Citation: R v Ronald Edward Medich (No. 26) [2017] NSWSC 403
Court: Supreme Court of New South Wales
Date: 12 April 2017
Judge(s): Bellew J
Background
The accused faced two counts before a jury that had commenced deliberations on 24 March 2017. By 12 April 2017, the jury had been deliberating for twelve sitting days, with one day lost due to personal commitments of two jurors.
During those deliberations, the jury sent several notes to the court. On 10 April 2017, the jury indicated in a note (MFI 121) that it could not reach a unanimous verdict on either count. Bellew J responded by giving a so-called "Black direction," urging the jury to continue attempting to reach a unanimous verdict before any majority verdict mechanism would be considered. The following day, the jury sent a further detailed note (MFI 122) suggesting it had absorbed the Black direction and was actively working toward unanimity.
Senior counsel for the accused then applied for the court to recall the jury, enquire whether it could reach unanimous verdicts, and, if not, inform the jury of the majority verdict provisions under s 55F of the Jury Act 1977 (NSW). The Crown opposed the application.
Legal Issues
- Whether, in the circumstances, the court should recall the jury and enquire as to the progress of deliberations.
- Whether, at this stage of deliberations, the jury should be informed of the majority verdict provisions under s 55F of the Jury Act 1977 (NSW).
- When, following a Black direction, it is appropriate to progress to informing a jury that a majority verdict may be accepted.
Decision
Bellew J refused the application. His Honour observed that the accused's application effectively asked the jury to do precisely what it was already doing: deliberating on whether it could reach a unanimous verdict. No additional court intervention was warranted on that basis.
His Honour drew particular attention to the content of MFI 122. The detail and nature of the questions posed in that note indicated that the jury had accepted the Black direction without reservation and was making a genuine effort to reach unanimity. That inference weighed against any conclusion that deliberations had broken down irretrievably.
The court also noted that the jury had been informed on multiple occasions, including during the summing-up, that it could and must seek the court's assistance if it encountered difficulty. The jury had demonstrated throughout that it understood and acted on that instruction. There was therefore no reason to intervene proactively.
Bellew J acknowledged that a point may come when informing the jury of the majority verdict provisions becomes appropriate. However, on the facts as they stood on 12 April 2017, that point had not yet been reached.
Orders Made
No orders were made in this decision.
Key Takeaways
- Following a Black direction, the appropriate sequencing is to allow the jury to continue deliberating toward unanimity before introducing the majority verdict mechanism; the Supreme Court confirmed these are distinct, sequential steps.
- A jury's detailed and substantive questions during deliberations can constitute an inference that it has taken the Black direction on board and is genuinely working toward a unanimous verdict, which may weigh against further judicial intervention.
- Under s 55F of the Jury Act 1977 (NSW), informing a jury that a majority verdict may be accepted is not automatically triggered by the passage of time or by a single indication that unanimity has not been reached.
- The fact that an accused's counsel submits that "no harm" would result from a proposed course does not, of itself, provide sufficient warrant for the court to adopt it.
- Anticipatory concerns about an approaching court recess do not, without more, justify intervening in jury deliberations ahead of the ordinary process.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), s 55F (majority verdict provisions)
Cases
- Black v R [1993] HCA 71; (1993) 179 CLR 44 (the source of the "Black direction," which requires a trial judge, upon indication that a jury cannot agree, to direct jurors to continue attempting to reach a unanimous verdict while also acknowledging their individual responsibilities)