RECENT JURY TRIALS

Evening Post, Volume CI, Issue 50, 28 February 1921, Page 6

RECENT JURY TRIALS

The result of the three cases brought at this month's criminal sittings in Wellington under the Gaming Amendment Act; 1920, demands the prompt attention of the Legislature. The charge in each case was that of carrying on the business of a bookmaker within the meaning of the Act, and so wide is the definition and so clear was the evidence for the prosecution that counsel for the defence had what on 1 the face of it was a decidedly uphill task. Yet ths outcome of the three cases was that the first jury to which each was submitted disagreed, and that the. disagreement was either repeated or replaced by an' acquittal. Had there been evidence in favour of the accused comment must have been cautious and restrained, since the widest possible discretion is rightly allowed to a jury in the weighing of evidence, and some incidental point—the demeanour of a witness, for instance—which the most faithful report cannot adequately represent may properly, determine the verdict. But in none of these cases was there any conflict of evidence at all, since neither .the accused nor anybody else testified oi\ their behalf. There' was therefore no balancing of witness against witness. It was formally merely a question whether the witnesses for the Crown were to be believed. In one case the judge told the jury that if they acquitted the accused they branded the two constables who had given evidence for the prosecution as men who had committed perjury. That the constables were really guilty of such a crime was of course not' believed or suggested by anybody in the jury-box .or out of it, yet the disagreement of tho jury showed that some members of it were prepared to give a verdict of "which, that was the logical effect.

Much of the argument to which in the absence of any evidence to support 'their' case counsel for the accused were driven to resort related to the wide scope of the definition of "bookmaker" in the Act urid«r consideration, the alleged immorality or inconsistency of the law, and the injustice of penalising a private citizen for doing what the law'permits a racing club to do through the totalisator. These matters were ruled out •as irrelevant by the Judges before whom the cases came, and we accept the ruling as binding for the purposes of our argument also, since what we are concerned with is not the wisdofn or unwisdom of the law as ifc stands, but the administration problem presented by a series of ■verdicts which seema to have reduced the iaw to a dead letter, so far as this city is concerned. What is the remedy ? A remedy to which the verdict of a jury has often called attention i 6 a change in the law. A hard, an antiquated, or an impracticable law has frequently received its notice to quit in this illogical yet significant fashion, but the present is not eucb. a case. There is not the slightest reason for supposing that on this iaSue these six Wellington juries represent the popular will more accurately than Parliament, or that a re-submission of the question to Parliament or the people would produce any different result from that achieved last session. There is no question here of either an antiquated law or of one passed hurriedly in a spasm of strong feeling.

This point naturally leads to the remedy suggested by the Chief Justice. The plain duty of a jury is of.course to administer the law as they find it, but when they leave that province and enter •into questions of policy a provision of the law which has been established for the protection of the accused imposes upon them a disqualification from whicß Parliament and every other genuinely representative body is free. Democracy ■means government by the majority, and in the last resort it may even satisfy the definition of " government by the odd man." A rule prescribing unanimity would obviously doom the ■ democracy or the representative body that tried it to impotence. Yet this is the rule by'which our jiirie» rto governed in criminal trials?, It is due 'to the merciful desk* of the

law to give innocence every reasonable chance, and possibly-a little more than every reasonable chance, of securing an acquittal. But, as we have said, a provision which may be justified as a guarantee that a conviction will not be recorded without cogent evidence is utterly absurd when jurors 'use it as a means of expressing their views of the law and evidence. When on a ground entirely unrelated to the evidence a single juror may thus defeat the votes of the other eleven, the # system realises the abovecited definition of democracy as government by the odd man in what, to say the least, is an exceedingly odd fashion.

It was pointed out by the: Chief Justice that in Scotland eight jurors out of twelve, and in France seven out of twelve, may bring in a verdict. There is much in French jurisprudence that is foreign t.o our ideas, and no~British community would care to allow so narrow a majority to bring in a verdict of guilty on any important issue. But the Soottish precedent is deserving of more serious consideration. A two-thirds majority is a fairly solid safeguard, and we have never heard that life and character are less safe in Scotland than in any other part of the King's Dominions. The threefourths verdict, which in New Zealand is already allowed under certain conditions in civil cases, might well be applied to criminal trials, with the reservation that capital charges should still be governed by the old rule. Thie is one way out of the scandal presented by the power of a single juror to render a trial abortive on entirely irrelevant grounds. But for cases under the Gaming Act a. more efficacious remedy would be to dispense with the jury altogether. Thia could be done either by reducing the penalties or by enlarging the jurisdiction of the Magistrates. A third course would be to leave the penalties as. they are, but ■leave it to a Supreme Court Judge or a Bench of Judges to enforce them.