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Supreme Court 28 February 2020

R v Holmes (No 4)

[2020] NSWSC 263

Homicide
CRIMINAL LAW JURY DELIBERATION BLACK DIRECTION GIVEN MAKING INQUIRIES OF THE JURY

Citation: R v Holmes (No 4) [2020] NSWSC 263
Court: Supreme Court of New South Wales
Date: 28 February 2020
Judge: Campbell J

Background

The accused stood trial for the murder of the deceased, who died approximately five and a half months after a single punch knocked him to the ground, causing a severe brain injury when his head struck concrete pavement. The accused had pleaded not guilty to murder but guilty to manslaughter at arraignment. The sole question for the jury was whether the Crown had proved beyond reasonable doubt that the accused intended to inflict grievous bodily harm, the mental element required for a murder conviction.

The jury retired to deliberate on the afternoon of Thursday, 20 February 2020. By the morning of Friday, 28 February, they had been deliberating for more than 17 hours (calculated conservatively, excluding lunch breaks and accounting for two days lost due to juror illness). As early as Monday, 24 February, the jury had sent a note indicating it felt unable to reach a unanimous verdict.

In response to that Monday note, Campbell J gave the jury a general perseverance direction in accordance with the High Court's requirements in Black v The Queen. The jury continued to deliberate. By 28 February, the question before the Court was whether to recall the jury and make an inquiry into their progress.

  • Whether a reasonable period for jury deliberation under s 55F(2)(a) of the Jury Act 1977 (NSW) had elapsed.
  • Whether, following a Black direction, a judge is entitled to make an inquiry of the jury after a further lengthy period of deliberation without any fresh indication from the jury that it cannot reach a unanimous verdict.
  • Whether such an inquiry was appropriate in the particular circumstances of this case, having regard to the submissions of both the Crown and the defence.

Decision

Campbell J noted that both counsel accepted the "reasonable period" referred to in s 55F(2)(a) of the Jury Act had elapsed, with both likely placing that point at some time on Wednesday, 26 February, possibly when the jury separated that afternoon.

His Honour drew on the judgment of Spigelman CJ in RJS v Regina, which confirmed that after giving a Black direction, a trial judge may, following a further lengthy period of time, make some kind of inquiry of the jury without necessarily committing legal error. His Honour found that the time since the Black direction had been given did qualify as "a further lengthy period of time" within the meaning contemplated in RJS.

Despite that conclusion, Campbell J declined to intervene. The defence firmly opposed any inquiry, arguing it risked pressuring the jury. His Honour acknowledged the real risk that intervention at that late stage, particularly on a Friday before the jury's weekend separation, could cause a fundamental legal error resulting in a mistrial.

Weighing his own strong inclination to intervene against the risk of prejudice to the accused and the firm opposition of defence counsel, his Honour acceded to the defence submission and decided to stay his hand.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Following a Black direction, a trial judge may make an inquiry of a jury after a further lengthy period of deliberation without necessarily committing legal error, but whether to do so remains a case-by-case judgment (RJS v Regina applied).
  • Campbell J noted that the anticipated development of a general practice in this area, as foreseen by Spigelman CJ in RJS, had not in fact materialised.
  • Both parties accepted that the "reasonable period" under s 55F(2)(a) of the Jury Act 1977 (NSW) had expired by Wednesday of the deliberation week, even in a factually narrow case with a single contested issue.
  • Firm opposition by defence counsel and the timing risk of creating pressure on a Friday afternoon before a weekend separation were both factors weighing against intervention, even where the judge held a strong personal inclination to inquire.
  • The decision confirms that the threshold for judicial inquiry into jury progress is flexible and context-dependent, with the interests of the accused in a fair trial remaining a central consideration throughout.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 55F(2)(a), 56

Cases
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- RJS v Regina [2007] NSWCCA 241; 173 A Crim R 100