Judge, Jury and Executioner?
August 18th 2008 22:54
How does this sound? You’re a notorious criminal, hounded everywhere you go by the media and members of the public that don’t want you anywhere near their town. You are awaiting trial with no hope of being found innocent because you have already been weighed and measured in the public forum and found guilty as charged. What do you do? Do you just live with it and come to terms with your fate? No, not in Queensland.
Yesterday Queensland Premier Anna Bligh launched the most comprehensive over-haul of the judicial system in a good number of years. Along with bringing the state in line with its counterparts by allowing majority jury decisions to avoid the situation of a hung jury, she also made the considerably more activist move to institute a system of ‘judge-only’ trials. It’s what many in the know say is a direct response to the ground swell of high profile Queensland crimes that have proved a headache for the judicial system. In the past few years it has been a concern that when crimes are well-known in the media it may serve to bias potential jurors against the people involved. It’s for this reason that there are subjudice laws in the media but journalists are crafty beasts: they can get around these things with a bit of practice. That’s how we know the names of Dennis Ferguson, Jayant Patel, Chris Hurley... When these names are splashed across the front page on a daily basis, there is almost no hope to find an unbiased jury to adjudicate the case. Enter the ‘judge-only’ trial. Under this premise, when one of the parties to the case applies for a judge-only trial, and the accused agrees to forfeit his right to be tried by a jury of his or her peers, the case would be presented in front of a judge who would decide the fate of the accused, supposedly on the legal merits of the case.
The question is who is this fair to? The entire premise of being judged by a jury of your peers is that they see the evidence, they listen to the arguments for and against and they decide of the logical merits of the case. It also is made up of twelve normal people who can debate the case and form a united front to make a judgement. As they say, twelve heads are better than one. Even one that one head is a respected legal mind. I’m not one to rail against injustices against the accused, but this may go a little far. The fate of prisoners is put in the hands of one single man, supposedly for him to judge fairly and without prejudice. A person’s life is put in the hand of one mind, one man, one judge. It really destroys the ages-old premise that one cannot be judge, jury and executioner. Apparently, you can straddle that divide. When it comes to it, a judge is still a man. A judge still reads the papers. A judge can still be biased on some level and it’s irresponsible to pretend otherwise. When you put the fate of a person in the hands of one person to decide guilt and innocence and then impose sentencing you stray very close to the edge of totalitarianism.
On the other hand, how is it fair on the victims? Judges are trained to think in legal terms, in terms of protocol and technicality. Many a person has been correctly convicted of a crime by a jury that a judge would not have done based on a legal technicality that amounts to nothing in the mind of the juror but is everything to someone behind the bench. How many guilty people will walk the streets because a judge has clung too close to courthouse technicalities? How many accused will apply for a judge-only trial because, after all, in a jury trial you have to convince twelve people and with a judge you have to convince but one? Is it going to be the easy option for people like Jayant Patel, who knows for certain that it is unlikely he will ever be found not guilty by a jury of his peers? Just count down the hours until his lawyers put their hand up and apply to be the first in line to use the new practice. In the same way it can be unfair to the accused, it can be a blessing in disguise.
What this all stems from is the media and its ability to subvert subjudice laws and report the identity of accused criminals before they go to trial. What the Queensland Government has to look at is tightening up subjudice laws to prevent the media from poisoning trials, not changing the entire nature of judicial equity with a piece of legislation that pokes hole after hole in the net that was built to catch the guilty and set the innocent free.
Or at least nine times out of ten it does.
Yesterday Queensland Premier Anna Bligh launched the most comprehensive over-haul of the judicial system in a good number of years. Along with bringing the state in line with its counterparts by allowing majority jury decisions to avoid the situation of a hung jury, she also made the considerably more activist move to institute a system of ‘judge-only’ trials. It’s what many in the know say is a direct response to the ground swell of high profile Queensland crimes that have proved a headache for the judicial system. In the past few years it has been a concern that when crimes are well-known in the media it may serve to bias potential jurors against the people involved. It’s for this reason that there are subjudice laws in the media but journalists are crafty beasts: they can get around these things with a bit of practice. That’s how we know the names of Dennis Ferguson, Jayant Patel, Chris Hurley... When these names are splashed across the front page on a daily basis, there is almost no hope to find an unbiased jury to adjudicate the case. Enter the ‘judge-only’ trial. Under this premise, when one of the parties to the case applies for a judge-only trial, and the accused agrees to forfeit his right to be tried by a jury of his or her peers, the case would be presented in front of a judge who would decide the fate of the accused, supposedly on the legal merits of the case.
The question is who is this fair to? The entire premise of being judged by a jury of your peers is that they see the evidence, they listen to the arguments for and against and they decide of the logical merits of the case. It also is made up of twelve normal people who can debate the case and form a united front to make a judgement. As they say, twelve heads are better than one. Even one that one head is a respected legal mind. I’m not one to rail against injustices against the accused, but this may go a little far. The fate of prisoners is put in the hands of one single man, supposedly for him to judge fairly and without prejudice. A person’s life is put in the hand of one mind, one man, one judge. It really destroys the ages-old premise that one cannot be judge, jury and executioner. Apparently, you can straddle that divide. When it comes to it, a judge is still a man. A judge still reads the papers. A judge can still be biased on some level and it’s irresponsible to pretend otherwise. When you put the fate of a person in the hands of one person to decide guilt and innocence and then impose sentencing you stray very close to the edge of totalitarianism.
On the other hand, how is it fair on the victims? Judges are trained to think in legal terms, in terms of protocol and technicality. Many a person has been correctly convicted of a crime by a jury that a judge would not have done based on a legal technicality that amounts to nothing in the mind of the juror but is everything to someone behind the bench. How many guilty people will walk the streets because a judge has clung too close to courthouse technicalities? How many accused will apply for a judge-only trial because, after all, in a jury trial you have to convince twelve people and with a judge you have to convince but one? Is it going to be the easy option for people like Jayant Patel, who knows for certain that it is unlikely he will ever be found not guilty by a jury of his peers? Just count down the hours until his lawyers put their hand up and apply to be the first in line to use the new practice. In the same way it can be unfair to the accused, it can be a blessing in disguise.
What this all stems from is the media and its ability to subvert subjudice laws and report the identity of accused criminals before they go to trial. What the Queensland Government has to look at is tightening up subjudice laws to prevent the media from poisoning trials, not changing the entire nature of judicial equity with a piece of legislation that pokes hole after hole in the net that was built to catch the guilty and set the innocent free.
Or at least nine times out of ten it does.
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