Criminal Law Law Updates

By Peter Woodhouse


Rights to a fair trial under threat

Every ACT citizen should be troubled by the announcement yesterday that the ACT is going to introduce mandatory verdicts for jury trials.  It is a disappointing sign that our Government has joined a race to the bottom in the ‘law and order’ debate.  Anyone would think there was an election soon… oh, wait… there is.  I thought the Attorney General was a progressive.

For those of you who aren’t aware, the current state of the law in the ACT is that a unanimous verdict of guilty or not guilty is required in any criminal trial – usually of 12, but sometimes less if you lose a juror along the way.  Unanimous verdicts have been around since the 14th century – that’s the time of the Black Death, Mongol raids and the Hundred Years’ War.  In a trial, if a jury cannot reach a unanimous verdict after many hours of deliberation, they are ‘hung’, the jury is discharged and the trial abandoned.  That is only after the judge gives them what is known as a ‘Black Direction’, where they get told to keep an open mind, consider the opinions of others and keep trying to reach a unanimous verdict.

I’ve been a criminal defence lawyer for more than 15 years.  I’ve defended people in a variety of criminal trials, from sexual assault to murder and hung juries are rare.  It does seem though that hung juries are becoming more common than they used to be.

Perhaps, rather than watering down the already limited protections offered to somebody charged with serious criminal offences, the Government should look at some of the reasons for hung juries.  The most obvious reason seems to be the incredibly complex and confusing legal directions that have to be given to juries before they are sent off to deliberate.  The length and complexity of those legal directions have only increased in recent years, usually as a result of amendments passed by the Governments of various jurisdictions, including ours, particularly in the area of sexual assault.  The new definitions of consent, amendments in relation to intoxication and tendency reasoning are some examples.  Sometimes you can see the eyes of jury members glaze over when they are being spoken to about these complicated legal subjects that even many lawyers struggle to understand.

The availability of mandatory verdicts in certain circumstances will only further complicate the process.  As an example, majority verdicts are not available in trials for Commonwealth offences.  In his speech yesterday, the Attorney General noted: “It is envisaged that if a trial includes both territory and Commonwealth offense, that the judge will be able to take a mixture of both unanimous and majority verdicts from the jury”.  Good luck to any jury trying to comprehend that reasoning.

Most recent amendments to the criminal law, including the one enabling mandatory verdicts, continue to chip away at the rights of the accused.  For too long the pendulum has been swinging the wrong way.  What about the rights of the accused?  In the Attorney’s announcement there was little to no reference to what is known as ‘the golden thread’ in our legal system – the presumption of innocence and the right to a fair trial.  The golden thread is being reduced to fluff balls and the right to a fair trial is being undermined by the day.

As difficult as the concept may seem to some, the sad reality is that not all complaints are genuine.  Some are embellished and some are bold-faced lies.  When the consequences of a conviction are so severe, there must be important protections to ensure judgement is delivered on adequate, properly collected evidence and at a level of satisfaction providing a sufficient degree of safeguard to the accused.  Put yourself in the shoes of a person wrongfully accused of a serious criminal offence for a moment or imagine someone you care about in that position.  You would desperately hope that any trial they faced was a fair one.  In 1769, William Blackstone apparently said that “the law holds that it is better that 10 guilty persons escape, than that 1 innocent suffer” – that is that one innocent person be wrongly convicted.  How have we gone backwards from there?

If the ACT Government is genuine in their desire to improve the criminal justice system in the ACT, rather than continuing on the race to the bottom, why doesn’t the Attorney start by finally providing a thorough response to the Sofronoff Report?  Or maybe they would like to appoint a replacement Director of Public Prosecutions who is independent, fair and worthy to hold that office.