AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 15 April 2008

AGW v REGINA

[2008] NSWCCA 81

Sexual offences
CRIMINAL LAW AND PROCEDURE TRIAL JURY UNABLE TO AGREE FAILURE TO COMPLY IN THIS INSTANCE

Citation: AGW v REGINA [2008] NSWCCA 81
Court: New South Wales Court of Criminal Appeal
Date: 15 April 2008
Judge(s): Grove J, Hulme J, Simpson J

Background

The appellant was tried in the Penrith District Court on five counts of sexual intercourse with a child under the age of ten years, relating to alleged conduct between January 1995 and September 1999. The jury acquitted him on four counts and returned a guilty verdict on the remaining count (count 2), which alleged conduct witnessed directly by the complainant's sister, who was at the time married to the appellant.

The conviction on count 2 rested entirely on the sister's eyewitness testimony that she had observed the appellant engaging in sexual conduct with the complainant on New Year's Eve 1996. The appellant denied the allegations and contended that the complainant and her sister had fabricated the charges out of animosity following an acrimonious separation.

The appellant appealed the conviction on four grounds, arguing that the verdict was not lawfully taken, that the trial judge failed to comply with the statutory requirements under the Jury Act 1977 before receiving a majority verdict, and separately, that the verdict was unreasonable and unsupported by the evidence.

  • Whether the verdict on count 2 was open to the jury on the evidence (unreasonable verdict ground)
  • Whether the trial judge complied with section 55F of the Jury Act 1977 before taking the majority verdict, specifically:
  • Whether the jury had deliberated for a sufficient minimum period before a majority verdict could be received
  • Whether the trial judge was satisfied, by examination of a juror on oath, that a unanimous verdict was unlikely if further deliberation occurred

Decision

The Court first considered whether the verdict was unreasonable. Grove J accepted that the conviction depended on the jury accepting the sister's testimony, that there were matters going to her credibility (including delay in coming forward and acknowledged animosity toward the appellant), and that there were also plausible explanations for those matters. Having assessed the evidence with appropriate deference to the jury's role, Grove J concluded he was not persuaded the jury ought to have been left with a reasonable doubt. The unreasonable verdict ground was not upheld.

The remaining grounds succeeded on two discrete failures to comply with the preconditions in section 55F of the Jury Act 1977. The first failure concerned the minimum deliberation period. Under the statute, a majority verdict cannot be received unless the jury has deliberated for a period that the judge considers reasonable, with a floor of eight hours. The trial judge advised the jury at approximately 2.50 pm on the second day of deliberations that he would take a majority verdict at 5.00 pm. Grove J found that eight hours of actual deliberation had not elapsed by that point when account was taken of the times the jury was in court rather than deliberating, and that no proper assessment of a reasonable period had been made.

The second failure was more straightforward. Before receiving a majority verdict, the judge was required to examine one or more jurors on oath to determine whether a unanimous verdict was unlikely if deliberations continued. The trial judge did ask a juror about the numerical division of opinion, but the juror was neither sworn nor affirmed, and no question was directed to the prospect of unanimity. Both preconditions were therefore unmet. The Crown conceded that the conviction had not been returned after a trial conducted according to law, and the Court ordered a new trial.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Strict compliance with section 55F of the Jury Act 1977 is required before a trial judge may receive a majority verdict; substantial compliance is insufficient.
  • Two preconditions must both be satisfied: the jury must have deliberated for a period the judge considers reasonable (with a minimum of eight hours), and the judge must examine at least one juror on oath and be satisfied that unanimity is unlikely if deliberation continues.
  • A juror questioned about the numerical division of opinion, without being sworn or affirmed and without being asked about the prospect of unanimity, does not satisfy the statutory examination requirement.
  • Where a trial judge announces to the jury a fixed future time at which a majority verdict will be taken, without first conducting any assessment of whether a reasonable and sufficient period of deliberation has elapsed, that process is liable to invalidate any majority verdict taken.
  • Upholding a conviction on a ground of unreasonable verdict requires more than identifying weaknesses in witness credibility; the Court of Criminal Appeal must be satisfied that the jury, giving appropriate weight to the witnesses it heard, ought to have had a reasonable doubt.

Legislation and Cases Referenced

Legislation
- Section 55F, Jury Act 1977 (NSW)

Cases
- Black v The Queen (1993) 179 CLR 44
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- R v Adams & anor (1968) 52 Cr App R 588
- R v Doherty [1999] 3 VR 435
- R v Rodriguez [1998] 2 VR 167
- R v VST [2003] 6 VR 569
- RJS v Regina [2007] NSWCCA 241