R v Gilson (No 2)

The question has arisen in the context of this murder trial whether, pursuant to s 55F(2)(a) of the Jury Act 1977 (NSW), a reasonable time has expired since the jury retired that would permit me to take a majority verdict of 11:1 (the jury having been deliberating for over thirteen hours).

There are a number of factors that argue against that proposition.

First, the evidence extended over approximately three weeks.

Secondly, the evidence was detailed and complex.

Thirdly, the jury has to determine a number of legal issues. They include whether one of the two mental elements for murder has been proven beyond reasonable doubt; also, applying the two legs of self-defence, potentially, to murder or manslaughter, the former including, of course, possible consideration of excessive self-defence.

Fourthly, the gravity of the proceedings. To my mind that has two aspects: first, the nature of the primary count itself, and, secondly, the fact that what is alleged in this particular case is a planned, and thereafter implemented, murder.

On the other hand, to my mind there are a number of factors that argue in favour of the proposition that a reasonable time has passed.

First, although the evidence was detailed, a substantial proportion of it was agreed. As well as that, it was presented in a generally chronological form that was readily understood.

Secondly, each counsel opened, thereby aiding the understanding of the issues by the jury from an early stage.

Thirdly, the two final addresses, in my respectful opinion, were exemplars of criminal advocacy, including in their clarity.

Fourthly, I provided the jury, from a very early stage of the proceedings, with dot point “heads up” documents setting out the elements of murder, manslaughter, and self-defence. I also provided them with other written directions and documents before they retired.

Fifthly, no questions have been received from the jury about any of those legal documents or, indeed, about any legal principle.

Sixthly, the jury was taken on a view which, to my mind, very much aided understanding.

Seventhly, the issues when boiled down are quite simple; namely, whether the Crown has proven beyond reasonable doubt an intention to kill or to inflict grievous bodily harm; and, separately, whether the Crown has disproven self-defence to the same standard.

Eighthly, the position of the parties is unanimously that a reasonable time has expired.

Ninthly, the jury has had the entirety of the trial transcript since shortly before they left us at 1pm on Friday on 21 July 2017.

Tenthly, the jury has had a detailed exhibit list since retiring at 3.20pm on Thursday 20 July 2017.

Eleventhly, the deliberations have been spread over a number of days: Thursday (albeit extremely briefly); Friday for a half day; the whole of Monday 24 July 2017; and now a substantial proposition of Tuesday 25 July 2017.

Twelfthly, and finally, the two jury notes that have been received today are, in my opinion, firm in their message that there is no other way forward in terms of obtaining a verdict.

In short, seeking to balance all of those factors, and bearing in mind their countervailing effects, I accept the joint position of the parties, and consider that a reasonable time has elapsed since the jury retired at 3.20pm on Thursday that should permit of a majority verdict being taken in this trial.