Earlier this year I suggested to a small group of criminal defense lawyers that the trial by jury system was past its use by date. While the response was generally unprintable, the sentiment was clear – hands off!

But yesterday Nick Cowdrey, the New South Wales DPP and NSW Deputy Police Commissioner Nick Kaldas, who are both attending a criminal law talk fest in Sydney, also raised the spectre of whether or not juries in the modern age are up to the task.

Mr. Kaldas told the international criminal law meeting, “There’s an enormous amount of material for a normal person to try and absorb, analyze in their minds, and understand what that means for the prosecution. It’s that sort of matter at the moment which we think juries may well struggle with, and it’s something for us to think about.” Mr. Cowdrey said he too had heard similar arguments raised by his colleagues both in Australia and overseas.

Are they right? They may be, simply because the sophistication of crimes such as money laundering, drug trafficking and other similar offences are such that it requires a trained forensic mind to get one’s head around them. And many of the laws that govern the criminal law these days are complex and uncertain even for judges and lawyers.

However, even if a serious case for abolition of trial by jury is not on the cards, Australia desperately needs to reform the current system.

We need to head down the American path and allow for background checks and questioning of jurors. When defence and prosecution lawyers are deciding who should be on a jury in a criminal trial they have zilch information on that person. They have no idea that, for example in a trial involving accused of African or Asian descent, that person might be a member of a racist white supremacist movement, or that the individual often makes racist remarks to his or her friends and relatives.

They have no idea if the prospective juror might have had someone in their family raped, murdered or assaulted, and the juror sees his or her opportunity to exact revenge by being on a jury a convicting a person charged with a crime along those lines.

The law should allow for defence and prosecution to engage jury consultants so that appropriate background checks can be made. And jurors should be able to be cross examined by both defence and prosecution on their views on relevant matters, or on matters pertaining to their background which might make it difficult for them to be objective about the evidence in a case.

The selection of juries needs to be made more transparent. If it is, that might assist those who argue vehemently for its retention.

Peter Fray

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