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Question 1

Arguments in support of the right to trial by jury include:

• trial by jury ensures that issues of fact and law are determined by the accused’s peers, not by a judge alone – this ensures fairness in the adjudication of a criminal trial
• juries spread the burden of decision-making. Instead of one person – the judge – being responsible for findings of fact, in a jury trial the evidence must be assessed as being beyond reasonable doubt by a group of people cooperating to reach a verdict. Furthermore, the verdict must be unanimous for the most serious indictable offences, or by majority for less serious indictable offences. The jury’s determination of the facts and verdict and verdict therefore could be more likely to be correct, providing greater protection of the rights of the accused
• the random selection of jurors ensures that the accused is tried by their peers. This ensures that the verdict accords with community values, and not the values of the government or of a judge who is appointed by the government
• juries bring impartiality to the findings of fact. As they are randomly selected, they bring a fresh and unbiased perspective to the consideration of facts and legal issues which may not be available to a judge who has heard many similar cases. Members of the jury pool who may be connected with the case may be excused, and the parties may challenge other potential jurors, providing further safeguards that the selected jurors will judge the facts of a case without preconceptions that impact their objectivity
• the jury limits the role of the state in the accused’s trial. The charges and prosecution are brought by the police and the Office of Public Prosecutions, which are both part of the Executive branch of government. The jury, being drawn randomly from the community, provides an objective assessment of the evidence collected and presented against the accused independent of the state

Weaknesses of the right to trial by jury include:

• for Victorian and Commonwealth indictable offences, there is no alternative to trial by jury – this may reduce effective access for an accused to exercise sufficient choice in the conduct of their trial for an indictable offence in these jurisdictions (for example, a person accused of a terrorism offence under Commonwealth legislation may be concerned that it is not possible for them to obtain a fair trial before an unbiased jury due to extensive media coverage – their only alternative to a trial before a jury is to plead guilty)
• juries do not have to give reasons for their verdicts, so there is no way to ensure that their decision-making is free from bias – if juries do not act impartially in reaching a verdict, this reduces the fairness of the criminal justice system
• bias arising from extended media coverage may prejudice potential jurors – this may result in an accused seeking a trial by judge alone (the most compelling reason for an accused to seek a trial by judge alone may be that they have a greater likelihood of being acquitted)
• jury trials are usually more expensive than trials by judge alone (for example, in New South Wales, Simon Gittany was tried in 2013 for the murder of his girlfriend by judge alone on the basis of financial hardship)
• juries can be more influenced by personal bias than trained judges; but, even in jurisdictions that allow judge-only trials, courts will not always be sympathetic (for example, the NSW Court of Criminal Appeal refused an application from a Muslim accused who wanted a judge-alone trial because they were concerned about jury bias against their religion)

Question 2

The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that the right to trial by jury does achieve the principles of justice. In this case, ‘evaluating’ the ability of the rights of the accused to achieve the principles of justice requires students to write about relevant strengths and weaknesses.

An evaluation may include the following points:

• Trial by jury ensures that the accused’s peers, not a judge alone, determine issues of fact and law – this ensures fairness in the adjudication of a criminal trial.

However, for Victorian and Commonwealth indictable offences, there is no alternative to trial by jury – this may reduce effective access for an accused to exercise sufficient choice in the conduct of their trial for an indictable offence in these jurisdictions (for example, a person accused of a terrorism offence under Commonwealth legislation may be concerned that it is not possible for them to obtain a fair trial before an unbiased jury due to extensive media coverage – their only alternative to a trial before a jury is to plead guilty).

• Juries spread the burden of decision-making. Instead of one person – the judge – being responsible for findings of fact, in a jury trial the evidence must be assessed as being beyond reasonable doubt by a group of people cooperating to reach a verdict. Furthermore, the verdict must be unanimous for the most serious indictable offences, or by majority for less serious indictable offences. The jury’s determination of the facts and verdict and verdict therefore could be more likely to be correct, providing greater protection of the rights of the accused.

However, juries do not have to give reasons for their verdicts, so there is no way to ensure that their decision-making is free from bias – if juries do not act impartially in reaching a verdict, this reduces the fairness of the criminal justice system.

• The random selection of jurors ensures that the accused is tried by their peers. This ensures that the verdict accords with community values, and not the values of the government or of a judge who is appointed by the government.

However, bias arising from extended media coverage may prejudice potential jurors – this may result in an accused seeking a trial by judge alone (the most compelling reason for an accused to seek a trial by judge alone may be that they have a greater likelihood of being acquitted).

• Juries bring impartiality to the findings of fact. As they are randomly selected, they bring a fresh and unbiased perspective to the consideration of facts and legal issues which may not be available to a judge who has heard many similar cases. Members of the jury pool who may be connected with the case may be excused, and the parties may challenge other potential jurors, providing further safeguards that the selected jurors will judge the facts of a case without preconceptions that impact their objectivity.

However, juries can be more influenced by personal bias than trained judges; but, even in jurisdictions that allow judge-only trials, courts will not always be sympathetic (for example, the NSW Court of Criminal Appeal refused an application from a Muslim accused who wanted a judge-alone trial because they were concerned about jury bias against their religion).

• The jury limits the role of the state in the accused’s trial. The charges and prosecution are brought by the police and the Office of Public Prosecutions, which are both part of the Executive branch of government. The jury, being drawn randomly from the community, provides an objective assessment of the evidence collected and presented against the accused independent of the state.

However, jury trials are usually more expensive than trials by judge alone (for example, in New South Wales, Simon Gittany was tried in 2013 for the murder of his girlfriend by judge alone on the basis of financial hardship).