The criminal justice system in Australia has, for hundreds of years, always required that an accused person be found guilty of an offence by a unanimous verdict of the jury. However, in 2005, “hung juries” became prevalent in criminal trials in New South Wales, Australia, so the system was changed to allow for majority verdicts.
A jury trial is the basic foundation of the overall criminal justice system. Individuals charged with any serious criminal offences are entitled to have their innocence or guilt determined by the judgment of their peers. The men or women who decide their fate and if they are innocent or guilty are known as a “Jury”. Ultimately, in criminal proceedings, the jury will decide whether you are guilty or not guilty.
The importance of trial by jury was clearly expressed by Deane J in passionate words in his judgment in Kingswell in the year, 1985:
“The guarantee of section 80 of the constitution was not just a mere expression of some casual preference for one type of criminal trial. Instead, it reflected a deep-seated conviction of free men and women about how justice should be served in criminal cases. This conviction finds a solid basis in the complete understanding of the history and functioning of the common law. All of the rules relating to jury service in New South Wales (NSW) are regulated by the Jury Act 1977 (NSW).
The simple difference between a unanimous verdict and a majority verdict of the jury is the number of members of the jury who agree on a verdict. For a unanimous verdict, all jurors must agree, for a majority verdict the definition is:
Under section 80 of the Commonwealth Constitution, majority verdicts are prohibited in all jurisdictions in trials of offences against a law of the Commonwealth. There is no majority verdict in Commonwealth cases, the jury must be unanimous in their decision. Commonwealth criminal trials usually consist of Commonwealth offences, such as;
However, as stated earlier, state offences are covered under NSW law and majority verdicts in criminal proceedings are permissible.
Juries determine most of the criminal cases in the District or Supreme Court. They are typically used for “indictable offences” or serious criminal matters. However, at times, they are also used in some civil cases. They are not normally used for less serious criminal offences.
The key role of a juror is to hear people’s claims and evidence that is presented to them in court. Afterwards, they apply the law as directed by the judge. Jurors make the decision based on the evidence and law if the person is guilty or innocent in a crime they have been charged. The decision made by the jury is called a Verdict. Jurors have a duty to:
The jury play a vital role in the Australian judicial system by maintaining a perception of fairness and justice. A jury is designed to represent the broader population rather than a particular person and any other bias or prejudice they may have. Without the help of a jury, the decision about a person ‘s guilt would be solely that of the judge. In Australia, the role of a jury is to decide whether a person is guilty or not. By any means, they do not have the right to decide on the penalty that should be applied to the guilty person. In a criminal proceeding in NSW, a majority verdict is when the verdict is agreed upon by at least 11 of the 12 jurors. However, the jury panel may deliver a majority verdict if a unanimous verdict cannot be reached after a reasonable amount of time, as determined by the judge.
Every individual who is enrolled to vote in NSW is qualified and liable to serve as a “Juror”. However, there are a few exclusions which are briefly mentioned below. Many of these may be based on the profession, sickness, disability or undue hardships of a person as a result of serving jury duty.
Juries are made up of a total of 12 people selected at random from the electoral roll. In NSW, there is a specific requirement for a unanimous jury of 12. Given the need for a majority verdict of 11 jurors which are expected to last more than 3 months, in general. The judge has the right to choose to add more people to the jury i.e., a maximum of 3 additional jurors. This is done in order to make sure that there are enough jurors for the verdict to be made.
When a jury cannot agree on a verdict (that is, the jury is ‘hung’) or when jurors subsequently reveal that they did not truly agree with the verdict, it is known as a hung jury. This is a jury panel, in a criminal law matter, that cannot agree upon a verdict by unanimous decision after an extended period of time.
If there is a hung jury, the Director of Public Prosecutions will decide on whether to proceed with second trial against the accused. A second re-trial or third trial will only proceed in exceptional circumstances but this is not uncommon.
If you have been charged with a serious offence and will face a jury trial. You should speak to an experienced criminal defence lawyer.