Page 5342 - Week 17 - Tuesday, 3 December 1991
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
Rampant individualism now dominates that great lever for reform, the free press. Those who would advocate law reforms are increasingly bought off with appointments as they slip away from the quivering blancmange of Australian editorialism, our trades halls and universities. Reform now lies outside the political duopoly; it will come from the community and, in that context, the jury itself.
The court system should cease patronising jurors. The whole process of keeping the jury in the dark must cease. The jury should be supplied with a transcript of the evidence. Expert witnesses should be allowed to present their written briefs. Their evidence should not be selected for them by a lay person. And the jury should be encouraged to peruse case summaries which are commonly handed up to the trial judge prior to the hearing. I do not, however, favour victim impact statements going to the jury.
One of the justifiable bases for keeping a jury in the dark is the rule that similar fact evidence, that is, evidence which tends to show a disposition on the part of the accused to commit an offence similar to that with which he or she is charged, is generally inadmissible on the ground that it may prejudice the trial. For this reason, persons charged with the same offence involving different victims are sometimes tried sequentially and the jury is kept in the dark.
Careful thought should be given to revising this rule. In village times all would probably be known. Canberra is not far different from the village era and few jurors in this Territory would remain ignorant of serial charges; so careful thought needs to be given to the usefulness and economy of the rule.
Indeed, the rule contrasts with the usual admission of good character to a jury which tends to displace the reality that there can be, in many lives, an uncharacteristic fall from grace. In other words, from a serial victim's viewpoint, good character evidence may equally be said to prejudice the trial. Fictional judicial directions to ignore or to make limited use of target and so-called character evidence should cease. The legal profession must develop a code of conduct to prevent blatant manipulation of jurors through the improper use of target and character evidence.
The right to idiosyncratic peremptory challenges in the selection of a jury should be abolished and, failing that, reasons should be given, to exclude the chance that the challenge is based on race or other discriminatory prejudice, such as being an ex-service man or woman, having a beard, being a woman, being grey haired or blue rinsed, being young and trendy. The original idea of a jury was
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .