Why, in the 21st century, do we cling to the quaint but totally unfounded notion that trial by jury is the fairest means of ensuring that criminal justice is not only done, but seen to be done?
The outcome of the Dennis Ferguson case in Queensland in March this year provides an opportunity to reflect on some of these issues.
Ferguson, who had previously been jailed for a kidnapping and sexual assault of three children in 1987, was charged with one count of indecent assault on a five-year-old girl but last year Queensland District Court judge Hugh Botting ruled that because of the extraordinary level of prejudicial publicity Ferguson could not get a fair trial. Botting permanently stayed the proceedings, a decision which Queensland Attorney-General Kerry Shine had overturned on appeal. In the meantime Ferguson was subjected to rampant vigilantism and media harassment.
Given all this, Ferguson’s lawyers applied for a rare judge-only trial and he was acquitted of the charge of sexual assault by Judge Patsy Wolfe on March 6.
Ferguson’s experience provides a neat example of the proposition that prominent Western Australian defence lawyer Malcolm McCusker QC put a couple of years ago, when he launched a surprising attack on the jury system.
McCusker told The West Australian on July 24, 2007:
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 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?
Or would you prefer the decision-maker to be a qualified judge, trained and experienced in assessing evidence and the law, and obliged to give detailed reasons for his or her decision?
Jurors, the defenders of the system tell us, ignore what they read and hear in the media. But as the New South Wales Law Reform Commission noted last December, that was in the era before the internet and social media outlets became so prevalent.
The Commission noted:
Self-evidently, as time passes, the penetration of internet usage will increase in the population both by virtue of expanding innovation in technology, falling costs to consumers, and the continuing growth of information on the internet, all intersecting with today’s youth becoming tomorrow’s adults.
Consequently, the next decade is likely to see a trend towards saturation of usage, and indeed reliance upon the internet as the major general and specialist information resource for the vast majority of the juror population base.
Even if we are to keep the jury system, then background checks of potential jurors must be permitted. This is particularly important in emotional cases like sexual assaults of minors, and where the defendant is from an ethnic group that has been subjected to prejudice in our community. If a potential juror has a family member who was sexually abused as a child, should they be permitted to sit on a jury in a similar case? What about a racist juror who is lined up for service on a case involving a defendant of Asian origin?
And why shouldn’t the accused person know why it is that he or she has been found guilty? Surely it is a fundamental right to be able to know why it is that your peers have found you guilty of an offence.
If we are not prepared to radically reform the criminal jury system so that it better reflects the values and reality of 21st century life in Australia, then we should abolish it and try the more transparent alternative of allowing judges to make decisions about guilt or innocence.
Hmmm.
Lawyers become judges. I have known a few over my time and I am glad there is a jury system.
I, for one, do not have blind faith in the infallibility of a group of old men who are often years behind the social trends.
Further to that, most of your arguments are specious.
I have always understood that the idea behind Trial by Jury is that the Jury should be made up of one’s peers….that is people who are of the same background, education, place and so forth of the accused.
I know we live in an egalatarian society where all are supposedly equal, but it is patently obvious that a jury chosen at random does not, in this day and place, necessarily fulfil this criterion…that of being the peers of the accused.
Historically, the jury was selected from the same town as the accused and would have had the same values and background as the accused person. This, it seems to me, not to be possible in this day and age.
I do believe that the best interests of Justice are served by the jury system where the judge directs the minds of the jurors in the law and where they decide on the facts as educed during the trial.
How can we select jurors then to be the accused’s peers. Well, we cannot! Therefore we should consider other situations.
Would it not be a good idea to call upon the expertise and experience of those members of our society who have retired from their work. They will be forming a greater and greater proportion of the population for the foreseeable future and would presumably have the time to be available for such civic duty.
By reason of their age and life experience they should be able to devote their minds to the matter at hand, the guilt or otherwise of the accused person. I believe there is less chance of unreasonable prejudices affecting the thinking of this group.
We, as a society, would thus utilise the strengths of those who, for the most part, have the time and (still) the energy to play their part.
However it is done it is sure the present system is not working properly. I thank heaven each
time I read of the decision in a Superior Court that the conviction of an accused in a lower court is unsafe, that the Death Penalty has been abolished.
I think that a person should have a choice between a Jury and a judge, however I think the idea that a Jury of twelve people should give reasons for there judgement is a impractical. To get a concensus whithin the Jury on the guilty/not guilty decision if often very difficult. To get a greement on the reasons would seem to me to be impossible. Each juror would have there own explanation and few of theose explanations would be articulated in way that would stand legal scrutiny. This is not neccessarily, because those decisions are wrong it would be because many ordinary people do not have the ‘right’ legal words to describe there thinking.
The person who is found guilty does have a right to know why. In the case of a jury verdict the answer is simple. The jury believe on the basis of the evidence that the person did it beyond reasonable doubt.
If I had to choose between one Judge or twelve jurors, for a possible life sentence I would go for three Judges. sadly one judge is insufficient. It was the judge in the case of Evans (the Christie murders) who got Evans hanged not the jury!
I lived in Queensland @ the time of the Ferguson debacle & wondered how he would ever get a fair(ish) trial. I remember Chamberlain. Me, I’d go for the judge – even if he’s a fogey. I reckon I’d be luckier with him than the people I see in juries today. Some of my friends who’d make great jurors get exemptions. I’d go for the trial by judge every time.