Written by Bill Doogue.Partner, Doogue O’Brien George Criminal Defence Lawyers.
I must say, I almost choked on my weetbix and rice milk the other day when I read at the end of an article in the Age, that the Jury Commissioner “supported the Commission’s recommendation to reduce preemptory challenges accepting their view that it gave defendants the ability to actively participate in their own trials.” To be fair, I would normally choke on weetbix and rice milk anyway, but you get my point.
What I could not see anywhere was an explanation of why you have challenges, or what the presumption of innocence is all about. How can an article about jury selection not address what underpins the reason we have those rights?
I know that I bang this drum all the time but jury trials are a fundamental part of keeping our society healthy and honest. Have a look at the ICAC or the general skulduggery of the politicians and you would have some healthy skepticism that they would put your interests ahead of theirs.
The jury process guards the citizen (which is you) against arbitrary prosecution and detention. It means that the power to convict you when you plead not guilty does not rest in the hands of a Judge who is appointed by Politicians. It rests in the hands of those 12 citizens who get to decide your fate.
It is the most important civic function that a citizen has. They come along and they decide the fate of their fellow citizen. Their decision comes with huge consequences for the defendant. Five or ten years in gaol for the innocent accused is a huge consequence. People die in gaol regularly, their family members die on the outside, their children’s lives are ruined. These are not minor consequences; imagine how they bear down on the innocent found guilty (of which, as with any system, there are a number).
Then imagine that you started the trial and you had a person shaking their head and giving you evil looks prior to the trial commencing. Imagine someone tearing up when the charges are read out. Do you really believe that they are going to impartially evaluate the evidence against you?
Because, let’s not forget that the jury have to accept that the accused is innocent at the start of the trial. The jury must not bring their prejudice to bear on the case.
I was involved in a truck crashing into a train case where two people died. The jury was told that they should asked to be excused if they had knowledge of the case or the family of the deceased. No one moved. The jury was then chosen and potential jurors challenged. We then noticed that a number of the jury pool returned the next day and sat with the family of the deceased. They had never been impartial and were not even honest when asked to be.
There is a bizarre logic in all of this. Defendants are limited to relying on names to make decisions and when they do so, you accuse them of prejudice or stereotyping. You then use that as a reason to take their rights away.
There a number of flaws in jury selection but to me they go the other way;
- The accused should know the name of all jurors in advance
- The defence should be able to question the jurors before they are selected. To ensure that they can approach the charges fairly
When you tell US trial lawyers about our perfunctory system they scoff in amazement. How can that possibly be seen as being fair to the accused? How do you know that the juror can bring an open mind to their job? Why does a citizen not have to give their name so they are in some small way accountable for what they do? All good points, to my mind.
The idea from the Juries Commissioner in the article that preemptory challenges “offend” citizens misses the main point. The main point is how the accused feels he has been treated, not the jury pool. The process of challenging 6 times (and then picking out 6 other names) would be lucky to involve 5 minutes of actual Court time. An average trial lasts 5 – 7 days.
Also, just so I offend everyone, the job of Juries Commissioner is to organize jury pools and their movements. Their view is no more important than anyone else’s nor more considered.
So we face a system where
- There are no challenges (or even the three)
- The accused knows that the Prosecution were supplied with a list in advance (as they are in Victoria). I am not sure I noticed that in the article.
- People will be identified by numbers
How do you think any accused, who has the weight of the State bearing down on them, will feel?
They feel that a system that is substantially stacked against them is not even making a pretence that they should face a jury that is unbiased and approaching their case with an open mind.
That, to me, is the most important view.
If citizens do not believe, or the feeling more generally increases, that they are not getting a fair trial then it diminishes us all.
There is an assertion that the final jury composition (as stated in this article) is 44% female and 56% male and this necessitates some change. I can feel the outrage those statistics cause.
Hold on a sec, what are the statistics for the last 10 County Judges appointed? My, they are 9 men and 1 woman. You do not need to be a genius to realize that is 90% of Judges being appointed to the County Court by the Attorney General are men.
If I was him, I would not be tinkering our fundamental rights and I would look far closer to home to look for prejudice. And he is not on trial yet – although November is not far off.