For Better Or Worse, Jury Nullification is Democracy Manifest

On December 3rd 1854, as the sun started to rise over Ballarat, Victoria, 120 miners and their families awoke suddenly from their tents to find 276 British soldiers storming over their flimsily built stockade. Within 15 minutes, at least 6 soldiers and 22 rebels had been killed, with other estimates reaching as high as 60.[1] These miners and their supporters had been killed for protesting the exorbitantly high licence fee to mine, their lack of a right to vote, and continued corruption amongst the police force.[2]

For this, they were also arrested, with 13 leaders of the rebellion eventually being put on trial for treason. Here, however, their peers reached their verdict not by assessing their guilt but by instead trying the trial itself. They disagreed with the actions of the government, and as such, acquitted each and every one of them.[3]

In time, the rebels were further vindicated by a 1855 Commission of Enquiry, which saw the licence fee removed, half the police on the goldfields fired, and an increase in voting rights to the people of Victoria. High Court Judge and former leader of the Labour Party, Doc Evatt, later declared that “Australian democracy was born at Eureka."[4]

On June 10th 1838, as the sun started to lower over Myall Creek, NSW, and the Wirrayaraay people were preparing their evening meal, a group of armed European settlers walked onto the station where they’d been living. [5] The settlers herded the group and tied their hands together with one long rope. They walked them 800m away from their campsite and into the bush. [6] They hacked, slashed and beheaded at least 28 of them. Two days later, they returned to burn the bodies and to find the 10 they’d missed. They found them the next day.[7]

Through relentless work by the, at-the-time, solicitor-general, John Plunkett, these murderers were by some miracle actually brought to trial.[8] Yet the all-white jury took just 20 minutes to reach a not-guilty verdict.[9] Thankfully, there would later be a second trial, which would incarcerate some of the others involved, but many still went free. Speaking later to The Australian, one juror from the first trial said: “I knew well they were guilty of the murder, but I, for one, would never see a white man suffer for shooting black." [10]

These two moments of our history, one a patriotic stand against tyranny, the other a sickening massacre, contain some of the earliest Australian examples of a process called jury nullification. Jury nullification is when the jury knows a defendant is guilty beyond a reasonable doubt, and yet they still choose to acquit them. This process has recently come into the news again with Luigi Mangione’s arrest and upcoming trial, [11] so now seems as good a time as any to interrogate its legitimacy and what it says about the justice system and democracy.

Much ink has been spilled over whether nullification is a valid action of a jury. However, this article will go beyond such discussions to instead argue that jury nullification reveals a tension at the heart of the justice system, between democracy and the rule of law, and that if we believe in the former, the latter must suffer. Jury nullification is democracy, and that isn’t always good. To advance this, I will give an explanation of why we have juries, an analysis of how nullification and the failures of representative democracy are inextricably linked, and lastly, how the will of the people does not necessarily follow the rule of law.

Before that, however, let’s give a better explanation of jury nullification. The reason why juries can nullify comes from three tenets of the justice system.[12] Firstly, juries do not need to give reasons for their decisions.[13] Secondly, jurors cannot be punished for their decision.[14] Lastly, the double jeopardy rule assumes that not-guilty verdicts cannot be overturned in the vast majority of cases.[15] Because of these rules, a jury has free rein to dole out innocence. Some see this as an accident, an unfortunate consequence of upholding juror protections, others as an “undoubted right”.[16] To parse this, let’s examine the role of the jury. Juries have had a long and winding evolution, from 12 pals who would vouch for your credibility,[17] to the system we know today. This makes it difficult to identify their specific purpose. At the most basic level, juries need to decide upon a verdict. But why should we call upon 12 citizens to make that decision, as opposed to 12 trained judges? Sifting through Australian case law begins to paint an answer.

The first commonly-cited reason is that it provides a safeguard against the “authority of government.”[18] Without juries, the argument goes, the state could abuse its monopoly on violence in any way it sees fit. The second reason is that including the public within the justice system necessitates its accessibility to the “lay[person],”[19] meaning the system has to be transparent to the accused and the public, again to prevent abuses of power. Lastly, juries bring community standards to the courtroom.[20] This last reason is the most dubious of the three, as judges rarely elaborate on what these community standards look like. Does it mean society’s interpretation of what “beyond a reasonable doubt” means? Or does it mean overriding the law? Despite the ambiguity, it’s not really up to judges to decide.

Each of these three reasons, however, is about making sure the state stays accountable to the people. I argue that this value has arisen because we, as a democratic society, believe that the law should be informed from the top down, by the people. We see this in how laws are made by our representatives, upon whom we’ve delegated power.[21] If someone breaks those laws, the state takes over. They arrest, charge, and try them, with little oversight from the people. Juries are the final roadblock to make sure society still has control. To make sure, the state hasn’t failed them. So, let’s look at where they fail.

Professor Darryl Brown, in his article, “Jury Nullification within the Rule of Law,”[22] gives 3 main reasons why juries nullify. Firstly, the law is unjust; secondly, an otherwise fair law is being unfairly applied in a particular case; or lastly, they are biased in favour of the accused or against the prosecution. All of these rationales illustrate a way in which the justice system has failed to represent the will of the people. If a law is thought to be unjust, then it is outdated and requires reform. If it is being unfairly applied, then there was a contingency that was not thought of by the legislature. Representatives can fail to represent, and in those cases, why shouldn’t the public correct them?

That is easy to say when we look at those first two reasons, namely, when the law is incorrect or is being incorrectly applied. This is the category of the Eureka Stockade rebels being unfairly tried for treason, or acquittal for victims in the War on Drugs,[23] escaped slaves,[24] journalists,[25] or people acquiring an illegal abortion.[26] This is the best of jury nullification. When the people are fighting against racist, sexist and undemocratic laws, to uncover a clearer conception of the rule of law.

But Brown notes how the last reason, jurors being biased, is unique in that it actively spreads inequality and hence breaks the rule of law. These are the “community standards” that see the murderers of the Wirrayaraay people and US lynch mobs go free.[27] These are the sexual assault cases where the victim was “asking for it,”[28] and the defendant can roam the streets again. These are the cases where the victims are judged instead of the defendant.[29] As Professor Andrew D. Leipold writes, “For every case where the jury extends mercy to a deserving defendant, there may well be another (or two, or five others) where the verdict is based on improper considerations.”[30]

But are these terrible outcomes really so surprising? Many laws throughout history have, ironically, not followed the rule of law. The White Australia Policy, the Fugitive Slave Act, and same-sex marriage only being legalised in 2017. The majority can be incalculably cruel. In a perfect democracy, the people’s will is perfectly reflected, but that says nothing as to that will’s morality. Juries may protect us from the state, but they won’t protect us from ourselves.

References

[1] Ian MacFarlane, Eureka from the Official Records (Arts Victoria, 1995).

[2] ‘Eureka Stockade’, National Museum of Australia (Web Page, 1 December 2025) <https://www.nma.gov.au/defining-moments/resources/eureka-stockade>.

[3] Ibid.

[4] Ibid.

[5] ‘Myall Creek Massacre’, National Museum of Australia (Web Page, 20 February 2026) <https://www.nma.gov.au/defining-moments/resources/myall-creek-massacre>.

[6] ‘The Massacre Story’, Friends of Myall Creek (Web Page, 2026) <https://myallcreek.org/the-massacre-story/>.

[7] Jens Korff, ‘Myall Creek Massacre (1838)’, Creative Spirits (Web Page, 25 June 2023) <https://www.creativespirits.info/aboriginalculture/history/myall-creek-massacre-1838>.

[8] Ivan Bolger, ‘John H. Plunkett & the Myall Creek Massacre, 1838’, Irish Aussies: Historical Perspectives, (Web Page, 2023) <https://irishaussies.wordpress.com/war-and-confli,ct/plunkett-myall-creek/#_ftn16>.

[9] ‘Myall Creek Massacre’, National Museum of Australia (Web Page, 20 February 2026) <https://www.nma.gov.au/defining-moments/resources/myall-creek-massacre>.

[10] Abraham Cohen, ‘To the Editor of The Australian’, The Australian (Sydney, 8 December 1838).

[11] Emma Starr, ‘Jury Nullification: Could Mangione Be Found Not Guilty Despite the Evidence?’, Sydney Criminal Lawyers (Web Page, 30 April 2025) <https://www.sydneycriminallawyers.com.au/blog/jury-nullification-could-mangione-be-found-not-guilty-despite-the-evidence/>.

[12] Ugur Nedim, ‘Jury Nullification: Power to the People’, Sydney Criminal Lawyers (Web Page, 12 March 2021) <https://www.sydneycriminallawyers.com.au/blog/jury-nullification-power-to-the-people/>.

[13] Kingswell v The Queen (1985) 159 CLR 264, 283; Mourani v Jeldi Manufacturing Pty Ltd (1983) 155 CLR 695, 825.

[14] Bushell’s Case (1670) 124 ER 1006.

[15] R v Carroll (2002) 213 CLR 635.

[16] R v Boyle (2009) 26 VR 219.

[17] Thomas Regnier, ‘Restoring the Founders’ Ideal of the Independent Jury in Criminal Cases’ (2011) 51(3) Santa Clara Law Review 775.

[18] Kingswell v The Queen (1985) 159 CLR 264, 300; Caisa Elizabeth Royer, ‘The Disobedient Jury: Why Lawmakers Should Codify Jury Nullification’ (2017) 102(5) Cornell Law Review 1401, 1402.

[19] Cheatle v The Queen (1993) 177 CLR 541, 549.

[20] R v White [2024] NSWSC 1369, [29].

[21] Caisa Elizabeth Royer, ‘The Disobedient Jury: Why Lawmakers Should Codify Jury Nullification’ (2017) 102(5) Cornell Law Review 1401.

[22] (1997) 81 Minnesota Law Review 1149.

[23] Paul Butler, ‘In Defense of Jury Nullification’ (2004) 31(1) Litigation 46, 49.

[24] Ibid, 46.

[25] Leon R. Yankwich, ‘Trial of John Peter Zenger’ (1949) 24(12) Los Angeles Bar Bulletin 360.

[26] Kirsty Nancarrow and Melinda Howells, ‘Couple not Guilty in Abortion Trial’, ABC (online, 14 October 2010) <https://www.abc.net.au/news/2010-10-14/couple-not-guilty-in-abortion-trial/2298224>.

[27] Mary Claire Mulligan, ‘Jury Nullification: Its History and Practice’ (2004) 33(12) Colorado Lawyer 71.

[28] Andrew D. Leipold, ‘Rethinking Jury Nullification’ (1996) 82(2) Virginia Law Review 253, 305.

[29] Ugur Nedim, ‘Jury Nullification: Power to the People’, Sydney Criminal Lawyers (Web Page, 12 March 2021) <https://www.sydneycriminallawyers.com.au/blog/jury-nullification-power-to-the-people/>.

[30] Andrew D. Leipold, ‘Rethinking Jury Nullification’ (1996) 82(2) Virginia Law Review 253, 304.