Today's jury within the Australian legal system strives to achieve justice by reflecting on the moral values of people in the society. The jury is claimed to represent the judgement, values, and standards of the community. It is said to project liberties between the tensions of the legal system and the people. However, criticisms have risen against the jury which proves that the prestigious place of the jury within the common law system presently still has room for improvement. Subsequently, jury issues necessitate a comparison between today's jury and the original jury that designated from England, in order to critically analyse to what extent it affects the development of the legal system and how it came to be evolved within jurisdiction. Although one can say that the jury today bears no resemblance of the traditional jury, however, it is misleading. There are notions in the current jury that have derived from the traditional jury having pros and cons in their own ways. Whether the jury system achieves to pursue justice and impartiality as "the centrality of law as a means of social ordering" (page 25 Parkinson) for society is still presently questionable. After analysing a contrast between the two systems of juries, the inadequacies will then be examined to identify its deficiencies within the current place of the legal system and the community.
The original jury system achieved justice in certain aspects in which the current jury system does not achieve and vice versa. However, there are certain flaws in both in achieving the standard demand of integrity and uprightness within the legal system. Certain methods of the original jury system can be pinpointed in the modern system. Nevertheless, there are distinctive features which differentiate the two.
After many adjustments to Australia's cultural diversity, the jury system seized a prominent role proffering a more fairer and impartial outcome of cases in which society favoured. The jury engages twelve citizens of the public to sit at a trial as representatives of individual judges themselves. The random selection of jurors is what represents the community. However, the present system has become so unfavoured that many litigants have avoided the use of the jury for their cases.
The revered jury system in Australia evolved from England's legal system in the 17th Century. The jury was formed due to the difficulty in determining the facts of a case such as the need to resolve property disputes. Through King Henry II, the jury system was developed to replenish justice by improvising the need of twelve men drawn from the community to uncover the facts of a dispute themselves as witnesses to the facts rather than depending on the information presented in court. Derived from the Magna Carta, all free men were to be judged by his peers. For instance, had the barons committed a crime then they were to be judged by other barons. Thus, the jury was a group of peers who were from the same status as the accused. However, only the nobles were benefited from such proceedings.
Unlike the jury today, the traditional jury were selected according to their specific knowledge of the facts in a case. The people nominated from the community for jury service were to bring their personal knowledge to the case at question and if this was absent, they were expected to go and investigate the case themselves, even permitted to approach crime scenes to obtain such information. The traditional procedure may have been a better approach since the jurors had the essential knowledge of a case before coming to court. Not only would foreknowledge of the jury be a fairer system of trial but a more active role would achieve justice in a more impartial way.
The current jury system scrutinises this methodology because it is assumed to practice injustice. Today's members of the jury do not research any sources of information about or relating to the particular crime being trialled. Without such training, the jurors have no idea what they will be adjudicating beforehand and are merely faced with manipulated evidence presented to them by the lawyers to induce their argument. Most of them would be intimidated about the fact of going to court or struggle to understand the evidence regardless that the judge will assist them. Subsequently, this can result in miscarriage of justice where the verdict will be overturned by the judge. Thus, a re-trial with a new jury panel will be called upon. Not only will this be time-consuming for the litigants, their representatives, the judge, and jurors but it also results in excessive expenses. However, it is essential to note that a judge can be influenced by the decision of the jury panel, ultimately leading to an influenced verdict of the case upon 'injustice'.
In R v Skaf (2004) 60 NSWLR 86, two members of the jurors had visited the crime scene before the trial occurred due to frustration that arose among the jurors in delivering their verdict. The lighting of the location at night needed to be investigated in order to distinguish whether the defendant's face was recognisable by the victim. However, due to their conduct, the defendant was allowed a new trial on the ground that justice was contravened by the jury by doing the certain acts. If the jury had the right to investigate the case themselves in the first place then a more precise outcome would be reached. Thus, juries should be given a more active role to participate not only within the court but also outside the court in order to attain justice on behalf of the community.
With the absence of foreknowledge, it is undeniable that the jurors will base their decisions upon their sentiment and emotions, particularly in cases concerning children, rape and convicting. Every member of jury have their own past experiences or personal views of the particular issues addressed in court. For example, a jury member may have been a victim of crime (p44 law reform commission) and may be hearing a case about a defendant with a criminal history. This becomes a major problem and can severely affect the legal decisions made which may have an impartial effect on the parties to a case. Juror must take the elements of the case as it is presented and not allow past experiences to affect their judgement which is unlikely to be ignored. Many jurors can become sympathetic towards the knowledge of another person's poor misfortune or unlucky circumstances. For example, the jury panel might totally ignore the evidence against a severely disabled person and decide on a verdict that favours the disabled person. It is a very difficult factor to overcome considering that the disabled person has suffered irreversible damage and will further suffer in the permanent future. A decision primarily based on sympathy has the potential to augment any unfair rulings and poses a serious threat against any fair rulings. On the other hand, a person on drug dependency may be dishonoured and unfavourable by the jury panel (Commission).
The classic jury were selected according to gender, property qualifications, and the foreknowledge. However, the current selection criteria for the determination of the jury panel is outlined as a random selection and not based on gender or property qualifications. The aim of selecting jury members who represent the community as a whole appears to be diverging from the actual selection process that occurs today. Exemption from jury duty is permitted for highly qualified individuals, for example, professionals like doctors, dentist, police officers and members of parliament. People who cannot read or write the English language are also exempt from jury duty. Thus, community representation should include all individuals who participate and serve the public society. Exclusion of the so-called 'high-class citizens' clearly does not reflect the idea of community representation and random allocation. They are individuals who engage with members of the community as much as the other 'lower-class citizens'. Every individual has their own concept of justice and ethics, and is primarily based on one's past experiences or education. For example, medical practitioners are specialised in the topic of ethical practice as part of their tertiary program. This highlights the need for inclusion of these 'high-class citizens', as they may have a more advanced understanding of ethics, which will contribute to the process of a stricter legal decision and justice for the parties involved.
Furthermore, the jury panel differs on the basis of intellectual ability and language comprehension. Some individuals may simply not comprehend the information presented to them at trial. Lawyers may present their evidence with jargon and terminology unfamiliar to the jury members. These individuals will base their decisions on those aspects of the presented information that seem clear to them. It is an unrealistic expectation for jurors to fully understand and comprehend such terminology. Qualified lawyers have spent many years within the realms of formal education and training to develop communication methods that are based on law jargon. The complexity of the trial process, including matters related to subsequent rehabilitation, restricts the ability of jury members to become more involved with the decision-making process. Consideration of these inadequate elements classifies the jury's decision as of limited value and thus, does not meet the requirements of random selection and community representation.
Injustice arose in the classic jury during the reign of King Edward III where the rule of unanimity applied, even extending till now. In the old cases, if the jurors were not unanimous, they were constantly changed in order to conclude to a same opinion and the diversity of opinions was inconsistent to the judgement. Harsh methods were sanctioned by the law in order to achieve this unanimity rule upon the jurors. At times, they were to be humiliated if they failed to agree, forced by starvation, or by torture if a verdict was not decided. Even the jury could have decided their verdict without any evidence but for the sake of avoiding the punishments and also that the evidence presented in the courts were not binding on them. However, these so-called punishments are obviously not present today since it coincides with the rights of the jurors and thus, if they were present, people would avoid sitting in a jury panel.
Subsequently, today, the concept of a unanimous jury has been replaced by a majority verdict, although the unanimous jury still exists in NSW criminal trials (footnote - NSW Parliamentary Library Research Service -page 2). The majority decision or unanimity is interpreted to undermine the strictness and lawfulness of a court ruling which holds out the individual views of the minority basically on the grounds of unreasonableness, favoured beliefs or merely an enforcement of a decision. The members of the jury mainly have many different characteristics that include academic and ethnic backgrounds, knowledge of the law system and its terminologies, and past personal or social experiences. These factors are bound to produce misunderstandings and inconsistencies of the decision-making process. Majority deciding for a ruling does not imply that they have made a well-informed decision based primarily on the law and justice since the emphasis is aiming for a common decision. The opinion of the minority of the jury panel are simply disregarded or overruled due to the concept of 'majority decision'. It does not deter any credibility or value away from the decision of the minority, and should still hold as much value and relevance to the judge and the trial. The decision of the minority favours the convicted party and excluding them is a potential source of injustice since the purpose of the jury is to represent the community by applying their standards.
The ideal jury panel consists of members with no past experience as a jury member and no knowledge of the law system. This excludes any source of bias that a particular member relates to or remembers from a previous case. Every court case is different in terms of parties involved, specific facts and circumstances of the events. One cannot freely refer to every case with a similar mindset, because this approach can effectively impact upon the judge's ruling and subsequent consequences towards the parties involved. Every person has their own understanding of the law system, whether it is through personal research or past experiences. The diverse qualities of panel members should be filtered for sources of preconception when undergoing the process of justice.
Moreover, Australia has fast become a multi-cultural nation with a diverse presence of different cultures. The incidence of ethnic tension in the Australian community has risen as evident from national media. It is expected that today's jury panel will consist of individuals with very diverse cultural backgrounds. There is no doubt that this will result in tension within the jury panel and has the potential to distract the focus away from the actual court case itself. Some nations, for example, India and Singapore have abolished the jury system on their own grounds. Jury members from these nations are inclined to be ignorant towards the jury system present in Australia. They may simply appear disinterested or consider the whole process a waste of their time. On the other hand, Japan and Germany allow selected individuals to sit alongside qualified judges and actively contribute to legal decisions. These members of jury possess the expectation that their say will be considered more strongly than others in the panel. This can place unnecessary pressure to the more passive individuals from other nations or ethnic groups. Decision-making is best served when potential sources of bias are removed.
The original jury were kept together till a trial ended or a decision was made and were not permitted to return home in between the trials. Such procedure achieved maintained a fair and impartial trial in which prevented the jurors from being influenced from outsiders. However, it contravened the rights of the jurors by locking them up and confining them. Eventually the process was overturned by the Magna Carta (footnote) and the juries were permitted to investigate the facts and return to court as mentioned above.
The main issue of inconvenience of the jury today arises when the jury panel is instructed to return to trial after a delayed period of time. It may be a period of several weeks to several months. During the period, the jurors may be exposed to media or publicity which without a doubt will affect their decisions when returning. Another threat that delays may pose on the integrity of the jury panel is the fact that some members of the panel may not be available for return. There can be a multitude of reasons that range from overseas travel and serious illness. The validity of the jury's verdict is questioned when this occurs, and the representative nature of the jury is also lost (Commission p51-52). The risk of a new trial, whether it is due to 'miscarriage of justice' or loss of representation of the jury panel, incurs additional expenses. All the parties involved, including the jury panel, will not see the further loss of time positively.
In the recent years, there has been a great reduction of convictions in the superior courts compared to the convictions heard in the lower courts due to the jury's input. In many recent cases, there has been a result of excessive and absurd amounts of compensations and damages awarded by the jury on behalf of the victims. Consequently, the cases are likely to be appealed again. Cases that have occurred in the workplace are likely to be heard from a panel of jurors since hearing a case before a judge can impose a harsher punishment and a strict liability upon the defendant.
There is a high level of expectation today regarding the need for concealment and secrecy of the jury process, just as it was required in the classic jury in which the King compelled the jurors to swear an oath not to expose anything from the case once it ended. In both systems, it is a possibility that the jurors would return to their homes and discuss the matters of trial freely. However, this presents several issues in the current jury that can affect a juror's decision during a period of hearing a case. The opinions of family members or friends have a strong value towards the jury member, and are a significant factor for bias. The opinion or feedback given by close members already outweigh and stay with the juror's mind, more so than their initial thoughts and decisions. One can also say the media has a powerful effect on any person's train of thought. The media is a powerful tool for conveying information, and any messages related to a trial can significantly sway a juror's decision. The policy of handing out appropriate penalties for the breach of secrecy appears to be ineffective.
In R v Fayka (footnote), members of the jurors had searched on the internet, approached the crime scene, and had discussed the facts of the case with their family which influenced their opinions. Consequently, the trial was dismissed which had cost more than a million dollars to the public. In addition, the jurors were further to punished and instead, the defendant lawyers were rewarded a sum of money. Thus, there is no guarantee that a juror will not discuss the matters of the case outside of trial hearings. Even though the jurors can reveal their acts and penalties can be applied for breaching secrecy, however, jurors are capable of remaining secretive about their breach of secrecy to prevent such a penalty. This poses a further threat to the validity of the jury's verdict, because they are more inclined to be introverted and less inclined to express their views freely (point 7).
The legal charter known as 'magna carta' expresses the rights of a person to life; liberty and property (look up any reference about magna carta), and any deviance away from these rights must be provided reasons for doing so. The current jury system does not reveal the reasons for convicting a guilty party. No one can know whether the reasons were beyond reasonable doubt, or whether the jury simply had to apply a law as instructed by the judge (David Watt p10). This process denies the right of a person towards life and liberty, and in doing so breaches the concept of 'magna carta'. It is considered unfair towards the convicted party and contrasts highly with the fact that judges often give detailed reasons in regards to a given decision.
In conclusion, the jury in the common law system of Australia today cannot be justified. Not only do the qualities of the jury affect the legal decisions in cases but it struggles to achieve impartiality in the courts and conflicts with the notion of representing the community.