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Majority verdicts wont see justice done

By Michael Bosscher - posted Thursday, 15 December 2005


A cornerstone of the Queensland justice system is under threat following a New South Wales decision to abandon the centuries-old legal rule that a jury must reach a unanimous verdict in a murder trial.

New South Wales will legislate to allow 11-1 majority jury verdicts for murder trials, and there are moves to do the same in Queensland. Queensland’s Chief Justice, Paul de Jersey, supports the move, reportedly saying majority verdicts should apply in all trials, not just those for murder.

As a criminal defence lawyer, I think the idea is appalling and should be vigorously opposed because it represents a serious erosion of the principles of justice.

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The issue has only arisen in Queensland because of New South Wales’ wish to streamline courtroom efficiency. A recent high-profile case in New South Wales was deadlocked by a juror who held out against the rest during 13 days of deliberations.

A “hung” jury usually means a re-trial, but rather than submit its courts to hearing the same matter again, the NSW Government has decided simply to change the rules and allow an 11-1 jury verdict to prevail.

Chief Justice de Jersey’s reported personal support for allowing majority verdicts for all Queensland jury trials is surprising, and I expect it will draw little support from the legal profession.

The New South Wales change overthrows a legal principle which dates back to the Dark Ages and required juries of 12 people to reach a unanimous verdict.

Historical records show the English King, Ethelred the Unready, set up an early legal system, with a provision that the 12 leading nobles of each district swear to investigate crimes without bias. The jury system further evolved under Henry II who established a system to resolve land disputes using juries of 12 free men as arbitrators.

Australia inherited the British legal system and despite its sometimes elephantine ways, the system works. Justice is seen to be done. We take the legal traditions as a “given”, because they work.

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Chief Justice de Jersey says there is “no particular magic” in the number 12, and therefore majority verdicts of 11-1 should be allowed. With respect, the Chief Justice has got it wrong.

We dismantle the foundations of our legal system at our own peril. If an 11-1 majority verdict is acceptable, we open ourselves to further tinkering with the numbers. A jury can’t reach an 11-1 decision? Why not allow 10-2, or 7-5 verdicts? A trial is no place to play football scores with a defendant’s liberty.

A majority verdict undermines the concept of what a jury is supposed to do - reach unanimous agreement on guilt or innocence. A political decision to allow majority verdicts opens the way for the "majority" required to be further diluted down the track.

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About the Author

Michael Bosscher is managing partner of Brisbane-based national criminal defence law firm Ryan & Bosscher Lawyers.

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