Many Australians think that if they are accused of a crime, they have a right to a trial by jury. They are therefore shocked when they only appear before a judge, and are encouraged to plead guilty/admit to the charges, without the option of a jury. It feels like being rail-roaded. Research indicates that judges who are regularly called upon to hear criminal prosecutions without juries become 'case-hardened' and prosecution-minded, according to "Trial by Jury" by Graham Fricke, of which we reproduce the first part here. As far as we know, not much has changed since this article first appeared in the Australian Parliamentary Library - in 1996, going by this more recent Victorian Law Reform Commission article on the subject.
Trial by Jury - Research Paper 11 1996-97 - by Graham Fricke - Published by the Parliamentary Library of Australia
When federal Parliament creates criminal offences, the question arises as to whether such offences should be tried by judge and jury, or tried summarily by a magistrate. The framers of the Australian Constitution inserted section 80, which appears to confer a right to jury trial.
A difficulty results from the use of the words 'on indictment' in the opening words of section 80. This has at times resulted in a narrow construction of the section, for the High Court has said that it is only when prosecutions are brought 'on indictment' that the right to jury trial arises; where Parliament has authorised summary proceedings, and summary proceedings are brought, the right to jury trial is avoided.
It is contended that there have been three eras of interpretation of section 80:
an initial period in which the section was regarded as laying down a fundamental law of the Commonwealth;
a much longer period in which a narrow, 'procedural' approach was taken; and
the last decade, which reveals a tendency to revert to the broad approach.
The broad approach, which is necessary if citizens facing substantial liability to imprisonment are to enjoy a genuine right to jury trial, was also supported by prominent judges in dissenting judgments during the second period.
The fact that the narrow approach has been taken makes it important for federal parliamentarians to be vigilant in legislating for criminal offences and the mode of trial of such offences. Where offences are made subject to substantial periods of imprisonment, the legislation should make it clear that the trials should take place on indictment. If summary trial is provided for, the accused will be deprived of an important benefit which some, at least, of the framers of the Constitution intended the accused to enjoy.
Many of the sections of the Crimes Act 1914 (Cth) do not make it clear whether the offences it creates are triable by jury or summarily. Guidelines are provided by sections 4G, 4H and 4J. Section 4G, for example, provides that federal offences punishable by imprisonment for a period exceeding 12 months are indictable offences, but it adds the words 'unless the contrary intention appears'. This may leave the situation in an unfortunate state of uncertainty. Other federal legislation authorises summary proceedings even though substantial terms of imprisonment may be imposed.
It is suggested that federal Parliament should enact that the trial of any federal offence providing for punishment in excess of one year's imprisonment shall be on indictment. This enactment, taken in conjunction with section 80 of the Constitution, would result in an effective guarantee of trial by jury for serious offences.
Arguably Parliamentary Committees should play a greater role in scrutinising laws to ensure that summary trial is not available for serious offences.
Stronger protection of a right to trial by jury for serious offences, even if that right could be waived by the accused, would facilitate the democratic participation of the community in the administration of justice. This in turn would strengthen public confidence in the legitimacy of the Australian criminal justice system.
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