Limiting Jury Trials !

One of the basics of our justice system is the need for the prosecution to convince a jury of twelve of our peers that we are guilty. The task of the judge in such a trial is to ensure that both the prosecution and the defence scrupulously remain within the boundaries of how evidence may be presented.  It is only after a verdict of guilty has been delivered by that jury that a judge has the task of determining the penalty that would be appropriate for the crime committed.

The vast majority of jury trials are held in either the Supreme court or the District court, with the majority taking place in the District court and both are subjected to long delays. Often the accused waits years for his or her case to make it onto a judge's docket and gain a place for a scheduled hearing.  Where bail has been refused, the accused spends that time locked away in prison and this is an aspect of prison reform that has long awaited improvement.

The New South Wales Bar Association represents two thousand four hundred barristers who are available to be the representative of the accused in court and who will present the defence.  Their reputation for achieving success grades both the skills they bring to achieving acquittals and the fees they charge for their services.  Where an accused lacks the financial ability to hire such a barrister, the court appoints one but he or she is usually at the start of their legal career and do not have wide court experience.

The problem is the growing complexity of court trials that involve many criminal matters and which are beyond the scope of ordinary men and women to understand.  The chief judge will conduct an enquiry which will look at five main areas including pre-trial case management, the use of technology to drive efficiencies and the potential for limiting jury use in certain circumstances.  That sounds ominously like a move towards trial by a judge alone and without the balance of the presence of a jury.

Convincing a jury of twelve ordinary people drawn from the wide spectrum of life was the fulcrum of the justice system.  Twelve impartial people were selected at random and evidence presented needed to convince them of guilt.  It was the task of the defence to suggest reasons why that evidence should be disbelieved.   It required a unanimous verdict of those twelve people to deliver a guilty verdict and the doubt of a single juror was sufficient for the accused to regain his or her freedom.

Deciding a case purely on technicalities set before a judge will probably raise the conviction rate - and speed trials, but is that the sort of " justice " we expect from the courts ?  In particular, we now seem to favour using what are termed " sentencing options " before the case goes to court.   The prosecution negotiates a heavily discounted prison sentence in exchange for the accused pleading guilty- and avoiding the trial entirely.   This is also called " plea bargaining ".

In some overseas jurisdictions the pressure is such that the innocent choose prison to avoid the extraordinary sentences that will be imposed by a guilty verdict at trial.  It is the lessor of two evils and many innocent people go to prison in the interest or speeding the justice system.  We need to be very careful to ensure that reform of the court system that has been in place for many centuries does not replace a fair trial with automatic conviction as the way of speeding up the justice system.

A jury trial remains the apex of our system of justice and we mess with that at our peril  !