TH, R v

MR JUSTICE BURNETT: This is a renewed application for permission to appeal against conviction following refusal of the single judge.

On 15th October 2008 in the Crown Court at Portsmouth before His Honour Judge Hetherington and a jury, the applicant was convicted of two counts of indecent assault, one count of attempted rape, seven counts of indecency with a child and five counts of rape. He was sentenced on 19th November 2008 to a total of eight years' imprisonment.

All the counts concerned historical offences during the 1970s and 1980s in which the applicant's daughter was the victim. The issue was whether the jury were sure that the applicant's daughter was telling the truth when she described sexual assaults and rapes taking place repeatedly over many years.

There is no complaint concerning the summing-up. The ground of appeal relates to the way in which the jury considered their verdicts and arrived at unanimous verdicts on each of the counts.

The jury retired on the sixth day of the trial at 11.17. Two jury questions were received at 11.45 and were shown to counsel in the usual way before the jury then retired again, the questions having been answered.

At 16.00 on the same day a note was received from the jury which the judge did not show to counsel. He indicated that it concerned the state of their deliberations. The jury returned to court and were asked by the clerk whether they had reached verdicts on which they were all agreed. The answer was "no". The judge did not give a majority direction at that stage, given the hour, but instead sent the jury home.

The following morning before the jury came into court the judge indicated to counsel that he would give them a majority direction. He did so at 10.15. The jury continued to deliberate. In the absence of the jury at 11.15 the judge noted in court that by this stage the jury had been deliberating for a little over six hours. He proposed to have them back into court and for the question to be put whether they had reached majority verdicts on any count. That process was followed and the answer was "no". The judge told the jury that he would ask them to retire again and additionally asked them to send a message whether given further time they considered that they would be able to return any verdicts with at least 10 of their number in agreement. The jury again retired at 11.19.

At about 11.35 the jury answered the question the judge had asked. The answer was in the affirmative. They then returned to court at 11.45 and returned unanimous guilty verdicts. One juror was seen to be crying. As it happens, in the meantime, that is to say whilst the jury was out for the last time, both judge and counsel had begun to make contingency plans in the event that the jury could not reach verdicts. Those contingency plans included canvassing dates for a retrial.

It is apparent from this chronology that the jury went from being unable to give any majority verdict to returning unanimous verdicts in a period of just under 20 minutes. It is submitted that this fact, coupled with the earlier note that must have suggested an element of disagreement, indicates that the convictions are unsafe. Some reliance additionally is placed on the fact that one juror was crying.

We agree with the single judge that there is nothing whatsoever in this ground of appeal. Notes indicating the current state of play in jury deliberations are a commonplace in criminal trials. There is nothing unusual about the note that was received in this case. No adverse inference can properly be drawn concerning the integrity of the jury's deliberations from the fact that the position changed in the course of 20 minutes, as we have already described. After all, the eventual position of the jury was reached after they had been discussing the case for more than six hours.

Similarly, no adverse inference can reasonably be drawn from the fact that a single juror was apparently distressed. This case, after all, concerned the systematic abuse of a girl between the ages of 8 and 13 by her own father. The subject matter would undoubtedly have been distressing to anyone who had sat through the trial.

For these reasons, this renewed application is refused.