Why is the jury system important in Australia?

Jury verdicts must be unanimous, though depending on the circumstances, a jury in NSW considering non-Federal offences can reach a verdict by a majority of 11 or even 10 jurors. 

If a trial is expected to run for a very long time, 15 jurors can be empanelled initially. This expanded jury creates a buffer against a trial aborting because jurors have fallen sick or become unavailable. With an expanded jury, once it is time to commence deliberations, only 12 jurors will continue. The unnecessary jurors will then be selected at random to leave the panel.

CW: When is a judge alone criminal trial held?

JH: In NSW, judge alone trials can be ordered for non-Federal offences but only in relatively limited circumstances. 

Either both the accused and the prosecutor must agree; or, if only the accused wishes to have a trial by a judge without a jury, it is still possible but only if it is established that it is in ‘the interests of justice’ to proceed with a judge alone trial. 

Courts can refuse an application for a judge alone trial if the case involves determining facts based on so-called ‘objective community standards’. This obligation underscores the importance of community input on determining standards of ‘reasonableness, negligence, indecency, obscenity or dangerousness’ as described in the Criminal Procedure Act of 1986.  

CW: What are the advantages of a jury?

JH: The earmarking of community standards highlights the strength of the jury system. Juries ensure community representation informs the weighing of evidence and allowing everyday perspectives to be incorporated into judging those accused of serious crimes. They ensure this decision-making is not just the province of elites (like judges) and keeps apace of changing community values.

Jurors in a trial also force transparency into the process by requiring evidence in court to be accessible to the average member of the community.

There are other advantages – in reaching complex decisions, 12 heads are better than one; gender and racial diversity are intrinsic, albeit imperfectly, in a jury mix; and, as jury deliberations require jurors to discuss, explain and deliberate, there is an airing and accounting of contrary views, in a process that reflects democratic principles. 

CW: What are the disadvantages?

JH: The jury system is by no means without challenges. Juries do not provide a written judgment, so there is a lack of transparency in their verdict. It can also be difficult for expert witnesses to communicate complex or technical evidence to lay jurors. This is especially a problem if technical jargon obscures rather than enlightens the issues in dispute.    It can be difficult to create a fair representation of the community on juries, let alone a ‘jury of peers’. Originally (and not so long ago), juries were all-male and all white. Even now, Indigenous Australians are under-represented on juries. This a serious issue in light of the over-incarceration of Indigenous people.  

The impact of media, including social media, can prove challenging to jury trials. For example, the Victorian County court’s attempt to suppress media reports of the guilty verdicts against George Pell in late 2018 was frustrated by many international media agencies. The court-ordered suppression had sought to insulate a possible second jury trial from the danger of jurors being emotionally influenced by the earlier guilty findings.

The Australian Constitution provides that:

"80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

The first trials by civilian juries of 12 in the colony of New South Wales were held in 1824, following a decision of the NSW Supreme Court on 14 October 1824. The NSW Constitution Act of 1828 effectively terminated trial by jury for criminal matters. Jury trials for criminal matters revived with the passing of the Jury Trials Amending Act of 1833 (NSW) (2 William IV No 12).

Selecting a Jury

Jurors are randomly selected from the electoral role in accordance with the provisions of each State's respective Act regarding juries. All States have similar provisions in their respective jury acts. The process of selecting a jury is known as empanelling. 

The State Acts are as follows:

• Juries Act 1967 (No. 47 of 1967) (ACT);
• Jury Act 1977 (No. 18 of 1977) (NSW);
• Juries Act (No. 30 of 1963) (NT);
• Jury Act 1995 (No. 42 of 1995) (QLD);
• Juries Act 1927 (No. 1805 of 1927) (SA);
• Juries Act 2003 (No. 48 of 2003) (TAS);
• Juries Act 2000 (No. 53 of 2000) (VIC); and
• Juries Act 1957 (No. 50 of 1957) (WA).

There are usually three types of people who are prevented from being empanelled:

1. Excluded people - which includes those people who are excluded due to a public office or occupation;
2. Excluded people due to current or past criminal offences especially involving terrorism, sexual offences, awaiting trial or bound by another criminal order in the respective State; and
3. People who are exempt from jury service usually including clergy, medical practitioners and disabled or infirm potential jurors.

Challenging a Juror

Usually, two types of challenges may be made to a juror in both criminal and civil proceedings:

• Each side is entitled to peremptory challenges (or challenges without reasons) - and the number of these differ in each State; and
•  Unlimited Challenges for Cause however these must have factual foundation for making the challenge including but not limited to grounds that the person is not qualified and liable to serve, is disqualified or ineligible or is not impartial.

The Function of a Jury

The function of the jury is to weigh up the evidence and to decide what the true facts of the case are or what actually happened. Generally, juries are involved in criminal cases involving indictable offences. A person charged with an indictable offence can ask to have the case heard by a judge and jury. A jury in a criminal case is made up of 12 people, all of whom are adult citizens.

The judge’s role, where a jury is used, is to make decisions about how the case is run, such as whether or not the law allows certain evidence to be presented to the jury. Once both parties have presented all of their evidence, the judge instructs the jury on the areas of the case which it is their responsibility to decide. For every criminal offence there are certain ‘elements’ that have to be proved ‘beyond reasonable doubt’ in order for the accused person to be found guilty. So the judge has to outline what those things are that have to be proved, and also has to explain to the jury what ‘beyond reasonable doubt’ means.

The role of the jury is then to decide the facts of the case, that is, what the evidence proves happened and whether the evidence proves what the judge has said must be proved beyond reasonable doubt. This is done away from the courtroom, in secret.

The jury then come back to the court with their decision.

A jury can be used in non-criminal cases, including:

• defamation cases;
• cases in the District Court at the request of a party and subject to the Judge agreeing that it is in the interests of justice to have a jury involved;
• cases in the Supreme Court at the request of a party and subject to the Judge agreeing that it is in the interests of justice to have a jury involved; and
• coronial inquests in limited circumstances.

Once the jury has made its decision, the judge’s final role is to decide what the penalty (in a criminal trial) or remedy (in a civil case) is to be.