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Court of Criminal Appeal 9 August 2019

O'Brien v R

[2019] NSWCCA 187

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL PROCEDURE TRIAL DIRECTIONS TO JURY WHETHER UNDUE PRESSURE IMPOSED ON JURY WHETHER TRIAL MISCARRIED

Citation: O'Brien v R [2019] NSWCCA 187
Court: Court of Criminal Appeal (NSW)
Date: 9 August 2019
Judges: Simpson AJA (principal judgment); Walton J (agreeing); Adamson J (dissenting)

Background

The appellant was convicted in the District Court on three counts arising from an armed robbery at a ski resort hotel: robbery whilst in company, kidnapping with actual bodily harm, and unlawfully taking a conveyance. The trial ran over eight days, exceeding its estimated one-week length, and the jury returned guilty verdicts on all counts.

A complication arose before the jury retired. One juror had notified the court of pressing work commitments due to begin the following day. Despite this, the trial judge chose not to discharge that juror and, critically, did not tell the jury how or when the situation would be resolved. The jury retired to deliberate around 11am on the day before those commitments were to start.

That afternoon, the jury sent two separate notes indicating it could not reach agreement. Rather than giving the jury a direction in the terms approved in Black v The Queen (a direction that acknowledges the possibility of discharge and encourages genuine engagement without coercion), the trial judge instructed the jury to continue deliberating into the evening. At 5:47pm, the jury returned unanimous guilty verdicts on all three counts.

  • Whether the trial judge's failure to give a Black direction in response to the jury's notes indicating deadlock caused the trial to miscarry.
  • Whether the combination of that failure, the unresolved pressure of the juror's work commitments, and the instruction to continue deliberating until evening imposed undue pressure on the jury such that the verdicts should be set aside.
  • Whether the sentence for the kidnapping offence was manifestly excessive.

Decision

Ground 1: Failure to give the Black direction (majority)

Simpson AJA (Walton J agreeing) held that when a jury signals it cannot reach agreement, the trial judge should give the Black direction: advising jurors to listen to and genuinely engage with one another, while making clear that the court has the power to discharge the jury if agreement proves impossible. The failure to give this direction in circumstances where two notes had been received signalling deadlock was an error that produced injustice sufficient to require the appeal to be allowed.

Adamson J dissented on this ground. Her Honour considered that the timing and content of a Black direction is pre-eminently a matter of judicial discretion, and that the trial judge was entitled to assess that encouraging continued deliberations was more appropriate in the circumstances than delivering the direction.

Ground 3: Undue pressure on the jury (majority)

The majority further found that the combination of failing to give the Black direction and failing to clarify to the committed juror (and the jury as a whole) that a discharge would occur at day's end created unnecessary and improper pressure on all twelve jurors. The verdicts reached under those circumstances could not be allowed to stand.

Adamson J again dissented. Her Honour reasoned that the trial judge had given the jury an opportunity to raise concerns, and that in the absence of any further note from the jury, the Court should not speculate that the verdicts reflected a compromise rather than genuine deliberation. She noted several available inferences consistent with a proper verdict, including that the jury may have resolved its doubts only after receiving additional material after 3:30pm.

The Court did not proceed to consider Ground 2 (the sentence appeal) given the outcome on the conviction grounds.

Orders Made

The orders proposed by the majority (Simpson AJA and Walton J) were:

  • Leave granted to appeal under r 4 of the Criminal Appeal Rules (Ground 1).
  • Appeal against conviction allowed.

Adamson J proposed the following (dissenting) orders:

  • Leave granted under r 4 (Ground 1).
  • Appeal against conviction dismissed.

Note: The formal orders entered by the Court as a whole are not reproduced in full in the text provided. The operative outcome, by majority, was that the appeal against conviction was allowed.

Key Takeaways

  • A trial judge who receives jury notes indicating an inability to reach agreement is required to give the Black direction, advising jurors to listen to and engage with one another and informing them that the court has power to discharge the jury. Failing to do so where two such notes are received can constitute an error productive of injustice.

  • Where a juror has communicated pressing external commitments and the trial judge has not clarified how or when that situation will be resolved, the resulting uncertainty can create undue pressure on the entire jury, particularly when it is left to deliberate under a time constraint of the judge's own making.

  • The majority and dissent in this decision illustrate a genuine tension in the case law: the majority treated the Black direction as effectively obligatory once deadlock was communicated, while the dissent characterised the direction as a matter of discretion that the trial judge was entitled to exercise against giving it.

  • Verdicts returned in circumstances where undue pressure has been applied to the jury are liable to be set aside, even where no overt indication of juror distress was communicated to the trial judge by way of a further note.

  • Conviction appeals based on omitted directions require leave under r 4 of the Criminal Appeal Rules, because no objection was taken at trial. The Court confirmed that leave is an appropriate gateway in such cases, though it can still be granted where the failure caused injustice.

Legislation and Cases Referenced

Legislation

  • Criminal Appeal Act 1912 (NSW), s 5(1)(a)
  • Criminal Appeal Rules, r 4
  • Jury Act 1977 (NSW), ss 53B, 55F, 56
  • Jury Amendment (Verdicts) Act 2006 (NSW)

Cases