Special Bulletin 16 - Jury Amendment (Verdicts) Act 2006 No 19

Special Bulletin 16 — May 2006

This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book

Jury Amendment (Verdicts) Act 2006 No 19

The Jury Amendment (Verdicts) Act 2006 (attached as Appendix “A”) received assent on 15 May 2006 and is anticipated to commence shortly by proclamation. It allows for majority verdicts in criminal trials.

In preparation for the commencement of the legislation the Commission’s Criminal Trial Courts Bench Book Committee undertook a review of the directions and procedures of other jurisdictions which allow for majority verdicts. The Committee also sought the views of the Justices in the Common Law Division of the Supreme Court and District Court Judges in relation to four issues:

(1): Should there be any reference to majority verdicts in the summing up or should the Judge only address the jury in terms of a requirement that there be unanimous verdicts?
(2): Where before the 8 hours is up (see s 55F(2)(a) of the Act) and the jury informs the Judge that they cannot agree, should a Black v The Queen (1993) 179 CLR 44 direction be given without any reference to a majority verdict?
(3): Should the Judge discharge the jury for disagreement before the 8 hours is up?
(4): What practice should be adopted by the Judge’s Associate when taking the verdict? Should the jury be asked whether the verdict was unanimous or by majority of 11 jurors?

The following discussion sets out amendments to the Bench Book consequent on the new legislation and provides suggested directions where appropriate.

APPLICATION OF THE ACT — TRANSITIONAL PROVISIONS

The majority verdict amendments apply to criminal proceedings only if the jury is empanelled after the commencement of those amendments: clause 18(1), Schedule 8, Part 9 Jury Act 1977. This is subject to an exception contained in clause 18(2), Schedule 8, Part 9 Jury Act 1977:

Despite subclause (1), those amendments do not apply in criminal proceedings where the jury is empanelled after the commencement of those amendments (“current offence proceedings”) if:

(a)

in earlier criminal proceedings against the accused, in relation to an offence or conduct that occurred on the same occasion as the occasion to which the current offence proceedings relate:

(i)

the jury was discharged because the jurors could not reach a verdict, or

(ii)

a decision in those proceedings was set aside on appeal and a retrial ordered, or

(iii)

the trial was aborted, and

(b)

the jury was empanelled in those earlier proceedings before the commencement of those amendments.

COMMONWEALTH OFFENCES

The Act provides that the majority verdict amendments in the Act do not apply to trials on indictment for Commonwealth offences: s 55F(4). Section 80 of the Australian Constitution has been interpreted to require unanimous verdicts for those trials: Cheatle v The Queen (1993) 177 CLR 54.

Consequential amendments to the Bench Book

The last paragraph of the current suggested directions in the Bench Book at [3-600] (Onus and standard of proof) and [7-020] (Summing up - commencement) state:

“Under our system of law, your verdict [on each count], whether it be ‘guilty’ or ‘not guilty’, must be unanimous. We do not, in this State, recognise majority verdicts. That is not to say that each of you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either ‘guilty’ or ‘not guilty’ [in relation to each charge] must be the decision of all of you, unanimously, before it can become your verdict.”

The above passages at [3-600] (Onus and standard of proof) and [7-020] (Summing up - commencement) will be replaced by the following:

“Under our system of law, your verdict [on each count], whether it be ‘guilty’ or ‘not guilty’, must be unanimous. As this is a prosecution for a Commonwealth offence, majority verdicts are not recognised. That is not to say that each of you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either ‘guilty’ or ‘not guilty’ [in relation to each charge] must be the decision of all of you, unanimously, before it can become your verdict.”

The directions in sections of the Bench Book titled “Return of the Jury” at [8-000]ff and “Prospect of Disagreement” at [8-050]ff remain valid for Commonwealth offences tried on indictment.

STATE OFFENCES — Suggested directions and procedure

1) Should there be any reference to majority verdicts in the summing up or should the Judge only address the jury in terms of a requirement that there be unanimous verdicts?

The Bench Book Committee decided that the Bench Book should contain a brief reference to a majority verdict or majority verdicts in the summing up. The reasons for doing so are set out in the Notes to the direction below:

Consequential amendments to the Bench Book

A new suggested direction will be added for State offences for the summing up portions of the Bench Book at [3-600] and [7-020] quoted above:

[Suggested direction — State offences]

“Under our system of law, your verdict [on each count], whether it be ‘guilty’ or ‘not guilty’ ought be unanimous. That is not to say that each of you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either ‘guilty’ or ‘not guilty’ [in relation to each charge] must be the decision of all of you, unanimously, before it can become your verdict.

As you may know, the law permits me, in certain circumstances, to accept a verdict which is not the verdict of you all. Those circumstances have not as yet arisen, so that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should, however, the time come when it is possible for me to accept a verdict which is not unanimous, I will give you a further direction.”

Notes

1.

In England the jury is told briefly in the summing up about the possibility of a majority verdict: The Consolidated Criminal Practice Direction at 46.1 found at http://www.hmcourts-service.gov.uk/cms/pds.htm and Archbold (2005) at 4-433, p 504. The Practice Direction further states:

So far as the summing-up is concerned, it is inadvisable for the judge, and indeed for advocates, to attempt an explanation of the section for fear that the jury will be confused.

In R v Shields [1997] EWCA Crim 384 it was accepted that the “reality of the situation” is that the jury would already know about the concept of a majority verdict.

2.

In Victoria the judge tells the jury briefly in the summing-up without elaborating upon the details of the provisions: R v Muto & Eastey [1996] 1 VR 336 at 339; (1995) 83 A Crim R 67 at 71. The stated rationale for this is that it is better to be frank with the jury. It does not pretend that majority verdicts are not possible. It does not confuse them with premature and largely irrelevant information about the effect of the majority verdict section. It makes it clear that their verdict should be unanimous and encourages them to put the possibility of a majority verdict out of their minds. The Muto approach is said to be “authoritative guidance” to Victorian trial judges: R v Di Mauro [2001] 3 VR 62 at 64 [11]. Muto was recently affirmed in R v Munro [2005] VSCA 260 at [58].

3.

In South Australia the position is not clear cut. The cases of R v Rusovan (1994) 62 SASR 86; BC9400658 and R v K (SACCA, 13 June 1997, BC9702969) appear to favour the Victorian approach in Muto but there is reference in R v K to other South Australian authority (R v Harrison (unreported) 24 April 1997) which favours a different approach. On these authorities, there is no single consistent approach to the question whether the jury should be informed in the summing up of the possibility of a majority verdict.

4.

In Western Australia and Northern Territory the jury is not told about the possibility of a majority verdict when they first retire: Pearmine v R [1988] WAR 315 at 321; Tipiloura v R (1992) 106 FLR 71 at 73; CEV v R [2005] NTCCA 10. The rationale for taking such a course is explained in CEV v R [2005] NTCCA 10 at [16]. In the Northern Territory, if the jury asks a question about majority verdicts before the relevant time has come, the judge gives a Muto type direction: CEV at [17]–[19].

2) Where before the 8 hours is up (see s 55F(2)(a) of the Act) and the jury informs the Judge that they cannot agree, should a Black direction be given without any reference to a majority verdict?

The preponderance of views, including the Committee’s, was that the Bench Book should contain a Black direction without any reference to a majority verdict. The accused should be given the benefit of the deliberative process described by the High Court in Cheatle v The Queen (1993) 177 CLR 541 at 552–553. However the Black direction should be modified and not refer to discharge for lack of unanimity since this would defeat the purpose of s 55F.

Consequential amendments to the Bench Book

A new direction will be inserted in the Bench Book after [8-060].

Suggested perseverance direction before the preconditions of s 55F(2) are satisfied.

“I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation.

The circumstances in which I may take a majority verdict have not yet arisen and you should still consider that your verdict of guilty or not guilty must be unanimous.

Experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has [sworn/affirmed] that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom, and you are expected to judge the evidence fairly and impartially in that light.

You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong.

That is not, of course, to suggest that you can, consistently with your [oath/affirmation] as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

[If appropriate additional directions approved in R v Tangye (1997) 92 A Crim R 545

I remind you your verdict — whether it be ‘guilty’ or ‘not guilty’ — must be a unanimous one.

All twelve of you must, in the end, agree upon that verdict. It may be that the particular paths which lead each of you to that unanimous decision are not quite the same, but, nevertheless, your verdict of ‘guilty’ or ‘not guilty’ must be the verdict of you all. In other words, provided that you all agree that a particular verdict should be given, it does not matter that you do not agree as to why that particular verdict should be given.]

Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged.

So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict in this trial.”

Notes

1.: The above direction is in similar terms to R v Muto & Eastey [1996] 1 VR 336 at 341–344 affirmed in R v Di Mauro (2001) 121 A Crim R 447 at 450 particularly [13]–[14]. In R v VST [2003] VSCA 35 at [38] a proposal is made for a response where the jury says it is deadlocked shortly before the expiry of the statutory period (six hours in Victoria):

Where a jury returns pleading deadlock shortly before the expiry of the six hours referred to in s 46, then, even in a case where the judge considers that six hours is a reasonable time for deliberation, it would perhaps be wiser for the judge, instead of mentioning the possibility of taking a majority verdict once the six hours has expired, to send the jury back to their room to persevere in their deliberations, for the time being. In this case, that would have meant sending the jury back at, say, 4.30 p.m. to deliberate for a further period and then at, say, 5 p.m., recalling them to the courtroom, without any need for prior notice, to see if they had reached a unanimous verdict. If at that point the foreman said that they were still deadlocked although 11 were in agreement, it would be time enough for the judge to consider s 46(2) and (3). That should avoid any problem such as was agitated on this application.

3) Should the judge discharge the jury for disagreement before the 8 hours is up?

The Bench Book Committee came to the view that the jury should not be discharged but given a perseverance direction. The question raises an issue of statutory construction.

On one view, s 56(1) when read with s 56(2) (see attached Act), eliminates a discretion to discharge a jury before 8 hours without asking the jury whether a majority verdict is likely.

In the Second Reading speech the Attorney General said:

There is no discretion to discharge a jury of 11 or 12 people simply because they have not agreed on a unanimous verdict. The bill places an obligation on the trial judge to first inquire as to whether a unanimous verdict is possible. If it is not; then the trial judge should give directions to the jury about majority verdicts. It is only once it becomes clear that a majority verdict cannot be reached that the jury can be discharged.

The Explanatory Note to the Bill reads:

Schedule 1 [1] also substitutes section 56 of the Principal Act to allow the court to discharge a jury consisting of 11 or 12 persons if it finds that it is unlikely that the jurors will reach a unanimous or majority verdict. Proposed section 56 also makes it clear that a jury cannot be discharged by the court if the court finds that it is likely that the jurors will reach a majority verdict. The provisions relating to the discharge of juries in existing section 56 are re-enacted in relation to juries consisting of 10 persons or less.

The alternative view is that s 56(2) is only operative after 8 hours has passed and the court is satisfied that the time for taking a majority verdict has arrived. Prior to that time it is permissible for the judge to discharge the jury if it cannot agree. But even if it is suggested that a discretion to discharge exists, it would be a rare case where a judge would discharge a jury before 8 hours. Much would depend on the particular circumstances of the case.

Suggested perseverance direction and majority verdict direction after the preconditions of s 55F(2) are satisfied and the time for taking a majority verdict has arrived

The circumstances have arisen in which I may take a majority verdict. I direct you that should you continue to be unable to reach a unanimous verdict you may return, and I must accept, a verdict of eleven [or ten where there are eleven jurors] of you as the verdict of the jury in this case. However you should consider that it is preferable that your verdict be unanimous and you should continue to strive to reach a unanimous verdict.

That is not, of course, to suggest that you can, consistently with your [oath/affirmation] as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

As I have said you should continue your deliberations with a view to reaching a unanimous verdict. If, however, that becomes plainly impossible but you are able to reach a verdict by agreement of eleven of you [or ten where there are eleven jurors] you may return such a majority verdict in this case, that is to say a verdict of eleven out of twelve of you [or ten where there are eleven jurors]. These alternative ways are the only ways in which you may return a verdict according to law.

So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict in this trial.”

Notes

1.: In R v Muto & Eastey [1996] 1 VR 336 at 343 it is contemplated that a judge who considers that the time for taking a majority verdict has arrived will nevertheless tell the jury that it is still preferable that they should endeavour to reach a unanimous verdict but if they cannot all agree, a majority verdict may be taken. This position was affirmed in R v Di Mauro (2001) 121 A Crim R 447 at 450.

4) What practice should be adopted by the Judge’s Associate when taking the verdict? Should the jury be asked whether the verdict was unanimous or by majority of 11 jurors?

The Bench Book Committee came to the view that the Bench Book should not be amended so that the jury is asked whether the verdict was unanimous or by majority. This applies to both “guilty” and “not guilty” verdicts. The answer has no legal effect and is largely satisfying curiosity. It avoids giving an appearance that a majority verdict is somehow inferior or substandard to a unanimous verdict when in fact the Parliament has decreed they are as good as one another.

Consequential amendments to the Bench Book

A new part will be added after “[8-020] Recommended steps” to deal with a majority verdict(s) scenario:

Recommended steps — Majority verdict(s) scenario

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 inquires 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

1.: In some jurisdictions which allow majority verdicts the Parliament mandated that the jury must be asked whether the verdict is unanimous or by majority. The NSW Amending Act does not have such a provision. For example, in England and Wales the House of Lords held in R v Pigg [1983] 1 WLR 6 that s 17(3) of the Juries Act 1974 mandates such a course for guilty verdicts (see also The Consolidated Criminal Practice Direction (cited above) and R v Millward [1998] EWCA Crim 1203). Ireland also has similar legislation. Section 25(2) of the Criminal Justice Act 1984 provides:

The court shall not accept a verdict of guilty unless the foreman of the jury has stated in open court whether the verdict is unanimous or is by a majority in accordance with subsection (1) and, in the latter event, the number of jurors who agreed to the verdict.
2.: In Victoria there is a practice of asking the jury whether the verdict is unanimous or by majority: R v Muto & Eastey [1996] 1 VR 336 at 344; (1995) 83 A Crim R 67 at 75. In South Australia the jury is also asked: R v Rusovan (1994) 62 SASR 86 BC9400658 at 13.

Amendments will be made to the Bench Book to incorporate the above changes.