Criminal Law - Jurisdiction, practice and procedure - Verdict - Generally - Mistake by foreperson in giving verdict - Power to vary or correct - Character of court records.

R v Cefia (1979) 21 SASR 179; Bruce and Curtis v R [1971] Tas SR 22; Phillips v The Queen (No 2) [1971] Tas SR 360, referred to.

State of Tasmania: Director of Public Prosecutions

Judgment Number: [2004] TASSC 151

1 The issue for my determination arises in the following circumstances:

* The accused was tried by a jury on four counts of maintaining a sexual relationship with a young person under the age of 17 years.

* When delivering their verdict, the jurors by their foreperson, said that all twelve of them were agreed that the accused was not guilty on the first count and all twelve of them were agreed that the accused was guilty on counts 2, 3 and 4. As each count related to a different complainant, I asked the jury to confirm that the accused was acquitted by a unanimous verdict on count 1, which related to a complainant I named, and that he was convicted by a unanimous verdict on each of the other three counts. The foreperson said that this was correct.

* Following the announcement of the verdict, I discharged the jury and the jurors left the jury box as the sentencing hearing began.

* Shortly into the sentencing hearing, I was informed by a court officer that some jurors had indicated that the foreperson's statement that the jury had unanimously found the accused not guilty on count 1 was erroneous. I thereupon directed that all members of the jury still present at the court be returned to the jury box. Eleven of the twelve jurors, including the foreperson, presented themselves. The foreperson in substance said that as to count 1 he had made an error when announcing the result and he should have informed the court that the jury was unable to reach a verdict on that count. The ten other jurors who had returned to the jury box confirmed that this error had occurred.

2 When the court was informed of this error, the accused was still before the court and the court had not acted on the error, insofar as the accused had not been informed that he was discharged on count 1 and, more significantly, the formal record of the court of the result of the trial had not been completed. In this State for many years, the formal record of the Supreme Court of the result of a trial was contained in a Calendar completed in accordance with the Criminal Rules, O IX, at the end of each session of the court. A judge was not functus officio for the purposes of correcting or vacating a sentence until the signed Calendar was forwarded to the Controller of Prisons, Bruce and Curtis v R [1971] Tas SR 22, Burbury CJ at 31 and Phillips v The Queen (No 2) [1971] Tas SR 360, Crawford J at 368. Amendments made to O IX by the Criminal Amendment Rules 2001 removed the requirement for a Calendar. Now the formal record of the result of a trial and of the sentence (if any) imposed by the court is the entry of the same on the back of the indictment or duly certified complaint, signed by the judge, O IX, r3(1)(a) and (3)(b). Until this entry of the result of the accused's trial has been completed, the court is not functus officio. In this context, I mention that at least since the enactment of the Sentencing Act 1997, a jury's guilty verdict has not automatically resulted in a person being convicted. Pursuant to that Act, s7, upon a person being found guilty, it is open to the court to sentence the person with or without recording a conviction.

3 The issue for my determination is whether the court, having been informed of the mistake in relation to the announcement of the jury's verdict on count 1, should record that verdict even though it is known to be erroneous. In R v Cefia (1979) 21 SASR 179, the facts were that the foreman of a jury, when called upon to give the verdict of a jury, said "not guilty". The trial judge discharged the jury and the prisoner, and some of the members of the jury left the courtroom but were still in the court building. As the judge was leaving the bench, an officer of the court, who had been so informed by one of the jury, called out that there had been a mistake. The trial judge recalled the jury, and, upon questioning, the foreman and each member of the jury stated that the verdict reached had been "guilty" and that the foreman had said "not guilty" in error. The judge accepted the verdict of "guilty" and sentenced the prisoner. The prisoner appealed upon the ground that the verdict as originally announced should have remained the verdict. King CJ and Sangster J, agreed with by Hogarth J, said at 173 - 175:

"In our opinion the case is covered by the principle that where a jury has in fact agreed upon its verdict but by error has communicated not that verdict but something else, that jury - acting unanimously - may correct that error and correctly communicate the verdict actually agreed upon.

Wigmore on Evidence, 3rd ed Vol VIII par 2355: see particularly sub-par (2) at pp 707 - 708:

'It has occasionally been said that this correction must be claimed before the jury are discharged; but this seems unsound, because such errors are seldom ascertained until after the jury have separated and conversed out of court; and if the error is satisfactorily established, there can hardly be any fixed time to limit its correction. Subject to this qualification, it is universally conceded that a unanimous error of the jury in delivering the verdict as already unanimously agreed on in the jury-room may be shown for the purpose of correcting it to correspond, or, when this is not safely to be done, of ordering a new trial.'

Baker v Miles (1731) Cooke CP 66 (125 ER 961) (a civil case where a new trial was ordered upon affidavits of eleven of the jury as to the mistake in the foreman's announcement of the verdict).

Cogan v Ebden (1757) 2 Kenyon 24 [1825] EngR 59; (96 ER 1094) (a civil case where a new trial was ordered upon affidavits of eight of the jury as to the foreman's mistake).

R v Parkin (1824) 1 Moody 45 (168 ER 1179) (a criminal trial where the jury's verdict was equivocal, but upon further question and answer the Judge said he took the answer as an acquittal: some of the jurors said they differed: the Judge sent them out again and they returned with a verdict of 'guilty': the conviction was upheld on appeal).

Reg v Vodden [1853] EngR 45; (1853) Dears 229 (169 ER 706) (a criminal trial where the jury returned a verdict of 'not guilty' which was entered in the minutes of the clerk; the prisoner was discharged out of the dock but members of the jury interfered and said the verdict was 'guilty': the prisoner was brought back and the jury was asked again for its verdict - they all said 'guilty'. On appeal (Jervis CJ, Pollock CB, Parke B, Coleridge J, and Williams J) the conviction was upheld. Parke B said 'a wrong verdict was taken in the first instance and corrected on the spot'. Pollock B said:

'We do not think the Court is called upon to say at what interval of time a correction should be made. All we do is to say that in the present case the interval was not too long. Nothing has been done but what daily takes place in the ordinary transactions of life; namely, a mistake is corrected within a reasonable time, and on the very spot on which it was made.

We are all of opinion that what took place was right. (1853) Dears, at p 231 (16p ER, at p 707).'

McCulloch v Ottawa Transportation Commission [1954] 2 DLR 443 (a civil case where the jury brought in answers to specific questions involving proportions of liability: the jury was discharged but remained in the courtroom: during discussion between trial Judge and counsel a juror, through a constable, drew attention to error in the verdict - a transposition of the proportions: the trial Judge adhered to the original (erroneous) announcement: the Court of Appeal received affidavits of all twelve jurors, allowed the appeal and (apparently) entered judgment in accordance with the actual verdict. The Court relied on par 2355 of Wigmore, above).

Dardarian v Schneider [1956] 3 DLR 292 (a civil case similar to, and applying, McCulloch's case [1954] 2 DLR 443.)

Reg v Eyers (1978) 19 SASR 244 (a criminal trial where the foreman said 'not guilty' and almost immediately - certainly before the verdict could be said to have been taken - said 'Sorry, guilty': the questions were put again and a verdict of 'guilty' accepted. On appeal the Court said -

'It is clear on the authorities that a jury has the right to correct its verdict at any time until it is discharged; and as the transcript shows it had not been discharged when the foreman attempted to correct his original statement of "not guilty". (1978) 19 SASR, at p 246.'

We take the passage quoted from Reg v Eyers (1978) 19 SASR 244 to mean that the correction could be made before the jury was discharged but not to mean that the correction could not be made thereafter.

Counsel for the appellant contended that there were two (alternative) stages beyond which a correction cannot be made: 1 the adjournment of the Court; 2 (alternatively) the discharge of the jury. He relied on -

Reg v Eyers (1978) 19 SASR 244, on which we have already expressed our view; R v Atkinson and Clutton (1907) 7 SR (NSW) 713; R v Hunt (1918) 13 Cr App R 155; Cunningham v Ryan [1919] HCA 75; (1919) 27 CLR 294; R v Roscoe and Holland [1922] NZLR 405; R v Hawkes (1931) 22 Cr App R 172; R v Moore (1931) 23 Cr App R 138; Reg v Hill [1954] NZLR 117; Reg v Sorby [1976] 2 NZLR 516, all of which were cases involving clarification, completion or alteration of verdicts actually arrived at and correctly communicated and to which quite different principles are applicable; and Ellis v Deheer [1922] 2 KB 113, where the Court of Appeal, in a civil case, on the affidavits of a number of the jurors that the foreman's announcement did not accord with the actual verdict arrived at, ordered a new trial. None of these authorities either require, or lend weight to, the contention that the foreman's answer 'not guilty' to the question by the Registrar, 'Do you find the accused guilty or not guilty?', should stand notwithstanding that those words did not in fact represent the verdict of the jury, or that adjournment of the court or discharge of the jury are relevant.

We are not called upon to decide whether there is a time limit, or a limit by reference to the stage of the proceedings, after which a correction may not be made. It is sufficient for us to decide, as we do, that in the case before us the correction was still available when it was made. We note that in some of the authorities already referred to where a correction was made, the erroneous statement by the foreman had been accepted as the verdict of the jury, the accused had been released, a note had been made of the 'verdict' and the jury had been discharged but had not dispersed. In other of the authorities where the correction was not made but a new trial was ordered more time had elapsed and, in particular, the jury had dispersed. It may be - although we do not decide - that there is a distinction as to the time at which the erroneous statement of the verdict can be corrected by the substitution of the actual verdict and the time at which the false 'verdict' may be expunged and a new trial ordered. There is certainly authority supporting the division of the problem into two parts - expunging the false 'verdict', and choosing the consequences ie correction or new trial. It is not necessary, however, for us to decide, and we express no opinion, as to what the position would have been in this case if the jury had separated and left the precincts of the court before the error was disclosed. We also note that the 'record' of a conviction in the Supreme Court (and, it may well be, in the District Criminal Courts) is not the endorsement by the Clerk of Arraigns, or other officer, on the back of the information of the proceedings at, or the result of, the trial, nor any note made by such officer or by the judge in any note book, but the formal report signed by the trial Judge at the end of the sittings after the last prisoner in that sittings has been dealt with (Reg v Nam and Sainsbury [1968] SASR 107)."

4 In my respectful view, recognition that the court of trial or a court of appeal may act on evidence that the announcement of a jury's verdict was erroneous need not be confined to a situation where all members of the jury confirm the error. However, where it is contended that the error has been rectified by the jury, that is, before the jury became functus officio, all members of the jury must confirm the error, R v Loumoli [1995] 2 NZLR 656. What is of fundamental importance is that the court is satisfied of the error and where the error is to be dealt with by the court of trial it must not be functus officio. In this case, the error has been confirmed by eleven of the twelve members of the jury. I have no hesitation in accepting that the error occurred and it has not been suggested by either counsel that I should conclude otherwise. To my mind it would be wrong for the court to ignore the error. I note that in Baker v Miles (supra), Cogan v Ebden (supra) and Ellis v Deheer (supra), the court of appeal acted upon evidence from less than the full compliment of jurors.

5 The distinction I have referred to between the correction of an error by the jury before it is functus officio and the correction of an error by the court of trial upon receiving evidence of the error is, in my view, reflected in the Code, s383(5), that provides:

"(5) The jury may at any time before they leave the box correct any verdict which they have given, and may reconsider their verdict at the request of the court, but they are not bound to do so."

6 Arguably the obverse of the expression that the "jury may at any time before they leave the box correct any verdict which they have given" is an implicit prohibition on any error being corrected after the jury has left the box. I do not construe s383(5) in this way. I read it as a permissive provision that authorises a jury, whilst still in the jury box albeit after being discharged, to correct an error in the verdict given. In the absence of s383(5), it would be open to argue that the jury was functus officio if the jury had been discharged even though the court was informed of the jury's error before any members of the jury had left the jury box. There are conflicting authorities on when a jury is functus officio. In R v Atkinson (1907) 7 SR (NSW) 713 and R v Donovan's Application [1957] VR 33, it was held that a jury was functus officio once it had been discharged. Contrary authorities include R v Cefia (supra) and some of the decisions referred to in the passage quoted from that case. In my view s383(5) does not have the effect of barring the court of trial from receiving evidence of an error in the announcement of a verdict after the jury, as distinct from the court, is functus officio. The difference is that before a jury becomes functus officio the jury can, as a right, correct the verdict, but once functus officio the members of the jury have no standing to do so. When the jury is functus officio, upon evidence of an error in the announcement of the jury's verdict being placed before the court, it is for the court to determine whether or not it accepts and acts on the evidence. I should emphasise that I am referring here to evidence of an error in the announcement of the jury's verdict, as distinct from evidence of what took place in the jury room. Evidence of the latter is not admissible. The law will not permit an enquiry into what took place in the course of a jury's deliberations, Sullivan v R [1963] Tas SR 165 and Burnside v R [1963] Tas SR 174. See also Bedelph v R [1979] Tas R 249.

7 In this case, eleven of the twelve jurors having confirmed that the announcement of their verdict on count 1 was an error, I have no hesitation in concluding that the error occurred and that the error should be addressed. The particulars of the result of the trial to be endorsed on the indictment will record that the jury was unable to reach a verdict in relation to count 1 and an order that the accused be remanded for retrial on that count.