News & Current Affairs Criminal Law
Twelve Angry People: Juries in the ACT
With all of the media attention in the past week regarding jury deliberations in the ACT, this felt like the opportune moment to write a blog post regarding the operation of juries. Most people are aware of the very basics of juries (possibly through receiving a summons in the mail to attend jury duty), but their role within the justice system is so important that it is certainly worthwhile understanding how it is that they operate, why there is even there is a jury in the first place and the role of a judicial officer in managing a jury.
So, where did juries originate and why do we have them?
The introduction of juries in Australia began during the nineteenth century when Britain colonised Australia. Juries were present in the colonies of Australia prior to Federation, however they weren’t structured in the way they are today. In New South Wales, juries comprised of six military officers, chosen by the Governor, sitting with a military judicial officer and the Judge-Advocate.
Following Federation, the requirement for trial by jury was outlined in section 80 of the Australian Constitution, as follows:
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. 
Section 80 of the Constitution was based on a provision within the Unites States’ Constitution, which in turn stems from the philosophy that people charged with serious offences are entitled to have their guilt or innocence determined by the judgement of their peers.
The importance of a trial by jury was expressed by Deane J in his judgment in Kingswell v R (1985) 159 CLR:
The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury’s verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury’s deliberative processes, the jury’s isolation … from external influences and the insistence upon its function of determining the particular charge according to the evidence combine … to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob.
Juries can be present in both civil and criminal trials. For the purposes of narrowing this blog post, I am mainly focussing on the operation of juries in criminal matters.
Juries in the ACT
In the ACT, juries are governed by the Juries Act 1967 (the Act). The Act outlines that at a criminal trial, a jury must consist of 12 jurors. Section 31A of the Act, however, allows a judge to direct, if they consider it appropriate, that a specified number of jurors, greater than 12 and less than 17 be empanelled for a criminal trial.
Juries in the ACT are chosen by issuing summons to people that are listed on the electoral roll, unless they are disqualified. Those summonses are ordinarily sent out via post to a persons address that is shown on the electoral roll, and those people who receive a summons will form part of a pool. Multiple juries may be selected from that pool if required.
When empanelling a jury, each member of the pool will be given a number. The proper officer, often a sheriff, will choose the identifying numbers via random selection (often a ballot box). A person selected must then enter the jury box, unless they are prevented by challenge. Once there are 12 people in the jury box (or more if directed by the presiding judge), they are sworn in and they become the jury. 
At a criminal trial, the Crown (also known as the prosecution) are entitled to 8 peremptory challenges and any number of challenges for a cause. The accused, often via their legal practitioner, are entitled to 8 peremptory challenges and any number of challenges for cause.
In very rare circumstances the jury pool may not have sufficient numbers to form a jury. In such circumstances a Sheriff is sent into the street to round up civilians able to join the jury. This practice is a centuries old feature of the Common Law and is known as Praying a Tales (praying a tales de circumstantibus) and was used in Canberra in 2013.
Role of the jury
Once a jury is sworn in, they need to select a foreperson. The foreperson speaks on behalf of the jury, which, if there is no dissent at the time, is taken to be bound by what the foreperson says.
The role of the jury is to listen to the evidence that is presented to them, and decide whether or not, on that evidence, the accused person is guilty or not guilty. Once the jury reaches a verdict or is discharged, their role comes to an end. The jury does not determine the appropriate sentence for an accused person – that remains the role of the judge.  Jury members are prohibited from having any prior intimate knowledge of the trial or from privately communicating with anyone in the trial. They are also prevented from doing any of their own research outside of the evidence presented to them at trial.
Importantly, section 42C of the Act protects the deliberations and identities of jury members, and it applies to juries in criminal, civil or coronial proceedings in a court of the ACT, the Commonwealth, a State or another Territory. That section creates an offence if ‘protected information’ is disseminated or published. Here, ‘protected information’ means:
“Particulars of statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberation, other than anything said or done in open court; or information that identifies, or is likely to identify, a person as, or as having been, a juror in particular proceedings.”
What if the jury can’t decide?
It is a fundamental principle that a jury must be free to deliberate without any pressure being brought to bear upon them.
If a jury passes a note to the judge stating that they cannot decide, it is ordinary practice for the judge to provide them with what is known as a ‘Black Direction’. A Black Direction has been derived from the case of Black v The Queen (1993) 179 CLR 44. In that matter, the High Court determined that a miscarriage of justice occurred when the trial judge urged the jury to reach a verdict and indicated that it would be “just terrible” if the jury had to be discharged without verdict after a trial of four weeks. It was determined that the words used were “emotive” and the trial judge failed to clearly indicate that each juror had a duty to give a verdict according to the evidence.
A Black Direction is normally made in the following words:
I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.
Each of you has [sworn/affirmed] that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom, and you are expected to judge the evidence fairly and impartially in that light.
You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have, and may convince you that your original opinion was wrong.
That is not, of course, to suggest that you can, consistently with your [oath/ affirmation] as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.
I remind you of the direction which I gave you at an early stage of my summing-up. Your verdict — whether it be “guilty” or “not guilty” — must be a unanimous one.
All twelve of you must, in the end, agree upon that verdict. It may be that the particular paths which lead each of you to that unanimous decision are not quite the same, but, nevertheless, your verdict of “guilty” or “not guilty” must be the verdict of you all. In other words, provided that you all agree that a particular verdict should be given, it does not matter that you do not agree as to why that particular verdict should be given.]
Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged.
So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict in this trial.
In the ACT, juries must come to a unanimous verdict – being all 12 jurors agree on the verdict. There is no option in this jurisdiction for a jury to reach a majority verdict (often in the formal of 11 to 1).
If after receiving a Black Direction there is still no likelihood of agreement, then, and only then, the foreperson must be examined on oath to establish that the jurors cannot agree, and then may discharge the jury. The jurors must have deliberated for at least 6 hours before the jury can be discharged. This is known as a ‘hung jury’.
A study conducted in 2000 found that hung juries occur in a small number (being 3 to 8 per cent) of Australian trials. The study also found that longer trials and jury trials in more culturally diverse city courts may be more likely to attract a hung jury.
What happens if the jury is discharged?
If the jury is hung, they are discharged and no verdict is reached.
A jury or single juror may also be discharged in circumstances other than failing to reach a verdict. This including (but not limited to):
- If a juror was mistakenly or irregularly empanelled (for example, if a juror is an excluded person under the Juries Act 1974 (ACT));
- If a juror engages in inappropriate conduct, for example a juror accessing a fact of a trial outside of the evidence present;
- If a juror has contact with the accused;
- Apprehended bias;
- If the juror is sick;
- If a juror dies; and
- If a potentially prejudicial event occurs during the trial (for example, if a lawyer says something in Court that would cause irreversible prejudice).
Only today, the ACT has seen a jury discharged for one of the above reasons – engaging in juror misconduct. People across Australia would be hard pressed to have missed all the media attention surrounding the trial of Bruce Lehrmann. Mr Lerhmann is accused of raping Brittany Higgins in Parliament House on 23 March 2019.
This morning (being 27 October 2022), after 4 days of deliberation, 12 days of trial and examination of 29 witnesses, the jury comprised of 4 men and 8 women was discharged after one of the members of the jury disobeyed the direction of Her Honour Chief Justice McCallum and brought a research paper into the jury room. As above, jurors are prohibited from conducting their own research or otherwise obtaining information regarding the trial outside of what is presented in Court.
It has been reported that a sheriff’s officer inadvertently made the discovery during “routine cleaning” of the jury room on Wednesday afternoon when he accidentally knocked over one of the jurors’ folders and saw the title of the document. The title of the document suggested that the topic of the paper might be sexual assault. 
Her Honour said in open Court that the research paper was about sexual assault and in particular the reasons behind false complaints and scepticism in the face of true complaints. 
In closed court this morning, Her Honour summoned the 12 jurors to question them about the research paper. Her Honour went on to comment in open court that whilst the juror behind the misconduct claimed that the jury had not relied upon the paper in any way, it was “beyond question” that the trial had to be aborted. Her Honour noted that she had warned the jurors at least 17 times not to undertake their own research. 
In Mr Lehrmann’s trial and any other trials where the jury is discharged, it is then up to the prosecution whether or not to conduct a re-trial, or alternatively ‘drop’ the charges – meaning that the accused does not face a second trial and therefore does not face prosecution. If they are held on remand, they would be released, otherwise if there is a re-trial they will continue to be held on remand.
There are, of course, significant consequences of a re-trial being held. It causes a delay in the accused and any victim receiving an outcome and also incurs significant costs for both parties in bringing the case a second time.
Mr Lehrmann has been granted bail, with conditions that he must appear for a retrial on 20 February 2023 if the Director of Public Prosecutions chooses to run the matter again.
The role of the jury is clearly an important cornerstone of the Australian justice system. There is little doubt that the role of a jury is extremely important and should be given appropriate weight and be taken very seriously.
I can highly recommend the Australian drama ‘The Twelve’ if you are looking for a dramatized version of the dynamics of a jury if you are looking for something to binge watch this weekend.
 Michael Chesterman, ‘Criminal Trial Juries in Australia: From Penal colonies to a Federal Democracy’ (1999) 62(2) Law and Contemporary Problems, 69.
 Australian Constitution, section 80.
 Juries Act 1967 (ACT), section 7.
 Ibid, section 31.
 Ibid, section 34.
 R v Leggatt  VR 705 at 710.
 Juries Act 1967 (ACT), section 42C.
 Juries Act 1967 (ACT), section 38.