Trial by Jury: An Analysis of the Australian Criminal Justice System

This essay provides a comprehensive overview of trial by jury within the Australian judicial system. It defines trial by jury, differentiating it from judge-only trials, and highlights its significance in criminal cases, as enshrined in the Australian Constitution. The essay explores the jury system's role, particularly in serious criminal offenses, and its diminishing use in civil cases. It delves into the division of functions between judges and juries, emphasizing the importance of judicial directions. The essay further examines the advantages, such as ensuring impartial trials and representing community values, and disadvantages, including jurors' potential lack of legal expertise, personal biases, and challenges posed by social media usage. The essay references key legal cases and scholarly articles to support its analysis, concluding with the importance of the jury system in Australia despite its challenges.

Running head: CRIMINOLOGY
CRIMINOLOGY
Name of Student
Name of University
Author Note

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Trial by Jury
A jury can be defined as a body of people sworn to be rendering verdicts in an impartial
way and officially submitting them by way of court or for setting of penalty or judgment. Trial
by jury can be described as the proceeding in a court where a jury is seen as to be making
decisions or finding facts (Brooks, 2017). A jury trial can be differentiated by a judge only trial
or a bench trial in the fact that in a bench trial a judge is the only person having the adjudication
to be making any decision regarding a case. In the modern times the juries are found to be
ascertaining in the court whether there is a guilt or lack of guilt in a crime.
In Australia trial by jury can be seen as an integral part of the judicial system. In the
modern times juries in Australia are seen to be entrenched in a formal way by the Constitution of
Australia for the offences that are heard at a federal level. In the modern times the trial by juries
are seen as to be used in the criminal offences that are most serious in nature. The Jury system in
Australia can even be seen as being the default form of the trial of any serious crime under the
provision of the State law (Freckelton, 2016).
Although the jury system can be used for both criminal and civil trials, however in
Australian judicial system the jury trial is rarely used in civil cases. In the criminal cases also the
jury trial is observed to be diminishing. An important reason for this can be because of the strong
incentives present for the accused to be foregoing their rights to the jury trials because of the
discount in sentencing of an accused person who pleads guilty before the trial.

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In the Victorian Justice system the role of the jury trial in criminal and civil cases can be
seen to be the determination of the facts and the application of the laws to the facts that had been
given by the judges for reaching to a specific verdict. In a Victorian Judicial system the division
of the functions that can be regarded as fundamental to the system of trial by jury in the
following way: decision of the fact are made by the jury and the decisions of the law by the
Judges. In the criminal trials the judges are required to be giving general directions to separate
the functions of the judge and the juries. Without this direction by the judge thee direction
summed up by the judge would be seen as inadequate and the trial would be miscarried. An
example of the direction by the judge can be seen in the case R v Ali Ali (1981).
In the constitutional principle the importance of the trial by jury for administering the
justice can be found in relation to the fact that any person should not be imprisoned for any
serious crime unless had been decided by their peers as guilty. Over the years there had been
approval of the system of the jury trial in both civil and criminal cases by many critics. The trial
by jury system can be seen as a means of ensuring of impartial trial to person by their peers and
giving the ‘qualities and characters of a judge’ to the people (Gans, and Palmer, 2013). The
phrase ‘trial by one’s peers’ is seen to be requiring the juries to be representing the community as
a whole, however the phrase can be seen as to be ambiguous. In one hand, the selection of
representative can be seen as just a reflection or reproduction of some larger entity in a smaller
scale. Yet on the other hand, the representative can be seen as taking the duty for himself or
herself for the protection or support of the interests of the group he or she is considered to be
representing.

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In furtherance, there would be a problem of the fairness of the trial arising in relation to
the reflection of the views and the prejudices towards a community if there is a lack of jury from
any minority community trying the case in which the accused is of a particular minority
community. As a consequence there would be conflict between the values of ‘representativeness’
of the jury and impartiality.
However, the extent of the jury upto which they can be seen to be protecting the liberty of
the subject has been highly criticised by many. This criticism has been directed towards the lack
of protection that the juries have tend to be affording to the minorities and their opinions.
There are many advantages and disadvantages to the jury trials. The advantages to a jury
trial can be seen as:
There is a belief by many people that there would be a fairer trial ensured if they are appearing in
front of a jury.
When tried by a jury, the idea is seen to be that the person is being tried by their peers instead of
any single judge or magistrate, who might not be able to be relating to the accused’s personal
circumstances.
With a jury trial, the decision is seen as being made by a number of people instead of one
individual person and this can be seen as reassuring for someone accused of an offence,
particularly that of a serious one with serious potential for the penalties.
In most of the states in Australia, the verdict in a jury trial is required for being unanimous, that
means, all the jurors are required to be agreeing whether the defendant is innocent or guilty.

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The disadvantages of a jury trial can be seen as:
As the people present on a jury are not seen generally as having a legal background, it is possible
for them to be not entirely being able to understand the complex legal documents or the
arguments, or the in-depth forensic evidence.
Every juror tend to have their own personal biases, and this coud be seen as affecting their
decision-making.
Minority groups can be in a disadvantageous position at a trial by jury, as the majority of jurors
are seen as likely to be Caucasians.
There is a high chance for the prosecution to be challenging certain members and having them
removed from the jury, if there are minority members present in the jury and the accused who is
being tried can also be seen to be in a minority group, During the selection process of a jury,
each side of the trial can be seen as allowed for removing three potential members from the jury.
In the modern times the increase in the use of the social media can be seen as leading to a
large number of jurors for using the social media during the times of the trials, despite of the
warnings that have been specified by the courts restricting them to do so. The use of social media
can be seen as affecting the trials and potentially lead to mistrials in several cases (Bartels and
Lee, 2013). There have been multiple cases in which the juries were seen as being charged with
contempt for inappropriately using the social media. There has been an increase in the problem
of the social media use by the jurors and there has not been any solution to the problem found
even after multiple calls made for addressing the issues. Jurors might be seen as to be tempted
for using social media or the internet to be finding out further information about the trial other

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than the evidence that has been presented. This can lead them to be forming an opinion about the
facts that are not based on the evidence presented in court.
Despite the disadvantages and the problems faced by the jury system, it can be seen as an
important part of the judicial system in Australia.

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Reference
Bartels, L. and Lee, J., 2013. Jurors using social media in our courts: Challenges and
responses. Journal of Judicial Administration, 23, pp.35-57.
Brooks, T., 2017. The right to trial by jury. In The Right to a Fair Trial (pp. 83-98). Routledge.
De Vos, W.L., 2017. The Jury Trial in Western Australia: Comparative Observations. Int'l Trade
& Bus. L. Rev., 20, p.287.
Freckelton, I., Goodman-Delahunty, J., Horan, J. and McKimmie, B., 2016. Expert evidence and
criminal jury trials. Oxford University Press.
Gans, J. and Palmer, A., 2013. Australian principles of evidence. Routledge-Cavendish.
R v Ali Ali (1981) 1 S.C.R. 221