Can the system minimise irrational jury verdicts?

Jurors don’t have the intelligence to provide sound reasons for their collective decisions, according to the legal fraternity’s outdated rules. There is a better way, argues ANDREW L. URBAN. 

In a major murder trial that we have taken years to analyse and deconstruct, the jury’s guilty verdict is a head-scratcher. Having only circumstantial evidence, the Crown based its case impermissibly on a circular argument; the guilt of accused is proven by his guilt, to put it briefly. (Yes, the judge failed to notice …) The accused had an alibi, which the Crown attacked with a covert, supposedly incriminating recording by an unreliable jailhouse snitch. At the very least, the jury ought to have entertained a reasonable doubt as to the guilt of the accused. The judge didn’t help matters, with some unclear directions about alibi to the jury. The Crown’s case was always weak, with no evidence as to when the killing took place, while insisting that it occurred within a certain 3-hour window. That window was where the Crown had to negate the alibi – which was supported by the wife of the accused.

The 11-1 guilty verdict followed a trial that had ended with a hung jury. The case screams ‘reasonable doubt’. In our jury system, the accused is prevented from knowing why the jury convicted him. As is the legal system and the public. Enormous efforts and money went into the case, both taxpayer money and his private assets…  Appeals followed. More uncertainty, guesswork as to what the courts will consider appealable error (considering there were many).

This case, extreme as it may be, is not unique. It demonstrates the absurdity of the criminal justice system where a judge’s reasons are mandatory, but a jury’s reasons must remain secret. There is a better way… but first, let’s examine why the system should change and why it should not.

In a newspaper debate between two lawyers in the Sun Herald (March 11, 2008), the pro and con arguments were laid out.

“Juries in Australia are not required (and not permitted) to give the reasons for their verdict. It is an offence to ask them. This is an out-dated, irrational quirk in our system of justice,” wrote lawyer and writer Mirko Bagaric.

This silence flies in the face of trends in all other areas of law and government where there is a growing need for decision-makers to give reasons for decisions.

This is sound, modern policy.

If an individual has their rights adversely affected by the operation of the law, they are entitled to know by what power this occurred and how this power applied to their personal situation.

The process of obtaining reasons enables people to understand why they have been treated in a certain manner and gives them a basis for challenging the decision in question.

Logically, the more important the right at stake is, the higher is the imperative to give reasons. But not in our legal system.

The most important decision is guilt or innocence in relation to a serious crime.

Paradoxically it is the only decision that we are not entitled to have explained to us.

The underlying reason for this anomaly relates to distrust of jurors, who are assumed to be lacking in the higher intelligence and knowledge of human behaviour in which lawyers are seemingly over-endowed.

This contention appears to be flawed.

The empirical evidence that has been conducted about jury deliberations in fact shows that jurors have a sound understanding of the law and approach their task in a reasoned manner.

It seems that the rationality gene pool is not exhausted by lawyers. There are of course dangers associated with this.

Jury reasons might show the reasoning of juries is often wrong and hence provide fertile grounds for appeal. It may become apparent that juries often act irrationality and contrary to the law.

They may in fact pay too much weight to their hunches or base their decisions on irrelevant considerations, such as sympathy or dislike of accused people.

Worse still though, is not knowing how they reach their decisions.”

But defence lawyer Colin Lovitt QC, disagreed.

“Those now baying for important changes are, frankly, reacting emotionally.

There is no better system than the jury system. Juries must have and must expect anonymity after a verdict (unless you want the intrusive media circus of the US).

And what is the basis for calling for a jury to provide the court reasons for its decision?

Apart from turning verdicts into wordfests, why can’t people accept that the jury’s verdict of not guilty meant the Crown did not prove its case beyond reasonable doubt?

The jury’s verdict in the Towle case clearly indicated it was not satisfied beyond reasonable doubt that his driving was so negligent as to be culpable driving. The issue in the Towle case was whether his driving was so bad as to be grossly negligent, and therefore culpable.

It is obvious, if one sits and looks at the evidence, rather than just condemning a verdict because it is unpopular or unexpected, that the jury thought that the evidence fell short of proving this.

Anyone following the trial would be able to discern what led to the result, without requiring the jury to answer a set of interrogatories at the end.

Is it not insulting the intelligence of a jury to infer they must have got it wrong without actually stating your process of logic?

Juries providing reasons would no doubt encourage one side or the other to engage in endless appeals on technicalities.

Some are also calling for the introduction before the jury of evidence of an accused man’s prior convictions.

One of the bastions of the criminal law is that an accused should be judged by the evidence that he or she committed the offence charged, and not that he or she is more likely to be guilty because “they’ve done it before”.

Evidence that merely establishes propensity is not admitted, save in exceptional circumstances.

The last trial of murderer Peter Dupas was a case in point – the evidence of other crimes was relevant to other issues in the case. It has no relevance for Towle.

The media will always highlight the convictions of a person just acquitted by a jury. It is meant to insinuate that if only the jury knew they would have reached a different verdict.

My experience with juries is that they are not so distracted from what is the important evidence and issues in a trial.

Juries are not nearly as easily influenced as journalists. Or academics.”


We respectfully reject Colin Lovitt QC’s arguments as irrational.

A better way?

In the case of Cardinal Pell, for instance, the High Court unanimously upheld Pell’s appeal, stating (inter alia) that on the evidence of the opportunity witnesses, a jury acting rationally ought to have entertained a reasonable doubt. It is arguable that had the jury been required to provide written reasons for its verdict for appraisal by the trial judge prior to its proclamation, that ‘irrationality’ would have alerted the judge to redirect the jury, pointing out the false basis of their verdict. Both the original reasons and the judge’s redirections would form part of the trial transcript for any future reference and/or appeal.



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11 Responses to Can the system minimise irrational jury verdicts?

  1. Owen allen says:

    I told the Appeal Judge, no jury, 2 student witnesses, that its a farce. The Judge said, you say this is a farce, and I said yes, with no explanation. Too tongue tied and introverted and I guess intimidated of the circumstances to argue against the Prosecutor with his stack of books and proverbial case references. He said Appeal Denied, but I got smiles from the students.
    And Rosie CC, her comments are believable. TASMANIA is such a place of gossip and knowing everybodies business, mind blowing. It got to the stage where I reckoned; my business was opposite Tas Parliament. If I passed a motion on the front lawn, people would know about it on the North West Coast in less than 24 hours, before social media. Same with everything in Hobart. But rumours, lies and character assasination, what is the truth?
    There is no hard evidence to convict Sue Neill-Fraser beyond all reasonable doubt, that is the TRUTH. RELEASE SUE NOW.

  2. Brian Johnston says:

    It is not as simple as blaming the juries for bad results. There are several stages or aspects to a case. If any of those areas suffers a failure to any degree there is the likelihood of complete failure.
    1. Incompetent or incomplete police investigation.
    2. A judge failing to direct a case in proper manner.
    3. An incompetent or poorly resourced defence.
    4. A jury attempting to make an evidence based decision on a confused trial.

    It would be interesting to know how many jurors believe the cops have their ‘man’ and simply assume the defence is just trying to get their guilty client off.

    I suspect that in the Sue case her own lawyer may have believed his client – Sue – was guilty and simply did not provide a strong enough defence thus causing the jury to err towards guilty. Sue’s lawyer – Gunson – should have pushed against the prosecution and forced the prosecution to prove their case. I believe Gunson failed in his duty.

    In the O J Simpson case the defence not being there and not knowing whether Simpson was innocent or guilty pushed hard. The prosecution failed to prove their case. I believe Simpson was innocent. The glove belonged to his son though that does not mean his son was guilty.

    Then we have the Keogh case which was a complete ‘cockup’ though to my mind and through the hand of fate delivered the correct guilty verdict.

    That the the system needs an overhaul is without doubt, though all aspects 1-4 plus others including forensics for example need reviewing.

    At present we have a jury system which is adversarial in natural and which does have drawbacks, the alternative is a judge only system.

  3. Owen allen says:

    Yes, I tend to agree, but I witnessed 3 Judges in action in an appeal situation, and 3 Judges from the same house, give the same result.
    We must not forget the Judge in Tasmania who has questioned the authenticity of Sue Neill-Frasers conviction, and recommended her release and or retrial.That seems so long ago, did it even happen, am I dreaming or living a nightmare in the twilight zone. I want to rely on my memory and not research to prove to myself.
    Great to see you Poppa and Whalensky, and Roger and thanks David Smith for contributing, please stay on board; we have to grow, it is our only hope.

  4. Rosie CC says:

    Over the years at vigils for Sue Neill-Fraser I have had people stop and talk to me about their experience on a jury. One woman told me that two people on her jury were convinced of the defendant’s guilt even before the trial started and they made it clear that they were not interested in hearing evidence that may suggest otherwise. Another person described entering the jury room at the end of the trial, and the jury foreman announced, “I want to get out of here so everyone put your hands up for guilty.” When a couple of people protested that they needed to discuss the verdict the jury foreman said “Okay, well do you want Not Guilty hands up for Not Guilty.” These are just two examples, but it makes you wonder how often these type of events occur – defendants have a right to expect fairness and objectivity and obviously this cannot be guaranteed with the jury system.

  5. David Smith says:

    All suggestions are open to being Dishonest and attain the Decision already decided before the Trial starts. Judges can be bought and sold and there is evidence of that – Prosecutions are able to present only evidence that will convict – Juries can be nobbled – Or it depends what area the Jury is selected from – This is seen in how Surveys are run – If you want one type of Result for a Survey then you survey a Group of people from a Right Wing area or a Left Wing Area depend which way you want the survey to go – The same is with the a Jury – A Murder Case in New Zealand – the Jury was canvassed prior to selection and they had Eight Juries for Guilty before it started. No system is infallible – it depends on Honesty and Ethics and that is lacking in our Society Now with so much Corruption in Government – and none wants to say they have made a mistake. That is why SNF is still in Prison.

  6. WHALENSKY says:

    The appointed jury foreman’s job is to get the desired result–feed whatever derogatory information about the accused to the jury members that couldn’t be spoken in the courtroom– charges in another State–Aldulterous behavior of the accused etc etc. I was called before the court and accused by the Judge of being biased–Does this mean that not only the Jury foreman was a crook– so was the JUDGE– He sure as hell wasn’t showing any interest in a just result ! I was encouraged to get the hell out– like a gutless swine– I just wanted to escape from the mongrels–as I type this I feel sick ! I ran away –will I be punished at the pearly gates ?

  7. Poppa Maddo says:

    The English Adversarial System is the plaything of Lawyers & Judges, too many of whom are scavenging pecuniary sociopathic sycophants to “The Separation Of Powers” that enables Leaders & Politicians to “Caeser-like” wash their hands of all empathy, sympathy and philanthropy toward their fellow citizens. Politicians Hyena-like even abandon their own kind and their friends in attempt to save themselves. and their wealth gained at public expense e.g. Morrison & Houston et al…..

    • WHALENSKY says:

      Wasn’t It Pontifucating Pilot- not Caesar what washed his hands when he realised that Brian would get no JUSTICE in the hands of his fellows. Just like a gutless appeals court judge claiming–” a jury found Brian guilty–i can’t bring myself to overturn a jury decision ” even if the police plant evidence– the Forensics are vomit– whose vomit– who cares– the jury found the poor sod guilty– that’s IT–MY Mercedes is ready– that pesky Corolla got in the way–i’m paid $300,000. More than the average mug–who knows–i wash my hands ! Say no more .

  8. Rodger Warren says:

    I would prefer that the Jury system is abolished and Trial by three Judges is used instead.
    I can assure all who read the Wrongful Convictions Report that I am not reacting emotionally, I have given this potential change a lot of thought.
    My opinion was changed by the debacle of the Sue Neill-Fraser case.
    Take care
    Rodger Warren

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