Page 5341 - Week 17 - Tuesday, 3 December 1991
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Jurists are properly alarmed when righteous-minded elements in our community seek to pursue the verdict they want into the jury room. Recent comments by the Queensland Premier, Mr Wayne Goss, and the Queensland Attorney-General, Mr Dean Wells, suggesting that there needed to be an inquiry into the activities of the jury and/or a juror in the Bjelke-Petersen perjury trial are a matter of deep concern. Public confidence in the jury has been seriously eroded as a result of speculation, given credence by a Premier and an Attorney-General. Although the jury has so far survived the vicissitudes of Australian politics, a growing conservatism of outlook in Australia, coinciding with unprecedented public disquiet over inadequacies in the delivery of justice, threatens this ancient institution.
In simple terms, the value of a jury is the sum total of the value of the jurors' minds. The more jurors, the more chance of better knowledge, broader minds, better skills. An obvious example is the fact that, in commercial matters, the wider the jury spectrum, the more chance of finding commercially related skills within the jury. Fundamental to the jury system is the method of selection. The scale of exemptions given, particularly to professionals and community service people who are often technically and socially aware, is of concern. On a smaller stage, we need to be careful in this Territory not to mimic unthought impulses. Practising lawyers know that most ACT juries are sensitive and aware. Whilst the chances of getting this with 10 in an ordered society are good, they are better with 12, and this is the essential issue.
As originally conceived, the jury was designed to stay the hand of those who would punish arbitrarily and/or capriciously. The jury gave the people a chance to judge themselves and to provide a community sanction for miscreant activity. I am troubled by how far we have gone from the original notion. In recent days in the ACT, a Supreme Court judge has again denied a jury the chance not only to positively contribute to a decision on a case in point but to provide a community-based rather than a judicial view of a matter very much in the public interest, namely, the use of police tactical response groups. In that case the judge did not even address the jury and direct it to acquit the defendant. With great respect to the learned judge, this event brings to a head concerns I hold about the almost powerless role of the modern jury compared with its medieval precursors.
I imagine that a jury sometime after the barons were tamed might have revolted at the prospect of being usurped. A courageous jury in those days may well have challenged a judge's authority to direct them, but not so in Australia - a temporised society which, from Timor to the Tasmanian south-west, is content to hand the community conscience over to politicians, judges and bureaucrats.
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