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A hung jury does not mean a trial 'failed'
In the space of a week, two high-profile jury trials involving sexual assault charges have ended in a "hung jury" – meaning that the jury was unable to reach a verdict. It is reasonable to ponder, given these outcomes in the de Belin/Sinclair and Hayne cases, what they tell us about the NSW criminal justice system.
Of course, it is important to avoid generalisations based on two instances, but the first thing to note is that, while they are not common, hung juries are not exceptional. The available evidence suggests that less than 5 per cent of criminal trials result in a hung jury, and hung juries are no more likely to occur in sexual assault cases than in other criminal trials.
One of the steps that have been taken to reduce hung juries is to allow majority verdicts. Since 2006 NSW juries have been able to return a verdict of guilty or not guilty if it is supported by 11 of the 12 jurors. Even then, juries may still be unable to reach a verdict.
In the last week, juries have failed to reach a decision in cases involving football stars Jarryd Hayne and Jack de Belin.CREDIT:NINE
It is important to recognise that a hung jury does not mean that the trial "failed". On the contrary, when they occur, hung juries are a reminder that trial by jury is a complex event, and jurors take seriously their obligations to assess the evidence and decide whether the prosecution has proven all elements of the crime beyond reasonable doubt. Juries "humanise" our justice system and it is inevitable that, at times, individuals will reach different conclusions about the guilt or otherwise of a defendant.
But there is no denying that a hung jury has flow-on effects. For the courts, hung juries lead to re-trials which contribute to additional costs and delays, especially since the need to ensure COVID-safe courtrooms. This means a new trial may not be scheduled for months and may need to be relocated to a different venue. The delay and ongoing uncertainty also impacts on defendants, complainants and witnesses.
For complainants, the implications of a new trial are particularly acute. Despite more than 40 years of progressive legislative reform, giving evidence in sexual assault proceedings continues to be traumatic. Being questioned about what you were wearing, how you were dancing, how many drinks you consumed – these questions are often designed to discredit and denigrate. Imagine having to describe in detail where you were penetrated (mouth, vagina, anus) and how (penis, fingers, object) – not only at one trial, but at a second. Understandably, some complainants may feel like they can’t face it. One step that has been taken to redress this issue is that, since 2006, the prosecution can tender a complainant’s original trial evidence at the retrial, rather than requiring them to give evidence again.
Another question raised by the recent hung jury outcomes is whether the decision that sexual assault trial juries are required to make is harder than in other cases. Only the most serious crimes are dealt with by way of jury trial in NSW, and so all jury decisions are hard. Having said that, attention has been paid to whether attitudes and myths about sexual assault might play a part in producing jury room disagreement. One technique under active consideration in NSW is whether further guidance to juries is needed. Just last month the NSW government released a report from the NSW Law Reform Commission that recommended juries be given better guidance ("jury directions") concerning misconceptions about consensual and non-consensual sexual activity.
‘I told the truth’: Jarryd Hayne sexual assault trial ends in hung jury
These include directions about how the jury should (and shouldn’t) interpret evidence such as the absence of physical injuries, or the behaviour and appearance of the complainant. The commission’s draft legislation on jury directions includes that: “It should not be assumed that a person consented to a sexual activity because the person – (a) wore particular clothing or had a particular appearance, or (b) consumed alcohol or any other drug, or (c) was present in a particular location.”
The NSW government is expected to announce its response to this and other commission recommendations in the new year. We hope that the government does take the opportunity to improve the experience of sexual violence complainants. We applaud the commission for recommending that the effectiveness of any changes should be the subject of careful evaluation to assess their effectiveness.
Julia Quilter and Luke McNamara are the chief investigators on an ARC funded study of sexual assault trials.
