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District Court 26 March 2018

R v BC

[2018] NSWDC 124

Sexual offences
CRIMINAL LAW JURY DISCHARGE JURY CANNOT AGREE ONLY 5 HOURS ELAPSED LONG BLACK DIRECTION JURY STILL ADAMANT

Citation: R v BC [2018] NSWDC 124
Court: District Court of New South Wales
Date: 26 March 2018
Judge: Haesler SC DCJ

Background

The accused faced eight counts of sexual and indecent assault against his granddaughter, alleged to have occurred when she was between eight and thirteen years old. The trial took place in Bega and proceeded before a jury of eleven after one juror was discharged early in the proceedings for non-attendance. The trial was further complicated when a nearby town was devastated by a bushfire during the proceedings, affecting jurors, legal practitioners, and court staff alike.

The jury retired to deliberate on Friday 23 March 2018 and, by agreement, separated for the weekend after approximately fifty minutes. Deliberations resumed the following Monday. After around two hours of deliberations, the jury sent a note stating it was unable to reach a unanimous verdict.

The trial judge gave the jury a direction in accordance with the High Court's guidance in Black v The Queen (1993) 179 CLR 44, encouraging continued deliberation. Two further notes followed, each expressing with increasing vehemence that a unanimous verdict was insurmountable. The foreperson confirmed this position on oath. The total deliberation time was approximately five hours, well short of the eight-hour minimum required before majority verdict procedures can be engaged.

  • Whether the jury could be discharged for failing to agree before completing eight hours of deliberation, as required by s 55F and s 56 of the Jury Act 1977 (NSW).
  • Whether a trial judge has any residual discretion to discharge a jury before the statutory preconditions for majority verdicts are met, in order to prevent an injustice.
  • Whether the foreperson's confirmation on oath, in the absence of a formal s 56(2) question, was a proper step in the process.

Decision

The Court acknowledged it was bound by clear Court of Criminal Appeal authority in Hunt v R [2011] NSWCCA 152 and Villis v R [2014] NSWCCA 74, which hold that a judge cannot discharge a non-agreeing jury unless both the preconditions in s 55F and s 56 of the Jury Act 1977 are satisfied. At a bare minimum, this requires at least eight hours of deliberation. The jury in this case had deliberated for approximately five hours, meaning the majority verdict procedure was not yet available.

His Honour noted a specific procedural point: there is nothing in s 56(1) preventing a trial judge from having the foreperson confirm on oath that the jury is unable to agree, even before all statutory preconditions are met. The foreperson here did so confirm, and the reaction of the remaining jurors made plain that he spoke for all of them.

Despite the binding authority requiring further deliberation, the Court found that compelling this jury to return the following day, without being able to explain why, posed a real risk that any verdict eventually returned would be a compromise rather than a genuine unanimous verdict. The strength and vehemence of the jury's notes, the illness of one juror, and the community-wide stress of the bushfire all contributed to that assessment. The Court concluded that no further deft handling could prevent the risk of injustice.

His Honour discharged the jury, expressly on the basis of preventing a real prospect of injustice to both parties, rather than simply because the jury could not agree. The matter was adjourned for relisting at the next circuit call-over, with a note that the complainant's recorded evidence could be used at any retrial.

Orders Made

  • The jury was discharged.
  • The matter was adjourned to the Chief Judge's telephone call-over on Wednesday 11 April 2018 for relisting in a future Bega sittings.

Key Takeaways

  • Under s 55F and s 56 of the Jury Act 1977 (NSW), a trial judge ordinarily cannot discharge a jury for failing to agree until at least eight hours of deliberation have elapsed and the preconditions for majority verdicts have been considered. The Court of Criminal Appeal confirmed this position in Hunt and Villis.

  • A residual discretion exists to discharge a jury before those statutory preconditions are met where continuing deliberations would create a real risk of a compromised or non-genuine verdict, undermining the fairness of the trial for both parties.

  • The primacy of the unanimous jury verdict is a fundamental principle. Any procedure that risks deflecting jurors from returning a genuinely unanimous verdict must yield to the court's overriding duty to ensure a fair trial.

  • Nothing in s 56(1) of the Jury Act 1977 prevents a trial judge from having the foreperson confirm on oath, before the statutory threshold is reached, that the jury is unable to agree. The formal majority verdict question under s 56(2) is a separate step.

  • District Court judges are bound by Court of Criminal Appeal decisions and must follow them, but this case illustrates the tension that can arise between strict compliance with that authority and the court's concurrent duty to prevent injustice in individual trials.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 22, 53B, 53C, 55F, 56
- Interpretation Act 1987 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Black v The Queen (1993) 179 CLR 44
- Hunt v R [2011] NSWCCA 152
- Villis v R [2014] NSWCCA 74
- RJS v Regina [2007] NSWCCA 241
- Ingham [2011] NSWCCA 88
- Jago v The District Court of NSW (1989) 168 CLR 23
- Flemming v White [1981] 2 NSWLR 719
- Bignill v DPP [2016] NSWCA 13
- Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
- R v Penrith [2013] NSWDC 198