Ugur Nedim, Principal Lawyer at Sydney Criminal Lawyers®, was tasked as a young criminal lawyer with defending a prisoner charged with murdering another inmate. At that time the matter seemed fairly straightforward. But the defence team found compelling evidence that would, when presented to the jury, change the outcome entirely. 
Inmate murder is nothing new. Since prisons were built and hardened criminals have been locked away from society, in isolated communities of their own, there has always been the potential for anger, aggression, and violence. Add to that, a population with higher than average rates of mental illness and addiction as well as over-crowding, prisons are harsh environments, where tempers often reach boiling point.
So, when Ugur Nedim, as a young criminal lawyer in the late 1990s was approached to take on the case of a prisoner charged with murdering another, on the face of it, the case seemed fairly straightforward.
The information available at the time had led to several other lawyers prior to Mr Nedim suggesting that the client plead guilty to the lesser charge of manslaughter. In fact, any other defence advice seemed preposterous, unwinnable, and it was originally the advice that Mr Nedim himself agreed with.
The act of murder
The murdered inmate was in Goulburn Prison serving time for a string of heinous crimes. He was a former member of ‘5T’, a Vietnamese crime gang active in Sydney throughout the 1980s and 1990s, with sub groups and ex-members around the country. ‘5T’ was involved in criminal activities such as drug dealing, arms dealing, extortion, money laundering, home invasion and armed robbery.
The deceased had been involved in one of the group’s most heinous crimes. He, along with a fellow ‘5 T’ gang member had attacked a young couple in a car in a secluded spot known as ‘lover’s lane’ on the Georges River. They assaulted and tied the young man to a tree, then gang raped and murdered his young female partner in front of him.
In prison, the deceased wielded a great deal of power, and he had achieved the position of ‘sweeper’. On the day of his murder, he and another inmate tried to drag a friend of the other prisoner, the man accused of murdering him, towards the toilet area.
The accused grabbed a large pair of scissors and stabbed the deceased relentlessly to all parts of his body – head, body, groin – 67 times in total. There were witnesses. And by all accounts, the accused man paused for several seconds during the attack – at which time the deceased was totally incapacitated – then recommenced his savage attack.
An attack not classed as ‘self-defence’
Nevertheless, Mr Nedim took on the case, even though when reviewing both the evidence and the circumstances, he knew that such a brutal and conscious attack could not be classed as ‘self-defence’ under the law.
However, having been assigned a grant of Legal Aid, Mr Nedim set to work, with the sole aim of representing his client to the best of his ability, and assemble a thorough and sound defence. In conducting his own research, Mr Nedim subpoenaed a whole range of documents – including 3,000 pages of prison medical and administrative materials, which he then meticulously reviewed.
The medical files contained reports pre-dating the killing, and they suggested that the murdered man had sexually assaulted his client on at least one prior occasion. It had been reported that the deceased had been doing this to other inmates too.
When Mr Nedim confronted his client with the information he’d uncovered, he broke down in tears – scarred and ashamed.
A plea of ‘not guilty’
Armed with this information, Mr Nedim and his client proceeded to trial at Darlinghurst Supreme Court and instructed now-retired criminal defence barrister Andrew Barrie.
The strategy, in pleading ‘not guilty’ to the single charge murder, was to put as much disparaging information about the deceased before the jury as possible. This included the murdered man’s despicable past crimes, his abuse of power in prison and the evidence of his attacks on the man who murdered him.
Despite the fact that 67 stab wounds with a pause in between would amount to excessive self defence (at best) the jury found the man not guilty.
The concept of ‘jury nullification’
Such a situation might fall into the category of ‘jury nullification’.
Jury nullification is when a jury reaches a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies the laws at the basis of the trial. This generally occurs when members of a criminal trial jury believe that a defendant is guilty, but choose to acquit them anyway.
This can be for a range of reasons. Either the jurors believe that the law itself is unjust, in pertaining to the case before them, that the prosecutor has misapplied the law in the defendant’s case, or that the potential punishment for breaking the law is too harsh. There are also situations where jurors might sympathise with the motives of perpetrators – such as those who assist terminally ill people to commit suicide, or a recent case in New South Wales, when a Newcastle man killed an intruder.
In the case of Mr Nedim’s prisoner, Mr Nedim says that watching the jury during the trial, it was apparent they were “disgusted with the deceased and his conduct – to the point where they perhaps thought his demise represented justice, despite the body of evidence presented to them.”
How did jury nullification come about?
Many see jury nullification as a by-product of two laws.
The first is the law which protects “jury secrecy”. It prevents juries from being required to give reasons for their decision. A jury’s primary role in a criminal case is to decide the facts, and the ultimate question of whether a defendant is guilty or not guilty in accordance with the law. Jurors cannot be punished for deciding one way or the other, even if their conclusion does not appear to reflect the state of the evidence, and do not need to disclose why. Once a jury returns a verdict, that verdict cannot be questioned by any court.
This is when the second law applies. The law of “double jeopardy”, which (in most cases) prohibits a retrial of the accused person on the same charge and the same facts that got them to court in the first place.
The pros and cons of jury nullification
Juries are not routinely informed about jury nullification. It remains a controversial concept, obviously, because there is a widely-held concern that jury nullification enables jurors to follow their own personal sympathies, and could cause destabilisation, increasing the number of ‘hung’ juries unable to reach a decision.
There’s also a concern that it places too much responsibility on jurors, rather than allowing them to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.
However, the concept of jury nullification has an important role too, in preventing our criminal justice system from becoming too rigid. Jurors, after all, are people with thoughts and feelings of their own. It’s ridiculous to suggest that each doesn’t bring their own life experiences to bear in a trial before them. It would be impossible not to. Juries are, however, certainly aware of the enormous power they wield in decision-making a fact that it reiterated during the trial process.
Although jury nullification requires jurors to ignore a judge’s directions, Juror’s must always have the ability to weigh the facts as they are represented, and make an appropriate decision to ensure justice for victims.
Ugur Nedim is the Principal of Sydney Criminal Lawyers®. He has a distinguished career as an exceptional criminal defence lawyer and has been recognised by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005. He focuses on serious and complex crime, with a special emphasis on corporate crime and investigations, large-scale fraud, commercial drug importation and supply, and murder/manslaughter cases.
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