Criminal Trial Courts Bench Book — Return of the jury

Have you all agreed upon your verdict/s? Yes or no?

(If no) Is there anything I can do that would assist you to reach a unanimous verdict/s, for example repeating or further explaining any direction of law, reminding you of any of the evidence (if the jury has not got a copy of the trial transcript)? Yes or no?

(If no) In your opinion is it likely the jury would reach a unanimous verdict/s if given more time to deliberate? Yes or no?

A trial judge should be careful not to undermine the effect of a direction in accordance with Black v The Queen (1993) 179 CLR 44 direction by making reference to a specific time when a majority verdict can be taken: RJS v R [2007] NSWCCA 241 at [22]; Ingham v R [2011] NSWCCA 88 at [84] (d)–(e). The above direction is in similar terms to that endorsed in R v Muto [1996] 1 VR 336 at 341–344, (affirmed in R v Di Mauro (2001) 3 VR 62 at [13]–[14]) and Ingham v R at [85] (b). No enquiry of the jury as to whether it is likely a majority verdict will be reached (for the purpose of discharge under s 56(2)) should be made by the judge until such time as a majority verdict is capable of being taken: Hunt v R [2011] NSWCCA 152 at [25], (see further Notes at [8-100]). The court said in Hunt v R at [33]:

The jury should be encouraged to continue deliberations without being advised that the time for accepting a majority verdict is imminent: R v VST [2003] VSCA 35 at [38]; RJS v R at [23].

that the jury has deliberated for a period of time that the court considers reasonable having regard to the nature and complexity of the proceedings (not less than eight hours), and

that the court is satisfied, after examination on oath of one or more jurors, that the jury is unlikely to reach a unanimous verdict.

In the absence of the jury, hear submissions, make a determination and provide reasons as to whether the jurors have deliberated for a period of time (not less than 8 hours) that is reasonable having regard to the nature and complexity of the trial (s 55F(2)(a)).

Have the jury return to the court room whereupon the judge will examine one or more jurors (usually just the foreperson) on oath/affirmation to confirm the jury are unable to reach a unanimous verdict and is unlikely to do so with further deliberation. (It is prudent to preface the question by indicating that no disclosure should be made of the jury’s deliberation or of voting numbers.)

Declare that the court is satisfied of the fact the jury is unlikely to reach a unanimous verdict after further deliberation (s 55F(2)(b)).

This direction does not obviate the need to first give the jury a perseverance direction or Black v The Queen (1993) 179 CLR 44 at 50 direction (as set out above in [8-070]) without reference to the fact or the circumstances in which the jury may return a majority verdict. In Hanna v R (2008) NSWLR 390, defence counsel asked for a Black direction without reference to the possibility of a majority verdict (see [44]) after the foreperson indicated the jury was having difficulty agreeing. The judge rejected the request and gave the jury the majority verdict direction above without making clear findings concerning the two “essential preconditions” under s 55F(2) Jury Act 1977: at [7], [45].

New South Wales legislation is silent as to how the minimum eight-hour period is to be calculated. In the absence of a statutory definition for “deliberation” two considerations may guide the application of the term: (i) whether the jury is sequestered in the same location and (ii) whether the jury is able to conduct discussions about the case at hand: BR v R (2014) 86 NSWLR 456 at [19]–[20]. Discrete and substantial breaks from the performance of the jury’s task such as retirement overnight, taking lunch away from the jury room and sitting in court listening to further directions should not be included in the eight-hour calculation: BR v R at [21]–[22], [41], [44]. There were disparate views in BR v R as to whether travel time between the jury room and the courtroom should be included: [23]–[24]; cf [45], [36]. Nor could it be said with certainty whether deliberations ceased or continued, and for how long, while lunch breaks were taken within the jury room. Consequently, either the whole of the break or none of it should be included: [42], see also [23], [31]. Because it is not possible to inquire into what actually occurs in the privacy of the jury room, it would be prudent to avoid acting immediately after eight hours have elapsed if there is “any ambiguity about any component of the minimum period”: BR v R at [24]; AGW v R [2008] NSWCCA 81 at [24]–[25]. The court should refrain from taking a majority verdict soon after the estimated expiry of eight hours where there is any ambiguity about a component part of that minimum span of time: AGW v R at [23]; Hunt v R at [24]; BR v R at [24], [47]. It is useful to keep a running record of deliberation times with the court officer advising the judge’s associate of commencement and conclusion times for each day’s deliberations if the jury are not brought into court at those times; subtracting a generous allowance for periods during each day in which the jury might not have been deliberating.

The Victorian practice (endorsed in R v VST (2003) 6 VR 569) of recalling the jury once the minimum statutory period had elapsed to see if the jury had reached a unanimous verdict was questioned in RJS v R [2007] NSWCCA 241 at [24]. Spigelman CJ said at [26]:

In R v Muto [1996] 1 VR 336 at 343, it was contemplated that a judge who considers that the time for taking a majority verdict has arrived will nevertheless tell the jury that it is still preferable that they should endeavour to reach a unanimous verdict but, if they cannot all agree, a majority verdict may be taken. This position was affirmed in R v Di Mauro (2001) 3 VR 62 at [6]–[7].

In AB v R [2023] NSWCCA 165 the trial judge did not obtain explicit evidence from the jury foreperson as to the second precondition in s 55F(2)(b). Beech-Jones CJ at CL said at [60] it would have been preferable if the foreperson had been asked a specific question directed to the likelihood or unlikelihood of the jury reaching a unanimous verdict if further deliberations took place, but in the circumstances of the particular case it was open to the judge to be satisfied that the requirement of s 55F(2)(b) was met. Submissions on whether a reasonable time has expired should be invited and the judge’s reasons must make explicit the factors considered and how the decision it was reasonable to invite a majority verdict was reached. The reasons do not need to be complex or lengthy, but require clarity: KE v R at [98]; RJS v R at [25].

The terms of s 56 Jury Act 1977 with respect to the discharge of a jury in cases where a majority verdict is available (juries of 11 or 12 persons) should be noted:

No enquiry of the jury for the purpose of s 56(2) (that is, examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict under s 55F) should be made until the point had been reached at which a majority verdict is capable of being taken: Hunt v R [2011] NSWCCA 152 at [26]. See the observations in O’Brien v R [2019] NSWCCA 187 at [53]–[64], concerning the interplay between s 56 and s 55F(2), and the complications that may arise in cases where the jury has indicated an inability to reach a verdict before the eight hour period required by s 55F(2) has expired.

In Haile v R [2022] NSWCCA 71, the trial judge purported to give a Black direction before the preconditions in s 55F(2) of the Jury Act for receiving a majority verdict were satisfied. It was held (at [143], [202]–[206]) that the trial judge’s omission of the statement, “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,” was erroneous. The suggested directions above (at [8-070] and [8-090]) include a reference to the power to discharge the jury (as required by Black) but in a modified form to avoid misstatement as to when this power may be exercised. The modification has been included to take account of s 56 of the Jury Act (the effect of which was not addressed in Haile v R).

Section 68B Jury Act 1977 provides it is an offence for a juror to disclose deliberations including voting numbers except with the consent, or at the request, of the judge. Jury votes or voting patterns are irrelevant and should not be disclosed: Smith v The Queen (2015) 255 CLR 161 at [32], [53].

It is highly desirable that judges inform juries, before retirement, that they should not disclose to the judge their votes or voting patterns in order to minimise such a disclosure occurring before verdict: Smith v The Queen at [32]; R v Burrell [2009] NSWCCA 163 at [217]. Disclosure of voting numbers is not necessary to enable the jury to perform its role in reaching a verdict or for the judge to form a view on whether to ask the jury to consider a majority verdict: Smith v The Queen at [48]–[49]. The judge must, however, disclose to counsel the precise terms of a question asked by a jury where it relates to a relevant issue before the court and both counsel should be given an opportunity to make submissions: Smith v The Queen at [58].

In Hawi v R [2014] NSWCCA 83 at [457]–[460], it was held that the judge was not required to disclose the full contents of jury notes which revealed specifics about the jury’s deliberations. The judge’s summary to counsel of the notes was sufficient.