but what her Honour said, was:
"But all twelve of you are not unanimously able to say which".
39 The expression leaves open a compromise by the jury which, for the reasons already given is an impermissible process.
40 It is demonstrated by what occurred shortly thereafter that the placement of the word "not" was not an unintended slip.
41 The jury resumed their deliberations after this redirection at 10.35 am. The next recorded time is 11.52 am when verdicts were taken but in the span of time between those points, the jury sent a note stating that they had reached verdicts on all counts.
42 After the note was received but before the jury were brought back to court counsel, for the first time, drew attention to the decision in Nguyen. At the time there was no express complaint about misdirection but her Honour indicated that she regarded any further opportunity for direction as closed by reason of the jury's indication in their note. That was not the situation. The notification from the jury did not inhibit correction of any requisite matter. The jury indication did not create an end point of their task. A barrier to further deliberation is created by the return of verdict but not by mere indication of a stage which the jury had reached. There is no reason why a judge, if becoming conscious of error, cannot redirect a jury which has not delivered its verdict and invite them to deliberate further in accordance with corrected, amended or supplementary direction then given.
43 Her Honour was placed in what she obviously perceived to be a concluded situation by the delay in drawing the decision of Nguyen to attention and it is a pity that this was not done by counsel more promptly.
44 However, in rejecting the implication that she might consider redirection in the light of that decision, her Honour said:
"Yes I'm not going to redirect them I'm afraid. They've told me they have a verdict and I actually don't believe that I can now do anything about that. If I'm wrong, I'm wrong but it seems to me frankly, I had actually read that decision of Nguyen, it comes back to mind and I thought to myself with great respect to the majority that it didn't make a great deal of sense because it seemed to me to really go against what the whole intention of s 121 was, it took us all back to where we were before but anyway I'm not prepared to go behind the verdict of a jury and start redirecting them I'm afraid. We'll have the jury."
45 As I have noted, the situation was mis-stated in that there was not at that point a jury verdict to "go behind".
46 The majority decision in Nguyen represented binding authority and it was not open to her Honour to reject it. She was, of course, free to express any opinion which she held about the validity of the reasoning but she was not free to decline to apply the law as there declared. The remarks of Lord Hailsham in Cassell & Co v Broome 1972 1 All ER 801 @ 809 are pertinent:
"….. in the hierarchal system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers."
47 Those remarks have been applied in the Australian context: Tzaidis v Child & Ors [2003] NSWSC 667.
48 Ground 2 is made out.
49 A question arises concerning the orders which this Court should, or could make consequent upon grounds 1 and 2 being upheld. This Court has wide powers to order new trial when it quashes convictions upon an indictment: s 8 Criminal Appeal Act 1912, but as I have described, verdicts of not guilty on counts 7, 8, 9, and 10 were found in accordance with what was required before special verdicts could be returned. The relevant endorsement was made on the back of the indictment, viz:
"Not guilty on all counts, but special verdicts on counts 7 & 8 & 9 & 10."
50 The endorsement on the back of the indictment represents the formal record of a court of first instance: R v Carrion 2002 128 A Crime R 29. Thus the judgments of acquittal following the jury verdicts on counts 7, 8, 9 and 10 were perfected: cf R v Holton [2004] NSWCCA 214.
51 The grounds upon which the appellant's arguments succeeded, relating as they do to matters of evidentiary ruling and jury direction would, in the absence of particular reason, give rise to exercise of discretion by this Court to order new trial.
52 Although the appellant was convicted as made possible by s 121 of a special verdict, s 121 does not create a chargeable independent offence. Hence this Court could not order a new trial upon an indictment charging an offence contrary to s 121 nor can it order a new trial upon counts upon which judgments of acquittal have been entered.
53 The possibility of this consequence was raised and the Crown has submitted that the verdicts of not guilty on the relevant counts were "nothing more than a precursor to the returning of the special verdict" and that this Court should order a new trial on counts 7 and 8 and counts 9 and 10, that is to say, alternative counts charging stealing and receiving the white and black Porsches.
54 The contention is based upon the directions given by her Honour as to how the verdicts would be taken. These were:
"When you return to court after you have reached your verdict in relation to each vehicle, your foreman will be asked for your verdicts on the relevant alternate counts, and the special verdict using the following formula:
1. As to the stealing count, is the accused guilty or not guilty? If you have not applied the special verdict, but have found the accused guilty of stealing that vehicle, your foreman will say 'guilty', and you will not be asked about the alternate count relating to that vehicle. If you find the accused not guilty of that count, or you wish to return a special verdict, your foreman will say 'not guilty'.
2. Then the same formula will be applied to the receiving charge. If you find him guilty on the receiving count, your foreman will say 'guilty'. If you find him not guilty on the receiving charge or you wish to find him guilty on the special verdict, your foreman will say 'not guilty'.
3. Your foreman will then be asked, 'Do you or do you not return a special verdict that the accused is guilty of either stealing or receiving and you cannot say which'. Your foreman will then say, 'We return the special verdict'."
55 The Crown Prosecutor drew attention to Cassidy where Pring J also said (s 121 being in terms not materially different from the present):
"The jury have said, first 'we cannot say that the prisoner is guilty under the first count;' they have said, secondly, 'We cannot say that she is guilty under the second count.' That did not amount to an assertion by them that the appellant was innocent under both counts; it merely meant, 'We cannot satisfy ourselves that she is guilty under one count or the other.' and they added, 'We are quite satisfied that she is guilty under one or the other, and we are unable to say which.' That is exactly the case to which this section was intended to apply."
56 Neither that statement nor the structure of s 121 undermines the circumstance that the jury has not been satisfied to the requisite standard of the proof of guilt of stealing nor have they been satisfied to the requisite standard of the proof of guilt of receiving. Those failures to satisfy vested in the appellant an entitlement to acquittal on those charges.
57 Verdicts of not guilty cannot be categorized as mere precursors of special verdict and they are not vulnerable to being set aside by this Court. The Crown Prosecutor did not suggest that s 7(3) of the Criminal Appeal Act was a source of power to order retrial on counts upon which acquittal had been entered. That provision, in its terms, can be drawn upon where this Court considers "that a wrong conclusion has been arrived at by the court of trial on the effect of " a special verdict. That is not this case.
58 I am conscious of the apparent anomaly that, in the result, the appellant will, in particular, be the subject of acquittal on count 10 to which he had pleaded guilty upon arraignment. That the jury nonetheless found a special verdict on counts 9 and 10 offers a compelling inference, especially in the light of the content of their note (MFI 21), that the special verdict was returned in circumstances where all members of the jury were not unanimous in finding that the appellant was guilty of either stealing or receiving the black Porsche but they could not say which. It suggests that the special verdict was returned as a result of compromise between at least some jurors who were satisfied of the proof of stealing and others who were satisfied of the proof of receiving of that vehicle.
59 The appeal should be allowed and the special verdicts found on counts 7, 8, and counts 9 and 10 respectively should be set aside and the sentences imposed in respect thereof quashed.
60 SIMPSON J: I agree with Grove J.
61 SHAW J: I agree with Grove J.