Appeal Against Conviction Allowed Due to Jury Deliberation Issues

The Court of Criminal Appeal allowed an appeal against conviction due to the trial judge's failure to comply with section 55F(2) of the [NAME] Act, which requires the trial judge to consider whether the period for which the jury has been deliberating is reasonable, having regard to the nature and complexity of the proceedings, before directing a majority verdict.

Reported Decision: 191 A Crim R [ADDRESS] of Criminal Appeal

CITATION: [NAME] v REGINA [2008] NSWCCA 173

HEARING DATE(S): Friday 23 May 2008

JUDGMENT DATE: 28 July 2008

JUDGMENT OF: [NAME] J at 1; [NAME] J at 24; Hall J at 27

DECISION: Allow the appeal against conviction. Quash the conviction in the District Court. Order that there be a new trial.

CATCHWORDS: CRIMINAL LAW - Appeal - Practice and [NAME] Directions - Preconditions for the application of s 55F [NAME] Act 1977 (NSW) - Giving of a majority verdict direction at the same time as giving a [NAME] direction - Appeal allowed

LEGISLATION CITED: [NAME] Act 1977

CATEGORY: Principal judgment

[NAME] v The Queen (1993) 179 CLR 44 CASES CITED : Regina v Forbes (2005) 160 A Crim R 1 Regina v Zoef [2005] NSWCCA 268 [NAME] v The Queen (2007) 173 A Crim R 100

PARTIES: [NAME] v REGINA

FILE NUMBER(S): CCA 2007/3205

COUNSEL: [redacted]

SOLICITORS: [redacted]

LOWER COURT FILE NUMBER(S): 06/11/0385

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 15 June 2007

IN THE COURT OF CRIMINAL APPEAL 2007/3205

[NAME] J HALL J

MONDAY 28 JULY 2008 [NAME] v REGINA Judgment 1 [NAME] J: I have the benefit of reading in draft the judgment of Hall J and I agree generally with the reasons given by [NAME] for the decision by the Court, which was announced at the conclusion of the hearing on 23 May 2008, that the appeal against conviction should be allowed and a new trial ordered. I wish, however, to make some remarks of my own on two matters.

(1) Non-compliance with s.55F(2) of the [NAME] Act 2 The condition in par (a) of sub-s 2 of s.55F of the [NAME] Act, which must be satisfied before a majority verdict may be returned by a [NAME] in criminal proceedings is that:- "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."

The condition is not simply that the jurors have deliberated for a period of not less than 8 hours. 3 In the present case the transcript of the trial proceedings on 22 May 2007 shows that, after the [NAME] sent the note to the effect that the [NAME] had been unable to reach agreement on two counts, the trial judge, in her discussion with counsel in the absence of the [NAME], explicitly referred to a period of 8 hours having elapsed since the [NAME] commenced deliberating but made no explicit reference to whether her [NAME] considered that the period of time for which the [NAME] had been deliberating was reasonable, having regard to the nature and complexity of the proceedings. Her [NAME] made no explicit reference to matters which should have been regarded as relevant to a determination of whether a reasonable period of time had elapsed, including that the trial had been a joint trial of two accused, that there were as many as eight counts in the indictment, that at least four different kinds of offences had been charged and that the trial had lasted more than a month. 4 On this appeal it was submitted by counsel for the [NAME] that it could be inferred, particularly from her [NAME]'s rejection of the submissions made to her by counsel for the two accused, that her [NAME] had tacitly considered the question of whether a reasonable period had elapsed and had tacitly made a determination that the period for which the [NAME] had been deliberating was a reasonable period. 5 I do not consider that this inference could properly be drawn. In my opinion, a fair reading of the transcript of the discussion between the trial judge and counsel on 22 May 2007 is that throughout the discussion the trial judge remained of the view that what mattered was that the [NAME] had been deliberating for not less than 8 hours and that her [NAME] gave no consideration to whether the period for which the [NAME] had been deliberating was a reasonable time. I note that after the discussion had concluded and her [NAME] gave her directions to the [NAME], she said in a part of those directions:- "You having now been deliberating for eight hours, the law provides that I can accept a majority verdict…" 6 In any event, I consider that it is necessary for a trial judge, before directing a [NAME] that a majority verdict may be returned, to clearly demonstrate that he or she has considered s.55F(2) and inter alia has found that the full terms of paragraph (a) are satisfied.

(2) The directions given by the trial judge 7 Parts of the directions given by the trial judge on the morning of 22 May 2007 are set out in Hall J's judgment. However, I consider that there is utility in setting out the directions in full. Her [NAME] said:- "Member of the [NAME], you sent a note to say that you have stalemated on two of the counts that you are considering and so there are some further directions of law that I am going to give you. I do have the power to discharge you from giving a verdict. I am not going to do, so, at this stage, I should only do so if I am satisfied that there is no likelihood of a genuine agreement being reached among you after further deliberation. But I should say to you that you having now been deliberating for eight hours, the law provides that I can accept a majority verdict which would require eleven of you of the twelve to agree if you cannot reach unanimous verdict. But I would emphasise to you that it is preferable that you continue to deliberate and try and reach a unanimous verdict. A unanimous verdict is preferable to a majority verdict. The courts' experiences over the years have shown that if juries are given more time to consider and discuss the issue, they can, they often will come to an agreement. But if after calmly considering the evidence and listening to what each of you have to say, you cannot honestly agree with the conclusions of other jurors, then you must give effect to you own view of the evidence. Each of you swore an oath, or affirmed at the start of the trial to give a true verdict according to the evidence. That is an important responsibility and it involves that you judge the evidence fairly and impartially in the light of that oath. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. A calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion between you and may convince you to change your original opinion. That is not, however, to suggest that you can consistently with your oath or affirmation as a juror join a verdict if you do not honestly and genuinely think that it is the correct one. But because experience has shown that often jurors are able to agree if they are given more time to consider and discuss the evidence, I am going to request you to continue deliberating on the matters about which you are in disagreement and to make a further attempt to reach a verdict. I am going to ask you to continue deliberations with a view to reaching a unanimous verdict. If, after you have deliberated for some more time, you come to the view that it is impossible for you to reach a unanimous verdict, then you can consider whether you are able to return a majority verdict on these two counts, that is, eleven of you, of the twelve. They are the only options available, a unanimous verdict, or a majority verdict by eleven of you agreeing. So, I am going to ask you to go out in the light of those directions and ask you to deliberate further, please." 8 Almost immediately afterwards the trial judge directed the [NAME] that there was a third option or possibility, that the [NAME] would be unable to reach either a unanimous verdict or a majority verdict. 9 The second, fourth, fifth and sixth paragraphs of these directions followed, not absolutely precisely but very closely, the model direction in the joint judgment of [NAME] and [NAME] in [NAME] v The Queen (1993) 179 CLR 44 at 49. In the third and seventh paragraph of the directions the trial judge directed the [NAME] that a majority verdict of 11 to 1 could be accepted, if the [NAME] were unable to reach a unanimous verdict, but that it was preferable that the [NAME] should continue to try and reach a unanimous verdict. 10 The directions that a majority verdict could be accepted were incorrect, in that the condition in par (a) of s.55F(2) had not been fulfilled and for this reason by itself the ground of appeal against conviction, that the trial judge erred in the directions she gave the [NAME] about the availability of a majority verdict, should be upheld. 11 A further submission was made by counsel for the appellant that by directing the [NAME] that a majority verdict could be accepted, at the same time as giving a [NAME] direction, the trial judge had undermined the [NAME] direction. An important purpose of a [NAME] direction is to encourage jurors to attempt to resolve their differences and to seek to come to an agreement. It was submitted that it undermines or at least derogates from the fulfilment of this purpose for the [NAME] to be told that a majority verdict can immediately be returned. 12 Both counsel for the appellant and counsel for the [NAME] referred to the decision of this Court in [NAME] v The Queen (2007) 173 A Crim R 100. In [NAME] the principal judgment was given by [NAME], with whom the other members of the Court agreed. 13 In [NAME], as in the present case, the trial judge had failed to determine what period of time for the [NAME]'s deliberations was reasonable having regard to the nature and complexity of the proceedings. In [NAME] the trial judge made a further error of not complying with par (b) of s.55F(2), by not having one or more of the jurors examined on oath, with the consequence that the trial judge could not have the state of satisfaction required by s.55F(2)(b). 14 A further ground of appeal in [NAME] was that the trial judge had erred in directing the [NAME], by combining a [NAME] direction with a direction about the availability of a majority verdict. 15 In [NAME] the [NAME], after they had been retired for some hours, had sent a note to the trial judge to the effect that no more progress could be made towards reaching a unanimous verdict. In a discussion between the trial judge and counsel in the absence of the [NAME] as to what further directions should be given to the [NAME], it was agreed that by 2:30 that afternoon eight hours would have elapsed and a majority verdict could be accepted. 16 At 2:15 pm the trial judge gave his further directions to the [NAME]. The trial judge gave a [NAME] direction in similar terms to the [NAME] direction given by the trial judge in the present case. However, the trial judge also gave the following direction:- "If, in fact, after further discussion you are unable to reach a unanimous verdict, then there is now in New South Wales as of very recently a provision whereby if eleven of you agree then a verdict can be returned. I have not mentioned that to you before because the law provides that that can only happen if the [NAME] have been deliberating for eight hours. We have kept a note of the times and certainly by 2.30 today you will have been deliberating for eight hours. If 2.30 came and you were unable to reach a unanimous decision but eleven of you agreed, then you would be entitled to return a verdict at that time." 17 At 2:45 pm the [NAME] returned with a verdict of guilty, stating in a note to the trial judge that the verdict was a majority verdict. 18 It was submitted on the appeal in [NAME] that the effect of the [NAME] direction had been undermined by the fact that at the same time as giving the [NAME] direction the trial judge had directed the [NAME] that in about 15 minutes' time they could return a verdict of guilty with a majority of 11. 19 The Chief Justice held in par 22 of his judgment: "In my opinion, [NAME] did undermine the effect of the [NAME] direction. No further direction should have been given at this time." 20 A distinction between [NAME] and the present case is that in [NAME] the time at which a majority verdict could be accepted, according to the trial judge's directions, had not yet arrived, although it was only a few minutes away, whereas in the present case the [NAME] were told that the time at which a majority verdict could be accepted had already arrived. On this appeal counsel for the [NAME] submitted that this distinction between the two cases was in favour of the [NAME]. 21 There is, however, a contrary argument that this distinction favours the appellant. If it undermines a [NAME] direction for a trial judge to tell a [NAME] that a majority verdict could be accepted in a few minutes time, it would undermine a [NAME] direction even more for a trial judge to tell a [NAME] that a majority verdict is immediately available. 22 The directions given by the trial judge were generally in accordance with suggested directions in the Criminal Trial Courts Bench Book. However, suggested directions in the Bench Book have no special status. The Bench Book does not contain an authoritative statement of the law R v Forbes (2005) 160 A Crim R 1 at 15 (73). Suggested directions in the Bench Book are not immune from appellate review R v Zoef [2005] NSWCCA 268 at (93). The suggested directions presently in question first appeared in the Bench Book before [NAME] was decided and, although [NAME] is now referred to in notes in the Bench Book, no change has been made to the original suggested directions. 23 I have concluded that, because it is unnecessary to make a decision on whether the further submission by counsel for the appellant should be accepted, in order to determine the appeal or to determine that both grounds of the appeal should be upheld and because the directions given by her [NAME] followed suggested directions in the Bench Book and because argument on this aspect of the appeal was fairly brief, I should not make a final determination on whether the submission should be accepted. It does appear to me that in the present case it might have been a preferable course for the trial judge to have given a [NAME] direction without referring to the possibility of a majority verdict, to have allowed the [NAME] some further time in which to endeavour to reach a unanimous verdict and only then, if the [NAME] was still unable to reach a unanimous verdict, to have put into effect s.55F of the [NAME] Act. 24 [NAME] J: I agree with the reasons of [NAME] J and Hall J that there was non compliance with s.55F(2) of the [NAME] Act and that consequently the appeal against conviction should be allowed and a new trial ordered.

25 For the reasons set out by Hall J and discussed by [NAME] J, I am inclined to the view that the effect of the [NAME] direction was undermined by the fact that at the same time as giving the [NAME] direction the trial judge directed the [NAME] that they could return a verdict of guilty with a majority of eleven.

26 It is unnecessary to reach a final decision on that issue since the failure by the trial judge to comply with s.55F(2) of the [NAME] Act is sufficient to dispose of the appeal.

Accordingly, I leave open for a future occasion whether her [NAME]'s directions as a whole undermined the [NAME] direction so as to entitle the appellant to succeed on the appeal. 27 HALL J: On 18 April 2007, the appellant, [NAME], and his co-accused, [NAME], were jointly indicted and tried in the Sydney District Court on a number of charges, the particulars of which appear below. 28 On 22 May 2007, the [NAME] returned its verdicts. The appellant was found guilty on Count 1, but not guilty on Count 2, Count 3 and Count 8. The appellant's co-accused was found guilty on Count 1 but not guilty on Counts 2 to 8 inclusive. 29 On 15 June 2007, the appellant was sentenced on Count 1 to imprisonment for a non-parole period of three years and three months to commence on 13 August 2005 and to expire on 12 November 2008 with an additional term of three years to expire on 12 February 2012. 30 Particulars of the counts are as follows:- " Count 1 The Appellant and [NAME] 10 August 2005 and 14 august 2005 at [NAME] in the State of New South Wales whilst in the company of each other detained [[NAME]] without his consent and with intent to obtain an advantage, namely, money and at the time of the detaining actual bodily harm was occasioned to [[NAME]]. … Count 2 The Appellant and [NAME] 10 August 2005 and 14 August 2005 at [NAME] in the State of New South Wales whilst in the company of each other detained [[NAME]] without her consent with intent to obtain an advantage, namely, money. Count 2 The Appellant and [NAME] 10 August 2005 and 14 August 2005 at [NAME] in the State of New South Wales whilst in the company of each other detained [[NAME]'s child] without his consent with intent to obtain an advantage, namely, money. Count 4 [NAME] 10 August 2005 and 14 August 2005 at [NAME] in the State of New South Wales did have sexual intercourse with [[NAME]] without the consent of [[NAME]] knowing she was not consenting. Count 5 [NAME] 10 August 2005 and 14 August 2005 at [NAME] in the State of New South Wales did have sexual intercourse with [[NAME]] without the consent of [[NAME]] knowing she was not consenting. Count 6 [NAME] 10 August 2005 and 14 August 2005 at [NAME] in the State of New South Wales did have sexual intercourse with [[NAME]] without the consent of [[NAME]] knowing she was not consenting. Count 7 [NAME] 10 August 2005 and 14 August 2005 at [NAME] in the State of New South Wales did possess a pistol, namely, a .357 magnum calibre Colt model Python revolver without being authorised to do so by license or permit. Count 8 The Appellant and [NAME] On the 13 August 2005 at [NAME] in the State of New South Wales took [[NAME]'s son] , a child, with intent to remove the child from the lawful control of [[NAME]] and [[NAME]] without their consent, they being persons having parental responsibility for the child." 31 A notice of appeal against conviction and a document entitled "Grounds of Appeal" both dated 19 December 2007 were filed on behalf of the appellant. There were two grounds as follows:- "Ground 1: The learned trial judge erred in the directions she gave to the [NAME] as to the availability of a majority verdict. Ground 2: Section 55F of the [NAME] Act 1977 was invoked in circumstances where it was not permissible to do so and in the result the appellant did not get a trial according to law." 32 The appeal was heard by this Court on 23 May 2008. On that date, the appeal against conviction was allowed and a new trial was ordered. 33 The appeal was allowed upon the basis that the trial judge had erred in invoking the majority verdict provisions in s.55F of the [NAME] Act 1977. On the last-mentioned date, the Court stated that it would publish its reasons at a later date. These are those reasons.

Summary of facts 34 The written submissions for the appellant contained a brief summary of the events that led to the appellant and his co-offender being charged with the above offences. That summary, in part, is reproduced below:- "4. The case involves the culmination of events occurring between 10 and 14 April 2005 relating to a drug transaction involving 500 g of methamphetamine. … The alleged offenders were [NAME] (known as Jack), [NAME] and [NAME]. 5. [NAME] gave evidence for the [NAME] at [NAME]'s trial.

6. It was alleged that the adult victims and the alleged offenders were involved in a transaction to procure the methamphetamine for a group of bikies. In the process of dealing with the drug it was said that different grades of the drug were mixed and another ingredient added which spoiled it. Ultimately the bikies were unhappy about the product and wanted their money back.

7. It was alleged that Mr [NAME] and [NAME] became involved in finding the money to repay the bikies and believed [one of the victims] may be holding the money. Evidence was given that the men went to the residence of [[NAME]] where he lived with his de facto wife, … and their child, …. It was alleged, amongst other things, that [NAME] was involved in detaining [[NAME]] , occasioning actual bodily harm … and taking money."

Trial events 35 The trial commenced on 18 April 2007 and continued until 22 May 2007. 36 On 18 May 2007, the trial judge commenced and completed the summing up. The [NAME] retired to consider its verdicts at 1.10 pm on Friday 18 May 2007. 37 The [NAME] continued its deliberations on Monday 21 May 2007. On two occasions that day, the [NAME] sent questions by note to the trial judge and those questions were in turn dealt with following which the [NAME] resumed its deliberations.

The majority verdict direction 38 On 22 May 2007, the [NAME] advised the trial judge by note that they were stalemated on two counts. The trial judge then discussed the note with counsel, in the absence of the [NAME]. 39 On the basis of the [NAME] having retired to consider its verdicts at 2.00 pm on Friday 18 May 2007, the time spent deliberating on Monday 21 May 2007 (omitting the lunch adjournment) and the one hour spent deliberating that morning, the trial judge stated that "eight hours has just elapsed" (T.22 May 2007, p.1). As the [NAME] had failed to reach unanimous verdicts after eight hours of deliberations, the trial judge informed counsel of an intention to bring back the [NAME] for the purpose of a perseverance direction (a [NAME] direction in accordance with the joint judgment of [NAME] and [NAME] in [NAME] v The Queen (1993) 179 CLR 44 at 49) and to additionally inform the members of the [NAME] of the option of a majority verdict (T.22 May 2007, p.1). 40 The trial judge then observed and proposed that, as eight hours had elapsed, she would give a [NAME] direction and urge the [NAME] to continue to reach a unanimous verdict. 41 The trial judge then inquired as to whether the [NAME] agreed with what was proposed. The [NAME] responded:- "No, your [NAME], I think the act allows that after eight hours your [NAME], I think, does have a discretion not to allow, or give them the opportunity of a majority verdict at this stage depending on the length of the trial etc, but your [NAME], I don't really know how complicated this trial was, or those types of matters so …" 42 The trial judge, at that point, emphasised that the [NAME] had been deliberating since two o'clock on the previous Friday and then added:- "HER [NAME]: So, I think given that the legislation says that eight hours is the time, I'm minded to tell them that it's open to them. I can't see any reason why I should hide from them … [NAME]: Yeah. HER [NAME]: -- hide it from – I suspect, well, it may be that they're stalemated, their numbers were broad, that they won't be able to reach even a majority verdict, but I should tell them that and I think then give them a short time to consider their position before – or for them to come back and say whether they will or not. [NAME]?" 43 Counsel for the co-accused then responded:- "[NAME]: I'd ask your [NAME], rather than give a direction as to a majority verdict, first of all, give them a [NAME] direction then wait some time and see what happens then, and then if they still come back and say they can't resolve it, having been given a [NAME] direction, then to give them a direction about majority verdicts. HER [NAME]: Why do you say I should wait, given that the time has arrived when a majority verdict is available to them? [NAME]: Well, it is your [NAME], but one has to take into account the length of the trial, I would have thought, that it's been a five week trial. The evidence is fairly detailed evidence. There's a lot of evidence and, in my submission, your [NAME], it would not be appropriate at this stage, seemed [sic] that it's only, it would just be an eight hours, I think your [NAME], yes. … and the eight hours is the minimum period before one can give that direction. In my submission, as I said, given the length of the trial, the issues in the trial, the number of issues they've had to consider, eight, I think, there are seven or eight counts on the indictment, that it would be appropriate not to give that direction at this stage, but rather to give a [NAME] direction at this stage. HER [NAME]: Well, I was proposing to give a [NAME] direction first and say, a unanimous verdict is preferable but if they can't reach a unanimous verdict, a majority verdict is open to them. [NAME]: Yes. HER [NAME]: Send them away to consider it further. I mean the position always is a unanimous verdict should be reached if it can. [NAME]. Yes, well perhaps after a [NAME] direction they may well reach a unanimous verdict but if they come back some time later and say, well, we're still deadlocked, it might then be the appropriate time to give them a direction as to a majority verdict. HER [NAME]: How long do you say would be the minimum time before -- [NAME]: Well, I would have thought at least 15 hours or so, given the length of the trial." (T.22 May 2007, pp.2-3) 44 Counsel for the appellant then addressed the trial judge and stated:- "[NAME]: Your [NAME], I would have to support [NAME]' submission. I would have thought the length of the trial and that really even though we had the odd day where we didn't sit, there was a lot of evidence, a lot of evidence. I mean, I just found that simply in preparing my closing address and there's eight counts and two accused -- HER [NAME]: But they say there are two counts that they're stalemated. [NAME]: Certainly it may – I mean, we don't know how they're deliberations have gone. It may be that they have spent the whole time on those two counts, or – I mean, we don't know the proportionality. They seem to be working efficiently, if one looks at their questions, and I think, considering the length of the trial, considering the number of different witnesses and the contradictions in evidence and I would be in support of simply a [NAME] direction but no mention of a majority verdict at this stage. Give them some more hours, may be the end of the day see if a resolve comes of that and if it doesn't then I would submit it would be appropriate for a majority verdict direction. HER [NAME]: Alright, thank you. Alright, well, I note what you both say, but I am going to mention the majority verdict given the time has elapsed and I'll emphasise to them that they ought to first of all try and reach a unanimous verdict, but I am not going to hide from them the legislative provision. Bring the [NAME] in, please." (T.22 May 2007, p.3) 45 The [NAME] returned to court at 11.15 am. The transcript then records at pp.3 to 4 the further directions given to the [NAME] in response to the question raised. After referring to the trial judge's power to discharge the [NAME] from giving a verdict but stating that the power would not be exercised at that stage, the trial judge proceeded to then address and instruct the [NAME] about the matter. The trial judge, in part, stated:- "But I should say to you that you having now been deliberating for eight hours, the law provides that I can accept a majority verdict which would require 11 of you of the 12 to agree if you cannot reach unanimous verdict. But I would emphasise to you that it is preferable that you continue to deliberate and try and reach a unanimous verdict. A unanimous verdict is preferable to a majority verdict." 46 The trial judge then gave the [NAME] a [NAME] direction, following which she stated:- "If, after you have deliberated for some time, you come to the view that it is impossible for you to reach a unanimous verdict, then you can consider whether you are able to return a majority verdict on these two counts, that is, 11 of you of the 12. They are the only options available, a unanimous verdict, or a majority verdict by 11 of you agreeing. So, I'm going to ask you to go out in light of those directions and ask you to deliberate further, please." 47 The [NAME] then retired at 11.19 am. 48 The [NAME] were recalled at 11.20 am. The trial judge clarified what she had said:- "When I said to you the only options are unanimous verdicts, or as a second option, a majority verdict, if you come to a time where you decide among yourself that you cannot reach either of those verdicts, then you can tell me that you cannot reach a verdict. But the point of my bringing you in here was to urge you to go out and consider the matter further and try to reach a unanimous verdict. If you find after considering the evidence closely and discussing amongst yourselves you cannot do that, then you consider a majority verdict, if, after having giving it a reasonable time and discuss it to the point where you find that, or you come to the view that you will not be able to return a majority verdict, then you will tell me that. So, in saying that those are the only two options, I do not mean to say to you that you cannot come and say that you will not be able to reach a majority verdict if that is the case, but I am encouraging you to consider the matter further amongst yourselves. Alright, thanks, you can go." 49 The [NAME] then retired at 11.21 am. 50 A further [NAME] note was received by the trial judge. The transcript recorded the trial judge as stating:- "The [NAME] have sought some clarification that when I said I have the power to discharge them if they could not reach a unanimous decision, whether that means all the verdicts that you have agreed upon, or just those they have not agreed upon, so I better bring them back in and clarify that." 51 The [NAME] then returned at 11.58 am and further directions were given by the trial judge. The [NAME] then retired to further consider its verdict at 12.00 noon. 52 A further [NAME] note was received and the trial judge recorded:- "The [NAME] have sent a note to say that on two counts, they have reached a majority verdict, 11 to 1, that one juror is adamant that their verdict will not change, nor will that of the remaining 11 jurors. On all other counts they have reached a unanimous decision, so, I'm inclined to bring them back in and take the verdicts without having the foreman in the witness box, but if anyone requires me to have evidence from him on oath, if that is their position, I will do that. [NAME]: Your [NAME], I think that the Act requires – could I just have that copy back, I just had a copy of the Act this morning – s.55F of the [NAME] Act referring to majority verdicts, subsection 2 'A majority verdict may be returned by a [NAME] in criminal proceedings if', and then it goes through the eight hours, that's (a) and '(b) [ADDRESS] is satisfied after examination on oath of one or [sic] more the jurors that it is unlikely that the jurors will reach a unanimous verdict after further deliberation'. HER [NAME]: Thanks, alright, well, I'll have the foreman examined on oath. [NAME]: Yes, perhaps that's advisable, your [NAME]." 53 The transcript recorded that the [NAME] returned to Court at 3.05 pm. The [NAME] foreperson was sworn at 3.06 pm and the trial judge then put questions to him. In particular, the trial judge inquired, whether, if the [NAME] had more time in relation to the two counts in question, they would be able to reach a unanimous verdict on them. The foreman indicated in the negative. 54 The [NAME] soon after returned with the verdicts referred to in paragraph [28].

The statutory provisions 55 Section 55F of the [NAME] Act 1977 provided for the taking of majority verdicts from a [NAME] in criminal proceedings in New South Wales. This legislative provision commenced on 25 May 2006, providing that:- (1) This section applies in respect of a verdict in criminal proceedings where the [NAME] consists of not less than 11 persons. (2) A majority verdict may be returned by a [NAME] in criminal proceedings if:- (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than eight hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (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. (3) In this section:- majority verdict means:- (a) a verdict agreed to by 11 jurors where the [NAME] consists of 12 persons at the time the verdict is returned, or (b) … unanimous verdict means a verdict agreed to by all members of the [NAME]."

The appellant's submissions 56 In the appellant's written submissions, it was submitted that the learned trial judge erred in informing the [NAME] of the availability of a majority verdict at the same time as giving the [NAME] direction. It was contended that counsel for both accused made strenuous objection and submitted that the [NAME] direction be given first and the option of a majority verdict given at a later stage. 57 It was further submitted that the learned trial judge erred in not taking account of the length and complexity of the trial before informing the [NAME] of the availability of a majority verdict. Both counsel, it was submitted, argued that, as the trial had taken five weeks, the issues were complex and that insufficient time had elapsed for the trial judge to inform the [NAME] of the availability of a majority verdict. 58 It was submitted for the appellant that the directions given in [NAME] v Regina [2007] NSWCCA 241 are analogous to the directions given to the [NAME] by the trial judge in the appellant's case. In [NAME] (supra), [NAME] stated (at [5]):- "The first basis for the Appellant's challenge is that s.55F was invoked in circumstances where it was not permissible to do so.

Accordingly, the majority verdict was either a nullity or involved such a failure of compliance with the procedural requirements of a trial as to constitute a miscarriage of justice in the sense that the Appellant did not get a trial according to law. On this appeal the [NAME] accepted the latter characterisation and it is unnecessary to choose between them." 59 The decision of the Court of Criminal Appeal in [NAME] was delivered after the appellant's trial. 60 In oral submissions, [NAME], who appeared with [NAME] for the appellant, stated that, whether or not eight hours had elapsed, the trial judge failed to give consideration to whether the [NAME] had deliberated for a reasonable period of time, or at least did not make any finding that a reasonable period of time had elapsed, having regard to the nature and complexity of the proceedings.

The [NAME]'s submissions 61 The [NAME], in written submissions, contended:- "28. The learned trial judge held that the [NAME] had been deliberating for more than eight (8) hours (T 22 May 2007, p.22) and there was no demurrer to that proposition by either defence counsel.

29. The finding that a period in excess of eight hours had elapsed was entirely open on the evidence.

30.

Accordingly, the first prerequisite of s.55F(2)(a) was present.

31. By necessary implication, the observations that the learned trial judge then made are indicative that her [NAME] regarded the period of time for which the [NAME] had by then been deliberating was reasonable having regard to the nature and complexity of the trial, particularly given the circumstance that the [NAME] note (MFI #50) apparently limited the stalemate to only two (2) of the counts: T 22 May 2007, p.3.13).

32. The finding that a reasonable period had elapsed was entirely open on the evidence.

33.

Accordingly, the second prerequisite of s.55(2)(a) was present.

34. Once both the prerequisites specified in s.55F(2)(a) were present, there was no further requirement prescribed by the section or otherwise that required the postponement of majority verdict directions until after perseverance directions (the [NAME] direction) had been given and the [NAME] had then been permitted to retire to deliberate for some further time.

35. It is a corollary of the presence of both the prerequisites prescribed by s.55F(2)(a) that there is no miscarriage of justice occasioned by a trial judge directing a [NAME] simultaneously in relation to their continued perseverance towards a unanimous verdict (the [NAME] direction) and the principles relevant to the return of a majority verdict.

36. Indeed, the Criminal Trial Courts Bench Book produced by the Judicial Commission of New South Wales provides suggested directions to be given in precisely such circumstances: Op. cit. at [8-090].

37. The directions given by the learned trial judge in the trial presently under appeal reflect in all material respects the terms of those suggested directions: T 22 May 2007, p.3.39 to 6.10,. … 41. Ultimately, her [NAME] indicated that account had been taken of the submissions made by the parties and determined that the [NAME] would be directed in relation to the majority verdicts: T 22 May 2007, p.3.30.

42. It is implicit from the observations made by the learned trial judge during the course of those submissions and the terms of the decision to direct the [NAME] as to majority verdicts that her [NAME] had considered whether the [NAME] had been deliberating for a time that was both in excess of eight (8) hours and reasonable having regard to the length and complexity of the trial.

43. Therefore, contrary to the submission here made on behalf of the Appellant, the learned trial judge did take into account the length and complexity of the trial before determining to direct the [NAME] in relation to majority verdicts."

Consideration 62 In [NAME] (supra), the Court dealt with the contention by the appellant that s.55F was invoked in circumstances where it was not permissible to do so. It was there submitted the majority verdict was either a nullity or involved such a failure of compliance with the procedural requirements of a trial as to constitute a miscarriage of justice in the sense that the appellant did not get a trial according to law. 63 [NAME] at [5] observed that the [NAME] accepted the latter characterisation and, accordingly, the Chief Justice stated it was unnecessary to choose between the suggested legal consequences referred to in the paragraph above. However, as noted below, it was ultimately determined in [NAME] (supra) that there had been a miscarriage of justice. 64 In [NAME] (supra), the first criticism was that the trial judge did not, in fact, determine what "period of time" for deliberation was "reasonable having regard to the nature and complexity of the criminal proceedings". The circumstances in that case were such that the trial judge did appear to have proceeded upon the basis that the only pre-condition for the return of a majority verdict was whether eight hours had elapsed: see judgment in [NAME] at [14]. 65 The second criticism was that the trial judge in [NAME] (supra) had failed to examine any juror on oath and, accordingly, could not have been "satisfied … that it is unlikely that the jurors will reach a unanimous verdict under further deliberation". 66 The Chief Justice in [NAME] (supra) at [18] observed that when Parliament modified the long-standing principle underpinning the requirement of unanimity of a [NAME] in a criminal case, it did so by inserting two significant qualifications expressly requiring the attention of the trial judge. The first was that the trial judge had to make a judgment as to whether or not a "reasonable" period had elapsed in all of the circumstances of the trial. The second was to require a formal procedure for examining at least one juror, perhaps more, to satisfy the judge that it was unlikely that a unanimous verdict would be reached. 67 [NAME] then observed at [19]:- "19. These two matters are essential pre-conditions which Parliament required to be met. Each precondition involves a judgment by the trial judge of a character with which this court is reluctant to intervene. In the present case, however, on the materials before the Court, the trial judge failed to address either matter. Either would, in my opinion, be sufficient to vitiate the trial. In my opinion, a miscarriage of justice has occurred in the sense that the Appellant had not received a trial according to law." 68 In relation to the second ground of appeal in [NAME], which focused on the timing of the directions given, the Chief Justice observed:- "21. [NAME] gave the [NAME] a direction in accordance with [NAME] v The Queen (1993) 179 CLR 44 urging them to continue to attempt to reach a unanimous verdict. However, the effect of that direction was, the Appellant submitted, undermined by the fact that at the same time [NAME] directed the [NAME] that in 15 minutes they could in fact resolve upon guilt with a majority of 11. This invitation to just wait, the Appellant submitted, was compounded by [NAME]'s statement to the [NAME] that they 'need not worry' because the Court 'will not be keeping you here beyond a day'.

22. In my opinion, [NAME] did undermine the effect of the [NAME] direction. No further direction should have been given at this time." 69 From the transcript in the present proceedings, it can be seen that the trial judge placed considerable emphasis upon the time factor of eight hours referred to in s.55F(2) but did not indicate that attention or consideration had been given to the concept of the time the Court considered to be reasonable "… having regard to the nature and complexity of the criminal proceedings …": s.55F(2)(a). 70 The transcript records the submissions made by both the [NAME] and counsel for both accused by which counsel indicated their opposition to the course proposed by the trial judge. 71 I do not consider, as the [NAME] submitted, that the statements made by the trial judge indicate, by necessary implication, that the trial judge had considered the question as to whether or not the period of time that the [NAME] deliberated was "reasonable having regard to the nature and complexity of the criminal proceedings" within the meaning of s.55F(2)(a). There was no indication that that matter had been considered by the trial judge and no indication that a determination or judgment on that precondition had, in fact, been made as the Act requires. 72 In those circumstances, I am of the opinion the precondition in that respect set out in s.55F(2)(a) was not complied with. That is a sufficient basis for concluding that the trial was not one according to law. 73 Although the circumstances in which the [NAME] were also given a [NAME] direction was somewhat different from the circumstances that arose in [NAME] (supra), there is a question as to whether the trial judge ought to have first given a [NAME] direction and not, at the same time, to have made reference to the fact or the circumstances in which a majority verdict may be returned by the [NAME]. 74 Whilst it is, in my opinion, arguable that, by giving a [NAME] direction followed immediately by a reference to the possibility of a majority verdict in respect of the two counts in question the force of the [NAME] direction was thereby undermined, it is not necessary for that question to be finally resolved for the purposes of the present appeal. 75 Accordingly, I am of the opinion that by reason of the failure to comply with the precondition in s.55F(2)(a) to which I have referred, there was a miscarriage of justice and that it was upon that basis that the Court, on 23 May 2008, allowed the appeal against conviction, quashed the conviction in the District Court and ordered that there be a new trial. **********

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