Wednesday, December 14, 2011


Geesche Jacobsen September 13, 2011

The Victorian Chief Justice, Marilyn Warren, said unless the instructions judges give to juries were reformed, governments might seek to move to judge-alone trials.THE jury system is under threat because of costly, lengthy criminal trials, two judges have told a Sydney legal conference.

''I fear that, otherwise, a time will come where politicians will say the jury system is too expensive and the responsibility should rest solely with judges,'' she told the Australasian Institute of Judicial Administration conference last week.
Jury trials in Victoria had reached ''a very sorry state'' because of the length and complexity of the directions judges have to give to jurors, she said.
If judges made a mistake, appeals courts often ordered retrials, which were costly and put victims and witnesses through further trauma, Justice Warren said. In an Australian first, Victoria was about to introduce legislation to simplify jury directions, she said.
The NSW Supreme Court Justice Megan Latham told the conference judges had to better manage cases before trial because of the growing amount of telephone intercepts, DNA evidence and other technical and scientific evidence. If barristers presented irrelevant evidence, it fell to judges to manage it for them and maximise their chances of keeping the jury's attention, she said.
''The jury is the critical audience in a trial and the only one that matters. If they cannot fathom the significance of the evidence … if they are not told how it contributes to proof of the charge, then counsel are playing to an empty courtroom.''
The jury system was expensive for the state - last year's annual report lists $7.8 million in jury costs in NSW - and imposed inconvenience and strain on juries, she said. Judges had to make sure jurors were not obstructed in their task ''by a parade of witnesses and a large quantity of evidence that ultimately plays no part in the real issues in dispute between the parties'', she said.
Cases could be better managed and juries be given summaries of evidence, visual aids, and directions about their task focused on the case and expressed in non-legal language.
A barrister, Peter Lowe, has acted in a money laundering case in which the jury were given 18 pages of complex, single spaced, legal directions, which were later reviewed by the High Court. ''It was a formidable task [for the jury],'' he said.
The head of the Bar Association's criminal law committee, Stephen Odgers, SC, said it was no surprise trials were longer and more complex now than 30 years ago: ''I don't think there's any significant call for getting rid of juries. I don't think that's likely to happen in the next decade or more. I think there's just an overwhelming public belief that juries are a good thing.''
He said the association opposed any changes which undermined the basic rights of any accused.
The NSW Chief Justice, Tom Bathurst, said in his recent interview with the Herald that juries were still one of the fundamentals of the legal system.
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