R v Harris[2025] QCA 58

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  On 29 July 2024, a jury found the appellant guilty of one count of rape and one count of sexual assault.  The jury found the appellant not guilty of a second count of rape.  Each verdict of guilty was a majority verdict.
2. [2]
   The appellant appealed those convictions.  He relied on three grounds.  First, that the learned trial judge made a wrong decision of law by discharging a juror, pursuant to s 56(1)(b) of the Jury Act 1995 (the Act).  Second, that a miscarriage of justice occurred by allowing for a majority verdict to be taken in those circumstances.  Third, a miscarriage of justice occurred by allowing the jury unsupervised access to an electronic recording containing preliminary complaint evidence, without being warned to not give that evidence undue weight.
3. [3]
   On 28 March it was ordered:

1. The appeal be allowed.
2. The verdicts of guilty below be set aside.
3. There be a new trial in respect of counts 1 and 2.

4. [4]
   These are my reasons for joining in the making of those orders.

Indictment

5. [5]
   Each count on the indictment related to events involving one female complainant, whilst she was in the bedroom of the appellant on the morning of 9 July 2022.
6. [6]
   The Crown particularised the first count of rape (count 1), as penetration of the complainant’s vagina by the appellant, with his finger/s, without her consent.  The sexual assault count (count 2), was particularised as the appellant touching the complainant on the breast/s, without her consent.  The second count of rape (count 3), was particularised as penile intercourse by the appellant with the complainant, without her consent.

Evidence

7. [7]
   The complainant gave evidence that she had met the appellant through work, about three years prior to the night in question.  They would speak from time to time over the telephone and sometimes meet in person.  For approximately two weeks they were regularly exchanging text messages.  The complainant accepted there were flirting aspects to them, but said they had ceased prior to the night in question.
8. [8]
   The complainant said she attended the appellant’s house, at his request, on 8 July 2022.  The appellant told her there was not going to be anyone else present.  She arrived with a four-pack of alcohol.  She was surprised to see other people at the house.  None of them were known to her.  During the evening she drank the alcohol she had brought with her.  She also ate a brownie provided by the appellant.
9. [9]
   The complainant said later in the evening she was cold and decided to leave.  The appellant insisted that as she had been drinking, she sleep at his house.  He gave her two options: to sleep in his bedroom, or his daughter’s bedroom.  The complainant said she did not feel comfortable sleeping in the daughter’s bedroom and decided to sleep in the appellant’s bedroom.
10. [10]
    The complainant said she went to bed well before the appellant, who remained socialising with the other people.  She was wearing two pairs of pants and a tracksuit pair of pants that had been provided by the appellant.  Sometime in the early hours of the morning, the appellant got into the bed.  The complainant turned to face him.  At that point, the appellant tried to kiss her.  She pushed him away.  She also turned to face away from him.
11. [11]
    The complainant said the appellant moved his body near to her and commenced touching her.  She told him repeatedly to leave her alone.  The appellant persisted with touching her, including trying to pull down her pants.  She pushed his hand away numerous times.  The appellant then put his hand into her pants and placed a finger into her vagina (count 1).  At no point did she say she wanted him to do so.
12. [12]
    The complainant said the appellant continued to grab and grope parts of her body, including her left breast (count 2).  She told him “up to 30 times in different ways”, that she did not want this to happen and continually tried to push his hand away.
13. [13]
    The complainant said she then felt the appellant’s body move and the appellant’s penis enter her vagina (count 3).  She asked the appellant if he was wearing a condom.  He replied, “No, but I can put one on if you want”.  The complainant got up and pulled up her pants.  The appellant asked her why she was putting her pants back on saying, “You should be taking them off”.  The complainant told him she was going to leave.  The appellant said he would make “a pinkie promise” not to touch her anymore.
14. [14]
    The complainant asked the appellant if she was able to leave the house without keys to the front door.  The appellant replied, “No.”  The complainant said she asked if he would let her out.  They both then went to the door.  The complainant said she immediately drove to the local police station.  Police arranged for her to attend hospital where she underwent an examination with a registered nurse.
15. [15]
    The complainant subsequently made a telephone call to the appellant, at the police request.  That call was recorded by police.  During that conversation, the appellant said he remembered the complainant pushing his hand away.  He also apologised, when the complainant said she had not given him consent.
16. [16]
    The complainant said she also received a text message from the appellant in the morning, apologising for “being frisky”.  The appellant said, “having you next to me sent me a bit wild and I couldn’t help myself”.
17. [17]
    In cross-examination, the complainant agreed she did not once say, in the telephone call to the appellant made at the police request, that the appellant had put his fingers and his penis into her vagina.  She denied that was because the appellant did neither.  She agreed that their text messaging included an emoji, sent by the appellant, which she understood as indicating sexual attraction to her.  She had also sent him a photograph with a view to sexually arousing him.  She did not agree that she was sexually interested in the appellant.
18. [18]
    The complainant also accepted that she had taken alcohol with her to the appellant’s house, but denied it was to have a party with him alone.  She also denied that it was her intention to be romantically engaged with him that night.  The complainant accepted that she felt out of place when she arrived at the appellant’s house and found other young people there.  She accepted she used drugs that night.  She denied dancing closely with the appellant.  She also denied cuddling up to him for warmth.
19. [19]
    The jury also heard evidence from four people who were present at the appellant’s house on the night in question.  They gave evidence of the complainant sitting close to the appellant, in their presence.  One described them as being “flirtatious”, another described their interaction as very touchy-feely.
20. [20]
    A registered nurse gave evidence of performing an examination of the complainant at the hospital.  DNA analysts gave evidence that the results of DNA testing of swabs taken in the course of that examination strongly supported the appellant being a contributor to the DNA profile.
21. [21]
    The appellant did not give or call evidence.  However, the appellant did partake in an interview with police on 9 July 2022.  That interview, which was recorded and played to the jury, commenced at 1.10 pm on 9 July 2022.  It took place after police had executed a crime scene examination of the appellant’s house.
22. [22]
    During that interview, the appellant told police that he was probably under the influence of marijuana and alcohol but felt he was still able to answer questions.  The appellant agreed that the complainant had been at his residence that night.  They had been drinking, dancing and having a good time.  She came to his house at his invitation.  There were five other people at the house.  The complainant had the option of sleeping either in his daughter’s bedroom, or in his bed.  They had been cuddling whilst dancing, earlier in the night.  The appellant said he had not discussed with the complainant, intimacy, but he could tell from her text messages, which were flirty, that she wanted to be intimate.  The complainant knew that he proposed to sleep in his bed.
23. [23]
    The appellant told police that when they were both in bed, the complainant had indicated she wanted to go home because she had an exam the following week.  He walked her to the front door and wished her a safe drive home.  The appellant said, in response to police outlining the complainant’s allegations of digital and penile rape, that it was “not how I remember it”.  They had “played around” in bed.  He did not want to go into further detail.
24. [24]
    During the interview, police asked the appellant about the pretext telephone call between him and the complainant.  The appellant said the conversation was “about last night and how [the complainant] felt uncomfortable”.  He was a little bit shocked because he did not agree with how she said things had happened.  He accepted that he had apologised to the complainant in that conversation.  Using the word “sorry” was “just because we got frisky, like, or like playing around”.  The appellant also accepted that he had sent a text message to the complainant that morning.  He had said sorry in that text because he had never meant for anything to happen.  The emoji he sent was not crying; it was “hot and heavy”.

Jury deliberations

25. [25]
    The jury retired to consider their deliberations at lunch time on day three of the trial.  The evidence had concluded on the afternoon of day two and addresses had taken place on the morning of day three.  The jury were sent home at 4.30 pm and returned and commenced deliberating at 9.00 am on the morning of day four of the trial.  That afternoon, the jury sent two notes to the trial judge.  The first asked a question in relation to count 1.  The second indicated that despite their best endeavours, they were unlikely to reach a unanimous decision in respect of count 3.
26. [26]
    After receiving submissions from counsel, the trial judge indicated that he would give redirections in full in relation to mistake of fact and in response to the note in respect of count 1.  The trial judge continued, “Insofar as the second question is concerned, unlikely to reach a unanimous decision, it seems to me that a Black Direction would be appropriate at this stage”.  However, the trial judge said that as they had been deliberating all day and it was a very long day, he would redirect the jury in respect of count 1 and ask if they would like to continue with the deliberations, indicating that there was another direction that he could give them in relation to count 3, but asked whether they would prefer to leave it until the following Monday morning.
27. [27]
    Consistent with that indication, the trial judge redirected the jury in respect of matters relevant to the note in respect of count 1 and said, in relation to the second note:

“Now, in relation to your second note, which relates to count 3, there is a direction that I can give you but first, I wanted to ask you this question: you have been deliberating since 9 o’clock this morning, so you had an early start.  I was not intending on letting you go until 4.30 this afternoon because that is an extremely long day to be deliberating and I know it is exhausting.  So I was minded to end the day’s proceedings at 4 o’clock this afternoon but I wanted to ask you would you prefer to continue deliberating now until 4 o’clock, after I give a further direction, and you can go outside and discuss this amongst yourselves before you answer this, or alternatively, you may wish to – you can either keep deliberating until 4 o’clock if you wish to do so but if you do not wish to do so, I am just as happy to adjourn the proceedings for the day and we will come back on Monday morning, starting fresh again and I will give you, I think, then the direction that I can give you because it would be more appropriate to do it closer to the time that you are deliberating.

So those are your two options but would you like to discuss it amongst yourselves?  Take a few minutes to discuss it and let me know what you want do and I will do whatever you prefer.  All right.  All right. Well, if you go with the Bailiff to the jury room and let him know when you have [indistinct] what you are doing or what you would like to do.”^[1]

28. [28]
    After the jury retired to continue their deliberations.  The trial judge said to counsel:

“I should indicate this as well: they are now past the eight hours of deliberation.  I have only allocated half an hour on each day for the lunch break that was non-deliberative time.  So they are past that period.  I do not intend, at this stage, to give a majority verdict direction.  It seems to me a Black Direction is appropriate only but we are now at the stage where the majority verdict direction can be given once an appropriate indication is given.”^[2]

29. [29]
    After the jury had deliberated for approximately 40 minutes, the trial judge reconvened the court.  The trial judge advised counsel that he was not offering them to continue deliberations beyond 4.00 pm because, “when I suggested the possibility of going home at about 20 past 3, I noticed four or five of them were all nodding their head, saying – indicating they wished to leave at that stage and about three or four were shaking their head, indicating they wished to stay on.  So it is quite apparent that some have had enough for the day.  I do not want to push it beyond the time that they have already given us today.  It has been a long day for them.”^[3]
30. [30]
    Upon the jury returning to the court room, the trial judge recorded that one of the jurors, who had been excused from jury duty the following week, had indicated that they had been able to arrange to continue deliberations on the Monday morning.  The trial judge confirmed that with the jury, before adjourning their deliberations to commence at 9.00 am on the following Monday.
31. [31]
    At 9.18 am on that Monday morning, the trial judge advised counsel that information had been conveyed to the court, that morning, that the juror who had been excused for this week had contacted the court to say that his wife had collapsed the previous night and was currently in hospital.  The trial judge continued:

“We understand that he would be with her, but that is the only information that we have.

He’s uncontactable at the moment.  His phone seems to be switched off.  That might be a requirement depending upon what part of the hospital she’s in.  I know that some parts of hospitals require mobile phones to be turned off, but we can’t obtain any further information.

So I wanted to place this on the record.  It is not known therefore what the problem is with his wife, how serious it is and when or if he may become available.  But it must be noted that he still has an excusal from tomorrow onwards.”^[4]

32. [32]
    After affording counsel the opportunity to obtain instructions on whether the matter should proceed with 11 jurors, rather than 12, the trial judge resumed, four minutes later.  Defence counsel observed that s 56 of the Act gave ample discretion for the trial judge to discharge the juror, but informed the trial judge that he had received instructions to oppose the exercise of the discretion in that way.  Defence counsel submitted that the jury had been deliberating for a day and a half, which was a long deliberation and had indicated a deadlock.  There was also a concern that any opinions or input that juror had provided in the course of deliberations to date, had the potential to continue to influence the jury without any ability to reconsider or explain those opinions or input.  The Crown submitted that it was appropriate to continue with 11 jurors as it was, at that stage, not known whether the juror was to return and if so, whether he would be capable of discharging his duty whilst his wife was sick in hospital.
33. [33]
    After receiving those submissions, the trial judge ruled:

“… Well, history of this matter relevantly is that the trial started on Tuesday of last week.  The jury retired to consider its verdicts halfway through the Thursday.  The juror in question indicated – notified the Court – or reminded the Court – it was noted in the registry which was not passed on to the courtroom itself that he had been excused for this week.  He then made a phone call, I understand it, and subsequently advised the court that, notwithstanding the excusal, he would be able to be present today.  But the reason for his excusal in the first place is not known to me.

The juror, up until this point in time, has appeared to have done everything within his power to ensure that he would continue to act as a juror.  And I have no reason to doubt the veracity of the information which has been supplied to the Court this morning in relation to his wife’s health condition and her current position being in hospital.

It appears to me therefore that the juror in question is incapable of continuing to deliberate in this matter (1) because he quite obviously needs to be at the hospital if his wife is so unwell as to be hospitalised after what was described as a collapse, and (2) even if he were here, one could not reasonably expect anyone under such circumstances to be able to focus their mind on this matter when he has got that family issue going on at the same time.  That enlivens the discretion of the Court under section 56 of the Jury Act.

Proceeding with 11 is opposed by the defence, the principal argument being that the juror in question may have offered some opinion that cannot now be dissected further, questioned about or argued with.  But the simple fact of the matter is that they have been out for a day and a-half.  Any opinions that have been proffered would have been proffered well by now and no doubt discussed.  And I have no reason to doubt the ability of the remaining 11 jurors to take into account anything that the juror in question may have said and to make an appropriate assessment in that regard.

It seems to me that, given the stage that this trial is now at, it is in the interests of justice to proceed with 11 jurors.  And there is no inherent – well, no unfairness in fact at all in making an order allowing for that position to take place.

So I will order that the juror in question which is Juror number 1 be discharged from further jury service on this trial and that the trial will proceed with 11 jurors.  I will just get the jury in, gentlemen, to explain to them that Juror number 1 has had a health – family health crisis.  And we will be proceeding with 11.  All right.  Just bring them back in briefly.  Thank you.”^[5]

34. [34]
    Following that ruling, the trial judge informed the jury that juror one had encountered a family health crisis over the weekend, resulting in him not being present that morning and that upon the information received, the trial judge had decided to discharge that juror from further service.  The trial judge said the trial would continue with 11 jurors, rather than 12 and that they were to continue their deliberations.  The trial judge reminded the jury that all directions previously given, “have equal application.  Nothing has changed.  It is just that there is now only 11 rather than 12 of you”.
35. [35]
    The jury retired to continue their deliberations at 9.32 am.  At 9.58 am, the trial judge advised counsel that the jury had sent another note.  It said, “In a jury comprised of 11 jurors, what constitutes a majority sufficient to reach a verdict?”  The trial judge continued:

“So it’s quite obvious that at least one or more members of the jury know of the existence of majority verdicts notwithstanding that they’ve been told they must reach the unanimous verdict at this stage. It seems to me, given the question that’s been asked, it is appropriate that I give them the majority verdict direction at this stage.”^[6]

36. [36]
    The Crown submitted that that course was appropriate.  Defence counsel advised the court that he had instructions to oppose that course, “Especially given that we’re now down to 11, I suppose there’s perhaps greater force to my submission.  But there’s not much more that I can meaningfully say to it.”  The trial judge ruled, “… It seems to me appropriate that a majority verdict be given.”^[7]
37. [37]
    The jury returned to the courtroom at 9.59 am.  The trial judge directed them:

“… I have received the note, ladies and gentlemen.  As you know, I have – as I have directed you up until the present time, any verdict that you reach must be a unanimous verdict, that is one upon which you all agree.  That is the direction that you have been given, that it was the law at the time those directions were given.  But our law also allows for what’s called a majority verdict which, on your note, it is quite obvious that one or more of you know about it.  But I will give you a direction in that regard now.  I will have your note marked for identification – H for identification.

Under our law, a majority verdict is permitted in certain circumstances.  And those circumstances have now arisen in this trial.  It only – it is only after a certain period of time after you have retired to consider your verdict that those circumstances come into play.

Now, a majority verdict means a verdict on which 10 of you are agreed.  So if you cannot all agree on a verdict, a verdict of 10 of you may be taken as the verdict of the jury.  And shortly I shall ask you again to retire and resume your deliberations.  With further deliberations, you may find that you are able to deliver a unanimous verdict in respect of each of these charges or you may find that you are able to deliver a majority verdict on which 11 of you are agreed in respect of one or more of the charges.

In either case, you should inform the Bailiff that you have reached your verdicts.  When you return after having reached your verdicts, the procedure will be a little different from that which I outlined to you before you first retired.

Your speaker will be asked by my Associate whether you have reached a verdict in which all 11 of you are agreed in respect of firstly count 1.  If the answer is yes, then the procedure will be as I originally told you.  If the answer is no, your speaker will be asked whether you have reached a verdict on which 10 of you are agreed.  If the answer is yes, the procedure will then be for my Associate to ask your speaker if 10 members of the jury find the defendant guilty or not guilty.  The speaker will announce the verdict of the majority.  My Associate will then ask you all to confirm that that is the verdict of 10 of you.

If 10 of you have not agreed on a verdict or if you have not informed the Bailiff within a reasonable time that you have reached a verdict, I shall then consider what course to take.  But we will follow that same process then of course for count 2 and count 3.  That all clear?  All right.  Well, I will ask you to go back to the jury room.  Thank you.”^[8]

38. [38]
    At the conclusion of that direction, the jury retired to continue their deliberations.  Less than one hour later, the jury returned majority verdicts of guilty in respect of counts 1 and 2 and not guilty in respect of count 3.

Appeal

Ground 1

39. [39]
    Section 56 of the Jury Act provides:

1. “56
   Discharge or death of individual juror

1. (1)
   If, after a juror has been sworn—

1. (a)
   it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial; or
2. (b)
   the juror becomes incapable, in the judge’s opinion, of continuing to act as a juror; or
3. (c)
   the juror becomes unavailable, for reasons the judge considers adequate, to continue as a juror;

the judge may, without discharging the whole jury, discharge the juror.

1. (2)
   If a juror dies or is discharged before the trial begins, the judge may direct that another juror be selected and sworn.”

40. [40]
    Whilst the trial judge did not specifically record the particular subsection of s 56 which was the basis for the discharge of the jury, a consideration of the trial judge’s reasons for that discharge support a conclusion that the trial judge did so on the basis of satisfaction of s 56(1)(b) of the Act, namely, that the juror had become incapable, in the trial judge’s opinion, of continuing to act as a juror.
41. [41]
    Although s 56 provides a broad discretionary power for a trial judge to discharge an individual juror, a discharge is only available if the pre-condition for that discharge, under s 56 of the Act, is met.  Further, the power to discharge an individual juror, pursuant to s 56(1) of the Act, should only be exercised where the circumstances clearly call for its exercise.^[9]
42. [42]
    Having regard to those limitations, there was an obligation on the trial judge to ensure proper enquiries were undertaken to establish satisfaction of the relevant pre-condition and to place on the record, with precision, the information available to the court from those enquiries, so that both the Crown and defence were fully informed of the basis for the trial judge having formed the requisite opinion.
43. [43]
    In the present case, there was a paucity of information placed on the record as to the enquiries undertaken to determine whether the particular juror was incapable to continue as a juror.  No information was recorded by the trial judge as to attempts by court officials to contact the juror, immediately prior to the resumption of the court on the Monday morning, nor was there any attempt to stand the trial down to ensure that such enquiries were made.  Such a course would not be unreasonable, in circumstances where the defence, properly, opposed a discharge of the juror after such lengthy deliberations.
44. [44]
    However, on the information that was placed on the record, it cannot be said that the opinion reached by the trial judge was not open.  Accordingly, it has not been established that the trial judge erred in discharging the juror.

Ground 2

45. [45]
    Whilst the discharge of the juror was open, an issue that required consideration was whether it was appropriate to receive a majority verdict from a jury now comprising only 11 jurors.
46. [46]
    Section 57 of the Act empowers the trial judge to direct that the trial continue with the remaining jurors.  However, proceeding to receive a majority verdict from that jury, could only take place if the pre-conditions set out in s 59A of the Act had been satisfied.  It was incumbent on the trial judge to record the satisfaction of those pre-conditions, prior to directing that majority verdict be permitted.
47. [47]
    Here, the relevant pre-condition was satisfaction that the jury is unlikely to reach a unanimous verdict after further deliberation.  As was observed in R v McClintock:^[10]

“… The most certain way of ascertaining the fact is to question the jury about the prospect of unanimity.  Another would be to give a Black direction after the expiration of the prescribed period and wait a further reasonable time (which the judge must assess).  If there is still no verdict the existence of the requirement might be inferred.”

48. [48]
    The trial judge made no such enquiry of the jury.
49. [49]
    Whilst the trial judge had, after discharge of the juror, directed the jury to continue with the deliberations in accordance with the previous directions (which included the necessity for unanimity), the trial judge, upon receiving a note from the jury enquiring as to what constitutes a majority verdict, took no steps to remind the jury that there was a necessity for unanimity, notwithstanding that there were now 11 jurors.
50. [50]
    Further, the trial judge proceeded to direct the jury as to the availability of a majority verdict, without first directing them, in accordance with Black^[11] and without thereafter affording the jury a further reasonable opportunity for a deliberation of a verdict on the basis of unanimity.
51. [51]
    The trial judge’s failure to first take those steps was a matter of real significance to whether there had been satisfaction of the pre-condition that the jury was unlikely to reach a unanimous verdict.  Such a failure was an “irregularity or failure to strictly comply with the rules of procedure”.^[12]
52. [52]
    Such an irregularity is a miscarriage of justice.  It is “prejudicial in the sense that there was a ‘real chance’ that ‘it affected the jury’s verdict…’ or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’.”^[13]

Ground 3

53. [53]
    The conclusion reached on ground 2 rendered it unnecessary to consider this ground.

54. [54]
    BROWN JA:  I have had the benefit of reading Justice Boddice’s reasons.  I gratefully accept and adopt his Honour’s summary of the evidence in this matter.  I agree with his Honour’s reasons in relation to ground 1.  I agree with his Honour that the appeal should be allowed in respect of ground 2 for the following reasons.
55. [55]
    Section 57 of the Jury Act enables a trial to continue after the discharge of a juror where there is no reserve juror available to take the juror’s place.  Section 57(2) however provides that a criminal trial cannot continue with less than 10 jurors.
56. [56]
    Section 59A extends to a jury where a juror has been discharged.  Section 59A(6) defines “majority verdict” to mean:

“…

1. (b)
   if the jury consists of 11 jurors ­— a verdict on which at least 10 jurors agree.”

57. [57]
    Section 59A(2) provides that “[i]f, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation, the judge may ask the jury to reach a majority verdict.”
58. [58]
    There are two preconditions that are required to be met under s 59A(2) before a judge may ask the jury to reach a majority verdict, if the offence on indictment allows for a majority verdict.^[14]
59. [59]
    There is no issue that the first precondition was met, because the prescribed period^[15] had passed in the present case before the direction was given.  The question in this appeal concerns the second precondition and whether the learned District Court judge had satisfied himself that the jury was unlikely to reach a majority verdict after further deliberation.
60. [60]
    The District Court judge did not state the basis upon which he was satisfied of the second precondition, notwithstanding the objection of the defence counsel to a majority verdict being permitted.
61. [61]
    The direction was given after the jury handed in a note that asked “In a jury comprised of 11 jurors, what constitutes a majority sufficient to reach a verdict?”  The submissions of the Crown and the defence did not refer to the second precondition of a unanimous verdict being unlikely to be met as needing the be satisfied.  The District Court trial judge in his reasons only referred to the fact that the jury had exceeded the prescribed period and that he considered that “… given the question that’s been asked, it [was] appropriate that [his Honour] give them the majority verdict direction”.^[16]
62. [62]
    The use of the word “appropriate” by his Honour does not of itself suggest that his Honour was satisfied with both preconditions of s 59A(2) of the Jury Act given the context in which it was used.
63. [63]
    In the District Court judge’s trial directions to the jury in relation to the majority verdict his Honour only adverted to the requirement that the prescribed period had passed:^[17]

“Under our law, a majority verdict is permitted in certain circumstances. And those circumstances have now arisen in this trial. It only – it is only after a certain period of time after you have retired to consider your verdict that those circumstances come into play.”

64. [64]
    As was recognised in R v McClintock,^[18] a judge’s satisfaction on the unlikelihood of a jury reaching a unanimous verdict “is not readily amendable to appellate correction”.^[19]  Even if the basis of satisfaction of the precondition is not explicitly stated, the circumstances in which the decision is made to direct a majority verdict may well allow for a judge’s satisfaction to be inferred.  Justice Chesterman however further stated in McClintock: “That having been said it is appropriate to caution that a majority verdict may not be taken unless there is sufficient evidence of the unlikelihood of a unanimous verdict.”^[20] The “sufficient evidence” which may satisfy a trial judge of the precondition will, obviously enough, depend on the circumstances of the trial.  It will often be satisfied by the trial judge having first given a Black Direction and further time being given to see whether a unanimous verdict was reached or the result of the trial judge making further enquiries of the jury which considers a unanimous verdict can’t be reached.^[21]
65. [65]
    While the present matter was a short trial which did not have any particular complexity, the fact the jury had only been reduced to eleven jurors a short time before the question as to a majority verdict was asked and the statement that His Honour considered it was appropriate to direct a majority verdict, make it difficult to infer that the District Court judge was satisfied of the second precondition.
66. [66]
    The question from the jury was equivocal and of itself insufficient to satisfy the precondition that they were unlikely to reach a unanimous verdict, particularly when the jury had only spent some 30 minutes deliberating as a differently constituted jury prior to their raising the question of the majority verdict.  The question may have been asked by the jury in anticipation of the possibility that they couldn’t reach a unanimous verdict, not that they could not reach a unanimous verdict.  The jury had not been specifically reminded about the need to reach a unanimous verdict when the number of jurors was reduced to eleven after the juror was discharged, as opposed to being reminded all previous directions still applied.
67. [67]
    No inquiries were made of the jury as to their ability to reach a unanimous verdict, nor did his Honour give a Black Direction^[22] as he had foreshadowed on the Friday afternoon before releasing the jury for the weekend:^[23] “I do not intend, at this stage, to give a majority verdict direction.  It seems to me a Black Direction is appropriate only but we are now at the stage where the majority verdict direction can be given once an appropriate indication is given”.  Little time had passed in terms of the jury’s deliberations between that observation being made by the District Court judge and his Honour directing a majority verdict could be given.  Notwithstanding the caution to be exercised in relation to appellate intervention in the District Court judge’s decision, in the unusual circumstances of this case, his Honour’s satisfaction of the second precondition of s 59A cannot be inferred.
68. [68]
    The power to order a majority verdict was therefore not enlivened under s 59A.
69. [69]
    The trial was therefore not one that was one carried out according to law.^[24]  I agree that the failure to comply with the preconditions of s 59A of the Jury Act involved a miscarriage of justice for the reason stated by Justice Boddice.
70. [70]
    For the reasons above I agreed with the orders of Justice Boddice.
71. [71]
    WILLIAMS J:  I have read the reasons of Boddice JA and the separate reasons of Brown JA.
72. [72]
    In respect of ground 1, I agree with the reasons of Boddice JA.
73. [73]
    In respect of ground 2, there is a divergence in views between Boddice JA and Brown JA.  While both agree that ground 2 has been established so that the appeal should be allowed, the analysis to reach that point is different.
74. [74]
    Boddice JA finds that there was an “irregularity or failure to strictly comply with the rules of procedure” giving rise to a miscarriage of justice.  Brown JA finds that the power in s 59A of the Jury Act was not enlivened, therefore the trial was not carried out according to law and results in a miscarriage of justice.  Both find that the condition in s 59A of the Jury Act was not met.
75. [75]
    Section 59A(2) provides that:

“[i]f, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after future deliberation, the judge may ask the jury to reach a majority verdict”.

76. [76]
    Section 59A of the Jury Act is to be construed in the proper context, which includes the criminal law and procedure of Queensland.^[25]
77. [77]
    Here, there is no issue about the prescribed period having been passed.  The issue is whether there was a basis for the trial judge to reach a level of satisfaction that the jury was unlikely to reach a unanimous verdict.  The jury’s note raised the question of what constitutes a majority verdict where there are 11 jurors.  At best the note was ambiguous.  The note, on its own, did not constitute a sufficient basis to infer that the jury was unlikely to reach a unanimous verdict.
78. [78]
    It is the failure to engage with the second condition that is critical here.  In the majority of circumstances, a Black direction is clearly the appropriate next step and if there is no verdict following an appropriate further period, that would be a basis to infer that the jury was unlikely to reach a unanimous verdict.  That is what the trial judge had in fact identified the afternoon before.
79. [79]
    In some circumstances, the second condition may be satisfied without those steps.  For example, a clear, unambiguous note from a jury that they had reached an impasse and a unanimous verdict was impossible.
80. [80]
    Further, in some circumstances it may be appropriate for a trial judge to discharge the jury without asking the jury to reach a majority verdict.  Again, this depends on the circumstances in a particular case.
81. [81]
    In the particular circumstances of this case, the constitution of the jury had changed with the discharge of one juror.  The question from the jury was ambiguous (particularly given the change in constitution of the jury) and a direction in accordance with Black and a further opportunity for deliberation of a unanimous verdict was appropriate before proceeding to consider whether the jury of 11 jurors was unlikely to reach a unanimous verdict.
82. [82]
    The trial judge purported to exercise the discretion in s 59A of the Jury Act to accept a majority verdict.  The reasons and direction of the trial judge do not record satisfaction as to the jury being unlikely to reach a unanimous verdict and there is no apparent basis for it to be inferred.  The exercise of the discretion was an irregularity.^[26]
83. [83]
    I agree with the approach of Boddice JA and that ground 2 has been established giving rise to a miscarriage of justice.
84. [84]
    For these reasons, I agreed with the orders proposed by Boddice JA.