Wednesday, December 21, 2005

Potential Justice Denied

ONE OF the cornerstones of Queensland's justice system is under threat as the result of a New South Wales decision to abandon the centuries-old legal rule that a jury must reach a unanimous verdict in a murder trial. NSW will legislate to allow 11-1 majority jury verdicts for murder trials and there are moves within Queensland to do the same. 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 criminologist, I think the idea is appalling and should be vigorously opposed, because it represents a serious erosion of the principles of justice. The issue has arisen here only be cause of NSW's wish to streamline courtroom efficiency. A recent high- profile case there was deadlocked by a single juror who held out against the 11 others during 13 days of deliberations. Leg 1 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 to change the rules and allow an 11-1 jury verdict to prevail. De Jersey's reported support for allowing majority verdicts for all jury trials in Queensland is surprising, and I expect it will draw little support from the legal profession. The NSW change overthrows a principle which dates back to the Dark Ages and required juries of 12 people to reach a unanimous verdict. Historical records show that 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 a bias. Australia inherited the British legal system and despite its sometimes elephantine ways, it works. Justice is seen to be done. Our Chief Justice 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 Leg 2 got it wrong. We dismantle the foundations of our legal system at our peril. If an 11-1 majority verdict is acceptable, we open ourselves to further tinkering with 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 diluted down the track. If the ``rules'' driving a jury's deliberations are diluted, it erodes the concept of a case being proven beyond a reasonable doubt. A jury of lay people might not be willing to analyse the evidence minutely if they know they need only a majority to end the case and go home. It may sound simplistic, but jury dynamics must also be considered. Anyone who analyses the court's calendar would see that in any given year there are more retrials by appeal than there are because of a hung jury. So do we outlaw or restrict appeals as Leg 3 well, to streamline the efficiency of the courts? It may sound far-fetched but if we are willing to throw away one traditional legal principle, why not toss out another too, in the interests of ``efficiency''. Once you flatten the long- proven methods for determining justice, there is no template for what might happen next. Queensland Attorney-General Linda Lavarch has been guarded on the idea of changing the jury verdict law here and I support her reticence. She has been reported as saying there were no plans to change Queensland's system of requiring a unanimous jury verdict, and no change would be made without full community consultation. I urge her to keep the Queensland system as it is now. You must have a unanimous verdict for both acquittals and convictions. Once you start tinkering with jury verdicts, the potential for miscarriage of justice is enormous. A requirement that all 12 jurors reach a unanimous decision minimises the possibility of a perverse juror derailing a fair verdict. Leg 4 There are occasions when you have a hung jury, but it's not common. Only a tiny percentage of juries cannot reach a unanimous decision. At the moment some states allow majority verdicts for non-murder trials, but all require a unanimous verdict for murder. With NSW now breaking ranks, the disparity between states for murder verdicts will inevitably increase the inequity between jurisdictions and attack the fundamental rights requiring a high burden of proof for major offences that can carry a life term. We will see two different systems in the same country in which people can be found guilty. It will be chaotic, bad for justice and bad for public confidence in the justice system. NSW has got it wrong. The unanimous jury verdict is a staple of our system and should not be changed on a whim. Queensland needs to show a firm hand and resist moves to change our jury verdict laws.

till next time, Michelle.
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