REVIEW OF THE CRIMINAL

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