HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON AND McHUGH JJ

 

 

 

BLACK v THE QUEEN (1993) 179 CLR 44, (1993) 68 ALJR 91,

(1993) 118 ALR 209

22 December 1993

 

 

Criminal Law—Evidence

Criminal Law—Practice—Jury trial—Difficulty in reaching verdict Direction to jury. Evidence—Criminal trial—Uncorroborated confession—Direction to jury.

Orders


Both appeals allowed.

Set aside the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof allow the appeals against conviction to that Court, quash the convictions and order that there be new trials.

Decisions


MASON CJ, BRENNAN, DAWSON AND McHUGH JJ The appellant was
convicted of two charges of arson, the first relating to a fire in
September 1986, the second relating to a fire in November 1987. The
fires occurred at two townhouses in the suburb of Airds near Sydney.
The appellant was tried before Judge Gibson and a jury in the
Liverpool District Court on the first charge. He was tried before
Judge Collins and a jury in the Penrith District Court on the second
charge. Appeals against both convictions were dismissed by the New
South Wales Court of Criminal Appeal. Pursuant to the grant of
special leave to appeal, the appellant now appeals to this Court.



Appeal against conviction relating to the 1986 fire

2. The ground of this appeal is that the Court of Criminal Appeal erred in failing to hold that the trial judge's exhortation to the
jury to reach a verdict was erroneous in that it infringed the
fundamental rule that the jury must be free to deliberate without any
form of pressure being imposed upon them. After the jury had been
deliberating for about three hours, the trial judge directed them in
these terms:
"Members of the jury, I understand you are having some
problems and I propose to say a few words to you. You have
been deliberating now for just under three hours and been
unable to reach a verdict. You are a body of twelve
individuals. Each of you 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 jury 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 jury to listen to and
consider the arguments of the rest of the jury. 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 jury
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.
There must be, in the process of arriving at a verdict, a
willingness on the part of each member of the jury to listen
to and carefully consider the views of others. There should
be a recognition of the fact that some view points are
sounder than others and that one's own view point may not
necessarily be correct. Sometimes, as we all know, we are
each inclined to form opinions and once they have been
formed, we do not like to let go of them, even though we
sometimes realise later that they really cannot be sustained
and that another view was really a better one.
When that happens, if it happens, we should not hold on to
our original view. To approach the task you have in hand
sensibly in the way I have sought to indicate, is quite
within the scope of your oath, the oath that you took.
Having said that, I nevertheless remind you that your
verdict must be unanimous."
This direction is a standard direction in New South Wales.



3. In the Court of Criminal Appeal, Gleeson CJ (with whom Grove and Sharpe JJ agreed) disposed of the challenge to the direction
quite briefly. His Honour said:
"(I)t is complained that the reference to expense involved
inappropriate pressure or coercion (cf Reg. v. Watson ((1)
(1988) QB 690.) ). Having regard to the entire context, I do not
accept this submission. It is necessary to observe that what
has
been said about the terms of exhortations in recent English
cases
is to be understood against the background that English
legislation provides for majority verdicts. I consider that
what his Honour said to the jury was not inappropriate to
the circumstances of the case. This conclusion is in line
with the decision of this Court in Judge and McKinney ((2)
(1989) 49 A Crim R 7, per Clarke JA at p.16.)."



4. The first part of the direction appears to have been based on the form of direction which was approved by the English Court of Criminal
Appeal in Walhein ((3) (1952) 36 Cr App R 167, at p.168.) where
the Commissioner had instructed the jury as follows:
"Each of you has taken an oath to return a true verdict
according to the evidence, but, of course, you have a duty
not only as individuals, but collectively. No one must be
false to that oath, but in order to return a collective
verdict, the verdict of you all, there must necessarily be
argument, and a certain amount of give and take and
adjustment of views within the scope of the oath you have
taken, and it makes for great public inconvenience and
expense if jurors cannot agree owing to the unwillingness of
one of their number to listen to the arguments of the rest.
... If you disagree in your verdict ... you must say so."
The last two sentences of the second paragraph in the direction
given by the trial judge in the present case were somewhat stronger
than the reference in the Walhein direction to public inconvenience
and expense.



5. That direction was modified in Creasey ((4) (1953) 37 Cr App R 179, at p.180.) where the jury were instructed in these terms:
"It is very desirable that you should come to a conclusion
one way or the other ... because it only means that some
other jury have got to do your work for you all over again
... and that it is why it is highly essential that you
should come to a definite conclusion. ... It is a hardship
upon all concerned if you do not. The way that juries
arrive at a verdict is ... by a method of one member
listening to what the other has to say and by a process of
give and take. ... it is a verdict which you must all be
agreed upon one way or the other".



6. The giving of an instruction in terms similar to, though not identical with, that given in Walhein or Creasey has been approved by
courts in New South Wales ((5) Reg. v. Lusher (1976) 1 NSWLR
227.), Victoria ((6) Reg. v. Cartledge (1956) VLR 225 but note
the reference to a possible danger at p.227; Reg. v. Gallagher (1986)
VR 219.), Western Australia ((7) McMahon (1984) 15 A Crim R
289.) and Canada ((8) Reg. v. Alkerton (1992) 72 CCC (3d) 184;
affd (1993) 78 CCC (3d) 576; Reg. v. Newall (1983) 9 CCC (3d)
519; Reg. v. Halliday (1992) 77 CCC (3d) 481.).



7. In Queensland, in Brown ((9) (1989) 43 A Crim R 340.), the Court of Criminal Appeal held that a direction which otherwise conformed to
that accepted by the Privy Council in Shoukatallie v. The Queen ((10)
(1962) AC 81, at pp.90-91.) was deficient in that it failed to refer
to the need to remain constant to a view which cannot be changed
honestly. In Brown, the Court regarded the Shoukatallie instruction as
being appropriate ((11) (1989) 43 A Crim R, at pp.341, 345.). In
Shoukatallie, no reference was made by the trial judge to the expense
and inconvenience of holding a new trial should the jury fail to
agree. The trial judge emphasized both the need to consider the views
of other jurors and the obligation to give an honest verdict.
However, he expressed himself in very strong terms and, in that
respect, the Privy Council considered that the direction might have
been better expressed ((12) (1962) AC, per Lord Denning, at p.91.).



8. More recently, in England in Reg. v. Watson ((13) (1988) QB 690.), the Court of Appeal disapproved the Walhein direction and decided that
a jury should be instructed in these terms ((14) ibid., at p.700.):
"Each of you has taken an oath to return a true verdict
according to the evidence. No one must be false to that
oath, but you have a duty not only as individuals but
collectively. That is the strength of the jury system.
Each of you takes into the jury box with you your individual
experience and wisdom. Your task is to pool that experience
and wisdom. You do that by giving your views and listening
to the views of others. There must necessarily be
discussion, argument and give and take within the scope of
your oath. That is the way in which agreement is reached.
If, unhappily, (10 of) you cannot reach agreement you must
say so."



9. The Walhein direction had been approved when there was a requirement, as there still is in New South Wales, for a unanimous
jury verdict. In Watson, it was thought that the direction was no
longer appropriate to a situation in which majority verdicts were
permitted ((15) ibid., at p.696.) as they were in England before
Watson. But a further reason given in Watson for rejecting the Walhein
direction was that the second part of it contained a warning that it
may cause "great public inconvenience and expense if jurors cannot
agree". The Court of Appeal thought these words might be far from
harmless ((16) ibid.) and that there was a significant risk that the
Walhein direction imposed pressure on a jury ((17) ibid., at p.700.)
contrary to the fundamental principle that a jury must be free to
deliberate without any pressure being imposed upon them, whether by way
of promise, threat or otherwise ((18) ibid.). The Court acknowledged
that there are occasions when the circumstances will show that the
Walhein direction did not impose any pressure on the jury but the risk
was such as to make it necessary to bring use of the direction to an
end ((19) ibid.).



10. Notwithstanding the decision in Watson, the Supreme Court of Queensland has continued to approve a Shoukatallie type direction
((20) Brown (1989) 43 A Crim R 340.) and the Walhein direction is
still employed in Canada ((21) Reg. v. Alkerton.). On the other
hand, in Reg. v. Accused ((22) (1988) 2 NZLR 46; cf. Reg. v.
Tennant (1989) 2 NZLR 271.), the New Zealand Court of Appeal
formulated a model direction which avoids the difficulties associated
with the Walhein direction. The principal defect in that direction, as
perceived by the Court of Appeal, was the reference to great public
inconvenience and expense. As Cooke P pointed out ((23) (1988) 2
NZLR, at p.58.):
"Inconvenience and expense should not be measured against
justice."
His Honour went on to say that it had not been the practice to use
this part of the Walhein direction in recent years ((24) ibid.).



11. We agree with this criticism of the Walhein direction, and the criticism has equal application to the instructions given by the
trial 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 jury 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 juror is to compromise with other jurors in reaching a
verdict ((25) Reg. v. Cartledge (1956) VLR, at p.227.).



12. Moreover, the earlier reference to the jury having a "duty, not only as individuals but also collectively" may well have had the
effect of reinforcing the impression that the jury were under some
obligation to reach a result to which all the members of the jury
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 jury room.
There is a risk that references to a collective responsibility or
duty may be understood more broadly by the jury and as an invitation
to an individual juror 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.



13. In this case it follows that we consider that the trial judge's direction went too far and may well have resulted in the jury failing
to give the issues that free deliberation to which both the accused
and the Crown were entitled. Consequently, the conviction in relation
to the first fire must be set aside and a new trial ordered.



14. Before we leave this aspect of the case we should say that we see no reason why a direction should not be given to a jury if it appears
that they are encountering difficulty in reaching a verdict. But that
direction should state quite clearly that each juror has a duty to
give a verdict according to the evidence. Likewise, it is proper to
remind the jurors that they should listen to each other's views, weigh
them objectively and that an individual juror can change his or her
mind if honestly persuaded that his or her preliminary view is not
well founded.



15. With these comments in mind we consider that, should the occasion arise, a trial judge should give a direction along the following
lines:
"Members of the jury,
I have been told that you have not been able to reach
a verdict so far. I have the power to discharge you from
giving a verdict but I should only do so if I am satisfied
that there is no likelihood of genuine agreement being
reached after further deliberation. Judges are usually
reluctant to discharge a jury because experience has shown
that juries can often agree if given more time to consider
and discuss the issues. But if, after calmly considering
the evidence and listening to the opinions of other jurors,
you cannot honestly agree with the conclusions of other
jurors, you must give effect to your own view of the
evidence.
Each of you has sworn or affirmed that you will give
a true verdict according to the evidence. That is an
important responsibility. You must fulfil it to the best of
your ability. Each of you takes into the jury room your
individual experience and wisdom and you are expected to
judge the evidence fairly and impartially in that light.
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. Calm and objective discussion
of the evidence often leads to a better understanding of the
differences of opinion which you may have and may convince
you that your original opinion was wrong. That is not, of
course, to suggest that you can, consistently with your oath
or affirmation as a juror, join in a verdict if you do not
honestly and genuinely think that it is the correct one.
Experience has shown that often juries are able to
agree in the end, if they are given more time to consider
and discuss the evidence. For that reason, judges usually
request juries to re-examine the matters on which they are
in disagreement and to make a further attempt to reach a
verdict before they may be discharged. So, in the light of
what I have already said, I ask you to retire again and see
whether you can reach a verdict."



Appeal against conviction relating to the 1987 fire

16. The appellant contends that the Court of Criminal Appeal erred in concluding that the trial judge gave adequate directions to the jury
with respect to certain admissions by the appellant to Detectives
Torning and Llewellyn. In order to consider the significance of this
submission, it is necessary to state shortly the nature of the Crown
case.



17. The indictment named Mrs Spittles and Mr and Mrs Colby as well as the appellant. The appellant and Mrs Spittles were charged with
deliberately setting fire to a townhouse, while the Colbys were
charged with being accessories after the fact in that they told lies
to protect Mrs Spittles.



18. The fire occurred in the early hours of the morning of 18 November 1987 at the townhouse occupied by Mrs Spittles, in which
the appellant had also been living. There was evidence that the fire
had been deliberately lit. There was also significant evidence of
suspicious activity on the part of Mrs Spittles and others around the
premises on the evening of 17 November before the fire. The Crown
established that Mrs Spittles had moved a substantial quantity of her
belongings out of the premises shortly before the fire started. She
moved in with Mr and Mrs Colby.



19. The trial judge directed the jury that this evidence on its own was not capable of amounting to proof of the offence charged against
the appellant or Mrs Spittles. However, the Crown relied also upon
an admission of guilt to Detectives Torning and Llewellyn when they
investigated the fire. The detectives gave evidence that the
appellant told them he had set the fire but that the police had no
evidence against him and that they would not be able to prove it. The
trial judge directed the jury that a critical question was whether
they accepted beyond reasonable doubt the police evidence of the
admission.



20. Mrs Spittles denied to the investigating police that she was involved in setting fire to the premises and asserted that the
appellant did it. She also said that she was scared of him.



21. The trial judge emphasized to the jury points of criticism of the police evidence made on behalf of the appellant, namely, that there
were some inconsistencies in the police evidence of the interview of
the appellant, that no effort had been made to make a written record
of what the appellant might say and that no effort had been made to
obtain a written confirmation of what he had said. The trial judge
reminded the jury of the observation by counsel that an allegation by
a police officer that a person has made an oral admission is one that
is easy to make and very hard to refute. His Honour also directed the
jury that, when evaluating evidence, they should look to see if it
finds any substantial support from some other source and that, if it
is challenged and standing alone, they should approach it with more
caution. In the context of the summing-up as a whole, the jury might
have been left in some doubt as to the application of this instruction
because evidence of the making of the admission was given by the two
detectives and the instruction was not specifically related to the
making of the alleged admission.



22. The trial took place before this Court handed down its decision in McKinney v. The Queen ((26) (1991) 171 CLR 468.). With that in
mind, Gleeson CJ said:
"In my view, in the light of the law applicable to the
trial at the time it was conducted, the observations made by
his Honour to the jury about this matter were adequate."



23. The case presented by Mr Game for the appellant in this Court is that the trial judge should have given directions in terms of the
judgment of Brennan J in Carr v. The Queen ((27) (1988) 165 CLR
314; see also Duke v. The Queen (1989) 63 ALJR 139; 83 ALR 650.).
Such directions were sought by counsel for the appellant at the
trial when he requested that the jury be instructed that it is
dangerous to convict on the uncorroborated evidence of a verbal
admission. In Carr, the Court held, by majority, that there was no
rule of practice in criminal trials that, in every case where the sole
or substantial evidence against the accused is a disputed,
uncorroborated oral confession, the judge must direct the jury that it
would be dangerous for them to act upon it. Subsequently in McKinney,
the Court, by majority, held that, in the future whenever police
evidence of a confessional statement allegedly made by an accused while
in police custody is disputed and its making is not reliably
corroborated, the judge should, as a rule of practice, warn the jury of
the danger of convicting on the basis of that evidence alone. But that
principle then enunciated had no application to the trial in this
case.



24. Notwithstanding the rejection in Carr of the general rule of practice there contended for, it was recognized in that case ((28)
(1988) 165 CLR, per Brennan J at pp.328-330.) and subsequently in
McKinney that particular circumstances might require a judge to warn a
jury of the danger of acting upon an uncorroborated, disputed
confession. In this case, there were circumstances which called for
the trial judge to take particular care in directing the jury as to how
they should approach the allegation that the appellant had admitted the
offence. The circumstances were:
1. The confession was oral and disputed.
2. The making of the confession was not corroborated.
3. It was made in the course of an interview at a police station,
the appellant having been brought there for the purpose of
interrogation and the detectives having a very strong suspicion
that he was guilty.
4. No preparations were made to make a record of interview; no note
of the confession was made until after the interview concluded
and no attempt was made to obtain the appellant's signature to
the note.
5. Conflicting and unpersuasive reasons were given for not showing
the note of the interview to the appellant.
6. The answer attributed to the appellant was, to say the least of
it, unusual - "I did like I said (but) you'll never prove it."
7. Acceptance by the jury of the making of the confession was
critical to the Crown case.
8. Taken in conjunction with Mrs Spittles' statement that the
appellant lit the fire, the absence of any challenge to the
police evidence by the other accused would have given the police
evidence some credibility in the minds of the jury.



25. Although the trial judge drew attention to certain deficiencies in the police evidence relating to the confession, he did not mention
the fact that there was a significant departure from standard
procedures in recording the admission; nor did he invite attention
to the unsatisfactory explanations for the late recording of the
admission. Further, while his Honour referred to the argument that it
is easy for the police to put words into the mouth of an accused and
very hard for the accused to refute it, his Honour went on to say:
"The police say this is not so, and ... the Crown says it
is a very easy thing for an accused person when being
interrogated to get the heat turned off by making an
admission and then when you come to the crunch in court,
saying 'Never said it', so those are the two opposing
things."
The passage which we have just quoted has nothing to do with the
circumstances of this interview as disclosed by the police evidence.
According to the detectives, the appellant volunteered the admission
at the very beginning of the interview without any effort being
made by the interrogating officers to obtain answers to particular
questions about the fire.



26. In our view, the trial judge did not instruct the jury adequately with respect to the deficiencies of the police evidence of the
interview. Those deficiencies, in conjunction with the other
circumstances to which we have referred, required that the jury should
have been told that they should scrutinize very closely the police
evidence of the interview. The giving of such a warning might well
have affected the jury's verdict. In the result, the conviction must
be regarded as unsafe and unsatisfactory.



27. We would allow the appeals, set aside the convictions and order new trials.

DEANE J I agree with the judgment of Mason CJ, Brennan, Dawson
and McHugh JJ I add some comments about the supplementary directions
given by the learned trial judge to the jurors when they were unable
to agree on a verdict after approximately three hours of deliberation
in the trial of the appellant in relation to the 1986 fire.



2. In the first paragraph of those supplementary directions, the trial judge informed the members of the jury that they had "a duty,
not only as individuals but also collectively". There followed, after
a reference to the juror's "oath" ((29) See below.), an instruction
that "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". Those
directions were liable to be understood as suggesting that there was
a "duty" on individual jurors to engage in a "give and take" process
to discharge some collective obligation. In the context of the
particular trial where only one count was involved, there is no danger
that the trial judge's comments might have been misunderstood as
endorsing a trading of verdicts of guilty and not guilty on individual
counts. There is, however, a real danger that they might have been
misunderstood by a minority juror, particularly one who had been under
pressure in the jury room from a majority, as inviting a democratic
submission to the views of the majority in order "to return a
collective verdict".



3. That danger is exacerbated by what was said in the following three paragraphs of his Honour's supplementary directions. In the
context of earlier references to collective "duty" and to
"considerable public inconvenience and expense", the likely effect
of the statement that 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 jury will have to later seek to do what you have been chosen
to do" was to suggest that, unless the process of a "certain amount
of give and take" was adopted to the extent necessary to "return a
collective verdict", there would be a failure by the members of the
jury to "do what (they had) been chosen to do" with consequent social
detriment. The subsequent statements that there should be "a
recognition of the fact ... that one's own view point may not
necessarily be correct" and the emphasis upon the desirability of
being prepared to change an original view were, if viewed in
isolation, unobjectionable. However, in the context of what had
gone before, they could well have had the effect of subjecting an
individual minority juror to unjustifiable pressure if he or she had
understood the trial judge's earlier comments as intended to encourage
submission to a majority view.



4. A juror who conscientiously holds out against a majority and thereby prevents unanimity has not failed properly to "do what (he or
she was) chosen to do". To the contrary, he or she has done no more
than discharge his or her duty to both the accused and society. Any
suggestion that a minority juror should democratically submit to the
view of the majority is antithetical to the jury process under the
common law of this country ((30) See Cheatle v. The Queen (1993) 67
ALJR 760, at pp.763-764; 116 ALR 1, at pp.6-7.).



5. Accordingly, in a case where it appears that a jury has been unable to reach agreement after what is, in the circumstances of
the particular case, a significant period, it is essential that a
direction requiring the jury to continue its deliberations carefully
avoids anything at all that might be misunderstood as encouraging a
minority juror to join in returning a "collective verdict" which does
not completely accord with his or her own genuine views. As I have
indicated, the supplementary directions of the trial judge in the
present case were likely to be so misunderstood by a minority juror,
particularly one who had been under pressure from majority jurors to
abandon his or her own genuine views. And that is so notwithstanding
the trial judge's express instruction that no member of the jury
should be false to the oath which he or she had taken to return a true
verdict according to the evidence. While that express instruction may
have reduced the danger of misunderstanding, it went nowhere near
eliminating it. Indeed, the subsequent instruction that to approach
"the task ... in hand sensibly in the way I have sought to indicate,
is quite within the scope of your oath" would have been understood
by a juror who thought that he or she was being encouraged by his
Honour's earlier comments to yield to the majority view, as an
instruction that it would be consistent with his or her oath or
affirmation to adopt that course.



6. I agree with the orders proposed by the other members of the Court and with the suggested form of direction set out in their
judgment.