Title Head: the JURY in AUSTRALIA

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THE JURY IN AUSTRALIA

Title head: THE JURY IN AUSTRALIA

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Thesis statement: The state government should reconsider scrapping the jury trial

Introduction

The jury in many courthouses in Australia has been useful and reliable in the way it has been deciding criminal cases. A recent highly publicized murder case in New South Wales clearly demonstrated this when a judge made a decision based on majority verdict rather than the usual unanimous verdict. This has made the state government to start considering proposals to scrap the jury trial entirely.

The state government needs to put more efforts on social engineering rather than trying to deal with the issue of a NSW judge in a highly publicized murder trial on a majority verdict rather than the traditional unanimous verdict in May. It may be argued that this verdict has publicly affected the views of the members of the community. It is also true that the community may lose faith in their judicial system, but it is an unsaid fact that the jury adds an element of social cohesion in the judicial system.

The historically established role of a jury is actually being fundamentally challenged as the judge in Australia, New South Wales (NWS), chose to accept a majority verdict instead of the traditional unanimous verdict (King, 2010). The state government’s decision to consider the possibility of scrapping the jury trial altogether is has basis in this case because the judge overstepped his mandate by making a ruling on such a crucial matter by considering the jury alone (Brennan, 2010). The decision ought to have been scrutinized by several quarters and not the jury alone (Marsh, 2003).

Traditionally, the selection of the jurists is done randomly and there is no specific qualifications with reference to the legal profession that are made to justify their being picked to assist in making such crucial decisions. In fact, they only need to be from a certain group, for example peers (Tucker, 2010). Many people are convinced that the panel of twelve randomly picked individuals who make up the jury is highly capable of making decisions on a just verdict. In view of the fact that these jurors are a small group without all the requirements of a judge, they should be subjected to some form of vetting before they are allowed to serve in the jury to decide on the cases (Financial Times, 2003).

Jurors can sometimes turn to the courthouse to seek information that was not presented from witnesses; something called offstage behavior in which the judges’ behavior has yet to be examined empirically in a systematic way. In order to weigh their judgment, judges do actually turn their attention to the offstage to evaluate claims of the concerned parties (Hunt, 2009). These observations play a minor and sometimes an insignificant role (Dombey, 2003).

The debate on whether or not to introduce majority verdict has been a long one in NSW and it resurfaced after a kidnapping and murder in 2005 ended inconclusively and eventually the case was set for retrial in 2006. In 2005, the commission on law reform in NSW made the conclusion that unanimity ought to be maintained when it comes to verdicts for criminal cases. This came as the support for majority jury decisions outweighed the support for unanimous verdicts. As concerns juries in NSW, it has been decided that more research needs to be conducted to determine the best way to go, whether to adopt the majority verdict or the unanimous verdict (Financial Times, 2002).

In criminal trials, majority verdicts are the most suitable for determining the judgment. This is because majority verdicts are more reliable than unanimous verdicts. However, it should be after the period for minimum deliberations has passed. The requirement for majority verdicts should be 11:1 in trials for criminal cases as has been proposed in a 2005 jury trial report (Drabsch, 2005).

In criminal cases just as in civil proceedings, the majority verdict is required as it serves to reduce hung juries when it comes to numbers (Courier Mail, 2010). Unlike with the unanimous decisions, there is no chance for a perverse or rogue juror in majority verdicts. Majority verdicts eliminate the chance for a compromise verdict and the possibility of a juror being corrupted is greatly reduced. Majority verdicts render the process of making decisions more democratic and as a result this leads to the jury making more efficient verdicts (Roth, 2009). The jury in unanimous verdict is not subjected to the requirement of the upholding proof beyond any reasonable doubt (Adelaide Now, 2010).

Majority verdicts ensure that there is a consistency between civil proceedings and criminal proceedings. Many parts of Australia such as Victoria, South Australia, Tasmania, Northern Territory and Southern Australia permit majority verdicts. NSW should follow suit and allow majority verdicts for consistency with the jurisdiction of these parts of the country (Gauen, 2010).

The role of the jury in both criminal as well as civil proceeding is very crucial and the state government should instead look into ways in which to revamp the way the jury delivers its verdict. It is true that a widespread confusion has been created by the way in which the jury provides decisions of guilty or not guilty without giving any explanation (Financial Times, 2002). The jury in this case needs to be changed so that their decisions do not create confusion within the community resulting from the jury’s absence of transparency. Something needs to be done to ensure that the jury is seen to be transparent (Adelaide Now, 2010).

After submissions lasting weeks or hours of submissions, the verdict the jury delivers is not more than two-word determinations which are not explained (Daily Telegraph, 2010). This may create confusion or misunderstanding as concerns the meaning of the verdict. This is because either not guilty or guilty is the verdict the current law allows the jury to return (MarshTait, 2002). The law does not permit them to give a verdict of innocent and this is a great handicap to the jury which needs to be changed to give them more powers to make conclusive decisions. There is a distinction between innocent and not guilty and as such the jury needs such powers to make such verdicts so as to avoid any misunderstanding. This will ensure that the jury produces verdicts that have results that are more acceptable (Courier Mail, 2010). The verdict of “not proven” should also be included as is the case in Scotland to make things clearer.

Conclusion

The verdict the jury gives is factual as opposed to the decision based on legal considerations which are largely determined by the kind of a lawyer both sides had (Rose,DiamondBaker, 2010). Factual verdict from the jury assure the public that the defendant has been given due hearing, and that the verdict is very fair as opposed to unanimous verdicts. As a result, the state government should in stead strengthen the jury.

REFERENCES

Adelaide Now, (2010). Millionaire ate rat poison in court 'stunt'

Adelaide Now, (2010). Jury prepares to deliver Patel verdict

Brennan, T,(2010). Jurors in day care rape case questioned on news habits.McClatchy - Tribune Business News. Retrieved August 31, 2010, from ABI/INFORM Dateline.

Courier Mail, (2010). Patel awaits fate behind bars.

Courier Mail, (2010). Patel to be sentenced on Thursday

Daily Telegraph, (2010).Why juries let killers walk free

Dombey, D, (2003). Draft would boost Brussels power: EU CONSTITUTION PHRASING WOULD GRANT EU EXCLUSIVE AUTHORITY OVER TRADE AREAS; [Europe edition].Financial Times, Retrieved September 1, 2010, from ABI/INFORM Global.

Drabsch, T, (2005). Majority Verdicts in Criminal Trials: Briefing Paper No 15/2005. Available at: http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/MajorityJuryVerdictsinCriminalTrials

Financial Times, (2002). Landndmark ruling on web defamation; London edition.

Retrieved September 1, 2010, from ABI/INFORM Global.

Financial Times, (2002). Aboriginal land claim thrown out; London edition Retrieved September 1, 2010, from ABI/INFORM Global. (Document ID:264279851).

Gauen, P, (2010). New McClatchy - Tribune Business News. Washington.

Hunt, N, (2009). Revamp jury verdicts, says DPP Stephen Pallaras QC: Sunday Mail

Available at: http://www.adelaidenow.com.au/news/south-australia/revamp-jury-verdicts-says-dpp-stephen-pallaras-qc/story-e6frea83-1225715367256

King, L, (2010). In Bucks, Democratic commissioner, Republican district attorney tangle over investigation: McClatchy; Tribune Business News. Washington.

Marsh, V, (2003). HIH conclusion delayed again: NEWS DIGEST: London edition.Financial Times. Retrieved September 1, 2010, from ABI/INFORM Global.

Marsh, VTait, N, (2002). Courts differ in blood clot actions against airlines: [London edition].Financial Times;Retrieved September 1, 2010, from ABI/INFORM Global.

Rose,M.,Diamond,S.,Baker,K, (2010). Goffman on the Jury: Real Jurors'

Roth, A, (2009). Corporate News: Verdict Backs FedEx in Labor Case --- Seattle Jury Says Delivery Service Doesn't Owe Overtime to 320 Drivers.Wall Street Journal (Eastern Edition),p.B.4. Retrieved August 31, 2010, from ABI/INFORM Global. Attention to the "Offstage" of Trials.Law and Human Behavior,34(4),Retrieved August 31, 2010, from ABI/INFORM Global.

Tucker, J, (2010). Judge allows Ianne defense to see memos: Tribune Business News. Washington

Financial Times (2003). Australia admits error of judgment; apan edition: Retrieved September 1, 2010, from ABI/INFORM Global.