Our jury system needs urgently fixing

One of the cornerstones of our justice system - the jury - is in urgent need of an overhaul because too many juries now are not fully representative of the population.

Instead of the centuries-old concept of 12 impartial citizens representing the community at large, we now have a system where growing numbers of people are seeking excusal from jury duty, for a host of reasons. Work, childcare and financial issues are the most cited reasons for jurors seeking excusal.

Ideally a jury should be a representative cross section of the community - representing gender, culture, socio economic groups and age. However increasing jury excusal rates mean juries now are often made up of retirees and the unemployed.

An accused person has the right to be judged by a cross section of their peers and when the balance is lost, it undermines the chances for the accused to be properly judged.

The issue has been highlighted by reported remarks by Nigel Stobbs, law lecturer from the Queensland University of Technology, who is researching the jury crisis at the National College of Australia in Canberra.

Mr Stobbs found that last year, 53.9 per cent of people were excused from jury service - a 2 per cent increase on three years ago. Of the 23,255 jurors who eventually attended court, a further 15 per cent changed their mind and were excused.

The most common excuses for jury excusal were work, childcare and financial implications.

However I strongly disagree with a suggestion by Mr Stobbs that juries be replaced with a panel of judges for trials on complex fraud issues.

A jury decides their verdict on the facts presented to them, and leaves questions of law to the judge. It is imperative that we have people using their general common sense in deciding a verdict, not leaving it to a panel of judges who are trained to see things differently and are hardened by hearing the same excuses day after day.

Judges are there to decide penalty and rule on questions of law, but they should not replace the role of juries.

However I support the view there is an urgent need to overhaul payments for jury service. At present jurors are paid $32 for every day they turn up, $97 for each day of a trial up to 20 days, and $129 for every subsequent day.

There is a distinct problem now about juries being representative of the population. More and more people are seeking excusal from jury duty and the financial aspect seems to play a big part for many of them. An accused should be judged by a representative cross section of their peers - not a group of people with nothing better to do.

There are enormous pressures imposed on jurors today. Ordinary people are plucked from their homes and required to sit in a courtroom for perhaps weeks on end, and asked to find the truth from the claims and counter-claims put before the court.

In most cases the jurors’ only knowledge or exposure to how juries work has been confined to books, movies, or a host of TV shows - usually reflecting the American justice system.

The concept of being judged by a jury of your peers dates back at least to the time of the Magna Carta, and there are historical records of earlier cultures including ancient Judea and the Athenians in 500BC using a similar method to determine guilt or innocence.

We expect a lot from our jurors. They must put their own lives on hold for an indefinite period and get their minds around complex legal matters in the unfamiliar environment of a courtroom, plus carry the burden of determining guilt or innocence.

The recent Janelle Patton murder trial on Norfolk Island illustrates the pressures a jury can be under. Jurors had to put their own lives on hold for a month-long trial during which they heard from 56 witnesses and saw 122 exhibits tendered before the court.

When the jury retired to consider its verdict, jurors were warned they would be isolated from the community until they made their decision. The jury could not reach an immediate decision so they were quarantined in a local hotel overnight.

Being sequestered overnight and guarded by “keepers” is just one of the inconveniences jurors hearing complex cases have to endure.

Criminal trials can and do stretch to weeks. A high profile murder trial in Queensland in 2003 ran for eight weeks. Drugs trials can run this long too, and even longer.

Technology increasingly plays a major role in evidence issues. The prosecution calls on high tech forensic analysis as does the defence. Inevitably, trials take longer. Jurors, whose exposure to this scientific evidence wizardry has been confined to seeing it on TV shows such as CSI, suddenly find themselves having to make real life decisions of fact in a pressure-cooker environment.

Small wonder some potential jurors seek ways to avoid jury service. Jury service disrupts their lives and high income earners are reluctant to commit weeks of their time to a trial where they will be financially worse off. Consequently a segment of the community professionals and executives, is not always represented on a typical jury.

Those who have the time to serve on a jury - retirees, the unemployed among them - deserve our thanks. The problem lies with the people who for whatever reason seek to avoid jury service.

Jury service is a vital part of the justice system but it won’t work if our juries are made up of a tiny part of the community, such as retirees or the unemployed. The system needs to be fixed so we get a true cross section of the community serving on juries.

Jury service has been a part of our culture for centuries, so much so that perhaps Society today has taken it for granted? Modern Society has a different “take” on the notion of community service. Individuals weigh the prospect of jury service against the demands of their own lives - family, jobs and income being prime influences in their attitude toward serving on a jury.

If economic necessity is driving some potential excellent jurors away from jury service, we need to fix the system. We need to have jurors who can afford to focus on the case before them, rather than be worrying about lost income as a trial drags on.

How we motivate the “missing” jurors to take part in jury service is the challenge facing the Australian justice system. Until we find a solution, the quality of justice is being eroded.