R v Ronald Edward Medich (No. 26) [2017] NSWSC 403 (12 April 2017)

Last Updated: 24 April 2018

Supreme Court New South Wales

Case Name:	R v Ronald Edward Medich (No. 26)
Medium Neutral Citation:	[2017] NSWSC 403
Hearing Date(s):	12 April 2017
Date of Orders:	12 April 2017
Decision Date:	12 April 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [19]
Catchwords:	CRIMINAL LAW – Practice and procedure – Directions to jury – Whether enquiry should be made as to progress of deliberations.
Legislation Cited:	Jury Act 1977 (NSW)
Cases Cited:	Black v R [1993] HCA 71; (1993) 179 CLR 44
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ronald Edward Medich (Accused)
Representation:	Counsel: Ms G O’Rourke SC and Ms S Harris (Crown) Mr W Terracini SC, Mr T Quilter and Ms M Curry (Accused) Solicitors: Director of Public Prosecutions New South Wales (Crown) Colin Daley Quinn (Accused)
File Number(s):	2010/356916
Publication Restriction:	Nil

JUDGMENT – EX TEMPORE (REVISED)

1. An application has been made by senior counsel for the accused that I recall the jury to make further inquiries of them as to whether they are in a position, or are likely to be in a position, to return unanimous verdicts, and in the event that it is indicated that they are not, to inform them that the Court may accept a majority verdict.
2. The application is encapsulated in an email received from senior counsel for the accused earlier today which is in the following terms:

"This is an application to reconvene the Court at midday for the purpose of asking the Jury to tell His Honour whether they are able to reach a unanimous verdict.
The jury should be sent out to deliberate on that issue.
If upon their return to Court the foreperson states that the jury are unable to reach a unanimous verdict then the jury should be made aware of the Majority Verdict provisions."

3. The reference to the “majority verdict provisions” is a reference to s. 55F of the Jury Act 1977 (NSW).
4. The course which is sought by senior counsel for the accused is opposed by the Crown.
5. In order to deal with the application it is necessary for me to briefly recount some aspects of the recent history of the matter.
6. The jury retired to commence their deliberations shortly before lunch time on 24 March 2017. Today is 12 April 2017. Within that period of time the jury did not deliberate on one day due to two of their members having important personal commitments. Accordingly, today is the 12th day of the jury's deliberations.
7. Last Friday, 7 April 2017, I convened the Court pursuant to a request made by senior counsel for the accused. On that occasion senior counsel requested that I bring the jury in to Court and, in effect, enquire as to the progress of their deliberations. The Crown did not oppose that course, although the Crown took issue with the time at which such a course might be taken. I concluded in all of the circumstances that the suggested course was appropriately taken immediately, albeit with some modifications to the form of it which had been put by senior counsel.
8. I brought the jury into court shortly after 2:00pm on that day and informed them that I remained ready, willing and able as it were, to give them such assistance as they might require. I had, of course, already made that clear in the concluding stages of my summing-up on 24 March 2017. I also explained to the jury that they were under no pressure whatsoever to reach a verdict.
9. Approximately an hour later I received a note from the jury which became MFI 120. The note asked me to clarify the meaning of the phrase "reasonable doubt" and also enquired as to what would occur in the event that a unanimous verdict could not be reached. I answered those questions in the terms set out in the transcript of that day. As to the second matter, I informed the jury that if they found themselves in a position where they could not reach a unanimous verdict, they should inform me of that. I also informed them that there were various mechanisms which the law allowed to be put in place to address that issue if and when it arose. There the matter rested and at the conclusion of that day the jury were sent home.
10. On the following sitting day, 10 April 2017, I received a note from the jury (MFI 121) informing me that after two weeks of deliberation they could not reach a unanimous verdict in respect of either of the two counts against the accused. Counsel agreed that the contents of that note gave rise to the necessity for a so-called “Black direction”: Black v R [1993] HCA 71; (1993) 179 CLR 44. There were differing views about whether or not I should, at that time, also tell the jury that I would be in a position to accept a majority verdict. It was my view, and it remains my view, that when the circumstances call for a Black direction, it is only that direction which should be given in the first instance. In the event that the jury subsequently indicates that they remain unable to reach a unanimous verdict, they can then be informed that a majority verdict can be accepted. On that basis I gave the jury the Black direction and asked them to continue their deliberations. Those deliberations continued for the balance of that day and the jury were sent home at 4:00pm.
11. On the following day, 11 April 2017, I received a note from the jury which became MFI 122. I do not propose to recount the questions posed in that note. Suffice it to say that they were quite detailed. Importantly, the note gave every indication that the jury had taken on board the Black direction that I had given them the day before, and were doing their best to reach a unanimous verdict. I answered their questions in the terms reflected in the transcript and asked them to continue their deliberations. They were again sent home at 4:00pm.
12. The basis of the course which senior counsel now seeks that I adopt essentially stems from the chronology that I have just set out. Senior counsel submitted that the jury had been deliberating for a lengthy period of time. He also postulated that further difficulties might occur if the Court were to find itself in the same position this time tomorrow, with the Easter break of four days fast approaching. Senior counsel submitted that "no harm" would be done to either the Crown or the accused if the suggested course were adopted.
13. The Crown strenuously opposed the application. It was the Crown’s submission that the circumstances as I have outlined them simply did not justify the suggested course being taken.
14. A number of observations should be made about the matters which have been raised.
15. Firstly, as I have indicated, part of senior counsel’s request is that the jury be "sent out to deliberate on that issue" (the “issue” being whether they are able to reach a unanimous verdict). That is precisely what the jury are doing at the present time, following the Black direction that I gave them on Monday, and following my giving them the answers to the questions that they asked in MFI 122.
16. Secondly, the detail of the questions asked in MFI 122 tends to indicate that the jury have accepted, without reservation, the Black direction, and that they are doing their very best to come to a unanimous verdict.
17. Thirdly, it is evident from the number of questions that have been asked in the course of deliberations that the jury are plainly aware of the fact that if they are in any particular difficulty they must draw that difficulty to my attention so that I can try and assist in resolving it. It has been explained to them on a number of occasions, both in the course of the summing-up and since that time, that not only can they ask for assistance if they find themselves in difficulty, they must ask. The questions which have been asked, and the effective response of the Black direction as mirrored in MFI 122, indicate that the jury are well aware of the fact that assistance can be given to them at any time they request it.
18. In my view for those reasons, there is no warrant for taking the course which has been suggested. As things presently stand, it is to be inferred that the jury are working towards endeavouring to reach a unanimous verdict. That is not to say that the time for taking the course sought by senior counsel for the accused may not arise at some time. However in my view, that time is not now.
19. For those reasons the application is refused.

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