The decision by the Australian Capital Territory Government to allow majority verdicts could lead to more appeals, Tony Nikolic warns.
A Sydney criminal lawyer has warned that the Australian Capital Territory (ACT) government’s decision to allow majority verdicts—where a finding of guilt can be made even if one juror dissents—“raises valid concerns about the potential implications for the justice system.”
In an exclusive interview with The Epoch Times, Tony Nikolic of Ashley, Francina, Leonard & Associates (AFL Solicitors) said the change undermines “the foundational principle of unanimous agreement among jurors [which is] essential for ensuring thorough deliberation and safeguarding against potential biases or errors.”
A unanimous verdict is a “time-honoured standard,” he said, and departing from it could start “a slippery slope in the judicial process, where expediency takes precedence over the meticulous examination of evidence, jeopardising the integrity of verdicts and the rights of defendants.”
Judge-Alone Trials Also Pose a Risk
Similar concerns attach to the introduction of judge-alone trials as an alternative to jury trials, which “introduces another layer of complexity and potential risks,” Mr. Nikolic said.
“While judge-alone trials may offer efficiency benefits in certain cases, they also carry the inherent risk of judicial bias or errors,” he said.
“The concern that judge-alone trials could lead to decisions influenced by political alignment or individual subjectivity poses a significant threat to the impartiality and objectivity of the legal process, especially as we live in a world of 24-hour media and social media cycles.”
Sydney criminal lawyer Tony Nikolic. (Courtesy AFL Lawyers)He warned that the potential consequences of these changes extended beyond immediate outcomes.
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Majority verdicts could lead to a greater number of lengthy appeals, “characterised by escalating legal costs borne by taxpayers and litigants,” he said.
“The spectre of prolonged legal battles, mounting expenses, and a protracted quest for justice underscores the gravity of the decision to veer away from unanimous juries and [to] embrace judge-alone trials.”
As the ACT’s legal landscape changed, it was important “to tread cautiously and carefully evaluate the trade-offs between efficiency and the preservation of foundational legal principles,” he warned.
“Safeguarding against potential miscarriages of justice and upholding the rights of all parties involved must be paramount to ensure the continued integrity and credibility of the justice system. Justice should not only be done but be seen to be done if the Australian community is to maintain its confidence in the Australian judiciary.”
The significant differences in the rights granted to accused persons across the multiple Australian legal jurisdictions was also an issue.
“Diverse protocols are in place across various states and territories, offering different liberties to the accused. In certain jurisdictions, such as Western Australia, the option of a judge-alone trial is permitted with mutual consent and a demonstrated public interest, while in others like Tasmania, the notion of waiving a jury trial is entirely proscribed,” he pointed out.
However Andrew Tiedt, a director at criminal law specialists J. Sutton, points out that, in the 2022 calendar year, in 89.7 percent of trials in the New South Wales (NSW) District Court the jury was able to reach a verdict, while only 4.1 percent resulted in a hung jury (6.2 percent were aborted).
“Views tend to differ over whether majority verdicts are a good thing. Unanimous verdicts are often viewed to guard against wrongful convictions,” Mr. Tiedt said.
“However, my anecdotal experience is that majority verdicts are ‘not guilty’ at least as often, if not more often, than they are ‘guilty.’”
Retrials ‘No Good For Anyone’: Former Prosecutor
Former prosecutor and ACT Leader of the Opposition Bill Stefaniak praised the change when it was implemented.
“I have seen, on rare occasions, situations where there seems to be one stubborn juror who hangs out and refuses to change their mind despite the often overwhelming evidence to the contrary,” he said.
“Currently, that will mean a retrial, which is not good for anyone.
“If the judge can say, after a reasonable period (and six hours is, in my view, reasonable): ‘Well, Mr/Ms Foreman of the Jury, do 11 of you agree on a verdict?’, and if the foreman answers: ‘Yes, Your Honour, 11 of us do,’ Bingo! you can now have a verdict.”
Reducing Deliberation Time Has ‘Grave Consequences’: Law Society
Meanwhile, NSW recently passed a new law, the Jury Amendment Act. It reduced the time a jury needed to deliberate before a court could accept a majority verdict from eight to four hours, which the NSW Law Society described as representing “an erosion of the importance of the jury’s role in our justice system.”
“The stakes for both defendants and the state could not be higher than in a jury trial. Both the defendant’s liberty and the state’s interest in enforcing the law hang in the balance,” Society President Brett McGrath said.
Its submission to the Legislative Council’s Inquiry into the changes advised that the rationale for the eight-hour minimum has not changed since the measure was introduced in 2006.
“The then Attorney General Bob Debus was right when he told the Parliament that an eight-hour minimum compels a jury to deliberate ‘for more than one court day’ before it’s directed that it can return a majority verdict,” Mr. McGrath said.
“Given the grave consequences that can flow from a jury verdict, this period should remain—the very least that a jury is required to consider often complex evidence to deliver their decision unanimously. A mere four hours is insufficient.
“Judges have the discretion to require juries to deliberate for longer periods, but reducing the minimum time to four hours carries the risk that juries will rush to a verdict in cases where a person’s liberty is a stake. That outcome would be anathema to the right to a trial by jury.”
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