There is no denying that a jury is an integral part of our criminal justice system. The right to trial by jury (for commonwealth offences) is of course one of only five expressly given rights enshrined in the Australian Constitution. Juries give the community an opportunity to participate in what is otherwise a relatively elusive profession. Put simply, our criminal justice system would not be the same without them.
Despite this, juries are not without their flaws. Most notably, they are incredibly time consuming. Between jury selection and jury directions, delays are created and exacerbated in an already backlogged and overrun system. Furthermore, with community participation inherently comes bias. No individual, no matter how removed from a case, is truly free from bias. The extent of this is ideally minimised by the presence of eleven other individuals, who in a perfect world represent a cross-section of society.
However, COVID-19 has made it impossible to have twelve jurors, a judge, representing counsel, court personnel and a public gallery, all within close proximity of each other. Like many other industries, the infamously conservative and slow-moving system was pushed to adapt, with a failure to act risking the creation of a system that is simply too overwhelmed to function. One method adopted by the Victorian Government was to ditch the jury and temporarily allow - with the permission of the defendant - judge-only trials. A similar course of action was taken by the ACT government, however this legislation does not require the consent of the accused.
A judge-only trial is not simply a pandemic response. They have been frequently used in New South Wales, Queensland and Western Australia well before the pandemic, with the rationale of further transparency and a reduction in delays by removing processes such as jury empanelment and deliberation. In today’s circumstances, the benefit is clearly that it allows trials to continue, preventing the criminal justice system from becoming backlogged beyond recovery.
However, despite this clear advantage, not all have been enthusiastic about the introduction of judge-only trials. The ACT legislation is currently undergoing a constitutional challenge and was not welcomed by the Law Council of Australia. As for the situation in Victoria, Chief Judge Peter Kidd of the County Court emphasised the importance of continuing the trials of indictable crime, in the interest of justice. Judge-only trials would increase transparency, as judges are required to provide reasons for their verdict. However, this clearly takes time, thereby placing an even greater burden on our already strained judges. Chair of the Criminal Bar Association of Victoria, Daniel Gurvich QC, supported the implementation of judge-alone trials in Victoria as a temporary solution. However, Mr Gurvich warned that judge-alone trials would do little in effect of reducing the backlog.
This naturally leads to a discussion about the true benefits and disadvantages of conducting judge-only trials. If not to reduce the backlog, what are they good for? Seemingly, not much else. Whilst judges are required to provide reasons for their decision, Mr. Gurvich puts forward that this would also open up more appeals, only increasing the pressure on the system. Furthermore, bias is even more concentrated when there is only one singular figure making a life-altering decision. Judges, although amongst the most esteemed members of our community, have their own inherent biases. This is simply unavoidable. Compounded by the lack of diversity in the Australian judiciary, it is not difficult to see problems with such a system.
Will judge-only trials remain in Victoria?
It is unclear when we will see traditional juries back in the courtroom, but everyone seems to be in agreement that it must happen at some stage. Judge-alone trials are a temporary ‘sacrifice’ to keep the cogs of the criminal justice system moving. However, like many other aspects of any pandemic response, there must be a balance between ensuring justice and maintaining public health. Trials of indictable offences are no small matter and should not be treated as such. Felicity Gerry QC argues that where someone’s liberty and freedom are at risk, it is crucial to have an element of democracy in the courtroom. This is compounded by the difficulty of the public and media to tune into trials, limiting the principle of ‘open justice’ despite it being ‘one of the most pervasive axioms of the administration of common law systems’. As it currently stands, media personnel are able to tune into judge-alone trials upon application, however public access is limited. Furthermore, the ramifications of this temporary change may be much more than temporary. If the increased likelihood of appeals rings true, we may also see a scrutiny of judge-only trials from the appeals courts.
There is however an argument for judge-alone trials to become a permanent feature where the accused attracts substantial media attention or where the trial involves complex subject matter. Mr Gurvich has long been in favour of such a process but stresses the importance of allowing the accused to elect between a judge-alone or jury trial. Such a conversation was raised after the trials of Cardinal George Pell, which attracted an unprecedented amount of media and public attention. However, despite the challenges that Pell’s trial posed, no change was made. Even in such extraordinary circumstances, jury trials remain the preferred approach by former Supreme Court Chief Justice Frank Vincent, who cites judges as a privileged group and his faith in ordinary citizens as his reasoning for keeping things as they are.
Therefore, in the Victorian case, it seems that judge-only trials are not here to stay, and we will be back to seeing juries in the courtroom when restrictions eventually ease. Despite the flaws of juries, the Victorian legal community appears to be in consensus that they remain the best option to upholding the principles of our legal system.
Image: Stary Norton Halphen