If the jury asks a question indicating that further directions of law are required, the trial judge should ensure that no verdict is taken before that question is answered: see R v TAB [2002] NSWCCA 274 at [72]; R v Hickey (2002) 137 A Crim R 62 at [47]; Nguyen & Ors v R [2007] NSWCCA 363 at [120]–[128].

All communications between the jury and the trial judge should be disclosed to counsel for both parties, except for matters pertaining to the jury’s deliberations: Ngati v R [2008] NSWCCA 3 at [33]; Burrell v R (2007) 190 A Crim R 148 at [261]–[265]; Yuill (1994) 77 A Crim R 314 at 324. Such disclosure allows counsel to make submissions about the manner in which the question should be answered: Nguyen & Ors v R, above, at [127]. Voting figures should not be disclosed: Ngati at [34].

In circumstances where the jury has sent a message to the judge that it has reached a verdict, it is nevertheless open to the judge to invite them to deliberate further with corrected, amended or supplementary directions: see R v Campbell [2004] NSWCCA 314 at [42].

After receiving a message that the jury is ready to deliver the results of its deliberation, direct the reassembly of the court, ensuring that the accused is available. The accused should always be brought in before, rather than after, the jury. It is not essential to await the attendance of counsel who have chosen to depart the court area of their own volition, and it is not desirable to undertake to counsel that you will communicate with him or her. Remember that the jury, at this stage, will probably have been confined to the jury room for many hours and their convenience and comfort should be given every consideration. Also remember there may well be other members of the public waiting.

1. Re-enter the court

Direct that the accused be brought into the court. In appropriate cases, ensure that general security is in order. Direct the jury to enter (it is not necessary to call the roll of the jury).

2. Court officer asks foreperson to rise

3. Enquires of foreperson —

Clerk of Arraigns or judge then inquires of the foreperson — “Have you agreed on your verdict(s)?”

Upon receipt of an affirmative answer, the Clerk of Arraigns then questions the foreperson — “How say you, is the accused guilty or not?”; or “How say you, on the first count, is the accused guilty or not?”

The question is then repeated, corresponding to the number of counts committed to the jury. In the case of multiple defendants, the question is — “How say you, is the first accused [name accused, for example, John Smith] guilty or not?”

The question is then repeated for each of the other accused. In the case of multiple defendants and multiple counts the question is — “How say you, on the first count, is the first accused [name accused, for example, John Smith] guilty or not?”

The question on the first count is then repeated for each of the other accused. The question is then posed on the second count for each of the accused.

Note:

It is critical to receive a distinct verdict in respect of each accused on each separate count. Also, in cases where an alternative or lesser charge is available if there is a verdict of “not guilty” on the substantive charge, it must not be forgotten to put forward the alternative charge and take a verdict on it.

After the foreperson has announced the verdict(s), the associate or judge then interrogates the whole jury as follows.

4. Receipt of verdict —

If a verdict of “guilty” — “Your foreperson has said that the (first) accused is guilty of the (first) count as charged (or not guilty as charged but guilty of the alternative charge of …). So says your foreperson, so say you all?”

The above should then be repeated in respect of all accused.

If a verdict of “not guilty”, follow the above with the substitution of “not guilty” for “guilty”.

Note: Questions as to the basis of the verdict

Although the trial judge has power to question the jury as to the basis of their verdict(s), that power should not be exercised save in exceptional circumstances: R v Isaacs (1997) 41 NSWLR 374 at 377; 379–380. The High Court has said — “The course of seeking such elucidation is fraught with danger and the discretion to seek it should be exercised sparingly and with care”: Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825 at 826. This approach is consistent with the well established principle that a jury should not be asked to disclose their reasoning process, nor are they bound to disclose it if asked: Mourani v Jeldi Manufacturing Pty Ltd at 826.

To this must be added the observation by the High Court in Kingswell v The Queen (1985) 159 CLR 264 at 283 that “… there is strong support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform.” Thus, a trial judge would need convincing circumstances before he or she would question the jury as to the basis of a verdict(s). It is acknowledged, however, that difficulties will arise where, for example, a jury returns a verdict which logically cannot stand with another verdict. Examples include the case where the jury has returned verdicts of “guilty” for both an attempt to commit an offence and the completed offence: MacKenzie v The Queen (1996) 190 CLR 348 at 366.

5. Discharge of jury

Upon delivery of the verdict, s 55E Jury Act 1977 requires the immediate discharge of the jury. This is usually done by expressing the appreciation of the court for the jury’s service to the community, telling them that they are discharged from further service and informing them (if necessary) of the provision for payment of their jury fees.

The judge has discretion, after a lengthy trial, to excuse the jurors from being selected for jury service for a specified period then ensuing: s 39(1) Jury Act 1977. Sometimes there are members of the jury who do not wish to be so excused, in which case they should be given the opportunity to serve further. The comment is therefore suggested —

(The trial judge is required by s 39(2) to notify the Sheriff of any direction given under s 39(1)). Section 55E(2) expressly provides that any members of the jury may remain in court as ordinary members of the public after being discharged.

6. Verdict of “Not Guilty”

Upon receipt of a verdict of “not guilty” on the only charge, or if more than one, all charges, the trial judge should then enquire of the Crown Prosecutor if there is any reason why the accused should be further detained. If the answer is in the negative, the accused should be discharged immediately from custody and allowed to depart, should they so wish, even before the jury is formally discharged. If the answer is in the affirmative, then the reason must be sought. Should the accused be in custody as a result only of a refusal of bail, it is open to the judge to entertain a bail application (assuming jurisdiction), but it may be undesirable to entertain the application in the absence of the file and witnesses relevant to “bail refused” matter(s).

7. Verdict of “Guilty”

A conviction only occurs when the court does some act which indicates that it has determined guilt, or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question, for example, by the imposition of punishment; discharging a prisoner on his or her own recognisance; by release on parole; or even, perhaps, adjourning proceedings for sentence hearing: Maxwell v The Queen (1995) 184 CLR 501 at 531.

A conviction may be recorded by formally calling up the prisoner for sentence, the address of which is known as the “allocutus” and is in the following terms —

At common law, the allocutus was a necessary part of a trial where the accused had been convicted of treason or a felony: R v Rear [1965] 2 QB 290 at 292.

The allocutus gives the accused the opportunity of raising any legal matter against conviction and in the absence of there being any such legal matter or any realistic possibility of the application of s 10 Crimes (Sentencing Procedure) Act 1999 or s 19B Crimes Act 1914 (Cth), allowing the entry of a judgment of conviction (which is recorded on the back of the indictment), thus publicly and formally recording a conviction, so as to put the matter beyond doubt.

In the absence of such formality, difficult and important questions can arise as to whether, and if so, when, the accused has been convicted. Of particular importance, for example, may be “the day of conviction” within the meaning of s 30 Proceeds of Crime Act 1987 (Cth). This question was discussed in Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257. However, that case must now be considered in the light of the various judgments of the High Court in Maxwell v The Queen (1995) 184 CLR 501.

The question of whether there has been a conviction is also of importance for the purposes of a plea of “autrefois acquit” or “autrefois convict”. Although the use of the allocutus has, in recent years, fallen somewhat into disuse, recent cases demonstrate the advisability of returning to its regular use to avoid unnecessary disputes regarding whether, and if so, when, the accused has been convicted both with regard to verdicts of guilty, as well as pleas of guilty.

On the question of whether there has been a conviction or not, see DPP (Cth) v Webb [1999] NSWSC 405 and R v Holton [2002] NSWSC 775.

Alternatively, the judge should expressly indicate (publicly and formally) that the accused is convicted and make the appropriate entry on the back of the indictment. Indeed, in every case, whether the allocutus is given or not, the conviction should be recorded on the back on the indictment.

When the jury have reached a verdict they should send a message to that effect but should not say what the verdict is or whether it is unanimous or by majority. After receiving a message that the jury is ready to deliver the results of its deliberation, direct the reassembly of the court, ensuring that the accused is available. The accused should always be brought in before, rather than after, the jury. It is not essential to await the attendance of counsel who have chosen to depart the court area of their own volition, and it is not desirable to undertake to counsel that you will communicate with him or her. Remember that the jury, at this stage, will probably have been confined to the jury room for many hours and their convenience and comfort should be given every consideration. Also remember there may well be other members of the public waiting.

1. Re-enter the court

Direct that the accused be brought into the court. In appropriate cases, ensure that general security is in order. Direct the jury to enter (it is not necessary to call the roll of the jury).

2. Court officer asks foreperson to rise

3. Enquiries of foreperson

Clerk of Arraigns or judge then enquires of the foreperson — “Have you agreed on your verdict(s) according to law, that is, according to the directions that were given?” [The foreperson should simply answer “yes” without saying whether the verdict is unanimous or by majority.] Upon receipt of an affirmative answer, the Clerk of Arraigns then questions the foreperson — “How say you, is the accused guilty or not?”; or “How say you, on the first count, is the accused guilty or not?”

The question is then repeated, corresponding to the number of counts committed, to the jury. In the case of multiple defendants, the question is — “How say you, is the first accused [name accused, for example, John Smith] guilty or not?”

The question is then repeated for each of the other accused. In the case of multiple defendants and multiple counts the question is — “How say you, on the first count, is the first accused [name accused, for example, John Smith] guilty or not?”

The question on the first count is then repeated for each of the other accused. The question is then posed on the second count for each of the accused.

Note:

It is critical to receive a distinct verdict in respect of each accused on each separate count. Also, in cases where an alternative or lesser charge is available if there is a verdict of “not guilty” on the substantive charge, it must not be forgotten to put forward the alternative charge and take a verdict on it.

After the foreperson has announced the verdict(s), the associate or judge then interrogates the whole jury as follows.

4. Receipt of verdict — majority verdict scenario

If a verdict of “guilty” — “Your foreperson has said that the (first) accused is guilty of the (first) count as charged (or not guilty as charged but guilty of the alternative charge of …).”

The above should then be repeated in respect of all accused.

If a verdict of “not guilty”, follow the above with the substitution of “not guilty” for “guilty”.

Notes