3.9.5 - Difficulty Reaching a Unanimous Verdict (Perseverance and Majority Verdict Directions)[1]

3.9.5.1- Bench Notes

  1. These Bench Notes address two separate directions which may be appropriate where the jury is having difficulty reaching a verdict. The first is an instruction to persevere in attempting to reach a unanimous verdict. The second is a direction allowing the jury to return a majority verdict.Each of these are discussed in more detail below.

Effect of Jury Directions Act 2015

  1. Jury directions relating to perseverance and majority verdicts have been significantly changed by the Jury Directions Act 2015 following amendments which commenced on 1 October 2017 by the Jury Directions and Other Acts Amendment Act 2017.
  2. The Act:
  3. Prohibits the judge from directing the jury to persevere to reach a unanimous verdict at the same time as or immediately before or after giving a majority verdict direction (Jury Directions Act 2015 s64B);
  4. Abolishes any common law rule or practice to direct the jury to persevere to reach a unanimous verdict before giving a majority verdict direction (Jury Directions Act 2015 s64C).
  5. The effect of these amendments are also explained below.

Perseverance (Black) Directions

  1. If it appears that the jury has been deliberating for an extended period without reaching a verdict, it may be appropriate to ask counsel to make submissions about whether the jury should be recalled and given further directions, or should continue to be given uninterrupted time to deliberate (see R v K (1997) 68 SASR 405).
  2. If the jury is recalled, the judge should ask the jury whether it desires more time to deliberate, or whether it is experiencing difficulty in reaching a unanimous verdict (R v K (1997) 68 SASR 405).
  3. If the jury indicates that it is having difficulty reaching a unanimous verdict, the judge should decide whether to give the jury a direction to persevere, or a direction that it may return a majority verdict (See Jury Directions Act 2015 ss64C, 64D; Black v R (1993) 179 CLR 44; R v Muto & Eastey [1996] 1 VR 336; R v K (1997) 68 SASR 405). For information on when to direct the jury that it may return a majority verdict, see Exercising the Discretion to Take a Majority Verdict below.
  4. If the jury asks a question, the question should be answered and the jury given further time to resolve their differences (in light of that answer) before giving a perseverance or majority verdict direction. To do otherwise may put the jury under pressure to reach a verdict, without satisfying themselves about matters which seem important to them (see R v De Simone [2008] VSCA 216).
  5. Following the commencement of Jury Directions Act 2015 s64B on 1 October 2017, a judge must not direct the jury to persevere to reach a unanimous verdict at the same time as, or immediately before or immediately after, the judge gives a majority direction.

Majority Verdict Directions

What is a Majority Verdict?

  1. The meaning of “majority verdict” varies depending on the size of the jury at the time the verdict is returned:
  2. If the jury consists of 12 jurors, a majority verdict is a verdict on which 11 of them agree;
  3. If the jury consists of 11 jurors, a majority verdict is a verdict on which 10 of them agree;
  4. If the jury consists of 10 jurors, a majority verdict is a verdict on which 9 of them agree (Juries Act 2000 (Vic)s46(1)).

Preconditions for Taking a Majority Verdict

  1. A judge may decide to take a majority verdict if:
  2. The jury has been deliberating for a period of time that the court thinks is reasonable, having regard to the nature and complexity of the trial and has not reached a unanimous verdict; and
  3. The accused is not charged with murder, treason, an offence against sections 71 or 72 of the Drugs, Poisons and Controlled Substances Act 1981,or an offence against a law of the Commonwealth (Juries Act 2000 (Vic) s46).
  4. Prior to the amendment of the Juries Act 2000 by s22 of the Jury Directions and Other Acts Amendment Act 2017 on 1 October 2017, the jury was required to have deliberated for at least six hours, not including discrete and substantial breaks from the performance of the jury’s task. The six hour requirement was removed by the Jury Directions and Other Acts Amendment Act 2017 s22.

Exercising the Discretion to Take a Majority Verdict

  1. Before the judge gives the jury a majority verdict direction, the judge should invite submissions about the appropriateness of allowing a majority verdict in the circumstances (R v Muto & Eastey [1996] 1 VR 336; R v Ahmet [2009] VSCA 86). This may include submissions about whether, having regard to the nature and complexity of the trial,a reasonable period of time for deliberation has passed.
  2. At common law, it was considered that a judge should usually give a perseverance direction before giving a majority verdict direction, so as to provide the jury with a further opportunity to reach a unanimous verdict. However, Jury Directions Act 2015 s64C provides that a judge may give a majority direction regardless of whether he or she has previously provided a perseverance direction (Jury Directions 2015 s64C).
  3. Jury Directions Act 2015 s64B provides that a judge must not give a majority direction at the same time as, or immediately before or immediately after, they give a perseverance direction. This abolishes the common law rule of practice that a jury should be encouraged to persevere towards unanimity even if the judge permits a majority verdict (R v Ahmet [2009] VSCA 86).
  4. If the judge decides to exercise his or her discretion to allow a majority verdict to be given, this should be made clear (R v Di Mauro (2001) 3 VR 62).
  5. At common law, a modified perseverance direction was used where the judge had exercised his or her discretion to allow a majority verdict to be given (Black v R (1993) 179 CLR 44; R v Muto & Eastey [1996] 1 VR 336). Jury Directions Act 2015 s64C requires a clear distinction between the two, as judges giving a majority direction must not refer to the perseverance direction.

Other Directions Concerning Jury Deliberations

  1. If the jury asks what happens if they fail to reach a unanimous verdict, the judge should answer the question (Coulson v R [2010] VSCA 146).
  2. If that question arises before the judge has exercised their discretion to allow a majority verdict, he or she may wish to seek submissions as to whether it would now be appropriate to do so. If so, a majority verdict direction could be given in response to the question. This would include advising the jury that the judge has the power to dismiss the jury if satisfied that they will not be able to agree on a verdict.
  3. If the judge does not consider it appropriate to exercise his or her discretion to take a majority verdict, the judge’s answer couldencourage the jury to persevere with their deliberations, and inform them that while in some circumstances a majority verdict may be allowed, those circumstances have not yet arisen. This answers the jury’s question and complies with the requirement that the two directions may not be given at the same time (Jury Directions Act 2015 s64B, as amended in 2017).
  4. In some cases it may be appropriate for a trial judge to make suggestions as to what might be a convenient way for the jury to approach their deliberations, so that they can reach a unanimous verdict (Gassy v R (2008) 236 CLR 293).
  5. If a judge makes such suggestions, he or she must be especially careful to maintain a proper balance between the prosecution case and the defence case (Gassy v R (2008) 236 CLR 293).
  6. This means that if the judge suggests a “way forward” that leads to conviction, s/he must balance that suggestion with a reminder of the paths that lead to the opposite outcome (Gassy v R (2008) 236 CLR 293).
  7. This reminder of the countervailing considerations must be given contemporaneously with the suggested “way forward”. It is not sufficient to assume that the jury will keep in mind any counter-balancing directions given earlier (Gassy v R (2008) 236 CLR 293).
  8. The judge should also emphasise the fact that he or she is merely making suggestions, which the jury are free to accept or reject as they see fit (Gassy v R (2008) 236 CLR 293).

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[1] This document was last updated on 1 October 2017.