The Jury System

Think… Western Australian defence lawyer Malcolm McCusker QC launched an attack on the jury system saying: ‘If you were charged with a crime and were innocent, would you like your fate to be decided by 12 people, chosen at random by lot, not qualified or experienced in assessing evidence, and with no legal training? And who give no reasons for their decision, so that if they found you guilty, it would be extremely difficult to appeal?’ Do you agree?

Think again… “We have a criminal jury system which is superior to any in the world, and its efficiency is only marred by the difficulty of finding 12 men every day who don’t know anything and can't read.” (Mark Twain, US humorist and author 1835–1910) Discuss why Twains views are even more pertinent today given more far-reaching media coverage?

We still use juries to determine the guilt or innocence of a defendant in a criminal trial. Members of the general public can be called to do jury duty. Their task is to listen to the evidence presented in court before giving their verdict.

What is a Jury? A jury is a group of ordinary men and women who are selected to sit in court for the duration of a trial and hear the evidence brought against the accused. They should have no knowledge of the facts of the case before the trial commences and must determine, beyond reasonable doubt, on the basis of the facts, whether the defendant (the accused) is guilty or not guilty. A jury is required in criminal cases where an indictable offence has occurred and the defendant has pleaded not guilty. If the defendant pleads guilty, a jury will not be used and the judge will determine the sentence. Juries are not used in the Magistrates' Court but are used in the county and supreme courts.

Definition: Role of Jury A jury is a body of six people (in a civil case – 8 in longer cases) or 12 people (in a criminal case – 15 in longer cases) who decide all questions of fact at a trial, apply the law as outlined by the judge and deliver a verdict of guilty or not guilty. They are known as a “trial by one’s peers”.

DID YOU KNOW If you are on the electoral roll, you could be asked to do jury duty. This mechanic could be called up for jury duty. Juries should represent a cross-section of the community. It is considered to be a civic responsibility for all of us.

DID YOU ALSO KNOW… Serving on a jury can be traumatic. In 2011 jurors in the Arthur Freeman trial were offered counselling at the end of the trial. Freeman was notorious for throwing his 4-year-old daughter off the West Gate Bridge. Jurors in the trial of Matthew Johnson were warned that a prison video of Johnson bashing Carl Williams with a metal bar eight times was graphic. Johnson's lawyer said ‘It's real, it's not TV, it's not a movie’.

Role of the Jury

Role of criminal jury The role of the jury in a criminal case is significant. They must: listen to all facts and to remember and understand them. take direction from the judge Remain completely unbiased and independent, putting aside any preconceived prejudices. They must deliver a verdict of guilt or innocence beyond reasonable doubt No role in sentencing if found guilty – this is judge’s role

Role of civil jury listen to all facts and to remember and understand them. take direction from the judge Remain completely unbiased and independent, putting aside any preconceived prejudices. Decide whether the defendant is liable based upon the balance of probabilities May be required to undertake assessment of damages

Factors that may affect the composition of a jury: Factors that affect the composition of a jury are set out in the Jury Act 2000 1.) Excused: A person who is excused from jury duty may not serve on a jury if they wish because of age, health reasons or difficulty in attending court. 2.) Disqualified: A person who is disqualified from jury duty is not allowed to serve on a jury because of a criminal record or other behaviour. 3.) Ineligible: A person who is ineligible for jury duty may not serve on a jury because their profession provides them with a working knowledge of the legal system, and therefore they may inadvertently and unfairly influence other jurors. 4.) Potential jurors are selected from the Australian Electoral Role. If someone is not enrolled, is not an Australian citizen or not over the age of 18, they cannot be chosen for jury duty

Empanelling the jury A criminal jury consists of 12 people who have been randomly chosen from the state's electoral roll. Sometimes, however, in large trials, 15 jurors will be empanelled (formally selected) to form a jury to ensure that, at the end of the trial, there are at least 12 jurors who can return a verdict. When selecting a jury, both parties are allowed to challenge potential members of the jury. In cases that involve only one defendant, each side is given six peremptory challenges. A peremptory challenge means that the potential juror is not required on this particular jury and no reason need be given. If either party has exhausted the peremptory challenges, that party still can challenge a potential juror, but must provide the court with an adequate reason (referred to as ‘for cause’ challenges).

Challenge definitions: A peremptory challenge is a challenge to a potential juror where no reason for the challenge is given. (6 in criminal none in civil) A ‘for cause’ challenge is when a potential juror is challenged and a reason is provided for challenging the juror. (unlimited in both civil and criminal)

TEST your understanding 1.) Decide whether the following potential jurors would be excused, ineligible or disqualified from jury duty. John is now approaching 80 years of age and he does not think he could manage the travel to and from court every day to do jury duty. Denise is a convicted criminal who has now been released from jail. Jan has just received news that she has a life-threatening illness. Tan is a police officer. 2.) Explain the difference between a peremptory challenge and challenge for cause.

1.) Why are juries not used in the large majority of cases? 2.) Under what circumstances will more than the required number of jurors be empanelled? 3.) Why might a judge grant extra time for a jury to reach a verdict? 4.) Explain the difference between a unanimous verdict and a majority verdict. 5.) What is a hung jury and what effect does it have on a trial? 6.) When is a jury used in a civil trial and what two roles are performed by civil juries?

Describe the role of the jury (4 marks)

Evaluation of the Jury System There are many opponents of the jury system, but juries are still used today and are considered the fairest way of reaching a verdict in a criminal trial. The following photographs tell us something about the jury system.

Ronald Ryan was the last man to be hanged in Victoria in 1967 Ronald Ryan was the last man to be hanged in Victoria in 1967. He was executed for the murder of a prison warden while he was escaping from jail. There was much media coverage at the time and Ryan's lawyer, Dr Philip Opas QC, once said, ‘I think he was convicted before the jury got into the box’. Dominic Mick Gatto leaves the Victorian Supreme Court a free man after being acquitted by a jury of the murder of Andrew ‘Benji’ Veniamin. Gatto left the court calling out, ‘Thank God for the jury system’.

Lindy Chamberlain with her then husband, Michael, in 1982 Lindy Chamberlain with her then husband, Michael, in 1982. Lindy was found guilty by a jury of murdering her baby at Ayers Rock in 1982. The conviction was quashed in 1988 after a judicial inquiry. The ability of the jury to assess complex forensic evidence was raised. A coronial inquest in June 2012 ruled that a dingo was responsible for the baby's death.

Criminal Juries For a guilty verdict to be returned, the jurors must unanimously agree (12 jurors all reaching the same verdict) that there is no reasonable doubt that the accused did commit this crime. If it is not possible to reach a unanimous verdict, a majority verdict (11 out of 12) will be acceptable, except in cases involving murder, treason or certain federal drug-related offences. If the jury is unable to reach a decision, a hung jury may be declared and a new trial will be ordered.

Jury System – should it stay or should it go? Trial by jury is still considered the fairest way to decide the guilt or innocence of an accused person. It could be argued that there is less chance of bias against the accused because 12 ordinary men and women are deciding the fate of the accused. It is, therefore, less likely that all jurors would be prejudiced against the accused. The author of the book The pros and cons of jury trials said: ‘It is the mix of different persons with different backgrounds and psychological traits in the jury room that produces the desired results. There is both interaction among jurors and counteraction of their biases and prejudices.’

THE LINDY CHAMBERLAIN CASE One of the highest profile cases in Australia's legal history was the Chamberlain case. In August 1980, Lindy Chamberlain reported that her baby daughter Azaria had been taken from the family's tent by a dingo, while they were camping at Uluru. Azaria's body was never found and suspicion fell on her mother, Lindy. A coroner's inquest held in 1981 found that it was most likely that a dingo had taken the baby. A second inquest in 1982 came to the conclusion that the mother may have been responsible. In 1982 Lindy Chamberlain was convicted of the murder of Azaria and sentenced to life imprisonment. This case had such a high profile, and was reported so extensively in the media, that it is difficult to imagine any jurors being empanelled who were unfamiliar with the case, and the judge made reference to this in his initial comments to prospective jurors. In 1986 new evidence emerged that threw doubt on the prosecution case and Lindy Chamberlain was released from prison. A Royal Commission found the conviction to be unsafe in 1988 and the conviction was quashed. A third coroner's inquest in 1995 returned an open finding. In 2012, a fourth inquest ruled that a dingo was responsible for the baby's death.

Mr Dingo

Gable Tostee Case 2016 A verdict has been reached in the murder trial of Gable Tostee over the death of New Zealand tourist Warriena Wright, but it is yet to be announced. The Supreme Court hearing in Brisbane reconvened at 2:30pm, with Tostee hugging his father before he entered the dock. On Thursday morning, the jury began a fourth day deciding whether Tostee killed Ms Wright, whom he met via the dating app Tinder on the Gold Coast in 2014. The jurors asked for advice from Justice John Byrne four times since beginning deliberation on Monday afternoon, and they admitted to problems with reaching a verdict. Tostee pleaded not guilty to killing Ms Wright, 26, who died after falling 14 floors from his Surfers Paradise apartment in August 2014. Deliberations continued until 6:00pm on Wednesday before jurors were finally sent home. Jurors posed their fourth question to Justice Byrne yesterday afternoon, asking whether Tostee's language could be considered as force. "The short answer is no," Justice Byrne replied. He told the jury it should only be concerned about the "physical force" used by Tostee, and whether or not it was more than reasonably necessary. Tostee restrained Ms Wright and locked her on his apartment balcony. The crown argued that when Tostee locked her out, Ms Wright felt so intimidated she died trying to escape. The defence said Tostee was trying to de-escalate the situation, arguing Ms Wright's actions were not rational or foreseeable. The court heard a recording Tostee made on the night Ms Wright fell to her death, in which he is heard saying: "You are lucky I haven't chucked you off my balcony you goddamn psycho little bitch." Justice Byrne has previously told the jury the degree of Ms Wright's intoxication should bear on their consideration on whether her decision to climb over the balcony was "a reasonable, rational or proportional response to the accused's conduct". Responding to their suggestion on Tuesday they could not reach a decision, Justice Byrne said experience showed juries could often agree given time.

The issue: The issue with the jury system in this case is their ability to be unbiased and impartial With saturation of the media surrounding this case, how could you find 12 jurors who have no prior knowledge?

Strengths and Weaknesses of the Jury System Strengths of the Jury System Weaknesses of the Jury System Jury is trial by one’s peers Decisions of the jury reflect views of the common person. Person feels as though ordinary citizens they can relate to, not legal authorities, are judging them The jury is not necessarily a true cross section due to those that can be disqualified, ineligible, excused or challenged as part of the jury selection and empanelment process. Juries are independent and impartial deciders of fact who have no past experience with the legal system and have no knowledge of anyone involved in the case. Those who have too much legal knowledge are ineligible, ensuring this impartiality It may be impossible for jurors to remain completely unbiased due to media coverage of certain cases and due to their preconceived bias to people. For example, in the Gable Tostee trial, media coverage of the incident before trial saturated society, making it difficult to find 12 impartial jurors. Also in the Rebel Wilson case, where media coverage would have made it challenging for jurors to remain unbiased. Decision making is shared among jurors who are randomly selected from the community, rather than one judge deciding the outcome. The public may be more likely to accept a jury decision, rather than a verdict from only one judge Juries do not give reasons for their verdicts o neither party or the public really understands how the case was decided and the reasons behind the jury decision. Critics argue parties should be given a reason by the jury for the decision (ration decidendi)

The use of juries involves community participation in the legal system, thereby allowing them to learn more about its operation and develop confidence in, and appreciation of, the legal system. Complex legal proceedings may be too difficult for jurors as jurors may not understand complex and technical evidence or could be distracted by irrelevancies rather than content of responses. Judges can use their experience to assess reliability of witnesses in court. For example, in the Gable Tostee case, jurors were unable to come to a decision for some time as the evidence and legal content was so confusing to them. Juries guard against the misuse of power, as decisions are made by ordinary people rather than an appointed judge who holds a position of responsibility. They are also not politically motivated like those in parliament and thus their decision should be based solely on evidence presented at trial . Juries add to the cost and length of legal proceedings because the judge needs to take the time to explain matters of law and give the jury the direction they need. This does not assist a timely resolution of dispute and thus may hinder the legal system.

“the jury system is outdated and should be abolished” “the jury system is outdated and should be abolished”. Referring to the above statement, critically evaluate the jury system (8 marks) Even though there are significant weaknesses to the jury system, it has stood the test of time for over 800 years, and thus, to a large extent, I disagree that it should be abolished. One reason the jury system is effective is that it is a trial by one’s peers. It is a reflection of community views and thus, ordinary citizens, not legal authorities, are deciding your case. However, some may argue that the jury is not a true cross section of our society. People can be challenged, ineligible and disqualified. To be on the jury you must be on the electoral role, however; much of society are not permanent residents and this does not therefore reflect the whole of society’s views. Even though the jury system, at times, may not reflect a true cross section of society, it is still effective and should not be abolished Hawkins.isobel.i@edumail.vic.gov.au