Why trial by jury

Judges tend to be stricter on legal technicalities and procedures during a jury trial than a non-jury trial. Alternatively, there are many good reasons to choose a jury trial: Jurors may open to hearing your case if they themselves have felt victimized by the traffic court system. Given how time-consuming jury trials can be for all involved, the system has some incentive to settle your case without going to trial though a deal that may be more beneficial to you.

With a jury trial you or your lawyer only have to convince one person in the group that you are not guilty for you to win a case. Jury selection usually begins with dozens of people, and sometimes or , gathered together in a courtroom or other facility large enough to accommodate the group. Sometimes an even larger pool of persons is necessary to ultimately select 12 jurors when the trial is going to be quite long or the charges have been widely publicized.

The presiding judge usually begins by explaining in general terms how the proceedings will unfold — the length of time the trial will likely take, who is the accused and who will be the lawyers and witnesses, and the reasons individuals might properly ask to be excused from jury duty. This usually leads to many persons coming forward asking to be excused for various reasons such as health problems, work or school commitments which cannot be avoided, and travel which has been booked and paid for.

As well, anyone who is related or otherwise closely connected to any of the participants is usually excused from jury duty for that trial, in order to ensure that all jurors are unbiased and impartial.

Unlike what we see on American media, in Canada most juries are selected relatively quickly, and with almost no questions. The Clerk of the Court will select possible jurors at random, and then the defence and the Crown decide whether that individual is someone they want on the jury.

One by one, persons are chosen until there are 12 who will form the jury. Sometimes, either two more persons are chosen to sit as alternates in case, before the trial begins, one of the original 12 is not able to continue or as substitutes in case, during the trial, one of the original 12 cannot carry on.

Having alternates and substitutes better ensures the trial will proceed to a conclusion, in the event that a juror cannot carry on. This usually occurs where there are concerns about impartiality. In Canada, these concerns usually arise from either racial bias, or from pre-trial publicity.

In some situations and among some communities racial and ethnic prejudices may taint virtually all potential jurors. Similarly, where there was unusually high-profile media coverage when the crime occurred, there will sometimes be concern that potential jurors may have been influenced by what they have heard about the allegations and the accused even before the trial has begun. However, in Canada, we place great emphasis upon intruding the least amount possible into the privacy and views of potential jurors.

Thus, the judge will allow a few often only three or four , carefully crafted questions to be asked of them. This process is complicated somewhat because the jurors themselves are given a decision-making role. Two members of the jury panel are selected at random to hear the answers of the other potential jurors and to decide whether they are satisfied the individual will be able to act properly as a member of the jury. The High Court, led by Barwick CJ, rejected the constitutional argument based on section 80, which the Chief Justice said had been 'long settled' and 'ought not now to be reopened.

The appellant was obviously not regarded with sympathy by the justices, some of whom had rendered distinguished military service in their youth. Windeyer J commented that 'A man who under the Act is obliged to serve cannot, with impunity, refuse to do so, leaving the duty to others who are law-abiding and dutiful. The issues raised in this case, during a turbulent period of Australian history, may have been better resolved by a jury. The entitlement of a young man facing two years' imprisonment to invoke the judgment of his peers-rather than that of a conservative, unelected judicial officer-should not have been dismissed without serious consideration of the argument.

Even if the view is taken that a jury would have been bound to convict, that would have been a more satisfactory process, and a verdict reached using this process would have generated more widespread acceptance. The jury system has not escaped criticism. Jury trials can be expensive and time-consuming, and some have suggested that they are inappropriate in complex fraud cases.

Some accused persons may prefer to have their matters dealt with by a judge alone, and there is much to be said for the right to waive trial by jury.

What is contended is that persons facing long terms of imprisonment should have the option of trial by jury, even if that option is open to waiver. Kingswell's case involved a prosecution for conspiring to import narcotic drugs. The Customs Act Cth provided for a wide variety of penalties for this offence, ranging from two years' imprisonment to life imprisonment.

The determination of some of the factual elements affecting the maximum penalty-such as the quantity of the drugs and the existence of prior convictions-had been committed to the trial judge.

The majority of the High Court rejected the argument that this way of determining the penalties for the offence offended section Brennan and Deane JJ, however, dissented.

Brennan J considered that the complex legislation created several distinct offences. He construed section 80 as 'prohibiting the Parliament from withdrawing issues of fact on which liability to a criminal penalty depended from a jury's determination when any offence against a law of the Commonwealth is tried on indictment.

The charging document was called an 'information', but it was common ground that the trial was on indictment. The trial judge ruled that section 80 precluded such an election and the matter proceeded before a judge and jury. When Brown was convicted, he appealed. The case thus raised the question of whether the right to trial by jury under section 80 could be waived. The majority of the High Court held that section 80 could not be waived.

In doing so they revealed a quite different approach from the previous narrow construction of the section. According to Brennan J:. Trial by jury is not only the historical mode of trial for criminal cases prosecuted on indictment; it is the chief guardian of liberty under the law and the community's guarantee of sound administration of criminal justice Section 80 of the Constitution entrenches the jury as an essential constituent of any court exercising jurisdiction to try a person charged on indictment with a federal offence.

That section is not concerned with a mere matter of procedure but with the constitution or organisation of any court exercising that jurisdiction. Deane J reiterated some of the views he had expressed in Kingswell, and concluded that section 80 commanded trial by jury, rather than conferring a privilege that could be waived.

Dawson J considered that it was overstating the position to say-as had Barwick CJ in Spratt v Hermes- that section 80 has been reduced to a procedural provision, 'or that it does not yet lay down, in the words of Griffith CJ in R v Snow , "a fundamental law of the Commonwealth'''.

Whether or not one takes the view that the denial of a right of waiver 'is to imprison a man in his privileges and call it the Constitution', 44 the decision in Brown's case reflects a broader and more substantive approach to section Even the minority, who considered that the right to jury trial could be waived, shared that approach.

The most recent analysis of section 80 occurred in Cheatle v R. Section 57 1 of the Juries Act SA provided for a majority verdict by ten or eleven jurors. The Cheatles were convicted based on a majority verdict. They appealed and argued that unanimity was an indispensable feature of trial by jury, according to long-established notions which continued to apply up to the time the Constitution was enacted.

The High Court unanimously accepted the appellants' argument. Once again, the decision reveals a broader approach to section Both Brown and Cheatle , however, were cases which were brought on indictment.

They therefore do not directly conflict with the Archdall line of authority. Moreover, legal precedents can only be authoritative within the limits generated by their underlying factual material.

Pronouncements made in cases where the offences were plainly not serious cannot be binding on courts which have to determine whether offences carrying substantial periods of incarceration must be dealt with by juries. Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.

Section 4H provides, by contrast, that Commonwealth offences not punishable by imprisonment or punishable by imprisonment for a period not exceeding 12 months are summary offences, unless the contrary intention appears. Section 4J deals with the hybrid category of indictable offences that may be tried summarily.

With some exceptions, it provides that indictable federal offences punishable by imprisonment for a period not exceeding 10 years may unless the contrary intention appears be heard summarily 'with the consent of the prosecutor and the defendant'. The Commonwealth Parliament lacks the power to legislate generally on the subject of the criminal law. It nonetheless has enacted a good deal of legislation creating criminal offences, particularly in relation to the importation of drugs and in relation to social security fraud.

The major substantive offences in the Crimes Act Cth are contained in:. The sections of the Crimes Act Cth that fall within each of these three categories are set out in Appendix 3. The three different approaches are curious. In some sections falling within the first category, which plainly create indictable offences, the legislation provides for a maximum of 2 years' imprisonment for example, sections 27 2 and In other sections falling within the second category, where the word 'offence' without any adjectival qualification is used, the section provides for imprisonment for 10 years for example, section There is little difficulty about the first category.

The offences these sections create are clearly indictable offences which attract the operation of section 80 of the Constitution. If summary proceedings were brought in respect of such offences, the defendants could insist on trial by jury. Presumably in the case of sections in the second category which provide for imprisonment for periods exceeding twelve months, the combined effect of section 4G and each of those sections is to make the offences indictable.

It may be arguable, however, that the difference in the language used in the first and second categories is significant and reflects a 'contrary intention' within section 4G. The argument would rely on the first part of the decision in Archdall's case, dealing with the question of statutory construction, where the appellants' argument the first argument was rejected. In that case, however, the predecessor to section 4G was contained in a different Act the Acts Interpretation Act Cth.

Even though this argument is tenuous, it is unfortunate that the matter should be attended by any uncertainty. Some of the offences falling within the second category are quite serious offences, punishable by up to ten years' imprisonment. There seems to be little doubt that sections falling within the third category create indictable offences whenever they provide for punishment in excess of 12 months imprisonment.

Section 50CD expressly contemplates jury trial in child sex tourism cases. There is one variation from the norm in the pattern of sections falling within the first category. Sections 24C and 24D create the offences of engaging in seditious enterprises and publishing seditious words. They state that an offender 'shall be guilty of an indictable offence', and go on to provide for a penalty of 3 years' imprisonment.

But section 24E 1 provides that an offence under section 24C or section 24D shall be punishable either on indictment or summarily in the latter case with the consent of the Attorney-General. Section 24E 2 gives the defendant who has been prosecuted summarily the right to elect 'immediately after pleading' to be tried on indictment.

Turning to other legislation, there are instances of offences carrying substantial liability to imprisonment which nonetheless may be tried summarily. Section A of the Customs Act Cth , for example, creates the offences of rescuing goods which have been seized, destroying goods or documents to prevent their seizure and assaulting officers in the execution of their duty.

Plainly this section evinces a 'contrary intention' for the purposes of section 4G of the Crimes Act. It would require boldness and perhaps lack of realism to recommend the expensive resort to section of the Constitution to amend and clarify section Of the 42 proposals to change the Constitution that to date have been submitted to referendum, only eight have surmounted the difficult hurdles presented by section Indeed, as recently as , an attempt to clarify and widen the operation of section 80 failed miserably.

The overall national percentage of voters in favour of this proposal in the Constitutional Amendment Rights and Freedoms Bill was only The highest percentage in favour in any Australian State was that in Victoria: Two explanations for this abysmal result can be offered. First, the proposal did not enjoy bipartisan support, 50 which seems to be a sine qua non for successful referendums.

Second, the proposal was complex and it lumped together issues of trial by jury, acquisition of property and freedom of religion. The latter aspect aroused the suspicion of church interests who were concerned about funding of education, and the proposal proved to be quite contentious during the campaign.

The proposal:. Far from being a source of good public relations for the government, the attempt to extend the sphere of constitutionally guaranteed rights proved to be highly controversial. With some diffidence, then, I suggest that if bipartisan support could be obtained, a more modest proposal could be taken to referendum. The following italicised words could be inserted into section The trial on indictment of any offence against any law of the Commonwealth punishable by more than twelve months' imprisonment shall be by jury If the proposal for constitutional amendment is not acceptable, there is still scope for improvement by legislative change.

Xavier Connor has suggested that the Commonwealth Parliament could rectify the situation by enacting that the trial of any offence against any law of the Commonwealth providing for punishment in excess of one year's imprisonment shall be on indictment.

The simple removal of the phrase 'unless the contrary intention appears' from section 4G of the Crimes Act Cth also would effect a considerable improvement. It would avoid arguments of the sort raised in the Archdall case the first argument.

It would eliminate any doubts about persons facing ten years' imprisonment being entitled to jury trial. Such an amendment would still leave it open to magistrates' courts to deal with the large volume of summary offences which they need to process in the interests of efficiency and economy, for offences punishable by up to twelve months' imprisonment.

It would also leave intact the scheme by which indictable offences can be tried summarily with the consent of the parties, under section 4J of the Crimes Act Cth -subject, of course, to any successful challenge to section 4J based on Brown's case. But the alternative formulation proposed by Xavier Connor 'shall be on indictment' instead of 'are indictable offences' would have the advantage of clarity, for it would mesh in with the language of section Excerpt from Commonwealth Director of Public Prosecutions' Prosecution Policy of the Commonwealth, Guidelines for the making of decisions in the prosecution process:.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by law have directed. Australian Parliament House is currently closed to the public. Change by Referendum Proposals for Legislative Change Endnotes Appendix 1 Appendix 2 Appendix 3 Glossary of Terms Major Issues When federal Parliament creates criminal offences, the question arises as to whether such offences should be tried by judge and jury, or tried summarily by a magistrate.