Why, in the 21st century, do we cling to the quaint but totally unfounded notion that trial by jury is the fairest means of ensuring that criminal justice is not only done, but seen to be done?

The outcome of the Dennis Ferguson case in Queensland in March this year provides an opportunity to reflect on some of these issues.

Ferguson, who had previously been jailed for a kidnapping and sexual assault of three children in 1987, was charged with one count of indecent assault on a five-year-old girl but last year Queensland District Court judge Hugh Botting ruled that because of the extraordinary level of prejudicial publicity Ferguson could not get a fair trial. Botting permanently stayed the proceedings, a decision which Queensland Attorney-General Kerry Shine had overturned on appeal. In the meantime Ferguson was subjected to rampant vigilantism and media harassment.

Given all this, Ferguson’s lawyers applied for a rare judge-only trial and he was acquitted of the charge of sexual assault by Judge Patsy Wolfe on March 6.

Ferguson’s experience provides a neat example of the proposition that prominent Western Australian defence lawyer Malcolm McCusker QC put a couple of years ago, when he launched a surprising attack on the jury system.

McCusker told The West Australian on July 24, 2007:

If you were charged with a crime and were innocent, would you like your fate to be decided by 12 people, chosen at random by lot, not qualified or experienced in assessing evidence, and no legal training? And who give no reasons for their decision, so that if they found you guilty, it would be extremely difficult to appeal?

Or would you prefer the decision-maker to be a qualified judge, trained and experienced in assessing evidence and the law, and obliged to give detailed reasons for his or her decision?

Jurors, the defenders of the system tell us, ignore what they read and hear in the media. But as the New South Wales Law Reform Commission noted last December, that was in the era before the internet and social media outlets became so prevalent.

The Commission noted:

Self-evidently, as time passes, the penetration of internet usage will increase in the population both by virtue of expanding innovation in technology, falling costs to consumers, and the continuing growth of information on the internet, all intersecting with today’s youth becoming tomorrow’s adults.

Consequently, the next decade is likely to see a trend towards saturation of usage, and indeed reliance upon the internet as the major general and specialist information resource for the vast majority of the juror population base.

Even if we are to keep the jury system, then background checks of potential jurors must be permitted. This is particularly important in emotional cases like sexual assaults of minors, and where the defendant is from an ethnic group that has been subjected to prejudice in our community. If a potential juror has a family member who was sexually abused as a child, should they be permitted to sit on a jury in a similar case? What about a racist juror who is lined up for service on a case involving a defendant of Asian origin?

And why shouldn’t the accused person know why it is that he or she has been found guilty? Surely it is a fundamental right to be able to know why it is that your peers have found you guilty of an offence.

If we are not prepared to radically reform the criminal jury system so that it better reflects the values and reality of 21st century life in Australia, then we should abolish it and try the more transparent alternative of allowing judges to make decisions about guilt or innocence.

Peter Fray

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