Ian Temby, QC took over as acting Director of Public Prosecutions (DPP) in NSW for two months from March to May 2011 after Nicholas Cowdery retired. Many may remember him as the first commissioner for the NSW Independent Commission Against Corruption (ICAC).
Interviewed by the Sydney Morning Herald, he identified as a serious concern the “increasing frequency of judge alone trials” occurring since new laws were enacted in January 2011.
He gives as his reasons for believing this to be a problem:
· Statistical evidence of higher acquittal rates in judge only trials.
· Jury trials “involve community representatives” and removing the jury “does away with a democratic function”.
In NSW criminal trials, the defence can now request a judge only trial, which will be allowed if certain criteria are met, regardless of prosecution objections. Prior to 2011, both sides had to agree. The operative phrase here is “if certain criteria are met”: a judge only trial is not an automatic right of a defendant.
What is Ian Temby saying? That if there is a statistically significant difference in acquittal rates in judge only versus jury trials, the judges are getting it wrong?
He says later in the article that “the collective common sense of jurors can be a valuable aid to decision making”, so it looks as if he really is saying that juries often know better than judges.
Aah … the common man’s common sense … who needs education, reason and scientific method when we can illuminate complex problems with such a powerful beam as the common sense of the average citizen?
I accept the argument that juries may be preferable and even better than judges in the sentencing phase, as issues of punishment and restitution are very much democratic ones. However, a criminal trial is meant to deliver a conviction only if the charge has been proven beyond all reasonable doubt.
There is no symmetry here. Defendants do not have to prove their innocence. They do not even have to give evidence. The prosecution must demonstrate that, based on the evidence, there is no other reasonable conclusion but guilt. In fact, after the prosecution case, the defence can apply for a Prasad direction, whereby the jury can return a finding of not guilty without the requirement of hearing a defence if it is deemed the prosecution arguments are sufficiently weak to not support the charge.
Is Ian Temby really proposing that professional judges are less accurate than the “democratic function” of “community representatives” in deciding (a) the meaning of a charge and (b) whether it has been proven beyond reasonable doubt?
I suggest the opposite. If there is a statistical difference, I suggest it’s because juries often don’t understand the law.
If you believe high acquittal rates are the result of guilty people getting off, then this is more likely due to the inability of police to gather sufficient evidence to convict beyond a reasonable doubt, as the law requires. Judges are more likely to be able to discern this than juries.
If you believe this is happening, advocate to change the law to allow judges investigative powers and to be involved in the evidence collection and charge laying phases of a case, as they are in the Roman law systems of continental Europe.
There might be some (often angry, ignorant, fearful old pensioners) who would advocate changing the burden of proof. They should be ignored. A reasonable society cannot sentence people to jail on the balance of probability, as the statistical evidence proffered by Ian Temby implies some juries may be doing.
If you’re ever charged with a crime you didn’t commit, or excessive charges (and it happens more than most people would like to believe), you’ll want a judge to decide on matters of evidence and law, not a jury because you were nervous, out of your depth and unused to speaking in public.
While your argument is of significant merit, I really feel that we as a society have vested far too much power in the judiciary. It is easy to view judges as impartial and ultimately benign entities, however the very notion that any human's though process can be impartial and unbiased is tenuous at best. Our judicature currently follows the universal principle in Marbury v Madison that "[i]t is emphatically the province and duty of the Judiciary to say what the law is." Where we have judges determining what the law is as well as the outcomes in the majority of cases, one must consider the age old maxim that "all power corrupts". A judge's mindset will all depend on what he had for breakfast, and I'd much rather have my decision left up to a group of people who share differing values than leaving it up to one person whose singular set of values may reflect poorly on the case I am trying to make.
ReplyDeleteIn addition to the current system Australia has a very robust administrative law review system, through which decisions which have been subject to legal errors or denials of natural justice (a whole new kettle of fish I'm not going to open) may be challenged and overturned - not to mention appeals. I'd imagine if you so much as peered into the state of judicial review and the development of precedent in the High Court you would be flabbergasted at the amount of power and influence these unelected men and women wield regarding administrative decisions.
Ultimately I feel that endowing the judicature with even more power is only going to continue the slide of society into reliance on legal professionals to do the job of policy makers and governments - but to be perfectly honest with the state of parliamentary politics in this country I find myself struggling to care about how much influence the judiciary can exert over the other arms of government. What can you do with a drunken voter anyway?
What I'm saying is that if a defendant believes they can make the case that there is a material probably a jury may err in its verdict through not understanding the charges, evidence or law, they should have the right to request a judge only trial.
ReplyDeleteWe recognise a fundamental asymmetry in criminal law in that the burden of proof is wholly on the prosecution. The accused need not even give evidence.
I don't think it is a good move away from this principle to assist the prosecution with a confused or emotive jury, particularly if the case is one in which some degree of trial by media has already occurred. Such circumstances are all the more reason that trial be SEEN to be fair in that the accused has had every opportunity to provide a defence and has still been found guilty, without the verdict being tainted by spurious arguments from the prosecution designed purely to inflame and hence confuse a jury.
If it turns out that the particular case sets a precedent, I suggest it's better the precedent be set by a judge than a jury. That's a bit of a moot point however, since precedents in criminal law tend to be set around the rules of evidence or the intent of a particular paragraph of the Crimes Act.
I don't think it's a good situation if people with little understanding of the law ie. juries have input to common law of this nature.
If parliaments don't feel common law represents the intent of the statute, then debate the statute and alter it if they have majority agreement.