A trial by jury, where the jurors are chosen at random, has a long history. Introduced in England a thousand years ago, its origins trace back to ancient Greece. As the British Empire grew in the 17th and 18th centuries, trial by jury spread throughout the world.

Today, trial by jury is the cornerstone of our justice system. A jury trial involves twelve people being picked at random from a large group of citizens to hear evidence in court. The jury then retires to deliberate in secrecy and determine the guilt or innocence of the accused.

While Commonwealth law requires unanimous verdicts, under the NSW Jury Act 1977, courts in NSW allow an 11 to 1 decision.

How are members of a jury selected?

It is important to remember that jurors are 12 ordinary people drawn randomly from all walks of life and placed together to weigh the evidence in a trial that can last for weeks.

People who have some knowledge of the law and the way courts operate are generally excluded from jury duty. These can include lawyers, politicians, law enforcement officers, convicted criminals, those facing court action, undischarged bankrupts and clergy.

If people have caring duties, health problems or work commitments, they can ask to be excused. You can read more about jury service in NSW on the Juror website or on the Judicial Commission of New South Wales website.

Determining guilt or innocence can be difficult

Of course, the jury system is not perfect. Juries can be influenced by many things, such as the appearance of the accused, shock at gruesome evidence, or the demeanour of the barristers or judge.

Jurors may also be prejudiced or have personal gripes. They may simply want to get out of the jury room quickly. These are all factors that can come into play, beyond the evidence produced in court.

How are jury verdicts reached?

How juries reach a verdict is never made public. But there have been accounts of bossy behaviour inside the jury room in an attempt to reach a certain verdict. Jurors can also be stubborn and stick to their opinion, despite all the evidence.

Many of us would have seen the 1957 classic jury room movie Twelve Angry Men, which exposes the various motives and prejudices of jurors. In the film, one of the jurors, played by Henry Fonda, decides to do his own out-of-court detective work. In Australia, this action would result in an instantly aborted trial, and possible charges being brought against the character played by Fonda.

Juries can only consider their verdict on what is presented in court and instructions from the judge. They must never do their own research.

Trial by jury or judge - which is better?

Statistics show defendants are more likely to be found not guilty by a judge than a jury. The Bureau of Crime Statistics examined NSW trials between 1993 and 2011 and found defendants were acquitted 55.4 per cent of the time in a judge alone trial, compared to 29 per cent in a jury trial.

The Bureau also found one in six jury trials in NSW District Courts end with a hung jury or with the judge aborting the trial - often because of a misdeed by a jury member, such as searching the internet about the case or conducting their own investigations.

Not all trials decided by jury in Australia

While most criminal trials in the District or Supreme Court do involve a jury, it is possible in some circumstances to have a judge alone decide the verdict.

The accused can request a trial by a judge alone, and under section 132 of the NSW Criminal Procedure Act 1986, the court is empowered to order a judge alone trial without the accused's consent in certain circumstances.

A judge alone trial may be ordered if complex issues of law need to be weighed, which the judge feels might not be readily understood by a jury. Also, in cases where there has been a lot of publicity, a judge is considered to be less likely to be influenced by what happens outside the court room.

If you are facing a charge and are likely to go to court, it would be wise to get legal advice on how best to proceed. Opting for a jury or judge alone trial would be just one of the many factors you will need to consider.

John Gooley
Criminal law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.