The Christchurch Civic Crèche Case

Law Reform Index

Unanimous Jury Verdicts

The Press
January 23 2004

A sensible decision

The proposal announced by the Minister of Justice, Phil Goff, to allow majority verdicts in criminal trials is a sensible one. They have been used for decades in other jurisdictions without problems and they should help to reduce an unacceptably high level of hung juries.

The change is one of a number to the jury system that the minister intends to place before Parliament in a bill to be introduced early this year. Only some of the changes will require legislation. Those that the minister has announced so far follow recommendations made by the Law Commission, which for once has a chance to see its work bear fruit. The commission, whose reports and worthy recommendations often languish unheeded by governments, has spent several years studying the subject, including the commission of an in-depth survey of jurors themselves.

The aim of the changes is a commendable one. As the minister puts it, it is to strengthen what is a vital part of our justice system and democratic society.

The proposal for majority verdicts will be the most contentious part of the legislation. Unlike England, where 10:2 majority verdicts have been allowed since 1967, the proposal here is to allow 11:1 verdicts. In England the change was made because tampering with juries by criminals -- "jury nobbling" -- had become a serious problem.

Although prosecutors here say that is not unknown, it is also not particularly common and the risk of it is not great. More likely here is the problem of the "rogue" juror -- one who will be simply unreasonable and unwilling to participate properly in the process or at all.

Precisely how much of a problem the single hold-out juror is cannot be known for certain. The Law Commission's research survey did note, however, that of five juries dealing with multiple charges that could not reach a unanimous decision on any of the charges, two were stymied by a single juror who refused to consider a guilty verdict. Whatever the reason, in the 12 months to October 2000, fully 13.1 per cent of jury trials in the High Court, where only the most serious cases are now tried, ended with the jury being unable to reach a decision. The total for both the High and District Courts was 8.7 per cent. If majority verdicts can reduce this without seriously compromising the right to a fair trial, they will be worthwhile.

Even if majority verdicts are introduced, the aim in jury trials should still initially be to get unanimity. In England a jury must deliberate for at least two hours before being told it may reach a majority verdict. In the Australian states that allow majority verdicts, the minimum is between two and six hours. The Law Commission has recommended that the jury should deliberate for a minimum of four hours. This seems to be a reasonable safeguard.

The minister must, however, reject the commission's proposal that a majority verdict should not be disclosed. In England, a majority verdict is disclosed by the jury on a conviction but not on an acquittal.

Since the fact that the jury has been allowed to consider a majority verdict is disclosed, the English public must then guess whether an acquittal has been arrived at that way, rather than know for sure. Unless the fact that the jury was being allowed to consider a majority verdict were also suppressed, there does not seem to be much point to the rule.

The minister also proposes to include a provision that would enable the prosecution to seek to have certain trials that are likely to be long and complex, such as fraud, heard by a judge alone. Again, this is a practice that has been followed in England for some decades, where it has worked without serious problems.