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RJS v R  NSWCCA 241
Majority verdicts — essential statutory pre-conditions — appropriate directions
The case discusses the majority verdict provisions found in s 55F of the Jury Act 1977 (NSW) and appropriate directions where a jury cannot agree before the time for taking a majority verdict has arrived. Section 55F(2) provides as follows:
A majority verdict may be returned by a jury in criminal proceedings if:
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
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.
The appellant was found guilty by majority verdict of an offence of indecent assault. The jury retired to consider its verdict on a Thursday at 12:15 pm. The jury sent a note at 1:40 pm the next day stating it would make no more progress in reaching a unanimous verdict. The judge observed to counsel that the time for taking a majority verdict was “getting close”. Both counsel agreed that 2:30pm would be a reasonable period of time. The judge indicated that he would proceed on that basis. At 2:15pm the jury returned. The judge gave the jury a perseverance direction in accordance with Black v The Queen (1993) 179 CLR 44 urging them to continue to attempt to reach a unanimous verdict but added:
… certainly by 2.30 today you will have been deliberating for eight hours. If 2.30 came and you were unable to reach a unanimous decision but eleven of you agreed, then you would be entitled to return a verdict at that time.
The jury retired at 2:18pm and returned a majority verdict at 2:45pm.
The court (Spigelman CJ; Simpson and Harrison JJ agreeing) held that the trial judge failed to comply with the two essential statutory pre-conditions in s 55F(2). This resulted in a miscarriage of justice whereby the appellant did not receive a trial according to law. Further, the additional directions (quoted above) undermined the effect of the Black direction. A further direction about the possibility of a majority verdict should not have been given at that stage.
Section 55F(2)(a) and (b) represent two significant qualifications to the fundamental principle that a jury verdict in a criminal trial is to be unanimous. Both are essential pre-conditions which require the express attention of the trial judge. Section 55F(2)(a) requires the trial judge to make a judgment as to whether or not a “reasonable” period had elapsed in all of the circumstances of the trial. Section 55F(2)(b) requires 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. Spigelman CJ said at :
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.
The Black direction given was undermined by the judge’s additional reference to the possibility of a majority verdict at 2:30pm. The judge should not have given the further direction at that stage. Spigelman CJ at  referred to the Victorian decision of R v VST  VSCA 35 where Phillips JA said that where the jury says it cannot agree shortly before the time for taking a majority verdict has arrived, it is wiser for the judge not to mention the possibility of a majority verdict and to send the jury back to their room to persevere in their deliberations for the time being.
Phillips JA also said in VST that the judge could recall the jury once a reasonable time had elapsed without notice that they are unable to reach a unanimous verdict. Spigelman CJ did not endorse that statement as a general proposition and said at –:
The Victorian Act there under consideration was in different terms to s 55F of the Jury Act and I would not wish to be taken to endorse the proposition that the trial judge should recall the jury, without notice of their inability to reach a unanimous verdict, as soon as a “reasonable time” had expired. In particular, the requirements of examining a juror on oath means that the determination for which s 55F(2)(b) calls, requires additional procedures to those envisaged by the Victorian Court of Appeal.
In the present case, the course of events should have been to give the Black direction and then, in the absence of the jury, to take submissions from counsel as to when, in the particular circumstances of this case, a reasonable time could be said to have expired. It is inappropriate to determine that there should be a general practice about whether the trial judge, having determined what was such a reasonable time should, upon the elapse of that time, intervene with the jury’s deliberations. What should occur will vary from case to case.
In many cases, the trial judge may well decide to await a further indication from the jury that it is unlikely that the jurors would 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.
Amendments will be made to the Bench Book to incorporate this Special Bulletin.