12 April 2024

Juror misconduct becomes specific offence in the ACT following Bruce Lehrmann mistrial

| Claire Fenwicke
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Lawyer on court steps

Nine changes have been made to various ACT laws under new legislation, including a new juror misconduct charge and majority verdicts for trials. Photo: Michelle Kroll.

Jurors found to have participated in misconduct can now be punished under ACT law.

The Crimes Legislation Amendment Bill 2023 was passed unanimously in the Legislative Assembly this week. It means jurors who inquire about trial matters or conduct their own research without court authorisation (before being discharged from duties) can face to up two years’ imprisonment.

The crime will be known as “improper inquiry by a juror”.

The law change was made following the mistrial of Bruce Lehrmann, initially accused of raping Brittany Higgins at Parliament House, after a juror brought unauthorised documents into the jury room.

The case against Mr Lehrmann was later discontinued. He has maintained his innocence and no findings have been made against him.

Attorney-General Shane Rattenbury said introducing the offence would bring the ACT into line with other jurisdictions and was intended to impress upon the community the importance of a juror’s obligations.

“If a juror relies on information they have obtained outside the proper process during their deliberations, this undermines the accused’s right to a fair trial,” he said.

“Further, if jurors rely on outside information, the judicial officer may order a mistrial. This is costly to the community and may retraumatise the parties involved in the trial.”

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The bill will also bring in majority verdicts for criminal trials when 11 of the 12 jurors are satisfied with a decision.

But verdicts won’t be accepted until at least six hours of deliberations have passed (or a time chosen by the Supreme Court based on the complexity of the case), and the court is satisfied a unanimous verdict won’t be reached upon further consideration.

Mr Rattenbury said this change would help reduce instances of hung juries.

“Hung juries often lead to retrials, which results in delays, increased costs and emotional strain for accused persons, victims and witnesses,” he said.

“In some cases a retrial may not be possible or appropriate, and this can lead to dissatisfaction with the operation of the criminal justice system.

“This reform is intended to reduce resourcing and emotional impacts on parties.”

Majority verdicts won’t be available for Commonwealth offences. These include child sex offences by Australians in foreign countries, cyber crimes committed against Commonwealth government departments, drug importation and exportation, people smuggling, human trafficking, terrorism, fraud against the government (such as Centrelink, Medicare or the Australian Tax Office) and threats made against government officials.

Some in the legal spheres have expressed concerns about the majority verdicts and juror misconduct charge.

Shadow Attorney-General Peter Cain said the government should be “mindful” of potential adverse outcomes of both changes.

“There stands the risk that jurors may be less keen to be part of a jury if they think certain behaviour of theirs might bring about a criminal charge,” he said.

“I do encourage and charge the Attorney-General to ensure the community members who are brought into a jury are given instructions to make sure that anything they do, however unintended, will not incur the wrath of the law.”

Mr Cain also asked the government to monitor the impact of the majority verdict change to ensure there were no “unintended consequences”.

“In this case, of course, the [potential] unintended consequence of conviction of an innocent person,” he said.

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Seven other amendments were made to the legislation.

These include shoring up a legal anomaly which imposes inconsistent timelines to review a bail decision and potentially delays a person’s release; removes the requirement of the prosecution to prove beyond reasonable doubt that damage to property doesn’t exceed $5000 when dealing with minor property damage matters; clarification the courts can impose a fine in addition to or instead of any other sentence; and allows the courts to set a non-parole period for offences committed in custody (which currently cannot occur).

Changes will also allow for a statutory review of the Confiscation of Criminal Assets Act and improve the enforceability of infringement notices.

“Overall, this bill makes a range of useful improvements that demonstrate the government’s ongoing commitment to ensuring the criminal laws in the ACT are up to date and effective,” Mr Rattenbury said.

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Today’s ruling stated that likely the event wouldn’t have gotten up in criminal court. An interesting take on the matter

Quoting from Justice Lee’s ruling:
“VI Conclusion on Rape
620. Mr Lehrmann raped Ms Higgins.
621. I hasten to stress; this is a finding on the balance of probabilities….”

A more interesting take on the matter – don’t you think?

William Newby10:00 pm 14 Apr 24

I still don’t believe this actually occurred, a convenient lie to shut the case down and make multimillion dollar payouts in less than 24 hours.
When has this government ever been that efficient before?

@William Newby
Really? Of course, you have evidence to support your assertion don’t you?

Incidental Tourist4:11 pm 14 Apr 24

It looks like knee jerk reaction “to do something”. If this law was in force before the only convicted person out of all this would be jury.

You were not a member of the jury. You don’t know.

But you have an ‘opinion’.

I have a problem with saying to “bring the ACT into line with other jurisdictions”
this is not a reason in itself. Does the ACT need its own system or not. Why this law and not other laws like the drugs or anti-consorting.

Seems like the excuse to bring out when we can’t actually defend as to why.
It also doesn’t make sense some of our laws are backwards

So, you have a problem with this law, which will correct an identified flaw in our judicial system, being enacted, simply because it will “bring the ACT into line with other jurisdictions”?

Where is the flaw?

The fair system is firing all jurors to agree. The cheaper system is only requiring most of them. Once you lower the bar the 11 are less inclined to argue. The result is cheaper to run but less accurate system. More innocent will go to prison. More guilty will go free.

The test in the jury system is “beyond reasonable doubt”. Having 11 out of 12 jurors, ie an overwhelming majority, arrive at that conclusion aligns with that principle. Requiring unanimous agreement is more akin to “beyond all doubt”.

There is research available on the subject. Have you read it?

The cost improvement through fewer retrials is only about 1%, not worth it without other benefits, e.g. overcoming verdict-blocking recalcitrants, yet most Australian States have implemented either 11-1 (92%) or even 10-2 (83%) so benefits other than cost were reasonably found by legislators on qualified legal advice.

It happens that a jury thinks it more likely than not (>50%, the civil standard) that someone did the crime but not “beyond reasonable doubt” so they acquit, or else they bend the “reasonable doubt” requirement and convict. Thus a guilty person may be freed or an innocent convicted in 100% juries, simply by where they set their unique accord on “reasonable doubt”.

Is 92% compared with 50% really a problem? What is actually the rationale for 100% when selection of 12 jurors is itself quite arbitrary? Increase the number of jurors and a recalcitrant is pretty much guaranteed.

The ACT Prosecutor Drumgold is/was supposed to bring a prosecution (any prosecution, not just the Lehrman case) on advice from the investigating police @Justsaying. That’s the Westminster legal system like it or not. Drumgold chose to ignore that police advice not to proceed and that’s also common knowledge @justsaying. Going against police advice not to proceed to prosecution is a very, very rare occurrence and that’s also common knowledge @justsaying, correct? Drumgolds’s entire case was speculative as the ACT police pointed out to him and that he chose to ignore. He was lucky in a way that juror misconduct caused a mistrial and then the ability to retry the case fell to a higher court judge who immediately denied the retrial. And that’s how it should have gone long before Drumgold chose to play politics with his office.

“Drumgold chose to ignore that police advice not to proceed and that’s also common knowledge”
So, you agree, Rob. The decision on whether or not to proceed to trial was Drumgold’s to make.
As for ignoring the police advice not to proceed? In the inquiry into the conduct of the Lehrmann case, despite citing several instances of misconduct by Drumgold, chair of the inquiry, Walter Sofronoff, found Drumgold was right to proceed based on the information available. The Westminster legal system is more than “police advice”.

“… the case fell to a higher court judge who immediately denied the retrial”
Seriously, Rob? And which “higher court judge” was that? I’ve only read reports that Drumgold announced that charges against Bruce Lehrmann for the alleged rape of Brittany Higgins were being dropped, saying a retrial would pose an “unnacceptable risk” to her health.
So perhaps you can direct me to the link that says the decision to retry was taken out of Drumgold’s hands?

“Drumgold chose to play politics with his office”
Yeah – that went well for him, Drumgold was definitely able to “carry (sic) favour with his political bosses” as a result of his decision to proceed.

Rob, so much wrong in so few words..

Read the DPP Act on the DPP’s powers and independence, or is that beyond you?
Read the High Court on whether judges control prosecutions, or is that beyond you?
Read what actually happened (as JustSaying accurately describes), or is that beyond you?

A judge noted aloud that there was no option to punish a juror for forcing the trial to be aborted owing to that juror’s misbehaviour contrary to repeated advice from the bench. Now that option to punish exists.

You are aware that the changes also allow 11-1 jury verdicts in certain circumstances? Here is some fun speculation for you. Imagine that the relevant jury was 11-1 at the time. Now speculate on what might have been the decision.
I haven’t a clue, because I wasn’t there, but your speculation might give you something else to froth about while you are not keeping up with facts.

But is it an offence for the Prosecutor to engage in misconduct? Because the ACT one certainly did in the same trial. He proceeded with a prosecution that the ACT police didn’t even agree with. And why? Almost certainly playing politics with his office to carry favour with his political bosses.

“He proceeded with a prosecution that the ACT police didn’t even agree with”
It is the DPP who decides whether or not to prosecute a case, not the ACT AFP, Rob. So no matter the motivation you attribute (some bias there?), the decision was legally Drumgold’s to make. The fact of the matter, if Drumgold’s decision to proceed was an error, then that should have been provem by the outcome of the trial – unfortunately because of the juror misconduct, that outcome was never realised.

But is it an offence for the Prosecutor to engage in misconduct? Because the ACT one certainly did in the same trial. He proceeded with a prosecution that the ACT police didn’t even agree with. And why? Almost certainly playing politics with his office to carry favour with his political bosses.

Rob, even Sofronoff agreed that sending the case to trial was correct.

ACT doesnt agree with him and his actions.

ACT shouldn’t just make new laws as a knee-jerk reaction.
They wanted to push though new evidence laws, until the trial was abandoned. Why is there no push for that now? Its pure interference by the ACT MLAs in the judicial system.

At trial you get judged by a jury of your peers, not a jury of your peers plus whichever MLA wants to change laws to applease the lynchmob and gather more votes.

“Its pure interference by the ACT MLAs in the judicial system.”
So you think it’s ok for a juror to deliberately contravene the instructions of the trial judge and by doing so, cause the trial to be abandoned, do you?
Ok. You are entitled to your opinion.

I don’t believe it happened.

Oh OK then – you don’t “believe it happened”, so that’s that is it? Evidence to support your opinon? Yeah … nah!

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