The Case for Juries in Criminal Trials

Responding to a former Deputy Police Commissioner’s call to scrap jury duty, Matt Ward makes the case for juries in serious criminal matters, walks through when judge-alone trials apply, and addresses claims that sexual assault trials are disproportionately likely to end in a hung jury. Recorded live to air alongside listener calls.

Melinda James: Michael reckons in some cases, when it comes to things like murder, it should always be heard by a jury. Deputy former Deputy Police Commissioner Nick Caldus has said he thinks we should dispense with jury duty. My next guest disagrees — Matt Ward is a criminal lawyer here in the Illawarra with Morrisons Law Group, and has been good enough to give us some time this morning. Matt, good morning.

Matt Ward: Good morning.

Melinda James: It doesn’t sound like everyone enjoys jury duty, but that’s beside the point, I suppose. Generally, what’s your feeling towards juries? Do you think they’re a necessary part of the system?

Matt Ward: I think they’re more than necessary — I think they’re critical to the way we administer justice for serious criminal offences in this state. The way I think about it is that for the really serious and big decisions, our system brings in people from the community to make those decisions.

Melinda James: The principal argument from Nick Caldus and others seems to be that juries can be influenced by lawyers using emotive arguments to sway decision-making, rather than relying solely on the facts. You must have seen this happen in your legal experience.

Matt Ward: Juries can certainly be aware of the complexities and the emotionality of a trial, because trials are emotional things, often about serious personal things that happen in people’s lives. But they’re given very clear directions on how to apply the law to the situation. Let’s not forget that many of these scenarios are emotional — sexual relationships, serious criminal offences involving death, domestic violence. These things are emotional, and to have multiple human beings collectively make that decision, I would argue, is probably safer than one individual making that decision.

Melinda James: We’ve had, here in New South Wales since 1990, the option of a judge-alone trial — heard solely by a judge without a jury, if both parties consent. Why would both parties consent? Who does it benefit?

Matt Ward: There can be a few scenarios in which judge-alone applications are made. Firstly, this is only for state-based offences, not Commonwealth offences. There has to be an agreement for a judge-alone trial in most cases, but there can also be disagreements — if the defence applies and the Crown doesn’t agree, the judge can still grant the application. It often occurs in matters that are very complex — for example, multiple experts disagreeing about how something happened — or where there’s been very high media publicity that could prejudice a fair trial. But anything involving a community standard, or the application of what a reasonable person would do, will normally be heard by a jury, not a judge alone.

Melinda James: In sexual assault trials, it does seem to be a disproportionate number that end in hung juries or aborted trials, due to jury members googling or doing their own research or discussing the trial. Do you know of any evidence, or have you witnessed in your own experience, that jury trials are more likely to fail to reach a verdict in sexual assault matters?

Matt Ward: No, I don’t think that’s my experience. There can be hung juries, but they’re relatively rare, statistically speaking. Perhaps the more alarming statistic is that for adult sexual assault matters that proceed to trial, only about 30, or mid-30, percent result in conviction — that doesn’t mean they’re hung, it means the person may have been acquitted. But hung juries and juror misconduct are relatively small when you consider how many jury trials are run across New South Wales every day.

Melinda James: Even with the growing complexity of evidence, and jury trials running longer, do you still think jury trials should remain the norm?

Matt Ward: I do. I think they should be the norm, always with the option, in the appropriate matter, for an application to be made. For example, I had a jury trial last week that finished in four days. There are longer, more complex matters, and in those cases the parties can consider a judge-alone application. The jury system isn’t perfect, and no one’s saying it is, but in my view it’s much better than the alternative, and it’s worked in this country for a very long time.

Melinda James: Matt, I really appreciate you talking to us this morning. Thank you very much.

Matt Ward: My pleasure.

Transcript lightly edited for readability (false starts, crosstalk removed).