History of Criminal Law: Jury Trials in Victoria, Australia

This essay examines the jury trial system in Victoria, Australia, defining jury trials and their role in the judicial process. It explores the advantages, such as ensuring fair trials and community representation, and disadvantages, including jurors' lack of legal expertise and potential biases. The essay discusses the division of functions between judges and jurors, and highlights key legal cases like R v Ali Ali and R v Brown. It also addresses debates over the continuation of jury trials in the Australian justice system, referencing the Australian Constitution and relevant legislation. The essay concludes that complete waiver of jury trials is unlikely due to its importance in upholding liberty and democratic principles. The document also provides a detailed overview of the historical context and contemporary relevance of jury trials in the Australian legal framework.

Running head: HISTORY CRIMINAL LAW AND TRIALS
HISTORY CRIMINAL LAW AND TRIALS
Name of Student
Name of University
Author Note

1HISTORY CRIMINAL LAW AND TRIALS
Introduction
A trial by jury or a jury trial can be defined as the lawful proceeding in a court where
the juries are seen as a making decisions or finding facts in relation to a particular case. Jury
trials are distinguished from bench trials or judge only trials on the fact that in the judge only
trials the judges are required to take all the decisions in relation to any particular case1. In the
jury trials held for criminal cases in the States and Territories in Australia there are 12 jurors.
One of the primary reasons for having 12 jurors is that it links the judge and the jury to Jesus
and his 12 Apostles. There are many advantages and disadvantages in a jury trial. This paper
aims to discuss about the possibility of continuing jury trials in the state of Victoria in
relation to the advantages and disadvantages present in the jury system.
Jury trial
The definition of jury trial can be stated as the group of individuals who have been sworn to
render judgments in impartial manner and submit them officially to the court or for setting
up the penalties or verdicts.2 A trial by jury or a jury trial can be defined as the lawful
proceeding in a court where the juries are seen as a making decisions or finding facts in
relation to a particular case.3 In the jury trials held for criminal cases in the States and
Territories in Australia there are 12 jurors.
In the judicial system of Australia the jury system is considered as one of the most integral
part. In current times the jury trials are mostly used in the Australian judicial system for the
serious criminal offences. The system of trial by jury is also considered as the default form of
trial for hearing any offence that is considered as serious in nature under the State laws. Even
1 Bartels, L. and Lee, J., 2013. Jurors using social media in our courts: Challenges and responses. Journal of
Judicial Administration, 23, pp.35-57
2 Brooks, T., 2017. The right to trial by jury. In The Right to a Fair Trial (pp. 83-98). Routledge
3 O'Malley, Kathleen M. "Trial by Jury: Why It Works and Why It Matters." Am. UL Rev. 68 (2018): 1095.

2HISTORY CRIMINAL LAW AND TRIALS
though trial by juries is used in both civil and criminal cases, yet the system of jury trials is
very rarely used in the civil cases in the judicial system in Australia. The use of jury trial in
the criminal cases can also be observed as gradually diminishing.4 The major reason for such
discontinuance of the jury trials is the increase in the strong incentive existing for the
offenders if they forego the rights they have for jury trials in exchange for the discount in the
total sentencing they would get if they plead guilty in front of the court before the trial starts.
The role of the jurors in the justice system in Victoria in civil and criminal cases is to
determine the facts and to apply the laws that are existing to the facts presented in front of the
judges to reach a specific judgment for the given case. The judicial system in the Victorian
State divides the functions of the judges and jurors in specific ways which is considered as
being central to the jury trial system. The division can be observed in the following way- the
facts present in the case are decided by the jurors and the decisions regarding the laws are
made by the judges5. The judges in the criminal trials need to provide the jurors with the
general direction for separating the functions that the judges and the jurors have in criminal
trials. If there is no direction is provided by the judges then the decision that the judge sums
up would be considered as inadequate and there would be miscarriage of justice in the trial.
An example of such miscarriage of the trial was observed in the trial in R v Ali Ali (1981)6.
Advantages and Disadvantages
There are certain advantages and disadvantages of the system of trial by jury.
The advantages of a trial by jury are discussed as follows. The first advantage is that many
people are of the belief that by way of the juries a fair trial is ensured. As the jurors are
4 De Vos, W.L., 2017. The Jury Trial in Western Australia: Comparative Observations. Int'l Trade & Bus. L.
Rev., 20, p.287.
5 WALLACE, ANNE. "Australia The Criminal Justice Process of Australia." Trends in Legal Advocacy. CRC
Press, 2017. 31-54.
6 R v Ali Ali (1981) 1 S.C.R. 221

3HISTORY CRIMINAL LAW AND TRIALS
representing the community they are more likely to understand the personal circumstances of
the person held for hearing7. As the judgment is made with the help of many individuals
therefore, it often reassures an offender that they would not be prejudiced.
The disadvantages of a jury trial are discussed as follows. The first disadvantage in a jury
trial is that the jurors do not have a legal background and are often observed as not
completely grasping the background of the case and having a very vague idea of the complex
legal documents related to the case. The jurors often time have personal biases which might
affect their decisions. In case of absence of jurors from any specific minority community
there might be prejudices in the trial held against the accused, who belongs to such minority
community.8 One major challenge in jury trial is that the prosecution can challenge certain
members and remove them out of the jury bench9. This can often be used in a prejudicial
manner.
There have been observations that the system of jury trial often helps in the diffusion of
conflicts in the difficult times. An example of such is the sedition, treason and unlawful
assembly prosecutions by the British.10 The examples prove the fact that trials by juries
facilitate the democratic participation of everyone in community for administering justice
properly. In furtherance to this, the judges and the retired judges in the Australian justice
system have made observations that having 12 juries selected randomly, helps in the
representation of the views and values of the community in a better way than a single judge.
It further promotes democracy by encouraging the participation of the community in the
verdict of the accused. It further helps in providing an understanding of the criminal justice
system to the community as a whole. The trial by jury system further helps in the
7 Beltzer, Buck, et al. "“It’s Getting Better All the Time”: Best Practices in Presenting Delay Claims Bench
Trial/Arbitration/Jury Trial." Construction Lawyer 37.4 (2017).
8 Brooks, Thom. "The right to trial by jury." The Right to a Fair Trial. Routledge, 2017. 83-98.
9 Gans, J. and Palmer, A., 2013. Australian principles of evidence. Routledge-Cavendish.
10 Piper, Alana, and Lisa Durnian. "Theft on trial: Prosecution, conviction and sentencing patterns in colonial
Victoria and Western Australia." Australian & New Zealand Journal of Criminology 50.1 (2017): 5-22.

4HISTORY CRIMINAL LAW AND TRIALS
preservation of liberty. However there have been debates over the continuity of the trial by
jury in the Australian Justice system. In their verdict in the R v Archdall and Roskruge; Ex
parte Carrigan and Brown [1928]11 the judges were observed to reject section 80 of the
Australian Constitution12 which provides that ‘the trial on indictment of any offence against
any law of the Commonwealth shall be by jury’13. The reason provided by the judges was
that the application of the section is vague and is in direct contradiction of the offences
punishable under the Crimes Act 1914 (Cth)14. However in the trial of R v Brown [1993]15,
where the appellant sought to be tried in a judge alone trial under the provisions of section 7
(1) of the Juries Act 1927 (SA)16, it was held by the majority of the High Court that the jury
trial is not only important from the historical point of view but it is also considered as the
major guardian of liberty of the law and community, therefore it is not possible to waive
section 80 of the Constitution17.
Conclusion
The definition of jury trial can be stated as the group of individuals who have been sworn to
render judgments in impartial manner and submit them officially to the court or for setting up
the penalties or verdicts. The judicial system in the Victorian State divides the functions of
the judges and jurors in specific ways which is considered as being central to the jury trial
system. There have been debates over the continuity of the trial by jury in the Australian
Justice system. Many are of the opinion that trial by judges can be prejudicial to the accused.
Contradictorily it has also been debated that trial by judges ensure the liberty of democracy.
11 R v Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18
12 Constitution of Australia, s 80
13 Conrad Jr, Robert J., and Katy L. Clements. "The Vanishing Criminal Jury Trial: From Trial Judges to
Sentencing Judges." Geo. Wash. L. Rev. 86 (2018): 99.
14 Crimes Act 1914 (Cth)
15 R v Brown [1993] UKHL 19
16 Juries Act 1927 (SA), s7(1)
17 Doran, Sean, and John Jackson. "The case for jury waiver." The Right to a Fair Trial. Routledge, 2017. 265-
282.

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Hence it can be concluded that complete waiver of the jury trial is not possible in the criminal
justice system in Australia.

6HISTORY CRIMINAL LAW AND TRIALS
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.
Beltzer, Buck, et al. "“It’s Getting Better All the Time”: Best Practices in Presenting Delay
Claims Bench Trial/Arbitration/Jury Trial." Construction Lawyer 37.4 (2017).
Brooks, T., 2017. The right to trial by jury. In The Right to a Fair Trial (pp. 83-98).
Routledge.
Conrad Jr, Robert J., and Katy L. Clements. "The Vanishing Criminal Jury Trial: From Trial
Judges to Sentencing Judges." Geo. Wash. L. Rev. 86 (2018): 99.
Constitution of Australia
Crimes Act 1914 (Cth)
De Vos, W.L., 2017. The Jury Trial in Western Australia: Comparative Observations. Int'l
Trade & Bus. L. Rev., 20, p.287.
Doran, Sean, and John Jackson. "The case for jury waiver." The Right to a Fair Trial.
Routledge, 2017. 265-282. Doran, Sean, and John Jackson. "The case for jury waiver." The
Right to a Fair Trial. Routledge, 2017. 265-282.
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.
Juries Act 1927 (SA)

7HISTORY CRIMINAL LAW AND TRIALS
O'Malley, Kathleen M. "Trial by Jury: Why It Works and Why It Matters." Am. UL Rev. 68
(2018): 1095.
Piper, Alana, and Lisa Durnian. "Theft on trial: Prosecution, conviction and sentencing
patterns in colonial Victoria and Western Australia." Australian & New Zealand Journal of
Criminology 50.1 (2017): 5-22.
R v Ali Ali (1981) 1 S.C.R. 221
R v Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18
R v Brown [1993] UKHL 19
WALLACE, ANNE. "Australia The Criminal Justice Process of Australia." Trends in Legal
Advocacy. CRC Press, 2017. 31-54.