R v Schulz[2025] QCA 75

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  I agree, for the reasons given by Bradley JA, that it was not open on the evidence before the learned trial judge, including the juror’s own statements, to have found that the discharged juror “is not impartial” for the purposes of s 56(1)(a) of the Jury Act 1995 (Qld).  There were troubling aspects to that juror’s seventh note, including her apparent perception that it was within the power of the jury to “vote” that she “should go”.  But the seventh note did not reveal a basis to conclude the juror herself was not, or appeared not to be, impartial.  Nor could any lack of impartiality on the part of this juror be inferred, as the respondent submitted on the appeal, from the earlier jury notes.  That submission involves an unacceptable degree of speculation, and is inconsistent with the trial judge’s observation, that the earlier jury notes were consistent with a jury which was doing its job properly.  The decision to discharge the juror is also not capable of being justified, as the respondent sought to do, on some other basis than was decided by the trial judge, for example, that there was some “other reason” the juror ought not be allowed or required to continue to act as a juror, namely, their desire to leave and difficulties communicating with the other jurors.  That was simply not canvassed by the trial judge.^[1]  And, as Bradley JA observes in paragraph [49] below, if, hypothetically, that had been the basis for deciding to discharge the juror, there were powerful reasons not to do so in the circumstances of this case.
2. [2]
   The observations at the start of Bradley JA’s reasons, as to the inherent difficulty involved in conducting a criminal trial, are entirely apt.  In this case, there was the added pressure of the jury issues arising on day 14 of the trial, when the summing up had just commenced, and the understandable desire to do what was most efficient to keep the trial going.  This Court has the benefit of calm hindsight, which a trial judge does not have.  However, the proper course was to instruct the jury as a whole that it was not within their power to vote one of their members out, despite their differences; that they were all obliged to perform their duty according to their oath or affirmation; and to proceed to complete the trial with the sworn jury.
3. [3]
   I agree with the orders proposed by Bradley JA.
4. [4]
   BRADLEY JA:  On 9 December 2024, a jury found the appellant guilty of two unlawful stalking counts, and not guilty of an extortion count.  The appellant was sentenced to 18 months’ imprisonment with a parole release date of 9 July 2025.
5. [5]
   The appellant appeals the two convictions, contending that the trial judge erred in law in discharging a juror and that a miscarriage of justice occurred because her Honour allowed the jury to deliberate, after an application to discharge the whole of the jury was refused, and after the juror was discharged and replaced by a reserve juror.
6. [6]
   The appellant also sought leave to appeal the sentence imposed, on the ground that it was manifestly excessive.  For the following reasons, it was not necessary to consider the application for leave to appeal the sentence.

Appeal against conviction

7. [7]
   The appellant had been indicted on the three counts.  She could not be convicted except by the verdict of a jury following a fair trial.  As Gleeson CJ and Hayne J observed of another trial judge’s jury dilemma:

“the central question which the trial judge had to determine which was how best the trial of the appellant should proceed. That required attention to the fair and lawful trial of the appellant by a properly constituted jury and it also required attention to how best that trial might be conducted promptly and without delay.”^[2]

8. [8]
   One can empathise with the trial judge.  Her Honour was faced with an issue that arises rarely.  This unexpected issue emerged on the fourteenth day of the trial, in a flurry of jury questions, submitted when her Honour was part way through summing up.  The trial judge identified the decision of R v Pearce^[3] as a relevant authority on the procedure that might be adopted to navigate the issue.  Her Honour adopted that procedure, with the agreement of counsel.  However, counsel could not assist with an agreed submission on the discharge of the jury or the juror.
9. [9]
   As Fraser JA observed in R v PAR:

“In effect, trial judges are obliged to expect the unexpected in this as in other aspects of criminal trials.  The trial judge must decide upon the appropriate response on the run and in circumstances in which the trial judge has the onerous duty of ensuring that the trial is in that and all respects conducted fairly and in accordance with law. … It is also necessary to bear in mind that an appeal court cannot fully capture the atmosphere at the trial.  … Acknowledging all of those difficulties, this Court nevertheless may be obliged to intervene if the fairness of the trial was put at risk by the course adopted by the trial judge.”^[4]

10. [10]
    A brief recitation of the events at the trial provides the context for the trial judge’s decision and for the challenge to it in the appeal.

The events at the trial

11. [11]
    The transcript of proceedings and the jury questions marked for identification explain the circumstances in which the juror in question was discharged.  Neither party sought to supplement the transcript by other evidence.  There were no additional agreed facts.  The Court was to decide the appeal on that record, including any inferences that may properly be drawn from it.

12. [12]
    Over the first 13 days of the trial, the jury had heard the evidence of 29 witnesses (including the appellant), and 29 documents and recordings had been tendered as exhibits.  The jury had submitted 16 jury notes to the trial judge.  On the 13^th day, after the appellant had finished giving evidence, Counsel had addressed the jury, and at about 3.06 pm, the trial judge had commenced summing up the case for the jury.  The jury retired at about 3.27 pm, with her Honour telling them the summing up would continue at 9.30 am the next day.
13. [13]
    At 9.30 am on the 14^th day of the trial, the trial judge had resumed without the jury and informed Counsel that a jury note had been received (the first note).  It read:

“I have concerns regarding a juror’s bias & behaviour I wish to discuss in person.

Juror 12.”

14. [14]
    While her Honour was discussing Pearce with Counsel, two more jury notes arrived.  The second jury note of the morning (the second note) read:

“Would it be possible for a morning tea break outside the building please?”

15. [15]
    The third jury note of the day (the third note) read:

“Please clarify the logic of ‘beyond reasonable doubt’ as distinct from ‘on the balance of probability’ in more detail, along with the logic of ‘innocent until proven guilty’.  I specifically want to understand whether it is correct to commence the examination of evidence from the premise of the defendant’s innocence, as compared to the assumption of guilt - one seems to work forward from the defence position to test the veracity of the evidence provided by the defendant as to whether or not one finds it substantiated (in full or part); whereas the other (guilty until proven innocent) seems to cast doubt on the defendant as tacitly accept they have indeed committed an offence.”

16. [16]
    The trial judge discussed these three jury notes with Counsel.  Counsel agreed that the answer to the second note should be “Yes”, and that the third note was “probably not difficult to deal with” when the summing up continued.

17. [17]
    As to the first note, Counsel agreed on the course the trial judge should adopt.  Her Honour followed that course, calling the jury into the court room and addressing them in these terms:

“Good morning, members of the jury.  I have received your notes.  I am going to deal with one of them first, and then I will deal with the others a little later.  One of you has sent a note to me raising concerns about the behaviour of one of your number which might display a bias.  If there are any problems or concerns of that nature about behaviour or bias, that needs to be aired in open court with all present.

Who is your speaker? You are.  I am going to pose a question for you, which I will ask you to answer on behalf of the whole of the jury, but I will give you an opportunity to go and discuss what I have said.  I will ask you whether, as a body, as a jury, you think you will be able to bring in a true verdict according to the evidence.  So I will let you go and have a discussion amongst yourselves about when you will be able to do that, but if there are questions or concerns or problems that you are experiencing with behaviour or bias, then you, sir, will have to inform me with everyone present.  So if you would like to go to the jury room, you can have a discussion amongst yourselves.”

18. [18]
    About 40 minutes later, while the jury were still in the jury room, the trial judge advised Counsel that another jury note had been received, the fourth for the day (the fourth note).  It read:

“Is your Honour willing to discuss the concerns with one member of the jury - This is the member who the concerns have been raised with.”

19. [19]
    Her Honour proposed to deal with the fourth note in this way:

“What I will do is get the jury in and ask them whether it is only one person who is having – who has any difficulties or problems. I can then send them away and speak to her alone. She can express her difficulties. Assumedly, they are only her difficulties, clearly enough.

…

It might be something that is personal to her … and will not have any impact on deliberations, but, you know, makes her uncomfortable with what is going on, and in which case I could form the view that she is not able to complete her service and I can discharge her.”

20. [20]
    Counsel agreed to the course the trial judge suggested.  Her Honour reiterated that proposed course to Counsel in these terms:

“All right. Well, I will bring them in and I will ask the speaker whether, after their discussions, the concerns that have been raised are – are only that of one member of the jury, and that nobody else has any difficulties and he otherwise [thinks] that, as a body, that they are able to bring in a true verdict according to the evidence. And if he says yes, then I will say I will answer that question and I will speak to the juror alone. And I will just see what – we will just see what comes of it … one step at a time.”

21. [21]
    Counsel confirmed each was content with this course.  At that moment, another jury note was received (the fifth note):

“One juror is feeling uncomfortable in making a verdict on the cases, they feel unable to accept the burden of knowing they may find the defendant guilty.

In the event of the jury not comfortable with one juror and one not comfortable to make a decision what is the process moving forward”.

22. [22]
    The trial judge discussed the fifth note with Counsel.  Counsel agreed that her Honour should deal first, through the speaker, with the jury’s response to the question her Honour had posed, namely whether, as a body, the jury thought they would be able to bring in a true verdict according to the evidence.
23. [23]
    The jury returned and the following exchange between the trial judge and the jury speaker occurred:

“HER HONOUR: Thank you for your next note. I will deal with one issue at a time. So I want to go back to the issue that was raised first in time, which regards one juror’s concerns about the bias and behaviour of another. Now, I have received your note asking if I will speak to that person – I assume it is that person – alone. And before I answer that, can I ask you this, Mr Speaker: is it only one person on the jury who has that concern?

SPEAKER: No, your Honour.

HER HONOUR: It is not. All right. Can you reveal it – the problems that you are having? … Because this is a problem internal to the jury, I ought not separate you. You, as the speaker, need to disclose the problems to us.

SPEAKER: There’s perceived biases through life experiences and how that will influence decision-making and discussions in the group.

HER HONOUR: Right. Are – are they personal life experiences that different people might have that might impact upon them?

SPEAKER: So the life experiences of one person ‑ ‑ ‑

HER HONOUR: Yes.

SPEAKER: ‑ ‑ ‑ who they’ve – who’s – other members of the jury feel have a biased opinion.

HER HONOUR: I see. I see. Is that the same or a different person to the person who thinks that they might not be able to ‑ ‑ ‑

SPEAKER: Different.

HER HONOUR: A different person, all right, to the person they do not think will be able to reach a verdict. …

Can I – can I say this to you and ask you to think about this, you are 12 – 13, currently, people who have been randomly selected from the community to perform an important duty as one body. Each of you has sworn to conscientiously try the charges and decide them according to the evidence and the law. You are expected to judge the evidence fairly and impartially, despite whatever life experiences you have. You all have different life experiences that you bring with you to whatever you do, but you are expected to judge the evidence fairly and impartially. That requires you to listen carefully and objectively to the views of every one of your fellow jurors. The process of considering your verdict should involve weighing up one another’s opinions about the evidence and testing them by discussion.^[5] So I am going to ask you whether, as a body, taking into account those things that I have just told you, you think you will be able to bring in a true verdict according to the evidence. Now, would you like to go and have a think about that and a discussion about that?

SPEAKER: Yes, your Honour.

HER HONOUR: And – and I will then ask the counsel for some submissions about speaking to the one person that you have – that has the concerns.

SPEAKER: That one person has indicated she is able to proceed, your Honour.

HER HONOUR: I see. All right. So is there anyone else who has concerns about behaviour at all? There’s not? Yes, there is? There is some disagreement amongst you.

SPEAKER: So the one person – your Honour, the one person that indicated she was uncomfortable making the decision ‑ ‑ ‑

HER HONOUR: Yes.

SPEAKER: ‑ ‑ ‑ has since discussing of the things that she is willing to make a decision.

HER HONOUR: And is able to make a decision? All right.

SPEAKER: Yeah.

HER HONOUR: Well, that is that. That is that.

…

HER HONOUR: So your other note – well, the first note was one person raising concerns about bias and behaviour. From what I understand that you have said, is that there is multiple people who think one person might be biased and displaying it. All right. Well, having said what I have just said about the oath or the affirmation you have each taken to conscientiously try the charges according to the law, and to put aside any sympathies or prejudices that you might have and to judge the evidence fairly and impartially and listen carefully and objectively to the views of others, I am going to ask you to have a conversation amongst yourselves as to whether you think that, as a jury, you will be able to bring in a true verdict according to the evidence and put aside biases and prejudices. If there is someone who cannot do that, then you should tell me who that person is and then we can make further decisions about where we go to from there. So I will ask you to go to the jury room and consider those things.”

24. [24]
    Shortly after the jury withdrew to the jury room, her Honour observed the fact that a juror had displayed what some other jurors had described as bias, in discussions to that point, did not mean the juror could not put that aside and objectively view the evidence as their oath or affirmation required, with the benefit of her Honour’s directions.
25. [25]
    About 15 minutes after the jury withdrew, two further jury notes were received (the sixth note and the seventh note).  The sixth note read:

“Your Honour is it possible to take a morning tea break so people can go and grab a coffee outside?  Then resume feeling calmer and re-energised”.

26. [26]
    The seventh note read:

“I want to voluntarily remove myself because the other jurors have voted I should go & in addition, I feel there are sufficient jurors who are not impartial to secure a carefully weighted decision. The reason those who voted against me feel uncomfortable is I challenge their prejudices in my opinion & they see that as me being biased in favour of the defendant. In my view, the jury should disband, but I am leaving, so that is up to them now. I am neurodivergent so its [sic] hard to communicate with them. The decision was majority, not unanimous.”

27. [27]
    With Counsel’s agreement, the trial judge instructed the bailiff to tell the jury, in response to the sixth note, that they could leave the courthouse and go out for half an hour.  The court adjourned briefly to allow the defence counsel to obtain instructions.
28. [28]
    When the court resumed, the defendant asked the trial judge to discharge the jury.  The application was made under s 60 of the Jury Act 1995 (Qld) (the Jury Act). It relevantly provides that a judge may do so if the judge “considers there are other proper reasons” for discharging the jury without giving a verdict.  The Crown prosecutor opposed the discharge of the jury.
29. [29]
    The trial judge refused to discharge the jury.  This decision was not challenged in the appeal.  Her Honour gave reasons for the refusal, namely:

    1. It was day 14 of the trial;
    2. The many jury notes sent during the trial indicated the jury was doing as was requested of them, which is to try the appellant on the counts according to the law;
    3. After her Honour’s further directions that morning (reminding the jury of their oaths and the requirement to judge the evidence fairly and impartially and to listen objectively to others), by the seventh note one juror had asked to be removed because they felt the rest of the jury thought they were biased when, in fact, they thought the rest of the jury was not impartial;
    4. The seventh note did not tend to suggest that the jury as a whole was not able to perform their duty;
    5. The summing up was not complete, with the jury yet to be directed on the elements of each offence and what the Crown must prove; and
    6. Her Honour was not satisfied that the whole of the jury was not impartial.^[6]
30. [30]
    Defence counsel then proposed that the trial continue with the balance of the summing up, enhanced by a reiteration of the Black-style direction given earlier that morning, and with a specific direction about the standard of proof in answer to the third note.  The Crown prosecutor proposed the discharge of the individual juror who had sought that outcome in the seventh note.
31. [31]
    The trial judge identified that it was not yet known whether the author of the seventh note was the person who was the subject of the first note.  Subject to clarification of that point, her Honour gave a “tentative ruling” that:

“Based on all of the evidence before me, including the person’s own statements, which have only come in response to the other complaints, I am satisfied that the juror is not impartial and ought not to be allowed to act as a juror at the trial, and I would discharge them.”

32. [32]
    A little later, her Honour further explained to Counsel:

“on the whole of the evidence that is before me, which is the – the way the trial has occurred, and the numerous notes that have been sent – which are all indicative of a jury doing the right thing, that give absolutely no suggestion of any improper reasoning processes or impartiality – the first time there has been any concern raised this morning is by a person who is not the speaker; another person on the jury. That has led to the speaker then having a discussion with everyone and informing me that there is a number of jurors who consider that one person is not impartial. And that is sufficient for me, given the background to this trial, to form the view, even if it is not a majority decision, even if it is not a unanimous decision, that the juror is – is not impartial and should not be allowed to continue to act.

… This is all very difficult. But my – my primary consideration is that this is a jury who have been doing the right thing throughout the whole of this trial, and sending sensible notes that are focused upon the evidence and the requirements that they have to comply with and the directions that they have to comply with.”

33. [33]
    The trial judge told Counsel how the matter would proceed:

“I will ask the speaker again, after I have given them the earlier directions, whether they still have concerns, having now had a – had a rest and a break – whether they still have concerns that one juror is not impartial. And if they do have concerns that – that there is a juror who is not impartial, I will ask them if that juror has sent the note requesting to be discharged. And if it is that person, then I will discharge that person.

… Having given them the direction, having given them a reminder of the – of the oaths that they took … I will ask, from the point of view of the speaker, does the speaker consider that there are – does the speaker consider that – beyond the one person that they have expressed earlier, are they – do they have any other concerns that there are people on the jury who are not impartial or will not be able to bring an impartial mind to the evidence.”

34. [34]
    At defence counsel’s suggestion, her Honour agreed that the jury as a whole should be asked if they all agree with the position articulated by the speaker.^[7]
35. [35]
    When the jury returned, her Honour had the following exchanges with the jury speaker and with one other member of the jury identified as the author of the seventh note:

“HER HONOUR: Now, members of the jury, having reminded you of the oaths that you swore to try the charges and decide them according to the law and directed you about the expectations of each of you and giving you a break so that you can think about the things I have said, and noting I have not finished my summing up and have not started to direct you on the law that applies to the actual offences themselves, do you as a jury still have concerns that there is one person or more – one or more people who are not capable of bringing an impartial mind to a consideration of the evidence?

JUROR: Yes, your Honour.

HER HONOUR: You do. Is that one or more people that you as a jury think is not capable of bringing an impartial mind to a consideration of the evidence?

JUROR: One.

HER HONOUR: Just one. Is that one person the same person who has sent a note requesting to be discharged?

JUROR: Yes, your Honour.

HER HONOUR: It is. All right. Well, who is that juror? Juror number 2. All right. Juror number 2, I am going to discharge you. Before you go, though, can I thank you for your service. I know it has been a long trial, but your involvement in this trial has assisted in the administration of justice in this state, and no doubt you have provided a valuable contribution to discussions in the jury room. So you go with the thanks of the court. Enjoy the rest of your day.

JUROR NO 2: Thank you.”

36. [36]
    The trial judge asked a reserve juror to take the place of the discharged juror.  The trial continued with her Honour answering the questions in the other jury notes at the outset of the resumed summing up.  The jury raised one more question by another note that day.  They provided three further notes during the following two days of deliberations.  The jury returned the verdicts on the sixteenth day of the trial.

Was there an error of law in discharging the juror?

37. [37]
    The trial judge discharged the juror finding that the juror was “not impartial and ought not to be allowed to act as a juror at the trial”.
38. [38]
    The power to discharge an individual juror is found in s 56(1)(a) of the Jury Act in these terms:

“56 Discharge or death of individual juror

1. If, after a juror has been sworn—

1. it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial …

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

39. [39]
    Prior to 1997, an equivalent provision was in s 615 of the Criminal Code (Qld).  Before statutory prescription, the common law assumed that a trial judge of a superior court could discharge a jury before a verdict when the necessity for a discharge was made evident from the ascertained facts.^[8]  The common law contemplated that the trial judge could discharge the whole jury and place the accused in the charge of a new jury.  From the 1920s, statutes began to provide for a trial to continue with the remaining members of an existing jury, following the discharge of one or more members.^[9]  Since then, the test of necessity, derived from the common law, has been applied to the discharge of an individual juror.^[10]  This background explains why the statutory power to discharge an individual juror should be exercised only where it can be clearly concluded that the circumstances call for its exercise.^[11]  The consideration of whether a discharge is necessary, is focused on the impact of proven circumstances on the ability of the juror to fulfil their task in accordance with their oath or affirmation to reach a true verdict according to the evidence.^[12]
40. [40]
    The question for the trial judge might be framed as whether a fair-minded observer of the proceedings might consider that the evidence of the juror’s conduct was such that the juror might be influenced in their final assessment of whether the accused was guilty.  Circumstances giving rise to a reasonable apprehension of bias would call for the discharge of any affected juror, unless directions to the jury could with certainty cure that apprehension.  If the evidence did not give rise to a reasonable apprehension of bias, then the statutory power to discharge a juror should not be exercised.
41. [41]
    In Wu, Gleeson CJ and Hayne J applied the same test, noting its attendant difficulties:

“The decision to discharge a juror may require consideration of difficult questions of fact and degree. One example may suffice to make the point. Deciding whether an irregular incident involving a juror is such that, notwithstanding any proposed or actual warning by the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror has not discharged or will not discharge the juror's task impartially will often raise difficult questions [See eg, Webb v The Queen (1994) 181 CLR 41]. And applying that test of reasonable apprehension to the other members of the jury may be even harder.”^[13]

42. [42]
    The jury speaker had described the differences between the juror who was discharged and the other jurors as “perceived biases through life experiences”.  This was not a recognised category of bias, interest or partiality.  Nor did it disclose any fact, matter or circumstance that would give rise to a reasonable apprehension of bias.  It was simply a conclusionary statement of opinion.
43. [43]
    As the trial judge identified, the jury notes indicated the matter was internal to the jury.  The juror who would be discharged had no familiarity with the appellant, any witness or legal representative in the case.  The juror had not made inquiries outside the courtroom or discussed the trial with a non-juror.^[14]  There was no apparent ground to suspect bias on those accounts.
44. [44]
    It did not appear from the juror’s own note (the seventh note) that the juror was not indifferent as between the Crown and the appellant.  The seventh note identified a characteristic of the juror that could affect interactions with other jury members, but it did not indicate that the juror had refused to participate in the jury’s functions.  As noted at [29](b) above, the broader evidence, in the form of the other jury notes during the trial to that point, had indicated that the jury was trying the appellant on the counts according to law.  Although the fifth note had indicated another juror may not have been able to fulfil their oath or affirmation to reach a true verdict according to the evidence, after her Honour’s Black-style direction was given, the speaker had said that the juror was “willing to make a decision”.
45. [45]
    As the trial judge also relevantly noted, the summing up was not complete.  Whatever opinions the jurors had of each other’s views were uninformed by the usual directions the trial judge intended to give and any specific directions called for in the case.  After the summing up was finished, the jury would begin their deliberations with the benefit of those directions.
46. [46]
    In the circumstances, the juror’s own statements in the seventh note, the other material before the Court in the other jury notes and the speaker’s responses to her Honour’s questions, and the prior jury notes, did not establish any basis for a reasonable apprehension of bias on the part of the juror who was discharged.  It could not have been clearly concluded that the circumstances called for the discharge of the juror for a lack of impartiality.  The trial judge’s finding of actual bias was not open on the evidence.
47. [47]
    It follows that the trial judge erred in law in discharging the juror.
48. [48]
    In the circumstances of this case, the error was not one within a broad-ranging discretion.  As explained by Gleeson CJ and Hayne J in Wu:

“It may be doubted, however, that it is always useful to describe the exercise of the power to discharge a juror or the jury in such a case as the exercise of a discretion by the judge. If satisfied that the incident gives rise to a reasonable apprehension or suspicion, the judge would, it seems to us, be bound to discharge those of whom the apprehension or suspicion would be held (whether that is a single juror or the whole jury). No discretion would fall to be exercised in such a case.”^[15]

49. [49]
    If there had been a discretionary element to the decision below, there was a strong countervailing reason not to discharge the juror.  The seventh note had disclosed the juror’s view that some of the other jurors had perceived her to be “biased in favour of the defendant.”  A fair-minded observer might have perceived the discharge of this particular juror as the removal of a potentially dissenting voice before she had a chance to change her view, or before she had a chance to change the view of the other members of the jury.  The discharge of this juror was not consistent with the need to maintain “the appearance, as well as the substance, of impartial justice” in a criminal case.^[16]
50. [50]
    The error in discharging the juror concerned an important element of a fair trial according to law.  A miscarriage of justice occurred.  As Mr Wallis for the respondent Crown correctly submitted, there is no scope to consider whether the miscarriage was not substantial.  The two convictions founded on their verdicts should be set aside.

Leave to appeal against sentence

51. [51]
    Given the conclusion reached above, it is not necessary to express any view on the appellant’s application for leave to appeal against sentence.

Final disposition

52. [52]
    I would order that:

1. The appeal be allowed.
2. The verdicts of guilty below be set aside.
3. There be a new trial in respect of counts 3 and 4.

53. [53]
    CALLAGHAN J:  I agree with Bradley JA’s conclusion that the finding made about the discharged juror was not available in the circumstances.
54. [54]
    I agree also with the further reasons of Bowskill CJ, who endorses his Honour’s observations about the difficulties faced by the learned trial judge.  With the benefit of the hindsight to which her Honour refers, the fifth note invited a response that made some things clear.  The methods for dealing with a jury’s disagreement (such as a Black direction, or a majority verdict) may be few, but a jury may not resolve things with a vote that one of them “should go”.  The composition of a jury is settled by a process in which the defendant is involved.  Any issues about the retention of those chosen cannot be delegated to, nor appropriated by, the jury itself.
55. [55]
    The orders should be as proposed by Bradley JA.