The cliché “leaves many questions unanswered” certainly applies to last week’s (week ending Feb 12) decision restoring $3.75 million to a man who was made a quadriplegic when he hit a sandbar when diving into the surf at Bondi beach.
The cliché is apt because the original decision was made by a jury. It was overturned by the NSW Court of Appeal and restored last week by the High Court.
A jury’s decision, of necessity, leaves many questions unanswered because juries do not give reasons for decisions.
You have to wonder why we persist with juries. Evidence that they approach their task with diligence, intelligence and reason is at best anecdotal. Most jurisdictions prevent disclosure of what goes on the jury-room, so we will never know.
Who knows, this jury might have thought, “Poor Guy Swain in a wheelchair and his poor parents having to look after him. Why not make the insurance company pay?”
Then again, the jury might have thought, “What negligence to put up flags near a sandbar. People are encouraged to swim between the flags, so they have a right to expect the sea there not to contain hazards that could have been spotted by those who placed the flags.”
Different jurors would probably have different reasons for their decision. Some might have consented to a majority view so they could get home early.
Jurors are unaccountable. They give decisions without reasons and never have to justify what they have done. They are always amateurs and almost always novices.
Nearly all the things we admire and respect about good decision-making are absent (or at least not required) from jury decisions.
I am not saying the jury decision in this case was wrong. Indeed, it seems to me that if you attract swimmers to flags you should take care to avoid placing them near a hazard like a sandbar.
The complaint I have is the absence of reasons. Waverley Municipal Council surely has a right to know why it must pay $3.75 million.
The difficulty comes when these reason-less decisions are being reviewed.
Chief Justice Murray Gleeson pointed out that for a long time there were no appeals against jury verdicts, and even now appeals against jury verdicts must be limited. The appeal court does not re-try the case, nor can it substitute what it would find with what the jury has found.
Usually an appeal court can only overturn a jury verdict if, first, the jury has been so badly instructed that it would have most likely affected the verdict, or, secondly, if no reasonable jury could have come to that conclusion on the evidence. These are matters of law.
In short, the jury’s reasoning process is not appellable – simply because it is not available.
Gleeson gave two reasons for having juries: “Decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards.”
But both those reasons seem a bit shaky. “Time-honoured” and “important” are not very cogent reasons. Trial by Ordeal was “time-honoured” and “important” in its day. “Involving the public” may have some merit, but only a tiny percentage of people serve on juries. Involving the public is done in better ways. The public sees more of the workings of the law than all other institutions other than Parliament. Courts are open to the public and the media in a way that boardrooms, hospitals, educational institutions and indeed the media itself are not.
You can involve the public in the health system without putting scalpels in the hands of amateurs at the operating table.
“Keeping the law in touch with community standards” can be achieved by legislative oversight and pressure of public opinion, rather than entrusting decisions to a randomly chosen few. For example, when judges were thought to be too generous legislatures throughout Australia tightened things up and now it seems that they were tightened too much, public opinion in favour of the injured and their loved ones is forcing a swing back the other way.
Gleeson balanced the arguments for juries with the arguments against. He said, “The acceptability of [a non-jury] decision is based on the assumed professional knowledge and experience of the judge, and the cogency of the reasons given. In a rights-conscious and litigious society, in which people are apt to demand reasons for any decision by which their rights are affected, the trend away from jury trial may be consistent with public sentiment.”
There is a lot in that.
The trouble with juries is they are selected randomly; they often do not have the experience and skills necessary to deal with large amounts of complex evidence; they have to decide very quickly, unlike a judge who can reserve a decision for a time to consider; anecdotally they include the irrelevant and exclude the relevant and some are outright prejudiced, and juries do not give reasons.
To cap this off, as last week’s decision showed, their decisions are give an elevated status. Their decisions are less likely to be disturbed because there are no reasons.
Justice Michael Kirby described the jury verdict in this case as “surprising” – that’s judicial language for “wrong”. But he let it stand. One of his reasons was that the verdict would not be precedent-forming in the way that a reasoned judgment of a judge would be.
Juries, therefore, deny several important elements of natural justice: reasons for decisions and proper rights of appeal to correct error.
The logic of dispensing with juries in civil cases applies equally to criminal trials.
Grabbing 12 people off the street to decide cases is a damn fool idea. If we had not inherited the system we certainly would not invent it now.
At the very least, if juries are so intelligent, diligent and incisive, they should be required to give reasons for their decisions, preferably individually. There would be nothing to lose, but plenty to gain because my guess is that we would be aghast at the poor quality of reasoning. If not, let juries continue, with reasons, and we can have confidence in them.