The case against Bruce Lehrmann over the alleged sexual assault of Brittany Higgins resulted in a mistrial following a juror’s actions. Photos: Albert McKnight.
Jurors who inquire about trial matters or do their own research without court authorisation could face up to two years’ imprisonment under proposed law changes.
Attorney-General Shane Rattenbury introduced the Crimes Legislation Amendment Bill 2023 to the Legislative Assembly, creating the new juror misconduct offence.
“If a juror relies on their own information, it undermines the defendant’s right to a fair trial,” he said.
“This is particularly relevant in situations where an innocent person could be found guilty of an offence due to a juror relying on information found in that juror’s own unauthorised inquiry.”
He directly referenced Bruce Lehrmann’s case in the ACT Supreme Court, which ended in a mistrial. The case against Mr Lehrmann was discontinued and no findings were made against him. Mr Lehrmann has maintained his innocence.
“This was a particular matter during the Lehrmann trial where one particular juror was seen to have brought their own information into the jury room,” Mr Rattenbury said.
“The Chief Justice did note there was a gap in ACT law. We’ve now considered that advice and do feel it is appropriate to bring in an offence that addresses that particular point.”
The law change won’t impact a justice’s power to charge someone with contempt of court.
Mr Rattenbury said this was to make it clear to jurors that they should go back to the justice to seek further information.
“Introducing this offence makes clear to jurors and the community both the importance of jurors not conducting their own inquiries and the serious consequences for making an inquiry without the authorisation of the court,” he said.
Jurors can still ask for clarification on evidence, court proceedings or legal definitions, as these questions are directed through the justice presiding over the trial.
Another change will allow majority verdicts to be accepted in the ACT, bringing its courts in line with other jurisdictions.
This reform would allow for such verdicts to be permitted in criminal cases when 11 out of 12 jurors have agreed on a verdict, the jury has deliberated for at least six hours, and the court believes the jury is unable to reach a unanimous verdict.
“A majority verdict will be taken in relation to all Territory offences with no exceptions, but not in relation to Commonwealth offences, for which there is a constitutional requirement that there be a unanimous verdict,” Mr Rattenbury said.
It’s hoped this will reduce the occurrence of retrials in the Territory.
“In a diverse community, people may not always agree, resulting in hung juries. This not only causes delays and increased costs, but also added emotional strain for victims, accused and others involved in the proceedings,” Mr Rattenbury said.
“Retrials may not always be possible or appropriate, which itself can increase the suffering of victims.”
Seven further amendments in the bill will make sure the ACT’s laws are up-to-date and support the functioning of the criminal justice system, including clarifying the court’s ability to impose a fine and requiring a further review of the Confiscation of Criminal Assets Act by August 2026.
Consultation on the reforms was held with multiple stakeholders, including the ACT Law Society.
The society’s Criminal Law Committee chair Michael Kukulies-Smith said while the new specific misconduct offence may allow jurors to more easily understand their obligations and the community to understand the seriousness of juror misconduct, the committee believed the new offence was “unnecessary” because the contempt of court charge is able to deal with juror misconduct.
“Juror misconduct interferes with the administration of justice and has a negative impact on everyone involved in cases where it occurs,” he said.
“The creation of this new offence should reinforce this to members of the public and remind them of the importance of adhering to a judge’s directions when serving on a jury.
“If jurors believe they require more information in order to reach a true and correct verdict, the best course of action is always to raise this with the trial judge through the sheriff’s officers who support our juries.”
He said research had shown criminalisation of juror misconduct could result in underreporting of this offence by fellow jurors, may result in an increased number of people applying to be excused from jury duty, and courts had exhibited reluctance to refer juror misconduct cases for prosecution.
As for the majority verdicts change, Mr Kukulies-Smith said the committee also had “reservations” about this change, taking issue with the six-hour minimum time limit for a jury to deliberate before a court can consider accepting a majority verdict of 11 to 1.
Despite this, the society otherwise supported this amendment.
“Trials in which verdicts are not reached are costly, both emotionally and in terms of resources,” Mr Kukulies-Smith said.
“Avoiding this benefits everybody involved in trials and the community.”
Debate on the amendment was adjourned.
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