Citation: R v Hawi & ors (No 31) [2011] NSWSC 1677
Court: Supreme Court of New South Wales
Date: 26 October 2011
Judge: R A Hulme J
Background
This decision arose during the deliberation phase of a lengthy criminal trial involving seven accused persons and 28 charges, including murder, manslaughter, and riot. The trial involved extensive evidence, including over 4,000 pages of transcript and numerous security camera footage exhibits. By the date of this judgment, the jury had been deliberating for 83 hours and 45 minutes across 16 days.
Counsel for one of the accused brought two applications before the court. The first sought discharge of the entire jury. The second, advanced as an alternative, asked the court to invoke the majority verdict provisions under the Jury Act 1977 by examining a juror on oath and, if appropriate, indicating to the jury that a majority verdict could be returned.
The applications were prompted by two jury communications: a question from the previous week about whether considering manslaughter after failing to reach unanimity on murder constituted a "compromise," and communications the day before indicating the jury had reached unanimous views on some lesser charges without having resolved the primary charges.
Legal Issues
- Whether the jury's communications indicated a failure to adhere to judicial directions, warranting discharge.
- Whether the length of the deliberation period justified discharge of the jury.
- Whether the court should invoke the majority verdict provisions under s 55F of the Jury Act 1977 at this stage.
- Whether the procedural preconditions for discharge under s 56 of the Jury Act 1977 had been met.
Decision
On the question of the jury's communications, Hulme J rejected the submission that either note demonstrated a failure to follow judicial directions. His Honour observed that the first question, asking whether considering manslaughter after a hung result on murder constituted a "compromise," could reasonably be read as a request for confirmation of directions already given. It was also unknown whether that question came from one juror or the whole jury, making any broader inference impermissible speculation.
On the second communication, the court found nothing improper in the jury having reached a unanimous view on a lesser charge before resolving the primary charge. The only binding requirement was the order in which verdicts could formally be returned, that is, the primary charge must be addressed before an alternative charge is accepted. Forming a concluded view on a lesser charge during deliberations did not breach that requirement.
On the application to discharge the jury, Hulme J identified a fundamental procedural obstacle: s 56 of the Jury Act 1977 requires the court to examine a juror on oath before it can be satisfied that a majority verdict is unlikely, and that examination is only appropriate after the jury has been told a majority verdict is available. Because no majority verdict direction had yet been given, the application was premature and could not be granted. The court added that it did not find the application meritorious in any event, given the complexity and scale of the trial.
On the majority verdict application under s 55F(2), the court acknowledged the deliberation time of over 83 hours was well in excess of the minimum eight-hour threshold. However, Hulme J considered it premature to invoke the majority verdict procedure given that a Black v The Queen direction (the standard direction intended to encourage a jury to reach a verdict without improperly pressuring them) had been given only the previous afternoon. The court indicated it would await further communication from the jury before taking that step.
Orders Made
No orders were made in this decision.
Key Takeaways
- Both applications were refused: the application to discharge the jury was premature and lacking in merit, and the application to invoke the majority verdict provisions was also premature at that stage of deliberations.
- Under s 56 of the Jury Act 1977, a court cannot discharge a jury on the basis that a majority verdict is unlikely until it has first examined a juror on oath. That examination is itself only appropriate after the jury has been directed that a majority verdict is available.
- A jury's internal deliberative process, including forming unanimous views on lesser charges before resolving primary charges, does not necessarily contravene judicial directions about the order in which verdicts are formally returned.
- Speculating about the meaning or origin of a jury note is impermissible; without knowing whether a question comes from one juror or the full jury, no broad inference about jury conduct can be drawn.
- In a trial of this complexity involving seven accused, 28 charges, 4,000-plus pages of transcript, and extensive exhibit material, 83 hours of deliberation across 16 days did not, of itself, give rise to concern or justify invoking majority verdict provisions immediately after a Black v The Queen direction had been given.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 55F, 56
Cases
- Black v The Queen [1993] HCA 71; (1993) 179 CLR 44