When Will the Prosecution Pursue a Retrial in New South Wales?

by Sonia Hickey & Ugur Nedim
Jury Duty

A Queensland jury has failed to read a verdict in the trial of a homosexual man accused of sexually assaulting a female friend. 

The jury spent 10 hours deliberating but was discharged after being unable to reach a verdict. 

The matter will now return to court next month for a short administrative hearing, when the Office of the Director of Public Prosecution is expected to advise as to whether a fresh trial will proceed.

Sexual assault allegations

Mr Dominic Hansson claimed he had consensual sexual intercourse with his female friend in 2019. 

The woman contended in her complaint to police four months later that the intercourse was not consensual.

Police acted on her version of events by formally charging Mr Hansson with one count of sexual assault.

According to the complaint, Mr Hansson arrived at the woman’s Brisbane inner-city apartment about 1.30am, drunk and intent on staying the night. 

The woman allowed her friend to sleep on the couch, but says he eventually convinced her to sleep with her in the bed, saying she had nothing to fear as he was a gay man in a long-term, committed relationship. 

The complainant says Mr Hansson began ‘spooning’ her at about 2.30am before ‘flipping her onto her stomach’ and having sexual intercourse with her. 

According to her complaint, Mr Hansson attempted to dissuade her from reporting the matter to police by saying he would kill himself if his boyfriend found out.

The defence position is that the woman made false allegations because she has a ‘vendetta’ against their client after he offended her. 

Consent in allegations of sexual assault 

While Mr Hansson originally denied the sexual encounter happened at all, he admitted in his subsequent police interview that intercourse did in fact occur but was consensual, saying ‘there was no point while we were having sex where she told me to stop, or indicated that she didn’t want sex any more’. 

In cases of sexual assault in New South Wales, the jury must consider whether the prosecution has is able to prove beyond reasonable doubt that:

  1. Sexual intercourse took place between the complainant and defendant, and 
  2. The complainant did not consent to sexual intercourse, or that the defendant was reckless as to whether the complainant was consenting. 

Majority verdicts in New South Wales 

For hundreds of years, jury verdicts in Westminster legal systems had to be ‘unanimous’; meaning all 12 jurors had to agree on whether the defendant was guilty or not guilty.

If the jurors were unable to do this, the jury would be considered ‘hung’ and the trial would amount to a mistrial.

The prosecution would then consider whether to seek a further trial, known as a retrial.

But the situation changed in New South Wales with the introduction of ‘majority verdicts’. 

Step 1: the ‘Black Direction’

If a jury advises the court that it is unable to reach a verdict after deliberations, the judge will give what is known as a ‘Black Direction’.

The Black Direction derives its name from the High Court of Australia case of Black v The Queen [1993] HCA 71; (1993) 179 CLR 44.

The Direction seeks to fulfil the utilitarian objective of producing a verdict without putting undue pressure on jurors to change their minds.

The Direction is found at page 51 of the judgement, during which Chief Justice Mason and Justices Brennan, Dawson and McHugh prescribe it in the following terms:

‘Members of the jury, I have been told that you have not been able to reach a verdict so far.

I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation.

Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues.

But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.  

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability.

Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light.  

You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors.

You should calmly weigh up one another’s opinions about the evidence and test them by discussion.

Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong.  

That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence.

For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged.  

So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict.’

Step 2: The Majority Verdict Direction

If the charges involve New South Wales state offences and the jury still cannot reach a unanimous decision, the court has discretion under Section 55F of the Jury Act to allow for ‘majority verdicts’ in criminal trials if the jury is still unable to reach a unanimous verdict.

That section provides that:

  1. Where a unanimous verdict has not been reached after the jurors have deliberated for a period of at least 8 hours, and
  2. The court considers that reasonable time has been given considering the nature and complexity of the case, and
  3. The court is satisfied after questioning one or more of the jurors on oath that it is unlikely a unanimous verdict will be reached,

a ‘majority verdict’ may be agreed upon by 11 jurors where the jury consists of 12 persons, or by 10 jurors where the jury consists of 11 persons.

If the jury cannot reach a majority verdict, it will eventually be discharged and the Office of the Director of Public Prosecutions (DPP_ will decide whether a retrial will go ahead.

When will the prosecution pursue a retrial in New South Wales?

The DPP’s Guidelines state that the following matters are to be considered when deciding whether to retry a case: 

1. If the trial ended without a verdict:

a. Whether the trial ended because the jury was unable to agree, or for another reason, and

b. Whether another jury would be in a better or worse position to reach a verdict

2. If a retrial has been ordered after a successful conviction appeal, whether certain evidence

has been ruled inadmissible, and

3. In either case:

a. The seriousness of the matter,

b. Whether and to what extent the accused has spent time in custody,

c. The cost of a retrial to the community and to the accused,

d. The views of the victim and police, and

e. Whether evidence is still available.

It is prudent for criminal defence lawyers whose cases have ended in a mistrial to prepare and send written ‘Representations to the DPP’ which address each of these matters in detail and formally request the withdrawal of proceedings, thereby potentially saving their client the costs and enormous stresses of having to go through an additional jury trial.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 24 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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