CHIEF Justice (NSW) Jim Spigelman, 59, (pictured above) has lately been stroking his learned beard on the vexed matter of the jury system. In a mercifully briefish — 3,353 words — address to solicitors trapped at the trough on January 31, he said:

“[The jury system] does more to ensure the maintenance of a high level of trust and confidence in the administration of justice than, perhaps, any other single factor.”

Why is that sort of drivel so dispiriting? Probably because Jim actually believes it. The fact is that the administration of justice does not enjoy a high level of trust for any number of reasons. Two are:

1. Justice is perverted in more than 50 percent of major cases because its administrators do not let jurors hear all the relevant evidence.

2. The jury system has been open to corruption since it was invented in 1166 because jurors have never had to give reasons, e.g. not guilty verdicts in favour of O.J. Simpson, LA cops who flogged Rodney King on camera, and a Dubbo heifer-rustler.

A Melbourne barrister, Aubrey Gillespie-Jones, reported the Dubbo verdict in The Lawyer Who Laughed (Century Hutchinson, 1978):
Associate:  “Do you find the accused guilty or not guilty of cattle-stealing?”

Foreman:  “Not guilty, if he returns the cows.”

Judge: “You swore you would try the issue between our Sovereign Lady the Queen and the accused, and find a true verdict according to the evidence. Go out and reconsider your verdict.”

Associate: “Have you decided on your verdict?”

Foreman: “Yes, we have. We find the accused not guilty, and he doesn’t have to return the cows.”

Jim’s remarks are doubly distressing because he was the very model of Atticus Finch when he was at Sydney University’s legal trade school. Forty years ago last week, he and other gallant Freedom Omnibus Riders asked the Walgett (692 km north-west of Sydney, pop. 2,000) Returned Servicepersons’ League a pregnant question: If their black brothers were good enough to fight at Tobruk on behalf of His Britannic Majesty, why were they not good enough to be members of the RSL?

Martyrs to their cause Jim & Co were, of course, run out of town.

At the solicitors’ union dinner Jim also said confidence might be further enhanced if the judge had a chat with jurors before he delivered his sentence. He proposed:

“… an in-camera consultation process, protected by secrecy provisions, by which the trial judge discusses relevant issues with the jury after evidence and submissions on sentence and prior to determining sentence.”

I’m not sure what that would achieve other than giving jurors the exciting prospect of a share in public opprobrium for judges’ dud sentences, but it is a tiny step in the direction of real justice, i.e. truth, fairness, morality.

And if the old Freedom Rider is of a mind to take a larger step, he will put jurors on the bench with the judge, and have them both decide verdict and penalty and give their reasons, as they do in the disdained Continental system.

Such a step would sharply diminish juror corruption, and the knock-on effect would amaze citizens in the habitually unjust common law world. Judges would be able to privately advise jurors on weight (as they did before the herpetoid takeover 200 years ago), and that would allow the abolition of the rules for concealing evidence, and double the conviction rate for major criminals. 

The fact that trial lawyers would resist any such demarche raises questions of grave importance: when and why do they lose their love of justice?

Please say it ain’t the money.

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February 21, 2005  


Evan Whitton says …

Freedom Rider Spigelman should blaze a trail with juries