Page 2693 - Week 09 - Wednesday, 25 August 1993
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The first person to exercise the option of being tried by a judge alone was convicted by the judge and apparently, between 1979 and 1987, no people exercised the right to be tried by a judge alone. It may be, if there is adverse publicity surrounding the first trial in the ACT in a criminal matter by judge alone, that there may be, conceivably, some attaint of this particular option. Time will tell. However, if many people coming before the courts exercise the capacity to avail themselves of this option, then we will see, I think, over a period of time, some saving. Juries are, unfortunately, not cheap.
The Bill raises another question, though, a quite fundamental question, which I think needs to be asked in this particular situation, and that is, "Just how valuable is the jury system in this country?". Mr Connolly referred to Blackstone's famous reference to the jury system as the "palladium of justice", and the question would need to be asked, "If it is the palladium of justice why are we departing from it?". Legal commentators, I think, are divided on the question of the jury system. Some see it as valuable and others see it as an expense which is capable of reaching an improper or, at least, an inappropriate verdict in many cases. It could be said, indeed, in the present circumstances that if you are innocent you should opt for a trial by judge; if you are guilty you should opt for a trial by jury.
I noted, Mr Temporary Deputy Speaker, that Sir Robert Menzies, in his biographical volume Afternoon Light, as a former lawyer, made reference to his thoughts on the jury system. I quote what he had to say there:
The jury has been exuberantly described as "the palladium of English liberty". To challenge its virtue is still to provoke hostility. Yet my own experience has persuaded me that this venerable institution needs critical examination.
The jury in criminal cases has, I believe, much to commend it. No doubt under the impact of persuasive emotion, or that evasion of moral responsibility which is endemic in human nature, or simple prejudice against policemen, it acquits quite a few guilty persons. Far better this should be so than that innocent men should be convicted. So regarded, the criminal jury is an historic device for tempering the natural severities of the criminal code.
He said, and this is very interesting, Mr Temporary Deputy Speaker:
Its function is not so much to do justice, as to avoid injustice.
That is a very interesting reference, I think, to the way in which a lawyer reacts to the jury system. I think that there would be very few lawyers who have worked with the jury system who would say uniformly that putting a matter before a jury provides, in some magical way, that a great well of human wisdom is brought to the surface, and that is then used to ensure that justice is somehow divined in a complex and perhaps drawn out case. I do not think any lawyer would argue that that is necessarily the product of a jury trial. Certainly, it is often the case that a jury will decide a matter on evidence which is entirely irrelevant or of marginal value, and sometimes not decide a case on evidence at all.
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