There is no doubt as to the importance of the unanimous jury to our criminal justice system. We can rest assured that justice has been done when a jury of twelve good men (and women!) and true return a verdict of conviction or acquittal. We can rest assured that if all twelve jurors are in agreement, there can be no reasonable doubt as to the guilt or innocence of the accused. In a criminal justice system in which the unanimous jury is such an entrenched feature, the idea of majority verdicts – where the accused’s guilt or innocence may be decided by a majority of jurors, rather than through the consensus of all jurors – may be unfathomable.

However, majority verdicts of 11:1 and even 10:2 are neither novel nor untested. Legislation allowing for majority verdicts in criminal trials has been in force in various Australian States and Territories for almost 90 years, starting with South Australia in 1927 – with Tasmania, Western Australia, the Northern Territory, Victoria, New South Wales, and Queensland respectively following suit. It is only in the Australian Capital Territory and the Commonwealth that majority verdicts in criminal trials are not permitted. For the Commonwealth, this means that any convictions of those charged with offences against federal law must be returned by a unanimous jury.

It is possible that the Australian Capital Territory may go the way of its counterparts and enact legislation implementing majority verdicts. But what about the Commonwealth? The High Court decision of Cheatle v The Queen (1993) 177 CLR 541 has cemented the preservation of the requirement of unanimity and made clear that majority verdicts have no place in criminal trials involving offences against Commonwealth law. This begs the question: why the High Court’s insistence on unanimous verdicts for Commonwealth offences, particularly given the inconsistency with the position in the majority of States and Territories?

In Cheatle, Harvey and Beryl Cheatle were convicted in South Australia of conspiracy to defraud the Commonwealth by majority verdict. They appealed their convictions all the way to the High Court, which granted them special leave to appeal confined to the ground that their conviction by majority verdict was invalid due to s 80 of the Constitution, which provides:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury…

The Cheatles’ conundrum raised a wider issue: did s 80 require that any conviction returned in a Commonwealth jury trial be by unanimous jury? Or did the provision allow for conviction by majority? Nowhere in s 80 is prescribed the number of jurors needed to return a conviction. Therefore, the question of whether majority verdicts for Commonwealth offences were permitted by the Constitution hinged on the High Court’s interpretation of s 80.

The High Court, unswayed by arguments advanced in favour of majority verdicts, held that it was implicit in s 80 that any conviction of an accused of a Commonwealth offence be unanimous. At the core of the Court’s reasoning was an assessment of what the framers of the Constitution intended that s 80 encompass. And therein lies the crux of the Court’s insistence on unanimity – the issue at hand was not the inherent appropriateness or otherwise of majority verdicts for Commonwealth crimes, but whether the framers of the Constitution intended for a conviction of a Commonwealth crime to be returned by majority. In holding that they did not, the High Court drew on considerations of history, principle, and authority favouring unanimity that were prevalent at the time of drafting of the Constitution, as well as fundamental ideas of criminal justice which are so universal, that – although other features of the criminal jury trial that were in force at the time of drafting (such as the requirement that only males with a minimum property qualification could serve on a jury) have been abolished to accord with the standards of our modern democratic society – it was intended that the requirement of unanimity remain immutable.

The fact that the issue is one of constitutional intention lends a dimension to the consideration of unanimous versus majority verdicts for Commonwealth offences which is absent from consideration of the same at State and Territory level. The right to a Commonwealth jury trial has the force of the Constitution, and for as long as Cheatle remains good law, the Constitution ensures that any conviction returned in such a trial be unanimous. Whatever your individual views on the merits of unanimous versus majority verdicts, at the very least, the decision is a heartening one for accused: should you ever find yourself in the unfortunate position of standing in the dock facing Commonwealth charges, you can take comfort from the fact that all twelve of your peers will need to be convinced of your guilt before you hear the fatal words, “Your Honour, we find the accused guilty”. And when all is said and done, that is the essence of the criminal jury trial: the protection of the accused against wrongful conviction.

The requirement of unanimous verdicts for Commonwealth offences, and the constitutional right to trial by jury generally, are discussed in 19.6 “Constitutional Guarantees of Rights”.

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