Do I really have a right to a trial by jury?

The judge and the jury have different roles in our judicial system. The recognised principle is that questions of law are to be decided by the judge and questions of fact are decided by the jury.

Our Constitution contains very few rights. But one of them is understood to be a right to a trial by jury. This week we take a closer look at the history of trial by jury and what the Australian Constitution says.

Trial by jury is found in Chapter III of the Constitution:

Section 80 Trial by jury
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.

You’ll notice a caveat right at the beginning, with the use of the word ‘indictment’. What this means in practice is that a trial by jury only occurs on offences that have been deemed indictable by the Parliament. During the Constitutional Conventions in the late 1890’s, this point was raised several times by Victorian delegate Isaac Isaacs. He stated:

It is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.

Another Victorian delegate, H.B. Higgins was also actively involved in the debates about section 80 of the Constitution and suggested that ‘the question of a trial by jury might safely be left to the Federal Parliament’. Others at the conventions saw this section of the Constitution as a ‘safeguard of individual liberties’. While Isaacs continued to argue that any guarantee of liberty ‘might be evaded by a technicality’ and even after some discussion about changing the wording he suggested that ‘the clause, in either form, would have little real effect’. As you can see he was not a fan of this section of the Constitution as it was written.

In 1894 Isaac Isaacs was the Attorney-General of Victoria and in March 1897 he was elected to the Federation Convention for Victoria (the Constitutional Conventions). He was then elected in the first federal Parliament as a Protectionist in 1901 and became Attorney-General in 1905. He left this position a year later when he was appointed to the High Court. He later went on to become our third Chief Justice and in 1931 he was appointed as our first Australian born Governor-General. Higgins also went on to sit as a Justice of the High Court.

Trials before federation

In the Australian colonies before federation indictable offences were prosecuted in the name of the Attorney-General by a process known as ‘information, presentment, or indictment’. This meant that the indictment was made by a law officer (the Attorney-General) rather than by a grand jury. In other countries around the world, including the US, a grand jury decided whether to indict someone for trial (the US system still works this way).

One of the reasons that section 80 of the Constitution is written the way that it is, was so that there was a clear distinction between indictable offences, offences punishable in a summary way and misdemeanours. The word ‘offence’ includes all public wrongs, crimes and misdemeanours, but whether they are indictable or punishable by a summary conviction differs. Indictable offences are guaranteed to have a jury decide guilt or not, while summary offences will be heard by a judge. Misdemeanours may attract a fine. One instance of a misdemeanour was mentioned at the Constitutional Conventions in regards to this section of the Constitution:

The Constitution is an Imperial Statute, and both it and the laws of the Parliament made under it are the law of the land. Accordingly the wilful doing of any act expressly prohibited by the Constitution or laws, even though not declared punishable, is a misdemeanour…. Accordingly the provision that “each elector shall vote only once” is an express provision against plural voting, and any elector voting more than once at a federal election will be guilty of a misdemeanour.

If you vote more than once in an election, you commit a misdemeanour and will be given a fine.

The history of jury trials

Many believe that the right to a trial by jury was sourced from the Magna Carta in 1215. However, ideas don’t normally come from nothing. Little bits of ideas build on others until a new system is created. In this case the seed of the idea of juries may have come from the French.

The French had been using an inquisitorial legal practice for centuries, which allowed an investigator to enquire and interview witnesses about disputed or contested events. This practice was brought to England and expanded so that jurors were not necessarily witnesses, but independent arbiters. It is recorded that in 1166 King Henry II enacted a basic form of jury so that an inquiry would be made, by the oath of twelve men, for any person suspected of robbery, murder or theft. This idea sprouted further and was encapsulated in clause 39 of the Magna Carta:

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

The reason why this section of the Magna Carta was so important is that it was an essential function to guarantee the protection of citizens (probably just the barons in 1215) against the use of arbitrary power by the King. By the fourteenth century it was common practice to have a jury of twelve laypersons to judge whether someone was guilty of a crime, even if the crime was not serious. In fact, there was normally a grand jury that took on the inquisitorial role to decide if a trial should go ahead and then another jury that decided guilt or not at the trial.

Later in the fourteenth century, as the populations grew, so did the volume of cases in the courts. It became impossible to have a jury trial for all offences. As such the practice was pared back and King Henry VII allowed justices to hear and determine all offences and contempts apart from ‘felonies’. As such petty crimes such as swearing, embezzlement and public drunkenness were determined by a judge. We might now call these petty crimes summary offences.

It has been argued, for many centuries, that there is no underlying principle that identifies whether an offence should be heard by a judge alone or a jury. The situation above of embezzlement being able to be heard by a judge alone is a good example of this. Many would say this is a very serious crime and should be heard by a jury.

Perhaps the problem of having no underlying principle in regards to what is an indictable crime was what concerned Isaac Isaacs when the Constitution was being written. It is left up to the Parliament to decide whether an offence is indictable or not is. 

These days a trial by jury is understood to be a common law concept that can be modified to accommodate contemporary stands to represent the community:

  • This means a trial by jury is a flexible concept, and some undesirable aspects of the early jury trials (eg, no females, property qualifications) can be excluded without depriving the right.

A trial by jury should contain these essential features:

  • Unanimous verdict
  • Independent, randomly and impartially selected jury which is a representation of the community.
  • Not necessarily twelve jurors, but at some point, a jury may become too small to be truly representative of the community
  • No prosecutorial intervention in jury selection

What about serious crimes and wrong doings?

The High Court has been asked to determine what is or is not an indictable offence on many occasions. While there have been some dissents, the Court has maintained that an offence is only indictable when the Parliament stipulates that it is. This is what is called a narrow or orthodox view of the Constitution. Even some serious offences may be summary offences if the legislation makes it so. A judge on their own decides guilt or innocence for summary offences.

The precedent for this narrow view was established in the High Court under Chief Justice Adrian Knox. Isaacs and Higgins, who had argued vociferously about section 80 during the Constitutional conventions sat on the bench of the High Court during The King v Archadall; Ex parte Carrigan appeal in 1928 and were instrumental in setting up the orthodox interpretation section 80. Two union officials had organised a workers boycott (this word was eventually defined as hindering the provision of services) of a ship in Brisbane that was contracted to maintain a Government lighthouse. A Magistrate in Brisbane convicted them of a summary offence and fined them £100, plus £150 in costs. The two men appealed to the High Court on several grounds one of which was:

The defendants were entitled to have the question of their guilt or innocence determined by a jury on a trial on indictment, and were wrongly and unlawfully denied such trial by the police magistrate.

The appeal was dismissed and it was found that an offence was only indictable if the legislation so indicated.

Before we start to criticise the Constitution we should look back over why juries were so important when they were established. They were a way of protecting the barons from the tyranny of the King (mostly with tax or land disputes). The English Parliament was also set up as a protector of the people from the King. As such the legislative branch of Government in Australia (our House of Representatives and the Senate) is there as one of the checks and balances on the executive branch (what we call the Government). While the Government normally writes and introduces legislation to the Parliament that stipulates which crimes are indictable or not, the Legislature (essentially the Senate) has the power to amend it or refuse to pass it.

The third branch of government in Australia is the judiciary, who provide the checks and balance on the legislature and executive. So, while they have taken a narrow view of section 80 in the past, it does not mean that they will continue to do this in all cases. Some commentators have argued that if the Parliament were to use its power arbitrarily then Court may make a new determination on the limits of this power. While others argue that we shouldn’t even have trials by jury in the modern age.

Let us know what you think.

Image The Jury by John Morgan, 1861


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