Majority verdicts won’t see justice done

A cornerstone of the Queensland justice system is under threat following a New South Wales decision to abandon the centuries-old legal rule that a jury must reach a unanimous verdict in a murder trial.

New South Wales will legislate to allow 11-1 majority jury verdicts for murder trials, and there are moves to do the same in Queensland. Queensland’s Chief Justice, Paul de Jersey, supports the move, reportedly saying majority verdicts should apply in all trials, not just those for murder.

As a criminal defence lawyer, I think the idea is appalling and should be vigorously opposed because it represents a serious erosion of the principles of justice.

The issue has only arisen in Queensland because of New South Wales’ wish to streamline courtroom efficiency. A recent high-profile case in New South Wales was deadlocked by a juror who held out against the rest during 13 days of deliberations.

A “hung” jury usually means a re-trial, but rather than submit its courts to hearing the same matter again, the NSW Government has decided simply to change the rules and allow an 11-1 jury verdict to prevail.

Chief Justice de Jersey’s reported personal support for allowing majority verdicts for all Queensland jury trials is surprising, and I expect it will draw little support from the legal profession.

The New South Wales change overthrows a legal principle which dates back to the Dark Ages and required juries of 12 people to reach a unanimous verdict.

Historical records show the English King, Ethelred the Unready, set up an early legal system, with a provision that the 12 leading nobles of each district swear to investigate crimes without bias. The jury system further evolved under Henry II who established a system to resolve land disputes using juries of 12 free men as arbitrators.

Australia inherited the British legal system and despite its sometimes elephantine ways, the system works. Justice is seen to be done. We take the legal traditions as a “given”, because they work.

Chief Justice de Jersey says there is “no particular magic” in the number 12, and therefore majority verdicts of 11-1 should be allowed. With respect, the Chief Justice has got it wrong.

We dismantle the foundations of our legal system at our own peril. If an 11-1 majority verdict is acceptable, we open ourselves to further tinkering with the numbers. A jury can’t reach an 11-1 decision? Why not allow 10-2, or 7-5 verdicts? A trial is no place to play football scores with a defendant’s liberty.

A majority verdict undermines the concept of what a jury is supposed to do - reach unanimous agreement on guilt or innocence. A political decision to allow majority verdicts opens the way for the "majority" required to be further diluted down the track.

If the “rules” driving a jury’s deliberations are diluted, it erodes the concept of a case being proven beyond a reasonable doubt. A jury of lay people might not be willing to analyse evidence minutely if it knows it needs only a majority to end the case and go home. It may sound simplistic, but jury dynamics must also be considered.

Changing the jury verdict laws might be understandable if the change was designed to ensure justice was being done, but the New South Wales change is purely for political and courtroom efficiency reasons. It’s about trying to prevent the court’s time being taken up with re-hearing trials because of a “hung” jury.

It’s about cost-effectiveness, not justice. There is no evidence that the current system is failing, so why change it?

Anyone who analyses the court’s calendar would see there are more retrials by appeal in any given year than there are because of a “hung” jury. So do we outlaw or restrict appeals as well to streamline the courts’ efficiency?

It may sound far-fetched but if we are willing to throw away one traditional legal principle, why not toss out another too, in the interests of “efficiency”. Once you flatten the long-proven methods for determining justice, there is no template for what might happen next.

Queensland Attorney-General Linda Lavarch has been publicly guarded to changing the state’s jury verdict law, and I support her reticence.

The Attorney-General has been reported as saying there were no plans to change Queensland’s system of requiring a unanimous jury verdict, and no change would be made without full consultation with the community. I urge her to keep the Queensland system as it is now.

You must have a unanimous verdict for both acquittals and convictions. Once you start tinkering with jury verdicts, the potential for miscarriage of justice is enormous.

New South Wales will become the only jurisdiction, apart from the Northern Territory, to allow majority verdicts for murder. Rules for other jury verdicts around the country vary. In future only the Commonwealth, the ACT and Queensland will require unanimous verdicts for all criminal trials.

South Australia, Tasmania, Victoria, Western Australia and the Northern Territory currently permit 10-2 or 11-1 majority jury verdicts in most criminal cases, but not murder trials.

A requirement that all 12 jurors reach a unanimous decision minimises the possibility of a perverse juror derailing a fair verdict. Occasionally you have a hung jury but it’s not overly common. Only a tiny percentage of juries can’t reach a unanimous decision.

Although some states still allow majority verdicts for non-murder trials, all require a unanimous verdict for murder. With New South Wales breaking ranks, the disparity between states for murder verdicts will inevitably increase the inequity between jurisdictions. It will also attack the fundamental rights requiring a high burden of proof for major offences that can carry a life term.

We will see two different systems in the same country in which people can be found guilty. It will be chaotic, bad for justice and bad for public confidence in the justice system.

New South Wales has got it completely wrong. The unanimous jury verdict is a staple of our system and should not be changed on a whim. Queensland needs to show a firm hand and resist any moves to change its jury verdict laws.