Juries mediating justice

Research Brief 7


Although most people envision the jury’s role as simply determining the guilt or innocence of a defendant, the outcome of a jury trial can actually be much more complex. Factors surrounding the trial and the defendant’s actions can lead to less straightforward verdicts which do not necessarily indicate whether the accused did or did not commit the offence for which they were tried. Recommendations to mercy, alternate verdicts and jury nullifications have each historically been used by the jury to modify the strict application of the law.

The recommendation to mercy is usually made with some grounds attached to it – on the basis of youth, old age, good character or familial circumstances. Leonard Gordon Darcey was tried for murder in Kalgoorlie and convicted of the manslaughter of Sava Vlausaulevich in 1952, after he hit him over the head with a mallet while he slept. Vlausaulevich was involved with and living with Darcey’s mother, and the jury recommended Darcey to mercy on the basis that the victim had been mistreating her for years. The jury considered he had received ‘a negative type of provocation’ and at the instruction of the judge, they also altered their verdict from one of murder to manslaughter.

Recommendations to mercy reflect not only sympathy for the defendant, but prevailing social feeling in relation to a crime. Up to the mid-twentieth century it was common for juries to recommend indigenous murder defendants to mercy because it was claimed that the killings were committed in accordance with tribal custom. The recommendation to mercy is a way of acknowledging that while the defendant’s actions are not objectively acceptable, they are subjectively understandable and deserving of society’s sympathy.

On the other hand, it is open to a jury to return a guilty verdict for a lesser offence than that for which the defendant was tried. This ‘alternate verdict’ is sometimes used by the jury for a purely sympathetic purpose. This decision is based on the evidence presented at trial – a judge may instruct the jury of its option to return a verdict on a lesser charge.

The most common example of the alternate verdict is where a murder defendant is found guilty of manslaughter, as in Darcey’s case. However, another example is its use in sexual assault cases. In the 1901 Perth rape trial of James Eccles, James McGowan and Peter McGowan, it was alleged that they had drugged and raped a 16-year-old girl. The main question of fact was whether she consented to the act, there being no doubt that she had engaged in sexual intercourse on the night in question. Despite this, the jury enquired about and then returned a verdict of indecent assault. They apparently believed that the victim had not consented to being indecently dealt with, but were unwilling to deliver a full guilty verdict for rape, which at this time carried the death penalty. The alternate verdict, although clearly not reflective of what the jury believed actually happened, saved the defendants from execution but still delivered them to punishment – albeit only an eighteen-month sentence.

Jury nullification is a more controversial practice, in which juries entirely acquit a defendant despite believing in their guilt. It was recognised as a serious problem in England in the eighteenth century, when the Bloody Code imposed the death penalty for a variety of minor property or personal offences. Reluctance to send defendants to their deaths led juries to acquit the guilty where their criminal behaviour did not seem to warrant execution.

Screen Shot 2015-02-04 at 8.47.53 amScreen Shot 2015-02-04 at 8.47.30 am

However, jury nullification may also occur where the jury disagrees with a law or where the circumstances of a crime are not considered to merit punishment. In one 1949 case, a Tamworth (NSW) jury acquitted William Henry Griffin of assault and intent to cause grievous bodily harm despite the defendant’s confession that he shot at his estranged wife with a rifle. The jury evidently considered that the defendant’s conduct was justified in the circumstances, his wife having gone to Griffin’s house with the intent to sell it. The judge expressed amazement at the verdict returned, but Griffin was released from custody.

The recommendation to mercy, alternate verdict and jury nullification are all examples of juries stepping outside their role as arbiters of fact and making both decisions of law and judgements of morality. This discretion to deliver verdicts of opinion as well as fact was and remains one of the most controversial aspects of the jury system.

Author: Kelly Staunton, Honours student

To cite this research brief: Kelly Staunton, ‘Juries mediating justice’, The Prosecution Project, Research Brief 7, https://prosecutionproject.griffith.edu.au/juries-mediating-justice (4 February 2015, viewed 19 July 2016).