August 16

Jury trial – a right?

·     Asked “Should (NSW) legislation encouraging judge-alone trials be repealed?” in a poll in Sydney’s Daily Telegraph on 1 August 2011, 64% (2162 votes) said Yes.

The poll  was held to coincide with a report  by the Sydney Daily Telegraph's chief law reporter, Lisa Davies, that juries are increasingly being sidelined in the criminal justice system with the number of judge-only trials in NSW rising sharply since a law change this year.


Ms Davies reports that a “mini revolt” is under way, with prosecutors, victims groups and even judges calling for the controversial law – which removed the Director of Public Prosecutions' right to block judge-alone trials – to be scrapped.

She says that the legal change, which allows accused persons to avoid a jury trial, is deeply unpopular, with claims it is driving up acquittal rates and increasing the workload on judges.

"One judge even said the law was changing the 'whole fabric of the (legal) system'.  Defence lawyers have also said that the fact-finding in criminal cases should be left to juries, not judges. Previously, both the prosecution and defence had to agree to have a case decided by a judge alone instead of a panel of jurors."

The federal constitutional guarantee of trial by jury on indictment – a right included in the Magna Carta – was long ago been made ineffective by the High Court. The Court has said that it is for Parliament  to determine which offences are triable by indictment. (The Founders were warned about this.)  

       A.A Preece argues that this provision  has its origins in in article 11 of the Bill of Rights of 1689, and Is Influenced by the Sixth Amendment to the American Constitution, itself inspired by the Bill of Rights of 1689. (The British influence on the Australian Constitution, chapter in Republic or Monarchy, 1994)





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