Practising as a barrister for 20 years, he served as a County Court Judge for 12 years before taking up his present position. When federal Parliament creates criminal offences, the question arises as to whether such offences should be tried by judge and jury, or tried summarily by a magistrate. The framers of the Australian Constitution inserted section 80, which appears to confer a right to jury trial.
A difficulty results from the use of the words 'on indictment' in the opening words of section This has at times resulted in a narrow construction of the section, for the High Court has said that it is only when prosecutions are brought 'on indictment' that the right to jury trial arises; where Parliament has authorised summary proceedings, and summary proceedings are brought, the right to jury trial is avoided.
The broad approach, which is necessary if citizens facing substantial liability to imprisonment are to enjoy a genuine right to jury trial, was also supported by prominent judges in dissenting judgments during the second period. The fact that the narrow approach has been taken makes it important for federal parliamentarians to be vigilant in legislating for criminal offences and the mode of trial of such offences.
Where offences are made subject to substantial periods of imprisonment, the legislation should make it clear that the trials should take place on indictment.
If summary trial is provided for, the accused will be deprived of an important benefit which some, at least, of the framers of the Constitution intended the accused to enjoy. Many of the sections of the Crimes Act Cth do not make it clear whether the offences it creates are triable by jury or summarily.
Guidelines are provided by sections 4G, 4H and 4J. Section 4G, for example, provides that federal offences punishable by imprisonment for a period exceeding 12 months are indictable offences, but it adds the words 'unless the contrary intention appears'. This may leave the situation in an unfortunate state of uncertainty. Other federal legislation authorises summary proceedings even though substantial terms of imprisonment may be imposed. It is suggested that federal Parliament should enact that the trial of any federal offence providing for punishment in excess of one year's imprisonment shall be on indictment.
This enactment, taken in conjunction with section 80 of the Constitution, would result in an effective guarantee of trial by jury for serious offences. Arguably Parliamentary Committees should play a greater role in scrutinising laws to ensure that summary trial is not available for serious offences. Stronger protection of a right to trial by jury for serious offences, even if that right could be waived by the accused, would facilitate the democratic participation of the community in the administration of justice.
This in turn would strengthen public confidence in the legitimacy of the Australian criminal justice system. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State, the trial shall be held at such place or places as the parliament prescribes. The section was based on a provision contained in the United States' Constitution, 1 which in turn rests on the philosophy that people charged with serious offences are entitled to have their guilt or innocence determined by the judgement of their peers.
The importance of trial by jury was expressed in passionate terms by Deane J in his judgment in Kingswell in The guarantee of section 80 of the Constitution was not the mere expression of some casual preference for one form of criminal trial.
It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases. That conviction finds a solid basis in an understanding of the history and functioning of the common law as a bulwark against the tyranny of arbitrary punishment. In the history of this country, the transition from military panel to civilian jury for the determination of criminal guilt represented the most important step in the progress from military control to civilian self-government The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people.
The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury's deliberative processes, the jury's isolation Deane J's eloquent support for the jury system was expressed in a dissenting judgment. But he can be a persuasive advocate, 3 and his dissent in Kingswell seems to mark a change in approach away from a narrow or 'procedural' view of section 80 of the Constitution.
If we share Deane J's views about the criminal justice system, it is suggested that we should favour the taking of steps which would help to ensure that those charged with serious offences are not deprived of the benefit of trial by jury. In expressing a preference for jury trial of serious offences, one must to a large extent rely on value judgements, since considerations of confidentiality create difficulties for effective statistical research.
The research that has been conducted, however, does support the conclusion that judges who are regularly called upon to hear criminal prosecutions without juries become 'case-hardened' and prosecution-minded. For example, jury trials were suspended in Northern Ireland in in relation to some offences, known as 'scheduled' offences. The acquittal rate in courts trying these offences without juries so-called 'Diplock' courts subsequently declined from 57 per cent in to 33 per cent in By comparison, the acquittal rate in jury trials-involving other than 'scheduled' offences-increased from 38 per cent to about 60 per cent in Northern Ireland during a similar period.
The majority of federal prosecutions in Australia take place in the magistrates' court. Of the defendants dealt with in , approximately 90 per cent were dealt with summarily, while approximately 10 per cent were dealt with on indictment. The majority of the defendants in these cases pleaded guilty per cent of those dealt with summarily and 64 per cent of those dealt with on indictment. Thus, of the matters which went to trial , 25 per cent were dealt with by judge and jury.
The Commonwealth Director of Public Prosecutions has formulated a number of guidelines for determining whether cases in which the mode of trial is discretionary should be dealt with on indictment or summarily.
These guidelines are set out in Appendix 1. I have suggested elsewhere that the jury system can help to defuse conflict during turbulent times, 6 and I have offered as an Australian example the acquittal of the Eureka rebels, following the rebellion and massacre. British prosecutions for treason, sedition, unlawful assembly and the like provide further illustrations: cases such as those involving William Penn, Thomas Hardy and John Horne Tooke.
Those who have studied such matters and those who have had experience of the jury system have generally favoured the system as one which facilitates the democratic participation of the community in the administration of justice. Lord Devlin observed that each jury 'is a little parliament'. He added that the first object of any tyrant 'would be to make parliament utterly subservient to his will'; the next would be 'to overthrow or diminish trial by jury'.
He concluded with characteristic eloquence that trial by jury is more than an instrument of justice and more than one wheel of the constitution: 'it is the lamp that shows that freedom lives'. In Australia, judges and retired judges have made similar observations. Like air and water, trial by jury is best appreciated by those who have had its benefits withdrawn from them.
When the British parliament provided, in , for a military tribunal in New South Wales, with a Judge-Advocate presiding over a panel of six military officers, the citizens soon came to appreciate the superiority of the jury system. The military tribunal could be manipulated by Macarthur and others and could not be relied on to be impartial, especially when military interests were involved. William Wentworth and others campaigned vigorously for the British system, and numerous petitions for jury trial were lodged with the authorities.
Eventually, in , that system was introduced into New South Wales and made applicable to the Port Phillip district. The provisions of the Australian Constitution were formulated in the course of debates conducted at a series of conventions held during the last decade of the nineteenth century.
The insertion of the expression 'on indictment' in section 80 has led to what is described as the 'narrow' approach to interpreting the section. The effect of that approach is that section 80 does not constitute a restraint on legislative power. It is, according to that approach, always open to the legislature to avoid the operation of the section by providing for the summary disposition of criminal offences, no matter how serious.
Some commentators have attributed Machiavellian deviousness to the framers of our Constitution. A Tasmanian jurist, Andrew Inglis Clark, composed the first draft of what was to become section 80 in Taking as his precedent Article III, section 2 of the Constitution of the United States of America, 12 he drew a clause providing that the trial of 'all crimes cognisable by any Court' shall be by jury.
Sir Samuel Griffith altered Inglis Clark's draft to confine the guarantee to 'indictable offences cognisable by any court exercising federal jurisdiction'. The matter came up for debate at the Melbourne sitting of the Convention in When Wise NSW resisted an amendment proposed by Glyn SA , on the basis that the clause as it stood was 'a necessary safeguard to the individual liberty of the subject in every state', Isaacs Vic intervened:. I do not think there is any safeguard at all such as the honourable and learned member has stated To my mind, it is a very proper thing to do [to have a jury].
I think, in our present state of development, a man is entitled to have a jury in a case; but it is no fetter on the Federal Parliament, because, when it creates an offence, it may say it is not to be prosecuted by indictment, and immediately it does it is not within the protection of this clause of the Constitution The commentators have perhaps been a little unfair to attribute a Machiavellian intent to Isaacs 14 and some of his colleagues.
A more likely explanation is that Isaacs became petulant when his warnings were not heeded, and did not, when he became a High Court justice, forbear from saying 'I told you so'. The first approach is reflected in the decision in R v Snow. The Trading with the Enemy Act Cth was passed on 23 October , and Snow was charged with offences on specified days both before and after that date. At the end of the Crown case, his counsel submitted that, so far as the days preceding that date were concerned, the legislation was not retrospective, and that, so far as the days subsequent to that date were concerned, there was no evidence of any offence fit to be submitted to the jury.
The trial judge agreed with those submissions and directed the jury to return a verdict of not guilty, which they did. They are also concerned that too much emphasis on ethnically balanced juries results either in deadlocked panels or different standards of justice for different groups. For these reasons and more, we hear periodic calls to reform or abolish the jury system. Research on juries allays most of these concerns and strengthens our faith in this institution.
Overall, jurors are competent and effective. They listen carefully and take seriously the charge not to discuss the evidence or reach a decision until the judge passes the case to them for deliberation and a verdict. They do not rush to judgment; instead, they reach a verdict through analysis of the evidence, not as experts but by judging its trustworthiness with common sense.
They seek to persuade each other but also are open to persuasion. They do not reach perfect verdicts but, on the whole, they act as we hope and expect them to act—deliberately and fairly.
Jurors bring their prejudices into the jury room because they cannot do otherwise, but their deliberations, when conducted honestly, expose these prejudices, test them, and allow jurors to set them aside in an effort to be fair. Miscarriages of justice still occur, yet most often juries try to meet the constitutional test of fairness.
In , the Sugar Act transferred the prosecution of smugglers from local courts to vice admiralty courts. The British government was seeking to improve the collection of taxes, or customs duties, owed on imported goods, and Parliament believed that colonial juries too often refused to convict the violators of these imperial trade laws.
The vice admiralty court did not have a jury. A judge alone decided guilt or innocence—and he received part of the fines assessed to individuals convicted of smuggling. But the most grievous Innovation of all, is the alarming Extension of the Power of Courts of Admiralty. In these Courts, one Judge presides alone! No Juries have any Concern there! Now, if the Wisdom of the Mother Country has thought the Independency of the Judges, so essential to an impartial Administration of Justice, as to render them independent of every Power on Earth, nay independent of the King, the Lords, the Commons, the People, nay independent, in Hope and Expectation, of the Heir apparent, by continuing their Commissions after a Demise of the Crown; What Justice and Impartiality are we, at Miles distance from the Fountain to expect from such a Judge of Admiralty?
The same complaint—denial to the colonists of the right of trial by jury—was also part of the Declaration and Resolves issued by the Continental Congress in That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law. The several acts. The evidence Clark cites reveals a press engaged in sensationalism.
The Court ruled that Sheppard had not been tried by an impartial jury and reversed his conviction. Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities. He was taken to the Bay Village City Hall where hundreds of people, newscasters, photographers and reporters were awaiting his arrival. He was immediately arraigned—having been denied a temporary delay to secure the presence of counsel—and bound over to the grand jury.
The publicity then grew in intensity until his indictment on August Sam Sheppard. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.
The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action.
Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. Fear of unchecked power. Duncan v. Louisiana, U. Cooley, 4th ed. Utah, U. At other times the function of accurate factfinding has been emphasized. The right to trial by jury in a criminal case resides in both Article III, Section 2 of the federal Constitution "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury" and the Sixth Amendment "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial , by an impartial jury".
But the right isn't as broad as those texts might suggest, meaning that many defendants have to settle for judge trials, where the court decides whether the defendant is guilty. According to the Supreme Court, the jury-trial right applies only when "serious" offenses are at hand—petty offenses don't invoke it. For purposes of this right, a serious offense is one that carries a potential sentence of more than six months' imprisonment.
Baldwin v. New York , U. If the penalty is six months or less, the crime is serious only if the sum of its penalties are weighty enough. Nachtigal , U. Likewise, in another case, it decided that a first-time DUI was merely a petty offense where:. Prosecutors regularly file more than one charge against defendants. The natural question is what happens when there are multiple charges that individually carry six months or less but exceed six months when added together.
Unfortunately for defendants, the Supreme Court has held that the jury-trial right doesn't apply in this circumstance. In one case before the Court, the defendant had been charged with two counts of obstructing the mail, each count providing a maximum of six months in jail. The Court found that the defendant had no jury-trial right. Lewis v. The Supreme Court's determination of what constitutes a serious offense and thereby entitles one to a jury trial sets a minimum standard.
0コメント