O'Brien v R [2019] NSWCCA 187

O'Brien v R [2019] NSWCCA 187

By majority, the Court held that the jury's two notes clearly indicated inability to reach unanimity and the trial judge should have given a Black direction, including the advice to listen to and engage with one another and the information that the power to discharge existed. Ignoring the notes and failing to respond clearly to the juror's work-commitment issue left the jury uncertain and imposed undue pressure, so the guilty verdicts could not confidently be regarded as unaffected by that pressure. The convictions were set aside and a new trial ordered.

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Hearing of Application to Extend Time, Application to Amend Notice of Appeal, Appeal Against Conviction, and Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Appeal against conviction allowed by majority; convictions set aside; new trial ordered; application for leave to appeal against sentence not determined.
Legal Topics
['jury Directions' 'black Direction' 'jury Deadlock' 'unanimous Verdicts' 'majority Verdicts' 'discharge of Juror' 'miscarriage of Justice' 'undue Pressure on Jury']
['criminal Law' 'criminal Procedure' 'criminal Appeals'] ['jury Directions' 'black Direction' 'jury Deadlock' 'unanimous Verdicts' 'majority Verdicts' 'discharge of Juror' 'miscarriage of Justice' 'undue Pressure on Jury']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Hearing of Application to Extend Time, Application to Amend Notice of Appeal, Appeal Against Conviction, and Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the trial judge's failure to direct the jury in accordance with Black v The Queen after notes indicating inability to reach unanimity caused the trial to miscarry." "Whether the jury's guilty verdicts were reached under improper pressure arising from time restraints and the unresolved position of a juror with a work commitment." 'Whether leave under r 4 of the Criminal Appeal Rules was required and should be granted for a complaint about an omission to direct where no objection was taken at trial.' 'Whether it was necessary to determine the sentence ground alleging error in assessing objective seriousness and manifest excess.']

Ratio Decidendi

By majority, the Court held that the jury's two notes clearly indicated inability to reach unanimity and the trial judge should have given a Black direction, including the advice to listen to and engage with one another and the information that the power to discharge existed. Ignoring the notes and failing to respond clearly to the juror's work-commitment issue left the jury uncertain and imposed undue pressure, so the guilty verdicts could not confidently be regarded as unaffected by that pressure. The convictions were set aside and a new trial ordered.

Court Disposition

Appeal against conviction allowed by majority; convictions set aside; new trial ordered; application for leave to appeal against sentence not determined.

Orders

  • ['Extend the time in which to appeal.' 'Grant leave to amend the notice of appeal filed on 21 December 2018.' 'Appeal against conviction allowed.' 'The convictions on each count set aside.' 'There be a new trial on each count.' 'The matter is to be listed in the District Court Arraignment List on 16 August 2019 at...