Most people understand that before an accused is convicted, a jury must agree unanimously that they are guilty. In other words, all 12 jury members must be satisfied that the Crown has proven an accused’s guilt beyond a reasonable doubt.

However, a common question from clients is whether a jury has to agree unanimously that they are not-guilty. Do all 12 jurors have to agree that the Crown has not proven its case beyond a reasonable doubt?

The answer is, yes. A jury must all agree together that an accused is guilty or not-guilty. It must be unanimous, unless the jury is allowed to consider a majority verdict (11 to 1). Each individual juror can use their own reasoning in coming to their conclusion, but for there to be a verdict, it must agreed by all jurors.

If the jury can’t all agree that the person is guilty or not-guilty, it is a hung jury and the jury is normally discharged.

WHAT HAPPENS IF THE JURY CAN’T AGREE? 

This largely depends on the Crown. There can be a re-trial, or depending on the circumstances of the trial and decision, the Crown may decide to not prosecute any further. The charge is dismissed.

The Prosecution Guidelines in NSW requires the following to be considered by the Crown before there is a re-trial:

• whether or not the jury was unable to agree (or the trial ended for other reasons);
• whether or not another jury would be in any better or worse position to reach a verdict;
• the cost of a retrial to the community and to the accused person;
• the views of any victim of crime involved.

If there has been two trials and two juries have been unable to agree, it is only in “exceptional circumstances” that there will be a third re-trial.

By Justin Wong

Justin Wong is principal lawyer at Streeton Lawyers, a boutique specialist criminal law firm in Sydney. 

Photo by Anthony Shkraba