Di Mauro v The Queen M51/2001 [2001] HCATrans 651 (14 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M51 of 2001

B e t w e e n -

MAX DI MAURO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 12.40 PM

Copyright in the High Court of Australia

MR D.A.DANN: If the Court pleases, I appear on behalf of the applicant. (instructed by Amad & Amad Lawyers)

MR P.A. COGHLAN, QC: If it please the Court, I appear with my learned friend, MR M.J. CROUCHER, for the respondent. (instructed by the Solicitor for Public Prosecutions (Victoria))

McHUGH J: Yes, Mr Dann?

MR DANN: Your Honours, it is submitted on behalf of the applicant that special leave should be granted because the applicant's case raises issues of major significance, both at an individual level and at a general level. At an individual level, it is submitted that leave should be granted to rectify a miscarriage of justice. At a general level, it is submitted that an accused person's right to a unanimous verdict is such an entrenched and sacred matter of principle that a judgment from a Court of Appeal that has the capacity to further erode that fundamental right in a way not previously authorised at law must raise a point of general public importance.

Dealing firstly at the individual level. The miscarriage of justice, it is said, resulted because there was a fundamental defect of conduct of the applicant's trial. An irregularity occurred in relation to the return of majority verdicts against the applicant, which involved such a departure from the requirements of the law that in fact, in the end, the applicant did not have a trial according to law. That irregularity or fundamental defect involved the return of majority verdicts following a direction by the learned trial judge that the time had not yet arrived when he would accept majority verdicts. Put in simplest terms, the jury returned majority verdicts before the judge allowed them to do so.

In the written summary of argument in paragraphs 3.5 to 3.7 I have attempted to outline the operation of section 47 of the Juries Act. Section 47 allows, "a judge a discretion to accept a majority verdict" in certain circumstances. Prior to the exercise of that discretion, an accused person has the benefit of that entrenched right to a unanimous verdict. It is a unanimous verdict based on the deliberative process of reasoning, characteristic of unanimous decision-making, where all 12 members of the jury contribute to the ultimate verdict. As the judgment in R v Muto and Eastey indicates, a jury has a duty to pursue that deliberative process of reasoning until the judge says that the time has come when a majority verdict will be accepted.

It is submitted in the applicant's trial the jury were never told that the time had arrived whereby a majority verdict would be accepted. In fact, the jury were expressly told by the judge the time had not quite yet arrived whereby he would accept a majority verdict. As a result, the jury were not entitled to abandon a deliberative process of reasoning. It is submitted that in so abandoning that process, the applicant was deprived of his common law statutory right to a unanimous verdict based on that process of reasoning.

As far as the miscarriage of justice is concerned, the applicant stands in an even stronger position than Mr Muto and Mr Eastey, because in that case it was never actually established that majority verdicts had been returned. It was enough that there was the potential that there was a premature end to the deliberative process of reasoning for that court to recognise a miscarriage of justice. In the applicant's case there is no doubt that the jury abandoned the process because of the return of majority verdicts.

Victorian Court of Appeal in Muto and Eastey set down a five-step path for any judge who has decided to exercise his discretion under section 47. It is submitted that in this case the learned trial judge departed and deviated from that five-step path to such an extent that it could never be seen that he completed the required path. Step one involved standard directions as part of the charge. There is no dispute those directions were not given. Step two: if the time has come to invoke section 47 and a Black direction is required, it should be given without any modifications. In this, the applicant's trial, a Black direction was given with in fact two modifications. Step three involves the judge hearing - - -

McHUGH J: I thought that Muto required that a modified Black direction was required.

MR DANN: What was required, that if a majority verdict at the time had not arrived from a majority verdict, a Black direction was required with three modifications. If the time had arrived for a majority verdict, a Black direction was required with no modification.

McHUGH J: Yes.

MR DANN: Step three involves the jury hearing and then considering submissions from counsel as to whether majority verdicts could be accepted. This step was completely missed by the learned trial judge. It is submitted that this is no incidental step. It involves a whole concept of procedural fairness. It is submitted that this is very important and was not missed by accident by the learned trial judge. It was missed because the judge was not at the stage where he was going to accept majority verdicts.

Step four involved a model direction to be given to the jury at the time a judge has decided to accept majority verdicts. Even at this stage there was a radical departure from that model direction. There is absolutely no room in that model direction for the words that the judge included in this direction, that the time had not yet arrived where he would accept majority verdicts. Those words were not functionally equivalent, as the Court of Appeal found, to that model direction but, in fact, it is submitted, were expressly inconsistent. Step five involves the taking of the verdict, and even here there was a minor departure from what is required.

So it is submitted that the learned trial judge stopped short of going down the required path set out in Muto and Eastey. It is also conceded, your Honours, the direction given was also in some respects inconsistent with the path set down in Muto and Eastey for a judge who thinks that the time has not arrived for a majority verdict. Those inconsistencies, though, must be viewed, it is submitted, in the context in which the direction was given, because the time had arrived when the judge could have accepted a majority verdict; the time had arrived when the judge could discharge the jury.

His Honour did explain to the jury the operation of those two separate powers; however, it is submitted that that is all he did, and there is a very significant difference between an explanation to a jury of those powers and a decision to exercise either one. At most, the direction could be viewed as a forecast as to the potential exercise of those two powers at a future stage. It is submitted that the words used at the end of the direction were plain words, and indicated quite clearly that his Honour was of the view the time had not arrived for the taking of majority verdicts. At this individual level - - -

KIRBY J: The jury had been deliberating for eight hours.

MR DANN: They had, your Honour.

KIRBY J: The majority verdict is a verdict of 11 of the jurors, and the decision of this Court in Black was called to the notice of the trial judge, and he dealt with the matter in general terms in accordance with Black. So that the most that you can complain of is, is it not, that the practice direction that was laid down in Muto was not complied with in your case. But where is the miscarriage of justice, if that is so?

MR DANN: Well, it is not just that the model directions were not followed, or the model path was not followed; it is, in fact, that the judge, it is submitted, had not exercised his discretion to accept a majority verdict, so therefore the jury remained under a duty to go about trying to reach a unanimous verdict based on the deliberative process of reasoning. Here, they have abandoned that process prior to the time where the judge has indicated he has exercised his discretion.

McHUGH J: There were a number of factors, though, that indicated that the trial judge was exercising his discretion. After all, his immediate response to the jury was, "I do now have the power to take a majority verdict from you". The modified Black direction that he gave expressly omitted the suggested passage from Muto.

MR DANN: Your Honour, I have conceded that, in fact, there are inconsistencies with what Muto and Eastey indicates a judge should do if the time has not arrived for a majority verdict, but when one - - -

McHUGH J: He did conclude his directions with directions to continuing deliberations with a view to reaching a unanimous verdict, but if that became impossible, that he could take a majority verdict. It seems to suggest he was exercising his discretion.

KIRBY J: The point you are taking is a very technical one - and it is not out of court, because this is a criminal trial - but, if one uses just a little bit of commonsense, you can read into what the judge did an implied exercise of his discretion, because otherwise, he would have said: "No, no, no, you have to go back, and I have to consider the matter, and you have to consider it for a bit further".

MR DANN: The difficulty with that - - -

KIRBY J: Eight hours is a long deliberation.

MR DANN: Yes. In a multiple trial, though, with two accused and a number of counts. The difficulty - - -

McHUGH J: I thought I saw somewhere in the submissions that this was a comparatively short trial. Did I not see that somewhere or other?

MR DANN: That was in the submissions of the respondent, as I understand.

McHUGH J: The respondent, yes.

MR DANN: The difficulty, your Honours, is that the very words that we used are so out of step with Muto and Eastey as to the indication a jury should be given when a majority verdict is to be accepted, as to cast real doubt on the whole process. Because, to say to a jury, "The time has not arrived where I would accept a majority verdict" cannot mean that a jury, there and then, can enter a majority verdict. The situation with Muto and Eastey in that direction - conceivably, after that direction, a jury, there and then, can enter a majority verdict, because although a jury has indicated or instructed to continue deliberations with a view to reaching a unanimous verdict, the words are said, "Well, if it is hopeless, a majority verdict can now be accepted".

That raises, in my respectful submissions, your Honours, the points relative at the general level, because it is submitted that the Court of Appeal in its judgment introduced a concept which is fundamentally inconsistent with the judgment in Muto and Eastey. It allows for the delayed exercise of the discretion to accept a majority verdict, that is, an indication to the jury that the learned trial judge has decided to exercise his discretion not then, not at that moment, but at some future time. Some future time, and some indefinite period of time. It is submitted that that concept is a concept the Victorian Court in Muto and Eastey, and even the West Australian Court in Pearmine, was striving to avoid. The model direction in Muto and Eastey from a judge who thinks the time has come to accept a majority verdict involves a concept where a majority verdict will be taken, or may be taken, there and then, and any point thereafter.

KIRBY J: Now, look, the decision in Muto is not a decision of this Court. Black is our decision. The Court of Appeal has laid down its elaboration, if you like, of Black in Muto. The Court of Appeal was well aware of its authority in Muto. The suggestion is that what Justice Callaway has concluded is that, functionally, the last words in the direction are equivalent to the Muto direction, and that satisfied the Court of Appeal. So that in order to lift yourself up into this Court, you have to show some miscarriage. The miscarriage you show is a purely technical one: that the authority of the Court of Appeal of Victoria was not complied with. Well, that is common ground, but the question is, is it functionally different from what was decided in Muto? Apparently, Justice Callaway and the Court of Appeal thought not.

MR DANN: That is why I turn to those words, that the court, in the applicant's appeal to the Court of Appeal, accepted a submission that the judge by what he said had decided to exercise his discretion to take a majority verdict if, after the jury had deliberated a little longer, they still could not reach unanimity, which involves the jury going into a process where they have to anticipate when the judge would accept a majority verdict. It involves the jury, as happened here, in a sort of pre-emptive decision as to when to shut out the twelfth juror, as to when to return with a majority verdict.

It creates such uncertainty and confusion, it is submitted, in that process that the intervention of this Court is warranted to clear up that inconsistency, because Muto and Eastey involves a very different concept. It does not allow for a jury to reach the decision on their own bat as to when it is appropriate to bring in a majority verdict. Muto and Eastey is very much concerned with the jury understanding they have a duty to reach a unanimous verdict until such time as the judge indicates that the time has arrived for the taking of a majority verdict.

KIRBY J: The question in the bottom line is, can one infer from what the judge said after the verdict was given that he had reached that point? It is pretty clear that he had.

MR DANN: But it is not - - -

KIRBY J: He said, "I can accept it now". If he had not thought so, if he thought it was unfair to your client, one would have assumed he would have said so, and said, "No, I am not ready to accept it yet. Keep on with your deliberations".

MR DANN: Your Honour, by then, with respect, the damage had been done, because the jury had not followed the process of reasoning required for a unanimous decision. They had already gone down the path for a majority verdict. It was all too late. That is what - - -

KIRBY J: So the logic of your submission is effectively that there was a mistrial at that point.

MR DANN: There was a defect in the conduct of the trial, yes, because the process of reasoning that the jury were under a duty to maintain was abandoned, majority verdicts were entered before the judge said that they could be, and it is not sufficient for a judge to then say, at that point, "I will exercise my discretion". It is submitted at the general level that the introduction of that concept, where a jury have the power or the ability to make a pre-emptive decision to return majority verdicts is totally inconsistent with Muto and Eastey and creates a dangerous situation, a dangerous set of circumstances, which the intervention of this Court, for the first time, is that the operation of majority verdicts and the discretion to accept majority verdicts, is required to clear up, as it were.

So they are the submissions to be made on behalf of the applicant, both at the individual level, pointing to a miscarriage of justice because of the defect in the conduct of the trial, and the matters that relate to the general level and points of principle, which are of significance when we are dealing with the concept of unanimous decision-making, which are the cases the authorities have always indicated. Those principles are so entrenched, and what the decision, in the applicant's case, from the Court of Appeal serves to do is to erode that principle, erode the protection that an accused person has, may embark upon a trial to have that process of reasoning and unanimous decision-making, because it allows for that process to be impinged upon at a time when, under section 47 of the Juries Act, that process should not be touched in any way. Those are the submissions on behalf of the applicant, your Honours.

McHUGH J: Yes, thank you, Mr Dann. No, we do not wish to hear you, Mr Coghlan.

We see no error of principle in the reasons of the Court of Appeal that were given by Justice Callaway. The trial judge and the Court of Appeal referred to the ruling of this Court in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 at 51 and 52. At most, what occurred in this case was a slip at the trial in complying with the practice direction laid down in Muto and Eastey v The Queen [1996] VicRp 21; [1996] 1 VR 336. It should be pointed out, however, that the Court of Appeal accepted a submission on behalf of the Crown that the directions that were given were functionally equivalent to the model direction in Muto and Eastey.

We are not convinced that any slip, if there was one, caused a miscarriage of justice in this case. The jury had been deliberating for more than eight hours when the majority verdict of 11 jurors was taken. In those circumstances, special leave to appeal must be refused.

AT 1.00 PM THE MATTER WAS CONCLUDED