July 07 1992 – Column28a

We have juries in Australia for serious criminal cases. They determine the facts, apply the law as explained to them by the judge, and decide whether the accused is innocent or guilty.

Juries, selected from the mass of the population, and are a bastion of freedom against the oppression of the state. That’s the theory, anyway. They also provide another function: they make sure that excessive legalism and technicalities are not used to defeat justice. They apply a common-sense view to the facts and the law.

The division is clear. Judges deal with the law. Juries deal with the facts and the applying of the facts to the law. That’s the theory, anyway.

I would like to think that happened in a culpable-driving case earlier this month. But I don’t think so.

At the outset, it must be made clear that the accused was found not guilty. He is not guilty, and no-one can question that. This issue here is purely one of the role of judges and juries.

Briefly, the facts were that a dead man and an injured man (the accused) were found in a mangled car. The car had crossed the median strip and hit an on-coming car. The accused was found hanging by his shirt from the steering wheel and his feet were trapped under the pedals. His blood alcohol was tested at 0.156. The dead man was found on the passenger side.

The injured man said he had not been driving. Two friends said the dead man had got in the driver’s side and the injured man into the passenger’s side.

The defence said the accident had caused the two to swap positions. The prosecution said the friends’ evidence had been concocted.

At the end of the prosecution case Justice Higgins was in a bind. He thought it unsafe and dangerous to convict on the evidence only of the position of the bodies after the accident. However, as a matter of law he knew he could not üdirect@ the jury to acquit. He can only do that if there is not enough evidence to support a prima facie case. Here there was enough evidence to convict, though perhaps only barely enough.

In the absence of the jury he accepted that the hypothesis that the accused was the driver could not be excluded. In other words, it was possible he was the driver and the jury might find so.

None the less he decided to direct the jury that they were entitled to acquit at any time after the prosecution case. He was entitled to do that as a matter of law, in exceptional cases. This, he thought, was such a case. He said the position of the bodies was the only evidence that the accused was the driver. He told the jury, “”it is your right now to bring in a verdict of not guilty, even though you have no heard from the defence.”

But the jury declined the invitation. One would have thought then that the case would have been allowed to go the distance. But, no. After an expert witness said it was impossible to say who was driver, Justice Higgins thought he could invite the jury again to acquit before the end of the defence evidence. He said, “”If I was you I would feel it was unsafe and dangerous to convict on the evidence, based simply as it is, as the Crown concedes, on the position of the bodies after the accident.”

Again the jury refused to take up the suggestion.

Using the phrase “”if I was you” is singularly inappropriate for a judge to use when addressing a jury. The point is that Justice Higgins was the not the jury. It runs the risk of the judge usurping the jury’s role.

In summing up, Justice Higgins again asserted that to convict would be unsafe and dangerous. Once again, Justice Higgins ran the risk of usurping the role of the jury. That is because he was attempting to impose his view of the evidence and conclusions on the jury.

It is different if as a matter of law he concludes there is not enough evidence to support a conviction on any view of the evidence. Then he can take the case away from the jury.

But this case was different. There was enough evidence (if accepted) to support a conviction. It was quite open for a jury to find that an injured man found with his feet under the pedals and draped over the steering wheel was the driver. As it happens, at the end of the day, the jury found the accused not guilty after reviewing the totality of the evidence.

It is clear that Justice Higgins came to the view that if he had been an appeal judge he would have allowed an appeal. But he was not an appeal judge. And who knows what the other two judges on an appeal would have done? Perhaps there is a gap in the law here. The law permits appeal judges to enter an acquittal in circumstances where a trial judge cannot enter an acquittal, so the trial judge is left to tempt the jury into an acquittal.

It is unsatisfactory. If we are to have juries they must be left to determine the facts and apply the law, as explained to them by the judge, to those facts. If that is not to be the case, let’s cut the pretence and have trials by judge alone.

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