Proposed Change to Majority Verdict Deliberation Times

NSW proposed cutting the mandatory jury deliberation period for a majority verdict from eight hours to four. Matt Ward breaks down how majority verdicts work, the safeguards that remain in place, and why he supports the change — while addressing concerns raised by the Law Society and the Aboriginal Legal Service.

Matt Ward: The first thing is to understand what a majority verdict actually is. In a jury of 12, it’s not seven people agreeing and five not agreeing — it’s 11 out of 12, or if the jury is reduced to 11 people, 10 out of 11. So it’s only one person on the jury who doesn’t agree — that’s a majority verdict, not a majority in percentage terms. There are a number of preconditions in place at the moment for when a court can take a majority verdict. First, there has to be eight hours of deliberation. Second, the court has to think that deliberation time is reasonable having regard to the nature of the case. And the court has to be satisfied they’re not going to reach a unanimous verdict — that it’s just not going to be possible based on the information they have. Those are the current preconditions in New South Wales. The change being proposed isn’t to remove those preconditions, but to reduce the eight hours of deliberation required to four hours.

Interviewer: Do you hear that often — a jury coming back and saying, we’re pretty close, we know we’ve been going a long time, but give us a bit more time and we’re confident we’ll get there? That must be an interesting part of the legal system to hear, because it’s an indication the jury thinks they can get there, whereas some will come back and say, no, we’re just not going to get there.

Matt Ward: Exactly right. That’s why it’s really important for there to be flexibility in these legislative changes — every trial is different, every jury is different, every case is different. If you start prescribing very specific rules for every scenario, you take away discretion from the judge and the parties to deal with the situations that actually arise. Your example is a good one — some juries go well past eight hours and this issue doesn’t arise at all. But in other situations, jury panels come back well before the eight hours saying they’re locked, or won’t reach a decision, or they’ll tell the judge in writing — sometimes showing voting patterns. In those scenarios, the current blunt instrument is what we call a black direction — effectively telling them to keep going, because you can’t tell them a majority verdict is available until the eight hours has passed. Which is difficult, because it may be 11 people agree and one doesn’t, and it may be appropriate to take a majority verdict, but you can’t even tell them about it.

Interviewer: Which way are you leaning on this? It’s causing a lot of debate, and there’s going to be an upper house inquiry into it.

Matt Ward: There are pros and cons to both, but overall, in my view, I think it’s a good change — specifically the reduction from eight hours to four. The bill makes other changes to the Jury Act too, but I’m supportive of this particular reduction. Different states have different time periods — Victoria has no time limit, Tasmania has two hours, the Northern Territory has six. The argument for change is essentially that you might have a rogue juror who isn’t really participating, or is fixed in their view and will never change it. It’s also important to understand that many trials — for example, many trials in Wollongong — only go for three or four days. If the evidence is straightforward and the trial is short, why do you need almost two days of deliberation time? That can start to create backlogs and inefficiencies. Those are some of the reasons I support the reduction. The arguments against are essentially that beyond reasonable doubt is a high standard requiring unanimity, that it enhances the quality of deliberation and keeps people engaged, that it stops people compromising their views just to get out of there, and that a juror holding out may have very good reasons, based on the evidence, to be the outlier — which shouldn’t mean a quicker path to a majority verdict.

Interviewer: Have you seen many examples in your career where this has happened — where the jury’s taken too long, or the courts have been held back?

Matt Ward: There are certainly scenarios where the court wants to give the direction because the eight hours genuinely hasn’t been met — that’s a really frustrating experience for everyone, including the accused, the lawyers and the judge, because there’s a time limit you just have to wait out. But it doesn’t arise as much as people think in terms of majority verdicts — I think everyone would be surprised how often juries agree, whether it’s an acquittal or a guilty verdict. Juries agree, I would think, much more often than not. In my personal experience, majority verdicts don’t happen as often as people assume.

Interviewer: I think we’ve watched too much courtroom drama. The Law Society and the Aboriginal Legal Service have raised concerns — one comment was that administrative efficiency mustn’t be prioritised over safeguards that ensure a majority verdict is only available once a jury’s had adequate opportunity to deliberate. Is there any concern this is about penny-pinching in the courts, trying to get on top of a backlog?

Matt Ward: We completely agree with the Aboriginal Legal Service’s statement that you shouldn’t have to cut corners or choose pragmatism over justice in a general sense. But I think there are still safeguards in place to make this a fair balance, allowing the court to provide the option at an appropriate time rather than a more lengthy one. As I said, even after eight hours, the judge has to determine that the deliberation time, whatever it is, is reasonable having regard to the nature of the case. For example, if there’s been a six-month terrorism or fraud trial and the jury has been out for eight hours and wants a majority verdict, the judge may still say that isn’t a reasonable time given the nature of the case and the evidence. And the court has to be satisfied — by making an inquiry of the foreperson — that a unanimous verdict isn’t going to happen. Those safeguards are still in place, and I think it’s a fair balance that protects the rights of the accused while upholding the importance of a criminal trial.

Interviewer: Where do you think this goes from here — there’s an upper house inquiry, and the government, like the previous government, seems to support the change?

Matt Ward: It’ll go through a natural process, but I expect these changes will be put in place at some point — whether that’s this year or next, I’m not sure, but I’d expect it this year. There’s a fair bit of support from different parts of the justice system, on my observation, so I expect it will be passed at some point this year.

Transcript lightly edited for readability (false starts, crosstalk removed).