The proposal by Independent MLA Paul Osborne for majority jury verdicts should not be taken on lightly. Mr Osborne says he is not seeking more convictions, but only wants to overcome situations where one or two “”obstreperous” individuals can result in no verdict being reached and millions of dollars spent on trials being wasted.
Mr Osborne offered alternatives of an 11:1 verdict or a 10:2 verdict. Whatever logic there is in countering the obstreperous juror, it can surely only run to one, not two. Mr Osborne cited the Bjelke-Petersen case in which a staunch political ally of Sir Joh Bjelke-Petersen somehow found himself on the jury and refused to convict, no matter what the evidence. It indicates that there may be a case for an 11:1 verdict to counteract a lone juror who will not convict no matter what the evidence. However, this justification is based n the presumption that there is one juror behaving beyond the ordinary bounds of reason. That may happen in some isolated cases. But the chance that there are two rogue jurors on the same jury is so remote as to be discounted. It is more likely that if two jurors are holding out against the other 10, at least one of them is doing so for good reason. In these cases, the defendant should have the benefit of the doubt. There is no logic or sense in permitting 10:2 verdicts.
There may be some good grounds for 11:1 verdicts in favour of acquittal. If 11 jurors are not persuaded by the prosecution case, it should be enough to allow an acquittal and it should be enough to dissuade the prosecution from launching a new trial. At present in the case of hung juries, there are only informal arrangements for the prosecution to find out the state of jury opinion in the case of hung juries. It would be better if the prosecution had a better idea of how its case fared in the jury room. In the event of a hung jury the judge should be able to ask the foreman of the jury to take a secret ballot to be passed on to the prosecution. This could be used to help the prosecution decide whether to seek a new trial.
As to 11:1 verdicts for conviction, there may be some case, but it is not a pressing one. It does not seem as though many apparently guilty people are escaping conviction because lots of juries have a lone rogue juror. This does not seem to go to the heart of present difficulties in the criminal justice system. Rather, to the extent that the system lets criminals out on the street, it can be put down to the nature of the rules of evidence, the failure of police (whether through lack of resources or other reasons) to bring cases to court, and the reluctance of the Bench to give adequate sentences. Until these matters are addressed, the question majority verdicts should not be high on the legislative agenda.
There is an element of populism about Mr Osborne’s call. It is in a similar category to calls by NSW Premier Bob Carr for mandatory minimum sentences. It plays on people’s emotions, not their intellect. In short it is easy vote-catching in the face of no substantially increased threat, according to recent statistics.
Events last week showed that there is no impediment to a jury reaching a unanimous verdict or a judge sentencing an offender to life in the ACT.