Citation: Hanna v Regina [2008] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 28 July 2008
Judges: James J, Hoeben J, Hall J
Background
The appellant was tried in the District Court in a joint trial with another accused. The indictment contained as many as eight counts, spanning at least four different kinds of offences, and the trial ran for more than a month.
After the jury had been deliberating for approximately eight hours, the jury sent a note indicating it had reached a stalemate on two of the counts. The trial judge then gave the jury further directions, combining what is known as a "Black direction" (an encouragement to continue deliberating while respecting individual conscience) with a direction that, because eight hours had elapsed, a majority verdict of 11 to 1 could be accepted.
The appellant was convicted and appealed, contending that the trial judge had erred both in failing to satisfy the statutory preconditions before giving a majority verdict direction and in delivering that direction simultaneously with the Black direction.
Legal Issues
- Whether the trial judge had satisfied the preconditions in s 55F(2) of the Jury Act 1977 (NSW) before directing the jury that a majority verdict was available, in particular whether the judge had determined that the jury had deliberated for a period that was "reasonable having regard to the nature and complexity of the criminal proceedings"
- Whether it was procedurally impermissible, or at least problematic, to give a majority verdict direction at the same time as a Black direction, on the basis that doing so may undermine the force of the Black direction
Decision
Section 55F(2)(a) of the Jury Act 1977 requires more than the bare fact that eight hours have elapsed. The trial judge must affirmatively consider, and be satisfied, that the period of deliberation was reasonable having regard to the nature and complexity of the proceedings. In this case, the transcript revealed that the judge focused exclusively on the eight-hour threshold and made no reference to the complexity of the proceedings, the length of the trial, the number of counts, or the nature of the offences charged. The Court rejected the Crown's argument that a tacit consideration of reasonableness could be inferred from the judge's rejection of defence submissions.
Because the statutory precondition had not been met, the majority verdict direction was given contrary to law. This alone was sufficient to establish a miscarriage of justice and to uphold the appeal.
The Court also addressed, without finally resolving, the secondary question of whether a majority verdict direction should not be given simultaneously with a Black direction. The concern is that introducing the possibility of a majority verdict at the same moment as encouraging continued deliberation toward unanimity may dilute the persuasive force the Black direction is intended to have. The Court found it arguable that the concurrent directions were problematic, but did not need to decide that question definitively given that the s 55F(2)(a) non-compliance was already fatal to the conviction.
Orders Made
- Appeal against conviction allowed
- Conviction in the District Court quashed
- New trial ordered
Key Takeaways
- Under s 55F(2)(a) of the Jury Act 1977 (NSW), the eight-hour minimum deliberation period is a floor, not a sufficient condition: the trial judge must separately consider and determine that the duration of deliberation was reasonable having regard to the nature and complexity of the proceedings.
- A trial judge must clearly demonstrate, on the record, that the full terms of s 55F(2)(a) have been considered and satisfied before giving a majority verdict direction; a tacit or implied determination is insufficient.
- Where a long, complex trial involves multiple accused, numerous counts, and several categories of offences, those factors are directly relevant to the "reasonable time" assessment and must be weighed explicitly.
- The Court of Criminal Appeal left open, but identified as arguable, the proposition that giving a Black direction and a majority verdict direction simultaneously risks undermining the Black direction, suggesting the two directions ordinarily should not be given at the same time.
- Failure to comply with the statutory preconditions in s 55F(2) is capable of constituting a miscarriage of justice sufficient to quash a conviction and order a new trial.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), s 55F
Cases
- Black v The Queen (1993) 179 CLR 44
- Regina v Forbes (2005) 160 A Crim R 1
- Regina v Zoef [2005] NSWCCA 268
- RJS v The Queen (2007) 173 A Crim R 100