Prospect of disagreement

[8-050] Introduction

It is a fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them: Black v The Queen (1993) 179 CLR 44 at 50. In Black v The Queen at 51, the High Court formulated model directions which must be carefully followed. Those directions are set out below, with additional text in square brackets, which was approved by the Court of Criminal Appeal in R v Tangye (1997) 92 A Crim R 545.

The consequences of failing to follow the guidance followed in Black v The Queen, above, was highlighted in Timbery v R (2007) 180 A Crim R 232, where it was held that a miscarriage of justice was occasioned when the trial judge urged the jury to reach a verdict and indicated that it would be “just terrible” if the jury had to be discharged without verdict after a trial of four weeks. The words used were “emotive” and the trial judge failed to clearly indicate that each juror had a duty to give a verdict according to the evidence: at [122].

The trial judge in Burrell v R (2009) 196 A Crim R 199 received a note from a juror which stated that any continued deliberations would serve no purpose and that other jury members were pressuring him or her into agreeing with them. The judge gave directions set out in Burrell v R (2007) 190 A Crim R 148 at [301]–[302]. The Court of Criminal Appeal held that the directions were “appropriately formulated”: Burrell v R (2009) 196 A Crim R 199 at [224]. Similarly the judge’s direction in Isika v R [2015] NSWCCA 304 (extracted at [6]) given in response to a question from the jury “[w]hat happens if we cannot agree?” contravened Black v The Queen. The direction referred to the time and cost of trials and also “arguably implied that jury members would not be performing their duties if they did not agree on verdicts”: Isika v R at [15].

[8-060] Suggested (Black) direction — Commonwealth offences — unanimity required

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 view of the evidence.

Each of you has [sworn/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 room 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/ affirmation] as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

[If appropriate

I remind you of the direction which I gave you at an early stage of my summing-up. Your verdict — whether it be “guilty” or “not guilty” — must be a unanimous one.

All twelve of you must, in the end, agree upon that verdict. It may be that the particular paths which lead each of you to that unanimous decision are not quite the same, but, nevertheless, your verdict of “guilty” or “not guilty” must be the verdict of you all. In other words, provided that you all agree that a particular verdict should be given, it does not matter that you do not agree as to why that particular verdict should be given.]

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 the light of what I have already said, I ask you to retire again and see whether you can reach a verdict in this trial.

If there is still no likelihood of agreement, then, and only then, following R v Tangye (1997) 92 A Crim R 545 at 551, the foreperson must be examined on oath to establish that fact, in accordance with s 56 Jury Act 1977, before the jury can be discharged.

The foreperson must be informed that nothing should be said which would disclose the voting figures or the reasons for the absence of agreement. After ascertaining the fact that agreement had not so far been reached, an inquiry may be made, if thought to be appropriate, as to whether, in that the foreperson’s view, there is any further assistance which could be given — by way of explaining the law to be applied or the factual issues to be decided — which might bring about an agreement. If the answer is still in the negative, the jury must then be discharged.

The order as to the accused is:

You are remanded for further trial upon [this/these] charge[s] at such time and place as may be appointed.

The question of bail is then considered.

[8-070] Suggested direction — State offences — majority verdict(s) available

Suggested perseverance direction before the preconditions of s 55F(2) Jury Act 1977 are satisfied

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.

[If the possibility of a majority verdict was not referred to in the course of the trial and summing-up, the following direction does not arise and is not necessary.

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.]

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 view of the evidence.

Each of you has [sworn/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 room 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/affirmation] as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

[If appropriate, add additional directions approved in R v Tangye (1997) 92 A Crim R 545:

I remind you that your verdict — whether it be “guilty” or “not guilty” — must be a unanimous one.

All 12 of you must, in the end, agree upon that verdict. It may be that the particular paths which lead each of you to that unanimous decision are not quite the same, but, nevertheless, your verdict of “guilty” or “not guilty” must be the verdict of you all. In other words, provided that you all agree that a particular verdict should be given, it does not matter that you do not agree as to why that particular verdict should be given.]

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 the light of what I have already said, I ask you to retire again and see whether you can reach a verdict in this trial.

[8-080] Notes

1. 

A trial judge should be careful not to undermine the effect of a 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) 173 A Crim R 100 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) 121 A Crim R 447 at 450 particularly [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]:

[W]hen a Black direction is given in response to an indication by the jury that it is deadlocked or otherwise unable to reach a unanimous verdict, it would be prudent that, generally speaking, no subsequent direction should be given which does other than continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum 8 hours of deliberation (and if necessary, a greater period having regard to the nature and complexity of the issues in the case) and that this is so notwithstanding that the jury may continue prior to the expiry of that period to advise the court that it is unable to reach a unanimous decision.

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].

[8-090] Suggested direction — State offences — majority verdict(s) available

Suggested perseverance direction and majority verdict direction after the preconditions of s 55F(2) Jury Act 1977 are satisfied and the time for taking a majority verdict has arrived

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.

The circumstances have arisen in which I may take a majority verdict. I direct you that, should you continue to be unable to reach a unanimous verdict you may return, and I must accept, a verdict of 11 [or ten where there are 11 jurors] of you as the verdict of the jury in this case. However, you should consider that it is preferable that your verdict be unanimous and you should continue to strive to reach a unanimous verdict.

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 view of the evidence.

Each of you has [sworn/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 room 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/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.

As I have said, you should continue your deliberations with a view to reaching a unanimous verdict. If, however, that becomes plainly impossible but you are able to reach a verdict by agreement of 11 of you [or ten where there are 11 jurors] you may return such a majority verdict in this case, that is to say a verdict of 11 out of 12 of you [or ten where there are 11 jurors]. These alternative ways are the only ways in which you may return a verdict according to law.

So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict in this trial.

[8-100] Notes

1. 

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 a majority verdict may be returned by the jury. 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 that 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” (set out below) under s 55F(2) Jury Act 1977: Hanna v R at [7], [45].

2. 

In RJS v R (2007) 173 A Crim R 100 at [19], AGW v R [2008] NSWCCA 81 and Hanna v R, above, at [72], the court has emphasised that a majority verdict direction (as set out in [8-090] above) cannot be given until the court has “strictly observed” the two “essential preconditions” under s 55F(2) Jury Act 1977 for the acceptance of a majority verdict, being:

(a) 

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

(b) 

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

It is important that the trial judge make a finding that both preconditions under s 55F(2) Jury Act 1977 are satisfied before giving a majority verdict direction. It is not enough that the eight-hour period has elapsed.

3. 

The statutory pre-condition set out in s 55F(2)(a) Jury Act 1977 is not fulfilled simply by acting upon the lapse of the minimum period of eight hours: AGW v R, above, at [23]; Hanna v R, above, at [71]; Hunt v R [2011] NSWCCA 152 at [24]–[26]. 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, above, at [23]; Hunt v R at [24]; BR v R [2014] NSWCCA 46 at [24], [47]. A judge must also be satisfied in accordance with s 55F(2)(b) Jury Act 1977 that it is unlikely that a unanimous verdict will be reached if further deliberation were undertaken, by examining on oath one or more of the jurors: AGW v R, above, at [26]. If a judge fails to address these two essential pre-conditions the trial is not conducted according to law: AGW v R, above, at [27]; Hanna v R, above, at [72]; Hunt v R at [25].

4. 

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] NSWCCA 46 at [19]–[20]. Discrete and substantial breaks from the performance of the jury’s task such as retirement overnight should not be included in the eight-hour calculation: BR v R at [21]. Time listening to a direction from the judge or travel time between the jury room and the courtroom should not be included in the calculation: BR v R at [22]–[23], [44]; R v Rodriguez [1998] 2 VR 167; R v VST (2003) 6 VR 569 at [13] not followed. Adjournment for lunch where it is not taken in the jury room should be excluded: BR v R at [21]. A court should be slow to make an assumption that time spent dining in the jury room is necessarily a time spent in deliberation: BR v R at [24] (Hulme AJ contra at [45]); AGW v R, above, at [24]. It is not current practice to record times jurors are permitted to leave the jury room for breaks but arguably these temporarily cease deliberations: Hulme AJ in BR v R at [46]–[47], Hall J agreeing at [36]. More attention and recording than has been the practice during the past needs to be made as to when the full complement of the jury is deliberating: Hulme AJ in BR v R at [47], Hall J agreeing at [36].

5. 

In RJS v R, above, Spigelman CJ questioned the Victorian practice (endorsed in R v VST, above) of recalling the jury once the minimum statutory period had elapsed to see if the jury had reached a unanimous verdict: at [24]. His Honour said at [26]:

In many cases, the trial judge may well decide to await a further indication from the jury that it is unlikely that the jurors will reach a unanimous verdict. That is not to say that after the passage of a further lengthy period of time, a matter to be determined by the trial judge, some kind of inquiry to the jury would constitute legal error. This is a matter with respect to which the practice should develop in accordance with the experience of the implementation of the majority verdict system over time. It does not require any definitive guidance from this Court.

6. 

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) 121 A Crim R 447 at 450.

7. 

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:

(1) 

Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous or a majority verdict under section 55F.

(2) 

Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may not discharge the jury under this section if it finds, after examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict under section 55F.

The court cannot discharge a jury of 11 or 12 persons for disagreement unless it makes a finding referred to in s 56(2). 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].

8. 

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) 89 ALJR 698; [2015] HCA 27 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) 196 A Crim R 199 at [217]. The decision of HM v The Queen (2013) 231 A Crim R 349 and other intermediate decisions like it are incorrect and should not be followed: Smith v The Queen at [56]–[57]. 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.