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5
Court of Criminal Appeal 30 June 2011

Hunt v Regina

[2011] NSWCCA 152

Also reported as 81 NSWLR 181
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION PRACTICE AND PROCEDURE JURIES TRIAL NOT CONDUCTED ACCORDING TO LAW MISCARRIAGE OF JUSTICE

Citation: Hunt v Regina [2011] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 30 June 2011
Judges: Tobias AJA, Johnson J, Hall J

Background

The appellant was convicted in the District Court at Wollongong on two counts of aggravated indecent assault of a child under 16 years of age. The jury was empanelled on 15 September 2010, evidence concluded the following day, and the jury returned majority verdicts of guilty on 17 September 2010.

The trial judge sentenced the appellant to an aggregate term of 20 months' imprisonment, with a non-parole period of eight months. The appellant appealed against both conviction and sentence, raising five grounds of appeal.

The Crown ultimately conceded that four of the five grounds had been established, and that the trial had not been conducted according to law. Both parties accepted that a new trial was the appropriate remedy.

  • Whether the trial judge failed to comply with the requirements of section 55F of the Jury Act 1977 before accepting a majority verdict
  • Whether the jury had deliberated for the minimum eight-hour period required before a majority verdict could lawfully be taken
  • Whether the trial judge misdirected the jury by incorrectly advising them of the time at which a majority verdict could be accepted
  • Whether the overall failures amounted to a miscarriage of justice such that the appellant had not received a trial according to law

Decision

The jury retired at 9.47 am and, within a few hours, sent two notes indicating it could not reach a unanimous verdict. The trial judge, after examining a juror on oath under section 56 of the Jury Act 1977, concluded that a unanimous verdict was unlikely. He then directed the jury that he would be in a position to take a majority verdict from 5.50 pm, effectively telling them that the eight-hour minimum deliberation period would expire at that time and that no further deliberations were necessary.

The Court found this process was fundamentally flawed in two critical respects. First, the eight-hour minimum deliberation period under section 55F(2)(a) had plainly not been reached before the majority verdict direction was given. Second, the judge incorrectly directed the jury to simply wait out the remaining time rather than continue deliberating, misapplying the statutory scheme entirely.

The Court accepted the Crown's concession that these failures meant the proceedings had so far departed from lawful process as to cease to constitute a trial according to law. Because the trial had not been conducted according to law, the proviso in section 6(1) of the Criminal Appeal Act 1912 (which allows a court to dismiss an appeal despite an error where no substantial miscarriage of justice has occurred) was not available. The High Court's decisions in AK v State of Western Australia and Cesan v The Queen confirm that the proviso cannot be applied in such circumstances.

Orders Made

  • Conviction quashed
  • Sentence imposed on 10 December 2010 set aside
  • New trial ordered

Key Takeaways

  • Under section 55F(2) of the Jury Act 1977, a majority verdict may only be accepted after the jury has actually deliberated for a period of not less than eight hours, and the court must be satisfied of that minimum period before proceeding.
  • Directing a jury to wait out the remaining time before the eight-hour threshold without continuing deliberations is an incorrect application of the majority verdict regime and constitutes a failure to comply with the statute.
  • Where criminal proceedings have so far departed from lawful process as to cease to be a trial according to law, the proviso in section 6(1) of the Criminal Appeal Act 1912 is unavailable, and quashing the conviction follows as a matter of course.
  • The Court of Criminal Appeal confirmed that decisions about whether to retry an accused after a mistrial are primarily a matter for the prosecuting authorities, consistent with the separation of powers.
  • In determining whether to order a new trial, relevant considerations include the objective seriousness of the offence, the likely penalty on reconviction, and whether a significant portion of any sentence has already been served.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 55F, 56
- Criminal Appeal Act 1912 (NSW), ss 6(1), 8(1)

Cases
- AK v State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
- Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
- Haoui v Regina [2008] NSWCCA 209
- AGW v Regina [2008] NSWCCA 81
- RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100
- Ingham v R [2011] NSWCCA 88