Criminal Law

By Peter Woodhouse


It’s all Greek to me…

The system of trial by jury is a fundamental pillar of our criminal justice system in this Country.  We all enjoy the right to be tried and judged by (usually) 12 of our peers.  The rules vary somewhat throughout Australia in relation to who may and who may not be selected for jury duty.  In most jurisdictions lawyers; people with legal training or those working in the legal industry cannot sit on a jury.

As a result, juries are made up of 12 laypeople with no legal training or experience.  How fair is it then to ask those 12 laypeople to sit in judgement of their peers in often very serious circumstances and to apply convoluted legal tests to complicated evidence?

Jurors often get told by the trial judge at the outset of the trial: ‘a jury is the judge of the facts in a criminal matter and the judge is the judge of the law’.  That’s true.  At the end of the evidence and after the Crown Prosecutor and Defence Counsel address the jury, the judge gives them the ‘Charge’.  The judge’s charge usually involves a general summary of the evidence and a number of legal directions – mostly legalese and probably gobbledygook to most of the jurors.  The legal directions given by a judge to the jury can often be quite complex.  There are complicated rules about the burden and standard of proof, mental impairment, tendency evidence, inferences, complaint evidence, good character, lies, etc. all of which are quite difficult for criminal lawyers to wrap their heads around, much less laypeople sitting on a jury.  I think we, as good citizens, owe ourselves and our peers better.

You may think I am being a bit precious. But, as I am writing this sentence, I have just finished a trial where the evidence took less than 5 days.*  That is reasonably quick.  Despite the relatively brief trial, the learned trial judge’s summing up and legal directions took more than four hours, over two days.  By the end of it, the jurors had tuned out.  They appeared bored – they were yawning and they had that glazed-over look about them.  What impact does that have on the justice system – for my client to get a fair trial or for the complainant to have their accusations considered seriously?  It cannot be a good one.

In my experience as a criminal defence lawyer it appears that most jurors and juries take their jobs seriously.  They want to do the right thing.  Whether it is a win or a loss, jurors appear to take sufficient time to review the evidence and quite often they get it right.**  Surely then it is important that we lawyers do what we can to make the already difficult job of being a jury member as easy as we can, including providing them with clear and concise legal directions.

We are at the beginning of a shift in the legal industry, particularly in the criminal law, when the old white males are reaching retirement age and younger, diverse men and women (who have been trained to avoid legalese) are moving into the positions of legal power – both on and off the bench.  My firm is full of this type of lawyer!  As we take over the profession, it is important that we resist the temptation to evolve into our forefathers.  Hopefully, within about 50 years or so, the incomprehensible Greek will be gone and the legal system, especially in the way we tell jury members about the law, will be in plain, easy-to-understand, English.

(*This trial took part in a jurisdiction other than the ACT.)

(**In this case they got it right.  My client was acquitted on all charges.)