R v Smith

Court of Appeal (Holmes JA and Philippides and Dalton JJ)

4 June 2014

(This summary contributed by Mr Martin Burns QC)

The appellant was convicted by a jury of rape. He appealed on various grounds, one of which concerned the operation of ss 59A, 60 and 70 of the Jury Act 1995. Section 59A permits a trial judge to ask a jury to reach a majority verdict if, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation. “Prescribed period” is defined by sub-s 59A(6) to be eight hours of deliberations or such further period as the judge considers reasonable having regard to the complexity of the case.

Shortly after the eight-hour mark had passed, the trial judge received a note from the jury that advised they were having difficulty agreeing. The note also disclosed their voting pattern, which the trial judge advised counsel he did not intend to reveal. His Honour indicated that, as the jury had been deliberating for over eight hours, he proposed to tell the jury “of the majority verdict option and ask whether an 11/1 vote would resolve the issue”. Counsel did not oppose that course. Accordingly, the jury was brought in for that purpose and then asked to retire to consider their verdict. They returned some 20 minutes later with a majority verdict.

On appeal, it was argued that the trial judge should have revealed the voting numbers to counsel because that information was relevant to the exercise of the discretion under s 59A. In support of that argument, the appellant relied on a number of decisions of the Victorian Court of Appeal which concerned a provision of the Juries Act 2000 (Vic) to similar (although not identical) effect. Relevantly, in HM v R (2013) 231 A Crim R 349; [2013] VSCA 100, the majority held that a trial judge to whom voting numbers had been revealed by a jury was obliged to disclose that information to counsel and a failure to do so would amount to a denial of procedural fairness.

Holmes JA (with whom Philippides and Dalton JJ agreed) declined to adopt the view of the majority in HM v R, holding instead that the trial judge was right not to reveal the voting numbers to counsel, a result which was consistent with the long-standing practice in the criminal courts in Queensland as reflected in the obiter remarks of Gotterson JA in R v Millar (No 2) (2013) 227 A Crim R 556; [2013] QCA 29. Her Honour observed that such information could have no relevance to a determination of the “prescribed period” under s 59A or, indeed, the exercise of the discretion under that provision to allow a majority verdict or, under s 60, to discharge the jury. Section 70 required jury deliberations to be kept confidential and, as such, the statutory intent was that information regarding voting numbers was not among the matters properly to be taken into account in the exercise of the discretions conferred by ss 59A and 60. Nor, for that reason, was it a denial of procedural fairness to withhold that information from counsel.

It is likely that this decision will prompt a revision of the standard directions contained in the Supreme and District Courts Benchbook. In this regard, Holmes JA noted that the Victorian Criminal Charge Book contains a direction to the effect that the jury must not include on any note the numbers involved in any vote and then said, “It may be that giving a similar direction should be standard practice in Queensland” and, at [101], Philippides J said, “if juries are directed in that manner, the issues raised in this case would be obviated.”