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Court of Criminal Appeal 9 April 2014

BR v R

[2014] NSWCCA 46

Sexual offencesPublic order & justice offences
CRIMINAL LAW PROCEDURE JURIES MAJORITY VERDICT JURY ACT 1977 (NSW) S 55F MEANING OF "DELIBERATION"

Citation: BR v R [2014] NSWCCA 46
Court: Court of Criminal Appeal, NSW
Date: 9 April 2014
Judges: Emmett JA at [1]; Hall J at [36]; Hulme AJ at [37]

Background

The appellant was convicted on four charges under the Crimes Act 1900 (NSW), relating to sexual offences, after a jury of eleven returned majority verdicts against him on 28 September 2012. A total effective sentence of five years and nine months, with a non-parole period of three years and six months, was imposed.

The jury had deliberated across three days (26, 27, and 28 September 2012), sending a series of notes to the trial judge indicating it could not reach unanimous agreement. On the morning of the third day, after the parties agreed that approximately eight hours of deliberation had elapsed, the trial judge proceeded under s 55F of the Jury Act 1977 (NSW) to take majority verdicts.

The appellant appealed on the ground that the trial judge erred in directing the jury to return majority verdicts, arguing that the mandatory minimum of eight hours of deliberation required by s 55F had not in fact been satisfied.

  • Whether the jury had deliberated for a period of not less than eight hours, as required by s 55F of the Jury Act 1977 (NSW) before majority verdicts could lawfully be taken.
  • Whether the lunch break (1pm to 2pm on 27 September 2012) should be included or excluded from the calculation of deliberation time.
  • Whether time elapsed after the jury sent notes to the trial judge indicating deadlock, but before returning to court, should count as "deliberation" for the purposes of s 55F.
  • Whether non-compliance with the eight-hour minimum would constitute a substantial miscarriage of justice that could not be cured under s 6(1) of the Criminal Appeal Act 1912 (NSW).

Decision

The lunch break. The Court held that the one-hour lunch break on 27 September 2012 should not be counted as deliberation time. The Court reasoned that "deliberation" under s 55F requires the jury to be actively engaged as a group in considering its verdict. When jurors are separated for lunch and not deliberating, that time falls outside the statutory eight-hour period. The trial judge had herself adopted this approach, and the Court confirmed it was correct.

Time after deadlock notes were sent. A more nuanced issue arose regarding the periods after the jury sent notes indicating it could not reach a unanimous verdict but before it was called back into court. The Court accepted that the jury may have ceased active deliberation during those intervals. However, it held that, because the jury remained sequestered for the purposes of deliberation during those periods, that time counts toward the eight-hour minimum under s 55F.

Whether eight hours had elapsed. Hulme AJ, with whom the other judges agreed on this point, calculated the total deliberation time (excluding lunch but including post-note sequestration periods) at nine hours and eighteen minutes across the three days. The eight-hour threshold had therefore been satisfied, and the trial judge did not err in proceeding to take majority verdicts.

Consequence of non-compliance. All three judges confirmed that compliance with the eight-hour minimum is mandatory. Had the threshold not been met, the result would have been a substantial miscarriage of justice that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) could not cure, because the appellant would not have received a trial according to law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the eight-hour deliberation period under s 55F of the Jury Act 1977 (NSW) is a mandatory precondition to the lawful taking of a majority verdict; non-compliance produces a substantial miscarriage of justice that cannot be remedied under s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Meal breaks during which jurors are not deliberating as a group must be excluded from the eight-hour calculation under s 55F.
  • Time during which the jury remains sequestered for the purpose of deliberation, even after sending a note indicating deadlock, counts toward the eight-hour minimum, because it cannot be known with certainty that deliberation has entirely ceased.
  • Hulme AJ noted, in a practical observation, that more careful recording of the times when jurors leave and return to the jury room would assist courts in determining with confidence whether the eight-hour threshold has been met in future cases.
  • In dismissing the appeal, the Court found that, on a careful accounting of deliberation time across three days, the jury had deliberated for nine hours and eighteen minutes, well exceeding the statutory minimum.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 55F
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Justice Act 1967 (UK)

Cases:
- AGW v R [2008] NSWCCA 81
- Black v The Queen [1993] HCA 71; 179 CLR 44
- Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265
- Cheatle v The Queen [1993] HCA 44; 177 CLR 541
- Hunt v R [2011] NSWCCA 152; 81 NSWLR 181
- R v Adams [1969] 1 WLR 106
- R v Bateson [1969] 3 All ER 1372
- R v Doherty [1999] VSCA 165; 3 VR 435
- R v Rodriguez [1998] 2 VR 167
- R v Young [1995] QB 324
- R v VST [2003] VSCA 35; 6 VR 569
- RJS v R [2007] NSWCCA 241; 173 A Crim R 100
- Smith v Western Australia [2014] HCA 3; 88 ALJR 384