A trial judge’s receipt of a majority verdict from a jury gave rise to a miscarriage of justice, the Court of Appeal has found.
In July last year, Richard John Harris was convicted in Hervey Bay District Court of one count of rape and one of sexual assault, in relation to an incident in 2022.
Following the discharge of a juror during deliberations, the trial judge had allowed a majority verdict to be taken without a precondition of Section 56 of the Jury Act 1995 (Qld) being satisfied.
In Brisbane Court of Appeal, Justices Boddice, Brown and Williams ordered the guilty verdicts be set aside and a new trial be held.
Their 15-page decision published on Friday described how the jury had been in a deadlock after deliberating for a day-and-a-half, when a juror was discharged due to a family health crisis.
The trial judge had then received a note from the jury asking what constituted a majority verdict in a jury of 11, and chose to direct the jury as to the availability of a majority verdict.
Less than an hour later, the jury returned majority verdicts of guilty on the two counts, and not guilty on a second count of rape.
Justice Boddice said in proceeding to receive a majority verdict, the trial judge needed to be satisfied that the jury was unlikely to reach a unanimous verdict after further deliberation.
He said the trial judge did not question the jury about the prospect of unanimity.
“Whilst the trial judge had, after discharge of the juror, directed the jury to continue with the deliberations in accordance with the previous directions (which included the necessity for unanimity), the trial judge, upon receiving a note from the jury enquiring as to what constitutes a majority verdict, took no steps to remind the jury that there was a necessity for unanimity, notwithstanding that there were now 11 jurors,” he said.
“Further, the trial judge proceeded to direct the jury as to the availability of a majority verdict, without first directing them, in accordance with Black and without thereafter affording the jury a further reasonable opportunity for a deliberation of a verdict on the basis of unanimity.”
The trial judge’s failure to first take those steps was a matter of real significance and gave rise to a miscarriage of justice, he said.
Justice Brown agreed that the trial was not conducted according to law.
“The question from the jury was equivocal and of itself insufficient to satisfy the precondition that they were unlikely to reach a unanimous verdict, particularly when the jury had only spent some 30 minutes deliberating as a differently constituted jury prior to their raising the question of the majority verdict,” she said.
“The question may have been asked by the jury in anticipation of the possibility that they could reach a unanimous verdict, not that they could not reach a unanimous verdict.”
Justice Williams said the issue was whether there was a basis for the trial judge to be satisfied that the jury was unlikely to reach a unanimous verdict.
“The question from the jury was ambiguous (particularly given the change in constitution of the jury) and a direction in accordance with Black and a further opportunity for deliberation of a unanimous verdict was appropriate before proceeding to consider whether the jury of 11 jurors was unlikely to reach a unanimous verdict,” she said.
“The reasons and direction of the trial judge do not record satisfaction as to the jury being unlikely to reach a unanimous verdict and there is no apparent basis for it to be inferred.
“The exercise of the discretion was an irregularity.”
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