In a speech on the future direction of criminal law, Justice John Dunford of the NSW Supreme Court spoke about the importance of juries, which he believes are a “bulwark against the exercise of arbitrary power by a corrupt or politically motivated judiciary — not that such is a problem in this country”.

“The jury system can be a check on unpopular laws,” Dunford said. “It is of the essence of a democracy that decisions (whether political through the ballot box or judicial through the jury system) are shared amongst the community as a whole, rather than being limited to the exercise of power by a few elite,” he said.

Justice Dunford told the 2004 Criminal Law Conference in Sydney that despite his support for the jury system, he thought there were some reforms that could make it more efficient.

The proposal presently before the NSW Government for 11-1 majority would be effective when one juror is holding the decision back because of incompetence or disinterest, Dunford said.

“Bear in mind that the judge often knows the voting figures in the hung jury situation because it is at times included in the note he or she receives from the jury, although such figures are not disclosed to counsel,” he said.

Another possible amendment, Dunford suggested, “is that where a jury is unable to agree between conviction on a more serious and a lesser offence… the judge should have the power to enter a conviction for the lesser offence”, he said.

Justice Dunford said that one of the greatest threats to jury trials is the “ever growing length of the average jury trial”. This is due in part to the increase in scientific and technical evidence, the length of recorded interviews, the length, which is often unnecessary, of cross-examination and the length of the summings up, which are “getting longer and longer”.

Additionally, the law should be amended so that an appeal court could allow a verdict if it is satisfied of the guilt of the appellant beyond reasonable doubt. “This would, I believe, further reduce the number of retrials, without resulting in the conviction of an innocent person,” he said.

If incremental changes, such as those Dunford suggested, do not satisfy the community, “pressure may build for more radical changes such as the abolition of juries, having the judge take part in the jury’s deliberations (which I understand is the case in some European countries), the abolition or modification of the adversarial system, mandatory sentencing, or having the jury involved in sentencing”, he said.

Justice Dunford said he did not see these as immediate threats, but suggested that some may be “lurking below the horizon”.

“The crucial question is would they effect any improvement on the present system, which would be at least debatable, and in some cases, I believe, positively disastrous,” he said.

“I suggest we should not be afraid to take part in a debate about how the system can be improved,” he concluded.