For many centuries, juries have been recognised as the cornerstone of a justice system, and particularly a criminal justice system. Where the truth is in dispute, 12 (sometimes more) of one’s fellow laypeople are generally accepted to be the fairest and most effective means of sorting the fact from the fiction, and the reasonable from the unreasonable. A jury brings the experience of 12 people from all walks of life and creates a melting pot of opinions and ideas, and applies that experience to whatever evidence is put before it.
In a criminal trial, until the foreperson delivers the jury’s verdict, the accused is presumed at law to be innocent. A verdict of not guilty means that the prosecution has not proved every element of its case beyond a reasonable doubt.
Prior to empanelling the jury (the process by which jury members are selected from a larger pool), the names of the accused and each and every witness is read aloud to the prospective jury. If any of those names are known to a jury member, that jury member is required to excuse themselves from the trial. All jury members must be strangers to every person involved in the trial. In this sense, a valuable asset that a jury provides is its objectivity. No members of the jury have a vested interest in the outcome of the trial and can therefore calmly examine the evidence and ask itself, colloquially speaking, ‘does this pass the pub test?’.
In the ACT and for all Commonwealth offences the verdicts of all 12 jurors must be unanimous. There are no allowances for majority verdicts.
At the Commonwealth level, all trials must be heard by a jury given section 80 of the Constitution. It reads that a trial “of any offence against a law of the Commonwealth shall be by jury”.
In contrast, if you are tried for an offence against a State or Territory law as the vast majority of criminal charges are, it may be that your trial is heard by a judge alone. When this occurs, the judge performs the role of both judge and jury. While it may be that this is preferable in some circumstances, most of the time a well-advised accused would elect to be tried by jury.
For indictable offences (punishable by 5 years’ imprisonment or more), the ACT Supreme Court Act provides that an accused has a choice whether to be tried before a jury or a judge alone. This does not include ‘excluded offences’, which must be tried by jury even if the accused would prefer a judge alone trial. The list of excluded offences is made up of the most serious offences, such as murder and sexual intercourse without consent.
At the height of the COVID-19 pandemic lockdown, the ACT passed a law that empowered judges to order a judge alone trial for any offence, including excluded offences, against the wishes of the accused. The purpose of the law was to limit the number of people in the courtroom in order to address the spread of COVID-19. Only a handful of accused were tried this way. Hugo Law Group has appealed one of the orders made in a matter on grounds including that it is unconstitutional. The appeal will be heard before the High Court of Australia later this year.
Tom Tiffen-Oakes, Lawyer