Written by Andrew Tiedt
Published under Major Cases
April 16, 2014
When majority verdicts were introduced in NSW in 2006, there was an outcry from some stakeholders in the legal system.
Ever since we have had juries, verdicts have had to be unanimous. This was regarded by many as being a fundamental principle of the jury system, and it was unsurprising to hear angry responses to the suggestion that it should be in some way watered down.
The main justification provided for the change was to prevent or at least to reduce the number of trials where the jury was not able to agree on a verdict because of a "holdout" who stubbornly refused to agree with the remaining jurors.
It is difficult to assess how often it is the case that hung juries (in other words, a jury that cannot agree) is put in that position by one juror. Many people suspect that it was far more common for there to be a number of jurors on each side of the fence rather than just the one juror against the rest.
In any event, legislation was introduced in 2006 allowing juries to agree by a majority of 11 to 1.
The procedures and practices that have grown up around this change are such that, at present, juries have to deliberate for an extended period of time before they are then given appropriate directions about majority verdicts. Only once those directions have been given can a jury deliver a majority verdict.
We were, through the trial of TV star Robert Hughes that ended earlier this week, able to see this process in action.
Robert Hughes had sat through a six-week trial in relation to 11 child sex charges.
After some three days of deliberations, the jury came back and delivered guilty verdicts in relation to 9 of the 11 charges he was facing.
After the jury indicated that they were not able to reach a unanimous verdict on the remaining two charges, Judge Peter Zahra gave the court the “majority verdict direction” and they retired to consider their verdicts on the final two charges.
The next day, the jury returned a majority verdict on one of the remaining charges but indicated they were still not able to agree on the final charge. His Honour discharged the jury from considering that final charge.
As a result of the "cloak of secrecy" that is draped with the jury process and in particular the deliberations in the jury room, we will never know the effect that the majority direction had on that particular jury. Had a jury been able to deliberate for longer, they may well have reached a unanimous verdict. No doubt supporters of majority verdicts will assert that the result meant that the state was spared having to prosecute Hughes again for the particular offence for which the majority was handed down.
What we can never know is whether the possibility of a majority verdict makes it easier for the minority on the jury to be bullied into changing their minds. It seems likely that there are now far fewer hung juries – but at what cost?
Others did not see the problem with hung juries. Why, they asked, should a person be imprisoned if the Crown could not convince 12 people that he or she was guilty?
In any event, Robert Hughes will in due course be sentenced for the 10 offences he was found guilty of. Whether the Director of Public Prosecutions elects to prosecute a second trial for that final charge on which the jury failed to agree remains to be seen.