Difference between a majority verdict and a unanimous verdict

For hundreds of years, juries in NSW criminal trials were required to return ‘unanimous’ verdicts of either guilty or not guilty, in order for an accused person to be convicted or acquitted of a crime.

This meant that all 12 members of the jury had to reach the same conclusion about whether the prosecution had managed to prove the accused’s guilt beyond a reasonable doubt.

If they were unable to all agree one way or the other, a ‘hung jury’ would be declared and the jury discharged. The prosecution would then need to decide whether to retry the case.

Government rejects Law Reform Commission’s recommendations

Concerns relating to ‘rogue jurors’ refusing to change their minds despite the strength or weakness of the evidence led the NSW Law Reform Commission to draft a report entitled ‘Majority Verdicts’, which was published in August 2005.

After considering the arguments for and against unanimous verdicts, the Commission recommended that:

1. The system of unanimity should be retained, and
2. Empirical studies should be conducted into the adequacy, and possible improvement, of strategies designed to assist the process of jury comprehension and deliberation.

Despite those recommendations, the NSW government went ahead and enacted the Jury Amendment (Verdicts) Ac​t 2006 (NSW) which amended the Jury Act 1977 (NSW) to allow for ‘majority verdicts’ in criminal trials for state offences.

Majority verdicts

Section 55F of the Jury Act now allows for ‘majority verdicts’ in the following circumstances:

• Where a unanimous verdict has not been reached after the jurors have deliberated for a period of at least 8 hours, and the court considers that reasonable time has been given considering the nature and complexity of the case, and
• The court is satisfied after questioning one or more of the jurors on oath that it is unlikely a unanimous verdict will be reached.

‘Majority verdict’ is defined as:

• a verdict agreed to by 11 jurors where the jury consists of 12 persons, or
• a verdict agreed to by 10 jurors where the jury consists of 11 persons.

The judge is not to advise the jury of its ability to return a majority verdict before determining that a unanimous verdict is unlikely to be reached.

No majority verdicts in Commonwealth cases

It is important to note that majority verdicts do not apply to Commonwealth offences, such as drug importation cases, matters involving the illegal use of carriage services, and tax and Centrelink fraud cases.

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.

Briefing Paper No. 15/2005 by Talina Drabsch

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The issue of whether majority verdicts should be introduced in New South Wales again came to the fore when the 10 week trial of Bruce Burrell for the kidnapping and murder of Kerry Whelan ended with a hung jury in November 2005. The case is to be retried in early 2006. The NSW Law Reform Commission in its 2005 report on majority verdicts had concluded that the requirement of unanimity should be maintained in NSW, as the arguments in support of unanimous jury decisions continued to outweigh those in favour of majority verdicts. The Commission noted that much was still unknown about the deliberation of juries and recommended that more research be conducted into juries in NSW. In November 2005, the Attorney General for NSW, the Hon Bob Debus MP, announced that the Government would introduce majority verdicts of 11:1 for criminal trials in NSW. If the measures proposed by the Government pass into legislation, majority verdicts would subsequently be available for all criminal offences, provided a minimum deliberation period has passed. Andrew Tink MP, Shadow Attorney General, has argued for the introduction of majority verdicts since the mid 1990s.

Section two (pp 3-8) of this paper provides an overview of the requirement of unanimity. The results of the 1997 and 2002 Bureau of Crime Statistics and Research studies are discussed, as are the findings of the 1999 New Zealand Law Commission study of juries in criminal trials.

An outline of the NSW Government proposal for majority verdicts in criminal trials in NSW is included in section three (pp 9-10). The history of Opposition attempts to introduce majority verdicts is also noted.

Section four (pp 11-17) compares the position adopted in the various jurisdictions in Australia. Unanimity continues to be required in NSW, Queensland and the ACT. The High Court has also interpreted section 80 of the Constitution as requiring the decision of the jury in a trial for an indictable Commonwealth offence to be unanimous. Whilst majority verdicts are permitted in Victoria, Tasmania, South Australia, Western Australia and the Northern Territory, these jurisdictions differ according to the number of dissidents permitted, the offences for which a majority verdict is permitted, and the minimum deliberation time required. This section also notes the position adopted in a number of international jurisdictions.

The main arguments in favour of the retention of unanimity are discussed in section five (pp 18-23). Such arguments generally focus on: the standard of proof in criminal trials being beyond reasonable doubt; the greater deliberation of issues facilitated by unanimity; the relative infrequency with which hung juries occur; the possibility of the disagreement of the minority jurors being based on sound reasons; ensuring consistency with the treatment of Commonwealth offences; and the fact that majority verdicts do not remove all of the difficulties associated with unanimity. The opinions of the NSW Law Reform Commission and representatives of the legal profession are also noted.

There are various arguments for the introduction of majority verdicts in criminal trials. The arguments canvassed in section six (pp 24-27) include: the reduction of the number of hung juries; overcoming the problem of the rogue or perverse juror; the avoidance of compromise verdicts; reduction of the possibility of corruption; allowing for a more democratic decision-making process; more efficient verdicts; unanimity is not required to uphold proof beyond reasonable doubt; and ensuring greater consistency with civil proceedings and with the practice in the majority of Australian jurisdictions. Reference is also made to the opinions of the NSW Law Reform Commission, Justice John Dunford, Justice Reg Blanch and Nicholas Cowdery.

What is meant by unanimous verdict?

What is a majority verdict in NSW?