HRNG ADELAIDE, 2-4 August 1995 #DATE 14:8:1995 #ADD 20:9:1995

JUDGE1 MATHESON J The accused pleaded not guilty before a jury to a charge of assault occasioning actual bodily harm. There was a substantial dispute between the prosecution version and the defence version of the relevant incident, and the evidence of "actual bodily harm" was of a minor injury. The alternative verdict of common assault was always a real possibility, and the jury were told twice in the course of my summing up that that verdict was open to them.

My Associate received a message from a Sheriff's officer some time before the four hours required for a majority verdict had expired that the jury had in fact reached a majority verdict. When the four hours had expired, I brought the jury in to Court. The transcript then contains the following passage: "JURY RETURNS 3.17 P.M.

JURY INTIMATES THEY ARE UNABLE TO REACH A UNANIMOUS OR MAJORITY VERDICT ON THE SUBSTANTIVE CHARGE, BUT HAVE REACHED A MAJORITY VERDICT ON THE ALTERNATIVE CHARGE OF COMMON ASSAULT. (This is obviously a paraphrase but, I think, an accurate one.)

MR ALGIE (counsel for the accused): I am concerned that the jury have to return a verdict on the substantive charge one way or the other, before the alternative can be considered. I think that is the way it works. I don't want to cause a problem, but that is my understanding.

MR COX: I agree with my friend. I think that is the proper procedure."

I decided in the circumstances that some discussion with counsel in the absence of the jury was desirable, and I asked the jury to retire.

After the jury retired, I discussed with counsel the wording of subs3 of s52 of the Juries Act. It states: "(3) Where an accused person is charged with a particular offence (the major offence) and it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of some other offence for which the person has not been charged (the alternative offence) - (a) the jury must consider whether the accused is guilty of the major offence before considering whether he or she is guilty of the alternative offence; and (b) if the jury reaches a verdict (either unanimously or by majority) that the accused is not guilty of the major offence but then, having been in deliberation for at least four hours, is unable to reach a verdict on the question of whether the accused is guilty of the alternative offence

  (i) the accused must be acquitted of the major offence;
  (ii) the jury may be discharged from giving a verdict in

respect of the alternative offence; and (iii) fresh proceedings may be taken against the accused on a charge of the alternative offence."

Incidentally, "Notes for Guidance of Jurors Attending Criminal Sessions" include the following: "6 Alternative and Majority Verdicts

In general, the verdict must be unanimous; but after four hours deliberation, a majority verdict of either guilty or not guilty may be accepted.

'Majority verdict' means - 1 The verdict of 10 or 11 jurors if the Jury consists of 12 jurors. 2 The verdict of 10 jurors if the Jury has been reduced to 11 jurors. 3 The verdict of 9 jurors if the Jury has been reduced to 10 jurors.

When an accused person is charged with an offence and the Jury have been directed that it is legally open to them to return a verdict of not guilty of the offence charged but guilty of an alternative offence, the Jury shall first consider whether the accused is guilty of the offence charged before considering whether he is guilty of the alternative offence. If the Jury decides (whether unanimously or, after four hours, by a majority) that the accused is not guilty of the offence charged it must then proceed to consider whether he is guilty of the alternative offence. The above rules as to unanimous and majority verdicts apply also to the alternative verdict, the period of four hours being measured from the time of the Jury's retirement.

The above rules are subject to an exception in the case of a charge of murder. A verdict of guilty of murder must be unanimous irrespective of the duration of the deliberation. Subject to that exception, the rules as to a charge of murder are the same as to other charges."

When the jury returned, the transcript records the following exchange: "HIS HONOUR: Before I take a verdict on the alternative count of common assault, have you reached a verdict, at least by a majority, that the accused is not guilty of assault occasioning actual bodily harm?

HIS HONOUR: Would you like (me) to write that down? It is a slightly unusual situation. I will hand you this, and if there is any confusion, you might like to retire again. How it reads is 'Have you reached a verdict, at least by a majority of ten or more, that the accused is not guilty of assault occasioning actual bodily harm?' (My Associate then handed what I had written to the foreperson.)

HIS HONOUR: I can't take a verdict on the alternative until and if you have reached a verdict, either unanimously, or by a majority, that the accused is not guilty of assault occasioning actual bodily harm. Do you want to discuss it further?

HIS HONOUR: If I can help you in any way, let me know, but I think you had better clear that up.

After the jury retired again, and after getting instructions from his client, Mr Algie asked me to discharge the jury. After hearing argument, I acceded to his request. It was clear that the jury had reached a verdict on the alternative count without reaching a decision that the accused was not guilty of the major offence unanimously or by majority. It seemed likely that at least some of the jury had compromised.

Courts have said from time to time that a "compromise" verdict is undesirable. For example, in R v Flood (1914) 10 C App R 227 230, Coleridge J, delivering the judgment of the Court of Criminal Appeal, said at p230: "... A compromise verdict is a very undesirable thing in any circumstances. In a criminal case involving the liberty of the subject it is not only undesirable, it is wrong."

In R v Cartledge [1956] VicLawRp 36; (1956) VLR 225, Lowe J delivering the judgment of the Full Court said at p227: "... Merely to say that there is a certain amount of give

and take in itself may be misleading. It may mean that a juryman is to compromise with the others in coming to a verdict. If that were its meaning, we do not at all agree with it. The process of arriving at a verdict is a process of argument in which all have to be convinced that the verdict arrived is the correct verdict."

See also Reg v Redgard (1956) St R Qd 1 at pp4, 5 and 9.

I also refer to R v Evans (1987) 48 SASR 35. At p42, King CJ said: "A compromise verdict in the sense of a verdict of guilty of a lesser offence as a compromise between those who consider that the major charge has been proved and those who consider that there should be a verdict of not guilty, is an unjust verdict and must be set aside: R v Flood (1914) 10 Cr App R 227. But jurors are expected to mingle their views and a degree of give and take in the jury room is to be expected and, indeed, encouraged. This must often be necessary in order to enable a body of twelve persons to arrive at a common view, especially where alternative verdicts are open. It is not improper for those who are initially convinced that the charge has been proved to be influenced by the doubts of fellow jurors who are not so convinced. A former group of jurors may be sufficiently influenced by the doubts of the latter to be able conscientiously to join in a verdict of not guilty of the major crime but guilty of the lesser crime. A juror is required by his oath not to abandon his conscientiously held conviction but he may be influenced by the doubts of his fellow jurors to take a less rigorous view than he would have taken if he had been the sole judge of the matter. In the end it is necessary, of course, that all the jurors, or a sufficient majority of them, be able conscientiously to join in a verdict of not guilty of the major crime but guilty of the lesser crime. I see no reason in the present case to suppose that there was any improper compromise of views."

It is true that this case was not comparable with a case where, for example, on a charge of rape the proper verdict is either of guilty of rape or not guilty of any charge, and the jury convict of indecent assault, and I considered whether I should ask the jury to retire again, and see if they could reach a verdict at least by a majority that the accused was not guilty of the major charge. In the end, however, that course, so it seemed to me, may have brought improper pressure on the jury. In that connection I refer to the decision of the High Court of Australia in Black v R [1993] HCA 71; (1993) 118 ALR 209. At p213 the court stressed "the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them", and the importance of the jury giving the issues "that free deliberation to which both the accused and the Crown were entitled." (p214.)

In all the circumstances, the discharge of the jury seemed to me the only proper course.