3. The case for both sides

Updates and background for this project (Digest)

• Preserving the requirement of unanimity
• Introducing majority verdicts
• The Commission’s view
• RECOMMENDATION 1

3.1 In this chapter, the Commission discusses the advantages and disadvantages of unanimity and majority verdicts. The benefits and drawbacks of each system are discussed in turn. While this risks a degree of repetition, it avoids the danger of assuming too readily that the drawbacks of the current system can be addressed by adopting the advantages of majority rule. It clarifies that both unanimity and majority verdicts have positive and negative points that need to be explored. Further, an advantage of one system may not always signify a defect in the other, while deficiencies in one system are not necessarily redressed by the advantages of the alternative system.

3.2 The arguments discussed below are grounded on data, research or other evidence, while some are based on strongly held perceptions. Either way, the arguments for and against unanimous and majority verdicts have had a pervasive influence on legal discourse for many decades. The Commission concludes this chapter by presenting its views regarding the more cogent of those arguments, leading to the recommendation that the current system of unanimity should be retained.

PRESERVING THE REQUIREMENT OF UNANIMITY

Arguments in favour

Accords with the principle of beyond reasonable doubt

3.3 In criminal trials, the onus is on the prosecution to convince the jury of the guilt of the accused beyond reasonable doubt. The need to convince all twelve jurors acts as a safeguard to ensure that the verdict of conviction or acquittal is achieved beyond reasonable doubt. It has been argued that, if one or two of the jurors lack confidence as to the guilt or innocence of the accused, then this is enough to constitute reasonable doubt.¹

3.4 As the High Court noted in Cheatle v The Queen,²

It is true that there is no logical inconsistency involved in the co-existence in the law of the criminal onus of proof and majority verdicts of guilt. Nonetheless, assuming that all jurors are acting reasonably, a verdict returned by the majority of the jurors, over the dissent of others, objectively suggests the existence of reasonable doubt and carries a greater risk of conviction of the innocent than does a unanimous verdict.³

3.6 Further, commentators have pointed out that, of Australian jurisdictions which have introduced majority verdicts, the Northern Territory is alone in allowing majority verdicts in murder cases, which some have interpreted as an acknowledgement that the burden of proof should not be diluted in serious matters.⁵

Allows for greater deliberation of the issues

3.7 Empirical evidence has suggested that juries appear to be competent fact-finders and that the process of deliberation can be an important element in the fact finding process. Once a majority verdict is acceptable, jurors who endorse a minority viewpoint may be ignored, the deliberation may be less thorough, and the effectiveness of fact-finding may be reduced.⁶

3.8 Studies of unanimous jury deliberations have found that they are characterised by more conflict or debate, with more opinions being changed as a result of the deliberation process. It has been reported that jurors had more confidence in a unanimous verdict, and were more likely to feel that justice had been administered.⁷ Consistent minority dissent has been shown to widen the range of considerations in jury deliberations, stimulate divergent thinking along with the consideration of multiple perspectives, and aid the quality of decision-making and performance. This suggests that minority dissent assists in the detection of truth and in finding creative solutions to problems.⁸

3.9 As the High Court noted in Cheatle v The Queen, the “necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each juror will be heard and discussed”.⁹ A unanimity rule not only ensures that the minority viewpoint is heard, it gives people in the minority a vote which has real value. As the Commission pointed out in its 1986 Report, the “requirement for unanimity therefore enhances the representative character of the jury by ensuring that participation by individual citizens on the jury is real rather than illusory. The requirement of unanimity also minimises the effect of racial, social, or economic prejudice by according a right of participation to minority points of view”.¹⁰

Problems arise in only a small number of cases

3.10 The incidence of hung juries needs to be kept in perspective. As the Commission noted in Chapter 1, the latest available figures show that only about 0.4% of all criminal cases are tried by a jury. Of these, approximately 8% of juries are unable to reach a verdict.¹¹ Consequently, the number of cases in New South Wales involving jury disagreements is extremely small.

Juries may disagree for good reasons

3.11 The fact that juries hang is not in itself an indication that the system is failing and is in need of reform.¹² As the Commission noted in its 1986 Report, a “jury disagreement should not be regarded as an inappropriate result in every case. The existence of a disagreement may well reflect the difficulty of the case rather than the perversity of some jurors”.¹³ This view was endorsed in some submissions to the current inquiry.¹⁴

3.12 Longer trials involving complex evidentiary issues tend to result in jury disagreements more often than shorter, straightforward trials, suggesting that such disagreements are the result of juries taking their task seriously, rather than evidence of tampering or juror stubbornness.¹⁵

3.13 Critics of the unanimity rule often point to the expense and delay of a retrial as a negative outcome of jury disagreement.¹⁶ While the emotional and financial expense of a retrial is a matter for concern, it needs to be kept in perspective. A re-trial is not held as a matter of course. In 2002, the New South Wales Bureau of Crime Statistics and Research found that only 54% of all hung trials proceeded to retrial.¹⁷ The decision not to proceed is made in consideration of various factors, including where the Crown decides that the chances of a conviction are not sufficient to warrant further action.

3.14 A study in New Zealand showed that, in three of the five hung trials studied, the minority jurors “provided a clearly articulated and reasoned basis for their dissent. In two of these cases, the dissent actually appeared to be well-founded: in one, the researchers thought that the view of the majority would have resulted in a questionable, if not a perverse, verdict; and in the other the case was finely balanced and the judge shared the view of the minority”.¹⁸ In such cases, a hung jury would be the preferable result. It has been argued that eliminating or reducing the opportunities for juries to hang (for example, through the introduction of majority verdicts), increases the probability of wrongful convictions or acquittals.¹⁹ In cases where the evidence is evenly split and supports both sides, a hung jury may be the most appropriate outcome.²⁰

Promotes community confidence in justice system

3.15 Unanimity carries with it an impression of more certain verdicts. The fact that all twelve jurors considered the evidence, debated the issues and reached a consensus, conveys to the public the sense that the verdict is a safe one. Public confidence in jury decisions can influence public support for the law and the legal system. The effective denunciation of criminal behaviour and community support for law enforcement may be compromised by public uncertainty as to the correctness of jury decisions.²¹

3.16 Confidence in the certainty and accuracy of jury decisions is important since, unlike decisions of judges based on matters of law, juries are not required to state reasons for their verdicts. Also, jury decisions are difficult to overturn on appeal.²²

Consistent with trials for Commonwealth offences

3.17 As noted in Chapter 2, the High Court in Cheatle v The Queen established that the Commonwealth Constitution precludes a verdict of guilty on any basis other than unanimity where the alleged offence is one against Commonwealth law.²³ Uniformity with federal law is perceived by some commentators as desirable, particularly in cases involving both State and Commonwealth offences.²⁴ In this scenario, if majority verdicts were introduced in New South Wales, the presiding judge would need to give two sets of jury directions in one trial: one set concerning the need for unanimity regarding the Commonwealth offences; and another set of directions as to reaching a majority in relation to the State offences. While this is not insurmountable (and must occur in those State jurisdictions that have introduced majority verdicts) it is considered somewhat unsatisfactory.²⁵

Insufficient evidence to support need to change

3.18 Many submissions received by the Commission were of the view that the need to change the existing rule has not been demonstrated by empirical, qualitative research.²⁶ Even if this need had been demonstrated, allowing majority verdicts would not overcome the supposed defects of the present system.²⁷ While the introduction of majority verdicts on an 11:1 or 10:2 basis may reduce the deliberation time in a small number of cases, it would not eliminate the incidence of jury disagreements or hung juries.²⁸ Only the introduction of a bare majority would ensure this, and, as noted in Chapter 1, that is not an option that has been proposed to, or is being considered by, the Commission.²⁹

Arguments against

More likely to result in hung trials

3.19 A major criticism of unanimity is that it results in more hung juries than under a majority verdicts system.³⁰ The inability to reach a verdict frustrates the administration of justice. Cases may need to be retried, resulting in emotional, financial and time costs for all concerned.³¹ Alternatively, the prosecution may decide not to proceed for various reasons, leaving the victim frustrated and without any sense of closure.

The problem of the “rogue” juror

3.20 When jury verdicts are required to be unanimous, trials will hang in cases where one juror irrationally and obstinately refuses to agree with the majority. Where this disagreement results from a refusal to consider the evidence impartially, rather than stemming from a genuinely held belief in the guilt or innocence of the accused based on the facts at hand, the juror is often referred to as “rogue” or “perverse”.³² Sir Patrick Devlin rather poetically described the rogue juror as the “man whose spiritual home is in the minority of one and who, often in compensation for his social ineffectiveness, delights in the power of veto, is a nuisance”.³³

3.21 In a recent study carried out in New Zealand, based on detailed interviews and observations of 48 juries, researchers concluded that some of the trials failed to reach a verdict because of the questionable actions of a single juror:

In two of the five trials, the failure to reach a verdict was directly attributable to the actions of a single ‘rogue’ juror who refused to consider a ‘guilty’ verdict but made little attempt to participate in deliberations, and was unable or unwilling to articulate any rational argument in favour of a ‘not guilty verdict’.³⁴

Danger of “compromise” verdicts

3.23 Supporters of majority verdicts argue that at least some unanimous verdicts are the result of undesirable compromises, with dissentient jurors persuaded to acquiesce to the majority view, while not being actually convinced of the soundness of that position. Such acquiescence may involve unenthusiastic compliance with the majority in circumstances where the dissentient jurors are uncertain as to which decision to make. Compromise verdicts can also come about due to attrition, or the gradual wearing down of jurors through exhaustion.³⁷ More disturbing is the situation where jurors in the minority may be harassed and bullied into agreement with the majority view. This is especially so, it is argued, where there is only one member of the jury who disagrees with the others.³⁸

3.24 In these circumstances, unanimity is more imagined than real, since the verdict is in actuality a majority one rather than a true consensus. Given the paucity of knowledge about the actual processes of deliberation in the jury room, it is impossible to know how often such compromises occur. However, studies involving interviews with jurors after the conclusion of trials have discovered that, in trials where an accused is charged with multiple or alternative offences, a degree of bartering or “horse-trading” may occur. For example, if a jury disagrees in relation to conviction or acquittal on a particular charge, they may compromise and decide to convict or acquit on another lesser or more serious charge rather than hang.³⁹

3.25 A study in New Zealand involving post-trial interview with jurors also found evidence of this type of compromise verdict. The study reported that some jurors:

felt uneasy about the unprincipled nature of their decision, but most simply saw it as a pragmatic and sensible solution to the problem they confronted: they all thought that the accused was guilty of something; they differed as to the nature and extent of that guilt; and they therefore decided that ‘guilty’ verdicts on some of the charges would dispense justice, albeit perhaps rough justice, and avoid the expense of a retrial.⁴⁰

Juror corruption

3.27 Critics of the rule requiring unanimity argue that it encourages interference with jurors in order to secure a desired verdict, or ensure that no verdict is delivered.⁴² If one juror can be corrupted through bribery or intimidation, the remainder of the jury is rendered powerless. Although corruption can occur in any institution regardless of its model, it is said that juries operating under unanimous verdicts provide more opportunity for corruption as only one juror needs to be threatened or offered bribes. It is argued that, under a majority verdicts system, more than one juror would need to be approached, presenting greater logistical difficulties and increasing the risk of detection.⁴³

3.28 In Report 48, the Commission noted that the risk of juror corruption is countered by the power of prosecuting authorities to conduct a re-trial after a jury fails to agree on a verdict. If the corruption of jurors were a significant cause of hung juries, one or more of the following could be expected:

• A higher proportion of disagreements in the trials of wealthy or organised criminals who may be more likely to succeed in corrupting a single juror.
• Further disagreement at re-trials of cases where the original jury hung (in cases where corruption occurred it would be more likely to persist).
• A high conviction rate at re-trial, indicating that failure to agree was the result of one juror holding out due to corruption.⁴⁴

3.29 In Report 48, the Commission noted that “it is generally believed that juries which are deadlocked or having difficulty in reaching agreement are more likely than not in that position because a small minority are unwilling to convict on evidence which convinces the majority”.⁴⁵ This was found to be the case in the BOCSAR 1997 study.⁴⁶ As a result, an argument could be made that unanimity protects accused people who would otherwise be convicted at a greater rate than the prevention of wrongful conviction.

Unanimous verdicts are undemocratic

3.30 It is sometimes argued that unanimous verdicts are undemocratic since the will of a small minority can override the majority view and derail the verdict.⁴⁷ Accepting the will of the majority has become an accustomed feature in many facets of society, with critics of unanimity being of the view that this acceptance should also extend to the jury system.

INTRODUCING MAJORITY VERDICTS

Arguments in favour

Quicker and easier verdicts

3.31 Studies have shown that juries operating under a majority verdict system deliver their verdicts faster as they can stop deliberating when a majority of 10 or 11 is reached. Empirical evidence has also indicated that there is little difference in the outcomes of the cases considered by juries functioning under the unanimity and majority principles, apart from the faster deliberation time of juries delivering majority verdicts.⁴⁸ Further, studies suggest that most juries that form a clear early majority tend not to deviate from that view, whether the ultimate verdict is unanimous or a majority vote.⁴⁹ Based on this, the argument could be made that majority verdicts lose little in terms of accuracy in comparison with unanimous ones, but achieve savings in terms of time and cost.

Less pressure on jurors to achieve conformity

3.32 Under a majority verdict system, jurors would not be pressured to deliver a unanimous verdict, and so the problem of compromise verdicts would be avoided. In that sense, jurors would be empowered to reach a more “honest” decision. Studies conducted into jury deliberations revealed that jurors deciding issues on a majority basis felt less pressure to conform and more free to express their true opinions.⁵⁰

Negates effect of the “rogue” juror

3.33 One of the key arguments put forward by proponents of majority verdicts is the elimination of the problem of the rogue juror. Should a panel deciding a case under a majority verdict system encounter a “rogue” juror, the problem would be side-stepped, since the majority view of the remaining 11 jurors would decide the matter. It would be extremely unlikely to encounter more than one such juror on the same panel.

Consistent with civil proceedings

3.34 The Jury Act 1977 (NSW) permits majority verdicts in civil trials. Section 57 of that Act provides that where a jury in civil proceedings have retired for more than 4 hours and they are unable to agree on their verdict, a decision of 3 out of 4 jurors (in the case of a 4 person jury), or 8 jurors in the case of a 9-12 person jury, shall be taken to be the verdict of all. The introduction of majority verdicts in criminal trials would be consistent with that position.

Consistent with most other Australian jurisdictions

3.35 Majority verdicts are currently permitted in Victoria, Tasmania, South Australia, Western Australia, and the Northern Territory.⁵¹ This may indicate a trend toward majority verdict rules; the introduction of majority verdict rule in New South Wales would therefore be desirable in the interests of uniformity among State jurisdictions. Furthermore, in none of these jurisdictions is there any evidence that majority verdicts have produced injustice, nor has there been any call for reform.⁵²

Arguments against

Verdicts may be reached after insufficient negotiation

3.36 The negative side of achieving faster verdicts is the commensurate reduction in the quality of jury deliberations. The availability of majority verdicts reduces the need and opportunity for juries to deliberate issues as fully as they must do under a unanimous system. It is argued that this creates a greater likelihood of wrongful conviction or acquittal. While the early majority usually carries the day in terms of the ultimate verdict, it is not unknown for the majority to be persuaded by the minority view.⁵³ As noted above, the need to achieve uniformity promotes full, and often impassioned, discussions of issues considered from various perspectives. This has the propensity to be lost in a majority verdict as the jury stops deliberating when they achieve the required numbers, and can disregard the views of the minority.

3.37 In recognition of this defect, some jurisdictions have introduced minimum deliberation times before a verdict can be delivered. While minimum required deliberation periods may create the opportunity for discussion and argument, they do not ensure that the minority will be listened to, as the jury will inevitably be aware of its ultimate ability to return a majority verdict.⁵⁴

Contrary to the required standard of proof

3.38 This is the inverse of the argument advanced in favour of majority verdicts at para 3.3-3.6. Where there is a majority verdict to convict, a reasonable doubt about the guilt of the accused person exists in the mind of at least one member of the jury. The existence of a dissenting voice casts a shadow over the validity of the conviction.⁵⁵ Studies involving interviews with, and surveys of, ex jurors, have reported that, although majority verdicts often produced easier deliberations, some jurors felt less satisfied with the verdict, and less certain that justice had been served.⁵⁶

Negates the views of a small minority

3.39 As we pointed out at paragraph 1.21-1.23, not every juror who stands alone against a majority view can be considered a “rogue” or perverse juror. However, a majority verdicts system would not discriminate between irrational “rogues”, and those jurors who genuinely believe that the evidence points to the opposite verdict from the one favoured by the remaining 10 or 11 jurors. It is questionable whether, in the interests of justice, these soundly-based minority views should be disregarded. Further, as the New Zealand study has shown, had a system of majority verdicts been operating, the decision of the majority would have resulted in a questionable verdict.⁵⁷

Implies a distrust of the jury system

3.40 In its 1986 Report, the Commission noted that majority verdicts involve “a presumption that amongst twelve members of the community there is a definite likelihood that one of them will be either corruptible or incompetent”.⁵⁸ This can create the impression of uncertainty, which may undermine public confidence in the justice system.⁵⁹

Negligible effect on reducing hung trials

3.41 Surveys which have been conducted in other jurisdictions have found that juries that begin with a 10:2 or 11:1 split tend to reach a unanimous decision, whilst a jury initially split 7:5 or 6:6 will not reach a 10:2 majority verdict, let alone unanimity.⁶⁰ As noted in Chapter 2, studies by BOCSAR have indicated that, of the estimated 8% of criminal cases that hang each year, 57% of those jury disagreements involved three or more dissentient jurors. As such, the introduction of majority verdicts based on 11:1 or 10:2 splits would make no difference to these cases.⁶¹ Taking into account the constitutional requirement that verdicts in trials of Commonwealth offences must be unanimous, BOCSAR estimates that the introduction of majority verdicts would only lead to the resolution of an additional 1.7% of all NSW criminal cases that involve juries.⁶²

THE COMMISSION’S VIEW

3.42 As can be seen from the above discussion, there are strong arguments for and against both unanimous and majority verdicts. In some cases, those arguments balance each other out. For example, on the one hand, majority verdicts would probably result in quicker verdicts and may reduce the incidence of hung juries. On the other hand, juries may hang for good reasons, and usually hang with more than one or two dissentients. The argument that unanimous verdicts are less democratic than majority verdicts can be balanced by arguing that unanimity allows for greater participation of jurors and the fact that each vote actually counts. Similarly, the view that unanimity forces compromise verdicts brought on by the pressure to reach agreement is countered by the argument that majority verdicts are, by their very nature, a compromise of a different sort.

3.43 Perhaps the strongest argument against unanimity is the higher rate of hung juries than occurs in systems operating under a majority verdict rule. Hung juries do represent a barrier to the effective administration of justice, and should be avoided if possible. However, while the implementation of measures aimed at reducing the number of hung juries is a valid and worthwhile goal, it is unlikely that any strategy, short of introducing majority verdicts based on a bare majority of a single vote, would completely eliminate hung juries. As the Commission noted in Report 48, it “is to be expected that there will be a small number of cases in which 12 individuals drawn at random from a heterogenous community such as that which exists in New South Wales will not be able to agree”.⁶³

3.44 It is also questionable whether the complete elimination of hung juries is a laudable aim in the interests of justice. When considering the issue of hung juries, it is easy to lose perspective and view all deadlocked juries as necessarily bad. Disagreement among jurors can force the evidence to be viewed from different perspectives, and leads to more thorough investigation of the issues. In some circumstances, those disagreements can be resolved and a verdict can be delivered. In others, no agreement can be reached and the jury hangs. Where a jury hangs because of confusion or misunderstanding about the evidence and the law, there are measures to assist juror comprehension that can, and should, be introduced, which would hopefully avoid a deadlock in these cases. We discuss these strategies in Chapter 4. However, evidence from research suggests that many juries hang because they simply cannot, on the evidence presented, favour one side over the other. In these situations, it is preferable in the interests of justice that the trial concludes with a hung jury rather than an unsafe verdict. The Commission is of the view that this would be the case regardless of whether one juror or seven jurors remained genuinely unconvinced.

3.45 The argument concerning hung juries is often paired with the notion of the rogue juror, with proponents of majority verdicts arguing that eliminating the need to consider the views of all jurors evades the problem and results in fewer hung juries. There is no doubt that the derailment of a trial because of the actions of a single juror who holds a prejudiced view, and who stubbornly refuses to consider the evidence or the opinions of other jurors, is contrary to any sense of justice. However, the evidence to support the view that hung juries are wholly, or even significantly, caused by the recalcitrance of a rogue juror, simply does not exist. The blanket introduction of majority verdicts to enable the views of one or two jurors to be overlooked in every case, to redress a problem that occurs in a handful of cases is, in our view, an inappropriate solution to an ill-defined problem.

3.46 As discussed throughout this Report, research has repeatedly indicated that most hung juries do so on the basis of fairly evenly divided votes. Consequently, the introduction of majority verdicts based on an 11:1 or 10:2 split would potentially affect less then half of all hung juries. Furthermore, there is no guarantee that the remaining juries would deliver a verdict even if majority rule were permitted. As was found in the New Zealand study, other jurors besides the “rogue” may have misgivings concerning the evidence, and may speak up rather than deliver an unsafe verdict.

3.47 In Chapter 4, the Commission recommends further research be conducted into the jury system as a whole to provide a clearer picture of the strengths and weaknesses of juries in New South Wales. That research could investigate reforms such as better screening of jurors during the empanelling process and the efficacy of having reserve jurors, which would assist in alleviating the problem of the rogue juror without overturning the requirement of unanimity.

3.48 There is a large degree of irony in the debate over majority verdicts. On the one hand, its aim is ostensibly to overcome the biggest perceived weakness of the current jury system: namely, that verdicts cannot be delivered when one or two jurors do not agree with their fellow panel members. However, allowing the views of one or two jurors to be disregarded, and the majority view to carry the day, potentially strikes at the very strength of the jury system: being the fact that all jurors can discuss, assess and reconcile their differing views to reach a common conclusion beyond reasonable doubt. The strength of the jury is based on the coming together of 12 individuals, each with his or her own beliefs, values and experience, to judge the guilt or innocence of one or more of their peers. Where each of those 12 individuals reaches a conclusion based on a genuine assessment of the evidence, each one of those 12 views needs to be respected. Where one or two of those views can be ignored because they differ from the rest, then the true significance of the jury as an instrument of peer judgment is lost.

3.49 Consequently, the Commission does not consider that the case for introducing majority verdicts has been sufficiently made out at this time. Although some of the arguments in favour of majority verdicts are strong, we believe they are outweighed by those in favour of unanimity. Further, there is no convincing evidence from majority verdict jurisdictions to prove its advantages. While the rate of hung juries in those jurisdictions is apparently lower,⁶⁴ there is no indication of the soundness of, or juror or judicial satisfaction with, the verdicts being delivered.

3.50 In particular, the symbolic nature of unanimous verdicts should not be overlooked:

The sense of satisfaction obtainable from complete unanimity is itself a valuable thing and it would be sacrificed if even one dissentient were overruled. Since no one really knows how the jury works or indeed can satisfactorily explain to a theorist why it works at all, it is wise not to tamper with it until the need for alteration is shown to be overwhelming.⁶⁵

[T]he considerations involved in unanimity versus non-unanimity in jury deliberations are not simply whether or not the actual verdicts are significantly altered. This appears not to occur, at least on a large scale. What may well be altered is the belief on the part of the jurors that they have deliberated until all persons have agreed, that they feel that the verdict was appropriate, and that they have a sense that justice has been administered. If the jurors themselves feel that these values have not been implemented, the very important symbolic function of the trial by jury may suffer, not only for the jurors themselves, but for the community at large.⁶⁶

RECOMMENDATION 1

The Commission recommends that the system of unanimity should be retained.

1. See Law Society of New South Wales, Submission; Judge G D Woods, Submission. See also Devlin at 56.

2. (1993) 177 CLR 541.

3. (1993) 177 CLR 541 at 553.

4. P Alcorn, Submission; F Hum, Submission; and J Anderson and T Duffy, Submission. See also Young, Cameron and Tinsley, Preliminary Paper 37(2) at ch 9.

5. Law Society of New South Wales, Submission; His Honour Judge S Walmsley, Submission; His Honour Judge P Berman, Submission; and Redfern Legal Centre, Submission. See also Young, Cameron and Tinsley, Preliminary Paper 37(2) at 47.

6. F Hum, Submission; and J Anderson and T Duffy, Submission. Also, see discussion of studies into jury deliberations at para 2.34-2.36.

7. Nemeth at 55. See also para 2.35 and para 2.39.

8. Nemeth at 55. See para 2.34-2.35.

9. Cheatle v The Queen (1993) 177 CLR 541.

10. Report 48 at para 9.41.

11. See para 2.3.

12. See Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 9.10-9.13 and 9.16.

13. Report 48 at para 9.17.

14. Judge G D Woods, Submission; P Zahra, C Craigie, and A Haesler, Submission; J Phelan, Submission; and His Honour Judge K Shadbolt, Submission.

15. See para 2.5 and 2.43.

16. Director of Public Prosecutions, Submission.

17. See para 2.3.

18. Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 9.13. The juries in the remaining two trials hung due to a single hold-out juror: see para 2.45-2.46 and 3.39.

19. Hannaford-Agor, Hans, Mott and Munsterman (2002) at 14.

20. Hannaford-Agor, Hans, Mott and Munsterman (2002) at 7.

21. Young, Cameron and Tinsley, Preliminary Paper 37(2) at p 48.

22. Report 48 at para 9.43.

23. (1993) 177 CLR 541.

24. Judge G Woods, Submission; and J Willis, Submission; Law Society of New South Wales, Submission; and Judge J Nicholson, Submission.

25. M Finnane, Submission .

26. Australian Institute of Criminology, Submission; The Law Society of New South Wales, Submission; P Zahra, C Craigie, and A Haesler, Submission; J Hulme, Submission; M Finnane, Submission; Mr Justice D Kirby, Submission; S Walmsley, Submission; Her Honour Judge M Latham, Submission; Mr Justice G James, Submission; Mr Justice Studdert, Submission; P Alcorn, Submission; Mr Justice B Sully, Submission; J Willis, Submission; and J Anderson and T Duffy, Submission.

27. Report 48 at para 9.1.

28. His Honour Judge M Finnane, Submission.

29. See para 1.34.

30. See statistics at para 2.2-2.24.

31. Director of Public Prosecutions, Submission; His Honour Judge N J Rein, Submission.

32. See Report 48 at para 9.31-9.32.

33. Devlin at 56.

34. Young, Cameron and Tinsley, Preliminary Paper 37(2) at p 70.

35. Director of Public Prosecutions, Submission; Mr Justice G Barr, Submission; and The Hon Justice R O Blanch, Submission.

36. Director of Public Prosecutions, Submission. The Commission offers its views on the rogue juror issue in chapter 4.

37. The Hon Justice RO Blanch, Submission.

38. Report 48 at para 9.6 and para 9.25-9.26.

39. Chesterman, Chan and Hampton at para 408-416.

40. Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 9.7.

41. Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 9.8.

42. Mr Justice J Dunford, Submission.

43. See Report 48 at para 9.27-9.29.

44. Report 48 at para 9.28.

45. Report 48 at para 9.9.

46. BOCSAR 1997 study at 2-3.

47. Report 48 at para 9.14.

48. See para 2.37-2.38. However, see the Commission’s views on the need for caution with regard to the studies into jury deliberations at para 2.47-2.54.

49. See para 2.28-2.30.

50. See para 2.39-2.40.

51. See para 2.8-2.12.

52. Director of Public Prosecutions, Submission; and G Hillier, Submission.

53. See para 2.30.

54. Young, Cameron and Tinsley, Preliminary Paper 37(2) at 47.

55. Redfern Legal Centre, Submission; J Willis, Submission; F Hum, Submission; D Hamer, Submission; and J Anderson and T Duffy, Submission.

56. See para 2.34-2.35 and 2.39-2.40.

57. See para 2.45.

58. Report 48 at para 9.42.

59. Report 48 at para 9.39. See alao P Zahra, C Craigie, and A Haesler, Submission; His Honour Judge P Berman, Submission; Redfern Legal Centre, Submission; and J Anderson and T Duffy, Submission.

60. Report 48 at para 9.24.

61. See para 2.2.

62. BOCSAR 1997 study at 4.

63. Report 48 at para 9.16.

64. See para 2.2-2.24 for a discussion of hung jury rates and the inferences that can be drawn from those figures.

65. Devlin at 57.

66. Nemeth at 55-56.