When can a jury be discharged?

What the jury is there to do

Most criminal matters in Queensland are heard by a magistrate sitting alone. Once you reach the more serious offences, the trial is in the District or Supreme Court and is usually heard by a judge and a jury of 12.

The jury has one job: decide whether the person charged is guilty or not guilty.

It is not the jury’s role to research the law or resolve legal questions. Those are for the judge. The jury decides facts, based only on the evidence given in the trial and in accordance with the judge’s directions.

Everything that follows flows from that. A jury that has stopped being able to decide facts on the evidence alone cannot do its job.

The two ways it goes wrong

1. The jury cannot reach a decision at all.
2. The jury cannot reach a decision that the law regards as fair.

In either case the jury cannot deliver what it was empanelled for, and discharge becomes a live question.

A jury that cannot agree

News coverage often treats a jury that has deliberated for more than a day as remarkable. Twelve people who have heard weeks of evidence are being asked to agree on something that will change a person’s life. That takes time, and it should.

Judges are appropriately reluctant to accept an early report that no agreement is possible, and will usually direct the jury to continue and keep working through the issues.

The Jury Act 1995 (Qld) also permits majority verdicts in defined circumstances after a prescribed period of deliberation, though not for all offences. Murder is excluded.

There is no fixed point at which a jury is treated as hung. It depends on the length of the trial, the complexity of the evidence and what is actually blocking agreement. As a rough guide, it is measured in days rather than hours.

A jury that receives information it should not have

Jurors are directed not to conduct their own inquiries, and to decide the case only on what was presented in court. In a world of unlimited search results, that instruction is under constant pressure.

People find the restriction strange. Why should a juror not inform themselves as fully as possible? There are three good reasons.

• Some true information is inadmissible. Prior convictions are the obvious example. They may be prejudicial without being probative of the charge, so they are excluded from the courtroom, and a juror with a search engine can find them in seconds.
• Media coverage is not neutral. A juror who spends the evening reading reports of the trial they are sitting on will absorb the framing along with the facts.
• Online material is unreliable and untested. Evidence in a courtroom is given on oath and subjected to cross-examination. A forum post is not.

Under the Jury Act 1995 (Qld) it is an offence for a juror to inquire about a matter relevant to the trial, other than in the proper exercise of their functions. Where it happens and the material could have affected deliberations, discharge follows.

A jury that is not impartial

The jury must be impartial and must be seen to be impartial.

The usual causes are:

• a relationship with a witness, a party or a lawyer in the trial that emerges after empanelment;
• conduct suggesting a juror has formed a view or a personal interest, including inappropriate interaction with a participant;
• a demonstrated hostility towards a group to which the accused or a witness belongs;
• a juror who has discussed the case with someone outside the jury room.

Discharge of the whole jury is not the automatic answer. Where the problem is confined to one person, the individual juror can be discharged and the trial can continue with the remainder, subject to the statutory minimum. Reserve jurors are frequently empanelled for exactly this reason.

That is generally the better outcome, and courts will take it where it is available.

What happens if the whole jury is discharged

The trial starts again from the beginning, before a new jury.

Everything is repeated: the empanelment, the openings, every witness, the addresses and the summing up. It is expensive and slow.

The burden is not evenly shared. A defendant who has not been granted bail spends the intervening period in custody. A defendant on strict conditions lives under them for longer. Complainants and witnesses in violent offence trials carry the stress of a second hearing and the prospect of giving evidence again.

Given that a trial is usually held months or years after the alleged offence, the delay compounds. That is why judges do not discharge a jury unless it is necessary.

It is also why they will do it when it is. A verdict from a jury that has been improperly influenced is not a verdict worth having, and it will not survive an appeal. See our page on criminal appeals.