R v R [2000] QCA 27

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The appellant was charged with six counts of indecent dealing with a child under 16 with a circumstance of aggravation (counts 1, 2, 4, 5, 6 and 9), one count of wilfully exposing a child under 16 to an indecent object with a circumstance of aggravation (count 3), one count of incest, alternatively indecently dealing with a child under 16 with a circumstance of aggravation (count 7) and one count of wilfully exposing a child under 16 to an indecent act with a circumstance of aggravation (count 8). At the close of the Crown case, after submissions by defence counsel, the prosecutor entered a nolle prosequi in respect of count 2. The jury returned verdicts of not guilty in respect of counts 1, 3, 4, 5, 8 and 9 but convicted the appellant on count 6 and on count 7 found him not guilty of incest but guilty of the alternative charge of indecent dealing with a child under 16 with a circumstance of aggravation.

[2] The appellant claims the verdicts on counts 6 and 7 were unsafe and unsatisfactory and that the learned trial judge erred in admitting evidence of the appellant's previous convictions for sexual offences. The remaining grounds of appeal were abandoned.

[3] The prosecution case essentially turned on the evidence of the complainant, the daughter of the appellant. She was born on 16 January 1986 and was 13 at the time of trial and about 10 or 11 at the time of the offences which it was alleged occurred between the beginning of December 1996 and the end of August 1997.

[4] When the complainant was about six or seven and living with her parents near Cairns, the appellant touched her vagina with his fingers and she touched his penis at his request. This was reported to police and her parents separated and consequently the appellant went to jail where the complainant visited him. When the appellant was released, she had supervised visits with him. As time passed, the visits became unsupervised.

[5] When the complainant was about 9 or 10, she visited her grandmother, the mother of the appellant, in a flat in Cairns for about a week around Christmas. Whilst her grandmother was asleep, the complainant and the appellant went swimming. She had a shower and went to her bedroom. She walked past the appellant in the shower and saw him naked; he put his penis between his legs and said, "Look, I can look like a girl."

[6] On another occasion, the complainant went with the appellant to his boat; he took his clothes off and requested she take off hers. The appellant commented that she was developing into a young girl and talked about her nipples. He said, "If you whack them they change," and he spat on his fingers, rubbed her nipples and they did change (count 1).

[7] The two then lay on the bed naked and something happened, but the complainant could not remember what. It seems that this was the subject of count 2, which was not proceeded with by the prosecution.

[8] The complainant was unsure whether or not these incidents occurred around Christmas time or on another occasion.

[9] The next incident occurred when the appellant's boat was in drydock and the complainant and the appellant climbed up the ladder and went on to it. The appellant played a video of naked ladies doing sexual things (count 3). Whilst the video was playing, the appellant rubbed some baby oil on the complainant's vagina and rubbed his fingers around her vagina; she thought they penetrated a little bit but was not sure. During cross examination, she said his fingers went in a little although she could not say how far, but it hurt. The appellant rang her brother to arrange for him to come around so that they could go to dinner at the nearby yacht club (count 4).

[10] On another occasion, the complainant travelled to the Reef in the appellant's boat with the appellant's girlfriend, Denise, the complainant's brother, and the appellant. She was unsure whether or not it was an overnight trip. Her brother was asleep on the upper deck where Denise was reading; the complainant was downstairs with the appellant. The complainant sat on a lounge and the appellant licked her vagina (count 5). When Denise came down the ladder with some marshmallows, the appellant stopped and threw a pillow over the complainant's vaginal area (count 5).

[11] One day, the complainant and her mother travelled from their home to visit her maternal grandmother; as the complainant had not seen her father for a while, the appellant visited her there. She and the appellant went to the appellant's work shed and on the way he showed her a vibrator. At the shed, he put some cushions from a lounge on the floor and took off the complainant's pants. The appellant said, "We haven't got much time." He got some butter and rubbed it on her vagina and rubbed his fingers around a bit on her vagina. He handed her the vibrator and said, "Just rub this around and put it inside as far as you want to." The appellant made her play with his penis and testicles and suck them (count 6). He rubbed his penis around her vagina and it slipped in; she said it hurt (count 7). They got some Hungry Jacks at The Esplanade and he said to tell her mother they had eaten on The Esplanade.

[12] The complainant went camping north of Cairns with the appellant and Denise, and the three slept in one tent. The appellant slept in between Denise and the complainant. The appellant told her he was going to have sexual intercourse with Denise and to watch. They appeared to have sexual intercourse with the appellant behind Denise (count 8). Whilst the appellant was on top of Denise, he leant over and put his hand down the complainant's pants and was rubbing around the complainant's vagina (count 9). Denise went outside and the appellant told her to watch before he followed Denise outside.

[13] The complainant made no complaint of any sexual misconduct until six months later when she was visiting her brother in Western Australia. She hoped that the appellant would voluntarily stop and she knew that he was soon going to Thursday Island so that it would stop in any case.

[14] Paediatrician, Dr Nicola Previtera, examined the complainant on 23 January 1998. She has been practising as a paediatrician since January 1991 and during the 18 months prior to trial had examined many alleged victims of sexual abuse. The complainant's hymenal opening measured 1.5 cm x 1 cm and she had a hymenal membrane 1 mm in thickness. This was the largest diameter dimensions she had observed in a girl of the complainant's age. It may have been consistent with penetration of a finger but it was difficult to comment as to penetration by a penis because of the delay from alleged abuse to examination. There were no signs of tears or scarring to the hymen which was smooth. Penetration by a finger or penis would not necessarily leave tearing or scarring; it would depend on the appearance of her hymen prior to the penetration. The hymenal membrane was 1 mm in thickness which was extremely thin in a girl of her age. The hymen of a pre-pubescent child was less elastic and therefore more prone to scarring or tearing if traumatised.

[15] The former girlfriend of the appellant, Denise, recalled that the appellant had bought her two vibrators for use in their sexual relationship, the first in early January 1996 and the second just before they left to go on a holiday in his boat to Thursday Island. That vibrator was kept out of sight in the boat on a shelf near the bed in the main cabin. They also used baby oil and a liquid gel as lubricants in their sexual relationship.

[16] She remembered going out to the Reef on an overnight trip with the appellant, the complainant and the complainant's brother somewhere around August 1997. It was a very small boat and everybody was constantly up and down between the decks. There may have been occasions when she and the complainant's brother were upstairs and the appellant and the complainant were downstairs. She could not recall an incident in the cabin of the boat where the complainant had a pillow across her lap. The complainant at no time appeared upset.

[17] She also recalled a camping trip to north of Cairns with the appellant and the complainant. All three slept in the tent with the appellant in the middle. During the evening she had sexual intercourse with the appellant whilst he was behind her; the appellant told her that the complainant was asleep. After they had sex, they both went outside.

[18] Police Officer Carless was the investigating police officer in respect of the appellant's 1992 offences involving the complainant and through him the recorded interview with the appellant in respect of those offences was tendered. At that time, the learned trial judge warned the jury that the purpose of the evidence was only to illustrate the nature of the relationship between the complainant and the appellant and to give information and evidence of the background of that relationship; it was not to be used as evidence to conclude that because the appellant had committed the earlier offences, it was more likely he had also committed these offences. In the interview the appellant admitted a number of incidents of improper sexual behaviour with the complainant in 1992.

[19] The complainant's mother recalled the complainant travelling to the Reef with the appellant, Denise and the complainant's brother. She remembered an incident when the appellant took the complainant to buy some food; she had a bad headache which was turning into a migraine. She was unsure how long they were gone but it was longer than she thought they should have been. When they returned she asked, "What took you so long?" and one of them said, "Well, we ended up going to Hungry Jacks on the Esplanade." The complainant brushed past her and went inside saying she had a headache. The appellant took the complainant's mother to the shop to purchase some items. She had a good relationship with the complainant but the complainant made no complaint to her about any sexual improprieties.

[20] The appellant did not give evidence but called evidence.

[21] Dr Carrette, a consultant gynaecologist of 25 years experience gave evidence that Dr Previtera's observations indicated an intact hymen in a 12 year old child. There was absolutely no evidence of trauma and the vaginal opening was probably on the small side of normal. Dr Previtera's observations were inconsistent with penile or digital penetration. He regularly examined pre-pubescent girls although the bulk of his practice concerned adult women. The passage of time would make no difference to the condition of the hymen; its width was consistent with the tip of his little finger entering the orifice and he had small hands. Although hymens were variable, it was not possible for this hymen, as described by Dr Previtera, to have been penetrated.

[22] The appellant's mother gave evidence that apart from the boat trip there were no other occasions when the complainant visited her and went away with the appellant; they always remained in her company. In cross examination she conceded that from time to time she dozed off for half an hour or twenty minutes. As the flat was so small, she said she would have been aware of what was happening in it. She believed the appellant had pleaded guilty to the earlier offences although he had not committed them.

[23] The complainant's half-brother, remembered the boat trip to the Reef with the appellant, Denise and the complainant, who was in good spirits during the trip; at no time did she seem upset. In cross examination, he said he also recalled once meeting his father at the boat when it was in drydock, and then visiting the complainant's grandmother and picking up the complainant to go to dinner at the yacht club.

Are the verdicts on counts 6 and 7 unsafe and unsatisfactory?

[24] The appellant claims the verdicts are unsafe and unsatisfactory, his principal complaint being that the verdicts of guilty were inconsistent with verdicts of acquittal on the remaining counts.

(a) The verdicts are inconsistent with the acquittals on counts 1, 3, 4, 5, 8 and 9

[25] To succeed on this ground, the appellant must satisfy the Court that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at that conclusion: see Mackenzie v The Queen.[1]

[26] I am satisfied there was a rational basis open for the jury to reach its verdict of guilty on counts 6 and 7, whilst acquitting on the remaining counts. As to count 1, there was evidence from the appellant's mother that at all times when the complainant visited her she was present with the appellant and the complainant. The complainant was unsure as to when it occurred and failed to give the evidence opened in respect of count 2. This may well have caused the jury to have a reasonable doubt in respect of her evidence as to count 1.

[27] As to counts 3 and 4, the complainant's brother said in cross-examination that the complainant was picked up after he met up with the appellant at the boat in drydock, not before. This may well have left the jury in doubt about the complainant's evidence on this count.

[28] As to count 5, there were no evidence supporting the complainant's version of what was a brazen and bold incident in a small boat with two others in close proximity, neither of whom noticed anything untoward. The jury may reasonably have decided that they could not accept the evidence of the complainant beyond reasonable doubt on this count. In not being satisfied beyond reasonable doubt of the complainant's evidence on these counts, they were not necessarily deciding she was not credible.

[29] On the other hand, as to count 6 and 7, there was evidence from the complainant's mother of opportunity; she said they were gone longer than they should have been and the complainant's behaviour on her return was, on one view, consistent with her evidence of earlier sexual impropriety. Evidence as to opportunity was absent in respect of the other counts. It is understandable that, bearing in mind the evidence of Dr Carrette and Dr Previtera, the jury were not satisfied beyond reasonable doubt of penetration and acquitted in respect of the charge of incest. Nevertheless, they were reasonably entitled to accept the complainant's other evidence beyond reasonable doubt, and may have received some comfort from her mother's evidence establishing opportunity.

[30] The learned judge told the jury that they must consider all the counts separately and that they may return verdicts of guilty on some counts but not as to others, depending on what they make of the evidence.

[31] I am satisfied on the evidence there was a rational basis open for the jury's verdict in respect of counts 6 and 7.

(b) Was there a sufficient direction to the jury as to difficulty in reaching a verdict.

[32] Although not a particular ground of appeal in the notice of appeal, during the course of argument the Court raised with the parties the adequacy of the primary judge's direction as to its inability to reach a verdict.

[33] The jury retired to consider its verdict at 10.25 am on the fourth day of trial. The jury requested to hear the complainant's evidence as to the Reef trip and to view the video tape the subject of count 3. The court was reconvened at 2.20 pm to meet the former request, the latter having already been met, and again retired to consider their verdict at 2.45 pm. No further re-directions were sought.

[34] At 5.25 pm the court reconvened at the direction of the judge who said:

"I've called you back in because I understand you haven't been able to reach a verdict, as yet. Now I do have the power to discharge you from giving a verdict. But obviously I would be very loath to exercise that power. And it is often the case that given more time, juries can reach a verdict in the end, and obviously that's preferable for everyone concerned.

However, when you swore the Oath you did swear an oath to give an honest verdict, and as I said to you - in my summing up to you, you must give a verdict that you are comfortable with. That you do agree with and your verdict does have to be unanimous.

However, having said that, I would encourage you to spend a bit more time. Listen to each other's opinions and consider and debate the matter some more and see if you are able to reach agreement about these matters.

As I said, in my summing up you do have to consider each count separately, and you can give different verdicts on each count. It's up to you as to how you assess the evidence.

Experience does show that given time and given reasonable debate juries, or most juries, will reach a decision in the end. And for that reason I will ask you to please re-examine the issues and revisit the discussions you've had. And debate the issues again. And make a further attempt to reach a verdict. If in the end though you are absolutely unable to reach a verdict then obviously you'll have to let me know.

But I would request that you spend a bit more time and see how you go. Thank you."

[35] The jury retired again at 5.28 pm and at 6.41 pm returned with the verdicts.

[36] The issue of judicial directions to juries in difficulty reaching a verdict was considered in Black v The Queen,[2] where the court disapproved of a trial judge telling the jury that they have "a duty, not only as individuals but also collectively" and that "it makes for considerable public inconvenience and expense" if a jury cannot agree, causing "considerable hardship on all concerned". Mason CJ, Brennan, Dawson, McHugh JJ, Deane J agreeing, concluded that the reference to "considerable public inconvenience" is apt to impose pressure upon individual jurors to join in a majority view violating the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them; nothing must be said which could be taken to suggest that a juror is to compromise with other jurors in reaching a verdict.[3] A reference to the jury having a "duty, not only as individuals but also collectively" may also have that effect. References to "give and take and adjustment" and "collective duty or responsibility" should be avoided.[4] Whilst agreeing that a direction should be given to a jury if it appears they are encountering difficulty in reaching a verdict, the direction should state quite clearly that each juror has a duty to give a verdict according to the evidence and 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.

[37] The model direction proposed by the High Court is now almost invariably used by trial judges in Queensland:

"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 you 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."[5]

[38] The direction given by the primary judge did not precisely follow the Black direction although it did not include the specific criticised directions mentioned in Black. Significant departures from the Black direction included the comment that the judge "would be very loath to exercise" the power of discharge; that it was "preferable for everyone concerned" if the jury "could reach a verdict in the end". Whilst the judge correctly told them that the verdict must be one with which they were comfortable, and fairly encouraged them to spend more time, and to listen to each other's opinions and consider and debate the matter to see if they could reach agreement, she then immediately reminded them that they could give different verdicts on each count. Whilst Black suggests the inclusion of the words "often juries are able to agree in the end", the judge said "juries, or most juries will reach a decision in the end". The judge requested that they make a further attempt to reach a verdict but "If in the end though you are absolutely unable to reach a verdict" then to inform the judge. (my emphasis)

[39] It is wise for trial judges to follow closely the model direction in Black unless there is some good reason to justify a variation. There was none in this case. The essential concern in Black is that the jury must be free to deliberate without any pressure being brought to bear upon them.[6]

[40] I am concerned that the effect of the redirection given by the judge, although arguably only subtly different from the Black direction, may have placed pressure on the jury to compromise. Of particular concern is that, in the middle of the direction, the judge curiously reminded them that they could give different verdicts on different counts. This may have been perceived by them as encouragement to reach a compromise verdict given, as it was, in the midst of a redirection exhorting them to resume their deliberations in order to achieve the outcome of most juries, that of reaching a verdict.

[41] For those reasons, I am concerned that the jury may have reached a compromise verdict rather than a freely unanimous unpressured verdict in convicting the appellant on counts 6 and 7. There exists a significant possibility that an innocent person may have been wrongly convicted and a miscarriage of justice may have occurred: see Jones v The Queen.[7]

[42] It follows that I would allow the appeal on this basis and order a retrial. It is a matter for the prosecution whether that occurs but as it may, it is desirable that I deal with the remaining ground of appeal.

Was the evidence of the appellant's previous convictions for sexual offences against the complainant admissible?

[43] The learned primary judge permitted the prosecution to lead admissions by the appellant in a video taped record of interview with police officers of previous illegal sexual conduct between him and the complainant in 1992. The appellant submits the evidence should not have been admitted as there was insufficient continuity of any alleged sexual relationship; the evidence was in effect evidence of propensity.

[44] The appellant concedes that evidence of past sexual impropriety between an accused and a complainant is admissible to show their true relationship or a guilty passion on behalf of the accused person towards the complainant: see R v B[8] and R v White.[9]

[45] The appellant was sentenced to two and a half years imprisonment in respect of the 1992 offences on 13 December 1994. He was released from custody to home detention on 1 August 1995 and supervised contact with the complainant resumed shortly afterwards. The prosecution case was that these incidents occurred during the few periods when the contact was not supervised.

[46] The facts therefore were quite different from those in Gipp v The Queen,[10] where the evidence of the uncharged incidents was on the whole vague and unspecific. Here, the evidence was capable of being accepted by the jury as showing a persistent sexual interest in the complainant on the part of the appellant: see R v Knuth.[11] The learned primary judge rightly ruled the evidence was relevant and admissible, although there is always a discretion in a trial judge to exclude the evidence if its probative value is outweighed by its prejudicial effect: see R v B.[12]

[47] Before the recorded interview was played to the jury, the learned primary judge told the jury of the limited use to be made of the evidence and that: "You can't reach a conclusion of guilt of these offences that you are trying solely on this information that you are about to hear."

[48] Once the evidence was admitted, the defence used it to their advantage to stress the lack of opportunity because of supervision for these offences to be committed. That defence was obviously successful in respect of all counts other than counts 6 and 7.

[49] During the summing up the learned primary judge again told the jury to:

"Approach that evidence with caution. It is not evidence by itself that he committed these offences that you are trying him on. Remember that those offences took place in '92/'93. The offences with which he has been charged in this trial allegedly took place between December '96 and August '97. There is a gap in time there and that may be quite significant.

That evidence was admitted in this trial solely to illustrate to you the nature of the relationship between [the complainant] and her father and to put the whole thing in context. Obviously if you were not aware of these previous convictions, then all this issue about supervision and so forth would not have made sense, so it was important to give you the whole picture in that regard.

It is all part of the context in which it is alleged that these present incidents took place and it does explain to you, certain aspects of the evidence, particularly [the complainant's mother's] evidence and [the complainant's grandmother's] evidence and of course [the complainant's] evidence.

Now it is up to you whether or not you accept that evidence of the prior convictions and particularly of what [the appellant] said in that record of interview. You do not have to accept that as being exactly what happened. You do not have to accept that as the truth. ...

But if you do accept that evidence as being true of what happened in '92/'93 between the [appellant] and his daughter, then you must not come to the conclusion that simply because it happened in '92/'93, it must have happened again in '96/'97. You must not come to the conclusion that because the [appellant] did these sorts of things with his daughter back then, that he is the kind of person who was likely to have done it this time.

If however, you are satisfied and you must be satisfied on this issue beyond reasonable doubt, if you are satisfied beyond reasonable doubt that [the appellant] did deal with his daughter in '92/'93 and he put it in that record of interview, then you can use that evidence to support or bolster [the complainant's] evidence. You can use that evidence as something that tends to make, what she told you in this courtroom, more truthful, more honest.

In the end though, that evidence of the previous sexual behaviour cannot of itself be used to prove that [the appellant] committed these offences, so you must treat it very carefully. ... If you are satisfied beyond reasonable doubt that what was said in that record of interview was true and that those incidents did occur in '92/'93, then you can use that evidence to infer that [the complainant's] evidence was more likely to be truthful."

[50] The evidence was admissible and the learned primary judge gave the appropriate directions both at the time the evidence was placed before the jury and in the summing up.

[51] Whilst it is not necessary to deal with this application bearing in mind the order I propose, in case there is a re-trial and the appellant is again convicted, it may save time if the application is dealt with in these reasons.

[52] The applicant was sentenced to five years imprisonment. Apart from the prior convictions in December 1994 already noted, he was convicted on 31 August 1994 in the Cairns District Court of one count of wilful damage to property and one count of attempted false pretences for which he was sentenced to four months imprisonment and 12 months imprisonments respectively. The offences the subject of this appeal were committed either whilst on parole or just after completing parole for remarkably similar offences. They relate to the one incident which occurred at the applicant's shed.

[53] The applicant had shown no remorse and did not have the benefit of an early plea of guilty or the benefit of the submission that the complainant had not been subjected to the trauma of cross examination. The applicant was 47 years old and the complainant 10 or 11 at the time. The applicant was the complainant's father, and the offences constituted a repeated and gross breach of trust. The maximum penalty at the time was 10 years imprisonment.

[54] A psychiatric report from Dr Ian Curtis, who examined the complainant for the purpose of a criminal compensation application, albeit on the premise not found by the jury, that she was the subject of "gross incest" by the applicant, concluded that the complainant suffered a most severe nervous shock of Post-Traumatic Stress Disorder with continuing chronic sequelae:

"... He has now massively traumatised this girl for a second time. The experience has been so extreme and so odd, given the fact that she felt as if authorities were enforcing her exposure to danger, that the experiences would have destroyed a lesser person. ...

... her life is salvageable at a social level and that rehabilitation is possible for her, should she have the resources to quarantine herself away from the experiences and to access alternate amenities of life to make up for those which will be available to her because of her psychic trauma."

[55] In the applicant's favour it can be said that there was no use of physical force and both counts related to a single episode of offending behaviour.

[56] The applicant complains of the sentencing judge's finding that "Your actions with respect to [the complainant] were very close to sexual intercourse." The sentencing judge was, in the circumstances, entitled to make that finding beyond reasonable doubt, consistent with the jury's verdict.

[57] The applicant also submits the sentence of five years imprisonment is manifestly excessive. It is difficult to find truly comparable sentences to the bizarre facts of this case. The sentence is supported as being within an appropriate range by R v Fong[13] and R v Williams[14] where sentences of four years and three years imprisonment were imposed on first offenders in respect of multiple offences involving a single complainant.

[58] The sentence of five years imprisonment was within an appropriate range bearing in mind the maximum penalty of 10 years imprisonment; the serious nature of the indecent dealings; the relationship of trust which was abused by the applicant either during, or immediately after completing, his parole for remarkably similar offences involving the same complainant; the age of the complainant; the absence of the benefit of an early plea of guilty and lack of remorse.

[59] I would allow the appeal against conviction, set aside the conviction and verdict, direct a verdict of acquittal and order a new trial in respect of counts 6 and 7.

[60] DAVIES JA: I have had the advantage of reading the draft judgment of the President. Except with respect to her conclusion as to whether there was a sufficient direction to the jury as to the difficulty in reaching a verdict I agree with her Honour's conclusions both in the appeal and in the application for leave to appeal against sentence and with her reasons in each case.

[61] The sufficiency of this direction was not the subject of any request for re-direction or any ground of appeal. It was raised for the first time by the President during the course of the appellant's argument. Unsurprisingly it was then taken up by the appellant.

[62] The terms of the learned trial judge's direction in this respect are fully set out in the reasons of the President and I shall not set them out again here. The question is whether they "may well have resulted in the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled."[15] Of course it is desirable for judges, in circumstances such as this, to adhere, as nearly as possible, to the model direction contained in the joint judgment in Black[16]. But it does not follow that any failure to adhere to that model will result in a miscarriage of justice.

[63] In Black the court was concerned with a direction which, in its view, imposed undesirable pressure, in three specific ways, upon a jury to reach a verdict. The first was by pointing to the public inconvenience and expense which would be caused by a disagreement. The second was by suggesting that there must necessarily be a certain amount of give and take and adjustment, thereby leaving open the possibility that an individual juror might think that he or she was being asked to compromise views otherwise held in order to reach a verdict. And the third was that a reference, in that context, to the jury's collective duty may well have had the effect of reinforcing the impression that the jury were under some obligation to reach a result to which all members of the jury subscribed. Together these references, the court thought, might well have resulted in the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled.

[64] Before setting out a model direction, the joint judgment of Mason CJ, Brennan, Dawson and McHugh JJ said that such a direction should state clearly that each juror has a duty to give a verdict according to the evidence.[17] Nevertheless they said it was proper to remind jurors that they should listen to each other's views and 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.

[65] The direction in the present case did not err in any of the specific respects criticized in Black. It did not refer to public inconvenience or expense, it did not suggest that there must necessarily be give and take or adjustment and it did not suggest a collective duty. Moreover it did, as the joint judgment in Black said it should, say, in effect, that each juror has a duty to give a verdict according to the evidence. I say "in effect" because what her Honour said was:

"However when you swore the oath you did swear an oath to give an honest verdict, and as I said to you - in my summing up to you, you must give a verdict that you are comfortable with. That you agree with and your verdict does have to be unanimous."

In my opinion that passage makes the same point; that each juror has a duty to be true to his or her oath, not to compromise for the sake of agreement.

[66] Nevertheless it is true that the direction here fell short of the model direction in Black in a number of respects. In particular her Honour expressed, in slightly stronger terms than the model direction in Black, her reason for not discharging them at that stage. Her Honour's direction was:

"Now I do have the power to discharge you from giving a verdict. But obviously I would be very loath to exercise that power. And it is often the case that given more time, juries can reach a verdict in the end, and obviously that's preferable for everyone concerned.

Experience does show that given time and given reasonable debate juries, or most juries will reach a decision in the end. And for that reason I will ask you to please re-examine the issues and re-visit the discussion you've had. And debate the issues again. And make a further attempt to reach a verdict. If in the end though you are absolutely unable to reach a verdict then obviously you'll have to let me know."

"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.

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."

[68] Notwithstanding that her Honour's direction was in slightly stronger terms than the model direction it does not, in my view, in contrast to the direction criticized in Black, place any pressure upon or give any encouragement to individual jurors to abandon their individual views in favour of a collective verdict, especially when taken together with the passage set out earlier.

[69] Nor do I think that the reminder in the direction that each count should be considered separately and that different verdicts could be given on each count detracted in any way from the force of the direction to each juror to give a verdict according to his or her oath. On the contrary I think it was a timely reminder of the need to consider each count separately.

[70] Whilst it would have been more desirable for her Honour to have given a direction in the model form I do not think that the direction which she did give could have placed any pressure on or given any encouragement to the jury to compromise.

[71] I would therefore dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

[72] JONES J: In this matter three issues were initially raised on the hearing of the appeal.

[73] The first of these was the suggestion that the guilty verdicts on counts 6 and 7 were unsafe and unsatisfactory because they were inconsistent with the verdicts of acquittal on the six other counts which were left for the jury's consideration.

[74] I have had the opportunity of reading in draft form the President's reasons for rejecting this ground of appeal and I agree with the conclusion she reached and with her careful analysis of the features which distinguished the counts on which the appellant was convicted. I do not wish to add any further remarks on this issue.

[75] I agree also with the President's reasons with respect to the remaining issues concerning the admission into evidence of the appellant's previous convictions and concerning the severity of penalty. I have nothing further to add to her remarks.

[76] I do, however, find myself unable to agree with the view of the learned President on the further issue that arose in the course of argument - namely, when the jury had difficulty in reaching a verdict, that the direction of the learned trial judge offended the principle identified in Black v The Queen[18] that the jury must be free to deliberate without any pressure being brought to bear upon them.

[77] The phrase which was identified as imposing some untoward pressure on the jury came in the following passage:-

"I have called you back in because I understand that you haven't been able to reach a verdict, as yet. Now I do have the power to discharge you from giving a verdict. But obviously I would be very loathe to exercise that power. And it is often the case that given more time, juries can reach a verdict in the end, and obviously that's preferable for everyone concerned.

However, when you swore the oath you did swear an oath to give an honest verdict, and as I said to you - in the summing up to you, you must give a verdict that you are comfortable with. That you do agree with and the verdict does have to be unanimous."

[78] In Black's case the following passage appears in the trial judge's direction.

"It makes for considerable public inconvenience and expense if a jury cannot agree and it is most unfortunate indeed if such a failure to agree is due to some unwillingness on the part of one or more members of the jury to listen to and consider the arguments of the rest of the jury. It is very desirable that you should come to a conclusion one way or the other, because if you don't, it will mean that some jury will have to later seek to do what you have been chosen to do. That would be a considerable hardship on all concerned with the case, including the accused and the various witnesses and if possible, should be avoided."

Also in an earlier part of the trial judge's direction reference was made to the jury having "a duty, not only as individuals, but also collectively."

[79] The members of the High Court found that the reference to "public inconvenience and expense" was inappropriate and likely to coerce a juror into a verdict rather than being true to the juror's oath, particularly as this was reinforced by reference to a duty to act "collectively".

[80] From this decision a model direction emerged which is almost invariably used by trial judges. Its terms having been set out in the reasons of the learned President, I will not repeat them here. Although in most instances it would be preferable for trial judges to follow the suggested form of words, an adaptation which does not give rise to pressure on a juror to act contrary to his or her oath should not be regarded as erroneous.

[81] The question to be determined on this point in this appeal is whether, looking at the learned trial judge's direction as a whole, there can be perceived any phrase or combination of phrases that was likely to subordinate the jurors' individual view to those of the majority. In this instance the learned trial judge reminded the jury of their respective individual oaths to give an honest verdict. She gave emphasis to this after requesting their further consideration of the evidence saying "if in the end you are absolutely unable to reach a verdict then obviously you will have to let me know".

[82] I cannot see in these terms, or in the complete terms of the direction, any danger that a juror would perceive those remarks as imposing pressure to decide otherwise than in accordance with his or her conscience.

[83] In the context in which it was made, the expression that it is "preferable for everyone" for a verdict to be reached was really no more than stating a proposition of common sense. When the comment is followed immediately by reference to the juror's oath requiring an honest verdict, it really should not have the effect of applying pressure to an individual's decision making process. By contrast, the direction in Black's case went much further suggesting public inconvenience and expense, a rehearing before another jury and a hardship to all concerned which should be avoided.

[84] In my view there was no lack of balance in the direction given and there was sufficient emphasis, both in the summing up and in the additional direction, to remind each juror of his or her obligation to return an honest verdict on the evidence and, importantly in this case, the obligation to consider each count separately permitting the giving of different verdicts on the various counts.

[85] I would dismiss the appeal and the application for leave to appeal against sentence.

[2] [1993] HCA 71; (1993) 179 CLR 44.

[8] [1992] HCA 68; (1992) 175 CLR 599, per Mason CJ at 602-603, Brennan J at 608 and Deane J at 610.

[9] CA No 349 of 1997, 21 November 1997.

[10] [1998] HCA 21; (1998) 194 CLR 106.

[12] [1992] HCA 68; (1992) 175 CLR 599, per Mason CJ at 602.

[13] CA No 124 of 1993, 18 August 1993.

[15] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 at 51.

[18] [1993] HCA 71; (1993-94) 179 CLR 44