Page 2694 - Week 09 - Wednesday, 25 August 1993
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If I might be indulged, I might also go back to something else that Sir Robert Menzies said when he made reference to a particular case he was involved in to illustrate the point about the fickleness of juries. He was referring here to a civil case tried before a jury, but I think the same points apply to some extent. I quote:
The action was one in which I appeared for the defendant, who owned and conducted a cool-store. The plaintiff had put into the store a large quantity of eggs which were to be kept at an indicated temperature. When the eggs were re-delivered, many of them were bad. So far, the facts were not in dispute. The real issue was whether the eggs were bad on delivery to the store, or whether the temperature control had been inaccurate, so that the eggs had gone bad in store.
The determining question was therefore one of fact, and many witnesses, technical and otherwise, were called and cross-examined. Opposing counsel and I addressed the local jury at length, with great subtlety and persuasiveness. The judge summed up. During my own address, I observed a certain appearance of impatience, not to say hostility, on the faces of the jury. I was therefore not optimistic. When the jury retired, my opponent and I went to the robing room. We had scarcely removed our wigs when a messenger came hastily in and said that the jury had agreed. We returned to court. The foreman said that the jury found for the defendant. Judgment was then entered our way, with costs.
We changed, and went across the way (it was late afternoon) to the Shamrock Hotel. My instructing solicitor, very prominent in Bendigo, hastily excused himself to have a word, in the street, with a member of the jury whom he knew, and from whom he hoped to obtain some gratifying account of the impact made by my powerful and convincing presentation of the case. He returned, convulsed with mirth. "Menzies," he said, "it will be good for your soul if I tell you the truth. At the very beginning of the case the foreman told his colleagues that the only difficulty in the way of the defendant was that his barrister was an incompetent fool. 'Look', he said, 'years ago I left a saddle and a harness at a local livery stable, which was shortly afterwards burnt down. I consulted a lawyer. He asked me whether I had any written evidence of the deposit. When I said that I had not, he advised me not to proceed. Now, there is nothing in writing here, yet this fool Menzies has failed to take the point!'".
Fortified by this legal opinion, the jury, in a case in which no question had ever arisen as to the terms of the contract or the fact of the deposit, had regarded all the evidence and the argument as tedious and irrelevant!
I think, Mr Temporary Deputy Speaker, we would reflect that that is unfortunately quite possible for any jury consisting of fallible human beings. It is quite possible for any such jury to reach the same conclusion.
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