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3.13 - Perseverance and Majority Verdict Directions

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  1. This topic addresses 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

  2. 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.
  3. The Act:
  4. The effect of these amendments are also explained below.

    Perseverance (Black) Directions

  5. 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).
  6. 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).
  7. 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.
  8. 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).
  9. 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?

  10. The meaning of "majority verdict" varies depending on the size of the jury at the time the verdict is returned:

    Preconditions for Taking a Majority Verdict

  11. A judge may decide to take a majority verdict if:
  12. 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

  13. 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) 22 VR 203). 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.
  14. 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).
  15. 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) 22 VR 203).
  16. 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).
  17. 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

  18. 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).
  19. 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.
  20. There is no obligation to mention the potential to discharge the jury without verdict at the time of permitting a majority verdict. It is up to the trial judge to decide whether and when to give this information, provided the judge does not place pressure on the jury to reach a verdict. One form of pressure on a jury is if the judge gives the impression that the deliberations must continue until the jury reaches a verdict (Aulsebrook v The Queen [2019] VSCA 238, [39]-[47]; Millar v The Queen [2003] WASCA 211).
  21. Historically, judges have told the jury about the option to discharge the jury as part of a perseverance direction given before allowing the jury to return a majority verdict. As explained above, Jury Directions Act 2015 ss 64B and 64C have abolished that practice.
  22. If the judge does not consider it appropriate to exercise his or her discretion to take a majority verdict, the judge’s answer could encourage 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).
  23. 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).
  24. 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).
  25. 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).
  26. 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).
  27. 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).

 Last updated: 25 November 2019

In This Section

3.13.1 - Charge: Unanimous Verdict Required

3.13.2 - Charge: Majority Verdict Allowed – No Perseverance Direction

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings