1. Introduction

Updates and background for this project (Digest)

• Unanimity in jury verdicts

UNANIMITY IN JURY VERDICTS

Overview

1.1 In NSW, all members of a jury in a criminal trial must unanimously agree with the decision either to convict or acquit the accused. Where the accused is charged with a number of offences, the jury must unanimously agree on a verdict in relation to each of those charges. Should the jury not be able to reach a unanimous decision (commonly referred to as a “hung jury”), they will be discharged and no verdict can be delivered. As a result, the case will either be retried before a different judge and jury, or the prosecution may decide for various reasons not to pursue the matter any further.

1.2 It is generally considered that the requirement of unanimity results in more hung juries than does the alternative system of requiring only a majority of jurors to agree on a verdict. What constitutes a majority differs between jurisdictions that have embraced the concept, and may also depend on the type of offence being tried.¹

1.3 The inconvenience, cost and delay brought about by hung juries has led some jurisdictions to change to a system of majority verdicts. There have been calls over the years for NSW to follow suit. This Report examines the merits and drawbacks of majority verdicts over the current requirement of unanimity.

Legal basis

1.4 The rule requiring unanimity is an ancient one, with its common law origin able to be traced back to at least the mid-14th century.² The rule is said to have derived from a time when the role of a juror was akin to that of a witness, who would corroborate, or cast doubt upon, the testimony of the accused, based upon their personal and local knowledge.³ Historically, the unanimity rule was enforced rather dubiously, with jurors being carted around town in a wagon and starved until they could agree on a verdict.⁴ Thankfully those days have now passed.⁵

1.5 As a common law rule, the requirement of unanimity may be enforced or abrogated by statute.⁶ The Jury Act 1977 (NSW) (“the Jury Act”) preserves the common law position. Section 56 provides that, “where the jury in criminal proceedings have retired, the court in which the proceedings are being tried may discharge them if it finds, after examination on oath of one or more of them, that they are not likely to agree on their verdict”.

Current practice

Jury trials in perspective

1.6 In considering the arguments for and against the introduction of majority verdicts, it is easy to become immersed in the merits of each issue, while disregarding the overall picture concerning jury trials. In reality, very few criminal charges are prosecuted before a jury. According to the most recent Australian Bureau of Statistics figures, 97% of all criminal cases in Australia in 2003-2004 were prosecuted in the magistrates’ courts, where defendants are tried summarily without a jury. Of the remaining cases adjudicated in the higher courts, more than 80% of defendants pleaded guilty, thus removing the need for a trial by jury. This means that in 2003-2004, as few as 0.4% of all criminal cases were determined by jury trial.⁷

1.7 These figures correlate with the latest statistics regarding criminal cases in NSW published by the Bureau of Crime Statistics and Research (“BOCSAR”). Those figures reveal that the great majority of all criminal cases finalised in NSW in 2003 were dealt with by Local Courts, leaving just 2.68% of matters finalised in either the Supreme or District Courts (representing 3,673 out of a total 136,778 matters). Of these, 668 matters (representing 18% of superior court criminal cases, or 0.5% of criminal cases overall) proceeded to a defended hearing, either before a judge and jury, or a judge sitting alone.⁸

1.8 We have been mindful of these statistics in weighing the arguments discussed throughout this Report, and in coming to our conclusions in Chapter 4.

Procedure in jury trials

1.9 Generally, juries in criminal trials consist of twelve people chosen randomly by ballot in open court.⁹ In certain exceptional circumstances, such as where a juror dies or is discharged by the court due to illness or any other reason, trials may continue with fewer than twelve jurors.¹⁰ Should this occur, the remaining jurors must still reach a decision unanimously. Juries determine questions of fact based on the evidence presented during the trial and the testimony of witnesses. In summing up the trial, the judge explains the applicable law to the jury, and instructs them to deliberate on the facts, keeping the relevant law in mind. In NSW, there is no longer a minimum period of time for which a jury in a criminal trial must deliberate before they may be discharged for failing to reach a verdict.¹¹ However, in practice, judges will allow a jury to deliberate for a significant number of hours before questioning them as to their likelihood of reaching a verdict.

1.10 In situations where a jury is having difficulty reaching agreement, the judge will recall them to the court room and give them further directions, usually in the presence of counsel for both sides. The High Court has developed model directions, known as the Black directions,¹² for judges to issue to juries that are experiencing difficulty in reaching a decision. According to those directions, a judge should encourage the jurors to deliberate further and consider the evidence and the opinions of other jurors. However, if jurors cannot honestly agree with the conclusions reached by other members of the jury panel, they must decide according to their own view of the evidence.¹³ The judge must not pressure or induce jurors to accept the view of the majority or to compromise their views in any way.¹⁴ Nor should a judge warn a jury that failure to reach agreement would result in “public inconvenience and expense”.¹⁵

Secrecy in the jury room

1.11 Once jury members have been empanelled, significant restrictions are placed on public access to information concerning the identity of individual jurors, and the entire deliberation process. Generally speaking, what goes on in the jury room stays in the jury room. The Jury Act prohibits the disclosure, broadcast or publication of any information revealing the address of, or likely to lead to the identification of, a juror.¹⁶ It is also an offence to harass or solicit information from a past or present juror in order to obtain details of jury deliberations, including statements made, opinions expressed, arguments advanced, or votes cast, in the jury room.¹⁷ Notwithstanding the prohibition, the Attorney General may authorise information to be solicited from jurors, or may empower the sheriff to release information concerning jurors, to assist in conducting research projects into juries or jurors.¹⁸

1.12 So far as the jurors themselves are concerned, they are prohibited from wilfully disclosing any information as to jury deliberations during a trial or coronial inquest, except with the consent of, or at the request of, the judge or coroner.¹⁹ Nor can anyone, including a juror or former juror, disclose such information for a fee, gain or reward.²⁰ Jurors may, of course, disclose information to each other during the trial.²¹

1.13 In late 2004, amendments were made to the Jury Act aimed at preventing jurors from making their own enquiries into matters surrounding the events of the trial on which they are serving. For example, jurors are now prohibited from visiting the crime scene or conducting Internet searches, as they may obtain inaccurate and prejudicial information which would compromise the fairness or the trial.²² These amendments were precipitated by incidents which lead to the NSW Court of Criminal Appeal overturning two Supreme Court criminal convictions, being of the view that the juries’ verdicts were tainted by juror misconduct.²³

1.14 The main reason for maintaining secrecy surrounding all aspects of jury deliberations is to secure the integrity of the administration of justice by enabling jurors to discuss issues freely, knowing that their individual views will not be broadcast publicly. This is particularly important when juries hang, since the hold-out juror or jurors could be subject to pressure and scrutiny from the public, and from the party not favoured by the verdict, if their views were widely known.²⁴

1.15 Juror secrecy also impacts on the nature of empirical studies conducted into jury deliberations, including research into the benefits of majority, as opposed to unanimous, verdicts. Since actual jury deliberations cannot be observed directly, the opportunity to study how real juries reconcile facts and law to reach a unanimous decision, and how they resolve disagreements, is limited. As a result, research studies employ differing methods, such as examining case files, conducting mock trials, using “shadow” juries, or interviewing consenting jurors after the conclusion of the trial and relying on their recollection of events.²⁵ As we point out in Chapter 2 of this Report, there are deficiencies in each of those methodologies. Consequently, caution needs to be exercised when attempting to correlate the findings from these studies with the way in which real juries actually deliberate.²⁶

Notable instances of hung juries

1.16 There have been some infamous examples in Australia of cases in which juries have been unable to reach a unanimous decision, rendering a verdict impossible. Perhaps the most famous example was the trial of former Queensland Premier, Sir Joh Bjelke-Petersen, for perjury in 1991. After deliberating for four days, the jury reported to the judge that they were unlikely to agree on a verdict, and were discharged. The prosecution decided not to proceed with another trial, due to the age and infirmity of the defendant, the difficulty of recalling witnesses from overseas, and the fact that the defendant was no longer in power in Queensland. Media reports later revealed that the jury had been split 11:1. The hold-out juror was not only the foreman of the jury panel, but a former president of the Young National party and a strong supporter of the defendant, who refused to agree with a verdict to convict. Apparently, the remaining jurors were unaware that they could complain to the court regarding the foreman’s lack of impartiality. It would seem that an abuse of the system had allowed a “rogue” juror²⁷ to be empanelled and derail the entire trial. This case prompted many calls for reforms to the jury system in Queensland and elsewhere. Not only were unanimous verdicts under scrutiny, but also the selection and empanelling process, the need to provide better instructions to jury members concerning their rights and responsibilities to the court, and restrictions on the public release of information about jury deliberations.²⁸

1.17 NSW has also experienced some notable jury disagreements. The eventual conviction in 2001 of Phuong Ngo, former Mayor of Cabramatta, on charges of conspiracy to murder John Newman, MP, Member for Cabramatta, came after two previous attempts resulted in an aborted trial and a hung jury. During the 13 week trial that resulted in a 10:1 deadlock in May 2000 (one juror having been discharged), it was reported that some jurors were “in tears when their foreman told Justice James Woods that they could not reach a verdict”.²⁹ Once again, this case provoked calls from senior prosecutors to abandon unanimity in favour of majority verdicts to prevent the administration of justice being frustrated in this manner.³⁰

1.18 In 1979, three members of the Ananda Marga sect were tried on a number of charges, including conspiracy to murder Robert Cameron, former leader of a right-wing organisation known as the National Front. At the first trial, the jury was unable to agree on a verdict. The foreman of the jury later revealed that he held grave doubts about the evidence, and could not be persuaded to agree with the decision of the other 11 jurors to convict. The three were convicted at the retrial and sentenced to 16 years imprisonment. However, all three men received an unconditional pardon in 1985, after an Inquiry into the convictions discredited much of the evidence on which the Crown case was based.

1.19 The actions of a lone juror again came under scrutiny in the 1996 trial of Hakki Souleyman, charged with murder and manslaughter in relation to the death of Sydney service station owner Toula Soravia. The jury in Souleyman’s first trial was hung 11:1, with one juror refusing to convict. Advocates for majority verdicts seized upon the case to renew the pressure for change. For example, in NSW Parliament, the Hon Andrew Tink, MP, expressed the following view:

It is obvious that the attitude of that one juror was completely irrational. He was not at all concerned about the evidence being led by the prosecution or, for that matter, by the defence. Though 11 jurors were firm in their view that the accused in the case was guilty, the total irrationality of one juror resulted in no verdict being able to be returned.³¹

A word about “rogue” jurors

1.21 The above examples of hung juries deal with the difficult situation where a single juror holds the contrary view from that of the majority and cannot be persuaded to agree. Interestingly, only one of the examples, (the Bjelke Petersen case), involved a “rogue” juror. The term refers to someone who enters the jury room having prejudged the verdict, and stubbornly refuses to participate in the debate or listen to the evidence or the views of the other jurors. There is a tendency, however, to label any lone juror who holds a view contrary to the rest of the jury panel as irrational and “rogue”, even where that view results from a logical consideration of the evidence. The implication is that, if a view is held by 11 out of 12 people, then that view must be right, and it is legitimate to disregard the opinion of the remaining juror as not being based on reason.

1.22 The “rogue” juror argument is one of the strongest advanced by those in favour of majority verdicts. It is argued that, by eliminating the need for unanimity, a jury would no longer hang where one of their number refuses to participate. While some argue that majority verdicts would not eradicate hung juries in all cases involving a “rogue” juror, it is likely that the incidence of hung juries would be reduced.³⁴ In the case of a truly “rogue” juror, this outcome would be desirable. Of course, the drawback of a majority verdict system is that it would not only blunt the power of the “rogue” juror. The views of all hold-out jurors, even where genuinely held, would be negated. The above examples indicate that this is not always in the best interests of justice.

1.23 It is one thing to argue that majority verdicts would reduce hung juries by side-stepping “rogue” jurors. However, it does not follow that majority verdicts would rid the jury system of “rogues” altogether. “Rogue” jurors cause problems when they act in isolation, sticking to a verdict option opposed by all other jurors. It is conceivable, however, that other jurors could reach the same ultimate conclusion as the “rogue” via very different logical paths. As we point out in Chapter 2, jury deliberations are complex. While the presence of a “rogue” is never ideal, it will not necessarily result in a hung jury. If all jurors agree with the same verdict option as the “rogue” juror, albeit through consideration and reasoned debate, then a verdict can be delivered, notwithstanding the refusal of the “rogue” juror to participate in the deliberations. Where only some jurors agree, the jury will hang, but this result will not be solely attributable to the “rogue”. Consequently, even if majority verdicts were to be introduced, there is no guarantee that the “rogue” juror element would be eradicated completely.

Calls to consider reform

1.24 Criticism of the unanimity rule is not a new phenomenon, having been described in 1850 as a “preposterous relic of barbarism”.³⁵ While early criticism needs to be viewed in light of the harsh treatment of jurors in past times, criticism of the unanimity rule continues to gather momentum.

1.25 This Commission considered the benefits of unanimity as opposed to majority verdicts in 1986.³⁶ After reviewing all of the arguments for and against, the Commission concluded that unanimity was the “only appropriate basis for the determination of guilt by a jury”, and did not believe that the need to change the existing rule had been demonstrated. The Commission further argued that, even if such a need did exist, it was not satisfied that the perceived defects in the current system would be overcome by the introduction of majority verdicts.³⁷

1.26 In July 2004, the Hon Justice John Dunford indicated support for the introduction of majority verdicts “after a specified period of deliberation”.³⁸ In September 2004, the then Premier, the Hon Bob Carr, MP, responded in the following terms to a Question Without Notice:

One of the central planks of the New South Wales justice system is unanimous verdicts—long accepted as one of the key guarantees of a fair trial, and certainly the position to which I have always subscribed. But I was interested to hear Supreme Court Justice John Dunford recently make the case for a specific form of majority verdicts….. Given that the last Law Reform Commission report on this issue was back in 1986, the Attorney General and I have agreed that this issue may justify another look.

Certainly in those two decades a lot has changed here and overseas. In New South Wales the percentage of hung juries has more than doubled, from 3.55 per cent in 1985 to around 8 per cent today. Majority verdicts were introduced in Victoria in 1994 for all criminal cases except murder or treason, allowing an 11 to 1 majority if the jury remains deadlocked for six hours. Majority verdicts are also now permitted in Western Australia, South Australia, Tasmania and the Northern Territory, as well as in three American States and in the United Kingdom. In fact, in the United Kingdom a 10 to 2 majority verdict may be returned after just two hours of deliberation ending in deadlock.

So there are emerging precedents for majority verdicts and there are questions that need to be answered. Should there be a majority of 10 or 11? Should there be time limits and, if so, how long? Should murder or other serious crimes still require unanimity from the jury? In addition, we must consider the impact of long trials on hung juries. A 1997 study by the Bureau of Crime Statistics and Research [BOCSAR] found that long trials are more likely to end with hung juries, so there may be a problem with jurors becoming confused or tired and that may cause mistrials. We might be able to fix that problem without letting go of the requirement for unanimous verdicts. Interestingly, the same BOCSAR report also found that majority verdicts could result in only very modest savings in court time, which tempers any enthusiasm for majority verdicts.

There are arguments on both sides. We do not want to relinquish an ancient institution lightly….³⁹

1.28 Most recently, the former NSW Opposition Leader, the Hon John Brogden MP, promised to introduce a system of majority verdicts, based on the above Bill, should the Opposition win Government at the next State election.⁴²

Terms of Reference

1.29 In a letter to the Commission received on 17 September 2004, the Attorney General, the Hon R J Debus MP asked:

That the NSW Law Reform Commission inquire into and report on whether the unanimity requirement in criminal trials should be preserved in NSW.

In undertaking this inquiry, the Commission should have regard to:

 

• Arguments for and against preserving the unanimity rule;
• The incidence of hung juries in NSW and the possible effect of majority verdicts on hung juries;
• The operation of majority verdicts in other Australian and international jurisdictions;
• The advantages and disadvantages of different models for majority verdicts currently operating in other jurisdictions;
• Whether any other procedures or measures could decrease the incidence of hung juries in NSW; and
• any other related matter.

Background

1.30 This Report is the first publication released by the Commission during the course of this reference. We decided against publishing an Issues or a Discussion Paper due to the tight timeframe for delivery of this Report to the Attorney General, and in view of the fact that the arguments relating to majority verdicts as opposed to unanimity have been well documented.

1.31 Instead, we wrote seeking the views of every Supreme Court Justice and all District Court Judges in NSW, the NSW Director of Public Prosecutions, the Public Defender’s Office of NSW, the Legal Aid Commission, the Law Society of NSW, the NSW Bar Association, the Judicial Commission of NSW, and the Dean of every Law Faculty in Australia. In addition, we wrote to every Community Legal Centre in NSW, along with every office of the Aboriginal Legal Service and the Women’s Legal Resources Centre. We also consulted the Homicide Victim’s Support Group, the Victim’s Advisory Board, Enough is Enough, and the NSW Sentencing Council. In order to obtain up-to-date statistics on hung juries, we contacted every Supreme and District Court Registry in Australia. In total, we received 36 submissions.

Context

1.32 In formulating the recommendations made in this Report, the Commission has given due consideration to the overall context in which the debate over unanimity versus majority verdicts occurs. Part of that context involves the fact that jury trials represent only a small proportion of all criminal cases in NSW,⁴³ with those involving hung juries accounting for a fraction of those trials.⁴⁴

1.33 Furthermore, while there is the capacity for NSW to change to a system of majority verdicts, unanimity is entrenched in relation to offences against Commonwealth laws by virtue of the decision in Cheatle v The Queen.⁴⁵ These are tried in State and Territory Courts. Consequently, it would not be possible to avoid the unanimity requirement altogether in NSW should majority verdicts be introduced. NSW juries in trials involving Commonwealth offences would still have to reach unanimous agreement on the Commonwealth charges, whether or not offences against NSW laws were included in the same trial.

1.34 Finally, in discussing the concept of majority verdicts in this Report, we refer to verdicts delivered on the basis of 11:1 or 10:2, as occurs in other common law jurisdictions that have adopted a system of majority rule. Unless otherwise indicated, we do not use the term “majority verdict” to refer to a bare majority of one. While this system exists in Scotland,⁴⁶ it has not been proposed for NSW and is not considered in this Report.

Structure

1.35 In Chapter 2 of this Report, the Commission discusses the available statistics, including the incidence of hung juries in NSW, the predictors of hung trials, and the incidence of retrial. These figures are compared with those from other jurisdictions that have majority verdicts. The chapter also examines what inferences can be drawn from the statistics. Finally, we discuss studies that have been conducted into the way in which juries deliberate, and the impact, if any, made by requiring unanimity as opposed to majority verdicts.

1.36 Chapter 3 examines the arguments in favour of, and against, retaining the current system of unanimity, and introducing verdicts based on the views of a majority of jurors. We conclude by recommending that, based on the statistics, evidence and arguments discussed throughout the Report, the case for change is not sufficiently made out at present. This view is held primarily for the reasons that:

• the arguments in favour of majority verdicts are balanced and countered by those in favour of retaining unanimity;
• there is insufficient evidence that majority verdicts would reduce the incidence of hung juries;
• even if there were such evidence, the numbers are not significant enough to overhaul the existing system; and
• the introduction of majority verdicts would not be an appropriate response to the perceived problem of hung juries in NSW.

1. In some jurisdictions, agreement between 11 out of 12 jurors will suffice, in others 10 out of 12 must reach agreement, while in Scotland, a verdict can be delivered on the basis of a bare majority of 7-8 out of 15 jurors: see para 2.16-2.17.

2. The principle was settled by Thorpe CJ in an Anonymous Case (1367) 41 Lib Ass 11, referred to in Cheatle v The Queen (1993) 177 CLR 541 at 550.

3. Cheatle v The Queen (1993) 177 CLR 541 at 550; see also Sir P Devlin, Trial by Jury (Stevens & Sons Limited, London, 1966) at 48-49.

4. In The Queen v Laird (1870) 9 SCR 131, it was held that a trial judge had erred in allowing a jury, who had deliberated for three hours and acknowledged that they were not likely to reach a verdict, to be provided with refreshments. The prisoner was found guilty, but the mistake of the judge did not invalidate the conviction. See also Devlin at 50-51.

5. The rule against providing food and libations to jurors was overturned by 46 Vic No 17 s 340 (NSW). The modern equivalent is contained in section 55 of the Jury Act, which provides that a “court on any trial or a coroner holding any coronial inquest may permit the members of the jury to be supplied with such refreshments as the court or the coroner thinks fit at any time after they have been sworn and notwithstanding that they have retired to consider their verdict”.

6. Except to the the extent to which it is entrenched in relation to Commonwealth offences by s 80 of the Commonwealth Constitution: see para 1.33, 2.8 and 3.17.

7. See Australian Bureau of Statistics, Criminal Courts, Australia (February 2005, Catalogue no 4513.0): see www.abs.gov.au/ausstats.

8. BOCSAR, NSW Criminal Court Statistics 2003, Annual Report, Tables 1.3 and 3.6 (see www.lawlink.nsw.gov.au/bocsar/ll_bocsar.nsf/vwFiles/ccs03.pdf).

9. Jury Act s 19 and s 48.

10. Jury Act s 22. In the case of criminal proceedings, the number of jurors must not be reduced below 10 unless written approval from the prosecutor and the accused is obtained, or where the number remains above 8 and the trial has been in progress for at least 2 months: s 22(a).

11. The Jury Act previously specified a six hour minimum deliberation period for criminal trials. However, this specification was removed in 1987 following a recommendation made by this Commission in its Report on Criminal Procedure: The Jury in a Criminal Trial (Report 48, 1986). The six hour minimum deliberation time still applies in relation to coronial inquests: see Jury Act s 59.

12. Formulated in Black v The Queen (1993) 179 CLR 44 at 51-52 (Mason CJ, Brennan, Dawson and McHugh JJ). Those directions, and juror reaction to them, are discussed at para 4.53-4.58.

13. Black v The Queen (1993) 179 CLR 44 at 51.

14. See R Johns, Trial by Jury: Recent Developments (NSW Parliamentary Library Research Service, Briefing Paper 4/05) at para 4.5.

15. Black v The Queen (1993) 179 CLR 44 at 51.

16. Jury Act s 68(1) and (3). The prohibition does not apply to the release of information with the consent of a juror, or to specific organisations for the purpose of investigating or prosecuting a contempt of court or an offence relating to a juror or jury: s 68(2) and (4).

17. Jury Act s 68A(1)-(2).

18. Jury Act s 68(5) and s 68A(3). Such authorisations have been obtained: for example, by BOCSAR in 1997 (see P Salmelainen, R Bonney and D Weatherburn, “Hung juries and majority verdicts” (1997) 36 Crime and Justice Bulletin 1); and during the conduct of a study into how the publication of prejudicial material impacted upon jury deliberations in NSW (see M Chesterman, J Chan, S Hampton, Managing Prejudicial Publicity (February 2001, Justice Research Centre, Law and Justice Foundation of NSW) at xiii).

19. Jury Act s 68B(1).

20. Jury Act s 68B(2).

21. Jury Act s 68A(4A) and s 68B(4).

22. Jury Act s 68C.

23. See R v K [2003] NSWCCA 406 and R v Skaf and Skaf [2004] NSWCCA 37. See also NSW, Parliamentary Debates (Hansard), Legislative Assembly, 27 October 2004 at 12096.

24. See W Young, C Cameron and Y Tinsley, Juries in Criminal Trials, Part Two: A Summary of Research Findings (Preliminary Paper 37(2), New Zealand Law Commission: Wellington, New Zealand, 1999) at para 243-247 (hereafter “Young, Cameron and Tinsley, Preliminary Paper 37(2)”.

25. The Commission discusses and explains these methodologies at para 2.26.

26. See para 2.51-2.54.

27. The notion of the “rogue” juror is one of the most cogent arguments advanced by those in favour of majority verdicts, and is discussed in chapter 3.

28. Many of these issues were addressed in the Jury Act 1995 (Qld). Interestingly, despite the high profile nature of the Bjelke-Petersen trial, Queensland did not take the opportunity to introduce majority verdicts, and remains one of the few Australian jurisdictions, along with NSW, to have retained unanimous verdicts.

29. M Knox, Secrets of the Jury Room: Inside the Black Box of Criminal Justice in Australia (Random House, Sydney, 2005) at 275.

30. M Tedeschi, “Message from the President” Newsletter of the Australian Association of Crown Prosecutors (May 2000(4)) at 2; B Lagan, “When one juror won’t budge” Sydney Morning Herald (13 May 2000). See also G Griffith, Majority Verdicts: Update to 6/96 (Parliamentary Library Research Service, Briefing Paper, 1996) at 3.

31. NSW, Parliamentary Debates (Hansard), Legislative Assembly, 19 September 1996 at 4380.

32. Souleyman was, however, convicted on other charges relating to events surrounding the death.

33. See NSW, Parliamentary Debates (Hansard), Legislative Assembly, 17 April 1997 at 7731.

34. Studies of hung juries have revealed that some jurors apart from the “rogue” had doubts about the evidence, but failed to raise those concerns as it was clear that the jury would not be able to reach a verdict anyway: see para 2.46 and para 3.46.

35. Forsyth, History of Trial by Jury (London, 1850) at 245, quoted in Devlin at 49.

36. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial (Report 48, 1986) (hereafter Report 48”).

37. Report 48 at para 9.1.

38. The Hon Justice J Dunford, keynote presentation at the Criminal Law Conference. 27 July 2004. Report in Bar News (Summer 2004/2005) 46 at 51-52.

39. NSW, Parliamentary Debates (Hansard), Legislative Assembly, Question Without Notice, 16 September 2004 at 11054.

40. See, eg, Jury Amendment (Majority Verdicts) Bill 1996 (NSW), and Jury Amendment (Dissenting Juror) Bill 2000 (NSW).

41. Proposed s 55F.

42. “Majority Verdicts: Brogden pledges jury shake-up” Sydney Morning Herald (Monday, August 15, 2005); “Brogden to change jury verdict law” Sydney Morning Herald (Tuesday, August 16, 2005).

43. See para 1.6-1.7.

44. See para 2.2-2.4.

45. (1993) 177 CLR 541. See para 2.8, 3.4 and 3.9.

46. See para 2.16-2.17.