Criminal Law Judges Jury Law Reform and Law Reform Agencies
Uploaded by joeydaprof on Jun 12, 2006
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Indictable offenses require trial before judge and jury, and so are usually reserved for more serious offenses. Trial by a jury of one’s peers is at the symbolic core of liberal democratic and common law concepts of justice. The jury ultimately connects the community with the administration of justice. In order to give some perspective to the role of the jury within the overall criminal justice system, it must be recognized that only a small percentage of criminal cases are heard before a judge and jury. The jury as an institution is, nevertheless, an important component of the criminal justice system. In the first place, the most serious criminal cases are tried before a judge and jury. In those cases where the State makes allegations of the most grave kind which are contested by the accused person, the responsibility for the determination of guilt is not vested in a single public official. It is placed in the hands of a group of 12 citizens chosen in a random manner as representatives of the general community. In this way the institution of the jury serves as an important aspect of the declaratory or denunciatory function of the criminal law. The maintenance of trial by jury emphasizes the serious nature of the criminal offenses which are so dealt with. In New South Wales a jury has no role in determining the penalty for a person once that person has been found guilty. A jury can only convict or acquit an accused person if they are unanimous, that is all 12 members of the jury agree.
Australia has a tradition of court proceedings being based on an adversarial model. In this model the role of the ‘Judge’ is to determine disputes between parties by applying the law to particular facts. Judges determine the facts on the basis of evidence presented to them, either given in Court by witnesses in person or provided in writing by way of an affidavit. Judges will consider the 'credit' of a party, and evidence will be accorded 'weight' depending on its relative importance.
‘A trial does not involve the pursuit of truth by any means … judge’s role … is to hold the balance between the contending parties … not an inquisitorial role …’ (Justice Dawson 1983)
‘There’s a distinction between...