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February 1999

What’s it about?

The jury system is back in the news.

Once again Victoria is the maverick in the federal pack, and as with many of the moves in that State to reform the law, there have been resounding responses for and against.

Victoria’s latest legal adventurism began with a news leak just before Christmas, when Victoria’s largest selling newspaper, the Herald Sun, reported proposed wholesale changes to the traditional role of juries.

According to a spokesperson for the Attorney-General, Jan Wade, the government was "looking at extending majority verdicts to murder and treason trials". This would augment the present system, where majority verdicts of 11-1 are allowed in other types of criminal trials, and to an extent reproduces the system in the Northern Territory.

The importance of juries

It would be fair to say there is widespread support for using juries in criminal cases. If you ask the average person in the street, most would say that juries safeguard the liberties of the public, and that twelve people called at random are able to apply a reasonable person’s standard to criminal accusations.

Let’s be honest, the average person has little (or no) trust in lawyers, and if they are going to be tried for their sins, they would rather their peers were making the ultimate decision of guilt or innocence.

So tampering too much with the jury system may, in all likelihood, affect the public’s confidence in the administration of justice. True, we expect judges to ensure that criminal trials are conducted in a fair manner, but in the final analysis, we want to leave the verdict in the hands of the people.

Of course we also want juries to be broadly representative of the community they serve. And here we begin to strike problems, because a recent survey of Victorian juries (and the same would be true of all States and Territories) revealed that around two-thirds of people sent a jury questionnaire, ruled themselves out before they ever got to the starting post.

Clearly this raises serious doubts about the representative nature of juries: but it illustrates the problem of characterising our juries as "twelve men good and true". Perhaps we should more appropriately characterise them as "twelve persons with nothing better to do".

History of juries

There is some dispute about the real origins of juries in England, but it probably began with the Norman Conquests, and can be related to the inquisition, where a judge summoned some of the men of the neighbourhood and ordered them to declare the truth.

Oh, by the way, they had to have some knowledge of the issue at hand, not quite our idealised view of the impartial juror. But it was probably a step up from earlier forms of mediation, for instance, trial by battle or trial by ordeal, in which God’s intervention was sought to settle the dispute.

This had changed by the reign of Henry IV in the fifteenth century, when the jury was required to decide only on the basis of the evidence before them, not because of a whispered conversation with one of the parties or some promise of future rewards. And by that time the "twelve men good and true" had to be free from any relationship with the accused – good idea!

Majority verdicts

There is a very long tradition of majority verdicts in English law, going back to the 14th century. Victoria has had majority verdicts for other criminal offences since 1993, and true, it has not resulted in tanks in the street or revolutionaries shouting from the dome atop the Supreme Court. But fundamentally, what is it about unanimous verdicts that stirs the hearts of so many civil rights lawyers?

Let’s go back to basics: a person can only be convicted of a criminal offence if proved "beyond a reasonable doubt". This is what lawyers call the standard of proof – the jury must be satisfied that the prosecution case has been proved beyond a reasonable doubt.

What’s reasonable doubt? Well, the High Court has previously told us that this concept is so well understood and needs no explanation (we’re sure you’ll sleep better after that!).

Is this an argument in favour of majority verdicts? After all, if eleven of twelve jurors believe a person is guilty, doesn’t that preserve the criminal standard of proof?

But before we fix the present system, shouldn't we first be convinced that there is something amiss with the current system. It's not as though there are a great number of "hung juries" i.e. a jury that can’t agree on the verdict, in which case the jury is discharged without a verdict (after which it’s up to the prosecutor to decide whether there should be another trial).

There have been only a few sensational examples of hung juries, for instance the murder trial of Mr Edwin Lewis, who had to be tried five times before he was finally convicted. But that is by far the exception.

Is unanimity really necessary?

In New South Wales there are many criminal matters that are heard by a judge alone, and if you are unfortunate enough to find yourself in a Local or Magistrates Court, be prepared to be judged by the magistrate without any help from your peers in the jury box.

The best argument against unanimity is the limited pool of jurors that are available for jury service. To be fair, a person should expect to have all the jurors agree on a question as serious as murder, but it’s a nonsense in a system where the jurors do not even represent the community at large.

What we should look for, rather than focusing on the virtue or otherwise of unanimity in murder trials, is a way to make sure that a far broader cross section of the community is available and compellable to sit on a jury.

Yes, we can hear you say, that’s all very well, but what about our jobs, our responsibilities to our families and our right to be paid a decent allowance for the time lost from work? Okay, good point, so part of the deal has to be a fair pay-packet for the time spent on the jury. But the other part of the deal has to be an acknowledgement that the law is the bedrock of a civil society, and juries are a basic protection of those rights. To coin our favourite legal maxim, "res judicata pro veritate accipitur" i.e. you can’t have your cake and eat it too *.

* That’s not really what it means, but we figured not too many of you can speak Latin.

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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