What a pity that the government of the ACT is introducing majority verdicts. These devalue and undermine an essential protection of the individual - the need for proof beyond reasonable doubt in a criminal case.
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Reasonable minds would agree that if a jury were divided seven to five in favour of a conviction, that could not be a sound basis for a decision beyond reasonable doubt, because there would be a strong chance of the minority being right.
If the numbers progressed through eight to four, nine to three, or 10 to two, the argument would remain the same. There would still be a chance, though diminishing as the numbers tilted in favour of conviction, of the minority being right. The chance of the minority being right does not disappear when the numbers become 11 to one.
![The ACT has changed laws around jury verdicts. Picture shutterstock The ACT has changed laws around jury verdicts. Picture shutterstock](/images/transform/v1/crop/frm/pMXRnDj3SUU44AkPpn97sC/2cab1d64-5f81-4353-8549-82dfc5bfbba4.jpg/r0_334_5007_3149_w1200_h678_fmax.jpg)
To convict on the basis of an 11-to-one decision is to abandon the standard of beyond reasonable doubt. A majority verdict can respect the standard of beyond reasonable doubt only if the minority can never be right. That is unsustainable.
It is rare to be able to demonstrate that a conviction is wrong. In well known cases over the years, it has been an almost Herculean struggle to get to that point.
One would expect the actual number of wrongful convictions to be considerably larger than those that have been exposed.
There have been documented cases in Australia of a lone juror in a case being right. Two such were discussed in the last major review of the law on this issue, the comprehensive report of the NSW Law Reform Commission into majority verdicts in 2005.
The report (no.111) is available on the Commission's website. The Commission recommended against majority verdicts, but the government introduced them anyway.
Paragraphs 1.18 and 1.19 of the report deal with the two cases of lone jurors being right. The second is worth narrating. In 1996 in NSW a single juror hung out against a guilty verdict on charges of murder and manslaughter. The jury was discharged and a new trial scheduled.
Meanwhile, a noisy politician (and former barrister) denounced the lone juror in Parliament as "completely irrational." At the second trial, the jury unanimously acquitted on these charges.
Contempt for the views of a minority is unfortunately a feature of much public life. It should not be allowed to intrude into the administration of justice.
In England in July this year, the conviction of a man called Andrew Malkinson for rape was quashed.
New DNA evidence had proved that the perpetrator was another. Mr Malkinson had spent 17 years in gaol. He had been convicted by a majority verdict of 10 to two, England having ill-advisedly introduced such a majority. There can be no guarantee of avoiding a similar result with a majority of 11 to one.
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The introduction of majority verdicts in NSW, contrary to the recommendation of the Law Reform Commission, followed closely a much-publicised trial in which rumour had it that there had been only one juror holding out against conviction. Might I hazard a guess that the same situation exists in the ACT.
The High Court held in 1993 that the constitution requires a unanimous verdict for federal indictable offences (Cheatle v The Queen [1993]). It is paradoxical that in the territory in which the federal government has its seat, the burden of proof will not be the same as between federal and territory offences.
Simultaneously with the announcement about majority verdicts, the ACT government announced the introduction of penalties for jurors who do research into the case outside the court. There is no doubt that such research can be quite pernicious, and needs to be prevented.
There is no doubt as a basic principle that the only evidence that should be considered is evidence of which all parties are aware and which they have the opportunity to examine and test.
This proposal seems to have sprung from last year's celebrity trial. The jury system endured for a long time without this problem intruding. In recent times it has caused problems in other jurisdictions.
It gained prominence in NSW in 2004 in a much-publicised case of gang rape, where it was discovered after the trial that two members of the jury had visited the scene of the crime to check on the lighting at night. This was relevant because identification of the perpetrators was in question.
![ACT Attorney-General Shane Rattenbury. Picture by Karleen Minney ACT Attorney-General Shane Rattenbury. Picture by Karleen Minney](/images/transform/v1/crop/frm/pMXRnDj3SUU44AkPpn97sC/80b9d390-43df-4fe7-b097-9ba2e7f62be2.jpg/r0_569_5568_3712_w1200_h678_fmax.jpg)
A practical aspect of the resulting problem was that the lighting could have changed between the times of the crime and of the jurors' visit. With the proliferation of the internet and the ease of its use, the risk of the problem occurring has increased enormously.
Nevertheless, what to do about it deserves careful attention. It's been customary for many years for judges to tell juries that they should not do their own research. In many cases, the potential research is obvious, and there is unlikely to be uncertainty about what the warning means. However, in some cases it is not so obvious. With penalties applying, there are circumstances in which jurors might feel constricted in how they approach their task, and feel that they might need their own legal advisor.
![The ACT Magistrates Court. Picture by Jamila Toderas The ACT Magistrates Court. Picture by Jamila Toderas](/images/transform/v1/crop/frm/pMXRnDj3SUU44AkPpn97sC/45f9be94-9e8f-47b3-bfdd-6445c4ac5992.jpg/r0_100_5000_2922_w1200_h678_fmax.jpg)
Jurors are meant to bring their own knowledge and experience into jury deliberations. It would be taken for granted that a juror could say: "I've been using that sort of gun for years and that's not how you load it," or "I'm a biochemist and that so-called expert didn't know what he was talking about," or "I studied the psychology of observation and I remember a whole set of experimental studies that showed the unreliability of identifying a stranger." None of those, nor any of the other numerous similar examples one can imagine, qualifies as research.
But what if the juror wanted to check whether his memory was correct before saying anything?
Would it be research into the case for him to go home and check the studies?
While many cases, such as the NSW one mentioned above, are clear, there is a risk that at the margin, what one person might consider research, another might not. It is most undesirable for jurors to left in any uncertainty, and careful attention will be needed in drafting any such provision.
- Tom Molomby SC has done criminal trials among various others throughout more than 30 years in practice in NSW. He is the author of four books about miscarriages of justice in Australia.