I. INTRODUCTION

8.1 In this chapter we consider a number of proposals which have a particular bearing upon how satisfactory a jury’s verdict will be. Whilst any reform should be directed at making verdicts satisfactory in the broad sense of being conducive to the aims of the general principles outlined in Chapter 1, what we have in mind in this chapter is the more specific goal of accuracy in the ultimate verdict. Procedures which assist jurors to address the real issues and to participate as fully as possible in the criminal trial process are to be encouraged. Procedures which create confusion or doubt as to the jury’s task, whether for the jurors, the participants in the case or the general public, should be avoided.

8.2 We also consider that practices which lead to unfounded speculation as to whether the jury arrived at the correct verdict should be avoided provided that in so doing there is no interference with the jury’s function of being the ultimate arbiter of the factual issues in a criminal case.

II. DELIBERATIONS

A. Separate Deliberations in Joint Trials

Recommendation 68: It would be good practice, where there are several counts or several accused people charged in an indictment, If the judge were to consider exercising the discretionary power to require the jury to consider verdicts separately on individual accused people or individual charges or both. The Crimes Act 1900 should be amended to permit separate addresses by counsel where this procedure is followed.

8.3 A trial may be made complex by the fact that there Is a large number of accused people or that multiple charges are included in the indictment against a single accused person. Complexity may be caused by a combination of both factors. In some cases the avoidance of unnecessary complexity may be best achieved by conducting separate trials. In those cases where this is not done the trial judge may nevertheless instruct the jury as to individual charges or individual accused people or both and then ask the jury to deliberate separately on specific charges or a particular accused person. This practice was recently considered by the Queensland Court of Criminal Appeal¹ in a case involving an indictment which charged 98 counts against one accused person. After summing up to the jury on matters applicable to all counts, the trial judge summed up in detail on a number of separate charges and took verdicts in respect of those. If a verdict was returned late in the day, the jury was allowed to separate until the next morning when the summing-up was resumed in respect of another group of charges. There were, in all, 11 separate retirements by the jury and the summing-up occupied 11 days. The Court of Criminal Appeal referred to a number of cases in which the summing-up in a joint trial of people accused of conspiracy had been split. The jury is by this means required to consider its verdict in the case of one accused person before retiring to consider its verdict in the case of others.² Whilst no authorities were cited, where there was a separate summing-up in respect of particular counts against one accused person the Court held that there was no difference in principle and that, in a suitable case, the trial judge could adopt such a procedure. We consider that this power may in some cases be a valuable means of ensuring that a complex case is efficiently presented to a jury.

B. Length of Deliberation: A Minimum

Recommendation 69: Section 56 of the Jury Act 1977 should be amended to provide that a jury which is not likely to agree on its verdict may be discharged at any time at the discretion of the judge.

8.4 Where the jury in criminal proceedings has retired for more than six hours the judge may discharge the jurors if he or she finds, after examination on oath of one or more of them, that they are not likely to agree on their verdict.³ There is no maximum period of deliberation nor is there any obligation on the judge to inform the jury about the discretion to discharge. The six hour period is quite arbitrary. It has no reference to the complexity of the case. In some cases, it will be too short, in others too long. We have been informed that some judges in fact take the view that the legislative provision requiring a minimum deliberation period of six hours is not mandatory. They have accordingly discharged a jury within the six hour period in appropriate cases.

8.5 Cases arise from time to time where, in a trial of comparative simplicity, the jury announces shortly after being sent out to consider its verdict that it is irreconcilably deadlocked. Obviously there will be cases where the trial judge should ask the jury to make further attempts to reach a verdict. But equally there will be cases where it would be quite apparent that the rule prescribing a six hour minimum period of deliberation simply operates to oblige the jury to spend a lengthy and fruitless period awaiting the time when they may be discharged. There have been instances where a jury announced its inability to agree late in the day or late in the week, and, when Informed that they had to continue their deliberations, came back shortly after with a verdict.⁴ The existing rule, therefore, can exert undue pressure on the jury. This may result in the capitulation of one or more jurors in circumstances which suggest that the ultimate verdict may be unsatisfactory. A judge should be permitted to exercise his or her discretion in the matter without the restriction of a minimum time period. There are a number of factors which need to be taken into account in exercising that discretion. It is necessary that some serious and sustained effort be made to reach agreement. On the other hand, the views expressed by the jury as to the prospects of agreement should be given considerable weight.

C. Length of Deliberation: A Maximum

Recommendation 70: The maximum time during which a jury may be required to consider Its verdict should continue to be at the discretion of the judge.

8.6 The time for which it is reasonable to have a jury consider its verdict will vary according to the length and complexity of the trial itself. In one case the jury deliberated over eleven days before reaching verdicts at a trial of several people accused of conspiracy.⁵ The trial had lasted approximately three months. At no stage during the time they were deliberating did the jury indicate or imply that they were having difficulty in reaching a verdict in the sense that it appeared unlikely that they would be able to agree. This was apparently an extraordinarily conscientious jury which regarded the prolonged time as necessary to consider fully the large amount of evidence presented in the case and to complete their deliberations. This case may be contrasted with the jury deliberations in the case of Gallagher⁶ recently decided in Victoria. In that case the jury indicated at an early stage of their deliberations that they were having difficulty reaching a verdict and that it was indeed likely that they would be unable to agree. The judge kept the jury for eight days before they reached a verdict. The accused person had been charged on an indictment containing 43 counts. He was found guilty of 23 and not guilty of 20. The Full Court, sitting as a Court of Criminal Appeal, quashed the convictions and ordered a retrial on the ground that the length of time during which the jury was required to consider its verdicts was oppressive and the verdicts in consequence unsatisfactory. Despite the occasional occurrence of cases like this, we do not consider that imposing fixed maximum time limits on jury deliberations is justified. The matter is best left to the discretion of the judge, guided and controlled by appellate court rulings.

Ill. THE VERDICT OF THE JURY

A. Delivery of the Verdict

Recommendation 71: The Jury Act 1977 should be amended to provide that the verdict of the jury be verified by each member of the jury signing a document which records the verdict. This document should become part of the official record of the trial.

Recommendation 72: The Jury Act 1977 should be amended to provide that the practice of polling the jury to determine the verdict of each individual juror should not be used unless the trial judge considers it necessary.

8.7 At present the verdict of the jury is required to be announced in court by the person currently known as the foreman.⁷ After he or she announces it, the remainder of the jury is asked the following question.

Members of the jury, you have found the accused (named) (guilty or not guilty as the case may be). So says your foreman, so say you all?

The jurors are then expected to acknowledge this. While a jury can correct its verdict before being discharged,⁸ it cannot later return to court to plead that the verdict was given under a misapprehensions.⁹ It is apparently open to counsel to require each juror to be asked individually what his or her verdict was, or whether he or she agreed with the verdict delivered by the foreman. This is known as “polling” the jury.¹⁰ This practice is rare in New South Wales.

8.8 The New South Wales Bar Association has made the following submission to the Attorney General.

When taking a verdict of guilty the Clerk of Arraigns should question each juror to ensure that there is in fact unanimity. The present perfunctory question addressed to the whole jury (“so says your foreman, so say you all”) is not helpful, and in view of recent events a clear question to each juror would help avoid error, and later speculation.¹¹

The topic raised by the Bar Association was referred to in Milgate’s Case, In particular in the judgment of the Chief Justice who said:

. . . the Clerk of Arraigns’ formula on the taking of a verdict should not be expressed in a perfunctory way nor allowed to appear as a mere statement of an assumed or concluded state of affairs, but should be clearly interrogative of the members of the jury. Indeed, some thought might well be given to the modernization of its terms to remove any possibility of misunderstanding or inadvertence.¹²

8.9 The “recent events” to which the Bar Association submission makes reference are three instances where jurors have spoken to representatives of the media concerning the deliberative processes of the jury. In each of these cases there was a guilty verdict following trials that received very considerable publicity. In at least two of the cases the jurors spoke out after there had been public criticism of the verdict and in all three cases the statements made suggested, in part, that the juror involved had not truly or voluntarily acquiesced in the verdict.¹³ Claims of this kind would certainly be less likely to be made or, if made, given as wide media publicity if the practice advocated by the Bar Association was mandatory. We return to the topic of disclosure of the jury’s deliberations in Chapter 11.

8.10 In our Discussion Paper (para 9.4) we proposed that each member of a jury in a criminal trial should be polled by the presiding judge to ensure that the verdict is unanimous. Also mentioned was an alternative procedure, namely to require each juror to sign a document which is a formal record of the verdict. The submissions which we received on this issue generally indicated the need to take steps such as these to ensure that the verdict of the jury was that of all its members.

8.11 We believe that there should be a change from the present practice. The procedure requiring the members of the jury to sign a document formally recording the verdict is generally used in criminal trials in the United States. We consider it to be preferable to “polling” the jury. Polling would clearly place a strain on the members of the jury by requiring them to make a personal and public statement of their verdict. For some people, and particularly in some cases, this would be an onerous duty. We consider that the objective of ensuring the verdict is the verdict of the jury can be effectively achieved by the alternative procedure. We would stress that the formal record of the verdict should remain with the court papers and that it should not be supplied as of right to an accused person for the purpose of an appeal. This practice, which is followed in Western Australia, has led to the harassment of jurors after verdict (see para 5.5).

8.12 The recommendation regarding polling follows from our suggestion to require the jury to sign a formal document recording their verdict. If the latter were to be implemented, there would not be any justification for counsel for either party having the right to demand that the jury be polled as to its verdict. There may, however, be circumstances where It is desirable. If, for example, one or more of the jurors appears at the trial to disagree openly with the verdict as announced, polling may be necessary. For this reason we do not consider that the practice of polling the jury should be abolished. The decision as to whether it should be used is best left to the discretion of the judge.

B. The Recommendation for Mercy

Recommendation 73: The right of a jury to add a recommendation for mercy to a verdict of guilty should continue to be available. It should continue to be the practice that the jury should not be informed of this right, either by the judge or counsel, unless the jury asks whether it may qualify its verdict In this way.

8.13 A jury is currently entitled to add a rider recommending mercy to its verdict of guilty. However, a recommendation of this kind is not legally binding on the judge when sentencing.

The recommendation of a jury for leniency should always be treated with respect and careful attention. It is a recognized feature of our legal system. But a recommendation simpliciter is, after all, a recommendation only, and the Judge, on whom falls the sole responsibility of measuring the punishment within the limits assigned, must consider for himself how far it is consistent with the demands of justice that he should accede to the recommendation. But that is all.¹⁴

It is, however, usually taken into account by judges when determining sentence. Neither counsel nor the judge may expressly invite a jury to add a recommendation for mercy.¹⁵ Any recommendation for mercy is not itself regarded as part of the verdict.¹⁶ Indeed, under the existing law, the finding of facts relevant to the proper exercise of the sentencing discretion falls within the province of the judge, subject only to the qualification that the view he or she adopts must be consistent with the verdict or plea.¹⁷

8.14 The Law Reform Commission of Canada has proposed that the jury’s prerogative to recommend mercy should be abolished and that the jury should be instructed that it has no such prerogative.¹⁸ The reasons for this proposal were, firstly, that a juror reluctant to concur in a guilty verdict might be persuaded by the offer of the majority to recommend mercy; secondly, that It Is not part of the jury’s role to influence sentence; and thirdly, that any suggestion from the jury would be made in ignorance of factors relevant to the sentencing process. As we pointed out in our Discussion Paper (para 9.5) it might, on the contrary, be argued that a jury which has heard the evidence and is satisfied beyond reasonable doubt of the guilt of the accused person should be entitled to signal its recognition of mitigating factors. We invited comment as to whether the jury should continue to have the ability to recommend mercy, and, If so, whether it should be so advised in the judge’s summing up.

8.15 The response from those who commented on this issue has been overwhelmingly in favour of retaining the right of a jury to make a recommendation for mercy. Although many commentators also thought the jury should be informed of their right to add a recommendation for mercy, we are concerned that the right might well be a temptation to a jury to reach a compromise verdict of guilty. If that were done it would be unfair and the verdict might be considered unsatisfactory. In order to avoid this consequence, we recommend that the jury should not be informed of this right unless it asks. The role of the recommendation for mercy clearly raises the issue of the respective roles of the judge and jury on the question of sentence. The question is whether, and if so to what extent, the judge should be bound to take a recommendation into account. This issue is discussed in paras 8.16-8.20 and will be given further consideration when we examine the subject of sentencing at a later stage of the Criminal Procedure reference.

C. Clarifying the Factual Basis of the Jury’s Verdict

8.16 The questions of fact at issue between the parties in a criminal trial often, if not usually, involve matters which are of relevance to the determination of sentence. In some cases the verdict of the jury will not reveal the factual basis on which it reached that verdict. Where the verdict is guilty, the judge is required to determine the appropriate penalty on the basis of his or her own conclusions as to the relevant facts in the case. In the course of its deliberation as to guilt the jury may have reached a concluded view as to the factual basis of its verdict. It has been suggested that jurors should be questioned as to the basis on which a guilty verdict has been returned where it is both ambiguous and relevant to sentence. This is an accepted practice in those cases of murder where there is evidence both of provocation and of diminished responsibility and a verdict of guilty of manslaughter is given. The risks involved in the practice have been adverted to by Mr Justice Stephen.

Care must no doubt be taken to ensure both that the foreman clearly understands the nature of the question and that he is fully capable of answering it, that is, that he in fact knows what are the grounds which have led his fellow jurors to their verdict. If there has been no unanimity as to grounds or if individual jurors have not disclosed, and may, indeed, not be prepared to disclose, their grounds the foreman cannot of course, supply the information sought. It should be made clear to him that his function is only to answer to the best of his ability the question asked, ensuring that, if answered, it does truly reflect the jury’s unanimous view. The question should, of course, be so confined as to ensure that it does not invite any spontaneous general disclosure of the jury’s deliberation.¹⁹

8.17 In our Discussion Paper (para 9.17) we tentatively suggested that, where alternative bases for a conviction which have different consequences for sentencing are left to a jury, the judge should endeavour to determine which basis the jury accepted. This would be a departure from the common law principle reaffirmed in Kingswell v The Queen where it was said:

If there is a trial by jury the ordinary incidents of such a trial will apply; the judge will continue to exercise his traditional functions, and, for the purpose of imposing a sentence within the limits fixed by the law, will form his own view of the facts, provided that that view is not in conflict with the verdict of the jury.²⁰

8.18 The issue is whether the existence of facts relevant to sentencing but not to conviction should in some circumstances be decided by the jury rather than by the judge. There is strong judicial support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform.²¹ The finding of facts relevant to the proper exercise of the sentencing discretion would then fall within the province of the judge, subject to the qualification that the view he or she adopts must be consistent with the verdict or plea.²² The responses received by the Commission on this question generally favoured the implementation of the procedure set out in the Discussion Paper.

8.19 Those who support this proposal, or some variant of it, see it as a means of ensuring that the basis for determining the appropriate sentence is not inconsistent with the factual findings made by the jury. Those who oppose it are concerned with the practical difficulties of enquiring into the details of the jury’s deliberative process and see it as likely to give rise to mischievous attacks upon the ultimate finding of guilt embodied in the jury’s verdict. Whilst the Commission considers that there is merit in the proposition that, since it is the jury’s role to determine the facts, its findings should be reflected in the determination of sentence, we are not at present agreed upon the means by which the factual finding of the jury should be ascertained.

8.20 The Commission will examine this topic when it comes to deal with that part of the Criminal Procedure reference concerned with sentencing. Since there is some division of opinion on this question, we have decided to defer making any recommendation until that time. We also leave as a matter for further consideration the general question of the jury’s role, if any, in the sentencing function of the criminal courts.

IV. DIRECTED VERDICTS

A. Directed Verdicts of Acquittal

Recommendation 74: Legislation should provide that the judge has the power to acquit the accused person and discharge the jury In those cases where the judge would be entitled to direct the jury to find the accused person not guilty.

8.21 When a judge is satisfied, having considered the evidence presented in the case for the prosecution, that it is not, as a matter of law, a sufficient basis for a conviction, the judge should direct the jury to enter a verdict of not guilty.²³ The current procedure to effect this result involves the judge directing the jury in the following terms “Do you at my direction find (the accused person) not guilty of (the offence charged)?’ The foreman of the jury then says “Yes”, and the accused person is discharged. In the unlikely event of the jury refusing to follow the judge’s direction, the judge has the power to discharge the jury without verdict. We consider that the current rule requiring a judge to direct the jury to acquit is an unnecessary formality.²⁴ It derives from the fact that at the beginning of the trial, the accused person is placed “in the charge of” the jury. In strict law, he or she cannot be released from their charge until the jury has either been itself discharged or has announced a verdict. When a judge concludes that, as a matter of law, there must be an acquittal, the judge should be empowered to enter that verdict. It should operate in the same manner as an acquittal by a jury. We consider this to be preferable to the artificial procedure of the judge giving the jury directions which it may in some cases resent. To this end, we believe that judges should, as a matter of courtesy, continue to follow the practice of explaining to the jury the meaning of the decision to order that the accused person be acquitted.²⁵ We should note that the law as to the circumstances in which it is appropriate for a judge to direct an acquittal is uncertain. This issue will be dealt with at a later stage of the Criminal Procedure reference. The present recommendation is intended to be a purely procedural provision which does not involve a consideration of the questions of general significance raised by this issue.

B. Directions to Convict

Recommendation 75: Legislation should provide that the judge should not direct the jury that they must find the accused person guilty.

8.22 It has been held by a majority of the High Court that it is proper in some circumstances for a judge to direct a jury that its verdict should be guilty. In Yager v The Queen²⁶ Chief Justice Sir Garfield Barwick said:

It is a misconception, in my opinion, to think that when all the material has established, without dispute as in this case, all the ingredients of an offence, a presiding judge cannot so inform the jury and tell them that it is their duty to return a verdict of guilty.²⁷

Mr Justice Mason said:

The learned judge was therefore in my opinion entitled to direct the jury to return a verdict of guilty; it would not have been proper for him to invite the jury to consider whether they should accept or reject the formal admission; to do so would have been to invite them to deal with a matter which was not an issue at the trial.²⁸

Mr Justice Stephen expressly agreed²⁹ with the judgments of the Chief Justice and Mr Justice Mason. The opposing view was put forward by Mr Justice Gibbs, as he then was, and Mr Justice Murphy³⁰ in the same case. Mr Justice Gibbs said:

Since [1670]³¹ it has been a fundamental principle of our constitutional law that a juror may not be punished for returning a verdict against the direction of the court, and hence may not be intimidated into returning a particular verdict. When the jury are asked to return a general verdict, they have the right and duty to determine, not only the facts of the case, but the guilt or innocence of the accused. There are cases - they are exceptional cases - in which a judge may ask a jury to reconsider their verdict, but if they insist upon their verdict the judge is bound to receive it: Reg v Meany.³² It follows from these principles, in my opinion, that a judge should never go so far as to direct a jury to bring in a verdict of guilty. So to direct them would be to usurp their function and to suggest to them, wrongly, but with all the weight of judicial authority, that the responsibility of returning a verdict is not theirs alone. Directions of that kind would tend to weaken an ancient and valuable safeguard in the criminal law.³³

This statement is in line with English authority to the effect that it is necessary for the judge to leave it to the jury to bring in a general verdict.³⁴

8.23 The judgments of Mr Justice Gibbs and Mr Justice Murphy recognise that the function of the jury transcends the adversary system of trial procedure. It is not for the parties in the trial, nor for the judge, to determine what the facts are. it is a matter for the jury to find the facts and to say whether the accused person is to be convicted of a criminal charge. It may be argued that the jury is not entitled, having found particular facts to be proved beyond reasonable doubt, to bring in a verdict which is inconsistent with those findings. This point has been dealt with by the High Court in another case.³⁵ The various judgments In that case confirm the power of the jury to return such a verdict. Whilst the Court was unanimous in holding that the jury would be acting improperly if it did so, it was also unanimous in holding that it is within the exclusive province of the jury ultimately to decide what the verdict is.

V. THE JURY IN COMPLEX CASES

A. Evidence of a Complex, Scientific or Technical Nature

Recommendation 76: Where the facts of the case or the charge being tried make it likely that evidence of a complex, scientific or technical nature might be called, the right to trial by jury should not be affected.

8.24 In the United Kingdom the Fraud Trials Committee was established under the chairmanship of Lord Roskill to consider whether changes should be made to the existing law and procedure in cases where the accused person is charged with offences of fraud.³⁶ That Committee recommended in its final report that, in some complex fraud cases which fall within certain published guidelines, trial by judge and jury should be abolished.³⁷ It should, the Committee recommended, be replaced by trial before the Fraud Trials Tribunal. This body, it was suggested, should consist of a judge and two lay members selected from a panel of people who have experience of business dealings and the capacity to understand the kind of complex issues which arise in difficult fraud cases.³⁸ It was proposed that the determination of guilt should be made by a simple majority of the tribunal.³⁹ If there is a dissenting opinion it should not be disclosed.⁴⁰ It was expressly noted that the two lay members would have power to override the opinion of the judge on the question of guilt.⁴¹ The judge alone, however, would be responsible for determining sentence.⁴²

8.25 The grounds on which this radical proposal was made may be stated shortly. The Committee concluded that the overwhelming weight of evidence presented to it established that the legal system in England and Wales is incapable of prosecuting the perpetrators of serious frauds expeditiously and effectively.⁴³ The randomly selected jury was considered to be an inappropriate tribunal for the trial of complex fraud cases as:

. . . in almost every area of the law, society has accepted that just verdicts are best delivered by persons qualified by training, knowledge, experience, integrity or by a combination of these four qualifications. Only in a minority of cases Is the delivery of a verdict left in the hands of jurors deliberately selected at random without any regard for their qualifications. Thus, those who advocate that complex fraud trials should be conducted before a select, as opposed to a random, tribunal are arguing not that such cases should be treated in any special or unique fashion, but that they should be treated in a manner more akin to the way the vast majority of all other legal cases are treated today.

In our opinion the absence from the jury box in a complex fraud case, except by chance, of persons with the qualities described in the preceding paragraph seriously impairs the prospect of a fair trial.⁴⁴

We consider the reasoning in this passage to be flawed by the failure to distinguish between civil and criminal cases. The issue to be determined in a fraud trial, namely the criminal guilt of the accused person, is quite different to issues which may need to be determined in the resolution of civil litigation. The point is not that a “minority of cases” Is left to be decided by randomly selected and unqualified jurors but that all serious criminal matters are so decided. Furthermore, every case decided by a judge is decided by a person who is, as a rule, “unqualified” with respect to the discipline from which technical, scientific or complex evidence originates. Moves to take complex civil cases away from judges have been strongly resisted.⁴⁵

8.26 The Fraud Trials Committee was unable to conduct any direct research on jurors’ comprehension of actual fraud cases.⁴⁶ Many witnesses who gave evidence to the Committee asserted that many jurors are almost certainly out of their depth in trying to comprehend the evidence presented in complex fraud cases.⁴⁷ It was noted that the verdict of a jury may rest not upon a firm grasp of the evidence but upon an “overall impression of guilt or innocence in the minds of jurors.⁴⁸

8.27 There was one dissentient in the eight member committee. Mr Walter Merricks, a practising solicitor, felt that the majority of the Committee based its conclusions on inadequate evidence.⁴⁹ In his view the evidence available did not point unambiguously to the conclusion that jurors cannot and do not understand fraud cases.⁵⁰ Mr Merricks pointed to the Important consequences which flow from the use of a jury In a criminal trial.

The jury not only represents the public at the trial, its presence ensures a publicly comprehensible exposition of the case. There is the danger in trial by experts that the public dimension will be lost I do not think that the public would or should be satisfied with a criminal justice system where citizens stand at risk of imprisonment for lengthy periods following trials where the state admits that it cannot explain its evidence in terms commonly comprehensible.⁵¹

8.28 Mr Merricks then raised the issue that concerned many of the organisations and individuals who made submissions to the Committee, namely the appropriate tribunal to determine whether the conduct complained of is dishonest,⁵² the essential element of all serious fraud charges. The National Council for Civil Liberties crystallised the issue in its submission.

The decision to be made in fraud trials is in common sense and common honesty “was it a swindle?” Twelve ordinary citizens using their experience and common sense with guidance on the law are best equipped to answer that question.⁵³

In his dissenting opinion Mr Merricks concluded that entrusting the assessment of dishonesty to experts is dangerous. The standards to be applied in assessing honesty are those of ordinary people.⁵⁴

8.29 The recommendation to abolish the jury system in complex fraud cases made by the Fraud Trials Committee is by no means novel. In November 1978 a major report tabled in the New South Wales Parliament⁵⁵ recommended that trial by jury no longer be mandatory in relation to certain corporate and “white collar” offences.⁵⁶ It was proposed that the Attorney General, or a person nominated by him, might order that the trial of a person charged with such offences be held before a Supreme Court judge sitting without a jury.⁵⁷ This proposal was not adopted. However, legislation was passed enabling the summary trial of corporate offences with the consent of the accused person.⁵⁸ This legislation was essentially based on the findings made in the report. In 1984 the Attorney General of Hong Kong, Mr Michael Thomas QC, introduced a Bill Into the Parliament which proposed the abolition of trial by jury in complex commercial cases.⁵⁹ The jury would be replaced by two “adjudicators”, chosen for their expertise in financial affairs, who would sit with a Judge. The primary justification for this legislation was said to be the inability of a lay jury to avoid being confused by the complex evidence presented in cases of this kind. The Bill has not been passed. In 1985 the Law Reform Commission of Queensland suggested the adoption of a system of summary trial of commercial offences similar to that which exists In New South Wales, except that the consent of the accused person to that mode of trial would not be required.⁶⁰

8.30 We consider that the argument which has been put forward in support of the abolition of trial by jury in complex cases, particularly commercial and “white collar” crimes, is not compelling. It is invariably based on the assertion that jurors are incapable of understanding the evidence upon which prosecutions of this kind depend. We question the validity of that assertion. There is in fact very little evidence to show that jurors, or more accurately juries, do not have an adequate grasp of the relevant material on which their verdicts should be based. There is a strong body of opinion which holds that juries generally reach acceptable verdicts in these cases. This was recognised In the minority opinion of Mr Merricks.

Most judges and lawyers who made submissions to us thought that juries mostly reached the right result, or at least an understandable result.⁶¹

The majority of the Fraud Trials Committee expressed the orthodox argument about the inability of jurors to understand long and complex cases.

We have no doubt that most ordinary jurors experience grave difficulties in following the arguments and retaining in their minds all the essential points at issue, particularly in a long hearing of a complex character. This creates the serious risk either that the jury will acquit a defendant because they have not understood the evidence or will convict him because they mistakenly think they have understood it when they have in fact done little moral than applied the maxim ‘there’s no smoke without fire.⁶²

This statement was immediately followed by an acknowledgment that such evidence as is available does not support this proposition.

There is no accurate evidence which we have been able to obtain to suggest that there has been a higher proportion of acquittals in complex fraud cases than in fraud cases or other criminal cases generally. Nevertheless, we do not find trial by a random jury a satisfactory way of achieving justice in cases as long and complex as we have described. We believe that many jurors are out of their depth.⁶³

8.31 The Fraud Trial Committee’s conclusion was apparently based on research intended to discover the comprehension of individual jurors. Research into the effectiveness of juries, however, is unlikely to be of much value unless that research is carried out by questioning the jury as a collective group. It Is not good enough to interview 12 jurors independently and accumulate their individual knowledge and understanding of the case. They should be interviewed as a group so that their combined knowledge and understanding can be put to work in responding to each issue put to them. Research which finds that 12 individual jurors do not retain a thorough understanding of the case is not of itself conclusive of the fact that the same 12 people acting In unison will also lack a thorough understanding of the case. We do not feel that the lack of understanding of jurors has been demonstrated. On the contrary, it appears to us that the collective wisdom and experience of juries has enabled the jury system to adapt and meet the demands placed on it by trials involving complicated evidence.

8.32 The arguments in favour of retaining trial by jury in these cases are based on preserving the traditional role of the jury In the criminal justice system. In our view, the fundamental principles of criminal justice are best served by the jury system.⁶⁴ Community participation, the determination of guilt by reference to the standards of the general community, accountability and public acceptance of the criminal justice system are all features which would be lost if the jury were to be abandoned. Accordingly, we are not satisfied that the case against the jury system in complex cases has been made out.

B. The Presentation of Complex Information

8.33 We have suggested (Recommendation 45, para 6.28) that evidence of a scientific and technical nature should be presented to juries in a manner which maximises the prospect that the evidence will be understood by the jury. The problems which are believed to render trial by jury unsuitable in cases where evidence of this kind is prominent can best be met by improving the manner of presenting that evidence.⁶⁵ The responsibility is one which must be shared between the witness giving the evidence and the lawyer who is asking the questions. The prosecution case at the trial of Edward Splatt was based on various items of forensic evidence. In the course of his report the Royal Commissioner who inquired into the reliability of Mr Splatt’s conviction made the following remark:

The vital obligation which lies upon the testifying scientists is that they spell out to the jury, in non-ambiguous and precisely clear terms, the degree of weight and substance and significance which is or ought properly to be attached to the scientific tests and analyses and examinations as to which they depose; and specifically the nature and degree of any limitations or provisos which are properly appended thereto.

He went on to say that:

. . . the critical responsibility which rests upon legal persons is to ask such detailed and probing questions of the scientists as are most likely to elicit the type of evidence just mentioned.⁶⁶

The emphasis in jury trials should be on clarity and on simplification of the evidence presented. The Criminal Bar Association of the United Kingdom has recommended that adequate preparation and effective presentation are the most fruitful way to secure the comprehension of the jury in complex cases.⁶⁷

C. The Use of Specially Qualified Jurors

Recommendation 77: The qualifications of Jurors for jury service should not vary according to the subject matter of the trial. In particular, there should be no requirement that a person should have obtained a certain educational standard to qualify as a juror in the trial of a complex case.

8.34 The claim that a jury of citizens drawn randomly from the general community is probably incapable of understanding and applying the evidence given in a complex criminal trial has been referred to. In order to meet this objection, it has been suggested that the jury in a complex case should be drawn from a group of people who have particular qualifications which will enable them to understand the case. A jury which understands the evidence, so the argument runs. is more likely to bring in a just verdict based on the merits of the case than a jury which cannot follow the evidence. Arguments based on the level of comprehension of Jurors are ultimately speculative because there is no reliable information available regarding the “competence” of the jury system either generally or in particular cases. Since juries are not required to give reasons for their verdicts, and since the grounds on which they are reached are not usually divulged, there is no reliable way of knowing whether a verdict is rational. Moreover, in most cases the capability or qualifications of the jury to cope with the evidence in the case will never be known.

8.35 The concept of a jury of people with particular qualifications is not new. Special juries, comprised of people of high social rank, were abolished in New South Wales as recently as 1947.⁶⁸ The modern proposals for the establishment of special juries are based on different qualifications. A South Australian Committee has proposed that people with certain basic educational qualifications should comprise a special pool of people from whom could be chosen a jury to try cases which require an ability to understand expert evidence.⁶⁹

8.36 Special qualifications for jurors have been suggested as a means of meeting the demands of a complex commercial case. In such a case, It is argued, the sole criterion should be a standard of intelligence or education which demonstrates that the person has the ability to cope with complex evidence.⁷⁰ One author in the United States has suggested that special juries should be used in civil trials. The reasons advanced are equally relevant to criminal cases.

A jury composed of particularly qualified individuals could understand sophisticated concepts that might be beyond the ability of either a judge or a traditional jury. Jury confusion would be less of a problem than It is with jurors who are unfamiliar with the technical, financial and legal issues involved in much of today’s complicated litigation. There also would be less likelihood of an irrational verdict because the special jurors would be able to make a reasoned decision based on their understanding of the facts and the law.⁷¹

8.37 Notwithstanding the arguments in favour of special juries, we do not favour their introduction. The notion of a specially qualified jury is inconsistent with the principle that the jury should be representative of the whole community.⁷² There are dangers in creating different classes of jurors. Apart from it being undemocratic⁷³ there are practical difficulties, as has been pointed out.

The concept of ‘special juries’ involves there being a separate panel of jurors which In turn involves difficult questions such as who should be on such a panel and what qualifications and/or expertise would be required of such a potential juror. We consider this to be impractical and are doubtful whether there would be sufficient people with sufficient expertise readily available to make up such a ‘special jury’ panel. Furthermore, in our opinion, the proper role for such experts is not on a jury trying questions of fact but In the witness box giving evidence and explaining it.⁷⁴

8.38 The increased educational standard in the general community and the requirement that people must be able to read English to qualify for jury service should not be overlooked in this context. It Is arguable that the combination of these two factors renders it more likely that jurors will be able to understand the evidence in a complex case sufficiently well to be able to make a determination on the issue of guilt. We believe that to be so probable as to render the introduction of special juries unnecessary. It should be said again that the most effective means of increasing juror comprehension is to improve the means by which difficult evidence is presented to juries.

1. R v Fong [1981] QdR 90.

2. Id at 94.

3. Jury Act 1977 s56.

4. R v McKenna [1960] QB 411.

5. District Court of New South Wales, His Honour Judge Thorley, 4 August 1981. The Commission acknowledges the assistance of Mr D R Rofe, QC, Mr N R Cowdery and Ms C Rose. See also R v Fong [1981] QdR 90.

6. Unreported, Supreme Court of Victoria, Full Court, 7 October 1985.

7. In Recommendation 41 (para 6.23) we propose that this person should be called the jury’s representative.

8. The Queen v Eyers (1978) 19 SASR 244; The Queen v Cefia (1979) 21 SASR 171; R v Andrews (1985) 135 New Law Journal 1163.

9. Palmer v Crowle (1738) 95 ER 445; R v Athiajon and Clutten (1907) 7 SR (NSW) 713; Boston v W S Bagshaw and Sons [1966] 1 WLR 1135.

10. A Turner “Polling the Jurors” [1979] New Zealand Law Journal 155.

11. Letter from A M Gleeson QC, President, New South Wales Bar Association, 17 September 1985.

12. Milgate v The Queen (1964) 38 ALJR 162 per Barwick CJ.

13. A R Blackshield “After the Trial: The Free Speech Verdict” (1985) 59 Law Institute Journal (Vic) 1189.

14. R v Whittaker (1928) 41 CLR 230 at 240 per Isaacs J.

15. R v Black [1963] 1 WLR 1311.

16. R v Tappy [1960] VR 137; R v Wingrove (1936) 53 WN (NSW) 118.

17. Kingswell v The Queen (1986) 60 ALJR 17 at 31 per Gibbs CJ, Wilson and Dawson JJ.

18. Law Reform Commission of Canada The Jury (Report 16, 1982) p70.

19. Veen v The Queen (1978-79) 143 CLR 458 at 466.

20. (1986) 60 ALJR 17.

21. R v Larkin [1943] KB 174 at 176: R v Warner [1967] 1 WLR 1209 at 1213-1214; [1967] 3 AII ER 93 at 96; R v Gardiner [1981] Qd R 394 at 409.

22. R v Gardiner [1981] QdR 394 at 400; R v King [1979] VR 399 at 407; R v Harris [1971] VR 236 at 236-237; R v Webb [1971] VR 147 at 152-153; R v Bedington [1970] QdR 353 at 364; R v Hughes (1983) 49 ALR 110 at 122; R v Stehbens (1976) 14 SASR 240 at 245; R v DeSimoni (1981) 147 CLR 383 at 392, 396, 399; R v Laporte [1970] WAR 87 at 89;R v Kayal [1979] 2 NSWLR 117 at 12 1.

23. See generally Watson and Purnell Criminal Law in New South Wales: Indictable Offences Vol 1 para 1092. See also R v Prasad (1979) 23 SASR 161; R v Ling (1981) 6 A Crim R 429. For a related discussion see Mr Justice H H Glass “The Insufficiency of Evidence to Raise a Case to Answer” (1981) 55 Australian Law Journal 842.

24. Law Reform Commission of Canada The Jury in Criminal Trials (WP27, 1980) p145.

25. See generally Archbold Pleading, Evidence and Practice in Criminal Cases (41st ed 1982) para 4-385; R v Falconer-Atlee (1974) 58 Cr App R 348: R v Galbraith (1981) 73 Cr App R 124: R v Young (1964) 48 Cr App R 292; Law Reform Commission of Canada The Jury (Report 16, 1982) pp58-67.

26. (1976-1977) 139 CLR 28.

27. Id at 36.

28. Id at 46.

29. Id at 40.

30. Id at 48. See also Jackson v The Queen (1976) 50 ALJR 548.

31. Bushell (1670) 6 State Tr 999.

32. (1862) 169 ER 1368 at 1370.

33. (1976-1977) 139 CLR 28 at 38-39.

34. R v Farnborough [1895] 2 QB 484 at 486; R v Hendrick (1921) 15 Cr App R 152. See also R v Brown [1949] VLR 177 at 179; R v Tasker [1934) SASR 95. The only situation in which it is permissible for the judge to direct that a verdict of guilty should be entered is where the jury returns a special verdict finding particular facts and reserving the legal inference to be drawn from them for the judgment of the court. In such a case the judge Is not directing the jury to find the verdict. It has been said that special verdicts ought be found only in the most exceptional circumstances. See R v Dudley and Stephens (1884) 14 QBD 273; R v Bourne (1952) 36 Cr App R 125 at 127.

35. Gammage v The Queen (1969) 122 CLR 444. See also Beavan v The Queen (1954) 92 CLR 660.

36. Fraud Trials Committee Report (Chairman: Lord Roskill) (HMSO, 1986) p5.

37. Id para 8.51, Recommendation 82.

38. Id para 8.61, Recommendation 86.

39. Id para 8.69, Recommendation 96.

40. Ibid.

41. Id para 8.69.

42, Id para 8.71, Recommendation 97.

43. Id p1.

44. Id paras 8.23-8.24.

45. See eg Bar News, Summer 1985, p4.

46. See note 36, para 8.10.

47. Id para 8.29.

48. Ibid.

49. Mr Merricks’ note of dissent appears at pp 190-199.

50. See note 36 para C17 p195.

51. Id para C20 p 196.

52. See note 36 para C21 p 196.

53. The Times 12 December 1984 p2.

54. See note 36, para C21 p 1 96.

55. Department of the Attorney General, Criminal Law Review Division Report on Summary Prosecution in the Supreme Court of Corporate and “White Collar” Offences of an Economic Nature (1978).

56. Id para 4.2.

57. Id paras 9.1-9.2.

58. Crimes Act 1900 s475A. We discuss this provision more fully in para 10.39.

59. N Way “Growing Fracas Over Trial By Jury” Australian Financial Review 11 April 1985.

60. Law Reform Commission of Queensland Legislation to Review the Role of Juries in Criminal Trials (WP 28, 1985).

61. See note 36 para C18 p195.

62. Id para 8.34.

63. Id para 8.35.

64. See generally National Council for Civil Liberties (UK) Evidence to the Roskill Committee on Juries in Fraud Trials (1984).

65. B Selinger “Science in the Witness Box” Legal Service Bulletin June 1984 p108.

66. Report of the Royal Commission of Inquiry into the Conviction of Edward Charles Splatt (South Australia, 1984) p52.

67. Criminal Bar Association (UK) “Evidence to the Fraud Trials Committee” August 1984 p405.

68. Jury (Amendment) Act 1947 ss2,3,4. Special Juries were generally abolished in England in 1949. Special Commercial Juries in the City of London were retained until 1971; see Beresford v Royal Insurance Co Ltd [1938] 2 All ER 602; Young v Rank [1950) 2 KB 150.

69. Criminal Law and Penal Methods Reform Committee of South Australia Court Procedure and Evidence (Third Report, 1975) pp 101 - 102.

70. J R Sulan “Commercial Crime: Is Our Present Approach Adequate” Paper presented to the International Criminal Law Congress, Adelaide, 8 October 1985.

71. “The Case for Special Juries in Complex Civil Litigation” (1980) 89 Yale Law Journal 1155 p 1159.

72. J R Sulan, note 70 above, pp3l,32.

73. J H Phillips “Complex Commercial Prosecutions - Should Juries be Retained?” (1983) 57 Law Institute Journal (Vic) 1214.

74. See note 55 above, para 5.2.

75. Report of the Departmental Committee on Jury Service (Chairman: Lord Morris of Borth-y-Gest) (Cmnd 2627, 1965) para 243.

76. See note 36 paras 8.43, 8.44.