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Supreme Court 18 February 2021

R v Holmes (No 6)

[2021] NSWSC 116

Homicide
CRIMINAL PROCEDURE MAJORITY VERDICTS

Citation: R v Holmes (No 6) [2021] NSWSC 116
Court: Supreme Court of New South Wales
Date: 18 February 2021
Judge: Campbell J

Background

The accused stood trial for murder in the Supreme Court. The two central issues for the jury were whether the Crown had proved beyond reasonable doubt that the accused possessed the requisite intent for murder, and whether the Crown had negatived any reasonable possibility of the accused having acted in self-defence.

After approximately 18 hours of deliberation spread across more than two days, the jury sent a second note indicating they were at a stalemate and sought further direction on reaching a unanimous verdict. This was the second such note received; the first had prompted Campbell J to give a standard "Black direction" (a direction that encourages jurors to continue deliberating and consider each other's views).

Following the second note, the judge conducted a sworn examination of three jurors: the foreman, a male juror, and a female juror. Their responses about the likelihood of reaching unanimity were notably inconsistent, prompting the judge to consider whether the statutory conditions for a majority verdict direction had been met.

  • Whether the jury had deliberated for a period of not less than 8 hours that the court considered reasonable, having regard to the nature and complexity of the proceedings (s 55F(2)(a) of the Jury Act 1977 (NSW))
  • Whether the court was satisfied, after sworn examination of jurors, that it was unlikely the jury would reach a unanimous verdict after further deliberation (s 55F(2)(b) of the Jury Act 1977 (NSW))
  • Whether both conditions being satisfied required the court to give the majority verdict direction

Decision

On the first condition, Campbell J was satisfied without difficulty. The jury had deliberated for approximately 18 hours. Although the proceedings involved a murder charge, the evidence was described as straightforward, and the two substantive issues, while involving some conceptual complexity around intention, did not make the case unusually complex overall. The condition in s 55F(2)(a) was therefore met.

The second condition was more difficult to resolve. Two of the three jurors examined under oath expressed confidence, in varying degrees, that unanimity could be achieved with more time. The foreman considered prospects good; the male juror rated his confidence at nine out of ten and noted that progress had been made. By contrast, the female juror was firm in her view that unanimity would not be achieved.

Campbell J observed that unanimity is greatly valued by the common law, and acknowledged that the relative optimism of two jurors could justify withholding the majority verdict direction. However, the judge gave weight to the firmness of the female juror's assessment under oath. The judge noted that it only takes one juror to prevent unanimity, and that even without characterising that juror as "recalcitrant," her expressed position made it unlikely that a unanimous verdict would ultimately be reached.

Taking into account the total length of deliberation, the fact that this was the second stalemate note, and the strength of the female juror's evidence, Campbell J was satisfied that both conditions in s 55F(2) were met. The judge therefore determined to give the majority verdict direction.

Orders Made

• The majority verdict direction is to be provided to the jury under s 55F of the Jury Act 1977 (NSW)

Key Takeaways

  • Under s 55F(2) of the Jury Act 1977 (NSW), a majority verdict direction requires the court to be satisfied of two cumulative conditions: a reasonable deliberation period of at least 8 hours, and a finding that unanimity is unlikely after further deliberation.
  • The second condition, regarding the likelihood of unanimity, requires a sworn examination of one or more jurors and calls for a judgment that can turn on the firmness and credibility of individual juror responses, not merely a numerical count of optimistic versus pessimistic jurors.
  • A single juror's firm sworn assessment that unanimity will not be achieved can, in combination with other circumstances, satisfy the court that further deliberation is unlikely to produce a unanimous verdict, even where other jurors express confidence that agreement remains possible.
  • The Supreme Court treated the recurrence of a stalemate note, the total hours of deliberation, and the quality of individual juror evidence as factors to be weighed together rather than in isolation when assessing the s 55F(2)(b) condition.
  • Giving the majority verdict direction does not preclude jurors from continuing to strive for unanimity; the standard direction accompanying s 55F expressly encourages that continued effort.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), s 55F (majority verdict directions)

Cases
- The judgment references the "Black direction" as a standard jury direction, though no formal case citation for it was included in the judgment text.