prosecutor's closing address in the applicant's trial on one count of maintaining a sexual relationship with a child under the age of 16 years, a jury member showed signs of emotional distress. The prosecutor was in the course of reminding the jury of the complainant's evidence, given on VATE tape, and invited the jury to accept the complainant as a truthful and reliable witness. The prosecutor continued:

"[a]s I said, you being the judges of the facts, you will have to assess each of the witnesses ... And in assessing the reliability and the truthfulness of a witness, you include your common sense, your own knowledge of life, the matters that come from your own walks of life. Everyone's had different experiences but you use those matters to assist you in judging of the witnesses. You look at the witnesses and ..."

8 At this point it became evident to the trial judge that one of the jurors had become distraught. His Honour requested the jury to retire to the jury room to enable the distressed juror to regain his composure. During that adjournment, it appears that a note signed by the foreman of the jury was handed to his Honour. The note indicated that the juror in question had himself been the victim of abuse, but now felt able to continue. The trial judge showed the note to the prosecutor and to defence counsel.

9 Upon the court resuming and in the jury's absence, defence counsel made an application for the jury to be discharged without verdict on the basis that it was apparent from what had occurred in the court room that "at least one of this jury is not impartial ...". At that point the learned trial judge interjected, saying: "I don't think that's necessarily right." Defence counsel maintained his submission that the particular juror was biased and may have tainted the rest of the jury. The trial judge was requested to enquire of the foreman and the remaining jurors whether the particular juror's history and reaction had affected the ability of the remaining jurors to bring an impartial mind to bear on the case. Defence counsel submitted in the alternative that if the jury were not to be discharged, then the particular juror ought be discharged and the trial proceed with eleven jurors.

10 The trial judge resolved to discharge the juror, indicating that he believed there was "good reason to do so". His Honour addressed the jury as follows:

" ... I've been given a note. I've shown the note, as I must, to Mr Lynch and Mr Barker, and they have each read the note and there is no shame whatsoever in what occurred. It is a perfectly normal reaction, perhaps, but what I propose to do, and I have got the power to do this, is to discharge the juror from further jury service and I can proceed with eleven jurors under an Act called the Juries Act."

11 His Honour then discharged the juror and asked the foreman to take the remaining jurors to the jury room and enquire of them "... whether they are in a position to still be true to their oath, that is to return a true verdict according to the evidence, or whether they feel that is not possible, given what has occurred." His Honour continued: "I do not propose to question each and every one of you - if you could come back with an answer on that, it is vital. As jurors you took an oath to return a true verdict according to the evidence, and you must be true to that oath ..." The jurors retired to the jury room to consider the matter.

12 In the absence of the jury, the trial judge foreshadowed that he would proceed with eleven jurors if the jury indicated they were able to return a true verdict on the evidence. The jury left the court room and when they returned his Honour asked the foreman whether the jurors felt confident that they could return a true verdict according to the evidence. The foreman replied "they certainly do."

13 After the closing addresses, the trial judge charged the jury. He made no specific mention of the juror who had been discharged, and gave the jury a direction, commonly given, to the effect that their task was a purely intellectual one, involving a dispassionate weighing of the evidence, without the influence of sympathy, bias or prejudice. No exceptions were taken to the charge. The jury returned a verdict of guilty.

14 The applicant seeks leave to appeal against his conviction on the ground that the trial judge erred in failing to discharge the remaining jurors. Mr Holdenson QC, who appears for the applicant, submitted that the single juror was properly discharged on the basis of apprehended bias, and that in the circumstances, the discharge of the one juror necessitated the discharge of the remaining jurors because they would have been 'infected' or 'tainted' in discussions with the discharged juror. No direction or warning given by the trial judge, it was submitted, could have removed the residual apprehension of bias with respect to the remainder of the jury. In the alternative, it was submitted that even if the juror had not been not discharged on grounds of bias, the fact that the jury had discussed the matters which eventually led to the juror's discharge meant that the remainder of the jury was tainted.

15 The procedure followed by the trial judge in requesting the foreman to make an inquiry of the remaining jurors was said to involve an abdication of the trial judge's responsibility. Counsel for the applicant submitted that the trial judge should have inquired personally into what may have passed between the juror who had become upset and the rest of the jury. By failing to conduct such inquiry to determine whether the remaining jurors may have been 'tainted' by discussions with the discharged juror, the trial judge denied himself the information required for a proper exercise of his discretion. As a consequence the trial judge mistakenly regarded himself as bound to continue with 11 jurors if the foreman reported that the jury were able to proceed to determine the case impartially.

16 In oral argument, counsel for the respondent submitted that this was not a case of a juror being dismissed for bias, either actual or perceived, but a case of a juror being excused on the basis of his inability to cope with an emotionally difficult case. That being so, on the respondent's argument, no question of bias arose with respect to the remainder of the jury. Further, it was submitted that the trial judge was not required to conduct a more extensive inquiry than he had undertaken through the foreman and that even if the remaining jurors did have a more detailed knowledge of the cause of the juror's distress, it would not follow that they were 'tainted' or that there could be a reasonable apprehension of bias.

General principles

17 A trial judge's discretionary power to discharge the juror and proceed with 11 jury members derives from s 43 of the Juries Act 2000 (Vic). The test which should inform the exercise of the discretion was stated in R v Boland:[3]

"The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evidence of 'a high degree of need for such discharge_'_, that high degree being 'such as in the wider sense of the word might be denoted by necessity'."[4] (Footnotes omitted).

18 A reasonable apprehension that a juror is biased is one of the circumstances that constitutes a high degree of need.[5] In R v Webb[6] Mason CJ and McHugh J said:

"[T]he test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."[7]

19 Generally, an appellate court will be slow to interfere with the discretionary decision of the trial judge with respect to the discharge of the jury. In Webb Mason CJ and McHugh J said:

"The decision of the judge is a discretionary judgment in the sense that it involves a value judgment. Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for the trial judge's opinion. The law reports contain many cases where the decision of the trial judge to continue a trial has been upheld, notwithstanding irregular incidents."[8] (Footnotes omitted)

20 The test set down in Webb invites consideration of the effect of any direction or warning given to the jury by the trial judge in respect of the irregular matter, on the basis that a fair-minded and observer would also consider the effect of the judge's warning in asssessing whether the jury could discharge their duty impartially.[9]

Apprehension of bias and the juror's personal experience

21 The applicant's primary argument proceeds from the premise that the juror was, or at least should have been, discharged on the ground of apprehended bias. The applicant must establish that the juror was discharged on grounds of bias or that a reasonable apprehension of bias should have arisen. Accordingly, if this premise is false, the arguments that rely upon the juror's bias or apprehended bias as the 'taint' which is said to have affected the remainder of the jury fall away.

22 The trial judge gave no reasons for discharging the juror. Section 43 of the Juries Act 2000 (Vic) provides that a judge may discharge a juror without discharging the whole jury if:

"(a) it appears to the judge that the juror is not impartial;

(b) the juror becomes incapable of continuing to act as a juror;

(c) the juror becomes ill; or

(d) it appears to the judge that for any other reason, the juror should not continue to act as a juror."

23 As I have stated, the trial judge did not accept defence counsel's contention that the juror was not impartial. His Honour, one of the state's most experienced trial judges, probably considered that the juror was unfit to continue or incapable of concentrating on the evidence given his emotional state and that asking the juror to continue would have exposed him to undue hardship.[10] That these could constitute proper grounds for discharge of a juror or that they were properly open to the trial judge was not challenged by counsel for the applicant.

24 Any notion of actual bias may be put to one side. The record reveals only that the juror became upset and that this was caused, at least in part, by his own experience as a victim of abuse. There was no factual basis upon which to suggest that the discharged juror was actually prejudiced against the accused, nor was any suggested. The question is whether a reasonable apprehension of bias arises because a juror is a victim of the same or a similar crime to that upon which the accused is being tried. Putting to one side what might have been the trial judge's reasons for discharging the juror, this Court must now assess for itself whether a reasonable apprehension of bias existed with respect to that juror and, if so, whether the remainder of the jury were also tainted by that apprehension of bias and should have been discharged.

25 Jurors will frequently suffer emotional stress during a trial and for many reasons.[11] For example, jurors will often experience, and may even betray, sympathy for the victim of a crime, but this will not necessarily render them unfit for service in the eyes of the fair-minded observer.[12] The jury are generally instructed by the trial judge to assess the evidence dispassionately and to reject any feelings of prejudice, bias or sympathy for anyone involved in the case. This is part of any juror's task, whether or not they have been victims of crime. I refer to the salutary observations of Brenann J in R v Glennon that "of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that this reliance is not misplaced."[13]

26 Counsel for the applicant argued that the fact that the matters which led to the juror being discharged were discussed with the other jurors necessarily led to the contamination of the jury. In support of this argument, counsel drew attention to the particular circumstances surrounding the discharge of the juror. In particular, he focussed on what the prosecutor had been saying at the time the juror became distressed. The prosecutor was inviting the jury to draw on their own life experiences in order to assess the credibility of the complainant. The fact that the juror broke down at this point, it was submitted, indicated that his own experience of abuse was intruding, illegitmately, into his assessment of the evidence. Counsel emphasised that the difficulties being experienced by the juror would inevitably have been discussed with the other jurors when they retired. He invited the Court to consider some hypothetical scenarios to indicate how the remainder of the jury might have been 'infected'. He hypothesised that the juror may have said that the same thing happened to him as a child, and that the complainant had behaved just like a victim of abusive behaviour.

27 In my view, the possibility, speculative as it is, that the juror reasoned with the other jurors as counsel hypothesised, would not provide grounds for the discharge of the juror or the balance of the jury. There would be nothing impermissible or inappropriate about such a reasoning process had it taken place. Juries are routinely told to evaluate evidence, particularly viva voce evidence, against the background of their own life experience. The prosecutor's invitation to the jury to use their own knowledge and common sense, quoted above, is one which is extended to juries, in similar terms, every day. The value of consultation is enhanced not merely by the presence of more than one mind, but also by the presence of more than one vantage point.[14] The experience of a member of the jury, shared with other members of the jury, may be accepted or rejected by them as something which may or may not assist their deliberations. The special virtue of the institution of the jury is the collective deliberation process of a fair cross-section of the larger community with the capacity to temper the dangers of irrational, unfair or ignorant reasoning.

28 Counsel argued that the juror's use of his own personal experience of abuse in evaluating the evidence would have been illegitimate because it was a matter extraneous to the trial which could not have been subject to any scrutiny by the parties. I do not accept that submission. This was not a case of an experiment conducted by a juror becoming a form of new evidence,[15] or of the jury inadavertently receiving information which was not part of the evidence at trial.[16] Rather, what is raised in this case is the possibility, albeit a speculative one, of a juror evaluating existing evidence by reference to a particular experience they have had. In my view this is something the juror would have been entitled to do.

29 The process of jury selection that is followed in most common law jurisdictions and the integrity of the jury system rest upon the rationale that a juror's life experiences or the use that a juror may make of such experience in evaluating the evidence does not give rise to a reasonable apprehension of bias in that juror. As a general rule it is assumed that jurors, who have had an experience such as the present juror, are able to give effect to their obligation to act impartially so that a reasonable apprehension of bias does not arise.

30 Potential jurors who have had such an experience do not need to be excused from the jury panel from which the jury is to be selected.[17] Infrequently, as the cases reveal, something may occur in the trial process which leads to the conclusion that a juror's or potential juror's ability to decide a case impartially is compromised or that there is a reasonable apprehension that this is so.[18] The trial judge has the discretion to excuse a person from the jury panel if satisfied that "the person will be unable to consider the case impartially" or "is unable to serve for any other reason".[19] The practice of informing the jury panel of the nature of the crime charged before taking excuses provides adequate opportunity for any potential juror to seek to be excused if he or she considers that they will be unable to be impartial for any reason. Once empanelled, the trial judge may discharge jurors who fall into this category.[20]

31 I do not accept the premise, which underlies much of the applicant's argument, that a fair-minded observor would form a reasonable suspicion that a juror was not able to act impartially on the basis that the juror had been the victim of a crime of the kind with which the accused stood charged.

The 'contamination' point

32 Even if there was a reasonable perception of bias against the applicant because of the juror's personal experience, I am not persuaded that there was any risk of contamination of the balance of the jury, let alone one which created a high degree of necessity to discharge the remainder of the jury.

33 The applicant places reliance on R v Stretton & Storey[21] as authority for the proposition that the discharge of the one juror in these circumstances necessarily required the discharge of the remaining jurors. In a passage relied upon by the applicant from that case, Starke J observed that:

" ... a biased juror is a tainted juror, and his bias and his taint, which was openly, as it were, discussed in front of the other members of the jury, may of course infect the rest of the jurors."[22]

34 His Honour did not say that the bias of one juror necessitates the discharge of the remainder of the jury. Each case of alleged jury bias will turn on its own facts, and the discretionary judgment of the trial judge. Moreover, Starke J did not ultimately rely on the possibility of contamination in coming to the view that the entire jury should have been discharged in that case. Rather, his Honour stated that he would have been prepared to conclude that the jury should have been discharged solely on the basis that the Crown did not object to that course either at the trial or on appeal.

35 The applicant also relies upon a passage from R v Czajkowski & Sheppard,[23] in which R v Stretton & Story and R v Piccin[24] are cited in support of the proposition that: "[i]f a juror indicates that he or she is biased, the jury should be discharged." It may be that this sentence contains a typographical error, as counsel for the applicant acknowledged in oral argument, and that it was intended to read: "the juror should be discharged". Unless so qualified it would not in my view correctly state the law. In R v Piccin, the New South Wales Court of Appeal upheld a decision of the trial judge to proceed with 11 jurors after excusing a juror who had indicated that he was biased. Accordingly, that case stands as authority against the proposition advanced by the applicant in this case and as I have said, R v Stretton & Story does not stand for the proposition that actual or apprehended bias in one juror necessarily gives rise to the need to discharge the remainder of the jury.

36 In R v Sharp[25] a juror was discharged after he was called to give evidence by the trial judge about his irregular conduct. Earlier the juror had suddenly left the jury box, entered the jury room, and returned with some notes which he handed up to the judge. It was submitted on appeal that the judge should have discharged the remainder of the jury, as the juror's thoughts on the case may have contaminated their deliberations. In a statement which is apposite to the present case, Vincent JA, with whom Ormiston and Callaway JJA agreed, said:

"What, if any, views that may have been held by the juror were conveyed to the other members and what impression, if any, that they may have formed of them can only be the subjects of conjecture. However, it can, I think, be accepted that the circumstances under which the juror was discharged and the reason for his removal would have been apparent to the other jurors. Against that background, the notion that the remaining 11, presumably rational, members would disregard the instructions given to them and, contrary to their oaths or affirmations, irrationally reject propositions advanced in support of the defence case because their deliberations were contaminated by the irrational utterances of the removed juror needs only to be stated to be rejected."[26]

37 The content of the discussion between the jurors when they retired in this case is a matter of speculation. I do not consider that a fair-minded observer would reasonably regard the impartiality of the jury as compromised on the basis that the discharged juror may have said the kind of things which counsel for the applicant conjectured. As Mason CJ and McHugh J emphasised in R v Webb,[27] in assessing the risk of bias, the fair-minded observer takes into account the likely impact of the judge's warnings and directions. The contention that the jury members were tainted with bias cannot be sustained, having regard to the emphatic directions they received from the trial judge.

38 In this case, a very experienced trial judge adopted the course, entirely appropriate in the circumstances, of allowing the jury time to consider whether, given what had occurred, they could be true to their oath to decide the case according to the evidence. Further, when the learned trial judge charged the remaining the eleven jurors, he gave appropriate emphasis to the notion that their task involved a dispassionate assessment of the evidence.

39 The applicant submits that no direction or warning from the judge could have cured the problem, and cites R v Czajkowski & Sheppard[28] in support of that proposition. In that case, after the hearing and addresses but before the judge's summing up to the jury, a note was handed to the judge from the foreperson stating that "some of the jurors are slightly bias [sic] against drugs [sic] and have made up their minds on day one." The trial judge declined an application by counsel to discharge the jury and instead relied on directions to the jury to put aside their prejudices and decide the case according to the evidence.

40 The New South Wales Court of Appeal decided that in circumstances in which it had been indicated that a juror or jurors were biased and had pre-judged the case from the beginning, with the risk that they may not have listened to the evidence with an open mind during the course of the trial, a reasonable apprehension of bias may have persisted in the mind of the fair-minded observer despite the trial judge's direction.[29] Sheller JA distinguished Webb on the basis that the juror in Webb had not shown any actual bias against the accused. Similiarly, in the present case no actual bias against the accused was manifested by any member of the jury, counsel confining his argument to a reasonable apprehension of bias.

41 After the trial judge had discharged the juror and instructed the remainder of the jury to consider whether they could still deliver a true verdict in accordance with the evidence, he said to counsel: "I propose, if I get an answer that they are able to return a true verdict on the evidence, to proceed with the trial with 11 jurors ... " The applicant submits that his Honour effectively resolved to proceed based on the jury's answer, and failed to apply the test for apprehended bias from R v Webb. I reject this contention. The argument rests on the false premise that his Honour's instruction to the jury reflected the 'test' that his Honour was applying in considering the need for discharge. The better view is that his Honour was allowing the jury's own consideration to inform the exercise of his discretion, in circumstances where he considered that the jury were "taking their duty and responsibilities very seriously." Obviously, if the jury themselves considered that their ability to perform their role had been compromised, his Honour would have had to discharge them.

42 It was also contended that the trial judge wrongly considered himself bound to proceed with eleven jurors if the foreman reported that the jury felt capable of discharging their duty. This submission cannot be sustained. It is evident from the transcript of proceedings that his Honour treated the decision to proceed as a discretionary one, describing it as one he was "empowered" to make, and as "a balancing act".

Inquiry through the foreman of the jury

43 The applicant relies on R v Blackwell,[30] a decision of the English Court of Appeal,[31] in support of his contention that the trial judge's discretion to discharge the jury was vitiated by the inadequacy of the inquiry conducted by his Honour into the ability of the remaining jurors to discharge their duty impartially.

44 Blackwell is not authority for the proposition that an inquiry must be conducted of individual jurors in every case where an irregular event gives rise to possible grounds for the discharge of one or more jurors. Rather, the Court made it clear that the nature and extent of any inquiry to be conducted by a trial judge in the exercise of a discretion to discharge one or more jurors will depend on the circumstances of the case. The Court stated:

"If there is any realistic suspicion that the jury or one or more members of it may have been approached or tampered with or pressurised, it is the duty of the judge to investigate the matter and probably, depending on the circumstances, the investigation will include questioning of individual jurors or even the jury as a whole."[32] (Emphasis added)

45 The learned trial judge in this case was informed of the matter giving rise to the juror's distress. His Honour's subsequent inquiry of the jury as a whole clearly conformed with the statement of principle in Blackwell. Further, the facts of Blackwell are quite distinct from those of the present case. In Blackwell, there was evidence of contact between a female juror and a male member of the public who had been attending the trial. It turned out the member of the public was the juror's fiancé. It was put to the trial judge that an altercation had taken place between the juror's fiancé and one of the defendants in the trial, and that the fiancé had been doing 'detective work' during the hearing, including attending Court during argument conducted in the jury's absence. It was submitted to the trial judge that the single juror should be discharged, and that inquiries should be made of her in order to determine whether the whole jury should be discharged, on the basis that she may have passed on to other jurors information supplied by her fiancé. The trial judge acceded to the application to discharge the juror, but refused to question her or the remaining jury members, saying that "the court is not to enquire about what occurs amongst jurors." The Court of Appeal held that the trial judge should have made inquiries of the juror who was discharged, and then of the remaining jurors, in order to determine whether there was contamination or possible contamination.

46 In the present case, unlike Blackwell, no circumstance 'external to the jury'[33] arose. There was no suggestion that any member of the jury had been tampered with or had been the subject of pressure by a third party.

47 In Orgles,[34] another English Court of Appeal case cited in Blackwell, Holland J said in respect of an inquiry of a jury by a judge "there is no doubt that the judge's discretion enables him to take the course best suited to the circumstances."[35] In the circumstances of this case, the inquiry conducted by the trial judge was adequate to ensure that his discretion could be exercised properly.

48 Since this appeal was argued, the Western Australian Court of Appeal in I v Western Australia[36] upheld an appeal against conviction on the basis of the trial judge's failure to discharge a juror. In that case, before the trial began, a juror alerted the judge to the fact that he knew one of the witnesses who was to give evidence (the complainant's father) and stated that he 'had a preconceived opinion.' The trial judge asked the juror whether he could bring an unbiased and unprejudiced mind to the evidence. The juror replied that he could. Content with this assurance and reluctant to enquire further into the matter, the trial judge declined an application for the discharge of the juror.

49 Steytler P, with whom Roberts-Smith and McLure JJA agreed, held that the judge should have made a further inquiry of the juror of the nature and relevance of his 'preconceived opinion.' Without such a further inquiry, the learned President reasoned, the trial judge was in no position to determine the question of apprehended bias, notwithstanding the juror's belief that he could remain impartial, particularly where any bias could have operated unconsciously. In rejecting the view that, in cases of possible bias, questioning of individual jurors by the judge is generally inapproporiate, Steytler P said:

"There is a clear preponderance of authority in favour of the proposition that a trial judge can, and should, question a juror (preferably in the absence of the rest of the jury) in order to ensure that the judge properly understands a situation that has arisen that raises the spectre of possible bias."[37]

50 Steytler P also cited the observation of this Court in R v Evans that "the nature and extent of the judge's investigation of any apparent irregularity is a matter for the judge's discretion and judgment in all the circumstances."[38]

51 As I have mentioned, the trial judge's inquiry in this case was sufficient to enable him to understand the cause of the juror's distress. His subsequent inquiry of the jury that they consider their ability to remain true to their oath and report back assisted to inform the exercise of his Honour's discretion to proceed with eleven jurors. Counsel for the applicant acknowledged that the argument that the judge abdicated his function was not a strong one. The judge's inquiry of the whole jury, conducted through the foreman, was an appropriate and indeed desirable way of performing his function, rather than an abdication of that function.[39]

52 For these reasons I would refuse leave to appeal.

[1] Compare the argument that a Tribunal was incapable of exercising an impartial mind because the presiding member was five months pregnant and women's decision-making capacity was affected by pregnancy. This was rejected by the Supreme Court in GTB Nominees Pty Ltd v Uniting Church Property Trust in Australia and City of Kew, discussed in a Note in (1989) 14 Alternative Law Journal 41.

[2] Martha Minow, "Stripped Down Like a Runner and Enriched by Experience" (1992) 33 William and Mary Law Review" 1201 at 1217.

[3] [1974] VicRp 100; [1974] VR 849.

[4] At 866.

[5] R v Matthews [1998] VSCA 2; [1999] 1 VR 534 per Callaway JA at [9].

[6] [1994] HCA 30; (1999) 181 CLR 41.

[7] At 53.

[8] At 53-54.

[9] At 55.

[10] His Honour would have been entitled to rely on these grounds pursuant to sub-sections (b) and (d) of s 43 of the Juries Act 2000 (Vic).

[11] See New Zealand Law Commission, Juries in Criminal Trials, Report No 69 (2001) at [258].

[12] The relationship between bias and sympathy for the victim is discussed in the judgments in R v Webb, at 55-66 Mason CJ and McHugh J, 61-62 per Brennan J, 77-79 per Deane J, and 85-88 per Toohey J.

[13] [1992] HCA 16; (1992) 173 CLR 592 at 615.

[14] Martha Minow, "Stripped Down Like a Runner and Enriched by Experience" (1992) 23 William and Mary Law Review 1201 at 1205-6.

[15] See R v Kozul [1981] HCA 19; 147 CLR 221 at 227 per Gibbs CJ. See also R v Skaf [2004] NSWCCA 37; 60 NSWLR 86 at [260] and [277].

[16] See R v Cotter (2004) A Crim R 540.

[17] See New Zealand Law Commission, Juries in Criminal Trials, Report No 69 (2001) at [257]-[268].

[18] See the cases subsequently discussed.

[19] Section 32(3) of the Juries Act 2000 (Vic).

[20] Section 43 of the Juries Act 2000 (Vic).

[21] [1982] VicRp 21; [1982] VR 251.

[22] At 255.

[23] [2002] NSWCCA 530; (2002) 137 A Crim R 111 at 116 [20].

[24] (2001) NSWCCA 35.

[25] [2005] VSCA 44.

[26] At 45.

[27] At 56.

[28] [2002] NSWCCA 530; (2002) 137 A Crim R 111.

[29] See [2002] NSWCCA 530; (2002) 137 A Crim R 111 at [33]- [36] per Sheller JA with whom Wood CJ and Sully J agreed.

[30] [1995] 2 Cr App R 625.

[31] Blackwell does not appear to have yet been the subject of consideration in Australia.

[32] At 633.

[33] At 635A.

[34] (1994) 98 Cr App R 185.

[35] At 190.

[36] [2006] WASCA 204.

[37] At [16].

[38] (1995) 79 A Crim R 66 at 69.

[39] See R v Matthews [1998] VSCA 2; [1999] 1 VR 534 at [10] per Callaway JA.