Special Bulletin 22 — April 2011

Ingham v R [2011] NSWCCA 88

Amendment to majority verdict directions


The bold portions in the excerpts of the Suggested Directions at [7-020] and [8-070] of the Bench Book below have been added following the decisions of Doklu v R [2010] NSWCCA 309 and Ingham v R [2011] NSWCCA 88. The Notes which follow those directions have also been re-written. These amendments will be incorporated in a forthcoming update of the Bench Book. Amendments will be made to the soft copy of the Bench Book on JIRS and the internet.

Summing-up format

[7-020]  Suggested direction — summing-up (commencement) …

[State offences — where majority verdicts available:

Under our system of law, your verdict [on each count], whether it be “guilty” or “not guilty” must be unanimous …

As you may know, the law permits me, in certain circumstances, to accept a verdict which is not unanimous. Those circumstances may not arise at all, so that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should, however, the time come when it is possible for me to accept a verdict which is not unanimous, I will give you a further direction.]

[The question whether there should be reference to majority verdicts has been considered. See Note 8 at [7-040] below.]

[7-040] Notes …

8. Brief reference to majority verdicts in summing-up

The suggested direction makes brief a reference to a majority verdict (see Prospect of disagreement at [8-080] for more detail).

In Ngati v R (2008) 180 A Crim R 384 at [29]–[30] and Doklu v R [2010] NSWCCA 309 at [79], it was held that the trial judge’s reference to majority verdicts in the summing-up did not undermine the direction that a unanimous verdict was required. McClellan CJ at CL in Ingham v R [2011] NSWCCA 88 at [25], said that a brief reference to a majority verdict in the summing-up has the “advantages referred to by the Victorian Court of Appeal” [in R v Muto [1996] 1 VR 336 at 339] which “are equally applicable to criminal trials in NSW”. The advantages referred to in Muto include: being frank with the jury from the start; not pretending that majority verdicts are not possible; not confusing the jury with premature and largely irrelevant information about the effect of the majority verdict section; making clear that their verdict should be unanimous; and to put the possibility of a majority verdict out of their minds. Macfarlan JA in Doklu v R [2010] NSWCCA 309 at [79] was inclined to the view that “it is better not to mention the possibility unless there is a reason to do so” but this approach was not taken or endorsed in Ingham v R [2011] NSWCCA 88. Apart from Victoria, a brief reference to majority verdicts is made in England and Wales (Consolidated Criminal Practice Direction at 46.1) found at <www.hmcourts-service.gov.uk/cms/pds.htm> and Archbold (2005) at 4-433, p 504. As to the position in other States and Territories, see discussion in Ingham v R [2011] NSWCCA 88 at [69]–[81].

Prospect of disagreement

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

If a majority verdict has not been mentioned during the course of the trial, it should not be mentioned when giving a Black v The Queen (1993) 179 CLR 44 direction: RJS v R (2007) 173 A Crim R 100 at [23].

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.

[8-080] Notes

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 [2011] NSWCCA 88 at [85] (b). If the jury indicates it is deadlocked before the time has come to consider a majority verdict, it 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 (2007) 173 A Crim R 100 at [23].