The concept of a fair trial permeates every level of the criminal justice system
and manifestsitself in every aspect of our practice and procedure, including the laws of evidence.
Indeed,the principle of fairness is an overriding one. Baragwanath J stated that “a fair trial trumpsall”
and Deane J observed“…it is desirable that the requirement of fairness be separately identified since ittranscends the content of more particularized legal rules and principles and providesthe ultimate rationale and touchstone of the rules and practices which the commonlaw requires to be observed in the administration of the substantive criminal law.”
The jury fulfils an essential function in the trial process that permeates Anglo-American jurisprudence, especially in the area of establishing criminal liability. In 1998 the NewZealand Law Commission identified the main functions of the jury in the criminal trial as:“to act as
the conscience of the community;
a safeguard against arbitrary or oppressive government;
an institution which legitimises the criminal justice system; and
an educative institution”
Within the context of this paper, the fact-finding role of the jury is probably of the greatestsignificance.
The jury is assumed to be a competent fact-finder, able to sift through theevidence, understand it, weigh it up, assess the credibility of witnesses, and apply the law tothe facts.
Juries are also assumed to have the advantages of diversity of life experiences and viewpoints(a collective “common sense”), the collective recall of 12 individuals, and a democratic
Although this discussion will focus upon the criminal trial the issue of a fair trial is no less important to thecivil trial.
J.J. Spigelman “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29.
R v B
Dietrich v R
(1992) 177 CLR 292 at 326 – for similar statements see also p.330 . See also
McKinney v R
(1991) 171 CLR 468, 478;
Jago v District Court of New South Wales
(1989) 168 CLR 23.
Juries in Criminal Trials – Part One”
(Law Commission, Wellington 1998) p. 12. See also R v Sherratt(1991) 63 CCC (3d) 193, 203 per L’Heureux-Dube J for the majority: “These rationales or functions of the jurycontinue to inform the development of the jury and our interpretation of legislation governing the selection of individual jurors”. See also, for example, Devlin,
Trial by Jury
(Methuen, London, 1966),148–165; Parliamentof Victoria Law Reform Committee,
Jury Service in Victoria
(Issues Paper 2, November 1995), paras 1.1–1.3,1.19–1.20; Findlay and Duff (eds),
The Jury Under Attack
(Butterworths, London, 1988) for critical analyses of these functions by various authors; and
Taylor v Louisiana
419 US 522,530 (1975): “The purpose of the jury isto guard against the exercise of arbitrary power – to make available the commonsense judgment of thecommunity as a hedge against the overzealous or mistaken prosecutor and in preference to the professional orperhaps over-conditioned or biased response of a judge. . . . Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to publicconfidence in the fairness of the criminal justice system.”
Juries in Criminal Trials – Part One
Jury Management in New South Wales
(Australian Institute of Judicial Administration CarltonSouth, Vic. 1994) p. 13.