THE JURY’S  STILL OUT

In a recent court case out west, a Perth Policeman was left wheelchair-bound, partially paralyzed and has impaired sight after being knocked unconscious by a ‘flying head butt’ during a melee outside a pub. The case gained national attention after a jury acquitted a father and his two sons of assaulting Police despite a sickening and graphic video showing Constable Matthew Butcher being blind-sided and pole-axed.

His attackers claimed they acted in self defence after the father was Tasered.

That jury decision prompted a mass rally in Perth, new laws about mandatory detention for assaults on Police and several officers resigned from the force in disgust.

It sparked more national debate on juries and the need for majority verdicts. It also prompted a radical proposal from the WA Chief Justice, Wayne Martin, who suggested judges should be allowed to sit in with juries.

He said: ‘When we come to the most important part of the case where the decision is taken, we send 12 people off in a room by themselves and we send the judge off to have a cup of tea.’

Judge Martin says he supports the jury system but ‘12 people off the street’ chosen to represent the community have no knowledge of the law beyond their life experience and they could benefit from having the judge on hand.
If you believe that you might as well get rid of juries and have all trials heard by a judge alone. I have my doubts about juries and unanimous verdicts. I don’t believe a person is always tried by ‘a jury of his or her peers’.

In complicated white collar crimes involving intricate money matters it would make sense for a jury to consist of people with some banking or financial knowledge. For computer fraud you need a panel of nerds.

But to put a judge in the jury room would create a minefield for any appeals court. How would anybody know what advice the judge had given jurors behind closed doors?

That’s why any questions juries have or any instructions a judge may give must be in open court and recorded for history and possibly for an Appellate Court.

And, under the current system, jurors in doubt on legal issues or who want evidence or directions from the bench explained again can go back into court and put those questions to the presiding judge.

To have the judge, who has been lord of the court for the whole trial, to suddenly loom as a large shadow around the jury room table would be intimidating, stifling, daunting and destructive.

The WA Premier, Colin Barnett, doesn’t think so. He says it is worth considering. Methinks the shock acquittal of the men who maimed a police officer is still too fresh in his mind.

© Copyright Derryn Hinch 2009