Citation: R v Hawi & ors (No 32) [2011] NSWSC 1678
Court: Supreme Court of New South Wales
Date: 31 October 2011
Judge(s): Hulme J
Background
This decision arose in the course of a lengthy criminal trial involving seven accused persons facing a total of 25 potential verdicts across primary and alternative charges. The trial generated over 4,000 pages of transcript, a large volume of exhibits including extensive security camera footage, and closing addresses spanning 11 sitting days. The jury retired to deliberate on 29 September 2011.
After approximately 18 days of deliberations (around 94 hours), the jury sent notes indicating it was unable to reach unanimous verdicts on the primary charges and was at a stalemate. The Crown Prosecutor submitted that the time had come for the court to consider giving a majority verdict direction.
Legal Issues
- Whether the jury had deliberated for a "reasonable period of time" of not less than eight hours, satisfying the precondition under s 55F(2)(a) of the Jury Act 1977 (NSW) for a majority verdict direction
- Whether the court needed to distinguish between primary and alternative charges when considering on which charges majority verdicts could be returned
Decision
Hulme J considered the preconditions in s 55F of the Jury Act 1977 before proceeding to give a majority verdict direction. The first precondition requires that the jury has deliberated for at least eight hours over a period the court considers reasonable given the nature and complexity of the proceedings.
His Honour was satisfied that 94 hours of deliberation clearly exceeded the statutory minimum and was reasonable in the circumstances. The scale of the proceedings, including the number of accused, the volume of evidence, and the complexity of the issues, supported that conclusion.
On the second precondition, Hulme J indicated he would examine the foreperson on oath to determine whether it was unlikely the jury would reach a unanimous verdict after further deliberation. If the foreperson confirmed that position, his Honour proposed to direct the jury that majority verdicts could be returned.
Hulme J also resolved a discrete question raised by counsel: whether majority verdicts could only be returned on primary charges or whether they could also be returned on alternative charges. He held that majority verdicts were permissible on any charges, whether primary or alternative, and identified no practical or legal basis for drawing any distinction between them.
Orders Made
• The jury have deliberated for a period of time that is reasonable in the circumstances
• The court proposes to examine the foreperson on oath
• The court proposes to direct the jury that majority verdicts may be returned on any of the charges, whether primary or alternative
Key Takeaways
- Under s 55F(2)(a) of the Jury Act 1977, whether a deliberation period is "reasonable" depends on the nature and complexity of the proceedings, not merely on meeting the eight-hour minimum.
- In a complex multi-accused trial with 25 potential verdicts, 4,000 pages of transcript, and extensive exhibits, 94 hours of jury deliberation was held to satisfy the reasonableness threshold comfortably.
- The Supreme Court held that no legal distinction exists between primary and alternative charges for the purposes of returning majority verdicts: a majority verdict direction can extend to both.
- Before giving a majority verdict direction, the court must also satisfy the second precondition in s 55F(2)(b), which requires examination on oath of one or more jurors to confirm that a unanimous verdict is unlikely after further deliberation.
- This decision illustrates how the statutory preconditions for a majority verdict direction are applied in practice, particularly in trials of unusual scale and complexity.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 55F(2)(a) and s 55F(2)(b)
Cases cited: None cited in the judgment.