I. INTRODUCTION

9.1 One reason put forward for, abolishing jury trials is that juries do not come reliably, or often enough, to “correct’’ verdicts. This is said to be evidenced by the number of times trial judges have disagreed with jury verdicts. On the other hand, one reason put forward for retention of jury trials, most often by judges, is that juries usually, or almost always, arrive at verdicts with which judges care in agreement. The Chicago Jury Project results showed that judges agreed with the juries’ verdicts in seventy-five per cent of cases surveyed. Where there was disagreement, juries tended to be more lenient, often acquitting in cases where prosecution methods could have been considered to be unfair.¹

9.2 Lord Devlin has recognised the great value which flows from the freedom of juries to view the criminal law as flexible rather than rigid and to take an equitable approach in line with community attitudes.

If you want certainty or predictability, you must keep the judgment running close to the law. if you want the best judgment in the light of all the facts when they have emerged, then it will be one that has moved nearer to the aequm et bonum [equity and good conscience]. The unique merit of the jury system is that it allows a decision near to the aequum et bonum to be given without injuring the fabric of the law, for the verdict of a jury can make no impact on the law.²

Consistent jury acquittals, however, may well have an impact on the law. The offence of culpable driving teas created largely because juries consistently acquitted bad drivers charged with manslaughter. Jury verdicts are a way of informing legislators of public attitudes to the criminal law. Trial by jury is “an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just”.³ On the other hand, it has been argued that juries have not consistently defended the public interest in equity and justice but have been more likely to submit to oppressive laws such as the attack on freedom of speech by the sedition laws, and the attack on freedom of association by anti-industrial union laws.⁴

II. FORM OF THE VERDICT

9.3 The jury is not completely at liberty as to the verdict it can render. The verdict must, of course, relate to the charges in the indictment. Where the jury is not restricted to a verdict of guilty or not guilty of the offence charged, any alternative verdict rendered must be authorized by law. If the indictment Is drown in such a way that the offence charged leaves open an alternative count of a less serious offence, the jury might convict the accused only of the less serious charge.⁵ There are many statutory alternatives. For example, the Crimes Act, 1900 provides that where the charge is murder but the jury is satisfied that there was provocation or diminished responsibility, the accused can be convicted of manslaughter.⁶ A second limitation con the jury’s control over the verdict is the judge’s role in “taking the case away” from the jury and directing an acquittal where the evidence could not sustain a conviction. In exceptional circumstances the judge may refuse to accept the jury’s first verdict and require it to deliberate further.⁷ Ultimately, however, the verdict is the jury’s prerogative and the judge has little power to interfere. The judge may not intimidate or pressure a jury to come to a particular verdict, or to any verdict at all.⁸

III. DELIVERY OF THE VERDICT

9.4 The foreman, who delivers the jury’s verdict, should do so in the presence wind hearing of the remainder of the jury. IF none of them then protest at the verdict delivered, no juror can later come forward to say he or she disagrees with that verdict.⁹ Where the foreman renders the verdict out of the hearing of fellow jurors, however, their consent cannot be assumed.¹⁰ While a jury can correct its verdict before being discharged,¹¹ it cannot later return to court to plead that the verdict was given under a misapprehension.¹² The argument that the secrecy of the jury’s deliberations should give way to the interests of justice when inadmissible evidence has apparently been considered by a jury, (see paragraph 8.14), would seem to apply equally where at jury gives its verdict under a misapprehension about its meaning. A measure of certainty in the concurrence of all jurors in the verdict could be achieved if each juror were to be asked individually what his or her verdict was or whether he or she agreed with the verdict delivered by the foreman. This procedure, known as polling the jury, is an option now available to the presiding judge if he or she considers the situation warrants it.¹³ The procedure has been criticised on the basis that the jury’s verdict is a corporate decision and individual polling is warranted only in unusual circumstances.¹⁴ On the other hand, unanimity is required for a valid verdict and polling is an effective may of ensuring that unanimity exists. The Commission proposes that each member of a jury in a criminal trial should be polled by the presiding judge to ensure that the verdict is unanimous. An alternative which may be considered is to require each juror to sign a document which is a formal record of the verdict.

9.5 A jury may add a rider to a verdict of guilty, recommending mercy. Such a recommendation, however, is not binding on the judge when sentencing.¹⁵ Neither counsel nor the judge may invite a jury to add a recommendation for mercy.¹⁶ There is debate both about whether juries should continue to have this power and about whether they ought to be told of it. It may be argued that the availability of the recommendation for mercy could operate to the disadvantage of the accused . A juror reluctant to concur in a guilty verdict may be persuaded by the offer of the majority to recommend mercy. This reason for the Law Reform Commission of Canada’s recent proposal that the jury’s prerogative to recommend mercy should be abolished and that the jury should be instructed that it has no such prerogative. The other reasons were, first, that it is not part of the jury’s role to influence sentence and, second, that any suggestion from the jury would be made in ignorance of factors relevant to the sentencing process.¹⁷ on the other hand, it might be argued that a jury which has heard the evidence and come to a determination of guilt beyond reasonable doubt should entitled to signal its recognition of mitigating factors. The recommendation for mercy could be seen as a comment by the jury on the facts proven as well as a comment on what the sentence should be. We invite submissions as to whether the jury should continue to have the ability to recommend mercy, and, if so, whether it should be so advised in the judge’s summing-up. if the jury is to be advised of its; prerogative, the question arises as to what form such advice or direction should take.

IV. THE UNANIMITY RULE

9.6 In New South Wales criminal verdicts must be unanimous.¹⁸ Unanimity is required in order to convict an accused, and also In order to acquit. In Newell Mr. Justice H.V. Evatt stated,

. . . trial by jury has been universally regarded as a fundamental right of the subject and unanimity in criminal issues had been regarded as an essential and inseparable part of that right, not a subordinate or merely procedural aspect of it.¹⁹

In this context it must be remembered that the deliberating jury may not be composed of twelve members. Up to two of the original jury may be discharged in the judge’s discretion, while the jury may drop below ten members with the written consent of the Crown and the defence.²⁰

A. Majority Verdicts: Rationale and Principle

9.7 Some difficulties have been identified with achieving unanimity, and a number of jurisdictions will accept a majority verdict in a criminal trial where a jury is unable to achieve unanimity after Et specified period.²¹ Unanimity would seem to require a longer deliberation period than a majority verdict. Moreover, a jury able to render a majority verdict is probably less likely to disagree. Thus a new trial is unnecessary.²² The reason given for the introduction of majority verdicts in the United Kingdom in 1967 was:

... to prevent one or two bribed or intimidated jurors from preventing conviction.²³

Critics have suggested, however, that the real reason was a reaction to the then recent democratisation of the jury, when all voters became qualified to serve, and thus to

... the possibility that the jury might start taking seriously the ideology of representing all the people ... that bohemian or radical standards may infect the jury ... ²⁴

9.8 Majority verdicts have been justified in the United States from a functional point of view.

... the purpose of trial by jury is to prevent oppression by the Government ... In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one.²⁵

Federal juries must be unanimous, but States may now provide for majority verdicts in cases where juries have twelve members. Majority verdicts by six-member juries, however, have been held to be unconstitutional in the United States.²⁶ In Scotland, where juries have fifteen members,²⁷ the verdict of a simple majority will suffice.²⁸

9.9 There is some evidence that “nobbling” of jurors (ie. bribery or intimidation) occurs in New South Wales. The judgment of the New South Wales Court. of Criminal Appeal in Hill reveals that one juror was offered money by telephone during the course of the trial. That attempt was discovered because the juror involved informed the court.²⁹ However, it is not clear that hung juries form a significant proportion of trial results.³⁰ Experience with majority verdicts in the United Kingdom shows that between nine and twelve per cent of trial verdicts care by majority.³¹ It could be that, without the availability of majority verdicts, the juries in those trials would have failed to reach a verdict. On the other hand, it could be that some of those juries would have achieved unanimity if given more time to attempt it. Currently juries in the United Kingdom must try to reach a unanimous verdict until at least two hours have elapsed.³² Until then, they are not told of their right to bring in a majority verdict. Evidence from the Chicago Jury Project suggests that majority verdicts would make little impact on the rate of hung juries. It would seem that juries initially split 11-to-1 or 10-to-2 tend to achieve unanimity after some deliberation and that it is juries in which the initial minority is larger that ultimately fail to agree.³³

B. Arguments in Favour of Unanimity

9.10 A number of arguments can be made for the retention of t-he unanimity rule. First, the unanimity requirement is said to reduce the risk that innocent people will. be convicted by increasing the accuracy of jury fact-finding, A jury is assumed to be an accurate fact-finder because it brings to bear on the decision-making process the collective experience and recall of twelve people, and because the deliberative process in which they engage encourages a give-and-take by which ideas and arguments (including those of a minority) are tested and refined, adopted or rejected. The unanimity requirement is necessary to ensure that these attributes of jury decision-making are present.³⁴ Second, because the jury is expected to operate as a collective, it is argued, it must collectively be convinced of guilt beyond ca reasonable doubt. How can the requirement of proof beyond reasonable doubt be satisfied when some members of the jury hold doubts and will. not concur in a verdict?³⁵ Third, it is felt that unanimous verdicts are more acceptable than majority verdicts to participating jurors, to the community, and to accused people.³⁶

9.11 The significance of some of the alleged risks of the unanimity requirement may also be doubted. For example, in 1982, the Law Reform Commission of Canada stated that “the problems some people associated with the unanimity requirement, hung juries and corrupt jurors, were not nearly so serious as is sometimes argued.”³⁷ It can therefore be argued that the unanimity requirement is an important safeguard against wrongful convictions and acquittals and a fundamental feature of the jury system. In 1965 the Morris Committee in the United Kingdom argued that

...the absence of a certain number of’ disagreements would itself The disturbing, since in the nature of things 12 individuals chosen at random are unlikely always to take the same view about a particular matter, and the existence of disagreements may, therefore, be evidence that jurors are performing their duties conscientiously.³⁸

The Commission invites submissions on the desirability or otherwise of altering the current requirement of unanimity in verdicts in criminal trials.

V. THE JURY’S OBLIGATION TO APPLY THE LAW

9.12 Juries have the power to refuse to apply the law as interpreted by the judge to the facts they find in a particular case.³⁹ More correctly perhaps, a “perverse” acquittal cannot be reviewed: it is final and conclusive.⁴⁰ Neither can a judge direct a jury to convict. It is not the task to decide the question of guilt; the jury must.⁴¹ This is not to say that the judge may not tell the jury that, in his or her opinion, the only verdict which they can, in conscience, render is a verdict of guilty. In such a case, the summing-up must also make it clear to the jury that the matter is for them alone.⁴² Thus, while the jury should obey the law,

. . it is an obedience which they cannot be compelled to give. They are the wardens of their own obedience and are answerable only to their own conscience ... ⁴³

It would seem, however, that juries rarely refuse to apply the law interpreted for them by the presiding judge. The researchers on the Chicago Jury Project suggested four reasons why juries rebel so infrequently:

• the law has adjusted to prevailing values;
• the group nature of the jury curbs eccentric views;
• the jury is solemnly invested with an important public task; and
• the jury is never told that it has the power to “nullify”, i.e. render a perverse verdict.⁴⁴

9.13 The jury’s “nullification power”, its “privilege of returning a perverse verdict”, has been put forward as one of its virtues:

The jury thus represents a uniquely subtle distribution of official power; an unusual arrangement of checks and balances. it represents also an impressive way of building discretion, equity, and flexibility into to legal system. Not the least of the advantages is that the jury, relieved of the burdens of creating precedent, can bend the law without breaking it.⁴⁵

The occasional refusal of: a jury to convict, in spite of the evidence and the instructions of the judge, might be an example of a jury rejecting the harshness of a law or its application to a particular case. Alternatively, of course, waywardness might be a sign of ignorance or confusion. The acceptability of perverse verdicts always assumes that the jurors have properly understood the law they are rejecting. The validity of the jury system is dependent on the assumed competence of juries to apply the law as received from the judge. As we argued in Chapter 6, the best way of reducing the incidence of ignorance to and confusion is by making jury instructions more understandable to juries.

9.14 The usual nature of a jury’s verdict, being a general verdict without a statement of reasons, may not allow the judge or thin parties to be sure that the jury was satisfied beyond reasonable doubt as to each of the elements to be proved. It has been argued that requiring special “verdicts - answers to a series of questions on the facts - would be one way of ensuring that ultimate verdicts are lawful, as the application of the law to the facts found could b e made b y the presiding judge.⁴⁶ The English Court of Criminal Appeal has observed, however, that

Special verdicts ought to be found only in the most exceptional cases .... ⁴⁷

It is clearly desirable, moreover, that; a jury which has given specific answers to questions on the facts should then be empowered to return an appropriate general verdict.⁴⁸ The Commission invites submissions as to whether judges in criminal trials should have a discretion to require ;A special verdict and, if so, in what circumstances. We consider that the best way of increasing the prospect of responsible consideration of the case by the jury is to adequately instruct them on the elements of the offence and to improve the effectiveness of instructions.

VI. INTERPRETING THE VERDICT

9.15 In a contested case, the guilty verdict of a jury must precede sentencing. Sentencing is a matter solely for the judge and, as a general rule, the possible sentence is not a matter which the jury should take into account in deliberating upon a verdict. One exception to this rule is created by the Mental Health Act, 1983, which requires the presiding judge to tell the jury that the consequences of a verdict of “not guilty by reason of mental illness” are that the defendant will be detained in custody until released by due process of law.⁴⁹

9.16 In most cases the factual basis of a guilty verdict will. be clear to the judge from the way in which the case was argued in court. When an accused could properly have been found guilty on cone of alternative bases, however, the judge will generally receive no assistance from the jury’s verdict as to which basis, one of which will often be less aggravating, was accepted by them. blow, then, should the judge approach the sentence? If only one view of the verdict is reasonably open, the judge is bound to accept that view in sentencing. Where two views are open, however, it has been held in Australia that the judge is entitled to make his or her own findings of fact consistent with the verdict, and is under no obligation to view the facts in the light most sympathetic to the accused.⁵⁰ This position can be contrasted with the recent English ruling that,

Where a defendant has been convicted by the jury, and the verdict of the jury is consistent with more than one version of the facts, the court should give to the defendant the benefit of any doubt there might be over the basis of the verdict.⁵¹

9.17 Clearly the situation, when it arises, presents a dilemma. The English Court of Criminal Appeal has made two suggestions for avoiding the problem:

• the prosecution should endeavour to avoid the possibility of dilemmas of this kind arising by drafting the indictment to include counts which would have clear factual implications;
• Judges could avoid such dilemmas by avoiding directions to juries to consider convicting on alternative bases, except where there is a clear requirement to do so.⁵²

Others have made suggestions for dealing with the problem when it arises. For example, it has been suggested that jurors should be questioned as to the basis on which a guilty verdict has been returned.⁵³ There is an accepted practice, at least in cases of murder where there is evidence both of provocation and of diminished responsibility, of inquiring of the jury which basis was accepted. The risks in questioning the jury were adverted to by Mr. Justice Stephen in the High Court:

Care must no doubt be taken to ensure both that the foreman clearly understands the nature of the question and that he is fully capable of answering it, that is, that he in fact knows what are the grounds which have led his fellow jurors to their verdict. If there has been no unanimity as to grounds or if individual jurors have not disclosed, and may, indeed, not be prepared to disclose, their grounds the foreman cannot of course, supply the information sought. It should be made clear to him that his function is only to answer to the best of his ability the question asked, ensuring that, if answered, it does truly reflect the jury’s unanimous view. The question should, of course, be so confined as to ensure that it does not invite any spontaneous general disclosure of the jury’s deliberations.⁵⁴

The Commission considers that, where alternative bases for a conviction (which have different consequences for sentencing) are left to a jury, the judge should endeavour to determine which basis the jury accepted. We, therefore, tentatively propose that, in such cases, the judge should direct the jury in the summing-up to consider. on which ground the verdict is based. When the verdict is rendered in such a way that the ground accepted is riot clear, the judge should first ask the foreman whether the jury reached a unanimous view as to which ground it accepted. If the foreman affirms that the jury was unanimous on this issue, the judge should then ask which ground was accepted . The judge should then be bound, in sentencing, by the jury’s view of the facts.

VII. FINALITY OF THE VERDICT

9.18 In New South Wales a jury’s acquittal is final and conclusive and cannot be overturned on appeal. However, a verdict of guilty might, on appeal by the accused, be found to be unreasonable, internally inconsistent or against the evidence.⁵⁵ In each case there is a certain minimum of evidence which the law requires and a verdict that is not supported by some evidence will be set aside on appeal.⁵⁶ For example, the prosecution might make tout no case in law or the prosecution case might be rebutted by overwhelming proof of innocence. On appeal from a conviction on indictment in New South Wales, the court will allow the appeal

if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or, that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice ... ⁵⁷

9.19 Australian courts are generally reluctant to overturn the verdict of a jury which has been properly instructed. f he, majority in the High Court in Ross noted:

... if there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone, and with their decision based on such evidence no Court or Judge has any right or power to interfere.⁵⁸

In Crooks in the Supreme Court of New South Wales, Chief Justice Jordan stated after quoting the above from Ross:

If there is no evidence of guilt, or only such a faint scintilla that reasonable men could not act upon it, the trial judge may direct a verdict of not guilty ... and if he refrains and the jury convict, it is the duty of the Court of Criminal Appeal to set aside the conviction. If evidence is given which, if accepted, is sufficient to justify a conviction, and a verdict of guilty is challenged on the ground that the preponderance of evidence is the other way, it is necessary to establish that the evidence pointing to innocence is of such kind that reasonable men could not have failed to accept it, and is so overwhelming that reasonable men could not have failed to act on it ... But the fact that a transcript contains what appears to be strong evidence for the defence does not entitle a Court of Criminal Appeal to substitute trial by three judges who have not seen the witnesses for trial by twelve jurymen who have.⁵⁹

More recently, in Chamberlain, Mr Justice Brennan in the High Court of Australia stated:

It is not easy to conceive of a miscarriage of justice arising from the state of the evidence where the evidence, viewed reasonably is sufficient to support the verdict. After all, the jury is the constitutional tribunal for deciding whether an accused person is guilty or not guilty, and if there is . evidence sufficient to support a verdict of guilty, it is for the jury to say whether that verdict should be returned.⁶⁰

A successful appeal can have one of a number of results:

• a conviction of a lesser offence can be substituted as the proper verdict;
• a re-trial can be ordered; or
• a verdict of not guilty can be substituted as the proper verdict.⁶¹

9.20 Thus, a jury’s guilty verdict will be quashed on appeal if a miscarriage of justice occurred in the course of the trial. Some miscarriages arise from the behaviour of jurors or juries themselves. Guilty verdicts have been quashed where members of the jury have breached the rule that a jury must not separate or communicate with the public while deliberating, for example.⁶² Other trials falter due to some procedural defect affecting the jury, such as where a jury takes “evidence” at a view from a witness in the absence of the accused.⁶³ Where inadmissible material prejudicial to the accused has been obtained by the jury the trial will usually miscarry.⁶⁴

VIII. RETRIAL AFTER JURY DISAGREEMENT

9.21 The meaning of a failure to agree and the propriety of a re-trial after, a jury has been unable to agree have been the subject of recent (debate. The English position seems to be that, after a hung jury, the accused person may be tried again although the prosecution is not obliged to proceed further.⁶⁵ There is also some authoritative support for the view that if:, the second jury disagrees the prosecution should formally offer no evidence at a third trial.⁶⁶ Thus a second disagreement i~, considered “tantamount to an acquittal”.⁶⁷ While failure to agree is not the equivalent of an acquittal, it has been argued that, “[i]f a jury disagrees, surely that means that the prosecution has failed to prove its case beyond reasonable doubt to the satisfaction of the jury...”⁶⁸ It has even been argued that “it does not follow from the rule that the jury must be agreed before there can be a conviction ... that they must also be agreed before there can be an acquittal”.⁶⁹

The jury’s purpose is to decide whether the prosecution has proved the accused’s guilt beyond reasonable doubt. If the jury is not thus satisfied of guilt then, it is submitted, the prosecution has failed and the verdict should be that the accused is not guilty.⁷⁰

9.22 The failure of a jury to reach agreement, however, may be caused by a single perverse, corrupt or credulous juror who refuses to join in the majority’s decision. The dissenting juror may dissent for reasons uninfluenced by considerations of evidence and standard of proof. Should the achievement of finality be frustrated by such people? The introduction of a rule denying the right of the prosecution to conduct a second jury trial would boost arguments in favour of majority verdicts. The Commission does riot suggest that retrial after one jury has -failed to reach a unanimous verdict should be prohibited. We propose, however, that if a second jury fails to agree there should not be a third trial. We understand that this is in fact the policy of prosecuting authorities in New South Wales.⁷¹

IX. DISCHARGING THE JURY

9.23 The jury’s task is complete when it delivers its verdict. Some judges, however, make a practice of detaining the jury while sentence is passed. There is no doubt that jurors who wish to observe the sentencing process are entitled to remain in the court room as members of the public. The Commission is aware that, in certain circumstances, forced detention can cause distress to jurors. We also consider that it is unfair to read an accused’s record in the presence of the jury because of the chance that those jurors will, in the future, suspect that accused people have a record which has not been revealed. We invite submissions as to whether juries should be discharged immediately upon the delivery of the verdict or whether this matter should be left, as at present, to the discretion of the presiding judge. If discharged, members of the jury could be advised that they are entitled to remain in the public areas of the court while sentence is passed.

X. TENTATIVE PROPOSALS

9.24 In this Chapter we have described the law relating to the verdict of a jury. We propose the following reforms.

1. Each member of’ a jury in a criminal trial should be polled to ensure that the verdict is unanimous (paragraph 9.4).

2. Where alternative factual bases for a conviction are left to the jury, the judge should direct the jury to consider on which ground its verdict is based. When the verdict is rendered in such a way that the ground accepted is not clear, the judge should first ask the foreman whether the jury reached a unanimous view as to which ground it accepted. Only if the jury’s view is unanimous should the judge ask which ground was accepted. The jury’s answer should be binding on the judge when sentencing (paragraph 9.17).

3. Where both the first jury and the second jury have failed to reach agreement after being asked to deliberate upon a verdict, statute should provide that there will not be a third trial (paragraph 9.22).

9.25 The Commission also invites submissions on the other questions raised in this Chapter. They are:

• whether the jury should continue to have the prerogative to recommend mercy and, if so, whether it should be informed of this in the summing-up (paragraph 9.5);
• whether the rule requiring a jury’s verdict to be unanimous should be retained (paragraph 9.10);
• whether the judge in a criminal trial should have a discretion to request the jury to return a special verdict and, if so, in what circumstances (paragraph 9.14); and
• whether juries should be discharged immediately they have delivered their verdicts or whether the matter should remain at the discretion of the presiding judge (paragraph 9.23).

FOOTNOTES

1. H. Kalven and H. Zeisel, The American Jury (Chicago University Press, 2nd ed., 1971), at pp.318ff.

2. P. Devlin, Trial by Jury (Stevens and Sons Ltd. , 1956), at pp.156-157.

3. Id., at p.160.

4. W.R. Cornish, The Jury (Penguin, London, 1968), at pp,127-139.

5. A.P. Bates, T. L. Buddin and D. J. Meure, The System of Criminal Law (Butterworths, 1979), at p.176.

6. Section 23(2). See also, s.163, larceny is an alternative to embezzlement; s.52A(5), culpable driving an alternative to manslaughter; s.329, false swearing an alternative to perjury.

7. Griffiths v The Queen (1976-77) 137 C. L. R. 293, at pp. 301-302 per Barwick C.J.; R v Meany (1862) Le. & Ca. 213; R v Crisp (1912) 28 T.L.R. 296. Compare R. v.Larkin [1943] K.B. 174 and R. v. White [1961] Crim. L.R. 59.

8. R. v. McKenna [1960] 1 All E.R. 326.

9. Raphael v. Bank of England (1855) 4 W.R. 10; R. v. Roads [1967] 2 All E.R. 84.

10. Ellis v Deheer [1922] 2 K.B. 133.

11. The Queen v. Eyers.(1978) 19 SASR 244; The Queen v. Cefia (1979) 21 S.A.S.R. 171.

12. Palmer v. Crowle. (1738) 95 E.R. 445; R v. Atkinson and Clutton (1907) 11 S.R. (NSW) 713. Compare Dardarian v. Schneider [1956] 3 D.L.R. (2d) 292.

13. A, Turner, “Polling the Jurors” [1979] New Zealand Law Journal 155.

14. Id., at p.156.

15. R v. Whittaker (1928) 41 C.L.R. 230.

16. R v. Black [1963] 1 W.L.R. 1311.

17. Law Reform Commission of Canada, The Jury (Report 16, 1982), at p.70.

18. Jury Act, 1977, s.56. See also Juries Act 1967 (Vic.), s.46(1); Criminal Code 1899 (Qld.), s.628; Criminal Code 1983 (N.T.), s.368; Juries ordinance 1967 (A.C.T.), s.38.

19. Newell v. The King (1936) 55 C.I.R. 707, at p.713.

20. Jury Act, 1977, s.22.

21. Juries Act 1927 (SA), s.57 (since 1927); Juries Act 1957 (WA), s.41 (since 1960); Jury Act 1899 (Tas.), s.48 (since 1936); Criminal Justice Act 1967 (UK), s.13 (since 1967).

22. R. Hastie, S.D. Penrod and N. Penington, “What Goes on in a Jury Deliberation” (1983) 69 American Bar Association Journal 1848, at p.1850.

23. P. Duff and M. Findlay, “The Jury in England: Practice and Ideology” (1982) 10 International Journal of the Sociology of Law 253, at p.263.

24. Ibid.

25. Apodaca v. Oregon 406 U.S. 404 (1972), at pp.410-411.

26. Burch v. Louisiana 47 L.W. 4393 (1979).

27 . A.V. Sheehan, “Criminal Procedure in Scotland and France” (H.M.S.O., 1975), at p.160.

28. Administration of Justice (Scotland) Act 1933 (U.K.), s.19.

29. R. v. Hill, NSW Court of Criminal Appeal, 28 February 1980 (unreported).

30. See, for example, J. Willis, “Jury Disagreements in Criminal Trials - Some Victorian Evidence” (1983) 16 Australian and New Zealand Journal of Criminology 20, at p.28.

31. A. Samuels, “The Jury - Any Case for Reform?” (1982) 146 Justice of the Peace 465, at p.467.

32. Criminal Justice Act 1967 (U,K.), s.13(3).

33. H. Kalven and H. Zeisel, “The American Jury: Notes for an English Controversy” (1967) 48 Chicago Bar Rec. Record 195, at p.200.

34. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), at pp.28-29.

35. D.M. Downie, “And is that the Verdict of You All?” (1970) 44 Australian Law Journal 482. at p.490. And see J.V. Ryan, “Less than Unanimous Jury Verdicts in Criminal Trials” (1967) 58 Criminal Law Comments and Abstracts 211; G. Maher, “Reasonable Doubt and the Jury” [1983] Scots Law Times 97. The argument was rejected by the United States Supreme Court in Johnson v. Louisiana 406 U.S. 356 (1972), at p.362.

36. Law Reform Commission of Queensland, Working Paper on .Legislation to Review the Roll Juries in Criminal Trials (W.P. 28, 1984), at pp.29-32.

37. Law Reform Commission of Canada, The Jury (Report 16, 1982), at p.78.

38. Report of the Departmental Committee on Jury Service 2627, 1965),para.357.

39. R v Shipley (1784) 4 Doug. 171; Chandler v. D.P.P. [1964] A.C. 763, at p.804.

40. Criminal Appeal Act, 1912, s.6.

41. Woolmington v. D.P.P [1935] A.C. 462, at p.480 per Viscount Sankey L.C.

42. Chandler v. D.P.P. [1964] A.C. 763, at p.804.

43. P. Devlin, note 2 above, at p.90.

44. H. Kalver and H. Zeisel, “The American Jury”, New Society 25 August 1966, at p.290.

45. Ibid.

46. R.J. Walker, “The Finality of Jury Verdicts” (1968) 118 New Law Journal 866, at p.867; Supreme Court Act, 1970, s.90.

47. R. v. Bourne (1952) 36 Cr. App. Rep. 125, at p.127.

48. Charles v. Hendick (1921) 15 Cr. App. Rep. 149.

49. Mental Health Act, 1983, ss.428Z, 428ZB. A similar provision in Canada further requires the presiding judge to make clear that the legal consequences should not affect the jury’s deliberations: Criminal Code 1970 (Canada), s.542(1).

50. Thompson v. The Queen (1975) 11 S.A.S.R. 217; R v. Harris [1961] V.R.256; R. v. Kane [1974] V.R. 759.

51. Andrew Stosiek (1982) 4 Cr.App. R. (S.) 205.

52. Id., at p.206.

53. R.J. Walker, note 46 above.

54. Veen v. The Queen (1978-1979) 143 C.L.R. 458, at p.466. See also Petroff [1980] 2 A. Crim. R. 101.

55. A special inquiry may be ordered where any doubt or question arises as to guilt, any mitigating circumstances or any portion of the evidence. After such an inquiry, by a Justice, the matter can be disposed of as appears just: Crimes Act, 1900, s.475.

56. P. Devlin, note 2 above, at pp.62-63.

57. Criminal Appeal Act, 1912, s.6(1).

58. (1922) 30 C.L.R. 246, at pp.255-256.

59. (1944) 44 S.R. (N.S.W.) 390, at p.393.

60. Chamberlain v. The Queen (1984) 58 A.L.J.R. 133, at p.169.

61. Criminal Appeal Act, 1912, ss.6(2), 7(2), 8.

62. R. v. Ketteridge [1915] 1 K.B. 467.

63 . R. v. Screen (1924) 41 W.N, 20; R. v. Ashton (194.4) 61 W.N. 134.

64. Duff v. The Queen (1979) 39 FLR 315.

65. M. Cohen, “Retrial After a Hung Jury” (1983) 12(3) Anglo-American Law Review 174, at p.176, citing R v Arguile, Criminal Procedure (1969, Butterworths), at p.160, D. Devlin, Criminal Courts and Procedure. (2nd ed., 1967, Butterworths), at p.156, and others.

66. M. Cohen, note 65 above, at p. 177, citing P, . Devlin, note 2 above, at p. 48, D. Devlin, Criminal Courts and Procedure (2nd ed. , 1967, Butterworths), at p.156, and others.

67. P. Devlin, note 2 above, at p.48.

68. Mr. Weitzman, PIP cited by M Cohen, note 65 above, at p.178.

69. M. Cohen, note 65 above, at p.178.

70. Id., at pp.178-179.

71. This has not always been the case. In Craig v. The Queen (1933) 49 C.L.R. 429, the applicant had been convicted at his third trial on a charge of murder after the jury had been unable to agree at each of his two previous trials. See also Demirok v. The Queen (1977) 137 C.L.R. 20, at pp.38-39 per Murphy J.