Hung juries are not a failure, inquiry told

Luke Costin |

The NSW Council of Civil Liberties says a hung jury trial should not be considered a failed trial.
The NSW Council of Civil Liberties says a hung jury trial should not be considered a failed trial.

Trials ending with hung juries are not a problem and don’t need fixing with a cost-cutting exercise, an inquiry has been told.

NSW and Queensland require juries to deliberate for eight hours before the possibility of a majority 11-1 verdict can be raised, longer than all other states and territories.

It means juries with a single hold-out can be repeatedly told to “try harder” for a unanimous verdict as judges keep an eye on the clock.

Under a proposed overhaul of legislation in NSW, the minimum time would be halved in a bid to reduce the number of hung juries and expenditure on trials.

However, there was insufficient evidence those objectives would be achieved or that they were needed, critics said.

The NSW Council of Civil Liberties said fewer than one in 50 District Court trials ended in a hung jury – a “tolerable” figure and even indicative of a “healthy trial process”.

“A hung jury trial should not be considered a failed trial (unlike an aborted trial), but rather a by-product of a complex event where jurors have taken their duties seriously in the consideration of the evidence and directions,” it said in its submission to a NSW parliamentary inquiry.

“It will be inevitable that jurors (in a small number of trials) will reach a different conclusion about the guilt or innocence of an accused.”

The prolonging of deliberations impacting on juror wellbeing would be better addressed by improving juror support and directions, the council said.

“Jury deliberations … should not be made shorter for the sake of an unknown and speculative reduction of expenditure on resources and hung juries,” it said.

Various legal groups also stood in defence of the “logical” eight-hour minimum, which effectively forbids a majority verdict on the first day of deliberations.

Little data is held on how many majority verdicts are delivered each year.

“Judges have the discretion to require juries to deliberate for longer periods, but reducing the minimum time to four hours carries the risk that juries will rush to a verdict in cases where a person’s liberty is at stake,” Law Society of NSW president Brett McGrath said.

“That outcome would be anathema to the right to a trial by jury.”

The change, recommended by an independent review last year, has the support of the NSW government, prosecutors and judges.

The current minimum was “inconsistent with just outcomes” and with the practical reality of jury deliberations in some cases, particularly in shorter and less complex trials, acting Director of Public Prosecutions Frank Veltro SC said.

Deadlocked jurors are not told of the time limit, regardless of when the impasse is reached.

There was an increased risk of a miscarriage of justice if juries were persistently directed to continue deliberating “without being told how long this state of affairs must continue”, Mr Veltro said.

Other minimum times range from two hours in Tasmania to six hours in the Northern Territory.

Victoria is the only state to have no time limit, allowing a majority verdict once a court thinks a reasonable time has passed for that particular trial.