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Account for the significance of the right to serve on juries in the social and political context of early colonial Australia Essay Example

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The significance of the right to serve in Juries 10

The significance of the right to serve in Juries in the Social and political Context of early colonial Australia

The significance of the right to serve in Juries in the Social and political Context of early colonial Australia

Introduction

The preamble of the juries during the 19th century into the colony of Britain in Australia played a greater role in pushing the country towards a more organized democratic government and the enforcement of the rule of Law. It provided the ordinary people an essential role to play in the management and practice of justice. It basically opened inroads into the potentially repressive authority of the existing judges, governors and the colonial office of the British. In New South Wales, which is a first established colony, the common and familiar dimension of the adoption of the jury trial by the community brought about an unusual twist to it1. The struggle over Jury trial formed an essential part of a extensive fight over the acquisition of full citizenship of the ex-convicts. The essentially discusses the significance of the right to serve on juries in the social and political framework of the early colonial Australia2.

Significance of the Jury system

The nature of the jury which is a body of the common people called from among the community to try a given case gives a certain level of assurance that the society as a whole is more likely to accept the verdict of the jury compared to a judgment administered by a judge or magistrate. The selection of the jury panel which is done n a random way, the jury’s empanelment in trying a given case as well as the public anonymity of individual juniors provides some assurance that the person accused will not be judged through a reference to a self-righteous and a pre-trial publicity3.

Section 80 of the constitution stipulates that people charged with severe offences have an opportunity to have their guilt or innocence determined through the judgment of their peers. The significance of the jury was mentioned in fervent terms by someone called Deane J in one of his judgments in Kingswell in 1985. He stated that the section of the constitution was not simply an expression of some informal preference for a form of criminal trial4. According to Dean, it provided a deep seated conviction of free individuals about how justice should be administered among the citizens. The conviction finds a basis in comprehending the history as well as the functionality of the common law as a fortification against totalitarianism of arbitrary punishment.

Federation, with a Constitutional Provision for Jury Trial

In 1901, the six colonies amalgamated to form the Commonwealth of Australia and under the existing constitution of the Commonwealth, the former colonies transformed into formidable states. In the process, they retained their legislative powers as far as matters of criminal law and process of jury trial are concerned5. The established commonwealth government did not have power to legislate on the said matters but only in issues relating to territories. Nevertheless, with time, it managed to be granted some limited self-government to the Australian Capital and the Northern Territories. The overall trend over the past years has been aimed at enhancing of the range of offences which in normal circumstances would be tried summarily irrespective of whether they are found under the category of ‘indictable’. To clearly demonstrate this, I the year 1994, NSW juries were used in not more than 1% in the entire criminal cases including the pleas as well as guilty offences. The jury use significantly reduced in the state. The system was replaced by one that requires the person accused to elect positively for trial on indictment instead of one that asks for the consent of the accused to summary trial in a range of offences.

There is very little jurisprudence in what is perceived to constitute the targeted community; be it in Australia or any other territory where the trial is carried out. In normal practice, the subdivision of the states into ‘jury districts’ aimed at summoning the jury panel gives the outcome which the said community will be a district where the court mandated to carry out the trial is situated and has its regular sittings. In most cases this where the offence is committed. The misconception of selecting a jury that represents a geographically defined community does not necessarily mean that the jury has to be deliberately constructed to be able to represent a cross section of the different groups of people found in a community6.

Important Issues

During the creation of the criminal offences by the federal Parliament, what is most asked is whether given offences should be tried by judge or the jury. The makers of the Australian constitution included section 80, which generally appears to bestow a right to jury trial. A good number of Crimes Act 1914 (Cth) are not very clear whether the offences created are triable by the jury or summarily. Guiding principle are given by section 4G, 4H and 4J. For instance, Section 4G stipulates that federal offences punishable by imprisonment for a period that exceeds twelve months are referred to as indictable offences. However, there is an addition of the word “unless the contrary intention comes.” This is likely to leave the situation in an awkward and somehow unfortunate state of uncertainty7.

In expressing the preference for jury in the trial for serious offences, there is a great need to rely on the nature and value of the judgment because considerations of some level of confidentiality leads to difficulties for an efficient research. A good number of individuals who have critically analyzed matters of the jury system and have had an extensive experience have generally praised the system as one that promotes the democratic contribution and participation of the society in general in the administration of justice. Lord Devlin points out that each form of jury is a ‘little parliament’ on its own8.

History and Relevance of Jury Trial in Australian Democracy

The jury system can, to a larger extend, help to defuse conflict that can arise during turbulent times. For instance, the rebellion and massacre of the Eureka rebels and the British prosecution are some of the examples. Cases of William Penn, Thomas Hardy and John Horne Tooke also point to the fact that the jury system is worthwhile if conflict resolution9.

The trial by the jury is appreciated by those who have had it but the benefits have been taken away from them. For instance, in the year 1787the British parliament introduced for a military tribunal in NSW with a judge-Advocate who had to preside over a group of about 6 military officers, the people soon realized the pre-eminence of the jury system. The normal tribunal of the military could be manipulated by Macarthur among others and could not be trusted on the impartiality, in most cases when the interests of the military were involved. Wentworth together with others campaigned strongly for the establishment of the British system and a good number of petitions for the trial of the jury were put forward by the authorities concerned. At long last, in 1847, the jury system was finally introduced into the republic of New South Wales and it was eventually made applicable to the Port Phillips District. The citizens of the colonies of Australia were quite familiar with the associated advantages of the jury system by the time of the federation10.

The Conventions

The requirements of the constitution of Australia were devised during the debates that were held at a series of conventions which were done towards the last decade of 19th century11. The inclusion of the word ‘indictment’ in section 80 brought about what is referred to as a ‘narrow’ move towards the interpretation of the segment. The result of the move meant that the section does not represent any form of command and restraint on the powers bestowed on the legislative power. It is according to that move and approach which is always open to the governing body to avoid the operation of the section through provision of the summary disposition of criminal offences irrespective of the seriousness of the matter. A number of reporters have accredited Machiavellian deceitfulness to the makers of the constitution. According to them, the phrase ‘on indictment’ was included in section 80 with an aim of producing what was later of described as ‘mockery’. It is apparent that accepting this would be meant to imply that a number of the framers of the constitution, and particularly the provision on April Fools’ Day, setting out to entangle the citizens into the hallucination that they are protected when in the real sense they do not enjoy any form of benefits12.

A jury in the Tasmanian region, Andrew Clark, drafted what later on became section 80 of the constitution in 1891. From his precedent Article lll, section 2 of the US constitution, he drew a clause which stipulated that the trial of the entire crimes that are cognizable by any court of law shall be presided over by the jury. This however, was altered by sir Samuel Griffith to confine the guarantee to just ‘indictable offenses cognizable by any court that was given the mandate to exercise federal jurisdiction’. The issue was brought up for debate at Melbourne Convention sitting in 1898. When New South Wales resisted an alteration which was proposed by Glyn (SA), on the fact that the clause, the way it was, was an important safeguard to the liberty of individuals provided for in every state13.

Convictions

The appeals that brought against convictions in the trials of the jury are likely to be matters of fact or law or a mixture of both. They claim errors of law by the presiding judge, for instance, when the substantive law has been gravely misstated or the evidence provided has been wrongly excluded. As long as they are pegged on issues of fact that are duly entrusted to the jury, the overall principle upon which the Australian courts of criminal appeal function is that any verdict found to be irrational and which cannot be supported by the evidence provided may be set aside. Even in moderately secluded considerations of the verdict of the jury, there is a requirement that the appeal court has to systematically carry out its own independent review of evidence14.

Conclusion

In conclusion, it is important to note that in the latest history of the juries in Australia, there has been a sharp clash between the event and accomplishments of the state and the territory government aimed at reducing the costs that are associated with the trial of the jury system. The life and culture of the Australia people has, to a great extent diversified within the last decades. This is mainly attributed to the large number of migrants who are equipped with varied legal backgrounds. South East Asia has been outstanding. England which depends more on the jury system remains essentially indispensable. Its range of operation is diminishing but it has special place in the criminal justice system of Australia. The jury system has played a greater role in trying to administer justice among the Australian Citizens.

References

Pannam, C. (1968) ‘Trial by Jury and Section 80 of the Australian Constitution’, 6 Sydney LR 1 at 6; cf. H. Charlesworth.

Craig C. (2005), (Andrew Bent and the Birth of the Free Press in the Australian Colonies’ (paper presented at the Australian Media Traditions Conference, Canberra, 24 November 2005.
Prue V. (2009), ‘The Nature and Scope of Parliamentary Democracy in the States’ in Law and Justice in Australia (Oxford University Press, 2nd Edition, 2009) 185-206.
Prue V., (2009) ‘Britain and the Colonists: Using the Heritage’ in Law and Justice in Australia (Oxford University Press, 2nd Edition, 2009) 155-82.

Kingswell vR (1985) 159 CLR 264 at 298-302 per Deane J.

Lippman M. & Webber T. (1979), The Law of Constructive Contempt: A Comparative Perspective, 8 ANGLO-AM. L. REV. 210, 225, 237-38

Milgate v. R. (1964) 38 A.L.J.R. 162 (Austl. H. Ct.), approved byLalchan Nanan v. State,

1 App. Cas. 860, 873-74 (P.C.)

Galligan N. & J. Nethercote (eds), (1989) The Constitutional Commission and the 1988 endum, Canberra, Centre for Research on Federal Financial Relations and Royal Australian ute of Public Administration (ACT Division), chapter 10.

Neal, D., (1991), The Rule of Law in a Penal Colony, Oakleigh, Vic., Cambridge University Press.

Windeyer V. (1958-1963), ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ in U. Tas. L. Rev. 1958-1963, 635-69
1. David Neal, ‘The Campaign for Trial by Jury’ in The Rule of Law in a Penal Colony (Cambridge University Press, 2002) 166-87

1
Pannam, C. (1968) ‘Trial by Jury and Section 80 of the Australian Constitution’, 6 Sydney LR 1 at 6; cf. H. Charlesworth.

2
Craig C. (2005), (Andrew Bent and the Birth of the Free Press in the Australian Colonies’ (paper presented at the Australian Media Traditions Conference, Canberra, 24 November 2005.

3
Galligan N. & J. Nethercote (eds), (1989) The Constitutional Commission and the 1988 endum, Canberra, Centre for Research on Federal Financial Relations and Royal Australian ute of Public Administration (ACT Division), chapter 10.

4
Kingswell vR (1985) 159 CLR 264 at 298-302 per Deane J

5
Prue V. (2009), ‘The Nature and Scope of Parliamentary Democracy in the States’ in Law and Justice in Australia (Oxford University Press, 2nd Edition, 2009) 185-206.

6
Neal, D., (1991), The Rule of Law in a Penal Colony, Oakleigh, Vic., Cambridge University Press.

7
Pannam, C. (1968) ‘Trial by Jury and Section 80 of the Australian Constitution’, 6 Sydney LR 1 at 6; cf. H. Charlesworth.

8
Prue V. (2009), ‘The Nature and Scope of Parliamentary Democracy in the States’ in Law and Justice in Australia (Oxford University Press, 2nd Edition, 2009) 185-206.

9
Neal, D., (1991), The Rule of Law in a Penal Colony, Oakleigh, Vic., Cambridge University Press.

10
Galligan N. & J. Nethercote (eds), (1989) The Constitutional Commission and the 1988 endum, Canberra, Centre for Research on Federal Financial Relations and Royal Australian ute of Public Administration (ACT Division), chapter 10.

11
Prue V., (2009) ‘Britain and the Colonists: Using the Heritage’ in Law and Justice in Australia (Oxford University Press, 2nd Edition, 2009) 155-82.

12
Windeyer V. (1958-1963), ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ in U. Tas. L. Rev. 1958-1963, 635-69

13
Lippman M. & Webber T. (1979), The Law of Constructive Contempt: A Comparative Perspective, 8 ANGLO-AM. L. REV. 210, 225, 237-38

14
Milgate v. R. (1964) 38 A.L.J.R. 162 (Austl. H. Ct.), approved byLalchan Nanan v. State,

1 App. Cas. 860, 873-74 (P.C.)