R v Peniamina

In this judgment, Davis J provides reasons for giving a jury direction concerning the taking of a majority verdict in a murder trial. Mr Peniamina sought to rely on the partial defence of provocation. As they were unable to reach a unanimous verdict on murder, the jury were directed to consider whether they could reach a majority verdict on manslaughter. As his Honour explained, ss 59 and 59A Jury Act 1995 operate such that a majority verdict on manslaughter may be taken if the trial judge is satisfied that a unanimous verdict cannot be reached on a charge of murder.

Davis J

8 October 2021

Background

Following an argument at their house, Mr Peniamina killed his wife, Mrs Peniamina. The cause of her death was a fractured skull. [4].

The trial

The case was conducted on the basis that the Crown could prove all of the elements of murder beyond reasonable doubt. The only issue was whether Mr Peniamina could prove the partial defence of provocation. [10].

Mr Peniamina pleaded guilty to manslaughter at the beginning of the trial. As this plea was not accepted by the Crown, the jury was entitled to consider both murder and the alternative of manslaughter. [18].

After almost three days of deliberations, the jury advised the judge in a note that they were unable to reach a unanimous decision on murder and asked the judge for “some direction on how to proceed”. [26].

Directions were given to the jury about the taking of a majority verdict. The direction is annexed to the judgment as Schedule 1. [28]. After retiring and deliberating for a few minutes, the jury returned and:

1. 1.said that a unanimous verdict could not be reached on the count of murder;
2. 2.said that 11 members of the jury had agreed on a verdict on manslaughter;
3. 3.returned that verdict as guilty. [29].

The Crown then opposed the taking of a majority verdict on manslaughter on the basis that as this was not a trial where the jury consisted “of only 10 jurors when it [would give] its verdict”, there was no jurisdiction to take a majority verdict. [30]. Justice Davis rejected that argument.

Operation of ss 59 and 59A of the Jury Act 1995

Justice Davis said the following about s 59A:

• a jury of 12 may give a majority verdict where at least 11 jurors agree (s 59A(6)(a));
• a jury of 11 may give a majority verdict where at least 10 jurors agree (s 59A(6)(b));
• if the jury in a criminal trial consists of 10 jurors, the verdict must be unanimous;
• where s 59(1)(a) or 59(1)(b) is engaged, s 59(3) requires that the verdict must be unanimous unless s 59(4) can be relied upon; and
• s 59(4) applies in the circumstances of s 59(1)(a)(i) or 59(1)(a)(ii) but not s 59(1)(b).

Therefore, “[w]here the charge is murder, and there is a jury of 12 (as here), the verdict on murder must be unanimous, but a verdict on manslaughter, being an offence to which a person is ‘liable to be convicted’ on a count charging murder, may be returned by a majority of 11” (Citations omitted). [32].

His Honour observed that the real issue was whether, in circumstances where the partial defence of provocation has been raised to a charge of murder, ss 59(4) and 59A operate such that a majority verdict on manslaughter may be taken if the trial judge is satisfied that a unanimous verdict cannot be reached on a charge of murder. [35]. His Honour accepted that once the trial judge is satisfied that the jury is unable to reach a unanimous verdict on murder then, “by force of s 59(4), s 59(A) applies to the alternative charge of manslaughter”. [35].

Justice Davis further clarified that a jury is not required to deliberate for the “prescribed period” on each alternate verdict. Rather, when a jury retires after the summing-up, they are taken to have retired to consider all possible verdicts. [37].

His Honour also held that there “is nothing to suggest that a majority verdict is not available where manslaughter is to be reached through the partial defence of provocation”. [46].

Therefore, ss 59 and 59A Jury Act 1995 altered the law in two significant ways:

“1.  a jury need not return a verdict of not guilty of murder before returning a majority verdict of manslaughter. It is sufficient that they are ‘unable to reach a unanimous verdict’; and

2.  while the jury is not permitted to return a majority verdict on murder, it may return a majority verdict on manslaughter.” [48]. (Citations omitted)

His Honour concluded that “[r]ather than direct the jury what they had not been satisfied of, it was better to direct them as to what they did have to be satisfied of. They had already been directed in the summing up on the two possible bases that they could arrive at manslaughter. The only change was that such a verdict could be returned by 11, not 12 jurors”. [50].

A Hughes of Counsel