Page 2525 - Week 06 - Thursday, 23 June 2011
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having a jury. No, the government does not agree. If there is jury tampering, the remedy is to discharge that jury and to start again. It has been a perfectly satisfactory remedy in those jurisdictions that do not have judge-alone trial. It works perfectly well for all commonwealth offences. It works perfectly well in those other jurisdictions like Victoria, where jury trials are the only method of trial available. If there is jury tampering and if the jury is so compromised that it cannot reach an impartial decision, it is discharged.
But the fact is that these circumstances are extremely rare. They do not occur as a matter of course. They are rare and there is a remedy. So to suggest that the solution is simply to do away with the jury because there might be—not “there is”—the prospect of jury tampering is just silly. It is just silly.
The other proposal from Mrs Dunne is that there should be an application of community standards, that the court should have regard to whether or not there is a need to determine the application of community standards. I think this defeats the purpose of requiring a jury trial for these matters. Mrs Dunne is saying that the judge will decide whether there is a need to apply community standards in determining whether or not there should be a jury trial. No, the requirement is that the jury should be present to apply the community standard, not for the judge to decide whether or not community standards need to be applied. For all of those reasons, the government does not support the Liberal Party’s argument.
I turn to the issues that Mrs Dunne raises in relation to the comments of Dr Watchirs. Dr Watchirs has argued that the bill may be arbitrary in nature by requiring that a jury trial must proceed for all offences involving death or sexual assault. No, it is not arbitrary. There is no right to a judge-alone trial. It is an added option. The right is to a fair trial, and the norm in the Australian context and the common law context is for a trial by jury. So it is not arbitrary. It is the norm.
Secondly, it is worth highlighting, of course, that the only other human rights jurisdiction in Australia with its own statutory protections under a human rights act is Victoria, and they require all trials to be heard with a jury. So the government does not agree with that argument. Equally, Dr Watchers has argued that limiting the rights of a judge-alone trial would needlessly delay bringing criminal matters to trial at a time when the court is suffering well-documented waiting lists already.
I would simply make the point that you may have a trial conducted more quickly with a judge alone. You may. That may occur. But I would draw to members’ attention the fact that inevitably in those circumstances the judge reserves their decision because in judge-alone you have to have written reasons for the verdict, and that can take months.
But to suggest that jury trials are slower is, I think, wrong. With a jury trial you get a verdict promptly. Once the hearing is completed, the jury retires to consider the evidence and to determine its verdict. It is in fact quicker than a judge-alone trial; so I think that argument is wrong.
Finally, all of these issues, I think, are well summed up in the comments of Chief Justice Stevens in the New South Wales Court of Criminal Appeal. He says:
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