I. THE UNANIMITY REQUIREMENT

Recommendation 78: The verdict of a jury in a criminal trial should continue to be the unanimous decision of the individual members of the jury.

9.1 In accordance with the common law rule, criminal verdicts in New South Wales must be unanimous.¹ Unanimity is required in order to convict an accused person and also in order to acquit. The view of four members of the Commission (Mr Byrne, Mr James QC, Mr Mason QC and Her Honour Judge Mathews) is that this rule should be preserved. We consider this to be the only appropriate basis for the determination of guilt by a jury and do not believe that the need to change the existing rule has been demonstrated. Even if such a need did exist, we would not be satisfied that allowing a “majority verdict” of 11 of the 12 jurors would overcome the supposed defects of the present system. Mr Sackville is of the view that the introduction of majority verdicts is not needed because of the low incidence of jury disagreements. He does not have any objections to them in principle. Justice Roden considers that majority verdicts should be introduced at the present time.

A. The Origins and Effect of the Common Law Rule of Unanimity

9.2 Unanimity has long been considered an essential and fundamental part of jury trials. The existing rule Is of ancient origin. It appears to have been settled by the mid-fourteenth century that the verdict must be the unanimous opinion of the whole jury.² Hale emphasised the importance of unanimity describing it as ‘a basic feature of the common law relating to trial by jury³ Many other commentators have agreed.⁴

9.3 Whilst the requirement for unanimity is indeed ancient its origin is curious. An eminent legal historian has traced it to the fact that jurors were regarded originally as witnesses in criminal trials.

Bearing then in mind that the jury system was in its inception nothing but the testimony of witnesses Informing the Court of facts supposed to be within their own knowledge, we see at once that to require the twelve men should be unanimous was simply to fix the amount which the law deemed to be conclusive of a matter in dispute.⁵

9.4 The rule requiring unanimity has not always operated in conjunction with the practice of jury deliberation as we know it today. Harsh methods were applied to produce unanimity. There was at one stage a practice of starving jurors into agreement.⁶ The conventional direction given to bailiffs was to take the jury in charge and give them “neither meat, drink nor fire” until they are unanimous in their verdict. Pope summed up the impact of this practice in his couplet:

The hungry Judges soon the sentence sign and wretches hang that jurymen may dine.⁷

9.5 The common law requirement of unanimity means that neither a conviction nor an acquittal can be secured without the concurrence of the whole jury. The simplicity of this proposition, however, must be understood against the background of what happens in fact. Firstly, a judge may direct a jury that is having difficulty in reaching agreement that it is their duty to agree If they can honestly and conscientiously do so. It has been suggested that this should be done in the following terms:

[The judge reminds the jurors] that it is most important that they should agree if it is possible to do so: that, with a view to agreeing, they must inevitably take differing views into account; that if any member should find himself in a small minority and disposed to differ from the rest, he should consider the matter carefully, weigh the reasons for and against his view and remember that he may be wrong; that if, on so doing, he can honestly bring himself to come to a different view and thus to concur in the view of the majority, he should do so, but if he cannot do so, consistently with the oath he has taken, and he cannot bring the others round to his point of view, then it is his duty to differ, and for want of agreement, there will be no verdict.

It is everyday practice for a judge thus to exhort a jury to reach a verdict. There is nothing wrong in it, indeed it may be very proper he should do so, so long as he does not use phrases which import a measure of coercion . . . ⁸

Directions of this kind have been approved in New South Wales.⁹ They may be given at any time after the jury has indicated that it is having difficulty reaching agreement, and not only after the expiry of the six hour period specified in the Jury Act.¹⁰ The law allows considerable pressure to be placed on juries to encourage them to reach a unanimous verdict. Whilst the practice of starving the jury into agreement no longer applies, the judge may keep the jury deliberating for days if there is any prospect of a verdict being reached.¹¹

9.6 Secondly, it should be recognised that reasonable lay people may be expected to exert strong moral pressure on fellow jurors who alone are holding against a result which a large majority clearly favours. It has been said that ‘a Ioose acquiescence by the minority in the view of the majority for the sake of conformity would not merely be most undesirable but flagrantly wrong.¹² However, there is in practice a fine line between a dissentient juror who does not assent to a verdict but who agrees to allow u hat is in truth a majority verdict to be announced as if it were a unanimous one, and the position of a juror who is not fully persuaded but who in conscience is prepared to accept, albeit without much enthusiasm, correctness of the views of his or her fellow jurors. As one author put it:

Anyone who has sat on a committee or a board of directors will know that there are a number of ways in which a decision can be reached. They fall roughly into four groups:

(1) In a few cases the members are all agreed from the first.

(2) In others there may be some dissenters who can be persuaded by reason.

(3) In other cases the few dissenters can be persuaded to swallow their discontent. Outwardly there might appear to be unanimity, but this is only because the would-be dissenters have been talked into a state of acquiescence.

(4) Finally it may not be possible to persuade the dissenters to acquiesce passively. In this case the decision can only be reached by a majority and it is forced on the dissenters.

Now in theory, jury decisions are reached by the first two methods, ie, unanimity which is either shared at the beginning or arrived at by the exercise of reason and powers of persuasion.

. . . it may be noticed that, although in theory the difference between (2) and (3) is considerable, in practice this is not so. A dissenter will probably give in with such an expression as “All right, go ahead then,” or “I won’t stand in your way.” In these cases the decision is reached under (3) and is unopposed but not unanimous, but it could be argued that the committee-man intends to join in the collective decision and therefore it is unanimous. It is properly termed nemine contradicente.¹³

9.7 Thirdly, effective policing of the jury’s compliance with the obligation to be unanimous is prevented by the rule of evidence which precludes the reception of statements from former jurors as to what happened in the jury room. Claims by former jurors that verdicts were in truth not unanimous will not be received if tendered to challenge verdicts given in open court.¹⁴ There is evidence which suggests that, at least on one occasion, a jury has convicted without each juror being positively satisfied as to guilt-” If this does happen, there is room for debate as to the reasons. It may be done because of ignorance as to the need for unanimity or simply because the jurors honestly regard this as a proper course to take given the pressure from several sources for a small number of dissenters to yield to the views of a large majority of jurors convinced of a particular position.

9.8 These three features have a practical impact upon the theoretical purity of the unanimity rule. Whilst acknowledging their existence, we continue to support the unanimity rule for the reasons developed in this chapter. We consider that in some cases criticism of the unanimity rule has failed to recognise that it is tempered by these practical restraints.

9.9 Most of those who defend the common law rule of unanimity accept, or indeed advance, the proposition that the rule tends to protect the accused person.¹⁶ In other words, 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 is unwilling to convict on evidence which convinces the majority. The truth of this belief is incapable of proof. We therefore approach the debate acknowledging that the existing rule probably operates and is generally seen to operate as one of the “checks and balances” of the criminal justice system.¹⁷ It serves to protect the innocent from unjust conviction. Of course sometimes the rule operates to deny an accused person an acquittal where a majority of jurors favours that verdict. Whilst It may, at times, allow the guilty to escape conviction, that may only be temporary if a retrial is held. In this, as in other areas, the issue is not whether the principle that the criminal law should seek to minimise the risk of convicting the innocent (cf para 1.20) is Itself desirable, but whether unanimity goes too far in pursuit of that principle.

9.10 As has been mentioned, the verdict of a jury in a criminal case in New South Wales must be unanimous. This Is also the position in Victoria, Queensland and the Australian Capital Territory as well as New Zealand, Canada and several states of the United States of America.¹⁸

9.11 In New South Wales where a jury is unable to agree after deliberating for a minimum of six hours, the trial judge may discharge the jury.¹⁹ Unless the Crown decides that the accused person should not be retried, the accused person will be put on trial again. There are no reliable statistics available to us which indicate how frequently in New South Wales an accused person is in fact retried after a jury disagreement.²⁰ We can say, however, that these cases are examined carefully before a decision is made to hold a second trial. Where the jury has been unable to agree in two consecutive trials It is very rare for a third trial to be held.²¹

B. Statutory Abrogation of the Unanimity Rule Elsewhere

9.12 It is now almost 200 years since Bentham suggested an elaborate method of majority verdicts in his draft of a code for the organisation of the judicial establishment in France.

Three balloting balls should be delivered to each of the twelve jurymen sitting on the trial, three to each, one black one, to denote conviction; one white, to denote acquittal; and one half black and half white to denote uncertainty. To give their votes, each shall secretly deposit, in one common box provided for that purpose, the ball expressive of the state of his opinion, returning the two others, with equal secrecy, into a common box, or bag, in which they were brought.

The defendant shall stand acquitted, if more white balls than one are found in the voting box, or if there be not so many as seven black ones.²²

9.13 A number of jurisdictions (including South Australia, Western Australia, Tasmania, the Northern Territory, England, Scotland and some states of the United States) will accept a majority verdict in a criminal trial where a jury is unable to achieve unanimity after a specified period.²⁴ The United States Supreme Court originally held that unanimity was an essential feature of trial by jury and was thus guaranteed by the Sixth and Seventh Amendments. This proposition was long regarded as settled law. Recently, however, the Supreme Court has changed its view and now allows each state to decide the matter for itself. The court has held that while unanimity is not essential for 12 member juries,²⁵ it is where there is a jury of six.²⁶ The traditional requirement of unanimity is retained in the federal courts of the United States.²⁷

C. The Arguments Advanced Against the Unanimity Rule

9.14 The existing rule requiring unanimity has been criticised on one or more of the following grounds:

• that jury disagreements are inherently unsatisfactory because they require a retrial, the cost of which is an unwarranted burden on the State and the accused person;
• that it forces juries which are unable to agree to reach verdicts which area compromises;
• that it leaves open the possibility of the corruption of a juror, through bribery or intimidation-,
• that the rule is undemocratic because it allows a small minority to frustrate the decision of the majority; and
• that the rate of acquittals is too high, And that the unanimity rule is a cause of this.

The first three arguments do carry some weight but, as we point out below, the problems referred to are not nearly as serious as is sometimes suggested.²⁸ The fourth argument does not give sufficient weight to the special nature of the determination of guilt and the desirability of certainty in the criminal process. We deal with each issue before turning to the positive reasons why a change would be detrimental. The fifth argument is, by its very nature, an unprovable assertion. We acknowledge that the unanimity rule probably does prevent some convictions which would occur in a majority verdict system (see para 9.9), but it is completely wrong to say that it results in acquittals in cases where there would be a conviction if majority verdicts were allowed.

1. Jury Disagreements

9.15 It is sometimes contended that jury disagreements are inherently bad because no result is achieved. This contention is based on the premise that it is vital to reach a conclusion in every case. Since this is not a legitimate premise, the argument breaks down. It also overlooks the fact that finality will ultimately be achieved through a retrial or through the decision of the Crown not to prosecute further.

9.16 The existence of a small number of juries which cannot agree is an indication that jurors generally perform their task conscientiously. The Morris Committee said:

. . . the absence of a certain number of disagreements would itself be disturbing, since in the nature of things 12 individuals chosen at random are unlikely always to take the same view about a particular matter, and the existence of disagreements may, therefore, be evidence that jurors are performing their duties conscientiously.²⁹

It is to be expected that there will be a small number of cases in which 12 individuals drawn at random from a heterogeneous community such as that which exists in New South Wales will not be able to agree. It should be recognised that it is not realistically possible to eliminate the incidence of disagreements. Disagreement is endemic in legal matters at the appellate level. The only way to eliminate jury disagreement entirely would be to introduce a rule requiring a simple majority of jurors for a verdict. This would need to be complemented by a rule providing that there should in every case be an uneven number of jurors called upon to consider the verdict. This is generally the practice in Scotland, but the rules relating to juries in Scotland, particularly the availability of a “not proven” verdict and the need for corroborative evidence to support a conviction, are significantly different. For that reason a direct comparison cannot be made with the system in New South Wales.

9.17 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. It may well be that the evidence presented is capable of persuading some jurors to reach one conclusion. At the same time it may have persuaded other jurors to reach an opposite conclusion. Because the decisions made in a criminal trial depend upon the subjective judgment of the jurors, and because the jury is deliberately constituted by people with different experiences of the world, differing judgments can be expected among the individual members of the jury. In the overwhelming majority of cases there is agreement. Its absence in a small minority need not be attributed to perversity.

9.18 Nevertheless, the critics of the rule requiring unanimity say, the fact of jury disagreement causes unnecessary expense and delay if an accused person is retried. A retrial is not held as a matter of course. It is not unusual for the prosecution to be abandoned after the jury has failed to agree at the first trial. Willis has noted that in Victoria approximately 30% of cases involving a jury disagreement are not retried. He cites possible reasons for the decision not to proceed and concludes:

It seems not unreasonable to assume that in a substantial number of these cases, the Crown took the view in the light of the trial and the jury disagreement that the chances of a conviction were not sufficient to warrant further action. In these cases, it would appear that the Crown interpreted the jury disagreement, not as resulting from the obstinacy or corruption of one or two jurors, but as evidence of the weakness of the Crown case.³⁰

The cost of retrials following jury disagreement is undoubtedly a problem, but it is one which must be considered in the light of the small number of jury disagreements and the nature of the disagreements which do occur.

The Incidence of Jury Disagreements

9.19 Complete statistics on the incidence of jury disagreements are not available, but there are figures available in respect of four quite lengthy periods during the last fifty years. The first set of figures was reported by Mr Justice Evatt at the 1936 Australian Legal Convention.³¹ The second and third surveys were random checks which took place prior to the drafting of the Jury Act 1977. The fourth was conducted by the Commission during 1985. The results of the surveys are reported in Table 9. 1.

Table 9.1

Period	No. of Trials Checked	No. of Disagreements	Percentage of Trials resulting in Disagreement
1932-35	1751	45	2.57
30 July 1971 to 5 November 1971	87	5	5.75
1 January 1975 to 30 June 1075	157	4	2.55
30 September 1985 to 13 December 1985	179	7	3.55

There does not appear from these figures to have been a significant increase In the Incidence of jury disagreements since 1977 when the Idea of majority verdicts was last considered³² and rejected. In fact, with the exception of the 1971 survey, which was based on a relatively small sample, the figures are remarkably consistent. This accords with the impressions of the members of the Commission and with those of experienced practitioners who have assisted the Commission on this issue.

The Incidence of Mistrials

9.20 The rate of jury disagreements should be contrasted with the rate of Mistrials. A mistrial occurs when the judge discharges the jury without taking its verdict because it may have become prejudiced as a result of contact with inadmissible material, or with a witness in the case, or otherwise. Where a mistrial occurs it is usual for the trial to recommence at a later date. In our survey there were mistrials in over 12% of jury trials. This compares with jury disagreements In less than 4% of cases. It is obvious that successful measures taken to reduce the rate of mistrials would produce far greater cost savings without infringing the fundamental requirement of jury unanimity.

The Incidence of Acquittals by Direction

9.21 The rate of jury disagreement can also be compared to the rate of acquittals by direction. An acquittal by direction occurs when the judge is satisfied that there is insufficient evidence in the case for the prosecution to justify a conviction. Such an acquittal is clearly an indication of a fundamental weakness in the Crowns case. In our Survey of Court Procedures, 23 accused people were acquitted by direction representing over 10% of all accused people. Improvement in the procedures for reviewing the prosecution case before a matter proceeds to trial will save the cost of many of these failed prosecutions, again without interfering with any fundamental safeguards such as jury unanimity. We make some proposals to improve these procedures in our forthcoming Discussion Paper Procedures Before Trial in Criminal Cases.

Disagreements in Long Trials

9.22 When a jury is unable to agree on their verdict the costs of the trial are seen to have been expended without any apparent return. “Cost” may be measured in various ways. In monetary terms there Is the cost of providing courtrooms, judges, juries and court staff. The state meets most of the financial cost of the criminal justice system. It also pays the costs of the prosecution and the expenses of witnesses. There is the cost to the legal aid system or the accused person in relation to his or her defence. The “cost” of a trial may also be measured in emotional terms in the strain caused to victims and accused people by delay In the resolution of the charge. There is also the “cost” of the Inconvenience caused to the jurors who have laboured long and hard without result. The introduction of a system whereby a majority verdict could be received would save such costs in those trials where the clear majority reached a particular view.

9.23 The “cost” of a jury disagreement after a very long and complex trial may be enormous. We think it proper to have some regard to this factor, although we would be extremely reluctant to have one rule of criminal procedure for short and, “easy” trials and another for long and “complex” trials. Of course, long trials can abort for a number of reasons totally unconnected with jury disagreement or their verdicts can be overturned on appeal. The proponents of majority verdicts must also acknowledge that a jury which is unable to agree may be evenly divided or at least divided in a proportion which those proponents would not suggest is sufficient to lead to an acceptable verdict. Records kept in the Attorney Generals Department prior to the Introduction of the Jury Act 1977 reveal that up to that time there had not been a single disagreement In a long trial. We have been able to discover only two cases since 1977 which can accurately be described as “long” and where the jury was unable to agree on a verdict. The first was R v Miller in which the jury was discharged without verdict after a trial lasting approximately twelve weeks. There was no retrial of those charges. The second was the trial of Alister, Anderson and Dunn on charges of conspiracy to murder where the jury failed to agree following a trial lasting approximately 15 days. Each accused person was found guilty at a second trial but they were subsequently released from the sentences they were serving after a judicial inquiry. As we point out below (para 9.39) a conviction pursuant to a majority verdict would have served to fan rather than quieten the public debate about the correctness of this last mentioned verdict.

The Nature of Disagreements

9.24 There is no reliable evidence to indicate the way juries which cannot agree upon a verdict are divided In their views. This naturally follows from the fact that jurors do not, in the normal course, make such information public at the conclusion of the proceedings. A survey conducted in the United States concluded that juries which start out split 10:2 or 11:1 tend to reach a unanimous decision, whilst a jury initially split 7:5 or 6:6 will not even get to 10:2, let alone unanimity.³³ It can be said without fear of error that not all juries who fall to agree are either 11:1 or 10:2 in favour of a particular verdict. Furthermore, it appears that where there is a minority of only one or two in the early stages of deliberation, the jury normally reaches unanimity.³⁴ It follows from this that the introduction of majority verdicts will not eliminate the incidence of jury disagreements. It will only serve to reduce the number of disagreements.

2. “Compromise” Verdicts

9.25 The second of the reasons given by those who support majority verdicts, and one particularly relied on by the members of the Commission who favour them, is that the unanimity rule forces compromises amongst the jury which are undesirable. This is especially so, it is argued, where it is only one member of the jury who disagrees with the others. In the view of the majority. this argument tends to overlook the importance of the directions which are usually given to a jury if the jurors have indicated that they are having difficulty reaching agreement. The judge usually explains to the jury that it is their duty to agree if they can honestly and conscientiously do so (see para 9.5).

9.26 The present law is that the judge may not directly encourage the jury to reach a compromise verdict. Each juror Is bound to agree to a verdict only if it is in accordance with his or her view of the case.³⁵ Because jurors rarely reveal the process of deliberation in the jury room, we simply cannot know how often, if at all, compromises occur. Nevertheless, at present, the judge may and often will stress the desirability of the jury coming to a decision. This exhortation from the judge may result, In some cases, in the jurors reaching a compromise verdict. It is necessary, for that reason, to ensure that directions of this kind make it perfectly clear that the jury is entitled to disagree and that:

Jurymen should not be led, from a desire to acquiesce, or to avoid eccentricity, or to save time and trouble, to represent themselves as holding views which they do not hold.³⁶

The most telling response to the “compromise” argument is that the introduction of a rule allowing the verdict of 11 or 10 jurors to be taken as the jurys verdict would not eliminate the possibility of the jurys verdict being a compromise. If the requirement that 12 jurors must agree on a verdict encourages compromise, there is nothing to say that a requirement that 11 jurors agree would not also result in compromise.

3. The Corruption of Jurors

9.27 It is sometimes said that the rule requiring unanimity encourages interference with jurors. The reason given for the introduction of majority verdicts in the United Kingdom in 1967 was “to prevent one or two bribed or intimidated jurors from preventing conviction’ ³⁷ If one juror can be corrupted, through bribery or intimidation, the remainder of the jury is rendered powerless.³⁸ Proponents of majority verdicts argue that they will reduce the extent of corruption by ensuring that a person who is minded to interfere with the jury will have to approach more than one juror and thereby run a greater risk that the corruption will be detected. We do not believe that this is a significant factor in resolving the present issue, although it is not one which should be excluded entirely.³⁹

9.28 The risk that corruption of jurors may cause Is countered by the power of prosecuting authorities to conduct a retrial after a jury has failed to agree on a verdict. An acquittal cannot be achieved unless the whole jury is corrupted. Nevertheless, it must be acknowledged that a trial that ends injury disagreement is, to an accused person, better than one that concludes with a -guilty verdict, if only because of the possibility that the prosecuting authorities will decline to put the accused person on trial a second time (see para 9.18).

9.29 If the corruption of jurors were a significant cause of juries being unable to agree, one or more of the following could be expected:

• a higher proportion of disagreements in the trial of wealthy or organised criminals who would be more likely to succeed in corrupting a juror;
• further disagreement at retrials of cases where the original jury failed to agree. In other words, if corruption does occur, it would usually persist in the same cases; or
• a high number of convictions at retrial, indicating that the failure to agree was the result of one juror corruptly holding out for acquittal.⁴⁰

None of these has been demonstrated to be features of the criminal justice system at present. We reiterate the principle stated earlier (para 1.30) that the onus of showing the need for change, particularly to long established rules, is on the proponent of change. There is no evidence to show that corruption of jurors operates as a cause of jury disagreements in New South Wales at present. There is, accordingly, little basis for the argument that abolition of the requirement for ,unanimity will reduce corruption.

4. Perverse Jurors

9.30 Those who support the introduction of some form of majority verdict in criminal cases point to the fact that society accepts majority rule in very many of its institutions. People are frequently prepared to have their views overridden by the contrary views of a larger group, provided they are given a proper opportunity to persuade the majority and provided (usually) that their dissents are recorded.

In legal matters, this is now generally the way of resolving deadlock in civil juries as well as disagreement at the appellate level in civil and criminal cases.

9.31 One of the major arguments in favour of majority verdicts is that they might overcome the “problem” of the perverse juror, that Is to say one who is not prepared to reach a verdict based solely on an impartial assessment of the evidence. The impact of the perverse juror Is blunted by the power to order a retrial in a case where the jury at the first trial has failed to agree. If the jury at the first trial has disagreed because of the actions of a single perverse juror, It is highly unlikely that there will be another perverse juror amongst the 12 chosen for the jury on the second trial.⁴¹

9.32 The existence of a disagreement is more likely to reflect a difficulty in the case rather than the perversity of jurors. As noted in para 9.24, an experiment conducted in the United States found that disagreements tend to occur more often where there is, In the first place, a relatively large minority. The “perverse juror” is given a great deal of attention as the justification for the introduction of majority verdicts, but there is very little evidence about the true impact of such a juror. There may be many individual jurors who do not agree with the majority, but it does not follow that there is either reason or justification to label them perverse.

D. Reasons for Retaining the Unanimity Rule

9.33 In the view of the majority of the Commission, the case for changing the existing rule has not been demonstrated. The problem of jury disagreement Is a minor one which does not merit solution by the destruction of one of the fundamental features of jury trial. Majority verdicts will not eliminate the already quite small number of retrials which are caused by jury disagreement. The incidence of juror corruption has not been adequately demonstrated. If this is a serious potential problem it can best be met by other measures which do not involve Interference with traditional and fundamental principles of the jury system. We have proposed some measures to this end in Chapter 5 of this Report.

9.34 The two organisations which have examined this subject most recently have also affirmed the importance of preserving the traditional rule. The Victorian Shorter Trials Committee was “strongly opposed” to the concept of majority verdicts in criminal trials.⁴² The Canadian Law Reform Commission canvassed the Issue in a Working Paper published In 1980.⁴³ The arguments both for and against were submitted to the public. Most of the groups and individuals who responded to the Working Paper felt that unanimity should continue to be required. The Commission reported accordingly In 1982.⁴⁴

Community Consultation

9.35 In our Discussion Paper (para 9.10) we raised the question whether the rule requiring the verdict of a jury to be unanimous in criminal cases should be retained. The response we had to this Issue was significant. The overwhelming majority of people who sent us completed comment sheets (more than 80%) were in favour of retaining the rule. Similarly, in written and oral submissions we received, the level of support for the unanimity rule was very strong. The most frequent reasons given for retaining unanimous verdicts were clearly identifiable. Firstly, the concept of majority verdicts cuts across the requirement of proof beyond reasonable doubt and creates uncertainty. Secondly, most of those who made submissions. did not regard jury disagreements as being a significant problem.

II. MAJORITY VERDICTS

A. Disadvantages of Majority Verdicts

9.36 We have indicated in the previous section of this chapter the limited benefits which would be gained by allowing majority verdicts in criminal trials. These benefits would, in our view, be accompanied by a number of serious consequences. These are explained In this section.

1. The Standard of Proof

9.37 The concept of a majority verdict strikes at the root of the hallowed principle that the guilt of the accused person must be proved beyond reasonable doubt.⁴⁵ Sir James Fitzjames Stephen has said that the unanimity rule is justified as:

......a direct consequence of the principle that no one is to be convicted of a crime unless his guilt is proved beyond all reasonable doubt. How can It be alleged that this condition has been fulfilled so long as some of the judges by whom the matter is to be determined do In fact doubt?. . . There Is a definite meaning in the rule that criminal trials are to be decided by evidence plain enough to satisfy in one direction or the other a certain number of representatives of the average Intelligence and experience of the community at large, but if some of the members of such a group are of one opinion and some of another, the result seems to be that the process has proved abortive and ought to be repeated. If the rule as to unanimity is to be relaxed at all, I would relax It only to the extent of allowing a large majority to acquit after a certain time.⁴⁶

Where there is a majority verdict of guilty, it can clearly be said that, in the absence of corruption(see para 9.27), there exists in the mind of at least one member of the jury a reasonable doubt about the guilt of the accused person. It is simply not valid to say that If a doubt is entertained by only one among 12, then it cannot be a reasonable doubt. We think it inescapable that the existence of a dissenting voice casts a shadow over the validity of the verdict. A person convicted in such circumstances has genuine grounds upon which to base his or her refusal to accept the jury’s verdict.

9.38 William Forsyth, who is described by Mr Justice Evatt as “the leading exponent of the history of trial by jury” ⁴⁷ was a staunch supporter of the rule requiring unanimity. He expressed his view vividly.

And how must it paralyse the arm of justice, when from the very tribunal appointed by law to try the accused, a voice is heard telling her that she ought not to strike?⁴⁸

2. Acceptability of the Verdict

9.39 We consider that majority verdicts would not command community acceptance in the same way that unanimous verdicts do. The jury system has come under strong attack in recent times (see paras 2.1-2.5). This has been accompanied by, many would say caused by, individual jurors in celebrated trials speaking out after verdict and publicly raising doubts they later entertained about the verdict (an issue which we address in Chapter 11). These events have put considerable pressure on the jury system and the publics acceptance of it. This in turn affects the acceptability of the entire criminal justice system. In the light of this recent phenomenon we are most reluctant to countenance anything that would encourage disaffected jurors speaking out and undermining the finality and essential validity of verdicts. Majority verdicts of themselves create the impression of a level of uncertainty. They also involve a dissident minority being overridden by the majority. The likelihood of those in the minority being the focus of public attention or even leading any campaign designed to challenge a verdict through the media is one which we find distasteful. It would constitute a serious threat to the confidence of the public in the administration of justice.

9.40 Appreciating that one partial solution might be to prohibit any juror speaking out in any circumstances, a possible solution we discuss in Chapter 11, we nevertheless see this scenario as a further ground for retention of the unanimity rule. We accept that sometimes a jurys inability to agree to convict or acquit may itself be the focus for criticism of a particular trial and thereby of the system of criminal justice. It must also be conceded that a majority whose clear belief is frustrated by what they may consider to be an irrational minority could themselves depart the courts frustrated and disaffected by the system. However, we think that the more substantial problem is the threat to certainty and acceptability posed by a majority verdict. It would be interesting to speculate as to the public reaction to the verdicts In the Chamberlain and the Alister, Dunn & Anderson trials if they had not been unanimous. One thing is certain, the verdicts would have been regarded with much greater concern than they are already. Sir Robert Menzies has commented:

I entirely agree . . . that the jury in criminal cases carries out a function which probably no other system could provide. I have no time for these innovators who want the majority verdict. I remember an agitation for a majority verdict when I was Attorney-General of Victoria, and my reason for resisting the agitation was this. When you have a unanimous verdict given by a jury in a proceeding by the Crown against a citizen It Induces in the minds of the ordinary citizens a feeling of confidence in the administration of the law, and that is worth a great deal to society. When you depart from that and 10 people out of 12 find a man guilty or innocent you build up a world of uncertainty and speculation.⁴⁹

3. Participation of all Jurors

9.41 There is a risk that a minority in a criminal jury may cease to be listened to once the availability of majority verdicts becomes well known. This appears to have been realised in the United Kingdom where the rate of non-unanimous jury verdicts has trebled since the introduction of majority verdicts (para 9.45). When jurors become aware that they do not need to be unanimous, they may not try as hard to reach that desirable goal. Once we say that fewer than 12 have to agree, some jurors will have come to a conclusion that does not count. Where a majority verdict is acceptable, the minority can be ignored because the majority knows it has the numbers. Unanimity not only ensures that the minority viewpoint is heard, it gives people in the minority a vote which has a real value. 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 giving a right of participation to minority points of view.

4. Distrust of Jurors

9.42 The concept of majority verdicts is in one sense based on a distrust of the people in whom we are placing our faith as competent to serve on juries. It involves a presumption that amongst 12 members of the community there is a definite likelihood that one of them will be either corruptible or incompetent.⁵⁰

5. The Accuracy of the Verdict

9.43 In our system of criminal justice we place tremendous weight on the accuracy of the verdict of a jury. The focus of appeals from criminal trials is on judicial error. A jury is presumed as a matter of law to have acted responsibly and in accordance with the directions they have been given by the trial judge. This is in one sense an irrebuttable presumption because courts of criminal appeal will not admit evidence which deals with the deliberations of the jury.⁵¹ On appeal argument may take place about whether the judge was right to admit or exclude certain evidence or whether the jury was properly instructed on matters of law. Appeals against conviction may also challenge the fairness of the prosecutors presentation of the case. But where both judge and prosecutor have acted fairly and in accordance with law, and where the rules of criminal procedure have been observed, the verdict of the jury may only be overturned if it can be placed in the rare category of cases in which a properly instructed jury§ verdict of guilty can be demonstrated to constitute a miscarriage of justice warranting the interference of an appellate court.⁵² Apart from such a case, our system of appeals does not have mechanisms for dealing with errors by juries. This means that we need to be especially careful to ensure that mistakes are not made at the time the jury makes its decision. The requirement that the verdict be a unanimous one is o considerable help in ensuring that sufficient care is taken.

9.44 In the three Australian States in which majority verdicts are permitted, they are not permitted in capital cases.⁵³ This is a clear acknowledgment that, in serious cases, certainty Is not merely desirable, it Is essential. We consider that all cases which go before a jury are sufficiently serious to warrant certainty, and hence unanimity. Considerations of expedience should not outweigh the importance of preserving one of the fundamental principles of trial by jury.

6. Promoting Satisfactory Verdicts

9.45 The purpose of majority verdicts is to overcome disagreements. Disagreements are regarded as unsatisfactory verdicts because no conclusion is reached. We have already questioned the validity of this view (paras 9.15-9.17). It must also be accepted that majority verdicts represent a conclusion which is at least something less than Ideal. This fact is acknowledged by the rule which is found in all relevant jurisdictions that there should be a minimum period of deliberation before a majority verdict will be accepted.⁵⁴ It is given further and firmer recognition in the rule we have just discussed, namely that in capital cases, a majority verdict will never be accepted.

9.46 The figures that are available from the United Kingdom reveal the net result of implementing majority verdicts. If, for the sake of argument, majority verdicts and disagreements are both regarded as unsatisfactory, there has been a dramatic increase in the overall number of unsatisfactory verdicts in criminal trials. This conclusion requires some explanation. Majority verdicts were introduced in the United Kingdom in 1967.⁵⁵ At that time the rate of jury disagreements was in the region of 4 to 5% of all criminal trials.⁵⁶ Over the years following the introduction of majority verdicts, the incidence of juries giving majority verdicts gradually increased. In 1968 there were majority verdicts In 7.7% of cases. In 1969 this increased to 8.3% and in 1970 to 9.1%⁵⁷At the time of writing the rate at which majority verdicts are given in criminal trials in England appears to have levelled out at approximately 13%. The important fact in all this should not be overlooked. There are still jury disagreements.

9.47 The reason for the introduction of majority verdicts and Its result can be summarised in the following terms. In order to reduce a small number of unsatisfactory verdicts (in the form of jury disagreements), there has been a massive increase in the number of unsatisfactory verdicts (in the form of majority verdicts). To overcome a 4 to 5% rate of disagreements, the United Kingdom has accepted a 13% rate of majority verdicts. This has not eliminated but merely reduced the 4 to 5% figure for jury disagreements. These figures should clearly demonstrate that majority verdicts are an unacceptable solution to the problem of jury disagreements. The proposed solution creates a monster of greater proportions than the problem it Is designed to solve.

7. Other Issues

9.48 The argument in favour of majority verdicts based on the fact that, “majority rules” in most democratic institutions fails to recognise the very sensitive and special nature of the decision which a jury is called upon to make. A jury is required to make a determination as to guilt. The fact that appeal courts are sometimes divided in their views is put forward as clear evidence of the acceptability of majority decisions within the criminal justice system. Appeal courts, however, make no determination as to guilt. They decide whether trials have been fairly conducted in accordance with the law. They do not usually act as a collective of judges in the same way that a jury is a cohesive group. If an appeal court is divided, it is divided on a matter of law.

B. The Views of Mr Sackville and Mr Justice Roden

9.49 Mr Sackville does not consider a rule permitting a majority verdict of 11-1 to be inconsistent with the general principles and objectives of the jury system in criminal cases. He Is not opposed to majority verdicts as a matter of principle. There is, in his view, nothing sacrosanct about the requirement of unanimity from either a historical perspective or from the standpoint of fundamental principle. He is not persuaded. however, that there is an immediate or urgent need to change the existing rule requiring unanimity. The incidence of disagreement in criminal cases is low. More importantly, it appears to have been consistently low over many years (see para 9.19). If circumstances were to change and there was an increase in the rate of disagreement, or if juries regularly failed to agree on a verdict in long cases, then it would be necessary to review the position. In short, if the requirement of unanimity could be shown to cause difficulties in the administration of justice, then the introduction of majority verdicts would be justifiable. That point has not yet been reached in New South Wales.

9.50 Mr Justice Roden Is of the view that a rule permitting a jury to give a majority verdict of 11-1 should be introduced notwithstanding that the incidence of juries being unable to agree on a verdict is low. In his opinion the criminal law should have a more acceptable means of remedying the injustice done by a single perverse juror who does not agree with the overwhelming majority. Where there is only one juror amongst a group of 12 who does not agree in the verdict, he feels it can be said with some confidence that the view held by that juror is wrong. The current options of either starting the trial again or abandoning the prosecution are inadequate to deal effectively with the problem of jury disagreements, particularly in long trials where the expense and the strain of the proceedings Is substantial.

III. THE DIRECTION TO THE JURY

Recommendation 79: The Jury Act 1977 should be amended to provide that the judge is required to direct the jury that their verdict must be unanimous.

9.51 The rule that a verdict in a criminal trial must be the unanimous verdict of the members of the jury exists in New South Wales, Victoria, Queensland and the Australian Capital Territory, but in other parts of Australia unanimity is not usually required. The movement of people across State and Territorial boundaries is now quite significant. Moreover, many people resident in New South Wales and qualified to serve on a jury come from countries where there is no jury system, or from countries where the majority verdict of a jury Is accepted. It cannot be presumed that jurors in New South Wales are so well acquainted with the unanimity rule that it is not necessary to inform them of this feature of the jury system in criminal trials.

9.52 It has been held, both in England and Australia, that a judge Is not bound to tell the jury that their verdict must be unanimous. In practice most judges do advise juries that their verdict must be unanimous. We consider that this practice should be mandatory. This is consistent with the principle that juries should be informed of the law they are required to apply. The requirement of unanimity is a fundamental feature of trial by jury. The jurys deliberations must be guided by knowledge of its existence.

1. The common law rule applies because it has not been abrogated in the Jury Act 1977. Section 56 of the Act which speaks of the jury agreeing on their verdict recognises the common law position. A majority verdict of three-quarters of the jury is allowed in civil proceedings where the jury has retired for more than four hours and is unable to agree on their verdict: Jury Act 1977 s57.

2. R Moschizer Trial by Jury (1922) p298, referred to in D M Downie “is That the Verdict of You All?” (1970) 44 Australian Law Journal 482 p483; Lord Devlin Trial by Jury (1966) p48.

3. Sir Mathew Hale History of the Common Law of England (1713) p261.

4. For example English Commission of Inquiry Into the Common Law Courts (1830); Forsyth History of Trial by Jury (1850) Stephen History of the Criminal Law Vol 1 p304; H V Evatt “The Jury System In Australia” (1936) 10 (Supp) Australian Law Journal 46. In 1897 the United States Supreme Court held that unanimity was one of the peculiar and essential features of trial by jury at common law: American Publishing Co v Fisher (1897) 166 US 464 at 478. (This no longer represents the view of that Court: see para 9.10).

5. Forsyth, note 4 p240; Stephen gives the same explanation, note 4.

6. Evatt, note 4 p55; R v Lusher [1976] 1 NSWLR 227 at 229 per Street CJ.

7. Pope The Rape of the Lock.

8. Shoukatallie v The Queen [1962] AC 81 at p9 1. See also R v Walheim (1952) 36 Cr App R 167; R v Creasey (1953) 37 Cr App R 179.

9. R v Lusher (1976) 1 NSWLR 227.

10. Id at 229.

11. There are of course limits: see R v McKenna [1960] 1 QB 411; R v Gallagher (unreported) Supreme Court of Victoria, Full Court, 7 October 1985.

12. R v Mills [1939] 2 KB 90 at 93.

13. J A Andrews “Legal Realism and the Jury” [1961] Criminal Law Review 758 pp759-760. Sometimes appellate judges “concur” in cases where there is express disagreement: see, eg, Buckley v Bennell Design & Construction Pty Ltd [1977] 1 NSWLR 110 at 125-126 per Mahoney JA: Attorney-General v Clarke [1914] VLR 71 at 75 per A’Beckett J.

14. Ellis v Deheer [1922] 2 KB 113: Boston v W S Bagshaw [1966] 1 WLR 1135; R v Gallagher (unreported) Supreme Court of Victoria, Full Court, 7 October 1985. Elsewhere in this Report (para 8.7) we recommend that jurors should each sign a document which records the verdict of the jury.

15. For example. in a letter published in the Sydney Morning Herald on 9 October 1985 the foreman of a jury appeared to refer to a majority verdict being achieved after many hours of debate. The inference is that this was announced to the court as the verdict of the whole jury.

16. J Willis “Jury Disagreements in Criminal Trials: Some Victorian Evidence” (1983) 16 Australian and New Zealand Journal of Criminology 20.

17. We believe, however, that sometimes those who urge the introduction of majority verdicts fail to acknowledge the importance of this point and that there is a tendency to cloak their true position by stressing elements of cost and inconvenience.

18. Juries Act 1967 (Vic) s46(1); Criminal Code 1899 (Qld) s628; Juries Ordinance 1967 (ACT) s38. The abrogation of the rule in New Zealand was considered but rejected by a 1978 Royal Commission.

19. Jury Act 1977 s56. We recommend (Recommendation 69, para 8.4) that this section be altered to allow the jury to be discharged whenever the judge is of the view that the jurors are unlikely to agree on a verdict.

20. One Victorian study showed that about 30% of cases in which the jury has failed to agree are no-billed, that is the prosecution is abandoned, often because the prosecution case has proved to be a weak one: Willis, note 16 p24; see further para 9.18.

21. Cf Craig v The Queen (1933) 49 CLR 429.

22. Works Vol IV, p382, quoted in Evatt, note 4 p55.

23. Sir Patrick Devlin quotes Hallam, a 19th century historian, as describing the rule as “that preposterous relic of barbarism”: Trial by Jury p49.

24. Juries Act 1927 (SA) s57; Juries Act 1957 (WA) s41; Jury Act 1899 (Tas) s48; Criminal Justice Act 1967 (UK) s13; Administration of Justice (Scotland) Act 1933 (UK) s19.

25. Johnson v Louisiana (1972) 406 US 356; Apodaca v Oregon (1972) 405 US 404.

26. Burch v Louisiana (1979) 441 US 130.

27. Johnson v Louisiana (1972) 406 US 356; Apodaca v Oregon (1972) 405 US 404.

28. This is also the view of the Law Reform Commission of Canada: The Jury (Report 16, 1982) pp77-78.

29. Report of the Departmental Committee on Jury Service (Cmnd 2627, 1975) para 357.

30. Willis, note 16 p24.

31. Evatt, note 4 p57.

32. Departmental files obtained from the Research Division of the Attorney Generals Department show that the issue was actively considered when the Jury Act 1977 was being drafted.

33. H Kalven and H Zetsel “The American Jury: Notes for an English Controversy” (1967) 48 Chicago Bar Record 195 p200.

34. Ibid.

35. R v Cartledge (1956) VR 225. Furthermore a compromise verdict which is not consistent with the evidence will not be allowed to stand: R v Flood (1914) 10 Cr App R 227; R v Redgard [1956] St R Qd 1.

36. R v Mills [1939] 2 KB 90 at 93.

37. P Duff and M Findlay “The Jury in England: Practice and Ideology” (1982) 10 International Journal of the Sociology of Law p253.

38. The expression “nobbling” is sometimes used to describe corruption of the jury.

39. See Discussion Paper para 9.9.

40. Submission from Mr Tom Molomby, Director, Australian Broadcasting Corporation.

41. See generally Willis, note 16.

42. Report on Criminal Trials (September, 1985) para 7.39 pl65; but note the minority view of Deputy Police Commissioner Mudge, paras 7.280-7.289 pp200-201.

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

44. Law Reform Commission of Canada, note 28.

45. DPP v Woolmington [1935] AC 462.

46. Stephen, note 4 Vol 1 pp304-5.

47. Evatt, note 4 p49.

48. Forsyth, note 4 pp254-5.

49. Commentary on Evatt, note 4. in (1936) 10 (Supp) Australian Law Journal p74.

50. Molomby, note 40.

51. R v Gallagher (unreported) Supreme Court of Victoria, Full Court, 7 October 1985. See also A R Blackshield “After the Trial: The Free Speech Verdict” (1985) 59 Law Institute Journal (Vic) 1187.

52. Kingswell v The Queen (1986) 60 ALJR 17 per Deane J at 32.

53. Juries Act 1957 (WA) s41; Juries Act 1927 (SA) s57; Jury Act 1899 (Tas) s48(3).

54. Two hours in England and Tasmania: Criminal Justice Act 1967 (UK) s13(3): Jury Act 1899 (Tas) s48(2),(5): three hours In Western Australia: Juries Act 1957 (WA) S41; four hours in South Australia: Juries Act 1927 (SA) s57.

55. Criminal Justice Act 1967 (UK) s13.

56. New Society 6 July 1972.

57. Ibid. See also A Samuels “The Jury-Any Case for Reform” (1982) 146 Justice of the Peace 465 p467.