4. Directions about trial practice and procedure

Updates and background for this project (Digest)

• Providing jurors with a framework for deliberation
• The juror’s oath
• The opening remarks
• The role of the judge and the role of the jury
• Juror conduct and the trial process
• The onus and standard of proof
• The right to silence
• Leaving alternative verdicts and defences
• Perseverance directions

4.1^{* *} This chapter considers directions that aim to give jurors general guidance as to how they go about their task. Many of the relevant directions are contained in the summing-up, but they are often also delivered at other times, including, most importantly, in the judge’s opening remarks.

4.2 Before considering the individual directions, a question arises as to when many of them should be delivered to best effect and, in particular, whether judges should be required to give them in their opening remarks

PROVIDING JURORS WITH A FRAMEWORK FOR DELIBERATION

4.3 There is a proliferation of reports indicating that it is common for jurors to misunderstand what is expected of them, and that, while the vast majority of jurors are conscientious and committed, some are inattentive or confused.¹ The Managing Prejudicial Publicity study quotes a striking example:

There was a ... juror who didn’t understand what was going on. I had a quiet private conversation with her and she obviously did not understand what were ‘facts’, what counted as evidence in the case. She thought that evidence was what she thought, not what was presented in court.²

4.5 The UNSW Pilot Jury Study explored this particular perspective and uncovered, in relation to 10 trials, a spread and intensity of juror misunderstandings about the lack of obligations upon the defence, and revealed blindness to the right to silence and other fundamental principles of accusatorial justice.⁶ These misunderstandings appeared to feed a sense of frustration about in-court processes, and raise concerns about whether some jurors wrongly consider that their task is to ascertain guilt independent of the evidence in the trial. Jury research presents a strong case for acknowledging the links between enhanced judicial instruction on fundamental features of the criminal trial process and jurors’ ability and willingness to deliberate effectively, and to conduct themselves according to a set of norms that meet the baseline expectations of a jury trial.⁷

THE JUROR’S OATH

4.6 An opportunity for reinforcing important juror obligations arises in the context of the juror’s oath and affirmation “to give a true verdict according to the evidence”.⁸ This short uncomplicated statement formalises and solemnises a juror’s undertaking to act with integrity in the task to which he or she has been conscripted. It underscores the obligation to evaluate the evidence with sincerity and honesty, and arrive at a verdict accordingly. For lawyers, the oath per se connotes an important commitment, and the words of the oath express the commitment that a juror will give a verdict limited only according to the evidence presented by the parties in court. For lay people, these meanings may not be obvious. This raises two matters: first, is there a benefit in recasting the oath so that these features are expressly reinforced for each juror; and secondly, the question whether trial judges should be encouraged to explain to jurors the meaning of the oath and the importance of its expression of commitment to apply sincerely and honestly the fundamental rules and principles of Australia’s criminal justice system both during the taking of evidence and during jury deliberations.⁹

ISSUE 4.1

(1) Should trial judges be encouraged to include in their opening remarks an explanation that by taking an oath a juror makes a serious commitment to participate within the legal process and abide by its rules?

(2) Should the juror oath be revised to articulate more expansively the important commitments it embodies?

4.7 In NSW, it has been common practice for about 20 years for the judge to give some remarks to the jury at the beginning of the trial. Prior to this practice, the judge remained completely silent. It was left to the prosecutor, if thought fit, to explain the framework of the case to the jury.

4.8 The opening remarks may include such matters as the respective roles of the judge and jury, the duty of jurors to rely on the evidence presented during the trial and not to examine material from outside sources such as the media and the internet, the prohibitions regarding conducting independent investigations or discussing the case with non-jurors during the course of the trial, selection of a foreperson, and other matters relating to the conduct of the trial (for example, hours of sitting, likely duration of the trial, and so on). The opening remarks may also cover a few legal concepts such as the right to silence, the presumption of innocence, and the onus and standard of proof.

4.9 The AIJA survey mentioned earlier¹⁰ examined the current judicial practice relating to the opening remarks. It found that about 87% of the 23 NSW judges who participated in the survey discuss legal concepts in their opening remarks. Further, there is a lack of uniformity in the legal concepts these judges cover:¹¹

• 78% discuss the presumption of innocence;
• 91% mention the onus of proof;
• 87% identify the standard of proof; and
• 70% discuss the meaning of “beyond reasonable doubt”.¹²

4.10 In light of the AIJA finding that a substantial number of judges do not give legal directions in their opening remarks, an issue that arises is whether it should be mandatory for judges to give certain preliminary directions during their opening remarks for the reasons already discussed.¹⁴

4.11 The Victorian Court of Appeal, commenting on the desirability of trial judges discussing, during their opening remarks, some of the directions that are subsequently given in the judge’s charge, stated that:

there is no reason to doubt that the jury, once provided with such a framework, are not only capable of interpreting and applying such instructions, but will benefit from their timely provision.¹⁵

4.12 This chapter considers directions relating broadly to procedure and practice, including instruction on the juror’s oath, the role of the judge and the role of the jury, the trial process and juror conduct, the right to silence, and the onus and standard of proof. Other matters that could also be considered are discussed in other chapters of this Consultation Paper, including directions on the assessment of evidence such as demeanour, circumstantial evidence, and evidence given by Indigenous witnesses.¹⁶ The question of giving preliminary directions on substantive law is discussed in Chapter 9.¹⁷ For example, should there be preliminary directions on basic rules relating to evidence, such as the distinction between direct and circumstantial evidence, and the assessment of the credibility of witnesses?

4.13 A final issue to consider is whether a written copy or summary of the preliminary directions should be given to each juror to assist them in receiving and assessing the evidence before them.

ISSUE 4.2

(1) Should it be mandatory for judges to give certain preliminary directions in their opening remarks to the jury?

(2) If so, what should be included in the judge’s preliminary directions?

(3) Should jurors be given a written copy or summary of these preliminary legal directions?

4.14 The separation of roles, whereby the judge is said to be responsible for determining questions of law and the jury is said to be responsible for determining questions of fact, has a long history.¹⁸

4.15 The Bench Book provides judges with a suggested explanation of the respective roles of judge and jury. The trial judge provides this explanation at the commencement of the trial as well as in the summing-up. At the commencement of the trial, the trial judge advises the jurors that they are “the sole judges of the facts” and that he or she will direct them as to the “relevant legal principles” and how they should apply them to the issues the jury will have to decide in arriving at its verdict.¹⁹ In the summing up, the judge again reminds the jurors of their respective roles.²⁰

4.16 While it is a “basic assumption” of the criminal justice system that judges and juries do not share the skills used in assessing evidence equally, sometimes, in exceptional cases, judicial experience is accorded greater weight than the experience of a jury. In such cases, a trial judge is required to give the jurors a warning that alerts them to what judicial experience has shown.²¹ Otherwise, the courts accept the jury as the possessor of both the skills and the advantages that are required to reach a proper verdict.²²

ISSUE 4.3

(1) Are the current instructions on the role of the judge and the role of the jury adequate?

(2) If not, how can they be improved?

4.17 Juror behaviour tends to be notable when it creates a sensation of one form or another. Typically, it will be attended with frenzied media commentary. There are also instances of jurors’ in-court conduct that have attracted appellate consideration. These include the trial of Webb and Hay, during which jurors expressed sympathy to the family of the victim,²³ and cases in which it has been alleged that jurors have fallen asleep.²⁴ Most recently, in NSW, media attention fixed on juror conduct following the discharge of the jury in the so-called “Sudoku” trial.²⁵

4.18 This incident raised questions about the challenges facing jurors, and the potential for juror misunderstandings and lapses in behaviour during long, complex cases and cases where parties extensively rely on electronic surveillance.

ISSUE 4.4

How should the trial judge explain to the jurors the conduct that is expected of them during the trial and their deliberations?

4.19 Aside from techniques that might promote enhanced juror appreciation of what is expected of them, one potential improvement in the regime of judicial (and other) assistance to jurors is to make sure that jurors are aware that they can, and should, seek a break if necessary. Judicial direction to jurors encouraging them to seek breaks when needed may aid jurors’ responsiveness to other directions if, as the New Zealand Law Commission report indicated, jurors respond best to judges “who made it clear that both the court and the court staff were concerned about, and wanted to be responsive to, their needs during the trial”.²⁶

4.20 On the other hand, there may also be an argument for meeting juror needs in particular cases if they would prefer to sit more hours than those scheduled in order, for example, to reduce frustration about the sometimes apparently inefficient use of their time.

ISSUE 4.5

(1) Should trial judges encourage jurors to make known when they, or some of their number, feel they need a break or their concentration is lapsing?

(2) Should judges seek other input from jurors about the arrangement of sitting times?

4.21 In criminal cases, the “onus of proof” (sometimes also referred to as the “burden of proof”) initially rests on the prosecution, who must prove the accused’s guilt. The level of proof which the prosecution must attain in establishing the accused’s guilt is referred to as the “standard of proof”. The standard in a criminal case is beyond reasonable doubt.

4.22 The Bench Book suggests the following form of words for introducing the onus and standard of proof:

As this is a criminal trial the burden or obligation of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before you. It is of course not for the accused to prove his/her innocence but for the Crown to establish his/her guilt.

A critical part of the criminal justice system is the presumption of innocence. What it means is that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades a jury that the person is guilty beyond reasonable doubt.²⁷

4.23 The onus of proof of all matters in issue in a criminal trial generally rests upon the prosecution.²⁸

4.24 The judge’s summing-up should always include a direction that the onus of proof rests on the prosecution to prove the defendant’s guilt.²⁹ Whether a judge has adequately instructed the jury on the onus of proof is viewed in the context of the summing-up as a whole.³⁰

4.25 Australian courts have accepted that a judge should not sum up in a way that detracts from the critical question of whether the prosecution has proved the guilt of the accused beyond reasonable doubt. Attempts to give further content to the concept of beyond reasonable doubt, or to direct the minds of the jury beyond it, risk confusing or even reversing the onus of proof.

4.26 Inviting the jury to search for a reason why a victim or other witness would make a false accusation may also run the risk of reversing the onus of proof. Without further direction, this could leave the jury with the impression that the accused bears some onus of proving the existence of a motive for the false accusation.³¹ For example, a judge should not raise the question in a sexual assault case (where evidence of motive has not been raised) “why would the complainant lie?” in a way that gives the jury the impression that “it was up to the accused to come up with a plausible answer to the question”.³² Such an impression amounts to a reversal of the onus of proof.³³ Justice Sperling has observed:

To instruct a jury to start with the presumption that a Crown witness is telling the truth is inconsistent with the concepts underlying a criminal trial, embodied in the standard directions concerning the onus of proof and the jury’s obligation to consider what evidence to accept and what evidence to reject. ... [Juries] should not be encouraged to begin with a presumption that evidence led against the accused is true for no better reason than that is given on oath.³⁴

ISSUE 4.6

Are the standard directions relating to the onus of proof adequate?

4.28 In Australia, judges instruct the jury that, before returning a verdict of guilty, they must find the accused guilty “beyond reasonable doubt” and generally do so without elaboration or explanation.

4.29 The Bench Book suggests the following instruction:

The Crown must prove the accused’s guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused’s guilt beyond reasonable doubt. In other words you should ask yourselves whether there is any reasonable possibility that the accused did not do what the Crown alleges against him/her. Unless the Crown satisfies you that no such possibility exists you must find the accused not guilty.

... In a criminal trial there is only one ultimate issue that a jury has to decide. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is “guilty”. If the answer is “no”, the verdict must be “not guilty”.³⁶

It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge’s task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning.⁴¹

[Jurors] are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed ... “It is not their task to analyse their own mental processes” ... A reasonable doubt which a jury may entertain is not to be confined to a ‘rational doubt’ or a ‘doubt founded on reason’ in the analytical sense or by such detailed processes as those proposed ... .⁴³

It appears to be an ineradicable misconception on the part of some trial judges that, simply because the High Court has on many occasions said that the phrase ‘beyond reasonable doubt’ is a well understood expression, and that whether a doubt is reasonable is for the jury to say by setting their own standards, it is necessary to tell the jury just that. It is not necessary, nor is it desirable to do so ... The phrase ‘beyond reasonable doubt’ needs neither embellishment nor explanation. ⁴⁵

4.33 However, there are circumstances where it is accepted that judges may provide some assistance beyond the conventional direction, for example, where it is necessary to correct an error made by counsel during addresses or where, as commonly occurs in criminal trials, the jury asks for some further explanation of the expression.⁴⁶ Other circumstances may include, for example, cases where alibi evidence or negative identification evidence is raised. In these cases, the judge should explain that the prosecution must remove or eliminate any reasonable possibility that the accused was elsewhere or was not the person identified and that, if the prosecution does not do this, then the accused’s guilt is not established beyond reasonable doubt.⁴⁷

4.34 Later in this Consultation Paper, we give consideration to the complications which can arise where the prosecution case depends on circumstantial evidence.⁴⁸ In that situation, the judge may need to give directions on what is involved in drawing an inference of guilt, and also to deal with the particular requirements arising where some fact constitutes an “indispensable intermediate fact” which needs to be proved beyond reasonable doubt.

4.35 In situations where a jury has asked for an explanation, it has been emphasised that this does not mean that a judge must provide it in a way that steps beyond the accepted limits.⁴⁹ The general approach in Australia would appear to be to provide no more elaboration than that a reasonable doubt is a doubt that the jury considers reasonable,⁵⁰ or to inform the jury, somewhat unhelpfully, that the law does not permit of any further explanation than that given in the initial direction.

4.36 In one recent case where a jury did ask for an explanation of the formula, the Court of Criminal Appeal noted the traditional position that judges should not observe that the words are “ordinary everyday words”, since ordinary everyday words do not require explanation,⁵¹ but held that, in the circumstances of the particular case, the jury would not have been misled by the phrase, noting that:

the words did not detract from the significance or, indeed, the solemnity of the decision which the jury was called upon to make. To describe words as “ordinary everyday words”, in the context they were used in the summing-up in the present case, meant no more than that they are words which require no further definition.⁵²

Juror comprehension of “beyond reasonable doubt”

4.38 Historically, opinion has been divided upon jurors’ comprehension of the phrase “beyond reasonable doubt”. From at least the late 19th century in the US, there has been a strongly held belief in some quarters that jurors readily understand the phrase and that there is no need for explanation.⁵⁴ For example, in 1886, the Michigan Supreme Court observed:

We do not think that the phrase “reasonable doubt” is of such unknown or uncommon signification that an exposition by a trial judge is called for. Language that is within the comprehension of persons of ordinary intelligence can seldom be made plainer by further definition or refining. All persons who possess the qualifications of jurors know that a “doubt” is a fluctuation or uncertainty of mind arising from defect of knowledge, or of evidence, and that a doubt of the guilt of the accused, honestly entertained, is a “reasonable doubt”.⁵⁵

when anything more than a simple caution and a brief definition is given, the matter tends to become one of mere words, and the actual effect upon the jury, instead of being enlightenment, is likely to be rather confusion, or, at the least, a continued incomprehension.⁵⁶

4.40 In recent times, however, a view has been expressed that the time-honoured expression lacks a “common usage and understanding”. Courts in New Zealand,⁶⁰ Canada, and the US have said this, but not courts in Australia. The Australian approach of refusing to explain “beyond reasonable doubt” runs counter to the position in the US and Canada, where “there is clear authority to the effect that a failure to elaborate on and explain the expression constitutes error”.⁶¹ The Supreme Court of Canada has held that an explanation of the phrase is “an essential element” of the instructions that a judge must give to a jury”.⁶² The US Supreme Court has noted:

the argument for defining the concept is strong. While judges and lawyers are familiar with the reasonable doubt standard, the words “beyond a reasonable doubt” are not self-defining for jurors. Several studies of jury behavior have concluded that “jurors are often confused about the meaning of reasonable doubt” when that term is left undefined. ... Thus, even if definitions of reasonable doubt are necessarily imperfect, the alternative - refusing to define the concept at all - is not obviously preferable.⁶³

Explaining reasonable doubt

4.42 Given the High Court’s position on explaining “beyond reasonable doubt”, there has been little call to consider possible ways of explaining the phrase either by the use of additional words or by analogy.⁶⁵ However, various attempts have been made from time to time.⁶⁶

4.43 The “important decision” analogy. There is some support in England and Wales, based on long practice,⁶⁷ for using a direction along the lines of: “a reasonable doubt is that quality and kind of doubt which, when you are dealing with matters of importance in your own affairs, you allow to influence you one way or another”.⁶⁸

4.44 The Privy Council has considered that the use of an analogy of this kind is acceptable if the trial judge is of the opinion that there is a danger that the jury might consider their task “more esoteric than applying to the evidence... the common sense with which they approach matters of importance to them in their ordinary lives”.⁶⁹

4.45 The Supreme Court of Canada has disapproved the use of the analogy, observing that the standard by which people make everyday decisions is a “standard of probability” and often “at the low end of the scale”, concluding that “to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held”.⁷⁰

4.46 The New Zealand Court of Appeal has recently, on a number of occasions, also criticised the analogy, giving the following reasons:

• personal decisions requiring serious deliberation are less common in today’s society;
• important personal decisions may involve decisions about future action and do not often involve a reconstruction of past events based on conflicting accounts;
• in making such decisions, people will be personally aware of many of the relevant facts and will also be able to undertake their own fact-finding;
• important personal decisions may involve elements of risk-taking, speculation, emotion, hope, uncertainty and prejudice; and
• people will often make important decisions on a standard that falls short of proof beyond reasonable doubt.⁷¹

it is right to recognise that the analogy has the potential to puzzle jurors and for this reason is not helpful. It should not be used in the future.⁷²

4.49 It has been suggested that such explanations may have a “significantly weakening effect upon the precision of this important aspect of the range of matters lying within the consideration of the jury in a criminal trial”.⁷⁵ However, as already noted, there will be exceptions, especially if counsel raise matters in their addresses to the jury that warrant judicial correction.⁷⁶

4.50 Percentages. There is evidence that juries in NSW do sometimes consider the question of the standard of proof in terms of a percentage of certainty. In a recent NSW case, the jury requested clarification of the phrase, asking whether it means “we need to be one-hundred per cent sure”.⁷⁷ There is also some empirical evidence from New Zealand that jurors tend to debate the standard of proof in terms of percentages, with some jurors interpreting the percentage as little as 50% and some as much as 100%.⁷⁸

4.51 The position in Australia is that a trial judge should not instruct the jury on the standard of proof in terms of percentages. If counsel raises such an approach or it arises in a question from the jury, then current authority requires the judge to make it clear that such an approach is inappropriate.⁷⁹

“Sureness” or “certainty” as alternatives

4.52 Other jurisdictions, particularly England and Wales and New Zealand, have departed from the Australian position on “beyond reasonable doubt”. They now tend towards instructing jurors that they should be “sure” or “certain” of the guilt of the accused, whether or not they also expressly refer to “reasonable doubt”.

4.53 In England and Wales, judges now routinely instruct the members of the jury that they must be “sure” of the defendant’s guilt.⁸⁰

4.54 The English Judicial Studies Board has formulated a specimen direction in the Crown Court Bench Book:

How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of “Guilty”. If you are not sure, your verdict must be “Not Guilty”.⁸¹

The prosecution must make you sure of guilt, which is the same as proving the case beyond reasonable doubt.

4.56 The general tendency has been to avoid any mention of “reasonable doubt” unless counsel mentions it in their addresses to the jury.⁸⁴ However, some judges in England, while using the term “sure”, also continue to refer to “beyond reasonable doubt”. There is recent evidence of some Crown Court Judges using “sure”, “beyond reasonable doubt” and combinations of the two, but with a strong preference for the use of “sure”.⁸⁵

4.57 New Zealand has taken an approach similar to that in England and Wales following the decision in R v Wanhalla.⁸⁶ Subsequent appellate decisions have added that any further attempt to explain “reasonable doubt” may cause jurors to be further confused.⁸⁷ In Canada, however, the Supreme Court has stated that reference to the jury being “sure” or “certain” of the guilt of the accused should only be made “after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt”.⁸⁸

4.58 A question has arisen as to whether the expression “sure” of the accused’s guilt will be understood by juries to involve a higher standard of proof than that required by the expression “beyond reasonable doubt”.⁸⁹

4.59 It has been noted with respect to “sure” that there is “no clear evidence that English jurors are indeed applying too high a standard”⁹⁰ since, in the context, “100% certainty” cannot be taken in its strictest sense. To do so would essentially equate it with “beyond all doubt” thereby making it a standard that is impossible to satisfy in practical terms.⁹¹ Much will, however, depend upon what conceptions and misconceptions jurors may have about the use of terms that describe varying degrees of chance and probability.

4.60 Although juries are discouraged from consulting dictionaries and requests for their provision are normally refused, it may be noted that standard dictionaries do provide a range of meanings for the expression “sure” not all of which would involve absolute certainty:

• “certain in mind; having no doubt; assured, confident ... Also, convinced, persuaded, morally certain”;⁹²
• “convinced, fully persuaded, or positive, as of something firmly believed: sure of a person’s guilt”, and “admitting of no doubt or question: sure proof”;⁹³ and
• “not open to doubt: sure proof” and “admitting of no vacillation or doubt: he is very sure in his beliefs”.⁹⁴

• “fully confident upon the ground of knowledge, or other evidence believed to be infallible; having no doubt; assured; sure (= ‘subjectively certain’)”;⁹⁵
• “having no doubt; confident or assured”;⁹⁶
• “positive and confident about the truth of something; convinced: I am certain that he wrote a book”.⁹⁷

4.62 Ultimately, there may not be much in the choice between “sure” and “certain”. The English practice book Archbold, which generally prefers “beyond reasonable doubt”, has observed:

it is well established that the standard of proof is less than certainty ... As in ordinary English “sure” and “certain” are virtually indistinguishable, it savours of what the late Sir Rupert Cross might have described as “gobbledegook” to tell the jury that while they must be “sure” they need not be “certain”.⁹⁹


ISSUE 4.7

(1) Should judges continue to use the expression “beyond reasonable doubt”?

(2) If so, how, if at all, should they explain it to the jury?

(3) If not, should judges use “sure” or some other expression and how, if it all, should they explain it to the jury?

(4) How should any changes be brought into effect? By legislation, by changes to the Bench Book, by judicial education, or by some other means?

4.63 The “right to silence” refers to a group of general and specific immunities that apply to an accused who chooses not to give evidence or to respond to questioning both before and during a criminal trial.¹⁰⁰

4.64 Of relevance to this paper is the specific immunity that an accused person has during trial “from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial”.¹⁰¹ Both categories are governed, in part by provisions of the Evidence Act 1995 (NSW).

Where the accused exercises the right before trial

4.65 In the pre-trial context, s 89 of the Evidence Act 1995 (NSW) renders inadmissible evidence that can only be used to draw an unfavourable inference from the fact that a person has failed or refused to answer questions put to them in the course of “official questioning”.

4.66 This provision would appear to render it unnecessary, in the general run of cases, to give a direction regarding the exercise of the right to silence in the pre-trial context.¹⁰² However, there will be situations where the evidence of the accused invoking the right to silence will be raised, for example by a co-accused or where, in the course of a recorded interview, the accused answers some questions but declines to answer others. In such cases, the Bench Book has suggested that judges deliver the following warning when the evidence is first raised and also in the summing-up:

[The accused], as you are aware, declined to answer questions put to [him/her] by a police officer at the time of [his/her] arrest. All people in this country have a right, except under certain circumstances not applicable in this case, to refuse to answer questions put to them by police officers. That is the substance and meaning of the caution administered by the police officer when [he/she] sought to question [the accused]. If any inference adverse to [the accused] could be drawn from [his/her] exercising that right, then that right itself would very soon cease to exist. It is important therefore that you bear in mind that no inference adverse to [the accused] can be drawn from the fact that [he/she] took note of the caution administered by the police and chose to remain silent.¹⁰³

Where the accused exercises the right during the trial

4.67 Issues surrounding the right to silence arise particularly in circumstances where the accused chooses not to enter the witness box and give evidence in the trial. The Evidence Act 1995 (NSW) makes provision for such circumstances in criminal proceedings for an indictable offence so that:

The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.¹⁰⁵

4.69 One commentator has suggested that “the logic underpinning the cautionary directions as derived from the privilege against self-incrimination in combination with the nature of a criminal trial is inescapable”.¹⁰⁸ This is because, without such a warning, a natural reaction to silence would be to conclude that the charge is not disputed, and the drawing of inferences from silence must be impermissible if the right to silence is to have “content and the burden and standard of proof meaning”.¹⁰⁹

ISSUE 4.8

What warnings, if any, should a judge give:

(a) when evidence is admitted that the accused invoked the right to silence during pre-trial investigations; or

(b) when the accused invokes the right to silence during the trial?

4.70 In some cases, the trial judge may need to direct the jury on the possibility of alternative verdicts. The question can arise in a number of situations, including where alternative charges for the same act of alleged criminality have been included on the indictment¹¹⁰ or where they arise at common law¹¹¹ or as a statutory alternative.¹¹²

4.71 A jury should only return a verdict of guilty on a lesser alternative offence when the prosecution has not proved the more serious offence beyond reasonable doubt. Jurors are not expected to compromise any disagreement by resorting to an alternative verdict. The Bench Book offers the following instruction on this point:

This option only arises where you all agree that the Crown has not proved the more serious offence beyond reasonable doubt. However, you should not regard this as an invitation to compromise — supposing, for example, that six of you were for a verdict of “guilty” on the major count and six believed that [he/she] was not guilty of anything at all. It would be quite wrong in these circumstances to compromise by convicting [him/her] on the less serious charge.¹¹³

ISSUE 4.9

Is the direction on arriving at alternative verdicts or defences adequate to ensure that the jury’s verdict is not the result of compromise?

4.72 In NSW, in proceedings relating to State offences, jury verdicts may, depending on the circumstance, either be unanimous or by majority. Where a jury cannot reach a unanimous verdict, two preconditions must be met before the trial judge may accept a majority verdict of 11 to one.¹¹⁵ First, the time allowed for jury deliberation must be reasonable, having regard to the nature and complexity of the case, with the minimum time being eight hours.¹¹⁶ Secondly, the court needs to be satisfied that the jury is unlikely to reach a unanimous verdict after examining one or more jurors on oath.¹¹⁷ The two provisions need to be followed strictly before a majority verdict can be accepted.¹¹⁸

4.73 The availability of majority verdicts in the circumstances prescribed presents particular problems for the perseverance or “Black” directions¹¹⁹ that the trial judge must give to a jury if the jurors report that they are unable to reach a unanimous verdict.

4.74 A perseverance direction involves the trial judge instructing the jury to continue to deliberate in order to reach a verdict. The model perseverance direction suggested for circumstances where the preconditions for majority verdicts have not been met emphasises that the jury must continue the attempt to reach a unanimous verdict.¹²⁰ The trial judge may state that “the circumstances in which I may take a majority verdict have not yet arisen and you should still consider that your verdict of guilty or not guilty must be unanimous”.¹²¹

4.75 The encouragement of unanimous verdicts is considered important. Unanimous verdicts promote deliberation and provide a degree of assurance that the opinions of each of the jurors will be heard and discussed. It also reduces the danger of hasty and unjust verdicts.¹²²

4.76 There is debate whether it is appropriate for a judge to mention the existence of a majority verdict before the preconditions are satisfied and whether mentioning it constitutes a miscarriage of justice.¹²³

4.77 Some cases have considered the appropriateness of the trial judge referring to the imminent approach of the time where a majority verdict may be accepted. For example, in Victoria, it has been suggested that, when the conditions for majority verdicts have not been met, the trial judge may be wiser not to mention “the possibility of taking a majority verdict” when the jury is sent back to persevere in its deliberations.¹²⁴ In NSW, it has also been held that the trial judge must not undermine the effect of a Black direction by foreshadowing the possible acceptance of a majority verdict.¹²⁵ These decisions are consistent with the position that it is important that the jury be free to deliberate without any pressure being placed on it.¹²⁶

4.78 In a recent Court of Criminal Appeal case, counsel for the accused argued that the judge’s use of the word “majority” may have confused the jury.¹²⁷ In that case, the trial judge used the term “majority verdict”, but later clarified the term by specifying that the majority needed to be 11 out of 12, and twice mentioned that the circumstances in which he could take a majority verdict had “not yet arisen”.¹²⁸

4.79 The Court declined to determine the general question of whether mentioning the existence of majority verdicts in the context of a Black direction could lead to a miscarriage of justice.¹²⁹ In the case in hand, the Court held that a simple reference to the availability of a majority verdict in certain circumstances did not undermine the direction to continue to attempt to reach a unanimous verdict. There was held to be no confusion as the trial judge twice informed the jury that the circumstances for a majority verdict had not arisen.¹³⁰

4.80 One outstanding question is whether the existing directions in the Bench Book, in not clarifying what is meant by a majority verdict, may also be confusing to jurors, who may, for example, assume that a majority of seven to five may ultimately be acceptable. This may affect the dynamic of their deliberations.

ISSUE 4.10

(1) Are there any circumstances in which a perseverance or “Black” direction should refer to the possibility of a majority verdict?

(2) If so, how should the possibility of a majority verdict be referred to?

^** Parts of this chapter (para 4.3-4.6 and para 4.17-4.20) have been contributed by Professor Jill Hunter of the University of NSW.

1. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001); J Hunter and D Boniface, with J Chan, M Chesterman and D Thomson, funded by the Law and Justice Foundation of NSW, awaiting publication, but see J Hunter and D Boniface, “Secret Jury Business: What Jurors Search For and What They Don’t Get” (Conference Paper, British Society of Criminology, Huddersfield, England, July 2008); R Matthews, L Hancock and D Briggs, Jurors’ Perceptions, Understanding, Confidence and Satisfaction in the Jury System: A Study in Six Courts (United Kingdom Home Office, 2005).

2. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (Law and Justice Foundation of NSW, 2001), [474].

3. Para 2.34.

4. “For example, I think that a brief set of suggestions about how to manage the discussion should be issued to the jurors. I think we struggled somewhat to overcome split decisions, and we ended up handing in one “undecided” because of this. …. Perhaps a pre-arranged, typed sheet of elements for each charge could be provided, since this was one of our main issues - with the elements and definition on the page, it would rely less on each person hearing and recording accurately”: Juror 8I. The UNSW Pilot Jury Study has not yet been published: See para 2.22 and para 2.31.

5. J Goodman-Delahunty, N Brewer, J Clough, J Horan, J R P Ogloff, D Tait, and J Pratley, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, Research and Public Policy Series No 87 (Australian Institute of Criminology, 2008), 139. In Victoria, 23% expressed the same view, with 19% indicating the same in SA.

6. See for example, Dyers v The Queen (2002) 210 CLR 285, [53] (Kirby J): “The prosecution is put to the proof. It is important in such circumstances that the reasoning appropriate to an adversarial civil trial should not undermine the accusatorial elements of a criminal trial. Otherwise the cards will be unduly stacked against the accused as the mind of the jury … is diverted to questions about a failure by the accused to give, or call, particular evidence”.

7. Consistent views are expressed in M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001), [532], and in W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [6.7]-[6.11].

8. Pursuant to Jury Act 1977 (NSW) s 72A.

9. See generally R S Willen, “Rationalization of Anglo-Legal Culture: The Testimonial Oath” (1983) 34 British Journal of Sociology 109.

10. Para 2.26-2.28.

11. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006), 47.

12. The figure is surprising considering the case law stating that the concept of reasonable doubt is an ordinary phrase and is not to be given technical definition by the judge: see para 4.30.

13. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006), 46.

14. Para 4.4-4.5.

15. R v PZG [2007] VSCA 54, [21] (Vincent, Redlich JJA, and Kellam AJA).

16. See para 8.62-8.69, para 8.73-8.77 and para 8.79-8.87.

17. Para 9.90-9.103.

18. R J Farley, “Instructions to Juries – Their Role in the Judicial Process” (1932) 42 Yale Law Journal 194, 195-205; MacKenzie v The Queen (1996) 190 CLR 348, 365 (Dawson and Toohey JJ). See also Jones v The Queen (1997) 191 CLR 439, 442 (Brennan CJ).

19. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [1-520].

20. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [7-020].

21. The extent to which judges may or must concern themselves with the jury’s role as fact-finders is dealt with in ch 1: para 1.6-1.10.

22. Jones v The Queen (1997) 191 CLR 439, 442 (Brennan CJ).

23. Webb v The Queen (1994) 181 CLR 41.

24. See, eg, R v CX [2006] QCA 409; R v Yasso [2007] VSCA 306; Commonwealth Bank of Australia v Falzon [1998] VSCA 79. See also R v Grant [1964] SASR 331, 338; Stathooles v Mt Isa Mines Ltd [1997] 2 Qd R 106, 119.

25. R v Lonsdale and Holland (District Court of NSW, Zahra DCJ, June 2008); M Knox, “The game’s up: jurors playing Sudoku abort trial”, Sydney Morning Herald (11 June 2008), 1, 6.

26. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [2.24]: “Jurors responded best to judges who used their opening to put them at ease, who addressed them directly and at least with the appearance of spontaneity, and who made it clear that both the court and the court staff were concerned about, and wanted to be responsive to, their needs during the trial. Judges were usually seen as doing this well”.

27. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [3-600].

28. However, there are some matters where the onus of proof will remain with the accused. They include, eg, the defence of substantial impairment by abnormality of mind (Crimes Act 1900 (NSW) s 23A(4)), the onus of establishing which rests upon the defence, although only on the balance of probabilities: R v Ayoub [1984] 2 NSWLR 511; and deemed possession in relation to drug trafficking: Drug Misuse and Trafficking Act 1985 (NSW) s 29(a). This paper is not concerned with the evidential burden which can rest upon the accused to raise a matter for which the legal onus of proof will then return to the prosecution. The jury does not need to concern itself with the evidential burden.

29. R v Jorgic (1964) 80 WN (NSW) 761, 762-763; R v Hepworth [1955] 2 QB 600, 602. On the onus of proof, see: Woolmington v DPP [1935] AC 462, 481.

30. R v Ho (2002) 130 A Crim R 545; [2002] NSWCCA 147, [32] Meagher JA.

31. Doe v R [2008] NSWCCA 203, [21]-[60] (Latham J).

32. R v F (1995) 83 A Crim R 502, 511-512. See also Palmer v The Queen (1998) 193 CLR 1, 7-9; R v Jovanovic (1997) 98 A Crim R 1; R v E (1996) 39 NSWLR 450, 461-466; South v R [2007] NSWCCA 117, [36]-[44]; Doe v R [2008] NSWCCA 203, [59].

33. R v E (1996) 39 NSWLR 450, 464.

34. R v Jovanovic (1997) 98 A Crim R 1, 21.

35. R v Bentley [2001] 1 CrAppR 307, 326.

36. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [3-600].

37. Dawson v The Queen (1961) 106 CLR 1, 18. See also Thomas v The Queen (1960) 102 CLR 584, 605.

38. Green v The Queen (1971) 126 CLR 28, 32-33. See also R v Chatzidimitriou (2000) 1 VR 493, 496-498; Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, [69].

39. See R v Chatzidimitriou (2000) 1 VR 493, 507-508.

40. See, eg, R v Chatzidimitriou (2000) 1 VR 493, 498-499.

41. Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, [50].

42. Thomas v The Queen (1960) 102 CLR 584, 606 (Windeyer J); W v R (2006) 16 TasR 1, [9]-[10]; Graham v The Queen (2000) 116 A Crim R 108; [2000] TASSC 153, [68]; R v Ho (2002) 130 A Crim R 545; [2002] NSWCCA 147, [27]-[29]; Krasniqi v R (1993) 61 SASR 366, 371-375.

43. Green v The Queen (1971) 126 CLR 28, 33.

44. R v Reeves (1992) 29 NSWLR 109, 117.

45. R v Reeves (1992) 29 NSWLR 109, 117.

46. Green v The Queen (1971) 126 CLR 28, 33. See also R v Flesch (1987) 7 NSWLR 554, 556-558 (Street CJ); R v Reeves (1992) 29 NSWLR 109, 117; R v Chatzidimitriou (2000) 1 VR 493; R v McNamara [1998] QCA 405, [19].

47. See Kanaan v R [2006] NSWCCA 109, [133] (negative identification); R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385, [135] (alibi).

48. Para 8.62-8.69.

49. R v McNamara [1998] QCA 405, [19].

50. Thomas v The Queen (1960) 102 CLR 584, 595 (Kitto J); La Fontaine v The Queen (1976) 136 CLR 62, 85 (Gibbs J); Neilan v R [1992] 1 VR 57, 71.

51. R v Southammavong [2003] NSWCCA 312, [17].

52. R v Southammavong [2003] NSWCCA 312, [23].

53. See R v Chatzidimitriou (2000) 1 VR 493, 503 (Callaway JA).

54. See Buel v State 80 NW 78 (1899), 85.

55. People v Steubenvoll 28 NW 883 (1886), 885.

56. J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (Little, Brown and Company, 1940) vol 9, 319.

57. Thomas v The Queen (1960) 102 CLR 584, 604.

58. Dawson v The Queen (1961) 106 CLR 1, 18.

59. See, eg, Green v The Queen (1971) 126 CLR 28, 32; La Fontaine v The Queen (1976) 136 CLR 62, 84; Van Leeuwen v The Queen (1981) 55 ALJR 726; 728.

60. R v Wanhalla [2007] 2 NZLR 573, [156].

61. Graham v The Queen (2000) 116 A Crim R 108; [2000] TASSC 153, [51] (emphasis added). See also Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, [69] referring to UK, New Zealand, Canada and US.

62. R v Lifchus [1997] 3 SCR 320, [22]. The Court did not give a precise formula for the explanation, suggesting amongst other things that “it will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”. The Court also suggested that a jury should be instructed that a reasonable doubt cannot be “based on sympathy or prejudice” or “imaginary or frivolous” and that “the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved” (at [30]-[31]).

63. Victor v Nebraska 511 US 1, 26 (1994) (Ginsburg J).

64. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001), [449] – [454]; J M Robertson, “The Jury Writes Back: Aspects of Jury Management” (Biennial Judges’ Conference, Gold Coast, Queensland, 22-26 June 2003), 19-21; W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.16].

65. The capacity of courts to give content to the phrase “on the balance of probabilities” by drawing an analogy to weighing the evidence in a pair of scales (see, eg, Murphy v Nationwide News Pty Ltd [2000] NSWSC 1251, [20]-[24]), tends to highlight the inability to give content to the expression “beyond reasonable doubt”.

66. See W v R (2006) 16 TasR 1 for a detailed analysis of several different approaches which have been taken in an attempt to provide a more meaningful explanation of what is involved in proof beyond reasonable doubt.

67. See R v White (1865) 4 F&F 383; 176 ER 611, 614-615; Thomas v The Queen (1960) 102 CLR 584, 604.

68. Walters v The Queen [1969] 2 AC 26, 29. See also the list of alternative phrases in Buel v State 80 NW 78 (1899), 84. Fundamentally, as noted in R v Wanhalla [2007] 2 NZLR 573, Walters v The Queen [1969] 2 AC 26, 30 suggests that judges, drawing on their knowledge of the jury before them, should exercise their discretion in the phraseology they employ.

69. Walters v The Queen [1969] 2 AC 26, 30.

70. R v Lifchus [1997] 3 SCR 320, [23]-[24]; Bisson v The Queen [1998] 1 SCR 306, [6]-[8].

71. R v Wanhalla [2007] 2 NZLR 573, [26]-[32], [131]-[134], [166]; R v Adams (NZ CA, CA70/05, 5 September 2005), [59]-[64]; R v Jopson (NZ CA, CA24/05, 25 November 2005), [28].

72. R v Wanhalla [2007] 2 NZLR 573, [56] (Young P, Chambers and Robertson JJ).

73. Walters v The Queen [1969] 2 AC 26, 27.

74. R v Lifchus [1997] 3 SCR 320, [31].

75. R v Flesch (1987) 7 NSWLR 554, 558.

76. Para 4.33.

77. Norris v R (2007) 176 A Crim R 42; [2007] NSWCCA 235, [34].

78. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.16].

79. See R v Cavkic (2005) 12 VR 136, 143. See also W v R (2006) 16 TasR 1, [11]-[14].

80. R v Kritz [1950] 1 KB 82, 89; R v Summers [1952] 1 All ER 1059, 1060 (Goodard LJ); Walters v The Queen [1969] 2 AC 26, 30.

81. England and Wales, Judicial Studies Board, Crown Court Bench Book: Specimen Directions (June 2007) s 2. See also R v Bradbury [1969] 2 QB 471, 474; R v Quinn [1983] Criminal Law Review 475.

82. But see a journalist’s account of his jury service in England in relation to the direction on the standard of proof:

the judge instructed the jury to convict, not based on the time-honoured formula that they had to be “satisfied beyond reasonable doubt” but “only ... if you are sure, if you are not sure then acquit.”

It sounds reasonable, and no doubt the judge was trying to be helpful, but it was clear that these instructions caused the jury great difficulty. After deliberating for almost a day, they came back into the courtroom with a question. They told the judge, according to the note read out to the court, that they were having trouble with the word “sure”. Could the judge provide some sort of assistance - for example, would reasonable doubt suffice? The judge simply restated the original instruction: “If you are sure, convict, if you are not sure acquit.” (I Gaber, “Prejudice beyond reasonable doubt” The Guardian (18 July 2001), also referred to in A Phillips, Lawyers’ Language: How and Why Legal Language is Different (Routledge, 2002), 43.)

84. See England and Wales, Judicial Studies Board, Crown Court Bench Book: Specimen Directions (June 2007) s 2B (note).

85. C Heffer, “Beyond ‘reasonable doubt’: The Criminal Standard of Proof Instruction as Communicative Act” (2006) 13(2) International Journal of Speech, Language and the Law 159, 176.

86. R v Wanhalla [2007] 2 NZLR 573.

87. See R v Adams (NZ CA, CA70/05, 5 September 2005) and R v Jopson (NZ CA, CA24/05, 25 November 2005).

88. R v Lifchus [1997] 3 SCR 320, [34].

89. Two jury simulation studies have found that some jurors considered that the “sure” direction required 100% certainty: M Zander, “The Criminal Standard of Proof – How Sure is Sure?” (2000) 150 New Law Journal 1517, 1518; J W Montgomery, “The Criminal Standard of Proof” (1998) 148 New Law Journal 582.

90. C Heffer, “Beyond ‘Reasonable Doubt’: The Criminal Standard of Proof Instruction as Communicative Act” (2006) 13(2) International Journal of Speech, Language and the Law 159, 174.

91. See also C N Heffer, “The Language of Conviction and the Convictions of Certainty: Is “Sure” an Impossible Standard of Proof?” (2007) 5(1) International Commentary on Evidence (Article 5).

92. Oxford English Dictionary (2nd ed, revised).

93. Macquarie Dictionary (2nd ed, revised).

94. Collins Australian Dictionary (7th ed, 2005), 1619.

95. Oxford English Dictionary (2nd ed, revised).

96. Macquarie Dictionary (4th ed, 2005).

97. Collins Australian Dictionary (7th ed, 2005), 279.

98. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008), 4.

99. P J Richardson (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2002), 473.

100. R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1, 30-31.

101. R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1, 31.

102. This is similar to the common law position: Petty v The Queen (1991) 173 CLR 95, 99.

103. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [4-110].

104. R v Astill (NSW CCA, 17 July 1992, unreported), 9, referred to in R v Reeves (1992) 29 NSWLR 109, 115, followed in R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37, [140]-[147].

105. Evidence Act 1995 (NSW) s 20(2).

106. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [15].

107. Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, [51]. But see R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20, [15]-[20] in relation to the last two of those warnings.

108. E Dabars and M Hinton, “Comment by an Accused on the Co-accused’s Silence in a Joint Trial: R v Tran and To” (2007) 31 Criminal Law Journal 307, 309. See also RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [27]-[30].

109. E Dabars and M Hinton, “Comment by an Accused on the Co-accused’s Silence in a Joint Trial: R v Tran and To” (2007) 31 Criminal Law Journal 307, 309.

110. See Criminal Procedure Act 1986 (NSW) s 23(3).

111. For example, manslaughter as an alternative to murder.

112. For example, Criminal Procedure Act 1986 (NSW) s 162, Drug Misuse and Trafficking Act 1985 (NSW) s 24(3), and Crimes Act 1900 (NSW) s 34.

113. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [2-200].

114. CTM v R (2007) 171 A Crim R 371, [48].

115. Jury Act 1977 (NSW) s 55F(2), s 55F(3)(a)(b).

116. Jury Act 1977 (NSW) s 55F(2)(a).

117. Jury Act 1977 (NSW) s 55F(2)(b).

118. Simply focusing on the minimum eight hours without regard to the reasonable time for jury deliberation that should be allowed is insufficient: AGW v R [2008] NSWCCA 81, [23]; Hanna v R [2008] NSWCCA 173, [62]-[72]; RJS v R [2007] NSWCCA 241.

119. Derived from Black v The Queen (1993) 179 CLR 44, 51.

120. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [8-070].

121. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [8-070].

122. CEV v R [2005] NTCCA 10, [16].

123. Ngati v R [2008] NSWCCA 3, [25].

124. R v VST [2003] VSCA 35, [38].

125. RJS v R [2007] NSWCCA 241, [22].

126. Black v The Queen (1993) 179 CLR 44, 50.

127. Ngati v R [2008] NSWCCA 3, [24]. There is no direct reference to the term ‘majority verdict’ in any of the model directions relating to the jury’s verdict that are given before the jury retires: Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [3-600], [7-020], [7-030].

128. Ngati v R [2008] NSWCCA 3, [22].

129. Ngati v R [2008] NSWCCA 3, [25]-[26]. See also Hanna v R [2008] NSWCCA 173, [74].

130. Ngati v R [2008] NSWCCA 3, [27]-[29].