Managing prejudicial publicity ( 2000 ) Cite this report
Ch 7. Jurors' experience of the trial process
Presently, majority verdicts are permitted in criminal trials in five Australian jurisdictions — Northern Territory, South Australia, Tasmania, Victoria and Western Australia128 — although such verdicts are subject to certain limitations. In Victoria, a majority verdict will stand when one juror disagrees with the remaining jurors, regardless of whether the jury consists of 10, 11 or 12 members. In the other jurisdictions, when there are 12 jurors a majority verdict is permitted where one or two jurors disagree with other members. Where the jury numbers only 10 or 11 members, a majority verdict may be returned when one juror disagrees with the conclusion of the rest of the jury. In each jurisdiction, a majority verdict may only be returned after the jury has deliberated for a specified minimum number of hours and has indicated to the judge that it cannot reach a unanimous verdict.
The most significant restrictions on majority verdicts in these jurisdictions relate to the type of offences to which such a verdict may be applied. Under section 80 of the Commonwealth Constitution, majority verdicts are prohibited in all jurisdictions in trials of offences against a law of the Commonwealth.129 Furthermore, in South Australia, Tasmania, Victoria and Western Australia, majority verdicts are not permitted in murder trials.130 Majority verdicts are inapplicable in Victoria, South Australia and Tasmania in trials for the offence of treason.131 In Western Australia, a majority verdict may not be returned in trials for any other offence punishable by life imprisonment132 and, in Tasmania, a majority verdict is impermissible in trials for an offence punishable by death.133
Our findings about how the juries reached unanimous verdicts within each of the three groups designated above provide a basis for speculating about how their deliberations, if not also the verdict itself, might have differed if New South Wales had had a majority verdict system at the relevant time.
Within the first category — ‘unanimity reached easily’ — there would, it seems, have been no difference. Each of the juries would most likely have delivered the same verdict as a unanimous one.
The situation would, however, have differed within the second category, that of ‘unanimity reached with difficulty’. If a majority verdict system operating in New South Wales at the relevant time had been similar to those of Tasmania, South Australia, Victoria and Western Australia — where majority verdicts are not permissible in cases involving Commonwealth offences or murder charges — one out of the ten verdicts in this category might have been delivered as a majority verdict instead of unanimously. However, if murder trials had not been exempt from 11:1 or 10:2 verdicts after a specified period of deliberation, as many as nine might have been delivered as majority verdicts. Instead of arriving after a lengthy, stressful and difficult conflict at a verdict to which all of the jurors were prepared, at least formally, to subscribe, they might have ‘agreed to disagree’ and delivered a majority verdict once the stipulated time had elapsed.
The group of eight verdicts in the third category — unanimity reached by compromise — includes the only example of a trial within our survey that might have resulted in a less preferable verdict if a 10:2 majority verdict had been permissible. The strong personalities of two minority jurors may not have held the same sway if the ten other jurors knew that they could hold out for a majority verdict. However, it should be noted that this was a murder trial and, as indicated above, of the five Australian jurisdictions that currently allow majority verdicts, four of them do not do so in trials for the offence of murder.
We must emphasise that the findings described in this section of our report relate only indirectly to the issue whether majority verdicts might be appropriate in New South Wales. Majority verdicts were not a focus of our study: indeed, as mentioned above, we did not investigate any trial in which the jury was ‘hung’. At most, our findings constitute background material for debates on this issue by illustrating some of the patterns of disagreement that may arise in jury rooms and some of the ways in which, under a system of jury trial requiring unanimity of verdict, disagreements are resolved.
With this caveat, the comment may be made that the findings relating to verdicts that were not ‘easily reached’ appear to support the proposition that the requirement of unanimity is likely to force those jurors whose opinion ultimately prevails to provide grounds to justify this opinion. This may give rise to a difficult and protracted debate with those jurors who, initially at least, disagree. It does not necessarily follow that this debate will genuinely probe the evidence that has been tendered on the issues relevant to guilt or innocence. But it is arguable that the unanimity requirement increases the likelihood that a jury’s deliberations will include more than a merely superficial review of the evidence.
The requirement of unanimity clearly does eliminate any risk that a majority faction of 10 or 11 jurors will collude with a minority faction of two or one in simply waiting until the time when a majority verdict may be given. If the jury adopted this tactic, it might not devote any significant time and energy to discussing the evidence. As indicated above, if this had been an available course of action in the trial referred to in paras 412–414, and had indeed been adopted, the jury might have returned a majority verdict which both differed from that ultimately delivered and was, according to our ‘professional assessors’, less acceptable than the verdict ultimately delivered.
Against these considerations there must of course be weighed the argument that a system of majority verdicts may well reduce the incidence of hung juries — which are regarded on all sides as a highly undesirable phenomenon — without posing any risk to the quality of verdicts. While none of the juries in our survey was in fact hung, some came close to being so. In a significant proportion of these cases (assuming for these purposes that majority verdicts were permissible in murder trials), the verdict reached by majority would most likely have been the same as that which was ultimately reached unanimously, though with great difficulty. This, for instance, could have been the outcome with the ten verdicts referred to in para 403. Both the risk of a hung jury and the stress, trauma and expense associated with long and arduous deliberations would have been reduced significantly.