A critical analysis of jury decision making in the modern criminal process

It was GK. Chesterton who remarked "When (our civilisation) wants a library catalogued or the solar system discovered, or any trifle of that kind, it uses its specialists. But when it wishes anything done that is really serious, it collects twelve of the ordinary men standing about. The same thing was done, if I remember, by the founder of Christianity" (Chesterton, 1920 p. 86). In his criticism of the jury system, United States Supreme Court Judge Jerome Frank stated (in Freeman, 1981 p. 67) that legislatures and the judiciary had grown lax in revising outmoded rules because they had grown accustomed to juries making necessary revisions in the law in the jury room; and that such behaviour has led to a lack of uniformity in decisions and unpredictability in the law. Specifically regarding the fact finding skills of 12 lay men, Glanville Williams (Williams, 1963 p. 271) states "if one proceeds by the light of reason, there seems to be a formidable weight of argument against the jury system". Against what is said above, Mr Justice Murphy in Li Chia Hsing v Rankin (1979)141 C.L.R. 182 stated "The jury system is the main social defence against governmental or other oppression." Following on from that observation, Mr Justice Dawson in Brown v R (1985) 159 C.L.R. 216 observed: "The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people." Mr Justice Dawson then went on to address the very idea of trial without jury: "I am far from persuaded that current experience shows that it is desirable that trial by jury should be a matter for election in trials on indictment but, in any event, the terms in which 5.80 (of the constitution) is expressed are, in my view, sufficiently clear to preclude an interpretation which would allow such a choice." Similar arguments in respect of the role of the jury have also been expressed in the United States, Willams v Florida (1970) 399 US. 78, at 100: ”The purpose of the jury trial is to prevent oppression by the government. Providing an accused with the right to be tried by a jury of his peers gave him an inestirnable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge." The Queensland Law Reform Commission (Working Paper on Legislation to Review the Role of Juries in Criminal Trials, 28 November, 1984 p. 15) states that other than the vision of this protective role on its part, there is no practical reason for accepting the jury as the most effective weapon for determining the guilt or non guilt of a person in a criminal trial. In today's circumstances, there is indeed a very real question as to whether or not this historical protection of an accused is still necessary. In almost all cases in Australia today, the judge is, in practice, the exact reverse of that character portrayed in Williams v Florida above.