179 CLR 44
BR v R [2014] NSWCCA 4686 NSWLR 456
Cheatle v The Queen [1993] HCA 44177 CLR 541
Green v The Queen [1997] HCA 50191 CLR 334
Hunt v Regina [2011] NSWCCA 15281 NSWLR 181
Le v R [2012] NSWCCA 202
Masciatonio v The Queen [1995] HCA 67183 CLR 58
Papakosmas v The Queen [1999] HCA 37196 CLR 297
Pasoski v R [2014] NSWCCA 309
RJS v Regina [2007] NSWCCA 241173 A Crim R 100
Wu v The Queen [1999] HCA 52
Judgment (2 paragraphs)
[1]
Judgment
THE COURT:
Offences and sentence
On 12 June 2015 the appellant was found guilty of the murder of Amin Sthapit on 11 November 2013. This was after a jury trial presided over by Adams J which had commenced on 1 June. The verdict was a majority verdict of ten to one. The appellant had pleaded that he was not guilty of murder but guilty of manslaughter. That plea was not accepted by the Crown. The central issue in the trial was provocation. This required determination on the basis of the law as it stood before the 2014 amendments to s 23 of the Crimes Act 1900 (NSW).
On 14 September 2015 Adams J sentenced the appellant to imprisonment with a non-parole period of 12 years, commencing 11 November 2013 and expiring 10 November 2025, with a balance of term of 5 years expiring 10 November 2030.
The appellant appeals against his conviction on the following grounds:
The appellant's guilt was determined by a majority verdict of the jury, when the terms of s 55F(2)(b) of the Jury Act were not engaged, such that he did not have a trial according to law.
His Honour erred in directing the jury at about 12.40pm and/or about 4.20pm on 12 June 2015 that they may return a majority verdict if they could not reach unanimity.
His Honour erred in his supplementary directions to the jury regarding the objective limb of provocation: Summing Up 10 June page 19 (Appeal Book page 27).
His Honour erred in failing to address the requirements of section 53C of the Jury Act.
The grounds of appeal were amended to add ground 4 during the course of the appeal.
The Crown has appealed against the inadequacy of the sentence on the following grounds:
Ground 1 - The learned sentencing judge erred by finding that the relative objective seriousness of the murder offence is significantly less than the middle range when the only finding open on the evidence was that the offence was at least in the middle range.
Ground 2 - The learned sentencing judge erred by failing to properly take into account the offence on the Form 1.
Ground 3 - The learned sentencing judge erred by ameliorating the non-parole period as a consequence of a finding of "special circumstances" when no such finding was open on the evidence.
Ground 4 - The learned sentencing judge erred by imposing a sentence, the term and non-parole of which both are manifestly inadequate and "plainly unjust".
FACTUAL BACKGROUND
The Crown case
Because of the nature of the grounds of appeal, the Crown and defence cases may be summarised with greater brevity than might otherwise be necessary.
The deceased had for about four months before his death been having an affair with 28 year old Ms Geecy Rebucas, the long term partner of the appellant, who was about the same age. On 11 November 2013 the appellant entered the unit he shared with Ms Rebucas and saw his partner and the deceased engaged in sexual intercourse. He picked up a chef's knife that was next to the bed and ferociously stabbed the deceased multiple times to his body (fifteen). He was pushed out of the unit by Ms Rebucas, who also told him to leave. He did so. Later he handed himself into police and made admissions. Ambulance officers arrived and attempted to treat the deceased but he died at the scene.
Formal admissions by the appellant were tendered in the Crown case. They included an acknowledgment that the deceased died as the result of a number of knife wounds inflicted by him at around 11am on 11 November 2013, that he became aware Ms Rebucas could still be at the unit by using his mobile telephone to contact her mobile telephone and that the incident took place after the appellant had arrived at the address to find the deceased and Ms Rebucas naked together on the bed engaged in sexual intercourse.
The appellant and Ms Rebucas had commenced an intimate relationship in 2007. They were involved in a de facto relationship in the Philippines for four years before they decided to move to Australia in 2012. Ms Rebucas had extended family here and wanted to pursue her ambition of training and working as a chef. Shortly after their arrival in Australia, they moved into a small studio apartment in Darling Point. It had a bedroom with a basic kitchenette against one wall and a bathroom. The bed occupied most of the room. The apartment was close to where Ms Rebucas had gained work as a trainee at the Golden Sheaf Hotel at Double Bay.
It was no part of the Crown case that the appellant was a jealous or aggressive partner to Ms Rebucas. The evidence revealed him to be a decent and non-aggressive person. The relationship between Ms Rebucas and the appellant was a close and loving one and they had plans to marry. The appellant had no criminal history in Australia or in the Philippines.
There were occasions in the month before the death of the deceased when the appellant asked Ms Rebucas if she was okay and if she was happy. In that last month he asked her whether there was anyone else but he did not ask this often. Ms Rebucas denied that there was anything wrong or anybody else, but in fact was feeling less close to him during this period. The evidence indicated that the appellant's suspicion that something was wrong resulted in him installing software in his and Ms Rebucas' shared computer which made it possible for him to check Ms Rebucas' messages.
The appellant left for work at 7.30am on the morning of 11 November. Ms Rebucas had sent an email to the Ryde TAFE the previous evening to say that she would not attend the lecture the following morning but would be there in the afternoon. She made plans with the deceased for him to come to the apartment on 11 November. There was no evidence that the appellant was aware of this email or communication.
On 11 November the appellant used an application on his telephone to find the location of Ms Rebucas' iPhone. It showed that her iPhone was in the vicinity of their apartment. Ms Rebucas, however, had in text messages that morning told him that she was "at school".
CCTV footage showed the deceased arriving at 9.42am and being let into the apartment by Ms Rebucas. It showed the appellant arriving at 10.58am and leaving at 11.08am. CCTV showed that the appellant accessed the upper floor via the stairs, rather than by the lift.
Ms Rebucas gave evidence that she and the deceased were naked in bed and just finishing sexual intercourse when the key turned in the door. She saw the door partially open and the appellant put his hand in to release the chain. She said that with the chain on and the door partially open, a person on the outside of the door would see the bed straight away. As the appellant released the chain and entered, the deceased ran naked to the bathroom. The appellant kept saying "Why?" as he entered the unit and proceeded to attack the deceased.
The appellant immediately obtained a chef's knife, which had been sitting for a few months in a box on shelves next to the bed, and ran to where the deceased was. Ms Rebucas saw the appellant stab the deceased all over his body, including his trunk, when he was down on the ground on his back. Ms Rebucas pushed the appellant out of the unit. She told the appellant to go and he did.
Ambulance officers received notification to attend at 11.14am and first arrived at 11.23am. The deceased died while ambulance officers attended him at the scene. Ms Rebucas told one of the police officers who first attended the scene "my boyfriend came home and just went crazy". The blood stained knife remained at the scene.
Shortly thereafter the appellant surrendered himself to police at St Marys. He was observed by police to look very sad and remorseful. He said that he had stabbed someone and when asked questions about this he said it was "My partner's boyfriend because I caught her cheating with him".
The Crown case was that the appellant did not act as he did because of a loss of self-control. Some type of planning to injure whomever Ms Rebucas was with was said to be shown by virtue of his suspicions in the month before 11 November, his installation of the software on the night of 10 November and its use in the early hours of the morning of 11 November, his awareness by virtue of the text messages and the discovery of the location of Ms Rebucas' phone that she may have been lying as to her whereabouts and his use of the stairs rather than waiting for the lift to go to the unit, use of his key to gain entry and his wearing a hood on his jacket as he entered the unit block. The nature of the attack, the absence of attack on Ms Rebucas (although she was accidently cut) to the extent of deliberately putting the knife behind his back when she was near was said to further support this contention. That he was sufficiently composed to drive to St Marys was submitted to offer further support.
The defence case
The appellant gave evidence. His evidence does not need to be set out in any detail. He described his thoughts and actions on the morning of 11 November in a way which clearly raised the subjective limb of the partial defence of provocation. This evidence was addressed at [6] - [13] of his Honour's remarks on sentence (R v Tabalbag [2015] NSWSC 1354). It was set out in some detail in support of his Honour's finding (contrary to the Crown contention on sentence) that the appellant's act causing death was done as a result of loss of self control on his part induced by the conduct of the deceased affecting him.
THE CONVICTION APPEAL
The course of the jury deliberations
The trial was relatively short and the issues in the trial were in a narrow compass. On Monday, 1 June 2015 the appellant was arraigned and pleaded not guilty to murder, but guilty to manslaughter by reason of provocation. The Crown did not accept that plea and the trial proceeded on the charge of murder. The ultimate issue for the jury was that relied upon by the defence, i.e. whether the Crown had negatived provocation. The evidence in both the Crown and defence cases was complete in four days. The Crown case was closed on Wednesday 3 June and the defence case was closed on Thursday 4 June 2015.
Following the close of evidence on 4 June, the trial was adjourned (over a long weekend) to 9 June 2015. On 9 June both counsel made their final addresses and his Honour summed up to the jury. The Crown's final address was very short. The defence final address was somewhat longer but still comparatively brief for a murder trial. His Honour summed up without summarising the evidence. His Honour completed the summing up by directing the jury that their verdict should be unanimous and then invited the jury to retire to consider its verdict. Up to that stage during the summing up, his Honour had not referred to the possibility of the jury returning a majority verdict.
The jury retired to consider its verdict at 12.52pm on 9 June. Over 9 and 10 June, parts of the evidence were provided to the jury upon request. A note requesting further assistance as to the definition of "the minimum powers of self-control" of an ordinary person was answered. Late on the afternoon of 9 June, a note was received from the jury (MFI 13 - Jury Note 4) stating:
"Jury is at a stalemate at the moment and feeling tired and jaded. We would appreciate it if we could retire early today and re-adjourn tomorrow".
In response to MFI 13, his Honour reassured the jury by re-stating the need for them to give careful consideration to their verdict and by inviting the jury to leave for that day and to return afresh in the morning when they would "be able to move through into a unanimous decision".
On 10 June a number of notes were received from the jury. These were responded to and the jury continued its deliberations. The transcript records that the jury continued deliberating for the whole of 11 June, without further communication with the court. On 12 June the jury returned to continue its deliberations at 9.30am.
On the morning of 12 June, a note was forwarded by the jury stating:
"The jury is finding it difficult to come to a unanimous decision. Can you please provide us with some direction as to how juries move forward in this situation?" (MFI 16 - Jury Note 6)
The jury was brought into court at 11.05am to have the note addressed. The transcript indicates that his Honour had seen counsel in chambers after receipt of the note but before re-assembling the court. By that stage the jury had been deliberating for a total of 17 hours and 25 minutes.
In the absence of the jury, his Honour referred to the note and said:
"…I've discussed this note with counsel in chambers and it seems to me that the appropriate course is to give what is called a Black direction exhorting them to attempt once more to reach unanimity, but bearing in mind that the time has now made it possible for me to take a majority verdict, but I do not propose, and counsel agree with this course, to advise the jury of this power without attempting to reach a unanimous decision before I advise them of that right."
Each trial counsel agreed with the course proposed by his Honour.
In the course of that direction, his Honour said:
"Members of the jury, I have been informed that you are not presently able to reach a unanimous verdict. I have no doubt that you have been genuinely attempting to do so. I wish, however, to make some remarks that might clarify some issues. I do 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. The circumstances in which I may take a verdict which is not unanimous have not yet arisen and may not arise at all. You should understand that your verdict of guilty or not guilty must be unanimous. …"
After that direction, the jury retired to further consider its verdict at 11.11am. In the absence of the jury his Honour then said to counsel:
"HIS HONOUR: I mentioned, as indeed the trial book suggests, that the circumstances in which I may take a verdict [scil a majority verdict] have not yet arisen and may not arise. I thought it right to suggest there may be a way out, but to point out that it's not there yet. And of course I can't take a verdict by a majority unless the requisite majority is available.
CROWN PROSECUTOR: That's so, your Honour.
HIS HONOUR: Although the Bench Book says, if the possibility of a majority verdict has not yet been mentioned, it's not necessary to tell them, given that we are well over the eight hours, I thought that that was a reasonable compromise." (SU 25.11)
At 12.26pm, apparently without further communication from the jury, the court was re-assembled. In the presence of the jury his Honour invited the jury foreperson into the witness box. The following then occurred:
"HIS HONOUR: Madam foreperson, would you just come into the witness box, I need to ask you some questions.
JUROR … SWORN (12.27PM)
EXAMINATION BY HIS HONOUR:
Q. Do you happen to have your jury number there?
A. Yes.
Q. Would you just read it out for the record? (ID handed to his Honour).
A. I can't see it on there. Is it on there?
Q. No, it's not. We'll get it later, don't worry. However, I'm just going to you some formal questions. You're the foreperson of the jury?
A. I am.
Q. Something over an hour ago I sent you out after an indication that you were finding it difficult to reach unanimity?
A. Yes.
Q. The question I want to ask you is, have you made any headway since then?
A. Possibly.
Q. The next question I have is this. Do you think, if you had some more time, you think you might reach unanimity? Now I don't want to ask you that in here. What I want to do is send you out with the members of the jury just for five minutes to discuss whether you feel that unanimity is possible if more time is given?
A. Okay.
Q. And then I'll have you come back and I'll ask you that question.
A. Okay.
Q. All right?
A. Yes, thank you.
Q. If you would just go back to the jury box." (SU 25.36, 26.32)
By that stage, the jury had been deliberating for a total of 18 hours and 40 minutes.
The jury then returned to the court at 12.37pm after approximately eight minutes. The foreperson returned to the witness box and gave further evidence.
"HIS HONOUR: Madam foreperson, would you come forward please?
Q. You're still bound by your former oath.
A. Yep.
Q. After discussing it with the jury, has there been agreement of whether or not you're likely to be able to achieve unanimity?
A. We'd like to think we're likely to get there.
Q. Sorry?
A. We'll hopefully get there.
Q. So you'd like some more time?
A. Yes.
Q. I have no difficulty about giving you as much time as you want.
A. Okay.
Q. In the hope that you can reach unanimity. However, given the time that has now expired, if it becomes clear that you're unable to reach unanimity, I am able to take a verdict by 11 to 1?
A. Okay.
Q. But only by 11 to 1 that I can lawfully take such a verdict.
A. Okay.
Q. But you should attempt to reach unanimity. For obvious reasons it's better for the administration of justice if you can.
A. Okay.
Q. And I repeat what I've said before to you and the members of the jury. Listen to each other, take into account what everyone is saying, but again, you must consult your own conscience at the end of the day.
A. Okay.
Q. So I now send you out again and we'll wait to hear from you hopefully with a verdict?
A. Thank you.
Q. It's a matter for you, as I've said, if you find yourselves unable to reach unanimity, then I can take a verdict of 11 to 1.
A. Okay.
Q. Thank you.
A. Thank you." (SU 27.1)
The foreperson then withdrew from the witness box. At 12.41pm the jury returned to the jury room.
From the transcript there does not appear to have been any discussion with counsel about the fact that his Honour was going to give a majority verdict direction before his Honour gave it. After the direction had been provided and the jury sent out, his Honour did ask counsel whether there was any difficulty with what he had told the jury. Defence counsel said nothing and the Crown Prosecutor simply indicated that if a verdict were delivered, there would need to be clarification as to whether it was a unanimous or majority verdict.
The court did not reconvene until about 4pm. By that time a further note had been sent by the jury. His Honour said:
"HIS HONOUR: I received a note following note from the jury:
"One of the jury members have just informed the jury members that due to his religion of Buddhism he cannot make a verdict of murder. We believe therefore there has been a biased member of the jury."
Section 53B of the Jury Act provides for the discretion of the discharge of an individual juror. It would, I think, cover the present circumstances. I have raised this question with counsel in chambers who agree. They also agree with my proposed way of dealing with it. I propose to ask that juror to come into Court and I intend to ask him questions. The kind of questions I would ask, were he, at the beginning of the trial, to have sought to be excused from service on the jury. Do the parties agree? " (SU 28.25)
Having received the consent of counsel in court, his Honour then had the juror sworn and his Honour asked the juror a number of questions. It was clear from those questions that the juror had considerable difficulty in understanding English. Perhaps the most revealing question and answer was:
"Q. No, I'm just asking you about whether you have a religious problem?
A. Sorry, have to be careful, that's why. Say if - I can't say yes or no question point, but I can't say yes murder or manslaughter, but I can't make a decision. Can I say that?
HIS HONOUR: I think that's enough, gentlemen.
CROWN PROSECUTOR: Yes, your Honour.
HIS HONOUR: I take the view, and I don't think it's a matter which requires analysis that the juror, because of the potential effect of his religious views about which he appears to have difficulty in expressing, he is so affected in his ability to perform the functions as a juror that he should not continue to act as a juror.
What do you say, Mr Crown?
CROWN PROSECUTOR: I agree with that.
HIS HONOUR: Mr Wilson?
WILSON: I agree with that. He was endeavouring to explain it but he wasn't -
…
HIS HONOUR: And that is he obviously has a --
Q. You have a difficulty with English?
A. Yeah, that's it.
Q. Did you find it difficult to understand it when I was explaining the case to the jury?
A. I can say yes.
HIS HONOUR: That, I think, is an additional reason; it's unfortunate we didn't know it before.
Q. You're discharged from further duty on this jury. Thank you very much." (SU 30.36 - 31.26)
By this stage, the jury had been deliberating for a total of 22 hours and 7 minutes. The 11 remaining jurors returned to court and were provided with information about the fact of the juror's discharge. The following directions were then provided by his Honour:
"HIS HONOUR: Now, that means you are now a jury of eleven. I can take a verdict from a jury of eleven and what I said to you before about a majority still applies. In other words, you should attempt to be unanimous as eleven jurors, but if you are unable to be unanimous, I am able to take a majority verdict, but only a verdict of ten of you. So that is the adjustment which is made.
You asked a question about how long you can stay. The situation is, you can stay tonight as long as you feel it is useful to do so. I know sometimes you just get locked into a situation where you are making no progress, you feel that you might be able to make progress if you had further time and the Court just accepts that jurors need as much time as they need. But that you might find that you get to a stage where no further discussion is useful at that point and you want to come back. Unless of course you have decided that you are unable to be unanimous in which case you need to let me know.
If, at the same time, you cannot reach a verdict by majority - and I am not asking what the numbers are of course - then, in due course, if you are unable to reach even a majority, you will need to be discharged and this trial will need to go over for another occasion.
Now, remember what I said to you; listen to each other, consider the evidence, but you are bound by your own individual oaths to find a verdict according to the evidence so in the end it is your conscience that decides the matter.
Now, saying that, how long you take is a matter for you, we can return on Monday. It used to be that we could return on a weekend and on a Saturday, and when I was, in my early days, on the Bench, indeed, we did that where it was convenient to some jurors. But there are a whole lot of practical difficulties affecting the administration of the Court which means that a weekend is not a practical matter.
So I can bring you back on Monday if you feel that that is what you would prefer. But of course if you are able to usefully continue your discussions, it is best that you do so for as long as that is useful. So I will leave that with you.
If you go back to the jury room now and perhaps discuss tonight or Monday, what feels best for you to do, I will wait and then I will consider with counsel what is an appropriate course. But if you decide that, would you simply let me have a note about what you want to do and we will wait for that note." (SU 33.1 - 34.10)
The jury retired to further consider its verdict at 4.23pm and returned with a majority verdict of guilty of murder (10 - 1) at 4.31pm. By that stage, their deliberations had occupied 22 hours and 15 minutes. No objection was made by either counsel to the trial proceeding with an 11 member jury.
Grounds of Appeal 1 and 2
Submissions
The relevant section of the Jury Act 1977 (NSW) provides:
"55F Majority verdicts in criminal proceedings
(1) This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons.
(2) A majority verdict may be returned by a jury in criminal proceedings if:
(a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and
(b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation.
(3) In this section:
"majority verdict" means:
(a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or
(b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned.
"unanimous verdict" means a verdict agreed to by all members of the jury.
…"
The appellant submitted that his Honour had no power at about 12.40pm on 12 June 2013 to tell the jury that a verdict "by 11 to 1" could from then on be taken if they could not reach unanimity (the "majority verdict direction") as the terms of s 55F(2)(b) of the Jury Act were not satisfied.
The appellant submitted that the Court did not indicate, either at the time permission was given by the majority verdict direction or at any time up to the return of the majority verdict, that it was satisfied of the requisite unlikelihood in s 55F(2)(b). The appellant submitted that the Court could not have been so satisfied because the foreperson's evidence was to the contrary - that the jury was hopeful of reaching unanimity and would like more time to achieve it. The appellant submitted that as a result, an essential prerequisite for the acceptance of a majority verdict was not met.
The appellant submitted that there was nothing in the surrounding circumstances which could have placed the juror's evidence in a different light. There were only two notes indicating a difficulty in reaching unanimity. The first could be largely ignored since it was sent at the end of the first day and the second, taken at its highest, indicated a difficulty in reaching unanimity in relatively mild terms. The appellant noted that the jury had been deliberating for a little more than one hour after the provision of the Black Direction when the "majority verdict direction" was given.
The appellant submitted that s 55F(2)(b) imposed a mandatory requirement which was a prerequisite for the returning of a valid majority verdict (RJS v Regina [2007] NSWCCA 241; 173 A Crim R 100 at [18] - [26], AGW v Regina [2008] NSWCCA 81 at [27], Hunt v Regina [2011] NSWCCA 152; 81 NSWLR 181 at [28]). The appellant also drew attention to the facts in Pasoski v R [2014] NSWCCA 309 where a majority verdict was taken without any inquiry being made of a member of the jury.
In Pasoski Meagher JA (with whom Hidden J and RS Hulme AJ agreed) said:
"9 On the third day of their deliberations, the jury sent a note to the trial judge advising that they had reached a unanimous decision on five of the seven charges and that, because they were split on the remaining two charges, it was unlikely that a unanimous decision would be reached on the remaining charges in a timely manner, if at all. By that time the jury had been deliberating for at least ten hours. After discussion, the parties agreed in the trial judge's view that a Black direction urging the jury to continue to attempt to reach a unanimous verdict on those charges was not required (Black v The Queen [1993] HCA 71; 179 CLR 44), and that instead a majority verdict direction should be given. The trial judge then took the jury's unanimous guilty verdicts on five of the seven charges (counts 1, 2, 4, 5 and 6) and proceeded immediately to give a majority verdict direction. Her Honour did not, before doing so, examine any juror on oath and accordingly was not and could not have been satisfied in accordance with s 55F(2)(b).
10 The result was that one of the pre-conditions to the exercise of the power to permit the return of majority verdicts on those charges was not satisfied. It follows that the applicant did not receive a trial according to law in relation to counts 7 and 8 and that accordingly there was a miscarriage of justice requiring that the convictions in relation to them be quashed. …"
There was nothing in the transcript to indicate expressly that his Honour considered whether the jury had deliberated for a period of time that was reasonable, having regard to the nature and complexity of the criminal proceedings. However, when examining the foreperson at about 12.40pm on 12 June his Honour said to her that a majority verdict was possible "given the time that has now expired". The appellant was prepared to accept that such a statement in the context of the length of the deliberations to that point and the nature of the proceedings, implicitly indicated that the terms of s 55F(2)(a) had been considered and met.
The appellant submitted that the error in providing a majority verdict direction at about 12.40pm on 12 June was compounded by what transpired afterwards. The appellant submitted that ultimately it is the delivery of the verdict which is the subject of the ground of appeal not the terms of the direction. Because of that the appellant submitted that the whole of the circumstances up to the point of receipt of the verdict are relevant.
On that issue, the appellant relied upon the following further provisions of the Jury Act:
"19 Numbers of jurors in criminal proceedings
(1) Except as provided by section 22, in any criminal proceedings in the Supreme Court or the District Court that are to be tried by jury, the jury is to consist of:
(a) 12 persons …
…
22 Continuation of trial or inquest on death or discharge of juror
Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if:
(a) in the case of criminal proceedings, the number of its members:
(i) is not reduced below 10,
…
and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A.
…
53B Discretionary discharge of individual juror
The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if:
…
(c) a juror refuses to take part in the jury's deliberations, or
(d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.
53C Discretion to continue trial or coronial inquest or discharge whole jury
(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must:
(a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or
(b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors. …"
The appellant submitted that while he did not take issue with the decision to discharge the juror, s 53C required the Court to consider once it had discharged a juror in the course of a trial whether to continue the trial with a reduced number or discharge the whole jury. If the Court were of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, it was obliged to discharge the jury. If the court were of the opinion that there was no such risk, it was obliged to order that the trial continue with a reduced number of jurors as long as the numbers did not fall below the statutory minimum. The appellant submitted that the second distinct step of this two-stage process was not undertaken by his Honour (Wu v The Queen [1999] HCA 52; 199 CLR 99 per Gleeson CJ and Hayne J at [6], McHugh at [28] - [30], Kirby J at [67] and Callinan J at [103]).
The appellant submitted that unlike the trial judge in Le v R [2012] NSWCCA 202 his Honour did not say anything to indicate that he had made a positive decision to continue with eleven jurors. In Le this Court found that the reasons given by the trial judge were "barely satisfactory" but sufficient. Here, the appellant submitted, there were no reasons at all and the transcript gave no indication other than that his Honour was of the view that the trial should automatically continue with the remaining jurors.
The appellant submitted that a further difficulty arose because of the observations in BG v R [2012] NSWCCA 139. There Adamson J (with whom McClellan CJ at CL and McDougall J agreed) said that the determinative issue to be resolved in s 53C cases was not whether there were insufficient reasons but whether the continuation of the trial with a reduced number of jurors gave rise to a substantial risk of a miscarriage of justice. The appellant submitted that the problem in this case was that the court had an indication that the discharged juror was not prepared to convict him of murder. The appellant noted that in BG Adamson J had discussed the authorities concerning the importance of not continuing with a reduced number of jurors where the discharged juror was likely to have voted for an acquittal or at least not voted to convict. The appellant submitted that in this case it was apparent from the terms of the jury's note and to some extent from the evidence of the juror himself that the juror felt unable to decide on murder or manslaughter so that it was not likely for him to convict of murder.
By specific reference to this ground of appeal the appellant highlighted the fact that permission to deliver a majority verdict had already been given when the problem with the juror arose. This, the appellant submitted, exacerbated the miscarriage of justice brought about by the premature giving of the majority verdict direction. The appellant submitted that his Honour in accordance with s 53C should have done something along the lines of either questioning the foreperson again as to the chances of a unanimous verdict following the discharge of the juror or re-directing the jury and informing them that a verdict of eleven of them could still be accepted and that the circumstances had not arisen and may not arise where a verdict of less than eleven might be accepted. The appellant submitted that these were potential methods of dealing with the problem that arose at 4pm. The appellant submitted that if on the other hand, his Honour regarded that kind of exercise as artificial, that was an important factor to take into account in relation to the s 53C consideration and was relevant to ground 4 of the conviction appeal.
The Crown submitted that before the juror was discharged his Honour had found that all the pre-conditions of both limbs of s 55F(2) had been met and it was therefore open to his Honour to direct the jury that they should continue to strive for unanimity but failing that, might return a majority verdict. This was because of the very substantial effluxion of time and because it was implicit in the fact that his Honour gave the majority verdict direction when he did, that his Honour was satisfied to the necessary degree in accordance with s 55F(2)(b).
The Crown submitted that the provisions of s 55F require a practical application to circumstances that arise in trials. On that issue, the Crown relied upon that which Emmett JA (with whom Hall J agreed) said in BR v R [2014] NSWCCA 46; 86 NSWLR 456 at [19]:
"19 … It is not to be doubted, however, that the provisions of the Jury Act should be construed in a practical way, having regard to the context in which Parliament intended them to operate (see R v Rodriguez [1998] 2 VR 167 at 186)."
The Crown submitted that Emmett JA construed the first limb of s 55F(2) relating to how to calculate the minimum of 8 hours deliberation in this practical way by referring to the realities of how a jury trial works. The Crown submitted that the same reasoning or approach should be applied to s 55F(2)(b). The Crown noted that RS Hulme AJ in the same case similarly adopted a practical approach when interpreting the legislation and referred specifically to "practical considerations" in his interpretation of Parliament's intent.
The Crown submitted that the present case was distinguishable from the cases referred to by the appellant because there was no direction by his Honour at any time for the jury to cease its deliberations. The Crown submitted that on the contrary, his Honour had exhorted the jury to reach a unanimous verdict if they could while leaving open the option of a majority verdict. The Crown noted that his Honour did not refer at any stage to a specific time at which he could then accept a majority verdict but rather continued to stress that the jury had time available to continue its deliberations and to give a unanimous verdict if possible.
The Crown also relied upon r 4 of the Criminal Appeal Rules (NSW) in that at no time did defence counsel object to any of the directions given by his Honour to the jury. The Crown submitted that in relation to the issue of a miscarriage of justice, there was no application by counsel for the appellant at trial to the effect that his Honour was required to (or should) proceed in the manner for which the appellant now contends, i.e. by considering afresh the second limb of s 55F(2) and giving the jury remedial directions.
The Crown submitted that there is no additional requirement in any of the provisions of the Jury Act or otherwise that the trial judge must re-determine the requirements of s 55F(2) in the event that a juror is discharged at some stage after the majority verdict direction had otherwise been properly given. The Crown submitted that the 11 member jury remained the same "jury" which consisted entirely of all the remaining jurors who had been deliberating up to that stage of the proceedings.
The Crown submitted that there was no additional requirement after the discharge of the juror for his Honour to direct the remaining 11 member jury that consequent upon the discharge of the juror, their verdict once again had to be unanimous and that if appropriate, further directions as to a majority verdict would be given. The Crown submitted that there was no requirement for his Honour to consider afresh the issue of whether the 11 member jury would be unable to return a unanimous verdict before permitting that jury to return such a verdict. The Crown submitted that his Honour had appropriately directed the jury to continue to strive for unanimity and in the absence thereof that a 10-1 majority verdict could be returned.
Consideration
As the analysis in RJS v Regina makes clear, the issue of a majority verdict, although a creature of statute, does not involve a mere technicality. It involves an abrogation of an important right, i.e. the right to a unanimous verdict of a jury in a criminal trial. It is for that reason Spigelman CJ said:
"16 The Crown conceded that both these errors were made and, accordingly, that a miscarriage of justice had occurred and that the Appellant had not received a trial according to law. This concession was properly made. This ground of appeal should be upheld.
17 The introduction of a majority verdict system in New South Wales was a novelty in this jurisdiction, although it has existed in other Australian jurisdictions for some time. The reasons for the change need not be entered into.
18 The requirement of unanimity on a jury in a criminal case is a long-standing principle of a fundamental character. When Parliament modified this principle it did so by inserting two significant qualifications expressly requiring the attention of the trial judge. The first was that the trial judge had to make a judgment as to whether or not a "reasonable" period had elapsed in all of the circumstances of the trial. The second was to require a formal procedure for examining at least one juror, perhaps more, to satisfy the judge that it was unlikely that a unanimous verdict would be reached.
19 These two matters are essential pre-conditions which Parliament required to be met. Each precondition involves a judgment by the trial judge of a character with which this Court is reluctant to intervene. In the present case, however, on the materials before the Court, the trial judge failed to address either matter. Either would, in my opinion, be sufficient to vitiate the trial. In my opinion, a miscarriage of justice has occurred in the sense that the Appellant had not received a trial according to law."
Similarly, the High Court emphasised the importance of a unanimous verdict in a jury trial in Cheatle v The Queen [1993] HCA 44; 177 CLR 541. The Court described the requirement of unanimity as "one of the hallmarks of the common law institution of trial by jury". The Court said (at 552 - 553):
"Considerations of principle also support the conclusion that the requirement of unanimity is an essential feature of the trial by jury guaranteed by s. 80. Regardless of the origins of the requirement that the verdict of a criminal jury be unanimous, the common law's unwavering insistence upon the requirement since the fourteenth century has endowed it with the authority of settled doctrine. Indeed, the requirement constitutes one of the hallmarks of the common law institution of criminal trial by jury in that there is a significant difference in nature between a deliberative process in which a verdict can be returned only if consensus or agreement is reached by all jurors and a process in which a specified number of jurors can override any dissent and return a majority verdict. The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward into any ultimate verdict. A majority verdict, on the other hand, is analogous to an electoral process in that jurors cast their votes relying on their individual convictions. The necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each of the jurors will be heard and discussed. Thereby, it reduces the danger of "hasty and unjust verdicts". In contrast, and though a minimum time might be required to have elapsed before a majority verdict may be returned, such a verdict dispenses with consensus and involves the overriding of the views of the dissenting minority."
In this case what has not been disputed by the Crown is that at no time did his Honour in the terms of the Jury Act say that he was satisfied that it was unlikely that the jurors would reach a unanimous verdict after further deliberation. Not only does the Jury Act require that state of satisfaction in the trial judge but it needs to have been arrived at "after examination on oath of one or more of the jurors".
Here such an examination of a juror took place. It could not, however, be said that the response from the juror supported the proposition that it was unlikely that the jurors would reach a unanimous verdict after further deliberation. On the contrary the juror responded - "We'd like to think we're likely to get there" and "We'll hopefully get there". That is how his Honour clearly interpreted the responses when he asked whether the jury would like more time.
The requirement in s 55F(2)(b) for evidence to be taken from one or more jurors is not a mere procedural step. It is clear from the context that it is only if the examination on oath produces a result that is consistent with the jury being unlikely to reach a unanimous verdict after further deliberation, that the next step can be taken, i.e. of giving a majority verdict direction. In this case the preliminary step did not occur. His Honour could not have been satisfied from the responses of the juror that it was unlikely that the jury would reach a unanimous verdict after further deliberation. It follows that the requirement of s 55F(2)(b) was not met.
This is not to say that it may not be appropriate for a trial judge to take other matters into account, as well as the sworn evidence of a juror, in forming the satisfaction required by s 55F(2)(b). Such considerations could be the length of the deliberation and the nature of the communications from the jury during that time. However, the legislation clearly contemplates that it will be because of the answers pointing to the unlikelihood of unanimity given by the juror or jurors on oath that the trial judge reaches the relevant level of satisfaction not by the mere fact that there has been evidence on oath from one or more jurors on a different topic or pointing to the potential likelihood of unanimity as is the case here.
Moreover, the form in which his Honour expressed the majority verdict direction highlights the defect in the process followed. The Jury Act requires that the necessary state of satisfaction be experienced by the trial judge. His Honour was not entitled to delegate to the jury the requirement to be so satisfied. That was a conclusion which had to be arrived at by his Honour. Yet the effect of directing the jury in terms that "if it becomes clear that you are unable to reach unanimity" conferred on the jury a decision making process which should be carried out by the trial judge.
It follows that grounds 1 and 2 of the conviction appeal have been made out. Rule 4 of the Criminal Appeal Rules does not assist the Crown. As the authorities make clear, a failure to comply with s 55F(2) involves a miscarriage of justice in that the appellant has not had a trial as required by law.
Rule 4 states that the leave of the court is required before a direction, omission to direct or decision as to the admission or rejection of evidence given by a trial judge is allowed as a ground for appeal when no objection was taken at the trial. Grounds 1 and 2 do not come within such a description. In any event, in none of the cases where s 55F(2) has been considered has there been any recourse to r 4. Alternatively, leave would be readily granted because of the risk of a miscarriage of justice (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72]).
Similarly, there is no room for the operation of the proviso because of the nature of the error. Failure by the trial judge to adhere strictly to the statutory prerequisite in s 55F(2)(b) breached the appellant's fundamental common law right to a unanimous verdict. In Hunt v Regina the court noted:
"5 … In its written submissions at para 54, the Crown stated that in all the circumstances, this Court might consider that Grounds 1, 2, 3 and 4 had been established with the consequence that there had been a miscarriage of justice in that the appellant had not had a trial according to law. The Crown further conceded at para 55 of its written submissions that the proviso to s6(1) of the Criminal Appeal Act 1912 was not available in a case such as the present where the proceedings had so far departed as to have ceased to be a trial according to law, as a finding in such circumstances that there had been no substantial miscarriage of justice was not open: AK v State of Western Australia [2008] HCA 8; (2008) 232 CLR 438; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358. …"
That proposition and those authorities are equally applicable here.
In BR v R RS Hulme AJ (with whom Hall J agreed; Emmett JA stating no need to decide) said in obiter remarks:
"51 … I take the view that compliance with the eight hour period prescribed in s 55F(2) is mandatory if a majority verdict is to stand and that non-compliance means that a substantial miscarriage of justice has occurred in the sense that the Appellant has not received a trial according to law. In those circumstances s 6(1) of the Criminal Appeal Act 1912 cannot be used to save the verdict."
In making that observation, RS Hulme AJ cited RJS v Regina at [19]; AGW v Regina at [23] and Hunt v Regina at [35] - [36].
There was no issue that should these grounds of appeal be upheld, there should be an order for a new trial.
Ground 3
The appellant acknowledged that because no objection had been taken at trial, leave was required pursuant to r 4 of the Criminal Appeal Rules for this ground to be relied on. There is, however, no need to analyse this ground of appeal in any detail because of the appellant's success in making out grounds 1 and 2 of the appeal.
Part of a jury note forwarded on the afternoon of 10 June (second day of deliberations) was:
"The jury is struggling with the definition of "the minimum powers of self-control" of an ordinary person. Can we please have some detailed clarification, if possible."
His Honour answered the question as follows:
"Let me put it in this way. It is the powers of self-control that you would expect the ordinary person to exercise in the ordinary strains and exigencies of life. An example, and it is only an example, someone cuts in front of you in the traffic. You might swear, you might use other rude language but you do not expect to get out and physically attack him.
So dealing with the ordinary exigencies of life, the ordinary problems that we all have, a person is expected to have those minimum standards of self-control. Of course, this was far from what you - a matter for you - but it is not what one would think is an ordinary exigency of life in the circumstances to find what he confronted. It might have been different, for example, had she told him about it. That would not have, you might think, all the emotional impact of actually seeing what he saw. But those are matters for you to judge. I am simply giving you ways in which you might approach that question.
So "the minimum powers of self-control" of an ordinary person are those powers of self-control that you would expect someone to exercise when faced with the ordinary problems of life." (SU 19.4)
The appellant submitted that although this direction was provided with the agreement of counsel (SU 17.42), it was an inadequate answer to the jury's question and additionally carried the risk of diverting the jury's attention to judging what he did rather than contemplating what an ordinary person could intend. The appellant submitted that the further direction provided by his Honour in response to the jury question, was potentially helpful to his case but required considerably more to be said to properly convey the relevant law. The appellant submitted that the concept of minimum standards of self-control is not really the test for the objective limb of provocation, i.e. the policy of ensuring minimum standards of self-control as a reason for having an objective limb to the test.
The appellant referred to the observation of Brennan J in Green v The Queen [1997] HCA 50; 191 CLR 334 at 340 where his Honour said:
"Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury's consideration any extra-ordinary response by the accused to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder."
The appellant also referred to Masciatonio v The Queen [1995] HCA 67; 183 CLR 58 at 67 where Brennan CJ, Deane, Dawson and Gaudron JJ said:
"However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions."
Consideration
The jury's question and his Honour's response related to the eighth proposition in the written directions provided by his Honour to the jury. The eighth proposition was in the following terms:
"(8) If however, the answer is "yes", yes, it is reasonably possible that it actually caused him to lose his self-control:
you must turn to the second question which is:
Could or might the conduct of Mr Sthapit have induced an ordinary person in the position of Mr Tabalbag to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm on him? An "ordinary person" is simply one who has the minimum powers of self-control expected of an ordinary citizen who is sober and of the same age and consequent level of maturity as Mr Tabalbag. When one speaks of the effect of provocation on an ordinary person in his position, that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as he has.
Putting the same question another way:
Is it reasonably possible that the conduct of Mr Sthapit could or might have induced an ordinary person in the position of Mr Tabalbag to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm on him?"
Considered in the context of all of the directions that were given in relation to provocation, i.e. not only the written directions but also the oral directions, his Honour's response to the jury question could not have resulted in the jury failing to properly apply the objective test component for provocation provided in s 23(2)(b) of the Crimes Act.
Alternatively, to the extent that his Honour's further directions were inadequate and involved a risk that the jury might be deflected from a consideration of the potential for the ordinary person to have lost self-control to the potential for the ordinary person to have acted in a particular way as a result of that loss of self-control, his Honour's directions provided a number of very substantial advantages to the appellant which would have been removed if other directions to which the appellant invites attention, had also been given.
The example selected by his Honour and the directions that were given were apt to lead the jury inexorably to the conclusion that the situation confronting the appellant had not been (as his Honour had directed) "an ordinary exigency of life" for which the ordinary person was expected to have ordinary powers of self-control. The contrast created by the road traffic example and the scene confronting the appellant could not have been more striking or more likely to result in the jury concluding that the appellant was confronted by an extraordinary situation.
Further, the observation that the ordinary person would not be expected to resort to violence in the face of the traffic incident, inevitably raised and left open the possibility that violence as a result of a relevant loss of self-control might well be within the range of responses by a "ordinary person" confronted with the facts of this case. It follows that the contrast between the circumstances of this case and those of the example given by his Honour were apt to compel the jury to conclude that they could not be satisfied beyond reasonable doubt that an ordinary person might not have lost their self-control if confronted by the situation in which the appellant had found himself.
It further follows that to the extent that the example was inapt and/or the directions focused attention upon the nature of the conduct in response to the loss of self-control, rather than upon the question of whether there could be a loss of self-control per se, those directions were very favourable to the applicant. Accordingly, even if there were error in his Honour's directions on this point (which is by no means clear), the directions were very much to the benefit of the appellant. For those reasons, the Court is not prepared to grant leave to the appellant under rule 4 to rely upon ground 3.
Ground 4
After some preliminary discussion at the commencement of the appeal, the appellant was granted leave to rely upon this ground. Understandably, the Crown had not directed any of its written submissions directly to the issues raised by this ground. In those circumstances, because the appellant has achieved success in relation to grounds 1 and 2, the Court is of the opinion that no useful purpose would be served by any further analysis of ground 4.
APPEAL AGAINST SENTENCE
Similarly, because of the appellant's success in relation to grounds 1 and 2 and the strong likelihood if not inevitability of a re-trial, no useful purpose would be served by the Court hearing the issues raised by those grounds challenging the adequacy of the sentence imposed on the appellant. To do so would be to provide something akin to an advisory opinion which this Court has always eschewed. Accordingly, the Court declines to deal with the Crown appeal against sentence.
The orders of the Court are as follows:
1. In the conviction appeal, grounds 1 and 2 are upheld and the appeal is allowed.
2. Leave to rely upon ground 3 in the conviction appeal is refused.
3. Ground 4 in the conviction appeal is not considered.
4. The Crown appeal against sentence is not considered.
5. The appellant's conviction for the murder of Amin Sthapit is quashed.
6. A new trial is to be ordered.
[2]
Amendments
11 November 2016 - Publication restriction removed - judgment published.
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Decision last updated: 11 November 2016