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In defence of juries

By David Galloway - posted Tuesday, 11 February 2014

The Age newspaper recently published an account of how it felt to serve on a jury during a criminal trial under the pseudonym Mary Thompson.

Ms Thompson's candid piece strikes at the heart of the jury system by confessing that she, and perhaps other jury members, simply heard the charges and assumed the accused was guilty. In her own words:

So from day one, the accused man was pretty much a condemned man. Which is not to say the jury did not take its duties seriously, because mostly it did. But to put it in the nicest possible terms, the jury was made up of an all-too-human group of, let's face it, humans.

Which means, in blunter terms, that it contained a distressing proportion of know-alls, know-nothings, don't-cares and cod psychologists.


Ms Thompson's honesty is laudable, but what she seems to have missed is that juries work precisely because of what she assumes to be their weakness.

There's no escaping the fact that someone has to demine guilt or innocence in criminal matters, and if not Ms Thompson's know-alls, know-nothings, don't-cares and cod psychologists then who?

That question has troubled legal scholars for a very long time. Lord Devlin came up with the best answer to date in 1956 when he described trial by jury as "..more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives…and if it is threatened, we must resist."

Few things can bring a Superior Court Judge to the barricades, but what Devlin saw in juries was the best possible protection against the excesses of power.

This analysis proved more prophetic than dramatic in 1984 when Clive Ponting, a public servant in the British Ministry of Defence, leaked documents showing the government and ministry were lying about events surrounding the sinking of an Argentine warship.

Caught red handed, Ponting admitted his crime and prosecution followed swiftly. With no defence permitted by the draconian statute under which he was charged, Pointing's trial looked like a formality until the jury simply refused to convict an honest man who had stood up against wrong.


Astonishingly, that what Ms Thompson's derides as "a mix of prejudice, ignorance, boredom, narrow-mindedness and downright stupidity" took on the abusive power of the state and won.

Ms Thompson might well marvel at the power vested in juries, but not because it's a power misplaced. Trial by jury is the citizen's veto against abuse of power and corruption, which explains why abolition of juries sits at the top of every budding dictator's to do list.

Of course not all cases are as important as Ponting's and not all juries would have shown the same courage, but that doesn't make everyday juries any less important.

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About the Author

David Galloway is a lawyer working in the corporate sector. He does pro bono work for a community legal service in Melbourne and has a strong interest in public interest law.

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