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Davis, Fergal --- "Trial by Jury: Time for a Re-Evaluation" [2007] AltLawJl 16; (2007) 32(2) Alternative Law Journal 86

  • TRIAL BY JURY: Time for a re-evaluation
    Time for a re-evaluation


    This article will examine the position of trial by jury within the Australian Constitution. It will note that, despite Constitutional guarantees, it is possible to interfere with the right to trial by jury in Australia. Furthermore, this article will contend that amendments to the rules of evidence pose a far greater threat to the right to a fair trial than the adoption of non-jury trial for some categories of serious offences.

    The Section 80 debate

    Section 80 of the Australian Constitution states that ‘the trial on indictment of any offence against any law of the Commonwealth shall be by jury’. As Blackshield and Williams note, this appears to guarantee trial by jury but closer inspection reveals that the right is only guaranteed in trial on indictment: ‘the High Court has repeatedly held that the application of these words lies wholly within the discretion of the Commonwealth Parliament’.[1] Despite s 80, therefore, it is possible to interfere with the right to trial by jury.

    R v Bernasconi[2] and R v Archdall & Roskruge[3] made it clear that s 80 only applied in cases which were triable on indictment and that Parliament was free to decide which offences were triable on indictment. The combination of these decisions ensures that if Parliament decides that an offence is not triable on indictment then it follows that s 80 does not apply and as such a jury need not be employed.[4]

    This interpretation has not been universally welcomed: in 1938 Dixon and Evatt JJ argued that the majority interpretation made a mockery of the Constitution because it led to the conclusion that the Constitution had been framed in such a way as to imply that a right had been granted whereas in fact that right was illusory.[5] In Kingswell v The Queen, Deane J agreed with Dixon and Evatt JJ and argued that trial by indictment should be understood as implying a serious offence.[6] Kirby J joined this stream of dissenting judgments in Cheng v The Queen.[7]

    Kirby J’s assessment that ‘s 80 of the Australian Constitution … has led to some of the sharpest divisions of opinion in the history of [the High] Court’[8] appears justified. However, a majority of the High Court has consistently held that the issue of what constitutes an indictable offence is one which should be left up to the Commonwealth Parliament. One reason for the High Court’s unwillingness to define ‘indictable offence’ is the inability of the dissenters to define it. As McHugh J notes, terms like ‘grave form of punishment’, ‘serious matter’, ‘grave punishment’, and ‘serious criminal offences’ all require further definition and, ultimately, are as unclear as ‘indictable offence’.[9]

    This is a judicial debate without a satisfactory conclusion. If we accept the majority view, well established in case law, then we must conclude that s 80 means very little. Trial by jury is guaranteed when the Commonwealth Parliament chooses to guarantee it; if the Commonwealth Parliament chooses to interfere with trial by jury it only needs to declare that any offence, no matter how grave, is not indictable and it is free to remove trial by jury for that category of offence. In such circumstances the federal government is free to abolish trial by jury for terrorist offences simply by declaring that, despite the seriousness of the sentences which they attract, they are not indictable. On the other hand, if we reject precedent and adopt the dissenting view we end up in a situation whereby the judiciary must determine what constitutes a serious offence in the absence of any guiding constitutional principles.

    Over 90 years the High Court has been consistent in its interpretation of s 80 and I see no reason to suspect that this will change. In effect, therefore, trial by jury is protected merely by the whim of the government.

    The exaggerated importance of trial by jury

    All of this leads to a further question: how important is trial by jury? Lord Devlin famously proclaimed that trial by jury ‘is the lamp which shows that freedom lives’,[10] however, historically, the record of the jury is patchy. Contrary to popular opinion, there is no right to trial by jury in the Magna Carta[11] and while William Blackstone declared the jury to be the bulwark of liberty in 1768, prior to this jury tampering had been common. For example, in Bushell’s case, in 1670, the trial judge imprisoned the jury because its members had failed to convict the accused.[12]Such interference and intimidation hardly guarantees the right to a fair trial. Fair trial procedures and not the jury are the real guarantors of liberty as the history of Ireland’s Special Criminal Court reveals.

    Perhaps the best rationale for trial by jury is the ‘democratizing effect’. De Tocqueville argued that the jury was a ‘predominately republican institution’ because it involved the governed in the process of governing.[13] This is an attractive argument and has formed the basis of recent Japanese reforms where a form of jury system has been adopted.[14] The advantage of the jury as a means of involving the public in the governing process is not disputed, however, I would contend that the primary function of trial by jury is to guarantee a fair trial and I will return to this point later.

    The Irish experience

    The Special Criminal Court is provided for by Article 38.3.1° of the Irish Constitution, which provides for the creation of special courts when the ordinary courts are deemed to be inadequate. The Offences against the State Act, 1939, provides the legislative detail for this vague constitutional statement and lays down a procedure whereby the government must make a proclamation following which Special Criminal Courts may be established. The Director of Public Prosecutions may then certify that in an individual case the ordinary courts are inadequate and at that point the case may be transferred to the Special Criminal Court.[15] The significant feature of the Special Criminal Court is that it involves trial of the most serious offences before a panel of three judges without a jury.

    The Special Criminal Court was first established in 1939 and was a direct response to increasing levels of IRA violence. At the outset of World War II (commonly referred to as ‘the emergency’ in Irish history) the Irish government declared a policy of neutrality. In January 1939 the IRA declared war on Britain, and embarked on a serious bombing campaign on mainland Britain. In July Britain suffered over 100 bombs and later that summer the Irish country hotel where Prime Minister Neville Chamberlain’s son was on holiday was attacked.[16] With war fast approaching it was clear that Britain could not tolerate an enemy so near its borders and the Irish government would have to deal with the IRA or face the prospect of Britain re-invading Ireland to tackle the problem for them. As Stephen Roche, a senior advisor at the Department of Justice, put it ‘a small country cannot afford to invite attack from without by a seeming inability to keep order within its own territory’.[17] The government’s response was to introduce internment without trial, military tribunals and the Special Criminal Court.

    The Special Criminal Court was employed throughout the war from 1939 to 1946. The IRA was again active during the 1950s and the Irish government responded by introducing internment which gave rise to the case of Lawless v Ireland,[18] the first case to be heard by the European Court of Human Rights. In an effort to put an end to this violence the government finally re-established the Court between 1961 and 1962. The late 1960s saw a dramatic rise in violence in Northern Ireland and the Special Criminal Court was once again re-established in 1972. The introduction of non-jury trial in the Republic was mirrored by the establishment of non-jury Diplock Courts in Northern Ireland.[19]

    The Special Criminal Court has been in continuous use from 1972 to the present day. It has been employed in many cases associated with the Northern Irish Troubles, including some trials arising from the 1998 Omagh bombing.

    Following the murder of Dublin journalist Veronica Guerin, the Special Criminal Court became the venue for the trials of members of organised crime gangs. Perhaps the most significant of the Irish organised crime cases was that of Kavanagh v The Government of Ireland.[20] This case is important because it was ultimately considered by the UN Human Rights Committee (HRC). Kavanagh’s application revolved around his claim that it was an abuse of Article 26 of the ICCPR, which guarantees equality before the law, for his trial to have been heard by the Special Criminal Court. The Committee delivered a considered opinion which in many ways reads and looks like a judgment. In previous reports to the HRC, the Irish government had always stressed that IRA and terrorist violence meant that the Special Criminal Court was necessary. Since Kavanagh was not alleged to have any connections with any terrorist organisation such a defence was unavailable.

    The Committee conclusion was, ultimately, unfavourable from a government standpoint, but it was not a cut and dried issue. They did not conclude that interference with trial by jury was, in and of itself, a violation of the rights of the accused.[21] However, the Committee went on to conclude that:

    even assuming a truncated criminal system for certain serious offences is acceptable so long as it is fair, parliament through legislation set out specific serious offences that were to come within the Special Criminal Court’s jurisdiction in the DPP’s unfettered discretion … and goes on to allow … any other offences also to be tried if the DPP considers the ordinary courts inadequate. No reasons are required to be given for the decision that the Special Criminal Court would be ‘proper’, or that the ordinary courts are ‘inadequate’, and no reasons for the decision in the particular case have been provided to the Committee. Moreover judicial review of the DPP’s decision is effectively restricted to the most exceptional and virtually undemonstrable circumstances.[22]

    It is clear from this that, while the HRC criticised the use of the Special Criminal Court, this was as a result of the Court’s procedures. The fact that the decision of the DPP was essentially non-reviewable gave rise to concern, but the use of a non-jury court was not necessarily problematic.

    The HRC decision is extremely relevant for Australia. It has already been noted that s 80 of the Constitution allows Parliament to determine what constitutes an indictable offence. Through this mechanism Parliament may limit the right to trial by jury, even for serious offences, merely by declaring them non-indictable. The difference between such a mechanism and that employed in Ireland is that the Irish model allows an unelected official, namely the DPP, to exercise a non-reviewable decision as to when the ordinary courts are inadequate. Under the Australian approach, where Parliament simply passes legislation stating that certain serious offences are in fact non-indictable, such a problem would not arise. As such, Australian legislation of this kind would not breach Article 26 of the ICCPR.

    The emerging threat to trial by jury

    Australia is new to counter-terrorism legislation because, until recently, it has largely been spared from the threat of terrorism.[23] 9/11, the bombings in Madrid, London and elsewhere, coupled with Australian involvement in the wars in Iraq and Afghanistan have arguably increased the threat to Australia. In such circumstances, it is unsurprising that Australia has adopted a number of counter-terrorism laws in the post 9/11 era.

    So far, Australia has been relatively successful at prosecuting terror suspects.[24] If, in the future, the ordinary trial procedures are perceived to be an obstacle to successful prosecutions, one might expect to hear increasing calls for the abolition of trial by jury. In fact, Australian Federal Police Commissioner Mick Keelty has already called for the establishment of an ‘international terrorism court’[25] and senior police figures have spoken of the need for ‘a partial switch to a civil law system such as the one used in France, where cases are decided through judicial interrogation’.[26] The importance of these statements can be easily overstated; however, they can be seen as the opening salvoes in a debate which could ultimately lead to the curtailment of the right protected in s 80.

    The undermining of the jury

    Recent research on jury understanding might be used to undermine the legitimacy of the jury as an institution. Coverage from a recent NSW Bureau of Crime Statistics and Research Bulletin illustrates this point: 277 jurors from 25 trials were surveyed and the first question researchers asked was ‘what was the verdict in this case?’ In only six trials did all the participating jurors report the same verdict — and one which was correct, based on the outcome recorded on the Case Tracking System.[27] The Sydney Morning Herald reported ‘Barrister alarmed by jurors’ confusion’ and cited the NSW Bar Association as blaming the increasing complexity of criminal trials for the inability of juries to do their jobs.[28] Although, it is possible that jurors misinterpreted the question asked in the survey, the Sydney Morning Herald ran two stories essentially calling into question the ability of jurors to deliver justice.[29]

    In the field of counter-terrorism, Commissioner Keelty’s proposal appears, at first glance, to be quite reasonable: international terrorism is, by definition, an international problem and as such it requires an international response. One difficulty with this proposal, however, is that it would require an internationally agreed definition of terrorism. The unlikelihood of the international community reaching a consensus on the issue of terrorism has been discussed more than adequately elsewhere.[30] In reality, calls for an ‘international terrorism court’ are a distraction. The International Criminal Court (ICC) already exists and Australia has ratified the Rome Statute of 1998. The ICC has jurisdiction over four crimes: the crime of genocide; crimes against humanity; war crimes; and the crime of aggression. The Rome conference which negotiated the Rome Statute 1998 rejected jurisdiction over the specific crime of terrorism.[31] Given that the conference had failed to define the crime of aggression, which remains undefined and non-actionable, it is probably best that they did not attempt to define terrorism. Furthermore the United States government has, under President Bush, withdrawn its signature from the Rome Statute as it is currently constituted; it is relatively unthinkable that they would support a revised ICC with jurisdiction over terrorism as well.

    In these circumstances the ‘international terrorism court’ proposal appears to be something of a Trojan horse. It is a proposal which has no future but which can open the debate about possible alterations to the trial process for terrorist suspects. This is particularly likely in a situation where the ability of the jury to deliver justice is already being called into question. In such circumstances, the proposal for a ‘partial switch to a civil law system such as the one used in France’ can be seen as a more plausible suggestion to remove juries from terrorist trial within Australia, avoiding the troublesome international dimension associated with the ‘international terrorist court’ idea. The international suggestion might be described as the ideal scenario by any would-be reformer, but the adoption of trial without jury within Australia could be portrayed as the more practical solution.

    It seems clear that the quiet beginnings of a debate are underway about trial by jury in terrorist trials in Australia. This is not going to be resolved by either international law or the High Court; it will be left to the Federal Parliament and it is therefore appropriate for the legal and academic communities to seek to influence the debate from the beginning.

    Jury Trial or Fair Trial?

    ‘In the absence of binding judicial control the power vacuum would have to be filled by “the legislature and the people acting in their constitutional capacity” ’.[32]

    This is the situation facing Australia: the courts cannot offer effective protection for the right to trial by jury and as such Parliament and the people must act. However, the importance of trial by jury has been exaggerated. The HRC has accepted that interference with jury trial is acceptable; many European jurisdictions, for example the Netherlands, do not employ juries; the International Criminal Court does not have a jury. In short trial by jury may be desirable but it is not, with all due respect to Lord Devlin, the light which shows that freedom lives.

    Gearty argues that ‘the fate of the socialist-minded activist in modern democratic politics is that of the perpetual bemoaner, lamenting the reactionary zeal of the Right or the betrayals of the governing Left, as the case may be’.[33] To avoid this fate he proposes that civil libertarians must reassess what is important and he advocates a return to core civil liberties.[34] In this context the core right is the right to a fair trial. The right to a fair trial in Australia was affirmed in Dietrich v The Queen.[35] Trial by jury is one means of achieving that goal, but if trial by jury is incapable of delivering justice it must be abandoned — at least in those circumstances where it is unable to guarantee a fair trial. This statement might appear controversial but if we consider the alternative its logic becomes apparent.

    The purpose of trial by jury is multi-faceted. For de Tocqueville:

    The jury may be aristocratic or democratic according to the class which supplies the juries, but it always retains a republican character in that it entrusts the actual control of society into the hands of the ruled, or some of them, rather than into those of the rulers.[36]

    According to this view the jury fulfills a political function in that it involves the public in the process of governing: it is an essentially democratic institution. Such a view is supported by NSW research which found that almost 20 per cent of jurors surveyed reported ‘making a positive contribution/doing a community service’ as being a positive aspect of jury service.[37] This function is also closely related to the educative effect of jury service. Proposals to develop trial by jury in Japan have been driven by a desire to help ‘each and every person … break out of the consciousness of being a governed object and … become a governing subject’.[38] Again in NSW, 33 per cent of jurors stated that one of the positive outcomes of serving on a jury was learning about the legal system.[39]

    These benefits of trial by jury are significant. It is because trial by jury generally works and because it is capable of involving the public in the criminal justice system that it is to be welcomed. Furthermore, by involving a small number of the public in the decision-making process, it can be argued that the process makes the court verdict more acceptable to the public at large. If we adopt Gearty’s analysis, however, a problem arises when juries fail to deliver a fair trial. The democratising and educative effects of trial by jury are secondary functions: the primary purpose is to deliver justice; and so, if trial by jury is incapable of delivering justice it ought to be abandoned.

    In the context of terrorist trials, juries might be incapable of delivering a fair trial for a number of reasons. In the Irish context there was a perceived risk of jury intimidation.[40] Further, a series of cases before the European Court of Human Rights have raised the issue of jury bias.[41] These cases were not related to terrorism, but it is not too difficult to imagine a situation in which a jury is biased against a suspected terrorist for reasons of race or simply because of the nature of the offence with which he or she has been charged. Finally, jurors may have difficulty understating the evidence presented in court.[42]

    There are, of course, significant differences between Ireland and Australia: the Republic of Ireland has a population of 4.2 million, Australia’s population is over 20 million; the island of Ireland is 84 000 square kilometers and Australia is 7.6 million square kilometers in size. One justification for interfering with the right to trial by jury in Ireland is that jury intimidation and jury tampering are more likely because the size of the population and the geographic size of the state make it difficult for a juror’s absence to go unnoticed, therefore, it is argued, criminals or terrorists could determine who is on the jury. It is impossible to assess the reasonableness of this argument in the Australian context. The relative vastness of Australia means that it is probably easier for an individual to serve on a jury without anyone realising, though this might still be problematic for smaller, more isolated communities.

    The importance of the rules of evidence

    Up until now this article has focused upon the right to trial by jury and has concluded that the right to a fair trial is more important than the right to trial by jury. There have been some recent developments which undermine the ordinary rules of evidence and, it is contended, these amendments to the rules of evidence pose a far more significant threat to the right to a fair trial than interfering with the jury system.

    The recent federal Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005 makes some worrying amendments to the rules of evidence. Specifically, the legislation allows the use of video evidence where a witness is unable to travel in order to give evidence in an Australian court.[43] The court must admit such evidence, unless one of a small number of exceptions applies.[44] Furthermore, the legislation gives the courts the discretion to appoint an observer but does not make this a requirement.[45]

    This measure can be compared to the Irish WWII measure: the Emergency Powers Orders (Nos 41F and 139), 1941. These orders:

    made huge inroads on the ordinary laws of evidence; unsigned statements, by persons who were not called to give evidence in Court, were admissible, and the Court, if it considered it ‘proper that it should not be bound by any rule of evidence, whether statutory or at common law’, was not to be bound by any such rule.[46]

    The significant feature of the Emergency Powers Orders is that they did not apply to the Special Criminal Court: that court was bound by the ordinary rules of evidence. The Emergency Powers Orders applied to that most sinister of beasts, the Military Tribunal. The Irish government augmented the Special Criminal Court with a Military Tribunal in 1941. This Tribunal was staffed by the same individuals who staffed the Special Criminal Court. In fact the only significant difference between the Tribunal and the Special Criminal Court were the rules of evidence applicable to each.[47]

    The military tribunal was, unlike the Special Criminal Court, a significant interference with the rights of the accused. It was not the absence of a jury which caused this tribunal to lack legitimacy, rather it was its total disregard for the ordinary rules of evidence.

    I am not advocating the removal of the right to trial by jury in Australia, but we must consider if the right to trial by jury does, in fact, pose a risk to the right to a fair trial in Australia. If jury intimidation in certain categories of cases, such as terrorism or organised crime, is a genuine risk then I contend that it is right for the federal Parliament to introduce non-jury trial within the context of s 80 of the Constitution. Further research into the existence of jury intimidation in Australia would be required before we could reach any conclusions on this point.

    Rather than focusing our attention on protecting the right to trial by jury we should: acknowledge that trial by jury has flaws; consider whether or not it is at present capable of securing a fair trial in all cases in Australia; and act according to our conclusions. At the same time, we must ensure that the right to a fair trial is secured by protecting the rules of evidence, because that is the only realistic way to ensure civil liberties.

    [*] FERGAL F DAVIS teaches law at the University of Sheffield, UK and was a visiting research fellow at Macquarie University.

    © Fergal F Davis


    [1] Tony Blackshield and George Williams, Australian Constitutional Law and Theory (4th ed, 2006) 1196.

    [2] [1915] HCA 13; (1915) 19 CLR 629.

    [3] [1928] HCA 18; (1928) 41 CLR 128.

    [4] Blackshield and Williams, above n 1, 1196.

    [5] R v Federal Court of Bankruptcy;Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 582.

    [6] Kingswell v The Queen (1985) 159 CLR 264, 310.

    [7] [2000] HCA 53; (2000) 203 CLR 248, 306.

    [8] Ibid.

    [9] Ibid, 296.

    [10] Sir Patrick Devlin, Trial by Jury (1966) 164.

    [11] Lord Justice Robin Auld, Review of the Criminal Courts of England & Wales (2001) ch 5 [7] <> at 14 May 2007.

    [12] W R Cornish, The Jury (1968) 126–29.

    [13] Alexis de Tocqueville, Democracy in America & Two Essays on America (G E Bevan trans, 2003) 317–8.

    [14] Robert M Bloom, ‘Jury trials in Japan’ (2005), Boston College Law School Research Paper No 66, <> at 14 May 2007.

    [15] The Offences Against the State Act, 1939, Part V.

    [16] Jerrold M Packard, Neither Friend nor Foe: the European Neutrals in World War II (1992) 114.

    [17] Joseph J Lee, Ireland 1912–1985: politics & society (1989) 220.

    [18] Lawless v Ireland (No 3) (1979) 1 EHRR 1, the case was heard in 1961 but was not reported until 1979.

    [19] There were some key differences between the Northern and Southern models of non-jury trial. See, Fergal Davis, The History and Development of the Special Criminal Court, 1922–2005 (forthcoming) ch 7.

    [20] [1996] 1 ILRM 133.

    [21] Report of the Committee to Review the Offences against the State Acts 1939-98 and Related Matters (2002) [9.62].

    [22] Kavanagh v Ireland CCPR/C/71/D/819/1998, 26 April 2001, [10.2].

    [23] Andrew Lynch and George Williams, What Price Security? Taking Stock of Australia’s Anti-Terror Laws (2006) 9.

    [24] Ibid 71–84.

    [25] Steven Freeland, ‘Plans for Terror Court put Legal Rights at Risk’, The Age (Melbourne), 30 March 2005, 27.

    [26] Martin Chulov, ‘Police in Push for Court of Terrorism’, The Australian (Sydney), 21 March 2005, 1.

    [27] Judy Cashmore and Lily Trimboli, ‘Child Sexual Assault Trials: A Survey of Juror Perceptions’, NSW Bureau of Crime Statistics and Research Crime and Justice Bulletin, No 102, September 2006, 12 <$file/CJB102.pdf> at 14 May 2007.

    [28] Tim Dick, ‘Barristers Alarmed by Jurors’ Confusion’, Sydney Morning Herald (Sydney), 3 January 2007, 3.

    [29] Jonathan Pearlman, ‘And the Verdict is… Not Too Sure’, Sydney Morning Herald (Sydney), 2 January 2007, 1 and Dick, above n 28.

    [30] For example, Fergal Davis, ‘The Fight Against Global Terrorism — How Can the Law Respond to “New” Terrorism?’ in Douglas Lewis, Global Governance and the Quest for Justice: International and Regional Organisations, Vol 1 (2006) 21–37.

    [31] Geoffrey Robertson, Crimes Against Humanity: the Struggle for Global Justice, (1999) 311.

    [32] Fergal Davis, ‘Extra-Constitutionalism, the Human Rights Act and the “Labour Rebels”: applying Prof Tushnet’s theories in the UK’ [2006] 4 Web JCLI <> at 14 May 2007.

    [33] Conor Gearty, ‘Reflections on Civil Liberties in an Age of Counter-terrorism’ (2003) 41 Osgoode Hall Law Journal 185, 186.

    [34] Ibid 185–208.

    [35] [1992] HCA 57; (1992) 177 CLR 292.

    [36] de Tocqueville, above n 13, 317–18.

    [37] Cashmore and Trimboli, above n 27, 12.

    [38] Bloom, above n 14.

    [39] Cashmore and Trimboli, above n 27, 12.

    [40] Davis, above n 19.

    [41] Katie Quinn, ‘Jury Bias and the European Convention on Human Rights: A Well-Kept Secret?’ (2004) Criminal Law Review 998–1014.

    [42] Roger Matthews, Lynn Hancock and Daniel Briggs, ‘Jurors’ Perceptions, Understanding, Confidence and Satisfaction in the Jury System: a Study in Six Courts’ (Home Office Online Report 05/04) 37 <> at 14 May 2007.

    [43] Andrew Lynch, ‘Use of Overseas Evidence in Terrorism Offences: the Implications of the Commonwealth’s New Scheme for Defendants and the Courts’ (2006) 27 Australian Bar Review 289.

    [44] Ibid 290.

    [45] Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005 (Cth) s 15YW (1).

    [46] Gerard Hogan and Gerry Whyte, J M Kelly: The Irish Constitution (4th ed, 2003) [6.5.352].

    [47] Davis, above n 19, Chapter 4.6.

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