Editorial: Good case to reduce the use of juries

Opinion

Defence lawyers have, understandably, been the most strident critics of the Justice Minister's wish to raise the threshold for defendants who want to be tried by a jury. Simon Power, himself, suggested one reason for this when he noted a "badly incentivised" system that encouraged lawyers to milk legal aid. This exploitation, he said, was achieved through repeat court appearances on issues that should be dealt with at the first appearance. Yet defence lawyers have an even more fundamental reason for backing the continued right to a jury trial if an offence is punishable by at least three months' jail. Most undoubtedly consider they have a much better chance of swaying a jury to get a favourable verdict than gaining the same result from a single unblinking judge.

Indeed, a higher standard of judgment and swifter justice would be the biggest benefits if the threshold for a jury trial was raised to a three-year jail term. Judges are far less susceptible to the emotional gambits that defence lawyers use on juries. This is not because judges have become "cynical" during their years as lawyers, as defence lawyer Gary Gotlieb maintains. It is because they should be able to use their experience and expertise to determine the factual or legal issues of a case and arrive at a clear-headed verdict. That same characteristic should also allow cases tried by judges to run far more quickly and efficiently, prompting the cost savings stressed by Mr Power.

The Justice Minister has also been keen to emphasise that justice delayed is justice denied. About 1700 people are on remand at any one time awaiting a jury trial, and there is a 12-month delay in the District Court and 16 months in the High Court. Mr Power says trial times would be halved by his proposed threshold, reducing the trauma for victims and backlogs in the overloaded courts. It is easy to see how proceedings would speed up. Judge-only trials would not, for example, be delayed by the time taken to select jurors and the need to school them in legal aspects of a case, or be subject to the often lengthy period taken to arrive at a verdict.

Those opposing Mr Power's plan will point to the long tradition of people being able to elect to be tried by 12 jurors for even relatively minor crimes. They will maintain this fundamental right must take precedence over swifter justice. This argument was, however, severely undermined by a 2004 Law Commission report that argued the threshold should be lifted to as much as a five-year jail term. Continuing with so many costly jury trials put this country out of step with other nations, the commission said. Canada has a five-year threshold, while Australia and Britain have the three-year mark favoured by the Justice Minister.

The Law Commission report recommended a radical overhaul of the court system predicated on the view that the justice system was failing. It suggested that district courts should be replaced by primary criminal and civil courts, with community courts for less serious criminal offending. Its recommendations fell largely on deaf ears. It is commendable that Mr Power has now revived the thrust of one of the reforms that can be most readily introduced.

The delivery of justice will always be a balancing act. Compromises must be made. Five years ago, the Law Commission painted a picture of a justice system in disrepair. Nothing much has changed. Justice delayed has become a given. The system is out of balance. Those defence lawyers concerned about a rise in the jury threshold speak with varying degrees of self-interest. For the wider community, a lifting of that threshold, and the delivery of quicker and better justice, are a welcome prospect.