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R v NS[2017] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:

R v NS [2017] QDC 148

PARTIES:

THE QUEEN

v

NS

FILE NO/S:

545/16

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

23 May 2017 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

23 May 2017

JUDGE:

Smith DCJA

ORDER:

Ruling in accordance with the reasons

CATCHWORDS:

CRIMINAL LAW - TRIAL BY JURY - VERDICTS - when 8 hours for majority verdict direction expires - are redirections excluded from the calculation of the 8 hour period

Criminal Code 1899 (Q) s 620

Criminal Justice Act 1967 (UK) s 13

Juries Act 1967 (Vic) s 47

Jury Act 1977 (NSW) s 55F

Jury Act 1995 (Q) s 59A

BR v R (2014) 239 A Crim R 411; [2014] NSWCCA 46

Papazoglou v R (2014) 244 A Crim R 119

R v Adams [1969] 1 WLR 106

R v Rodriguez [1998] 2 VR 167

R v RJS (2007) 173 A Crim R 100

COUNSEL:

Ms M Franklin for the crown

Mr P Feeney for the defence 

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Queensland Lawyers for the defence

  1. [1]
    In this case, an issue has arisen whether I can give a majority verdict direction at this stage. The situation is the jury retired yesterday at 4.20 pm. They were here until 5.52 pm – one hour, 32 minutes – and today, 23rd of May 2017 from 9 am until 1 pm – four hours.  There was lunch for half an hour and then 1.30 pm until now, which is 4.39 pm.  There was a redirection at 9 am which lasted for over two hours, which involved the replaying of the 93A statement and the pre-recording.  The issue is this:  has the eight hours referred to in section 59A expired?  If the redirection is included as part of considering the verdict, on my calculations, that expired at 3.58 pm.  Both counsel agree with that timing.  If it’s not included, we’re not at the eight hour mark now.
  1. [2]
    Mr Feeney submits that section 59A should be read to exclude any period of redirections. He argues that we have not reached the eight-hour mark yet. In developing this argument, he refers to section 620 of the Criminal Code. He then refers to the important principle discussed in R v RJS (2007) 173 A Crim R 100 at 104, that the requirement of unanimity of a jury is a longstanding principle of fundamental character.  He argues that the use of the word “consider” implies exclusion of redirections.  He further submits that there is no consideration when the jury is watching tapes during redirections. 
  1. [3]
    Ms Franklin, on the other hand, submits the legislative intention is clear. She submits that the eight hours starts once the jury retires, and the mere fact that a jury is in court watching tapes, for example, by way of redirection does not mean they are not considering the case. She argues that each of them is still considering the verdict. There might not be discussion between them in open court, but they are taking things in, as I observed them doing in this case. She further argues that the subparagraphs are clear. A period allowed for meals and refreshments is excluded, a period of separation is excluded, and a period of overnight accommodation is excluded. There is no exclusion for redirections.
  1. [4]
    I accept the crown submissions. In my view, the statutory requirements have superseded the common law principle in RJS.  There is no Court of Appeal decision which binds me in this regard.  It is my view that the legislature did not intend that redirections be excluded. One just needs to look at the terms of the legislation.   In my view, the eight hours starts after they first retire to consider their verdict.  The redirection is part of consideration.  It’s like a tape being watched in the jury room, but, admittedly, no discussion between them in open court, but they’re each watching the tape.  In my view, the eight hours in this case has passed, and it passed at 3.58 pm this afternoon. 
  1. [5]
    Section 59A of the Jury Act 1995 (Q) provides as follows: 

59A Verdict in criminal cases for other offences

  1. (1)
    This section applies to a criminal trial on indictment other than the following trials—
  1. (a)
    a trial for an offence mentioned in section 59(1)(a); or
  1. (b)
    a trial before a jury as mentioned in section 59(1)(b).
  1. (2)
    If, 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.
  1. (3)
    If the jury can reach a majority verdict, the verdict of the jury is the majority verdict. 
  1. (4)
    For the definition in subsection (6), prescribed period, paragraph (a), the periods mentioned in subparagraphs (i), (ii) and (iii) are the periods reasonably calculated by the judge.
  1. (5)
    A decision of the judge under subsection (4) is not subject to appeal.
  1. (6)
    In this section—

majority verdict means—

  1. (a)
    if the jury consists of 12 jurors—a verdict on which at least 11 jurors agree; or
  1. (b)
    if the jury consists of 11 jurors—a verdict on which at least 10 jurors agree.

prescribed period means—

  1. (a)
    a period of at least 8 hours after the jury retires to consider its verdict, not including any of the following periods—
  1. (i)
    a period allowed for meals or refreshments;
  1. (ii)
    a period during which the judge allows the jury to separate, or an individual juror to separate from the jury;
  1. (iii)
    a period provided for the purpose of the jury being accommodated overnight; or
  1. (b)
    the further period the judge considers reasonable having regard to the complexity of the trial.”  (my underlining).
  1. [6]
    The approach I have taken is consistent with the decision in R v Adams [1969] 1 WLR 106 where it was held that the period during which a jury is in court such as for the purpose of listening to a direction has been included in the calculation of the 8 hour period. 
  1. [7]
    In Adams section 13 of the Criminal Justice Act 1967 (UK) provided “A court shall not accept a majority verdict unless it appears to the court that the jury have had not less than 2 hours for deliberation …”
  1. [8]
    Lord Parker CJ held that although the jury may not have actually deliberated for more than 2 hours, they had more than 2 hours for deliberation. In that case the verdict was taken 2 hours and 1 minute after retirement but it may have taken 5 minutes for the jury to travel to the court to deliver its decision.
  1. [9]
    In R v Rodriguez [1998] 2 VR 167 the Victorian Court of Appeal considered section 47 of the Juries Act 1967 (Vic) which provided “… if all the jurors after at least 6 hours deliberation are unable to agree on their verdict a majority verdict may be taken as the verdict of all.” In this case it was held at page 186 that it was clear that any period during which the jury returns home must be excluded. Also at page 186 it was said that a jury is not deliberating “… whilst they were away from the court for a prolonged period of time in the charge of strangers”. But “I should think that a jury deliberates during even a prolonged redirection, although a prolonged redirection might well affect the exercise of the judge’s discretion.” 
  1. [10]
    The Victorian Court of Appeal in Papazoglou v R (2014) 244 A Crim R 114 also considered the issue. In that case the jury retired at 330pm on Friday and deliberated for 1 hour. On Monday the jury resumed deliberations. At about 1pm on Tuesday (about 7 ½ hours after the jury had retired excluding breaks) the Judge received a note that one juror was refusing to deliberate from the outset of deliberations on Monday. The judge gave a Black direction and a majority verdict direction.  Counsel argued that there had been no deliberation because a juror had not taken part in the deliberations. By majority the appeal was dismissed. Maxwell P held [257] that the court was not concerned with how jurors used their time but that they had the capacity to deliberate. Physical separation denies that capacity. But that case did not specifically consider whether a redirection was excluded. Priest JA would have allowed the appeal.[1]   
  1. [11]
    However, the New South Wales Court of Criminal Appeal in BR v R (2014) 239 A Crim R 411; [2014] NSWCCA 46 expressed the opinion that “deliberation” does not occur during a redirection because there is no capacity for them to consider and discuss the case collectively (para 22).  This is because of the meaning of the term “deliberate” i.e. inter alia “discussion of reasons for and against” and “debate”.[2]
  1. [12]
    However, s 55F of the New South Wales Jury Act 1977 provides as follows: 

55F Majority verdicts in criminal proceedings

  1. (1)
    This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons.

Note. Lengthy criminal proceedings may be tried by a jury of up to 15 persons if the court makes an order for additional jurors under section 19 (2). However, section 55G provides that only 12 members of such an expanded jury may retire to consider the jury’s verdict in the proceedings.

  1. (2)
    A majority verdict may be returned by a jury in criminal proceedings if:
  1. (a)
    a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and
  1. (b)
    the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation.
  1. (3)
    In this section:

majority verdict means:

  1. (a)
    a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or (b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned.

unanimous verdict means a verdict agreed to by all members of the jury.

  1. (4)
    A verdict that the accused is guilty of an offence against a law of the Commonwealth must be unanimous.
  1. (5)
    This section extends to any alternative verdict that is available to a jury at law. (my underlining)
  1. [13]
    It may be noted that the NSW and Victorian Acts are different to the UK Act. Also in the Queensland legislation the words are “retire to consider” are used. The word consider is defined differently to “deliberate”. “Consider” means “contemplate mentally in order to reach a conclusion”. “Formed after careful thought”.[3]There is no requirement for discussion in the definition.
  1. [14]
    In my view each member of the jury is considering the matter after retirement when a redirection is given.
  1. [15]
    Accordingly in my view BR may be distinguished from the Queensland position. The Queensland position is more in line with the UK position.
  1. [16]
    The next question arises, of course, is whether the judge considers it reasonable, having regard to the complexity of the trial, to allow a further period. Now, the reality here is we have two notes now indicating they cannot reach unanimous verdict on both counts. Both counsel agree I should form the opinion that the jury is unlikely to reach unanimous verdict after further deliberation. The evidence was only short in compass in this trial. They’ve watched the interviews and the pre-recording twice now. They’ve been out since about 4 pm yesterday. I think it’s reasonable to give the majority verdict direction now, and I propose to do so.

Footnotes

[1] Special Leave was refused see [2015] HCA Trans 30.

[2] See [19]- reference to Oxford English Dictionary.

[3] Oxford Concise Australian Dictionary.

Close

Editorial Notes

  • Published Case Name:

    R v NS

  • Shortened Case Name:

    R v NS

  • MNC:

    [2017] QDC 148

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    23 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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