Juries or Judges – or both?

Andrew L. Urban.

As learned legal practitioners and academics will tell you, there are convincing arguments for both jury trials and judge-only trials. There is one important difference – judges must give reasons for their decisions – juries must not. On the other hand, juries are more representative … 

If you were sitting at the Machine Laundry Cafe off Hobart’s Salamanca Square with Mark Bowles on a mild day in early March 2021, you could well have joined the conversation about the merits of a judge only model at criminal trials. Bowles and I had just emerged from the appeal hearing into his (by now famous) mother-in-law Sue Neill-Fraser’s conviction for the murder of her long term partner Bob Chappell on Australia Day 2009.

Mark knows she isn’t guilty. Mark’s wife Sarah, knows her mother isn’t guilty, I know she isn’t guilty – and so do perhaps thousands of others, not least barristers, lawyers, legal academics, bus drivers, nurses, cooks, yachties, artists, taxi & limo drivers …. in fact, virtually everyone who has taken an interest in this case. As acclaimed Chester Porter QC put it – on camera – in November 2013, “it would not be at all surprising if the jury had acquitted this lady because the evidence was so weak against her…” But evidently the jury did not entertain a reasonable doubt … And they can’t legally publish their reasons. Reasons Mark (and everyone else) would dearly love to know. Given the circumstances, the criminal justice system would also benefit from that information, now and in the future. So many questions might be answered: was the speculative narrative so convincing? Was it the prosecutor’s repeated and aggressive accusations of ‘Liar! Liar!’ Was it the judge’s summary to the jury? What? Without those reasons, the verdict stands as a grotesque and mysterious wart on the Tasmanian criminal justice system.

“Yes of course, it is clearly an advantage to be able to review reasons for decisions, which opens fertile grounds for possible review (appeals),” comments legal academic Dr Bob Moles of Flinders University. Not only for appeals, perhaps, but for a better understanding on how evidence might be better presented to the jury – if there is one.

“As a general principle, one would normally be against secrecy in decision-making and in favour of providing reasons for decisions. No doubt we often conceal that which may not stand up to closer scrutiny.”

Moles cites an example: “It was most helpful in the Rayney case to follow the judge’s reasoning which clearly explained the logical fallacy in the Crown’s case. So, despite the inclination to think he may have been guilty of the offence, anyone willing to sit down and follow the logical progression of the factual narrative would be required to accept the conclusion of the judge was correct.”

That kind of dissonance between what appears to be the case versus what IS the case is a powerful reason to examine the present system. It was in fact the Rayney case that got Mark Bowles thinking about the different models. “It’s not necessarily that one model or another is better or worse, but the transparency of having the reasons is appealing … and that they are then subject to scrutiny as to their logic.”

“On the other hand,” adds Moles, “I have come across cases where the judge’s assessment of the ‘facts’ of a case have been outrageously disadvantageous, albeit in a civil case where the disadvantaged party was a woman – Diprose v Louth. Judges as well as people making up a jury panel can be subject to cognitive bias, or to forming unsubstantiated opinions.”

As notably demonstrated in the case of Cardinal George Pell, the courts put much effort into suppressing information that could prejudice a jury. But not always successfully, as Moles recalls one instance.

“I was once asked by a judge to remove a copy of a law report of the overturning of a conviction from my website because the person was to face a retrial. I asked the judge if he was going to seek the removal of the press reports of that decision. He said that he could not do that. I pointed out that it seemed to make little sense to remove the only reliable account of the decision and to leave in place other incomplete and possibly partial accounts of it. He agreed, but said what else could he do?”

Former Deputy Senior Crown Prosecutor (NSW) Margaret Cunneen SC, now a barrister in private practice and experiencing the role of defence counsel tends to favour the jury model. “The great strength of juries is that individual prejudices (from which judges are not immune) are leavened out between 12 diverse people. The jury is also more broadly reflective of community standards. And acquittal by a jury has the authority of the final word,” she says.

Professor Felicity Gerry QC of Deakin University, writing in The Conversation, also sees juries as community representatives: “In cases where the public has a vested interest and the verdict could lead to a life-changing punishment, it is vital the community decides on a person’s guilt or innocence – and not a privileged professional. Because criminal cases focus so much on people and their behaviours, there is a real value in the role members of the community play when they answer the call for public service on a jury.”

But advocating that “Instead of changing to judge-only trials, perhaps what is really needed is a more fundamental recognition of the disadvantages and vulnerabilities that many people face in the criminal justice system. If this is something we’re committed to addressing, then verdicts that affect someone’s life should always come down to more than one person.”

Attractive as that argument is, the make up of randomly chosen juries remains vulnerable to the combination of forensic testimony and its presentation. No jury can do justice (as it were) to scientific evidence it doesn’t really understand.

And then there is the ‘combination model’. “Perhaps we can be more imaginative,” Moles suggests. “In the European system, the judge sits with the jury so we have a combined panel. Experts may only be questioned by the judge and they are indeed called by the judge and not the prosecution or defence.” That is certainly an attractive idea, especially if the judge has had some grounding in forensic evidence – not just the well known branches, but new ones such as forensic transcription.

trained judges

Before Walkley Award winning journalist and legal historian Evan Whitton died (5 March 1928 – 16 July 2018), I had the good fortune to exchange a few notes with him about miscarriages of justice. He had written the acerbic book, Our Corrupt Legal System, whose title reflects his views about it and traces the development of our legal system through the ages. Whitton makes reference to the distinction between our adversarial system – which seeks convictions, and the European investigative system, which seeks the truth and is conducted by trained judges. (Trained judges! Now there’s an idea! #)

There are several elements to consider in any comparison between jury trials and judge only trials, not least the ‘audience’. The jury is a very different audience to a judge. Juries are influenced by many aspects of presentation by counsel, from theatrics to emotions. Judges are more likely to be annoyed by such presentations, preferring to hear legal precedents and hard evidence that complies with the law. But of course, neither model is guaranteed free from bias and misunderstandings. But if reasons are required to be given, as with judges, juries would be more likely to formulate rational verdicts.

Sydney lawyer John Marsden (1942-2006) admitted in I Am What I Am (Viking, 2004) that he used a false consent defence to get Ivan Milat off rape in 1974:

“Then I put to her something that has haunted me to this day … I suggested that her sexuality might have had something to do with what had occurred with Ivan Milat. Crying and under stress, she ended up agreeing – and in that moment I knew we had won … we had put into their [jurors] minds that the sex may indeed have been consensual … I am not proud of my conduct that day, but … I had to act according to the ethics of the profession… I had a job to do and I did it. “

Milat went on to rape and murder seven young backpackers from, variously, Germany, England and Australia, in circumstances similar to the 1974 case. He was found guilty of the murders and sent down for life in 1996.

Would Marsden have done the same thing and in the same manner in a judge alone trial?

Perhaps the biggest and most complex issue in the comparison is the vastly increased scientific material that juries (and judges) have to assess as part of their deliberations. In the early years of the jury system, very little scientific evidence was presented in court – certainly nothing in comparison to what major advances in forensic and other relevant sciences has produced, from hair analysis to DNA. While it would be feasible to provide Forensic 101 training to judges, that is not a practical option for juries.

“Clearly on complex technical issues,” says Moles, “it may well be the case that non-specialised jury members may not be able to follow the technicalities and therefore will reach an unbalanced view of the case. There may be ways in which we can consider the presentation of evidence to make it more comprehensible to jurors. Eliciting complex evidence by question and answer may make the narrative incomprehensible, so we should look to other ways in which the information can be provided to the jury.”

Perhaps juries could be given a formal opportunity to ask for clarification of aspects of their testimony from expert witnesses, through the judge. That might help the judge, too.

In Sue Neill-Fraser’s case, Mark Bowles would be right in thinking that had it been a judge alone trial, the prosecution could not have so freely put forward such a barrage of speculation without supporting evidence … mind you, there was a judge presiding at trial, he just didn’t challenge the DPP. Perhaps they both need more training in the rules?

# For example, the National Judicial College of Australia offers a Jury Management program over one and a half days in Canberra, May 6-7, 2021.

EDITOR’S NOTE: Members of the legal profession are invited to comment, with a request for their identity to be not disclosed if they wish.

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14 Responses to Juries or Judges – or both?

  1. Garry Stannus says:

    If it ain’t broke, why fix it?

    What a topic – juries, judges or both! And what a timely article. The several questions …

    – reasons for jury decisions never being known
    -judges offering reasons, though able to cloud them in glib-speak … (e.g.Blow J not seeing that the recall of Vass at trial was warranted).
    -the prejudice of a single person in a jury of twelve being perhaps likely able to be evened out, while an instance of a lone (hypothetical) judge bringing personal (and non-disclosed?) prejudice to a decision not involving a jury… not so?
    -community members (juries) being the final arbiters of the facts, not the judges…

    …and so forth.

    What if the jury were permitted – just as a judge is – to ask questions of those giving evidence? If we wanted to have an empowered jury system, perhaps jurors might be allowed to ask questions which – it seems – counsel may not ask because of tortuous rules on ‘leading’, cross-examination’ etc.

    I feel as if the public … the ‘community’ … the jurors … are treated as the ‘hoi polloi’, the lumpen proletariat and are brought into a court of ‘bread and circuses’ to supply credibility to the legal processes associated with serious crime.

    But what if we had ‘grand juries’ with the authority – not just of deciding on whether to bring trials to the courts, but of having an authority (like a judge) in over-seeing the conduct of trials for serious offences, or being at least able to ask questions of the witnesses about the evidence being presented?

    There are many live issues seen in Andrew’s article. For those who have just under an hour available to sit and to isten to a Radio National’s ‘Big Ideas’ recent presentation, [‘The political jury’ … https://www.abc.net.au/radionational/programs/bigideas/the-political-jury/13256274 ] I would suggest that this RN broadcast seems to cover pertinent ground.

    I only heard the last ten minutes or so of the program, and will go back to the start and press ‘play’. I suppose that I was lucky … but the last ten minutes was rivetting. If you don’t have the time for the full program, then why not sneak in 10 minutes before the end?

    Best wishes.

  2. Peter Gill says:

    In Sue’s case, if the Judge who oversaw the trial made the decision at the trial, my guess based on some of his inappropriate actions (eg not recalling Meaghan, allowing wrench evidence) is he would have found Sue guilty, despite the evidence strongly indicating that he should not. He would then have written his reasons, which the defence would examine very closely for the appeal. The appeal Judges might then have to decide whether to overrule their new boss, and even though most people (Judges included) say they thought it through independently and made a fair decision with no conflict of interest, such people don’t fully understand how their own brains work. They suffer from bias even when they try not to.

    It’s quite possible, not having the additional information the world now has and which the prosecution fairly successfully but unfairly in 2021 was negating in court with dubious tactics, that Sue would have lost the appeal. And we’d still be in the same mess. Even if a judge-only trial had occurred, the choice of “judge only” being justified by the massive media coverage pre-trial, I think the shame which the Tasmanian legal system has brought on itself by spending big to justify their past errors (not recalling Meghan a decade ago, the wrench etc) would still have happened.

    So – while judge alone vs majority (11-1) jury decision vs unanimous jury decisions is an interesting topic, I don’t think it’s a major factor in what went wrong in Sue’s endless saga.

  3. owen allen says:

    OK, I do not think there is much more I can say until the Federal Royal Commission Tasmania, takes place, but I will continue to monitor and contribute when plausible.
    My thoughts will always be with Sue, in Risdon Prison and her family, and all her supporters.
    Stay strong.
    United We Stand Divided We Beg.
    Thanks for your help to me.

  4. owen allen says:

    For every perjurer, or anyone, and everyone that is found guilty of perverting the course of justice in the wrongful conviction of Sue Neill-Fraser, and we know who most of them are, should do the same time in prison as Sue when she gets released.
    They make me sick, I know how they work, I have looked them in the face, and I told them F off, and everyone follows on collectively promising one another, I will never give you up, they lie and lie and lie.
    And why do I get so angry. Because we have to stop it before it gets worse and history repeats itself.

  5. John Biggs says:

    The most powerful argument against juries is exactly what happened in the Neill-Fraser case. I agree: what important information would be yielded by asking the jurors’ reasons for their decision! What most heavily influenced them? The behaviour of the DPP, they not knowing he was (edited)? But had the case been determined by the then Judge I doubt the outcome would have been different, for he backed up the false allegations made by the DPP. Yes, juries can balance out biases — in an ideal world. So the European compromise of using both judge and jury, with the aim of getting at the truth, is just so obviously the way to go. The alternative, two highly paid actors (for that is what they are) with the aim of one of them besting the other, is simply ludicrous, when you step back and look at it. The conviction of Neill-Fraser and thousands of other miscarriages of justice are obvious consequences of the illogical and nasty adversarial system that we currently have. It obviously must change but I can’t see that happening when the beneficiaries of the system have so much power in preventing that change.

    • Robert Greenshields says:

      You are correct in stating that the now beneficiaries of the system will want to maintain the status quo John, and, given that sad predicament, possibly the only conduit that could be reliably utilised is a chemical intervention/truth drug. Imagine the guffaws from the boffins in legal circles if a chemically induced decision was legalised, and made law. Forget polygraphs and supposed truth extorting coppers, forget the legal eagles misusing humanity to exploit the millions from criminal enterprises, forget the now distinct stratification that infests the plod, legal and judicial communities, and cut straight to the case. Psychoactive drugs/truth serum would dispose of the charlatans from both sides of the legal equation, in a heart beat. Imagine the resources that would save John, no more deceit from supposed credible policing officers, and no more show ponies financing lives of luxury, mansions and cocaine fueled parties off the backs of the exploited, and a direct assault upon the criminal elements of organised enterprises.

      • Emma Yukov says:

        (Your comment is rejected as your email address could not be validated. If you wish to resend it, please use a valid email address. Moderator.)

        • Robert Greenshields says:

          Thank you Emma; and, given those prosecuting the suggestible, reconstructed and fabricated case against Sue Neil Fraser, are expected to be believed to be manifestly clear thinking, exponents of truth, justice, and honesty? I do not think so. Time, I believe, will eventually expose to the gullible populations, an effective truth drug that will in turn be the catalyst to the culling of the obviously flawed ancient jury processes and judicial system. The question at this time of what has motivated, and enabled how that dynamic motivation could be even a potential contender, cementing what could only be described as such an abominable, (abnormally selective and excessive), misuse of mind numbing administrative authority, needs to be investigated independently, by others who are beyond manipulating, deceitful, policing forces, possible or probable ancient chiseling fraternities, selective religious influences, and political associates.

          • Garry Stannus says:

            I was first reminded, Robert … reminded of Carlos Castaneda’s ‘the Teachings of Don Juan‘… a Yaqui pathway to knowledge. And then I thought of Pirsig’s ‘Zen and the Art of Motorcycle Maintenance‘. The point that I guess I took from these, is that there are differing perceptions of reality. whether they are assisted by peyote or not … or whether one is on the front-half or back-half of the motor bike seat/pillion. Actually, I might even have first thought of Anthony Burgess’s ‘A Clockwork Orange’

            While I knew of Kubrik’s film and had seen it, I knew nothing of Burgess. I recommend the Wiki entry for Burgess – it refers to the personal background that led Burgess to that work, now famous in film.

            I’d suggest, Robert, that my response to some sort of truth-serum proposal is best understood while listening to Gene Kelly, ‘Singing in the Rain‘. [ https://www.youtube.com/watch?v=Q5yoDpAb7V4 ] … best understood once listeners recall that the song is used to express the triumph of the violent criminal over the chemical means utilised by the authorities to suppress his vicious self.

            Maybe there will never be a chemical psycho-therapy which works … LSD was used on a friend as a counter to her alcholism … legally in the 70s … then she started ‘tuning in, tripping out’. Recently, on the ABC’s RN, I heard again that psychedelic drugs are again a point of interest … used to treat anxiety and depression.

            Me? I’m sticking to the Roman truth serum … ‘in vino veritas’, yet beware (‘caveat lector’) … one can even dissimulate while over a glass of red.

            -My best wishes, Garry.

          • Robert Greenshields says:

            Thank you Garry, I’m grateful to you for taking the time to share in my wave length and creative, visionary development. Though I am unsure about your intentions behind including a saturated, probably orange “sou’wester” wearing motorcycle enthusiast, seemingly running late, and concerned about his bikes lack of regular necessary maintenance, but, obviously you have your reasons. I have long thought that Sue has an eclectic group of thinking supporters who believe a great injustice has been her terrible misfortune, and share, emotionally, in the adversity she confronts on a daily basis, no matter how they express it.

  6. owen allen says:

    Bring on a Federal Royal Commission Tasmania.
    This is an URGENT ALERT.
    att PM Scott Morrison and ACIC Michael Phelan.

  7. owen allen says:

    Apart from threat factor which could occur anywhere with trials of certain types;
    I will be as bold to say unfortunately, Tasmanian society is accepted as being close knit.
    That is everybody knows somebody who is related to, that knows somebody else,
    Gossip, whispers, slander and general chit chat spread through out the island from north to south and east to west. This just a small island fact.
    So therefore any local jurist may have an opinion false or not before trial takes place.
    Now we know gossip and unprovable verbal accusations were made about Sue Neill-Fraser. Character assassination is real, and easy down there, and narcissists participate for their own weird reasons.

  8. Lola Moth says:

    I have gone off juries because of the very real threats the members experience when dealing with cases involving people with an extensive array of criminal associates. It is so easy to get a jury to acquit by just letting a couple of the members know they are being watched.

    The case I was caught up in went through 1000 potential jurors before finding 12 people who were brave enough, or stupid enough, to put their lives on the line in the name of justice.

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