Black v R [1993] HCA 71; (1993) 179 CLR 44; (1993) 68 ALJR 91; (1993) 118 ALR 209 (22 December 1993)

CATCHWORDS

Evidence - Criminal trial - Uncorroborated confession - Direction to jury.

HEARING

ORDER

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.

DECISION

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."

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

been said about the terms of exhortations in recent English

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."

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] VicLawRp 36; (1956) VLR 225 but note

the reference to a possible danger at p.227; Reg. v. Gallagher [1986] VicRp 25; (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."

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] HCA 6; (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] HCA 47; (1988) 165 CLR

314; see also Duke v. The Queen [1989] HCA 1; (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.

of the confession was made until after the interview concluded

and no attempt was made to obtain the appellant's signature to

the note.

the note of the interview to the appellant.

it, unusual - "I did like I said (but) you'll never prove it."

critical to the Crown case.

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."

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] HCA 44; (1993) 67

ALJR 760, at pp.763-764; [1993] HCA 44; 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.