The merit in retaining Judge alone trials in Victoria
The discharge of a jury in a recent high profile rape trial in the Supreme Court of the ACT has served to highlight the limitations of criminal trials by jury.
The case has raised questions about the efficacy of judicial directions in some criminal jury trials, the importance of retaining the option of judge alone trials in high-profile and complex cases in Victoria, and the need for vigilance with respect to the careful and appropriate reporting of criminal cases by the media.
The right to a fair trial
A person charged with a crime is entitled to a fair trial. A person charged with a criminal offence is innocent until proven guilty. The responsibility of proving a person's guilt beyond reasonable doubt rests only with the prosecutor as a representative of the state.
A person charged with a crime has a right to silence. No adverse inference can be drawn against the interests of a person charged with a crime if they decline to participate in a record of interview or give evidence at a criminal trial.
It has been sensationally reported that the complainant in the high-profile rape trial in the ACT, Ms Brittany Higgins, criticised Mr Bruce Lehrmann's right to silence in circumstances where she was required to give evidence and be subject to cross-examination at trial. Ms Higgins is the complainant in the criminal rape trial. Our criminal justice system requires that a complainant gives evidence, in the form of a statement, and in person at a trial, to substantiate allegations that have been made. This is the only way in which allegations may be proved beyond reasonable doubt (or not at all).
These rights are fundamental rights afforded to every person in our community should they ever be charged with a criminal offence. It is the same process and procedure that applies in every single criminal trial by judge and jury, whatever the nature of the case, and no matter how high-profile the people involved may be.
It is inevitable that the fairness of a criminal trial will be jeopardised, particularly a trial by jury, when the media engages in unfettered speculation and extensive commentary with respect to a pending criminal trial.
In the case in the ACT, Mr Lehrmann's lawyers made an application for the trial not to proceed because of the extent of the media reporting in relation to the case. This was refused.
However, recent events, particularly the extent of the media reports and commentary in relation to the case following the discharge of the jury, may mean there is no possibility of a fair trial occurring at any time which cannot possibly be the preferred outcome for the complainant, the broader community, and notions of justice.
The right to trial by jury
The right to trial by a "jury of peers" or "fellow citizens" is a centuries old concept and a cornerstone of our criminal justice system.
The benefit of a jury of 12 randomly selected members of the public deciding the outcome of a criminal case has long been understood.1
- Trial by jury preserves the liberty of the individual against the power of the state.
- Direct broader community participation in the criminal justice system ensures justice is administered consistent with community standards.
- The outcome is decided by people who are impartial strangers without a vested interest in the outcome of the case.
- The outcome of a criminal trial by jury will be more readily accepted.
- The community participation maintains public confidence in the criminal justice system.
The principle has been recently restated by the Victorian Court of Appeal in an appeal about an application for a judge alone trial: "for centuries, the right to trial by jury has been understood and upheld, in this State, as a fundamental right of any person charged with an indictable criminal offence".2
The role of a jury in a criminal trial
Criminal trials are traditionally heard before a judge and a jury of 12 people.3 It is the role of the 12 jurors to decide the facts of the case and apply the law, as stated by the trial judge, to decide whether a person charged with a crime is guilty or not guilty. Given criminal jury trials are generally limited to serious and complex criminal offences, this is a weighty task.
The trial judge provides directions to the jury about the law as it applies to the evidence in the case before the jury deliberates and delivers a verdict in the trial. There are mandatory and discretionary directions based in the common law and contained in the Jury Directions Act 2015 (Vic).
At the final stages of a criminal trial, and in the absence of the jury, counsel for prosecution and defence are provided an opportunity to address the trial judge about directions that should be given before the trial judge then directs the jury. The manner in which a trial judge directs a jury can form the basis of an appeal in certain circumstances.
The efficacy of judicial directions
It is accepted that juries are capable of applying the law as directed by a trial judge, and that juries follow judicial directions. Indeed, the fairness of the criminal trial depends completely on the belief that juries listen to and obey the directions given by the trial judge.
However, the recent high-profile rape trial has proved this to be a fiction, particularly in cases that have received a significant amount of media attention. It has been reported that one of the juror's in the ACT rape trial accessed information that was not presented as evidence in court and brought this material into the jury room, presumably so that the information would form part of the jury's deliberations. The jury was promptly discharged by the trial judge.
Judicial directions have now been proven to be less effective in high-profile cases. The reality is that juries will and do conduct their own research, and for this reason there are cases that are most appropriately adjudicated by a judge alone. Judicial directions are not sufficient to guard against the risk this poses to the fairness of a trial by jury in difficult and complex criminal cases.
Offences pursuant to the Juries Act 2000
Jurors must decide the facts of the case based on the admissible evidence presented at trial and in accordance with the directions of the law stated by the trial judge.
In Victoria, the Juries Act 2000 expressly prohibits jurors from undertaking any research or investigation of their own outside the admissible evidence that forms part of the trial, and also forbids jurors from discussing the detail of confidential jury deliberations.
To state it simply, jurors are not permitted to inform themselves as to the issues in a criminal trial by any means outside the courtroom. Jurors cannot act as detectives or investigative journalists. Unlike ordinary members of the public, jurors must not read any related news media or information, or discuss any detail with family and friends, while empaneled on a jury in a criminal trial.
In Victoria, it is a criminal offence for a juror to make their own enquiries about trial matters at any stage of the trial.4 It is also a criminal offence to disclose statements made, opinions expressed, arguments advanced or votes case in the course of the deliberations of a jury, if the person has reason to believe that any of the information is likely to be or will be published to the public.5
The offences are not designed to deter people from serving on a jury, but rather give effect to the purpose of the Act and provide for the proper operation and administration of a system of trial by jury, specifically preventing jurors from accessing extraneous information during trial deliberations.6 If these rules are not adhered to the foundation of our criminal justice system, particularly the right to a fair trial, is undermined.
Discharging a jury
Counsel in a criminal trial may make an application to a trial judge to discharge a jury in certain circumstances. There are occasions (such as those most recently reported) when there is a "high degree of need for such discharge", to ensure a person charged with a crime receives a fair trial.7
Applications to discharge a jury can be made at any stage of a criminal trial. A judge may discharge a juror without discharging the whole jury.8 If a trial judge refuses to discharge a jury, the issue can be taken up on appeal.
In some criminal trials, discharging a jury is the only means by which the integrity of the criminal justice system may be preserved, and ensure that when a verdict is ultimately decided, the verdict is fair and lawful.
Trial by media, by jury or by judge alone?
There are a number of ways the issues raised by the recent high-profile rape trial may be addressed.
There has always been a tension between the need to safeguard the proper administration of justice, the right to a fair trial, freedom of expression, and the protection of a person's privacy and reputation. However, in a criminal trial, there ought to be a blanket ban on any publicity until such time as the jury returns a verdict of guilty or not guilty, and the appeal period has passed.
The difficulty created by online media can be addressed by parliament passing a law that any publication of a detail concerned with a pending criminal case is criminally liable. Alternatively, the present legislation in relation to suppression orders could be amended to become more broadly accessible.9
The option for judge alone trials must be retained in Victoria. There are particularly difficult and high-profile cases which are most suitably dealt with by a judge alone. Presently in Victoria, a person may make an application to be tried by judge alone if a number of pre-conditions are met including that it is "in the interests of justice".10 It is accepted that foregoing a trial by jury is a significant matter for a person charged with a crime, but as long as legal advice is properly provided, the option for a person to make this election must be preserved in Victoria.
It is telling that the ACT, WA, NSW, and QLD have all introduced legislation for judge alone trials some years ago, and freely accessible statistics published in NSW show that judge alone trials result in significant higher rates of acquittals.
Ultimately, these issues come back to the premise that justice must not only be done, but justice must be seen to be done.
1 Jury Empanelment: Report published by the
Victorian law Reform Commission 3 September 2014
2 McInnes v The Queen  VSCA 188 (2 September 2022) at  per Priest and Beach JJA
3 Juries Act 2000, section 22 (2). Sometimes more than 12 are selected, but only the verdicts of 12 are counted.
4 Juries Act 2000, s78A, maximum penalty of 120 penalty units
5 Juries Act 2000, s78, maximum penalty of 600 penalty units or imprisonment for 5 years.
6 Contempt of Court: Consultation Paper published by the Victorian Law Reform Commission May 2019
7 R. v. Boland  V.R. 849 at  per Adam, Little and McInerney, JJ
8 Juries Act 2000, s43
9 Open Courts Act 2013
10 Judge alone trials were introduced in Victoria as a temporary measure to deal with backlogs and other delays associated with COVID-19 efficiently and fairly by the introduction of the Justice Amendment (Trial by Judge Alone and Others Matters) Act 2022 which inserted the new Chapter 9 into the Criminal Procedure Act 2009.