IN WHAT appears to be an effort to set the record straight, High Court Chief Justice Murray Gleeson has issued a warning against the diminishing use of civil juries in Australian courts.
While in some states civil juries are rarely used, federal courts have never made significant use of juries. “There are now many advocates who have never participated in a jury trial, and there are judges who have never presided at such a trial,” he told a conference hosted by the National Judicial College of Australia this month.
Justice Gleeson argued that whatever we may think of the reduction of the use of civil juries, it brings with it a significant cost to the relationship between the judiciary and the community.
“If the traditional participation of juries in the common law civil process is to be reduced permanently, as seems inevitable, then we should be conscious of the fact that we are cutting ourselves off from the community in one way, and we need to establish other lines of contact.”
Urging parliaments to reflect on the way civil juries promote public awareness of the court system before they further reduce their importance in the courts, he said less public participation in the administration of civil justice has increased the separation between courts and the community. “We need to find ways to compensate,” he said.
He listed the recent use of public information officers as a potential replacement for the functions of civil juries.
“Australian courts now have public information officers; something that was unheard of 45 years ago. They are not there just to deal with crisis management. They have an educational function that should be used in a conscious effort to replace the information function that once was served by the use of civil juries.”
Also central to the Justice’s speech was the changing nature of the public’s confidence in the courts. He cited the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, which note that in the determination of civil rights and obligations everyone is entitled to a fair and public hearing.
Listing three qualities required of both judges and the courts, including competence, independence and impartiality, he said: “Confidence in the courts is a state of reasonable assurance that these qualities and standards are met”.
The public’s participation in jury service is a means by which the community can feel connected to the courts, to decision making and to justice, Justice Gleeson suggested. As part of Australia’s legal tradition, trial by jury remains the procedure by which most serious criminal cases are decided. But in recent years this has been diminished in the interests of reducing cost and delay, he said.
He urged parliaments to consider the public interest in connecting the community to the administration of justice.
“Through the jury system, members of the public become part of the court itself.” This, he argued, would see decisions being accepted by the public more readily, and “contribute to a culture in which the administration of justice is not left to a professional cadre but is understood as a shared community responsibility”.
Justice Gleeson concluded his speech by reminding his audience that it is not the responsibility of judges to try and please when they make decisions.
“It is important not to confuse confidence with popularity … Doing justice without fear or favour requires, from time to time, making decisions that will displease some, perhaps many people. The public understand that. Confidence in the courts includes trusting them to pursue justice, not applause.”