ADVERSARIAL SYSTEM

News
Judge or jury? Your life depends on this decision
news.com.au, November 14 2013
Here are the top ten things you should know.

The judge or panel of judges

A person accused of a serious crime may opt for a judge only trial, or a bench trial
by a panel of judges if the case is complicated and dependent on complex
scientific or legal dogma.
“If the issues in the case are so technical they would be hard for a jury to
understand and with lots of expert witnesses, then the accused’s legal team or the
prosecution may opt for a judge only trial,” said Pauline Wright, chair of the NSW
Law Society’s Criminal Law Committee.
Another reason may be that the accused is unlikely to get a fair trial because the
case has been covered in the media and it would be in their interest to have a
judge only trial because otherwise there may be a retrial.
If the accused opposes it, and opts to be tried by a jury of his or her peers, then
the judge will allow a jury trial.
“In these circumstances, by their training a judge is less likely to be swayed by
what has been reported in the media,” Ms Wright said, although she warned a
judge “might be perceived as being elite” and less in touch with grassroots issues
and the community.
But eminent barrister, Ian Lloyd, QC, the former NSW Senior Crown Prosecutor,
told news.com.au that choosing a judge only trial can increase a guilty person’s
chance of acquittal in certain circumstances.
“If I have a really sound case at law, I’d want a judge,” Mr Lloyd said. “If I have a
case running on the vibe I’d want a jury.”

What does this paragraph talk about?

Influence of the media on a jury trial
How having a judge only /jury trial nay affect the outcome

A jury trial
It’s called a jury of your peers, 12 men and women chosen from the community.
They could be council rangers, homemakers, truck drivers, office workers, retirees,
students, or from a range of backgrounds and professions.
They will not be members of the clergy, medical practitioners, dentists and
pharmacists, fire, ambulance, rescue or other emergency services workers, who
are all exempt from jury duty.
They also shouldn’t be people with preconceived ideas about your case or about
justice, but the truth is very different.
In jury selection, both the prosecution and the defence get the chance to reject
candidates on the grounds they may be prejudiced against the accused.
Pauline Wright said jury trials were still “the preferred system” in all Australian
states and “this ensures community participation in the administration of criminal
law”.
It is “fundamental to the age old thing that our guilt or innocence is judged by our
peers rather than someone who might not be in touch with what the ordinary
community is thinking.”
But Ian Lloyd, QC, who has prosecuted prominent cases, including serial killer
Ivan Milat, said “most jurors won’t go into a court trial and say ‘I have looked this
up on the internet’.
“But they all go and look it up on the internet, of course they do.
“And juries are swayed by many different factors which are not always logical or
reasonable.”
Why do you think members of a jury cannot be members of the clergy, medical
practitioners, dentist or pharmacists, fire, ambulance, rescue or other emergency
service workers?
They have different priorities - there is an incident occurring, they can’t be at court.

Why may the prosecution and defence reject a candidate for the jury?
Because the person is not needed

Why do you think it is important to have community participation in the law?

Makes people have faith in the legal system, sense of responsibility

What sways juries

“Physical appearance, religious beliefs and race or ethnicity do sway juries,” said
Mr Lloyd, who now works in both Australia and Hong Kong as a defence barrister.
People of Middle Eastern background, members of bikie gangs and other groups
which have been identified in the media as being associated with crime will find it
hard to get a fair trial by jury.
“It may be unfair, but how people look and their ethnic background or religion is a
factor,” Mr Lloyd said.
“If you have a Lebanese Muslim client charged with drug manufacture, there’s
going to be a heavily weighted Anglo Saxon jury which will have little sympathy for
the defendant, or an in-built bias against such a person.”

What did Mr Lloyd claim? Do you agree? Why?

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Publicity and social media

Judges instruct juries not to read media coverage of a trial or take notice of gossip,
or to discuss the trial with people outside the jury room.
“I think that’s a big ask,” Ian Lloyd, QC, said.
“I think juries are instinctively going to read the media.
“It’s only natural for them to be inquisitive and we all know in reality this is what
they do, so you have to take that into account when making the choice between a
judge or jury trial.”

Explain why it is necessary for judges to instruct juries to avoid media coverage
etc of a trial.
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When to go for a judge only or bench trial – Case 1

When there is “any element of possible prejudice against your client because of
race or ethnicity, religious beliefs, or the nature of the crime”, opt for a judge only
trial, Ian Lloyd, QC, said.
“Anything which may engender intense public disapproval of your client, choose a
judge only.
“I make these decisions every day.
“Again if you have a person on a drug charge and they are of Lebanese
background, this is the choice you would make.”

Case 1 States -
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Judge only trial – Case 2

Ian Lloyd, QC, says if the prosecution had an “extremely weak” case against the
accused, then “for judge only” is the best choice.
“It may be a weak circumstantial case, or a case dependent on a single
identification witness,” he said.
“I have found over the years, the common experience is a judge is trained as a
lawyer and by his training and experience finds it relatively easy to decide whether
a person is guilty or not guilty beyond reasonable doubt.
“In the case of a jury trial, judges are almost excluded from explaining to juries
what reasonable doubt [means].
“Judges understand the phrase [juries] don’t.”

Case 2 States -
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When to go for a jury trial – Case 3

You may opt for a jury trial when your client has major public support or sympathy.
“Even if they are guilty, if they are well-known and liked and they clobbered or
killed someone,” Ian Lloyd said, “they are unlikely to be convicted because of their
status as a respected public figure.”

Case 3 States -
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Jury trial – Case 4

The other case in which a jury trial is the best choice is when the case is
overwhelmingly strong against the accused.
“When the accused is guilty but insists on a plea of not guilty, we always go before
a jury because there is a chance we might just get lucky,” Ian Lloyd said.
Mr Lloyd said there were public misconceptions about lawyers defending clients
who admitted their guilt.
“Even if he’s told you he committed the crime and insists on going to trial, you can
defend him, you just can’t put forward a positive defence.”

Case 4 States -
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Length of the trial

Jury trials tend to be longer and more drawn out, because the jury must be
absented from the courtroom whenever legal argument or prejudicial evidence is
to be heard.
Juries can also take longer to deliberate on their verdict.
A judge only trial is shorter and more efficient.

Giving evidence
Should you take to the witness box if you are the accused?
According to the rules, every accused who decides to give evidence is cross
examined by the prosecution, which can be difficult if you are not a good performer
under pressure.
“It is always risky giving evidence,” Ian Lloyd said.
“You may not be believed, even if you are telling the truth.”