Making it more difficult to get a judge-alone trial will not help either conviction rates or leniency of sentences.
Yet last weekend Attorney-General Simon Corbell said he thought there should be a greater role for juries in the ACT justice system. Judge-alone trials for serious matters should only be available if both prosecution and defence agree, as in NSW. In the ACT, any defendant can request a judge-alone trial.
Juries are less likely to convict than magistrates sitting alone. And juries are not involved in sentencing so cannot affect leniency.
NSW is also reviewing its jury system.
Bizarrely, both jurisdictions are looking at changes without looking at the evidence.
It is hard to imagine a more idiotic way to arrive at a serious decision on criminal guilt. This system pulls 12 names out of a hat in a process that excludes most of the competent people – people used to assessing large amounts of evidence and using judgment to come to conclusions about human conduct: most managers, most professionals, everyone over 65 and all young mothers.
We have no idea whether juries behave well. Researchers and the media are prohibited from investigating them.
Instead we have endless, unsubstantiated assertions about juries being diligent, bulwarks of liberty, sensible and bringing commonsense to the task and so on.
Worse, juries do not have to give reasons for their decisions. Jurors may not like the defendant’s tattoos; think his eyes too close together; like the prosecution counsel; think the defendant sexy; want to get home quickly so happy to go with whatever majority is around; agree with another juror who seems impressive, sexy or well-educated.
Who knows what goes through a juror’s mind? Sure, we may not know what goes through a judge’s mind, but at least the judge has to justify his or her decision in writing.
We should gather the evidence and do the research before making decisions.
In doing that research, we should not tell juries they are being watched. CTTV cameras should be put into jury rooms without jurors knowing. Researchers should collate and analyse the information. Indeed, with the identity of jurors and defendants hidden, the information should be public.
In most encounters with authority in liberal democracies, people are entitled to have reasons for decisions made about them. If a bureaucrat refuses a fishing licence or a permit to extend a garage, you are entitled to reasons and an opportunity to challenge the decision. But if you are going to be banged up for life for murder, you don’t get any reasons.
Juries also make the criminal appeal process a joke. Courts of Criminal Appeal can look at whether evidence should or should not have been included or whether the trial judge gave proper directions, but when they look at the role of the jury, all they can ask is whether a hypothetical jury could have reasonably come to this decision.
How absurd. Why don’t they look at the CCTV film to see if the jury ACTUALLY came to a reasonable decision and did not throw dice or draw straws?
And once you accept the reasonableness of the proposition of detailed judicial oversight of a jury you would have to wonder why we bother with secret lay juries at all.
In reviews of other decision-makers, you are entitled to know the case against you so you can meet it. Why shouldn’t a criminal defendant know the reasons why he was convicted, so the conviction can be challenged, or, indeed, accepted?
Corbell certainly has a point when he calls for more public input in the criminal justice system. But there must be better ways than the jury system. What about appointing a couple of lay assessors with a judge to try cases? The lay assessors would join the judge in giving reasons for a decision. They would also take part in the sentencing process, again giving reasons for their decisions.
If you think that this would be too difficult for the average punter in the street, why should the average punter be any more capable in an anonymous jury room? Indeed, the comfort of having 11 other jurors means some jurors can do nothing other than be led by one or two jury leaders.
Of course, we will never, ever know, because we never, ever go into the jury room to find out. It is a criminal offence to do so.
In NSW, the Government is looking at proposals to narrow the exclusions for jury duty, so that lawyers and doctors would be forced on juries.
It is absurd populism. Lawyers would be put in an invidious position of second guessing submissions on the law. And, given jury duty is supposed to be a community service, doctors can better serve their communities elsewhere.
Surely, it is more important to have community input at the sentencing stage, than at the stage of complex assessment of evidence and probabilities in determining guilt. Sentencing causes the most community concern. Lay assessors might get a greater understanding of the process and pass that understanding into the wider community.
It seems quite obvious that the ACT is more lenient than other jurisdictions, as Victor Violante showed in these pages last week. Notice, I did not say “too lenient”.
If the judiciary is straying from community standards in sentencing, let some lay assessors in to join the sentencing task.
We do know that juries have made some spectacular mistakes in convicting the innocent and have strong suspicions about cases of acquitting the guilty. Those cases should not be put down to the twistings of artful lawyers – because there were artful lawyers on both sides. Rather the mistakes can more likely be put down to simply asking too much of ordinary people who are not equipped for the task.
So before we extol the “virtues” of the “time-honoured” jury system and steadfastly refuse to countenance its overhaul, can we have some evidence please?