There are some suprises in the various reasons given for why the traditional criminal jury should be done away with.
That was a nice little firecracker that Justice Peter McClellan tossed into the drowsy end-of-year chambers of the crime bar.
At a speech to the law faculty at the University of NSW earlier this month the Chief Judge at Common Law let fly with his well-rehearsed thesis against the continued use of juries.
He's also been in the headlines recently as one of the judges in the appeals of Jeffrey Gilham and Gordon Wood.
McClellan has been keen for some time to get rid of jurors from their last remaining foothold in the civil area - defamation cases - and now he's widening his argument against them trying criminals, or people accused of crimes.
Startlingly, he says only about 3 per cent of all criminal trials in NSW are conducted with a jury.
Part of the reason, apparently, is that the Office of the Director of Public Prosecutions and Legal Aid don't have enough money to resource all the trials on indictment that they might like. Hence, there are more and more summary trials without juries.
Another ingredient is that the DPP can no longer veto a defendant choosing trial by judge alone.
Justice McClellan puts up various reasons why the traditional criminal jury should be done away with, and there are few surprises: expert evidence is too complex for a judge, let alone a jury; so too evidence about accounting and market transactions; fewer and fewer people actually want to serve on a jury, and many have worked out how to avoid the task; juries don't give reasons, so no one has much of a clue whether they understood the case correctly; every other decision maker has to provide reviewable reasons, but when it comes to a citizen's liberty, reasons are not required; judges are accountable, jurors are not.
Juries are an article of faith for the criminal defence business - it's trotted out like a mantra. It's not unfair to say jury trials give rise to more opportunities to appeal and to more retrials. The process is longer, and therefore more expensive. All worthy reasons to keep juries.
Yet, it's not as though criminal defence lawyers' objections do any favours for their clients. The Bureau of Crime Statistics has figures that show judge-alone trials result in higher rates of acquittal than jury trials.
Time-worn practitioners say this is because judges are busy people and to convict someone requires more detailed and carefully written reasons than if they are acquitted.
McClellan attributes it to the possibility ''judges are not so easily swayed by the rhetoric of the skilful advocate''.
He suggests a different configuration. The accused still needs to be protected from mad or bad judges.
Multiple trial judges sitting in panels or lay assessors deliberating alongside judges are among the ways to achieve the right balance and are used in other civilised corners of the globe.
Of course, for major offences prosecuted under Commonwealth law in state courts you'd need a change in the constitution to do away with juries. Lurking alongside Justice McClellan's list of compelling reasons to ditch the jury is the glaring reality that the kind of confected environment in which jurors are expected to operate is no longer functional. The capacity to closet jurors away from the real world of swirling prejudice is gone.
The most recent example of this the Bandali Debs murder case, tried in the NSW Supreme Court by a jury and Justice Robert Hulme.
This week Debs was found guilty of murdering a Sydney woman, Donna Anne Hicks. He is already serving two consecutive terms of life imprisonment for murdering two Victorian police officers in 1998. He has also been convicted for the murder in 1997 of another young woman in Melbourne, Kristy Harty.
In October, before Debs's most recent trial, Hulme made orders that there be no publication of the fact Debs had murdered anyone or that he is currently serving sentences in Victoria and that his DNA has been associated with the Kristy Harty crime scene.
In effect, the judge issued take-down orders to dozens and dozens of online publishers who had masses of information posted about this notorious criminal.
It was like King Canute trying to hold back the waves. Many of the mainstream publishers did take stories off the web in compliance but, during the course of the trial, I counted on any given day between 41 and 65 Google pages of information about Debs that stayed put, including material on Wikipedia and Facebook.
Trying to scrub the internet clean to protect the delicacy of the jury is simply impossible.
That the presumption of innocence is constructed on jurors being kept in a bubble, but not judges, is a proposition increasingly difficult to swallow.
In the old days in Sydney jurors were quarantined by being driven around the streets in a cart until they had reached a verdict.
Maybe the purists could recreate a contemporary equivalent and keep the tottering edifice alive for a bit longer. The historical view of the jury was that the people of the village judged the accused, an accused they knew well. Defence lawyers and the judges steadily sought to exclude the existence of prior knowledge in the name of ''a fair trial''.
The internet has brought us back to where we started. We're all in an information village, again. The bubble has burst.
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