The jury under threat
| DOI | 10.1177/000486588501800301 |
| Date | 01 September 1985 |
| Published date | 01 September 1985 |
| Subject Matter | Editorial |
AUST &NZ
JOURNAL
OF CRIMINOLOGY (September 1985) 18 (129-130)
TUE JURY UNDER TUREAT
129
The recent trial of High Court Judge, Mr Justice Murphy, has added considerable impetus
to what is a growing
debate
in Australia about the use and operation of juries in criminal
trials.The debate is an odd one. It has taken place in a variety of settings and contexts, has
very rarely
been
clearly focussed or sustained and has generally been highly unsatisfactory.
At the same time as the debate has been lurehing along from one resting place to another,
the system of jury trial in criminal cases in Australia has been in definite decline. It is not
inconceivable
that
within a generation or so juries may have disappeared completely from
the legal system. It is also possible that this will happen as a result of a nasty process of subtle
erosion, and without the benefit of any appropriate stocktaking of the concept and value of
jury trial.
Anumber of factors are no doubt at work in bringing down the jury. Not the least of these
is the increasing
and
substantial cost to the State of conducting criminal trials. One of the
most significant responses to this problem has
been
for Australian jurisdictions progressively
to increase the extent of the jurisdiction of Magistrates' Courts. The obvious impact of this
has been to reduce the number of cases dealt with by the expensive mechanism of jury trials
in the higher courts.
In a much
more
subtle fashion other responses are at work. In recent years there has been
atendency for legislatures to create precise criminal offences where there is little scope for
defence; for prosecution agencies to encourage the conduct of negotiations to secure pleas
of guilty; and for courts to offer sentencing incentives for guilty pleas.
While these
and
other
developments have been eating away at the jury system other
dimensions of
the
jury debate have emerged. It is now frequently suggested, and from a
variety of quarters,
that
the jury system is not capable of coping adequately with the alleged
increased complexity of many modern criminal trials. It is said by some commentators that
juries have considerable difficulties with sophisticated technical and scientific evidence, now
used quite frequently in criminal trials. More commonly, it is said
that
juries are not
appropriate for deciding many commercial crime cases which involve the need to understand
business, accountancy and computer procedures.
Asubstantial tussle has emerged between those who claim that the jury in modern
circumstances is
not
adequate to the task
and
those who claim the contrary. In the nature
of things to date,
both
views are based upon little more than surmise and supposition.
Concrete evidence is
not
available to support either view because of the strong attachment
which the legal system has shown to the idea
that
jury deliberations are to be
secretand
that
no reasons are required to be given to support a jury verdict.
Over the years, of course, all manner of experimental and quasi-experimental studies have
been
conducted on the jury process. Experimental jurors have been presented with real and
hypothetical facts and have been observed in reaching adecision on them. Real juries have
been
used in some overseas jurisdictions in tackling hypothetical facts, often similar to an
actual case they may have tried. But the actual jury deliberating upon the actual.case has
remained weIl beyond the professional or
amateur
observer's scrutiny, and for very good
reasons.
But
this is one reason why Mr Justice Murphy's trial was a significant development in the
Australian public
debate
on the jury, as indeed was the trial of Mrs Lindy Chamberlain. In
both instances the verdicts were disputed in public by a number of prominent public figures.
There
has been strong implicit, if not explicit pressure, for some serious discussion about
re-thinking the principles of the secrecy of the jury room and the lack of a requirement for
a jury to give reasons for its decision.
It was probably inevitable in the scientific, technological, rational age in which we live that
pressure would build for juries to give a greater account of their stewardship. The jury is
the amateur component and the wild card in the criminal trial process.· It has become
increasingly frustrating to some that in the age of the computer an
odd
system like jury trial
should continue to operate and to operate on its present basis.
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