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Court of Criminal Appeal 11 December 2024

R v Jones

[2024] NSWCCA 236

Sexual offences
CRIMES APPEALS APPEAL AGAINST CONVICTION TRIAL NOT ACCORDING TO LAW MAJORITY VERDICT APPEAL ALLOWED

Citation: Jones v R [2024] NSWCCA 236
Court: Court of Criminal Appeal, NSW
Date: 11 December 2024
Judges: Harrison CJ at CL; Davies J; Rigg J

Background

The appellant was convicted on 21 August 2023 of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The trial was conducted in the District Court before Judge Musgrave, sitting with a jury, from 7 August 2023.

The jury retired to consider its verdict on 15 August 2023. After indicating on 17 August 2023 that it could not reach a unanimous verdict, the jury was directed to continue deliberating. On 18 August 2023, one juror was discharged for medical reasons, reducing the jury to 11 members. The remaining jurors again could not reach a verdict, and on 21 August 2023 the trial judge gave a majority verdict direction. A majority verdict of guilty was returned within ten minutes.

The appellant originally filed four grounds of appeal. However, during the appeal proceedings, the Court identified a further issue not raised by either party: the trial judge had not complied with a specific procedural requirement before accepting the majority verdict.

  • Whether the trial judge complied with s 55F(2)(b) of the Jury Act 1977 (NSW) before receiving a majority verdict, specifically the requirement to examine one or more jurors on oath as to whether a unanimous verdict was unlikely after further deliberation.
  • Whether the failure to follow that procedure meant the appellant did not receive a trial according to law.

Decision

Section 55F of the Jury Act 1977 (NSW) permits a majority verdict in criminal proceedings where at least 11 jurors remain, but only if two conditions are both satisfied. First, the jury must have deliberated for a period of not less than eight hours that the court considers reasonable. Second, and critically, the court must be satisfied, after examining one or more jurors on oath, that a unanimous verdict is unlikely after further deliberation.

The Court of Criminal Appeal accepted that the first condition under s 55F(2)(a) had been met on the facts. However, it was plain that the second condition under s 55F(2)(b) had not been met: no juror was examined on oath before the majority verdict direction was given or before the majority verdict was received.

This issue was not raised in the original grounds of appeal and was not addressed in the parties' written submissions. The Court drew it to the parties' attention itself, and both parties accepted that the failure to comply with s 55F(2)(b) meant the appellant had not received a trial according to law. The Court granted leave to add a fifth ground of appeal on that basis.

Because the conviction rested on a majority verdict obtained without the mandatory oath examination of jurors, the conviction could not stand. The Court quashed the conviction and ordered a new trial.

Orders Made

  • Leave granted to the appellant to rely on an amended notice of appeal adding a fifth ground based on non-compliance with s 55F(2)(b) of the Jury Act 1977.
  • Appellant directed to file an amended notice of appeal in the Registry within seven days.
  • Appeal allowed and conviction quashed.
  • New trial ordered.
  • Matter stood over to the arraignments list in the District Court on 20 December 2024 at 9.30am.
  • Bail granted, subject to conditions as varied by consent.

Key Takeaways

  • Under s 55F(2)(b) of the Jury Act 1977 (NSW), a court must examine one or more jurors on oath as to the likelihood of reaching a unanimous verdict before it may lawfully receive a majority verdict in criminal proceedings. This is a mandatory precondition, not a discretionary step.
  • Both conditions in s 55F(2) must be satisfied: sufficient deliberation time under paragraph (a) is not enough on its own. The oath examination under paragraph (b) is a separate and independent requirement.
  • A conviction returned by majority verdict without compliance with s 55F(2)(b) amounts to a trial not conducted according to law, and is liable to be quashed on appeal.
  • The Court of Criminal Appeal raised the s 55F(2)(b) issue of its own motion, after neither party had identified it in the grounds of appeal or written submissions. This demonstrates that procedural compliance with the Jury Act is a matter the appellate court will examine independently.
  • In cases where the defect is fundamental to the validity of the verdict itself, the appropriate remedy is a new trial rather than any other form of relief.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Criminal Appeal Act 1912 (NSW), s 5 (right of appeal against conviction)
- Jury Act 1977 (NSW), s 55F (majority verdicts in criminal proceedings)

Cases cited: No cases were cited in the judgment.