Citation: R v Lavina Margaret Penrith [2013] NSWDC 198
Court: District Court of New South Wales
Date: 26 September 2013
Judge(s): Judge Haesler SC DCJ
Background
The accused faced two counts at trial. The jury acquitted on one count and then indicated it could not reach agreement on the remaining count, break and enter and commit an indictable offence in company.
After approximately six hours of deliberation, the jury sent a note stating that even after further debate individual jurors had not changed their views. The note disclosed that at least three jurors held a position different to the majority, meaning a majority verdict of 11 to one was not achievable.
The court was required to determine whether it should discharge the jury before the minimum eight-hour deliberation period prescribed by the Jury Act 1977 had elapsed.
Legal Issues
- Whether the court could discharge a jury that clearly could not agree before the eight-hour minimum deliberation period required under s 55F of the Jury Act 1977 had passed
- Whether the voting figures disclosed in the jury's note could properly be considered by the court in deciding whether to discharge
- Whether the obligation under s 56 of the Jury Act 1977 to keep a jury deliberating until a majority verdict becomes available conflicts with the common law duty to ensure a fair trial
Decision
Issue 1: Disclosure of jury voting figures
The jury's note disclosed the breakdown of views among jurors. His Honour acknowledged the general rule that jury voting figures are not released, but drew on the Victorian Court of Appeal's reasoning in HM v The Queen [2013] VSCA 100. That decision held that procedural fairness can require disclosure of precise voting figures to counsel, particularly where the court is weighing whether to discharge the jury or give a majority verdict direction. His Honour adopted that approach, treating the voting figures as relevant and properly considered.
Issue 2: The eight-hour rule under the Jury Act 1977
Under s 55F(2) of the Jury Act 1977, a majority verdict direction is only available after the jury has deliberated for more than eight hours and, after examination on oath, it appears unlikely they will reach a majority verdict. For a 12-person jury, a majority verdict requires 11 to agree. The Court of Criminal Appeal in R v Hunt [2011] NSWCCA 152 stated that a judge should continue to exhort the jury to strive for unanimity prior to the expiry of eight hours, even where the jury repeatedly indicates it cannot agree. His Honour noted, however, that Hunt concerned a note suggesting a majority verdict remained possible, and that the relevant observations about s 55 were obiter.
Issue 3: The primacy of the fair trial obligation
His Honour reasoned that a purposive reading of s 56 means its majority verdict provisions do not operate until s 55F is engaged. Compelling a jury that clearly cannot agree to remain sequestered for a further period, where the voting figures make a majority verdict impossible, risks placing undue pressure on jurors to abandon their oath and reach a compromise. His Honour held that this risk alone would render any resulting verdict unfair and necessitate the trial being aborted regardless. A judge retains a general power to discharge a jury to protect the integrity of the trial, independent of the statutory regime in ss 55 and 56. Accordingly, His Honour proposed to examine the foreperson on oath to confirm the accuracy of the note and, if confirmed, to discharge the jury.
Orders Made
- Jury discharged
Key Takeaways
- The District Court held that the statutory minimum eight-hour deliberation period under s 55F of the Jury Act 1977 does not override a judge's common law duty to ensure a fair trial where the jury's voting figures make a majority verdict mathematically impossible.
- A judge's general power to discharge a jury to prevent an unfair trial exists independently of the provisions in ss 55 and 56 of the Jury Act 1977.
- Disclosure of precise jury voting figures to counsel can be consistent with procedural fairness, particularly where the court is deciding whether to discharge a jury or pursue a majority verdict direction, following the approach in HM v The Queen [2013] VSCA 100.
- Keeping jurors sequestered beyond the point where agreement is clearly impossible risks generating improper pressure to compromise, which would itself undermine the validity of any verdict ultimately delivered.
- The obiter observations in R v Hunt [2011] NSWCCA 152 regarding the eight-hour rule were distinguished on the basis that Hunt involved a jury note indicating a majority verdict remained achievable, not one confirming an irretrievable deadlock.
Legislation and Cases Referenced
Legislation
- Jury Act 1977
Cases
- Black v The Queen (1993) 179CLR 44
- Fleming v White (1991) 2 NSWLR 719
- HM v The Queen [2013] VSCA 100
- R v Hunt [2011] NSWCCA 152