Improper Jury Instructions Lead to New Trial in NSW Criminal Case

The Court of Criminal Appeal quashed the convictions and ordered a new trial due to improper jury instructions that placed undue pressure on the jury to reach a verdict.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v R [2015] NSWCCA 304 Hearing dates: 14 October 2015 Decision date: 04 December 2015 Before: [NAME] at [1]; [NAME] at [20]; [NAME] at [21] Decision: (1) That the appellant's convictions on counts four and five charged in the Indictment issued in June 2014 by the Director of Public Prosecutions be quashed.

(2) That there be a new [NAME] on those counts. Catchwords: CRIMINAL LAW – indecent assault – act of indecency – appeal against conviction – whether a miscarriage of justice occurred as a result of [NAME] judge's direction to the [NAME] – whether [NAME] judge's direction contravened the principles in [NAME] v R [1993] HCA 71; 179 CLR 44 – whether [NAME] judge's direction placed undue pressure on the [NAME] to reach a decision - whether [NAME] judge encouraged jurors to agree to compromise verdicts Legislation Cited: Crimes Act 1900 (NSW), ss 61L, 61N Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules (NSW), r 4 Cases Cited: ARS v R [2011] NSWCCA 266 [NAME] v R [1993] HCA 71; 179 CLR 44. R v TK [2009] NSWCCA 151; 74 NSWLR 299 R v Accused (CA 87/88)(1988) 2 NZLR 46; 3 CRNZ 301 R v Walhein (1952) 36 Cr App R 167 Timbery v The Queen [2007] NSWCCA 355; 180 A Crim R 232 Category: Principal judgment Parties: [NAME] (Appellant) Regina (Respondent) Representation: Counsel: [redacted] [NAME] (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2013/143378 Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 18 June 2014 (Conviction) 8 August 2014 (Sentence) Before: [NAME](s): 2013/143378

Judgment 1. [NAME]: Following a [NAME] in June 2014 in the District Court before a judge and [NAME], the appellant was convicted of an offence, contrary to s 61L of the Crimes Act 1900 (NSW), of one count of assaulting the complainant (and at the time also committing an act of indecency) and of one count of an offence, contrary to s 61N(2) of the Crimes Act, of committing an act of indecency towards the same complainant. The Indictment alleged that those offences occurred between 25 and 26 January 2010. The appellant was acquitted of three other charges which concerned acts of a sexual nature alleged to have been committed on 16 January 2010 in relation to the same complainant.

2. The appellant's first ground of appeal asserts that "[a] miscarriage of justice occurred as a result of the [NAME] judge's direction to the [NAME] in response to a question from the [NAME]" whilst it was considering its verdict. The question was what would happen if the [NAME] members could not agree.

3. The second ground of appeal asserts that "[t]he convictions were unreasonable and cannot be supported by the evidence" as they were "inconsistent with the verdicts returned in relation to the remaining counts."

4. At the hearing in this Court, the appellant's senior counsel conceded that the appellant's success on the second ground would entitle him to a new [NAME] but not to an acquittal (see R v TK [2009] NSWCCA 151; 74 NSWLR 299 at [137]). As a result, she accepted that if the appellant succeeded on the first ground (and thereby obtained an order for a new [NAME]), it would be unnecessary for this Court to deal with the second ground.

5. For the reasons given below, the appellant succeeds on his first ground of appeal. As a result, his convictions should be quashed and a new [NAME] ordered. To address the second ground, it would be necessary to examine the evidence given at the [NAME] in some detail. As there is to be a new [NAME] by reason of the success of the first ground, it would be undesirable for this Court to express any view about that evidence unless it was necessary for it to do so. As that is not necessary, I shall not address the second ground.

The [NAME]'s question and the [NAME] judge's response 1. The [NAME] retired to consider its verdict at 12:22pm on 17 June 2014. At 4:10pm it sent a note to the [NAME] judge asking six questions, the first five of which are presently irrelevant. The sixth question was: "[w]hat happens if we cannot agree?". The [NAME] judge's response to the [NAME] was: "Now finally you ask 'What happens if we cannot agree?" Well the answer to that is that I will tell you to go away and try harder, so take it from me that you will be encouraged to go away and think more deeply and consider [NAME] other's views more deeply if you believe that you are deadlocked because these trials are very costly to run and very time consuming and if I had to discharge you it would mean we would all have to go through the whole process again" (Summing-Up p 32).

1. The [NAME] judge then excused the [NAME] for the day. It reconvened at 9:55am the next day and continued deliberations until 11:42am, at which time it returned verdicts of not guilty on three of the counts in the Indictment and guilty on two counts (see [1] above).

DETERMINATION OF THE APPEAL

Whether the judge's response placed undue pressure on the [NAME]

1. The appellant's oral argument on the appeal focused on the question of whether the judge's response to the [NAME] placed undue pressure on it to reach verdicts and was therefore apt to encourage its members to compromise their views in order to achieve agreed verdicts, contrary to the principles stated in [NAME] v R [1993] HCA 71; 179 CLR 44.

2. In [NAME] v R the [NAME] judge's directions to the [NAME] included the following: "…[NAME] has individually taken an oath to return a true verdict according to the evidence. As I told you in my summing-up, you are equal in your task, but nevertheless you have a duty, not only as individuals but also collectively. No one of you should be false to the oath you took but in order to return a collective verdict, a verdict of you all, there must necessarily be discussion and argument and a certain amount of give and take and adjustment within the scope of that oath. It makes for considerable public inconvenience and expense if a [NAME] cannot agree and it is most unfortunate indeed if such a failure to agree is due to some unwillingness on the part of one or more members of the [NAME] to listen to and consider the arguments of the rest of the [NAME]. It is very desirable that you should come to a conclusion one way or the other, because if you don't, it will mean that some [NAME] will have to later seek to do what you have been chosen to do. That would be a considerable hardship on all concerned with the case, including the accused and the various witnesses and if possible, should be avoided" (at 47).

1. The plurality in that case referred to a form of direction approved by the [ADDRESS] of Criminal Appeal in R v Walhein (1952) 36 Cr App R 167 which spoke of the need for "a certain amount of give and take and adjustment of views within the scope of the oath [the [NAME] members] have taken" and the "great public inconvenience and expense if jurors cannot agree" (at 168). The plurality in [NAME] v R agreed with Cooke P's criticism in R v Accused (1988) 2 NZLR 46; 3 CRNZ 301 of the reference in R v Walhein to "great public inconvenience and expense", Cooke P having said that "[i]nconvenience and expense should not be measured against justice" (at 58). The plurality continued: "We agree with this criticism of the Walhein direction, and the criticism has equal application to the instructions given by the [NAME] judge in the present case. More importantly, the reference to 'considerable public inconvenience' is apt to impose pressure upon individual jurors to join in the view taken by a majority, thereby violating the fundamental principle that the [NAME] must be free to deliberate without any pressure being brought to bear upon them. The statement that 'there must necessarily be … a certain amount of give and take and adjustment' might be taken to suggest, wrongly in our view, that a [NAME] is to compromise with other jurors in reaching a verdict. Moreover, the earlier reference to the [NAME] having a 'duty, not only as individuals but also collectively' may well have had the effect of reinforcing the impression that the [NAME] were under some obligation to reach a result to which all the members of the [NAME] subscribed. Jurors do have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the [NAME] room. There is a risk that references to a collective responsibility or duty may be understood more broadly by the [NAME] and as an invitation to an [NAME] to subordinate his or her views to those of a majority of jurors. Consequently references to 'give and take and adjustment' and collective duty or responsibility should be avoided" (at 50 and 51, citation omitted). 1. [NAME] held that the direction in the case before them was erroneous and "may well have resulted in the [NAME] failing to give the issues that free deliberation to which both the accused and the Crown were entitled" (at 51). [NAME] then set forth a form of direction which has since been adopted as the standard direction to be given when juries indicate that their members cannot agree (see 51).

2. Deane J agreed with the plurality and added that there was: " … a real danger that [the directions] might have been misunderstood by a [NAME], particularly one who had been under pressure in the [NAME] room from a majority, as inviting a democratic submission to the views of the majority in order 'to return a collective verdict'" (at 56).

1. Later, [NAME] said that "[a]ny suggestion that a [NAME] should democratically submit to the view of the majority is antithetical to the [NAME] process under the common law of this country" and that it is essential that: "… a direction requiring the [NAME] to continue its deliberations carefully avoids anything at all that might be misunderstood as encouraging a [NAME] to join in returning a 'collective verdict' which does not completely accord with his or her own genuine views" (ibid).

1. Arguably, the time had not yet arrived in the present case for the [NAME] judge to give a [NAME] direction to the [NAME] as the [NAME] had not indicated that it could not agree, although there was an obvious implication in its question that there was a prospect of that occurring. Nevertheless, a response to the [NAME]'s question along the lines of the standard [NAME] direction would have been appropriate and of assistance to the [NAME] in progressing its deliberations.

2. The first part of the response that the judge in fact gave (that is up to the word "deadlocked") was unobjectionable but what followed was objectionable. As I have indicated, the High Court in [NAME] v R specifically disapproved of the reference by the [NAME] judge in that case to "public inconvenience and expense" as likely to put undue pressure upon the [NAME] to reach a verdict. The [NAME] judge's statement in the present case that "we would all have to go through the whole process again" compounded [NAME]'s error as it increased the pressure on the [NAME] and arguably implied that [NAME] members would not be performing their duties if they did not agree on verdicts. This was "apt to impose pressure upon individual jurors to join in the view taken by a majority" ([NAME] v R, at 50).

Whether leave is required 1. The [NAME] judge's response to the relevant question from the [NAME] in my view amounted to at least an implicit "direction" within the meaning of that word in r 4 of the Criminal Appeal Rules (NSW). As the appellant did not object to the "direction" at the [NAME], the appellant requires leave to rely upon his ground of appeal challenging it. Notwithstanding this Court's reluctance to allow new points to be raised on appeal (see for example ARS v R [2011] NSWCCA 266 at [148]), leave should be granted because in my view the error was of such a fundamental character and occurred at such a critical stage in the [NAME]'s deliberations that the appellant has established that he "lost a real chance" of being acquitted (ibid). As stated in Timbery v The Queen [2007] NSWCCA 355; 180 A Crim R 232, "[d]irections as to how a verdict is to be reached are of the essence of a fair [NAME]" (at [123]).

Accordingly, the Court concluded in that case that a miscarriage of justice had occurred as a result of directions being given in contravention of the principles stated in [NAME] v R and a new [NAME] was warranted.

2. The significance of the error in the present case is accentuated by the fact that here, in contrast to the position in [NAME] v R, the [NAME] had to consider multiple counts and returned verdicts of guilty on some and verdicts of not guilty on others. Although there are arguably explanations for the different verdicts to be found in the evidence, the possibility that, in response to the [NAME] judge's direction, some jurors compromised their views in order to reach collective verdicts is a real one.

3. The same reasoning leads to the conclusion that the "proviso" to s 6 of the Criminal Appeal Act 1912 (NSW) is inapplicable: the Court is unable to conclude that "no substantial miscarriage of justice has actually occurred".

ORDERS 1. For the reasons I have given above, the following orders should be made: 1. That the appellant's convictions on counts four and five charged in the Indictment issued in June 2014 by the Director of Public Prosecutions be quashed. 2. That there be a new [NAME] on those counts. 1. [NAME]: I agree with [NAME]. 2. [NAME]: I agree with [NAME].

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