The verdict on jury trials
Jury trials have been given a significant amount of media attention recently. The High Court’s quashing of George Pell’s conviction has led many to question not just the utility of trials by jury but also the point of them. The High Court’s decision was handed down just a couple of weeks prior to Victorian Parliament enacting the COVID-19 Omnibus (Emergency Measures) Act 2020, which contains provisions allowing for judge only trials during the corona virus outbreak.
So, for the first time ever, an accused in Victoria may be tried by a judge alone, meaning the judge decides whether they are guilty or not guilty.
The utility of trial by jury
Juries are a vital part of our democratic system. Consisting of 12 random members of the public, they stand between the state and the accused.
Prior to working at Doogue + George, I was an associate at the County Court of Victoria and empaneled over 20 juries. After hearing the jury’s verdict at the end of the trial, the judge I worked for would thank the jury and tell them serving on a jury is likely the most important civil duty they would perform in their lives. (The other compulsory civic duty is voting).
They are asked to decide the facts of the case based on their understanding of the evidence which is informed by factors such as their life experience, common sense, deliberations with other jurors, the directions of law as given to them by the judge, and so on. This means the law and evidence is interpreted by the public in accordance with its values, in relation to a fellow member of the public.
Prior to a jury being empaneled, the judge outlines the reasons for which members of the jury pool might seek to be excused. Importantly, one of these reasons is the prospective juror believing they might not be able to bring an impartial and unbiased mind to the case. Maybe they know the accused, a witness or the judge. Maybe they have strong opinions about the alleged offending, for example they or someone they know have been exposed to such offending in their lives. If the case is high profile, maybe they have already formed an opinion as to the accused’s guilt. By asking jury pool members to be excused on this basis, the risk of a prejudiced jury and jury verdict is mitigated.
“It’s the collective wisdom of 12 that makes a jury. Jurors bring to the trial 12 times more life experience than a judge”.1
I believe juries serve an important and highly useful purpose and should continue to decide the facts of cases. In my experience at the court, I observed jurors to be diligent, attentive and cooperative. A friend of mine who served on a jury last year said she found it at times overwhelming knowing that her jury’s decision might mean someone is incarcerated, but understood her role in the trial process and took it extremely seriously.
The point of trial by jury
A jury of 12 decided George Pell was guilty of five charges of sexual offending against two young boys in the 1990s. They deliberated for almost 5 days. Over a year later, the High Court of Australia quashed these convictions. All seven members of the High Court bench said the jury that gave the verdict ‘ought to have entertained a doubt’ about the evidence of the main witness for the prosecution.2
This has led to many asking what is the point of letting a jury decide the facts of a case if, later, seven legally trained, academic and experienced judges can disagree and overturn the decision?
Prior to 1994, the jury was the sole finder of fact in Australia; judges could not wear the fact-finding hat. They could not interfere with the jury verdict. But a High Court decision in 1994 changed this – appeal courts could now answer the question of whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty based on the whole of the evidence.3 In Victoria in 2009, this common law power of judges also became statute law, with the Victorian parliament legislating that the Court of Appeal must allow an appeal against conviction if it is satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.4
The fact that Pell’s case was so high profile is likely to have impacted on the jury verdict. This is not a criticism of the jury nor trial judge. Cases like this may be more suited to a trial by judge alone.
It is also one example of an appeal against conviction, and a successful one at that. The most recent data on appeals reveals that only 2.5% of cases sentenced in the County or Supreme Courts were appealed to higher courts on the question of conviction alone.5
So, 97.5% of the cases are not appealed against. That seems to answer the question of the point of jury trials.
Trials during COVID-19
Section 420D of the COVID-19 Omnibus (Emergency Measures) Act 2020 gives courts the power to order that one or more charges an accused is facing be tried by judge alone, no jury. Importantly, the accused must consent to the making of such an order and the court must be satisfied the accused has obtained legal advice in relation to consenting and the effect of a trial by judge alone.
What this means is, if you’re facing indictable charges, you don’t necessarily have to wait until jury trials re-commence (potentially next year). You do have the option of proceeding with a judge alone.
If you or someone you know is at this fork in the road, you need to speak to experienced defence lawyers who can discuss with you the best way forward. We are available via phone ((03) 9670 5111), email, Zoom, Webex and Skype, to help you navigate your way through these unprecedented times.
 Pell v The Queen  HCA 12
 M v The Queen  HCA 63
 Section 276(1)(a) of the Criminal Procedure Act 2009
 Sentence Appeals in Victoria: Second Statistical Research Report – Sentencing Advisory Council, August 2018 – https://www.sentencingcouncil.vic.gov.au/publications/sentence-appeals-victoria-second-statistical-research-report)