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Barry Lane
17 November, 2008  
Leading legal luminaries challenge traditional manta on juries

Barry Lane detects in the wind a climate of change towards juries. Traditionalists are joining a gently swelling chorus against retaining the jury system in its current configuration


imageAre juries in criminal trials going the way of the dodo?

Although rumbling occur from time to time, more recently the ducks appear to be lining up – a consensus may be forming!

First, in The Sydney Morning Herald on September 27 was the report of an interview with senior NSW crown prosecutor, Christopher Maxwell QC (pic).

He candidly and, I should add, courageously said that until he had served as a prosecutor on the United Nations mission in Kosovo, he was a dyed in the wool juries man.

But, after he had experienced trial by judges, he came to see that there were benefits.

Now, Maxwell doesn’t think that justice would suffer by abolishing juries in favour of tribunals formed by panels of three judges.

Next comes a speech delivered by Justice Mark Weinberg of the Victorian Court of Appeal to the National Judicial College of Australia on October 25.

It can be read here and a report of it also appeared in the Oz.

HH’s speech was wide-ranging, covering civil, crime and human rights.

It is obvious that Weinberg is not shackled to the past and his policy prescriptions are refreshingly free of usual dogma of the profession.

As far as crime is concerned, he says that committals will probably disappear by 2020 but he doesn’t, for some reason unexplained, see that as a positive development.

imageFor my part, I agree with Victorian DPP Jeremy Rapke QC (pic) that committals, in this day and age, are costly and inefficient and the screening function they were intended to perform is no longer necessary.

Defence lawyer Rob Stary and the Law Institute of Victoria disagree.

Bearing in mind that committal proceedings result in the overwhelming proportion of accused being committed for trial, it seems to me that the time of magistrates could be much more usefully deployed, from the point of view of taxpayers, hearing and disposing of cases.

In relation to juries, Weinberg said:

“I suspect that trial by judge alone will increasingly be introduced as an option available to be taken up by the accused in criminal trials. Of course, this will not apply to Commonwealth offences. Juries are, and have been, from time immemorial fundamental to our system of criminal justice. However, they add enormously to both the length and cost of criminal trials, and the precedent of trial by judge alone has now been set.

I also suspect that there will be moves to do away with trial by jury in relation to offences that are regarded as not particularly serious. That has been the trend in Great Britain, and we are likely to follow. Some examples might include thefts of small amounts of property, minor assaults, and robberies and burglaries towards the bottom of the scale. Some sex offences will also fall into this category.

I expect that there will be strong pressure from various quarters to do away with trial by jury in complex fraud matters. The current situation, whereby such cases are sometimes regarded as too difficult to prosecute because juries will not understand them, must change. I believe that, over the next decade, governments will come to recognise how important it is to commit to adequate training of police, forensic accountants, and other appropriate experts, so that major tax evasion and corporate fraud can be properly investigated and dealt with where it belongs, namely, in the criminal courts.”

imageOf course, the overwhelming proportion of criminal trials are presently conducted without juries because they are dealt with by magistrates, sitting alone.

Indeed, in the context of proposals to expand the ever-increasing jurisdiction of magistrates, it is interesting to see that as a result of an agreement with prosecutors, Stephen Linnell (pic), formerly the chief media officer of Victoria Police, who found himself at the centre of a kerfuffle between former assistant commissioner Noel Ashby and Police Association head honcho, Paul “Fish” Mullett, will have his plea of guilty to three perjury offences heard by a magistrate.

In such circumstances, a magistrate is limited to a maximum sentence of two years imprisonment per offence, compared to a judge of the County Court who can theoretically sentence an offender to the maximum provided, which for this offence is 15 years imprisonment.

Finally, in The Oz last Friday, Nov. 14, criminal barrister and commentator, Peter Faris QC, advocated a reduction in jury trials to reduce trial backlogs.

He said he is not trying to remove trial by jury – all he is suggesting is that more serious offences be left to juries and less serious ones be tried without.

Helpfully, he leaves to parliament the question of the division between the two.