THE JURY SYSTEM

Evening Star, Issue 16516, 30 August 1917, Page 3

THE JURY SYSTEM

MAJORITY-VERDICT PROPOSALS. SOME LOCAL LicAL OPINIONS. Tile Bill ‘which the Hon. John MacGregor has introduced in the Legislative Council to amend the jury system in criminal trials by making a majority verdict (H or 5-6)* sufficient to convict or acquit a prisoner is bound to cause a lot of debate, and the opinions of three leading Dunedin barristers appended below should prove of interest. Mr Saul Solomon, K.C., the senior member of the Bar, has had wide experience before juries in -both criminal and civil trials; lie is emphatically for the substitution of a majority verdict in criminal cases arid the abolition of a jury in civil cases. Mr W. C. MacGregor, K.C. (Crown Prosecutor), very brielly relates why ho is not favorable to a change in the existing system. And Mr A. C. Hanlon, who has probably had more experience of juries in criminal trials than any other barrister in New Zealand (having defended in the Supreme Court many hundreds of accused persons—some 15 of them on the capital charge), expresses with great weight his opinion that any alteration from unanimity would tend to weaken a system that lias proved one of the great bulwarks of personal freedom. Incidentally he sets forth the very great prerogatives that tlie Crown already can use in criminal cases. MR SOLOMON: THE CASE FOR MAJORITY VERDICTS. “ As to the retention of the grand jury system,” Mr Solomon began, “ I say nothing. This seems to me a political* or a constitutional question, and my opinions on such. a subject are, I think, of little value. The questions th;fc a barrister of experience would have some knowledge of are, I think, two: (1) Should unanimity he necessary in the verdict of a jury ‘that tries a criminal case? (2) Should civil cases be tried by juries? On the first question, once it is granted that juries’ are proper tribunals for both criminal and civil cases, it seems to me that, before any distinction is made between them, some good reason should be forthcoming., I am unable to see any such reason. If a majority verdict is sufficient for a decision on fact in a civil action, 1 see no reason why a majority verdict should not be equally sufficient for a decision on fact in a criminal trial. This statement of mine does not apply to capital cases, and for very good reasons. Verdicts of juries on questions of fact can be remedied (if found to be wrong) by means of a new trial, but in capital cases the remedy for a failure of justice is unfortunately beyond redress. In these circumstances. I think thafc unanimity (although in iny opinion quite illogical) should be necessary. Hut with this exception I think that a trial before a jury of 12 in which a majority of threequarters or five-sixths is sufficient for conviction is much to be preferred to the present system. Not only can I see no valid argument against the change, but from actual knowledge I know that there arc abuses under the present system. My own experience, when I was regularly occupied with criminal cases, taught me that, while challenge was allowed to get rid of hostile or objectionable persons upon a- jury, it was, in many cases, considered much more to the advantage of the prisoner to get a certain person on the jury than to \get others off. Indeed, to the prisoner, one friend on the jary was worth three enemies off. The other question is: Should civil cases be tried by .jury or by a Judge or Judges? Again, if any change is to be made it must be for good reason. In my opinion there is no need for trial by jury in civil cases, though in criminal cases trial by jury is too old-established a part of the fabric of the British Constitution to be interfered with. The best evidence I can give from experience of the fact that trials of civil cases by jury are not necessary, or even desirable, is that I have always found that where barristers had a good case they wanted it tried by a Judge, while, if they had a weak or doubtful case, they preferred a jury. This, 1 think, is a strong argument. The questions of fact that fall to juries to decide in civil cases are not the same as in criminal cases. In the latter the matter is pf pure fact, quite suitable for any common juryman to try ; but in civil cases the facts are very often so mingled with inferences of fact ns to present great difficulties to juries. Upon the whole, I certainly think that trial of civil cases by Judges is preferable to that by juries. I am bound to say, however, that I do not think that a suitor should be compelled against his will lo have the facts in civil cases tried by a single Judge. A Judge, after all, no matter how eminent, is but a man; and it is our experience that two men, both quite reliable, will come to quite opposite conclusions on questions of fact. The best tribunal, in my opinion, for a decision of civil cases is a Bench of Judges, in which the majority prevails. No doubt theoretically the verdict of a single Judge is open*to review by way of appeal, but that very much increases the cost of litigation, and is in many cases beyond the means of the suitor.” Mr Solomon remarked, in conclusion, that he was very diffident in giving expression to these views; but since the opinion of experienced members of the Bar was demanded, and might be of assistance, ho had said exactly what he felt.

MR MACGREGOR- : NO NEED FOR CHANGE. “ fn the first place,” said Mr MacGregor, “I do not believe in abolishing tho grand jury system, which occasionally does away with cases that ought never to have been brought. Further, I am not convinced that it would be wise to introduce a majority verdict in criminal cases. No doubt there have been criminal cases in Xew Zealand where juries have returned extraordinary verdicts; but at the same time I a*m not prepared altogether to condemn juries for such individual miscarriages of justice. In my opinion, unless the 12 men composing a common jury are individually convinced of a person’s guilt, the accused should be discharged. In most cases where there are one or two dissentients, these are overruled by the majority of the jury in the jury room. _ My experience of the jury system in New Zealand does not lead mo to believe it necessary ao introduce a majority verdict in criminal cases.” ME HANLON—HANDS OFF THE JURY SYSTEM. Air Hanlon said that the jury system had proved a great bulwark of personal liberty, and it should not be lightly interfered with. “At the outset,” lie added, “ it seems pertinent to ask do the snp-

porters of this 'reform wish to alter the present system with a view to its ultimate abolition. or is the substitution cf the majority verdict the actual objective? What confuses me as to this issue is that almost all of the arguments used in' favor of the majority verdict "are really arguments for the abolition of the jury system. They expose weaknesses which will not be cured by majority verdicts. The argument is that where a unanimous verdict is demanded a stupid,, perverse, or gorrnpt juror or two will cause a miscarriage of justice. It is well known to all men of experience that juries rarely disagree where there are but one or two dissentients from the common view. Such a minority is generally overruled, before the jury has been shut up long. And in cases of disagreement the Crown has the right to try a man again and again, while its (the Crown’s) prerogative rights in selecting a jury are so overwhelming that a miscarriage of justfe* is unlikely and indeed rare, unless an acquittal for lack of evidence is to bo considered a miscarriage of justice. The statutory and prerogative rights of the Crown may not he generally known. In the first place the jury list is prepared by the police, and while it is true that Justices sit to revise it, in practice no one bothers to get put on. Then, while the Crown has only the same statutory right. cf challenging jurors as the accused has, the Crown has the right to stand aside as many jurors as it pleases until the panel is exhausted. Tims in a panel of, say, 40 jurors the Crown can practically select its own jury. I know of a case in which the Crown exercised this right so fully that the. result was that every member of the jury chosen had found another person guilty on a like charge with the same evidence offered. So much for disagreements, with just this added word : that a number of cases lie within my own experience in which on a second trial after disagreement an accrued person was acquitted, which seems to indicate that all disagreements are not the result of a small minority shielding a guilty person from justice. “ It seems to me that the real object of the proposed amendment is to render it much easier for the Crown to obtain convictions. Are there too many acquittals? An acquittal means that 12 men are unanimously satisfied that evidence strong enough to justify the conviction of the prisoner has not been led by the Crown. It is in cases where the jury have unanimously found against the summing-up of the "judge that the term “miscarriage of justice” is often used. But it does not necessarily follow that because a Judge sums up against an accused person there ought to be a conviction. The jury approach the matter with open mind and with nothing before them hut the evidence upon which they are sworn to give a verdict, and give a verdict on the evidence, as sworn to do. The Judge has before him the depositions, which frequently contain matter that cannot legally be submitted to the jury. Moreover, he has the antecedents of the prisoner before him. and this may giva quite a different complexion to the "evidence.

“ It must be conceded that the jurv system is not faultless, hut has anyone yet devised n system of trying accused persons which has all the advantages of flic present system and none of its defects? The supporters of the proposal under review seem to have no very definite ideas. A three-fourths majority is suggested, a five-sixths. majority. Why not a twothirds majority, or even a bare majority ? And why is an exception to be made of the capital charge? It is certain that a jury is so chary about taking life that it will never convict without absolute assurance of guilt; and it is for this reason that unanimity one way or the other is the almost invariable rule in such cases. ~“, In , nl . v opinion there is not the slightest reason for any interference with the present system in the direction proposed , and ,t is the duty of the people to see that their rights are not whittled away by any reduction from absolute unanimity.”

BILL BKFOU-t? legislative COUNCIL. HAS GOVERWUENT SUPPORT AS AMENDED. w^i Jur - es Bill . fHon - J - MacGregor) was taken m committee in the T.p.rJdnGve Council yesterday afternoon. The followmg substituted clauses v*as adopted: That if the jurors empannellod to try a tnmina l case other than a capital case ::i ; ? the jury have retired to conieist thr Clr i VCrt IC - f - 0r a P erind of nt tlnfM • ho ” rS ’ ', ntl,natc to the Judge that there is no probability of their hciim mammons the verdict of 10 ju7o r V hj f accepted it the J„d gß , ",” 1 SST S ' ,a " b ° 1» sleek 11 furor, was' "l" Pr ° Ceod With Sir Francis Be/lG cGr f.g° r consented to : ‘s «»third Sli; 11 ; ; ,ea n that thTn } f, Council would p. ", * llc Bill went off the Order with later * VOl,ld b ° g° n * 0” acer by the Government.