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

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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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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