Name: Date: ______________________________________________________________ __________ Topic: JURIES UNDER THE MICROSCOPE ______________________________________________________________ __________

Group Project In groups of two or three study this report of the jury system1 before answering the questions which follow. Arguments For and Against the use of Juries.

FOR 1. People can understand and appreciate the importance of law by serving on the jury. 2. Juries in civil actions determine damages that reflect societys values. 3. They act as a buffer zone between the accused and the judge. 4. By using a cross section of the community a common sense approach is given to decision-making; the decision is more likely to be accepted by the community. 5. The use of juries helps to spread the responsibility of decision-making. 6. Barristers must simplify their use of legalese (legal language) for the jury. 7. Juries can reflect the ideals of society, returning a verdict to show disapproval of any Act of Parliament or situation they do not like.

AGAINST 1. Changes in society make juries less relevant. 2. The automatic exemption of some groups suggests the jury is not a cross section of the community. 3. People who have committed a crime are not permitted to serve as jurors, which prevents those who need to learn about the law from doing so. 4. It is impossible for the jury to remain impartial, unaffected by the media. 5. Juries often come to the court with already set ideas and prejudices. 6. Juries are unskilled in procedure and processes of law. The evidence presented is often in separate bits and pieces and the jurors must decide fact from fiction. Thus, they can be influenced by a skilled barrister. 7. Juries do not have to give a reason for their decision. They can grant excessive damages in civil cases.

Do the juries really understand the law and apply it correctly to the facts? Perhaps juries should be required to present reasons for their decision, similar to that of a judge. This reasoning could then be used with the judges ratio decidendi to make a final choice. At present, it is only possible to appeal
1

The Laymans Guide to Law: Year 12, 4th Edition, W. Spindler, Laymans Lawbook Co., Perth.

against the directions and rulings of the judge. If the jury had to give reasons for their decision, the number of appeals might be reduced - why appeal when the jurys reasons mean that it is going to be a waste of time!

Consider the case of Phillip Vidot (14) who was bashed and run over with a car on 17 November 1995 in Perth. On 24 July 1997 the jury found the three accused young men not guilty of the wilful murder and not guilty of the murder of Phillip and not guilty of attempting to murder his friend, Tyson Williams. Instead they found Craig Wood (21) and Jeremy McLaughlin (19) guilty of the lesser offence of manslaughter. The Judge sentenced them to 12 years goal on 25 August 25 1997. The jury also found McLaughlin, Wood and a then juvenile (who could not be named due to his age at the time) guilty of grievous bodily harm. At the moment, the prosecution can only appeal a sentence by a judge. However the defence can appeal a sentence and the verdict. Is this fair? Would juries do a better job if they had to justify their verdicts or would it just make them scared to go against what they think the public wants? If you were the accused, would you want the jury to be sure beyond a reasonable doubt or would near enough be close enough? In the Vidot case maybe the jury was not sure that there was enough evidence that the three offenders meant to kill the boys. By the latter part of 1997, a number of murder trials had resulted in controversial not guilty verdicts. At the time, a respected WA criminal barrister, Mr Jim Mazza, suggested that an independent panel should be set up to look into jury decisions in unusual cases. He believed the panel should not have the power to alter jury verdicts but could carry out valuable research as one way of finding better ways to making the jury system work, but only in special circumstances. He said the recent murder acquittals, one in Western Australia and three in New South Wales, were very worrying and sent a wrong message to the community. The acquittal of three confessed killers in a week in NSW has worried some lawyers and people concerned about peoples rights, who fear it could influence future juries to treat killers leniently and encourage vigilantes. However others say the cases are coincidences, not a general trend. A NSW mother was acquitted of murdering her flatmate. At the time she was three months pregnant. She told the jury he had punched her in the stomach days before she stabbed him. The mother said her actions were based on her fear of what he could do next. Former Australian heavyweight boxing champion Dean Waters was found not guilty of murdering his stepmothers boyfriend. The jury was told he had been brainwashed by his natural father who ordered him to commit the crime. Former police officer Said Morgan was acquitted of murdering a man who allegedly sexually assaulted three girls and had threatened them while out on Bail. Mr Morgan said he did it to protect the girls who were relatives of his. Mr Mazza said the United States system of questioning jurors about their views during empanelling was a good idea but had gone off the rails. He also believed that jurors should be debriefed after a controversial case.

University of WA senior law lecturer Neil Morgan supported a review panel as long as its work was for research purposes and did not try to change the original verdict. Mr Morgan believes, however, that each case was probably decided for different reasons and did not show a general trend in our society. WA Criminal Lawyers Association president, Julie Wager, said these cases were just a coincidence. She thought juries took their role seriously. When a jury is empanelled its first task is to elect a foreperson, a spokesperson who can ask questions on behalf of the jury and announce the verdict at the end of the trial. If the foreperson was employed full time by the courts he or she would be better able to ask questions of the court. This specialist foreperson could also keep the jury on track, ensuring the issue is fully understood and that the law is correctly applied. Should the jury become more representative of society? By allowing less exemptions, more people could become involved in the jurys decision-making process, preventing an unrepresentative group from deciding the fate of a member of society. After all, if a jury is used it is meant to represent all of society not just those people who are at home during the day, can get time off work or who are on holidays. Is this a fair cross-section of our society? Is this group going to understand the life of the accused? Should they? What is fair? Challenges to potential jurors also prevent the jury from being representative. No reason is given for the first eight challenges allowing for the possibility of a stacked jury. That is, both the defence and prosecution barristers can try to exclude people who they think will not be in favour of their side - is that a good idea? Should the jurors just be put on a jury without asking the lawyers (and the accused)? Should the judge (or someone else) decide who serves on a jury instead? The jury might rush through a decision simply because their time is running out. This may lead to a wrong verdict being given. Should verdicts only be given when the jury is convinced of its decision? Or is beyond reasonable doubt really good enough? In Scotland and Victoria, you can have a not proven verdict. When a jury cannot reach an agreement it can issue a not proven verdict. The accused is then allowed to go free, but is subject to further prosecution should any more evidence be found. This would prevent verdicts from being reached for the wrong reasons or, alternatively, a hung jury (they cannot all agree either way within a reasonable time). Early in 1997, The West Australian newspaper ran an article by Ray Gitsun called Judges Jury right queried. It was about a case in the District Court. The article said that the jury returned to court and delivered six not guilty verdicts of indecently dealing (with a minor) - the foreman indicating each time that the decision was unanimous (everyone agreed). However, about 30 minutes after the jury was discharged, it was reported to the judge that the decisions were neither unanimous nor by a majority of at least 10 (ie. the Foreman was either wrong or biased). Judge Kennedy then said she would

not accept the verdict and that a retrial was ordered. The accused later appealed this, his barrister saying he should not have a retrial because the jury had done their job and the judge should not have interfered by asking about what went on in the jury room. However, the prosecution, in this case the DPP (John McKechnie), argued that the Supreme Court did have the power (jurisdiction) to hear this case and that Judge Kennedy was right to act as she did. Many potential jurors already have a distrust of the jury system. To them it is time consuming and potentially costly (financially). To help make people more willing to sit on juries and (hopefully) be less worried about being there and (hopefully) more able to decide a fair verdict, they should get paid their normal daily wage (plus transport costs) instead of the small fee and bus fare they now receive. Judges in criminal cases decide the punishment. Judges in civil cases however do not always decide damages. Some people say judges should be given the power to assess damages made by juries or at least the size of the payout. This would give some form of consistency to the assessment of damages and make for a fair system overall. Question 1 What are the three most important arguments for juries and three most important arguments against having juries? For each list, give reasons why you arranged them that way. 6 marks Question 2 (a) Should juries have to give reasons for their decisions? Explain your opinion. (b) Could this lead to any problems in the future if juries had to give reasons? 2 x 3 marks = 6 marks Question 3 (a) (b) Do you agree with what Judge Kennedy did? Why? Do you agree with what Mr Mazza said? Why? 2 x 3 marks = 6 marks Question 4 What other problems are there in using juries to decide indictable offences?

5 marks Question 5 As a summary of the work you have done, prepare a group poster using ideas from this article and newspaper clippings illustrating: (a) Some of the problems of the jury system. (b) How it should/can be improved to make it fairer to everyone. 7 marks Total: 30 marks