R v Hawi & ors (No 31) [2011] NSWSC 1677

Supreme Court New South Wales

Medium Neutral Citation: R v Hawi & ors (No 31) [2011] NSWSC 1677 Hearing dates: 26 October 2011 Decision date: 26 October 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Applications refused Catchwords: CRIMINAL LAW - procedure - juries - applications for discharge of jury or majority verdict direction - lengthy period of deliberation - communications from jurors - concern that jury not adhering to instructions on how to reach proper verdicts Legislation Cited: Jury Act 1977 Cases Cited: Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 Category: Procedural and other rulings Parties: Regina Mahmoud Hawi Representation: Counsel: Ms N Adams (Crown) Mr S Grant (Hawi) Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) File Number(s): 2009/50087; 2009/52582

Judgment 1HIS HONOUR: These are applications by counsel for the accused Hawi. The first application is for the discharge of the jury. Failing that, in the alternative, the second application is that the provisions of s 55F of the Jury Act 1977 be invoked, in short, to determine whether majority verdicts may be acceptable and, if so, to indicate to the jury that majority verdicts could be returned. 2The first matter referred to in support of the application for the discharge of the jury was that there was a concern arising from a question asked by the jury last Wednesday, 19 October 2011. The question asked by the jury, in a note which is MFI 114, was as follows: "Can we please have clarification on the following: If we are unable to come to a unanimous verdict on murder, do we then address manslaughter or is this considered a compromise by the people who can meet the requirements for murder?" 3It was submitted that the note indicated that the jury had not adhered to instructions I had given to them during the course of my summing-up, and in particular to the instructions I gave them as to how their verdicts should be returned, including in the provision to them of a verdict sheet, a copy of which is MFI 103. 4To deal with that first matter, I am not of the view that that question indicates that the jury had not adhered to any instruction I had given. It is unproductive to speculate about what gives rise to jury questions, but one view of that question simply is that the jury were seeking confirmation of an instruction that I had given. Such confirmation was given in response to it. Further, it is unknown, and not capable of being known, whether the question was asked on behalf of the entire jury, some of them, or just one of them. In other words, it would be inappropriate to draw an inference entirely from speculation that "the jury were not adhering to judicial directions." 5The second matter raised was concerned with communications from the jury yesterday, 25 October 2011, the nub of which was that the jury had indicated that they had not determined verdicts that would completely and finally dispose of the case concerning any individual accused, and had indicated that they had in some cases reached unanimous decisions on lesser charges without having reached unanimous decisions on primary charges. It was submitted that such an approach was contrary to the instructions I had given in my summing-up and also in my response to the jury note of 19 October 2011. 6In response to that submission, it is my view that there is nothing wrong with the jury considering how they might find in relation to any of the charges that are before them. The only requirement is that they return verdicts in only one order, that is, first for a primary charge before it may be possible to accept a verdict for an alternative charge if the verdict on the primary charge is not guilty. To use an example, in the charges that are presently before the jury in relation to six accused, there is a charge of murder for which there is an alternative of manslaughter, and for which there is a further alternative of riot. I see nothing wrong with the jury determining for themselves that they are unanimously of a view in relation to the charge of riot. That does not necessarily mean that they have done anything contrary to the instructions they have been given as to the order in which verdicts may be received from them. I refer to the directions I gave to the jury yesterday afternoon in which I reiterated the instructions in the latter respect that I had previously given. 7Those two matters I have referred to are said to give rise to a concern about how the jury are going about the course of their deliberations. For the reasons I have given, I have no such concerns. 8The final and possibly the more substantial matter raised is the length of time that the jury have been deliberating and reiterating that after such length of time the jury have not been able to determine a result in total in relation to any individual accused. 9A fundamental problem with the application to discharge the jury is that I would not have power to discharge unless I was first to find, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a majority verdict: s 56 Jury Act . It would not be appropriate for me to make such an inquiry of a juror at this time because I have not, as yet, told the jury that a majority verdict may be returned. For that reason, the application is premature and cannot be granted. In any event, it does not, in my view, have merit. 10Going to the application concerning majority verdicts, the provisions of s 55F(2) of the Jury Act apply: (2) A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation. 11Clearly, this is a case in which the period of time that the Court would consider "reasonable" is substantially more than eight hours. As of 3pm today, the jury have been deliberating for a total of 83 hours and 45 minutes. Today is the 16 th day of their deliberations. Some of those days have not been full days. 12A feature of the trial that is relevant to the period of time that might be regarded as reasonable includes that the evidence is extensive, occupying in excess of 4,000 pages of transcript which the jury have a copy of, together with a large number of exhibits, including many exhibits comprising security camera footage. As the Crown Prosecutor rightly observed, during the course of closing addresses by most, if not all, counsel, and in the course of my summing-up, extensive reference was made to the evidence and particularly the security camera footage evidence. All of that would undoubtedly take a considerable period of time for a jury to review and discuss in the course of their deliberations. 13Another relevant fact is that there are seven accused in this trial and there are 28 charges. On a rough calculation, the jury have been deliberating for an average of about 2 - 2.5 days for each accused. 14I am not of the view that the length of time for which the jury have been deliberating is of concern at this point in time. 15Yesterday, I gave the jury a direction in accordance with Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 . That was yesterday afternoon, a little over 24 hours ago. Nothing has been heard from the jury since then. I think it is very much premature to unilaterally invoke the provisions of s 55F of the Jury Act at this point in time. In the immediate future I do not intend to do so, but would hope to receive some further communication from the jury if it is the case that they cannot reach unanimous verdicts. 16As time goes by the position might change, but for these reasons both of the applications are refused.