In this article, O’Brien Criminal and Civil Solicitors takes a closer look at Trial by Jury in Australia– where does the concept come from? When did it come to Australia? And how has this changed in the era of COVID-19?
Indulge, albeit momentarily, in something of a Corona-hypothetical. Suppose during the COVID-19 pandemic, instead of simply staying indoors and (for example) assiduously perfecting one’s banana bread recipe, you commit a crime. You’re arrested, charged, and it’s the sort of crime that involves a full criminal trial.
Here is the question: during the COVID-19 pandemic, when you step into the Courtroom to be tried, who will determine your guilt: a jury sitting with a judge, or a judge alone?
Further, who would you prefer to determine your guilt; 12 peers from the local community directed by a judge, or a judge alone?
While fortunately constrained to the realm of your hypothetical crime, in reality these questions are live issues in the Australian legal system under coronavirus, and central to a case pending before the High Court.
If you had committed your crime some 800 years ago in England, at the dawn of what would eventually become Australia’s legal system, suffice to say that your trial would be something of a drag. If you were accused of a crime in pre-1200s England, you would have sworn an oath of innocence on the holy gospels before your local communal assembly. If they didn’t believe you (either because your charge was too serious, or, frankly, you were a bit of a renowned liar), you would be put through an “ordeal”, a physical test that appealed to God to detect perjury.
These “ordeals” typically involved burning your hand, (with scalding iron or boiling water) or throwing you into a pond. If the burn festered or you floated, God was taken to have decided against you. Typically, a priest would be wandering around in the background to ensure the procedure was canonical.
By 1215, the Catholic Church began to consider that these “ordeals” were a bit much, and ended its participation in them. As a result, classical criminal trial juries began to appear by 1220.
These jurata consisted of twelve men from the neighbourhood who were sworn in to determine facts in dispute, indeed, much more appealing than the persistent alternative of the trial by judicial combat, ie. a fight to the death to prove your innocence, a Norman concept brought to England by William the Conqueror and company in 1066.
Fast-forward some 800 years to Australia, and trial by a jury is widely considered a key element of a fair trial, the right to which was described by the High Court’s classic case of Dietrich (1992) 177 CLR 292 as “a central pillar of our criminal justice system” (Mason CJ and McHugh J). This journey was not without its proverbial bumps, the NSW colonies only adopted something approaching recognisable trial by jury in roughly 1823**. Prior to that, the authorities essentially considered that the population was both too criminal and too stupid to do the job correctly.
By the time the Australian Federal Constitution was drafted in the 1890s, the concept of a trial by jury was considered so fundamental that it was enshrined as one of the few express “rights” in s80 of the Constitution, in turn inspired by similar sections in the United States Constitution.
s80 theoretically*** ensures a trial by jury for indictable (generally more serious) Commonwealth offences. In practice the large majority of Commonwealth offences are disposed of in the absence of a jury, and while the Federal Parliament and Prosecutorial discretion inform whether a Federal crime is on heard on indictment. Regardless, the centrality of a jury for serious criminal offences has been highlighted by the High Court:
“the guarantee of section 80 of the Constitution [is]…not the mere expression of some casual preference for one form of criminal trial. It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal basis” (Kingswell v R (1985) 62 ALR 161, 185-186, Deane J).
As criminal law and procedure is largely left to the States to legislate, NSW has its own specific requirements for a trial by jury vs trial by judge alone.
For criminal proceedings commencing in the NSW Supreme or District Courts, orders for a trial by judge alone are governed by Section 132 of the Criminal Procedure Act 1986. Either the prosecution or the accused may make an application to the Court for trial of judge alone, which the Court will grant “if it considers it is the interests of justice to do so”. However “the accused has a power of veto; and if both parties agree, the judge must make the order” (Farrugia  NSWCCA 197, , Basten JA). The only caveat to this is a safeguard requiring the accused to have sought advice from an Australian legal practitioner on the effect of such an order (s132(6)).
In this way, the fundamental nature of accused’s preference to be tried by a member of their peers is preserved. If the accused objects, they will not be tried by judge alone.
The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) inserted s365 into the Criminal Procedure Act, which permits the Court to order that the accused person be tried by Judge alone. However, consistent with the standard legislation: if the accused does not consent, the order cannot be made. In this way, the fundamental right of the accused to a fair trial is reflected.
Over the border, the story is significantly different. The ACT’s COVID-19 Emergency Response ACT 2020 (ACT) differs significantly from its NSW equivalent, and indeed COVID legislation enacted in any other State or Territory.
This difference comes in the form of the inserted s68BA into the ACT”s Supreme Court Act. s68BA(3) allows, during the COVID pandemic, the Court to order that an accused will be trialed by judge alone, regardless of whether the accused has consented. It may only order that the accused be tried without a jury if it is satisfied the order will “ensure orderly and expeditious discharge of the business of the Court”, and “is otherwise in the interests of justice”. In this manner, the ACT is currently the only jurisdiction that has enacted legislation allowing for essentially “forced” judge alone trials.
R v UD (No 2)  ACTSC 90 : The Facts
Mr. UD is a 27-year old man. He has been charged with a number of robberies. He is accused of breaking into the Lanyon Vikings Club outside of Canberra and stealing money from poker machines. He faces, amongst other penalties, a maximum sentence of 20 years imprisonment.
The day after the introduction of s 68BA, the Registrar for the ACT Court gave notice to the Prosecution and the accused that the Court would be making an order to have UD tried by judge alone. Both the prosecution and the Crown opposed the order – neither wanted a trial by judge alone. Regardless, the order stood.
In April 2020, Justice Elkaim of the ACT’s Supreme Court heard arguments on whether the Court’s orders were appropriately made within the scope of s 68BA . His Honour considered that the case revolved around a few general propositions, namely;
- what consideration should the Court give to the fact that both parties wanted a jury trial,
- and, more poignantly, can a judge alone trial be as fair to an accused as a trial before a judge and jury?
His Honour was focused on the definition of the “interests of justice” that were previously articulated in the Western Australia case Mickelberg v the Queen (No 3 (1992), which describes the interest of justice as demanding “that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial”.
Justice Elkaim noted that social distancing would not be possible in a jury trial “in the absence of significant and impractical logistical rules”. Court staff would have difficulty ensuring their own welfare, as would Corrections officers. His Honours also noted that it was not in the “interests of justice” to have the accused and alleged victims wait for prolonged periods of time for when the pandemic was over- “justice delayed is justice denied”.
His Honour considered that, under s68BA(3), the attitude of the prosecution and accused- ie. both parties wanting a jury- was a relevant factor, but was not determinative.
Can a Judge Alone Be as Fair to the Accused as Trial by Jury?
His Honour considered High Court authority from Dupas v the Queen  that acknowledged that, despite an assumption that juries are efficiency, they may be affected by prejudice in their decisions. He also noted that the jury verdicts are considered the “community decision”.
His Honour ultimately considered that a judge-alone trial can be a fair trial, but the decision to order a judge alone trial is influenced by the nature of the case and the wishes of the accused. For UD, His Honours considered that nothing about the alleged facts of the case against UD were more suited to a trial by jury than judge- that the jury’s task in the trial would mainly resolve around identification of the accused as the perpetrator of the robberies, based on DNA evidence and CCTV. As His Honour noted-
“There will be cases where an accused will establish that his or her trial is only suited to a determination by a jury. I do not think this is such a case.”
Mr. UD’s challenge to the constitutional validity of the ACT’s s68BA is currently scheduled for a Hearing before the High Court on the 30th of June, 2020.
Amongst other arguments, Mr. UD intends to argue that s68BA falls foul of s80’s Constitutional guarantee of a trial by jury for Commonwealth indictable offences, and is therefore unconstitutional. To be successful, Mr. UD will have successfully argue to overturn a century old precedent from the case R v Bernasconi (1915) 19 CLR 629, where laws in Papua (then a territory of Australia) were found not to be laws of the Commonwealth, and therefore were not encompassed in the protective cloak of s80.
Given the significant intersection of issues in R v UD– criminal procedure, constitutional protections and COVID-19- the legal community will surely await the June hearings with academically bated breath.
* All historical information of English criminal procedure is taken from the thoroughly excellent Introduction to English Legal History by Sir John Baker (Ed 5, OUP, 2019).
** For nuanced and comprehensive reading on the adoption of the jury system in New South Wales, refer to J.M Bennet, ‘The Establishment of Jury Trial in New South Wales’ (1961) 3 Sydney Law Review 463
*** For detailed discussion on the legal discussion around s80, refer to the 1996-97 Australian Parliamentary Library paper by Graham Fricke QC, “Trial by Jury