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April 15, 2015
Jury Duty: Right or Burden?

By Christopher Townsend

The concept of a fair trial is one which we, as a community, advocate for both domestically and internationally. The idea that, when charged with an offence, an accused is entitled to be adjudged by his peers is one of which dates back to the Magna Carta, and one that is fundamental to our criminal justice system.

However, for too long, members of the Australian public have attempted, and often been successful in, avoiding their obligations to, where requested, uphold their civic duty in the role of juror.

Ensuring Impartiality

The participation of the public, in the administration of justice, ensures the impartiality of the tribunal of fact, and intends to represent the idiosyncrasies present in our community.

The jury, under direction of the presiding judicial officer, will determine the factual issues that arise, apply them to the law as directed by the judicial officer, and thus will determine the outcome of the proceedings.

The questions of fact that need jury deliberation, involve the application of community standards, with terms present in our laws that evolve over time in accordance with such standards. Terms such as reasonableness, indecency, dangerous and the like, are all terms that accord with what the community considers to be appropriate.

A judge can, in limited circumstances, preside over the entirety of the proceedings, and similarly decide the questions of fact that would normally be put to the jury. An application can be made pursuant to Section 118 of the Criminal Procedure Act 2004 for this to occur.

The number of cases tried by judge alone however is minimal, reflecting the principle that confidence in the justice system is more likely to be sustained, when a jury is present to represent the community’s perceptions, ideas and values.

The Juries Act 1957

In Western Australia, the liability, and governance of juries is detailed in the Juries Act 1957 (‘the Act’). It prescribes that all those that are registered on the Electoral Roll are liable to be jury members. This is qualified by circumstances that deem a person to be ineligible such as, being above the age of 75, being of a specific class of persons (such as a lawyer),  or having been recently convicted and imprisoned.

Beyond the reasons stated above, there is discretion for the deferral and in some circumstances excusing of potential jury members from their obligations. Matters that can be considered include the nature of a person’s occupation, mental impairment or physical disability. It must be shown that because of these matters, attendance would cause undue hardship on the person, their family or the general public.

This will result in a deferral unless the person has previously been issued a deferral and either the new reasons for excusal were not reasonably foreseeable when the deferral was granted, or currently some exceptional reasons apply, in which case the person will be excused.

In circumstances where an eligible jury member does not respond to a summons, they can, by virtue of the Act, be subject to a fine of up to $5,000 or pursuant to the Juries Regulations 2008, be issued an infringement with a modified penalty of $800.

Ammendments to the Act

Recently, the Act has been amended with the objective of decreasing the likelihood of potential jury members having the right to request, and be granted an excusal from serving as a jury member.

The penalty found in the Act, has been subject to an increase as a furtherance of this objective and, will perhaps have the practical effect of forcing people to discharge their obligation.  However, without the understanding of the importance of their participation, it seems the ‘threat’ of a substantial fine is the motivation, rather than a person’s duty, to assist in the ‘administration of justice’.

Changing Attitudes towards Jury Duty

The whole concept of serving as a jury member is one of which is, in many ways, treated as a burden; a bothersome task that you’re forced to do, unless you can ‘get out of it.’

However, we as a community have to recognize the importance of the jury, its role and how an ordinary member of the public can play a huge role in the facilitation of justice.

We as a country, as a community, as a people, recognise the importance of the concept of independence and impartiality in judicial proceedings. We recognize, by virtue of Australia being party to the International Covenant on Civil and Political Rights, and the mirroring of the ‘trial by jury’ concept in state legislation, that such a process is the right of an accused.

However, in order for such a right to be afforded, it requires the continued support of the community as a whole.

Rather than the attitude that doing so is a right and/or a privilege, the role of a jury member has consistently been viewed as a burden.

I put it to the community of Western Australia; be proud to be requested to assist in the ‘administration of justice’. Don’t shy away from your duty as a citizen of this country, but, rather take comfort in the fact that you are a part of something great.

As Sir William Blackstone said “[…] the trial by jury ever has been, and I trust ever will be, looked upon as the glory” of our legal system.