Court of Appeal (WA)|2002-03-28|Before: Malcolm CJ

Roberts v The Queen [2002] WASCA 64 (28 March 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ROBERTS -v- THE QUEEN [2002] WASCA 64

Criminal law - Practice - Jury trial - Difficulty in reaching verdict - Jury unable to agree after eight hours - Appropriate directions - Need to avoid exerting pressure

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Griffin v The Queen [2001] WASCA 11

Jackson v The Queen [1990] WAR 105

Kenneally v The Queen [1998] WASCA 136

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mitchell v The Queen [1998] WASCA 334

Peers v The Queen [1999] WASCA 295

Williams v The Queen (1996) 17 WAR 17

1 JUDGMENT OF THE COURT: The appellant was presented in the Supreme Court on 19 February last on an indictment containing a single count of wilful murder in which the appellant was charged that on 22 March 2000 at Caversham he wilfully murdered Frank Weston.

2 There was evidence that the deceased had been stabbed a great many times. It was not disputed that there was an encounter between the appellant and the deceased, during which the deceased was stabbed by the appellant. The appellant's case was that he had acted in self-defence in stabbing the deceased once and the additional stab wounds were inflicted when the deceased was in a state of automatism and were inflicted involuntarily. Fifteen witnesses were called for the Crown, including a psychiatrist and a forensic pathologist. The accused gave evidence and called a psychiatrist and a forensic psychologist. At 10.25 pm on the sixth day of the trial, and after deliberating for nine hours, the jury returned a verdict of guilty as charged.

3 There are two grounds of appeal against conviction, but they come down to a single complaint, the substance of which is that the trial Judge placed inappropriate pressure on the jury to arrive at a verdict.

4 The circumstances giving rise to this complaint are as follows. All of the evidence was heard and the addresses of counsel completed by the end of the fifth day of trial, that is, Friday 23 February and the Judge informed the jury that he would commence his charge to them on Monday morning. He did commence his charge at 10.02 am on Monday 26 February and completed it at 1.22 pm on that day, when the jury retired to consider their verdict. The Judge then heard submissions concerning redirections and at 3.21 pm, at the request of defence counsel, the jury was brought back and redirected for a short time. At 6.02 pm the jury returned with the following question:

"We would like to hear the definitions again between wilful murder and murder."

5 The necessary directions were given and the jury retired again at 6.05 pm.

6 At 7.26 pm the jury was brought back into court by the Judge and his Honour said this to them:

"Mr Foreman and members of the jury, I have brought you back because you have now been in deliberation for 6 hours, which is a very long time and as you can see it's late at night now, being half past 7, and so I thought I might just ask you how you're going. I don't want you to tell me numbers, 'We're divided this or that,' but can you tell me this: does there appear to be any prospect of the jury reaching a unanimous verdict?"

"Do you mean tonight, your Honour, or in the long term?"

"HIS HONOUR: In the near future, let us say.

THE FOREMAN: I honestly think we can reach a unanimous verdict this evening.

HIS HONOUR: All right. When you say 'this evening,' I don't want you to say how many minutes you need or how many hours you need, but within the foreseeable future? See, you haven't had any food or anything. It is 1.30 since you were given sandwiches or whatever you had then. Could you give me some approximation, without being definite, how much longer you think you might need? In saying that, I'm not pressurising you.

THE FOREMAN: Probably 90 minutes.

HIS HONOUR: You might need that much? All right, so another hour and a half. Madam Sheriff's Officer, what is the position with food? It takes three-quarters of an hour to get it here, doesn't it?"

7 There was then some discussion with the sheriff's officer about how long it would take to provide a meal to the jury and what kind of meal it might be, and his Honour then said to the foreman:

"It may not be the best, but it's obvious you're going to need some nourishment, some food. That's obvious. You can't go past half past 7. What I could do is give counsel the opportunity to go away and myself the opportunity to go away, because we can't find any food here, I can assure you of that, and we could come back again at say 9 o'clock if you thought that might be suitable.

Take a seat, Mr Foreman. In some circumstances I could say if you have had enough for the day you could be sent to a hotel for the night and continue your deliberations the next day, but that is very difficult for me because tomorrow I have another commitment where I'm supposed to be somewhere else at 9.30 in charge of a major seminar. That's not to say that I can't get someone else to take over at the last minute and I can't be relieved of that obligation, but I hadn't anticipated sending you to a hotel because I thought retiring at 1 o'clock, you would probably reach a verdict within the night, but it sounds from what you're saying anyway you don't need that option.

In any event, the disruption for that - you have to send home for clothes and it's a major exercise so we didn't plan on that, but if you did say to me, 'Look, we need another 12 hours or something,' then obviously that's an option, but it's not that situation.

THE FOREMAN: No.

HIS HONOUR: How do you feel then about the proposition that I say we adjourn the court till not before 9 o'clock? That means no-one will be back till 9.00. That gives the sheriff's officer 45 minutes to organise something for you to eat. That gets here by about quarter past 8 and you can continue on with a view to perhaps reassembling at 9.00 or whenever thereafter. You're not on a time limit. You don't have to come back at 9.00. Discuss it amongst yourselves and see how that sounds. That seems to be the gist of it? All right.

Madam Sheriff's Officer, would you organise as soon as you can the dinner for the jury. Counsel, we will therefore be able to go away and come back again, let's say quarter past 9, not before quarter past 9. Will that be all right? That gives you a little bit - because you're talking about more deliberation time, you have to have time to eat, so let's say nothing happens before quarter past 9, then we will reassemble.

I will adjourn the court till not before 9.15 pm and that gives counsel the opportunity to go away and come back and I will do likewise. You, members of the jury, will get something. I hope it's satisfactory. I can't vouch for it personally but let's hope you get something substantial which will keep you going and we will reassemble at 9.15 or thereafter when you are ready. That's not an order that you come back at 9.15. I must impress upon you, under no circumstances am I putting any time limits on you. Let's adjourn."

The time was then 7.30 pm and once again the jury retired. At 9.32 pm the jury returned, having sent a note to the Judge which said:

"The jury is stuck between wilful murder and murder. We can't appear to reach a verdict."

8 Set out below is the transcript of what was then said:

"HIS HONOUR: I take it from that that some jurors are satisfied beyond reasonable doubt that the accused is guilty of wilful murder, that is, that he unlawfully killed the deceased intending to cause his death, but some jurors are not so satisfied beyond reasonable doubt, but are satisfied beyond reasonable doubt that he unlawfully killed the deceased intending to do him grievous bodily harm.

So we are, as you say, stuck in that situation. Can I take it, from what you say, that really there is no possibility of anybody shifting their position, that you have reached final views, each one of you, in relation to your own conscience, and it's unlikely that you would be prepared to further discuss it and consider whether or not you could meet the views of others?

THE FOREMAN: Yeah, I think so, your Honour. We don't think we could come to a decision.

HIS HONOUR: No. You have been there 8 hours, which is a long period of time. You could remain seated, Mr Foreman. You have been there 8 hours, which is a long period of time by any stretch of the imagination, but of course it's a very serious case. It seems unfortunate that you are in a position where some of you are satisfied beyond reasonable doubt on one and some satisfied beyond reasonable doubt on another. It's not as if you can't reach a verdict at all. Some would wish to reach a verdict on one particular crime and others would wish to reach a verdict on another.

The position is that judges are reluctant to discharge juries. Usually the position is that, given enough time, juries can reach a unanimous verdict, but of course you have had 8 hours and I know time has run for a very long period today.

If there is any prospect of you retiring to the jury room to consider each other's views, to give very careful thought to the views of each, notwithstanding that you must honestly reach a verdict in accordance with your own conscience, I would be happy to send you back, but if the position is you are determined that there is really no prospect of that happening, then there is no point in sending you back again and us staying and you staying into the late hours of the night.

Really all I can say is that it is a very important responsibility to give a true verdict on the evidence. There is and has to be room for individual experience, individual wisdom, and each juror must judge the evidence fairly and impartially. You have to listen carefully and objectively to the views of fellow jurors, weigh up their opinions - and of course you have already been doing that, I realise that - but calm and objective discussion of the evidence is all that we can ask for.

I don't want to send you back unnecessarily, but is there any prospect the 12 of you, if you just talk amongst yourselves, is there any prospect, if you have regard to what I have said, of going back and trying to listen to each other's views, to perhaps reach a verdict? It is very important. I don't want to say too much about it except that you can see that the case has been going for 6 days. It's a very serious case.

We have reached a point where you people have had the opportunity to consider the evidence in great depth. It would be unfortunate if I have to discharge you and send you away, and we would have to start this trial again in a few months' time with another jury, but if that's it, that's it. So can I ask you for a last discussion amongst yourselves to see is there any point in any further consideration, just another try to meet each other's point of view, or listen to each other and see if it's possible to reach a verdict which is a unanimous verdict of the 12 of you?

Let me put it another way: instead of trying to discuss it here in the presence of us, would you like to go up just for a last attempt to see whether common ground can be reached, and if the position is when you get in the jury room you come to the firm, final view, that's it, there's nothing that can be done, I will accept that, of course, but if there's any prospect that you can meet each other's views, discuss it calmly and objectively and come to a verdict, of course that's highly desirable. So could I ask you if you would just go back for a last look at it?

THE FOREMAN: Yes, we will try that, your Honour.

HIS HONOUR: All right, let's see what we can do, but I realise that there has to be a limit. I'm not suggesting that we can go - obviously it's already 20 to 10 - you can't go on all night, and I don't want to see people get upset and pushed into any sort of position. Each person has to retain his own conscience, his or hers. There is no doubt about that. Nobody is to be forced to compromise. Nobody is to be forced to accept the views of another if they do not agree with it, and that, I impress upon you. It's each person's personal conscience. Only if each one of you is satisfied beyond reasonable doubt in relation to a particular verdict can that verdict be reached.

So I don't want to distress any of you by asking you to go back, but let's just go back for a final look at it. If that's the end of it, then by all means tell the sheriff's officer, she can ring my associate, and we will come back and I will discharge you and we will start the trial again on another date. Do you need the exhibits again?

THE FOREMAN: No, we don't.

HIS HONOUR: No, there is no need for that, Madam Sheriff's Officer. I think we will just retire to the jury room for a short time and you can communicate with the sheriff's officer, who can communicate with my associate, and let me know the position. All right, thank you very much. I will adjourn pro tem and we will await your return one way or the other."

9 At 10.25 pm, the jury returned and informed the Court that it was agreed upon its verdict which was "guilty as charged".

10 There has been much debate about the form of direction that a trial Judge may give a jury which is encountering difficulty in reaching a verdict. The principal cases in which this debate may be followed are collected in Reg v Watson [1988] QB 690 and in the joint judgment of Mason CJ, Brennan, Dawson and McHugh JJ in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44. The fundamental principle is that a jury must be left free to deliberate without any pressure being imposed upon them. As Lord Lane CJ put it in Reg v Watson (supra) at page 700:

"They [the jury] must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so."

11 Although the trial Judge did tell the jury that he was not "pressurising" them; that they were not on a "time limit"; that they must each act "in accordance with your own conscience"; that each juror must "judge the evidence fairly and impartially"; that nobody "is to be forced to compromise", or "forced to accept the views of others if they do not agree with it" and although he did tell them that "only if each one of you is satisfied beyond reasonable doubt in relation to a particular verdict can that verdict be reached", it was submitted on behalf of the appellant that his Honour did also engage in an impermissible degree of coercion.

12 We have come to the conclusion that this submission must be accepted for the following reasons.

13 The High Court has made it clear in Black v The Queen (supra) that great care must be taken by the trial Judge if he embarks on an exhortation to the jury when the jury is not agreed on a verdict after deliberating for a long time. It was held that reference to any matter that might be understood as an invitation or encouragement to an individual juror to subordinate his or her views to those of a majority of jurors, or that might impose pressure upon individual jurors to do so, or which suggests that the jury has an obligation to reach a unanimous result collectively by a process of compromise and give and take must be avoided.

14 A review of the authorities shows that this has not always been so, either in England or Australia. Directions which included phrases such as "you have a duty not only as individuals but collectively"; "there must necessarily be argument and a certain amount of give and take and adjustment of views"; "it makes for great public inconvenience and expense if jurors cannot agree" (Reg v Walhein (1952) 36 Crim App R 167), and "it is highly essential that you should come to a definite conclusion. It is a hardship upon all concerned if you do not" (Reg v Creasey (1953) 37 Crim App R 179; R v Luscher (1976) 1 NSWLR 227) were considered unexceptionable. It is clear from the judgments in Black, however, that such directions would not now be approved in Australia. In their joint judgment, Mason CJ, Brennan, Dawson and McHugh JJ, at 50 - 51, said of the direction given in Walhein which was used as the standard direction in English courts for some 30 years, until the Court of Appeal in Reg v Watson disapproved of it:

"The principal defect in that direction, as perceived by the Court of Appeal, was the reference to great public inconvenience and expense. As Cooke P pointed out [in R v Accused [1988] 2 NZLR 46 at page 58] 'inconvenience and expense should not be measured against justice'. His Honour went on to say that it had not been the practice to use this part of the Walhein direction in recent years.

We agree with this criticism of the Walhein direction, and the criticism has equal application to the instructions given by the trial Judge in the present case. More importantly, the reference to 'considerable public inconvenience' is apt to impose pressure upon individual jurors to join in the view taken by a majority, thereby violating the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them. The statement that 'there must necessarily be ... a certain amount of give and take and adjustment' might be taken to suggest, wrongly in our view, that a juror is to compromise with other jurors in reaching a verdict.

Moreover, the earlier reference to the jury having a 'duty, not only as individuals but also collectively' 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. Jurors do have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the jury room. There is a risk that references to a collective responsibility or duty may be understood more broadly by the jury and as an invitation to an individual juror to subordinate his or her views to those of a majority of jurors. Consequently references to 'give and take and adjustment' and collective duty or responsibility should be avoided."

"Any suggestion that a minority juror should democratically submit to the view of the majority is antithetical to the jury process under the common law of this country.

Accordingly, in a case where it appears that a jury has been unable to reach agreement after what is, in the circumstances of the particular case, a significant period, it is essential that a direction requiring the jury to continue its deliberations carefully avoids anything at all that might be misunderstood as encouraging a minority juror to join in returning a 'collective verdict' which does not completely accord with his or her own genuine views."

16 The model direction which the High Court suggested should be given in such circumstances is set out in that case at pages 51 - 52 and is as follows:

"Members of the jury,

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 your own views 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 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 light of what I have already said, I ask you to retire again and see whether you can reach a verdict."

17 Clearly, this direction is carefully drafted to give the jury assistance and encouragement to continue their task, but without applying any pressure. Whilst, no doubt, there is room for some individual variation to the model direction, embellishments which may import any degree of coercion must now be regarded as impermissible: Tangye (1997) 92 A Crim R 545 per Hunt CJ at 551.

18 In comparing what his Honour told the jury in this case at various stages of their deliberation with the form of direction approved in Black, it will be apparent that the form of direction approved in Black was departed from. We consider that it was departed from in a manner that created a real risk of interfering in the jury's freedom to deliberate without pressure being imposed upon them. Taken overall, the Judge's comments may have been understood as suggesting that the time had arrived for the minority to consider shifting their views in the sense of falling into line with the majority in order to avoid the disruption, inconvenience and waste involved in a failure to reach a unanimous verdict that night.

19 His Honour's initial remark to the jury "you have now been in deliberation for 6 hours, which is a very long time and as you can see it's late at night now" was liable to be understood as suggesting to them that they had been deliberating for an unusually long time. When the foreman indicated that the jury might need probably 90 minutes to reach a unanimous verdict, his Honour's rhetorical question "You might need that much?" and his statement "All right, so another hour and a half", when taken together with his initial remark, was liable to be understood as an expression of surprise and resignation, if not impatience. His Honour's reference to the difficulties which would be occasioned to him personally by reason of his involvement in a "major seminar" at 9.30 am the following morning, if the jury were sent to an hotel overnight, coupled with his statement that he had not "anticipated sending [the jury] to a hotel" because he thought they would have reached a verdict that day was liable to be understood as another expression of impatience, if not dismay, thus placing pressure on one or some of the minority. His Honour's further reference to the "disruption" involved in adjourning at that stage and going to an hotel and his description of it as "a major exercise" and his repetition of the fact that "we didn't plan on that" might have added to that pressure. The danger is that those in the minority might have understood his Honour to be telling them that it really was out of the question that proceedings be adjourned for the night unless they needed "another 12 hours or something", thereby further adding to the pressure on them to submit to the majority view so as to bring in a verdict that night.

20 By 9.32 pm, when the jury returned to inform the Judge that it was "stuck between wilful murder and murder" and "we can't appear to reach a verdict" it is very likely that one or some of the minority would have been under considerable pressure from majority jurors, or at least there was a danger of that, having regard for the Judge's remarks noted above. His Honour's question, "Can I take it, from what you say, that really there is no possibility of anybody shifting their position, that you have reached final views, each one of you, in relation to your own conscience, and it's unlikely that you would be prepared to further discuss it and consider whether or not you could meet the views of others?" may have been understood by some jurors as an invitation to dissentients to "shift their position" and to "meet the views of others" in the sense of surrendering to the majority view. This is especially so in light of his Honour's subsequent comments, such as "you have been there 8 hours, which is a long period of time" and "you have been there 8 hours which is a long period of time by any stretch of the imagination" and "it seems unfortunate that you are in a position where some of you are satisfied beyond reasonable doubt on one and some satisfied beyond reasonable doubt on another. It's not as if you can't reach a verdict at all".

21 The comment made by his Honour that if there was really no prospect of the jury reaching agreement, there was no point in sending the jury back again "and us staying and you staying into the late hours of the night", might have been understood by the jury to imply that if they could not reach a verdict quickly, then only two options remained: they could be discharged or they could be made to sit into the late hours of the night.

22 We refer also to the comment later made, when his Honour said:

"Is there any prospect, if you have regard to what I have said, of going back and trying to listen to each other's views, to perhaps reach a verdict? It is very important. I don't want to say too much about it except that you can see that the case has been going for 6 days. It's a very serious case."

23 There is a danger that this appeal to them would have been understood by the jury in a condemnatory sense and as importing an admonition that failure to reach a verdict would be wasteful of the considerable resources that had been expended on the case.

24 His Honour's statement, immediately following, that "We have reached a point where you people have had the opportunity to consider the evidence in great depth. It would be unfortunate if I have to discharge you and send you away, and we would have to start this trial again in a few months' time with another jury" and his references to it being "highly desirable" that they come to a verdict might have reinforced that impression and added to the pressure.

25 We have not overlooked those passages in his Honour's direction to which we referred earlier in this judgment in which he told the jury in effect that no juror should accept the views of another if he or she did not agree with it and no juror should feel that he or she was under any pressure to act against his or her own conscience. As Deane J observed in Black v The Queen at page 57, express instruction along those lines may have reduced the danger that one or some jurors might have felt pressured into falling into line with the majority but did not eliminate that danger.

26 When the jury told the Judge at 9.30 pm that they had not reached a verdict and that, in effect, they appeared to be deadlocked, we are of the opinion that the Judge should have called a halt, either by discharging them or retiring them for the night. At least some jurors, if not all of them, must have been beyond the limit of their capacity to engage in calm, sensible discussion by then, or, at any rate, there must have been a very real danger that this was so.

27 We consider therefore that the appellant's conviction must be set aside and a new trial ordered.

Roberts v The Queen [2002] WASCA 64

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Judgment (52 paragraphs)

Roberts v The Queen [2002] WASCA 64 (28 March 2002)

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