Final Report (September 1999) - Law Reform Commission of ...
REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM 30.4 In our view there are sound principles which justify maintaining jury trials. While there have been occasional calls for the abolition of trial by jury altogether, none of the Law Reform papers nor any of the trial judges consulted as part of the review process supported such a proposition. There is evidence that the abolition of trial by jury may reduce the costs and delays associated with the criminal justice system, but saving money and promptness should not override the more fundamental objectives of the justice system. 30.5 In principle, the jury system is an effective institution for determining guilt which has the important benefit of being able to do justice in the particular case because jurors, unlike judges, are not bound to apply the law in a strict and technical way. As such, jury trials safeguard against arbitrary or oppressive conduct in making, applying or enforcing the laws by the State and/or the authority prosecuting the case. The jury also is the quintessential link between the community and criminal justice system. Public participation ensures that the criminal justice system meets minimum standards of fairness and openness. Moreover, as one of the few instances where there is direct participation of lay people in the justice system — a principle frequently invoked in public submissions to us — juries incorporate democratic features and thereby validate the administration of the system of justice as discussed in Chapter 7. One basic step to enhance the effectiveness of jury trials in their existing form would be not to identify reserve jurors at the outset, but only when the jury retires for deliberations. This would encourage all jurors to closely follow the evidence at trial. 324. Trial by judge alone should not, in general, be the preferred method of trial for serious criminal offences. 325. Summary trials should be mandatory only in respect of offences which the legislature can fairly characterise as ‘not serious offences’ having regard to community values (and see Recommendation 277, ‘Summary Offences’). 326. The seriousness of an offence should be reflected by the sentence legislated, so that, as recommended at No. 277, the method of trial is linked to the nature of the offence. 327. Reserve jurors should not be identified until the jury retires for deliberations. Trial by judge alone 30.6 Trials conducted in the absence of a jury have a number of limitations. First is the lack of community input. The significance of this may not be the same from case to case, but for offences which include elements defined 258
TRIAL BY JUDGE ALONE according to community standards — such as what is reasonable, provocation, self-defence, fraud or indecency — the jury’s absence can be perceived as a serious deficiency. Moreover, the public is unlikely to assume every judge is always free of bias and prejudice or can always exclude such matters from his or her deliberations. Also, some judges may not be sensitive to prevailing community values. While imperviousness to public pressure can be a strength of the legal system, as indicated in Chapter 1, where the offence is intended to reflect community standards the absence of community input may be a limitation. Appeals from jury verdicts The law on trial by jury or judge 30.7 Since 1994, trial by judge alone has been available for all indictable charges at the election of the defendant and with the consent of the prosecution. In Chapter 27, we recommend that legislation should identify those charges which the legislature considers generally require jury involvement. 30.8 Most appeals against verdicts in criminal trials on indictment are in respect of the rulings and directions of the trial judge. This may in part reflect the limited grounds of appeal against jury verdicts, but it does not give any reason to suppose that the criminal justice system would necessarily be more efficient without or with fewer juries. Furthermore, judges hearing indictable offences alone are required not only to set out the findings of fact but also to provide full reasons on the verdict on each charge tried. This may take considerable time, and the defendant may well be in custody for the duration. The cost and time savings assumed to attach to trial by judge alone may in practice prove illusory. 30.9 The Australian Constitution requires that indictable offences under Commonwealth law be tried before a jury. Under the Criminal Code of Western Australia a person accused of an indictable offence can elect to be tried by judge alone, but the election will not have any effect unless the prosecution consents. Traditionally the right to trial by jury has been seen as protecting individuals from the arbitrary or oppressive use of power by the State. On the other hand it also has been seen as safeguarding public confidence in the impartiality and openness of the administration of justice. It is the latter which justifies the present discretion by the prosecution to override the election of the defendant. 328. Trial by judge alone should be available as an alternative to trial by jury in appropriate cases on indictment but not as of right for either the defence or the prosecution. Why trial by judge alone? 30.10 A defendant may elect to have a trial by judge alone for a variety of reasons. These may include the belief that his or her trial might otherwise be 259
REVIEW OF THE CRIMINAL AND CIVIL JU
REVIEW OF THE CRIMINAL AND CIVIL JU
1 Touchstones The legal system on t
TOUCHSTONES Procedure Expense and d
TOUCHSTONES criminal justice system
TOUCHSTONES him or her adversely. W
2 The Justice System The existing s
THE JUSTICE SYSTEM acts even though
THE JUSTICE SYSTEM various Acts and
3 The Civil System The origins of o
THE CIVIL SYSTEM • in which a dis
THE CIVIL SYSTEM Pleadings as forma
THE CIVIL SYSTEM • settlement and
THE CIVIL SYSTEM own costs but also
4 The Criminal System The criminal
THE CRIMINAL SYSTEM Sessions. If a
THE CRIMINAL SYSTEM Jury or judge a
5 Measuring the Justice System The
MEASURING THE JUSTICE SYSTEM civil
MEASURING THE JUSTICE SYSTEM increa
MEASURING THE JUSTICE SYSTEM • th
6 The Adversarial System of Civil L
THE ADVERSARIAL SYSTEM OF CIVIL LIT
THE ADVERSARIAL SYSTEM OF CIVIL LIT
7 The Adversarial System of Crimina
THE ADVERSARIAL SYSTEM OF CRIMINAL
THE ADVERSARIAL SYSTEM OF CRIMINAL
THE ADVERSARIAL SYSTEM OF CRIMINAL
THE ADVERSARIAL SYSTEM OF CRIMINAL
8 Civil System — Overview Alterna
CIVIL SYSTEM — OVERVIEW 8.7 The S
9 Means of Commencing Civil Proceed
MEANS OF COMMENCING CIVIL PROCEEDIN
10 Pleadings What are pleadings? Ar
PLEADINGS Accordingly, we recommend
PLEADINGS What should case statemen
PLEADINGS highly critical of the cu
PLEADINGS Amending case statements
PLEADINGS (1) the documentation for
11 Alternative Dispute Resolution W
ALTERNATIVE DISPUTE RESOLUTION or w
ALTERNATIVE DISPUTE RESOLUTION Acce
ALTERNATIVE DISPUTE RESOLUTION to b
ALTERNATIVE DISPUTE RESOLUTION It w
ALTERNATIVE DISPUTE RESOLUTION 63.
ALTERNATIVE DISPUTE RESOLUTION to m
12 Case Management Case management
CASE MANAGEMENT 78. A listing confe
CASE MANAGEMENT 81. Any case dismis
13 Disclosure What is discovery? Un
DISCLOSURE directly relevant to a m
DISCLOSURE 89. When it is clear tha
14 Summary Judgment, Interlocutory
SUMMARY JUDGMENT, INTERLOCUTORY INJ
SUMMARY JUDGMENT, INTERLOCUTORY INJ
SUMMARY JUDGMENT, INTERLOCUTORY INJ
15 Written and Oral Submissions Wri
WRITTEN AND ORAL SUBMISSIONS should
16 Civil System — Costs Civil cos
CIVIL SYSTEM — COSTS 116. Order 8
CIVIL SYSTEM — COSTS quantum invo
CIVIL SYSTEM — COSTS 123. The req
CIVIL SYSTEM — COSTS 128. An Orde
CIVIL SYSTEM — COSTS Assessment o
CIVIL SYSTEM — COSTS Lump sum cos
CIVIL SYSTEM — COSTS Costs to det
CIVIL SYSTEM — COSTS the end of t
17 Local Courts The Local Court Equ
LOCAL COURTS Commencing proceedings
LOCAL COURTS 168. If a party verifi
LOCAL COURTS 171. Notice of Intenti
LOCAL COURTS 178. As soon as practi
LOCAL COURTS Summary judgment in th
LOCAL COURTS Witnesses 17.26 We are
18 Self-Represented Litigants Self-
SELF-REPRESENTED LITIGANTS we are c
SELF-REPRESENTED LITIGANTS make cou
SELF-REPRESENTED LITIGANTS how to i
19 Unreasonable and Malicious Litig
UNREASONABLE AND MALICIOUS LITIGANT
UNREASONABLE AND MALICIOUS LITIGANT
20 Evidence Why is there a law of e
EVIDENCE • it contains a number o
EVIDENCE evidence is minimised at t
EVIDENCE in chief. The exchange of
21 The Limits of Examination and Cr
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
22 Expert Evidence Expert evidence
EXPERT EVIDENCE exchange of expert
EXPERT EVIDENCE opposing party subp
EXPERT EVIDENCE Concerns over not r
23 Criminal System — Overview The
CRIMINAL SYSTEM — OVERVIEW basis
24 The ‘Right to Silence’ What
THE ‘RIGHT TO SILENCE’ speaking
THE ‘RIGHT TO SILENCE’ The defe
THE COURT ENVIRONMENT Courts’. As
THE COURT ENVIRONMENT Self-represen
THE COURT ENVIRONMENT vulnerable wi
35 Technology and Justice The impac
TECHNOLOGY AND JUSTICE Uniformity i
TECHNOLOGY AND JUSTICE Authenticity
TECHNOLOGY AND JUSTICE 35.17 Recent
TECHNOLOGY AND JUSTICE 35.23 In the
36 The Legal Profession The legal p
THE LEGAL PROFESSION role of the le
THE LEGAL PROFESSION • While ther
THE LEGAL PROFESSION through to the
37 Private Civil Courts The adversa
PRIVATE CIVIL COURTS 446. Private c
Appendix 1 Acknowledgments The memb
ACKNOWLEDGEMENTS Charles Brookes Do
ACKNOWLEDGEMENTS Lizzie Hill Gisell
ACKNOWLEDGEMENTS Hon Judge MDF O’
ACKNOWLEDGEMENTS Anna Wasylkewycz M
GLOSSARY Applicant Application to s
GLOSSARY Disbursements Discovery Mo
GLOSSARY 'Interest-based' mediation
GLOSSARY Plaint Plaintiff Practisin
GLOSSARY and a timetable for the ca
REVIEW OF THE CRIMINAL AND CIVIL JU
Bibliography of In-text References
BIBLIOGRAPHY of Court Rules and Pro
BIBLIOGRAPHY Family Law Act 1975 (C
REVIEW OF THE CRIMINAL AND CIVIL JU
List of Recommendations The justice
RECOMMENDATIONS 14. The Criminal Co
RECOMMENDATIONS (3) the practitione
RECOMMENDATIONS (2) if a practition
RECOMMENDATIONS 54. The current pra
RECOMMENDATIONS 74. The neutral con
RECOMMENDATIONS specified in the li
RECOMMENDATIONS 106. Either party s
RECOMMENDATIONS 124. Court staff sh
RECOMMENDATIONS 141. Limited contin
RECOMMENDATIONS 160. All Local Cour
RECOMMENDATIONS 174. Unless good ca
RECOMMENDATIONS practice direction
RECOMMENDATIONS 203. The Local Cour
RECOMMENDATIONS (3) The Act include
RECOMMENDATIONS 226. The use and ex
RECOMMENDATIONS 246. Where there ar
RECOMMENDATIONS 258. If practicable
RECOMMENDATIONS can be overcome by
RECOMMENDATIONS (3) enabling senten
RECOMMENDATIONS (3) any other agree
RECOMMENDATIONS at the close of the
RECOMMENDATIONS 340. When a ruling
RECOMMENDATIONS be made before the
RECOMMENDATIONS 376. The WACAT shou
RECOMMENDATIONS 393. Full-time and
RECOMMENDATIONS seek feedback from
RECOMMENDATIONS 436. All technologi