Australia Languishing bill could have stopped hung jury in Bourke Street case

03:51  10 july  2018
03:51  10 july  2018 Source:   theage.com.au

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A hung jury or deadlocked jury is a judicial jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority. This situation can occur only in common law legal systems

Story highlights. Jurors in Bill Cosby's trial say they cannot reach a unanimous verdict. A hung jury can lead to a mistrial, but for now judge has told the jury to continue deliberations.

James Gargasoulas is taken from a prison van into the Supreme Court on June 21.© AAP James Gargasoulas is taken from a prison van into the Supreme Court on June 21. A bill that could have prevented a hung jury in the mental competency hearing for accused Bourke Street killer James Gargasoulas has languished in parliament amid political infighting.

Mr. Gargasoulas is expected to face a second “fitness investigation” before a jury in late October when the first jury empanelled to rule on his mental capacity failed to reach a decision after a two-week hearing in June.

The “hung jury” outcome has been described as devastating by a representative of the families of five of the victims of the Bourke Street tragedy, which took place on January 20, 2017.

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“One wonders what happens if the next jury can’t reach a verdict either,” Supreme Court judge Justice Lex Lasry said after discharging the 12-person panel. “Nothing can happen until this issue of fitness is resolved.”

But a government bill that would have made judges, instead of juries, responsible for assessing an accused’s fitness to stand trial has been stuck in parliament for more than 16 months.

The Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 passed the lower house in late 2016 but has stalled since reaching the Legislative Council in early 2017.

The question of fitness goes to an accused’s mental competency, a long-standing legal test that an accused should not stand trial if they can’t understand the charge they are facing, lack the capacity to enter a plea, understand the evidence against them, follow the course of the trial, or instruct their lawyers.

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The bill has apparently stalled as Labor and the Liberals prepare to battle an upcoming state election over law and order issues.

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Because the case can be retried, a hung jury caused by one or more conscientious objectors to the law who voted Not Guilty even though they believed the law was broken does not constitute jury nullification in its strictest sense.

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The amendment is based on a series of recommendations made by the Victorian Law Reform Commission about the way the criminal justice system manages fitness and mental impairment matters.

Disagreements between Labor and the Liberals emerged during debate when the government pushed to broaden the reasons an accused can be considered mentally impaired and unfit to stand trial.

Mr. Gargasoulas, who is accused of killing six people and wounding dozens of others, has been put on a waiting list to receive treatment at Thomas Embling before the next hearing.

A government spokesperson said it would be inappropriate to comment on individual matters still before the courts, but added the bill doesn’t “make it easier for people to avoid a trial nor will it allow offenders to be released back into the community earlier''.

The spokesman insisted the government would work to have the bill passed through parliament.

Shadow Attorney-General John Pesutto said changes to Victoria’s mental impairment regime would have made it far easier for violent perpetrators to avoid criminal culpability for their actions.

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Bill Cosby pumps his fist in greeting as he arrives at court Wednesday shortly before jurors began deliberating the case . None of that was allowed at Cosby’s streamlined first trial, which ended in a hung jury last year after deliberations totaling five days.

In 1993, in Rantzen v Mirror Group Newspapers (1986) Ltd and others it was held that judges could substitute awards by juries in civil cases on appeal if they are deemed to be excessive. Hung jury .

“The government’s proposal to remove juries from questions of fitness would see judges control the process entirely and strongly favour the accused were the government to persist with all its perpetrator-friendly changes in the bill.”

Reason Party leader Fiona Patten, a member of the Legislative Council, said “the opposition is dead-set on not moving anything through the council" as a political tactic.

“The game plan is to not let any legislation pass through the upper house in an election year.”

Victims of Crime Commissioner Greg Davies said regardless of which party was at fault for failing to pass the legislation, the victims of the Bourke Street tragedy were most affected by the deadlock.

“This could have, and should have, been determined long before now. You have to ask why such an important issue can sit so low down on the batting order that it won’t be dealt with by this parliament but will have to await the outcome of an election and a new parliament.”

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