JURIES IN CIVIL CASES

Taranaki Daily News, 23 July 1930, Page 3

JURIES IN CIVIL CASES

VIRTUAL ABOLITION OF RIGHT.

CROWN SOLICITOR’S COMMENTS. What hao been described as the virtual abolition of the right to trial by j ur y i’- 1 civil cases was recently the subject of some interesting comments by Mr. W. D. Campbell, Crown Solicitor at Tiraaru, when addressing members of the Rotary Club in that centre. “A revolutionary change was introduced a little over five years ago in the shape of the practical abolition of trial by jury in civil cases,” said Mr. Campbell. “Up till that time every action where the amount claimed for debt or damages or chattels exceeded £5OO was tried, as of course, before a Judge and jury of 12. Where the amount was between £5O and £5OO the litigant could get a jury of four. Since the beginning of 1925, the right to a jury has been abolished except in actions of tort (such as collision eases) and now a litigant in most civil cases can obtain a jury only if the Court thinks the action can be more conveniently tried in that way. This change was effected by an Order-in-Council made under the professed authority of a section in the Judicature Act, which authorises the Governor-in-Council, with the concurrence of any two or more of the Judges, to make rules regulating the practice and procedure of the Court. The practice and procedure of the Court relates to the machinery of the law, by which the rights of litigants are decided and enforced, and not to those rights themselves. It seems open to question whether the section of the Judicature Act referred to authorises the making of a rule which not merely relates to the practice and procedure of the Court, but cuts away from litigants the right to have questions of fact in their disputes settled by a jury —a right which has existed and been exercised in, England and ita off-shoots for hundreds of years. A distinguished American jurist, Professor Thayer, of Harvard University, writing in 1898, says; ‘The great general rule is that the regular common Law mode of trying questions of fact is by jury.’ If,.therefore, this mode of trying questions of fact in civil cases is a common law right of litigants, it cannot be taken away by Order-in-Council made under a statute which authorites only rules dealing with thfe practice and procedure of the Court.”

Mr. Campbell quoted the opinion, published at the time by Mr. H. F. O’Leary (Wellington), one of the first lawyers to call attention to the resolution. Mr. O’Leary wrote as follows: “The has by the rules under discussion altered the mode or trial of civil actions in the Supreme Court, and while Section 51 exists in its present state there is nothing to prevent an alteration which will have the effect of abolishing trial by jury in civil cases absolutely. With all due deference, I suggest it was never the intention of the Legislature to give to the Governor-in-Council such absolute power. Trial by jury is unquestionably one of the most marked and characteristic .features of the Common Law. To the average man it is the tribunal for the decision of disputed facts—it is the tribunal which, with all its faults, real or imaginary, is immeasurably superior to any other. Was it contemplated when Section 51 was enacted that the use of such a tribunal for the decision of the facts 'of a civil case was to be a matter for the Gov-ernor-in-Council, and not for the representatives of the people.” “Nobody with any experience would contend that the jury is an institution free from faults and frailties,” continued Mr. Campbell. “We are not yet living in the millenium. But taking it by and large, the jury, as an instrument for getting at the truth in matters of fact, has yet to find its superior.” The jury system had the support of many eminent Judges, both in England and in New Zealand. “The Judge, as Mr. Johnston said, has displaced the jury as the criterion of truth. What are the chances that he will be more correct in his decision than the jury has been? The record of the Bench in England is that one out of every three judgments tested by appeal is wrong. And appeals from one Court to another are generally on matters of law because on a question of fact an Appellate Court acts oh the rule that it will not dispute the findings of fact of the trial Judge who has seen the witnesses. So in their own expert” sphere they have established a pretty high percentage of error. How much more likely are they to go wrong on questions of fact ranging over the whole sphere of human activities in which they are not experts and in which their experience must be vastly inferior to that of the reservoir of humanity from which juries are drawn.” In conclusion, Mr. Campbell quoted Mayer, who said: “The working out of the jury system has never been shaped merely by* legal or theoretical considerations, That body always repiesented the people, and came to stand as the guardian of their liberties, so that whetlier the Court or the jury should decide a point of fact, could not be settled on merely legal grounds; iij was a question deeply tinged with political considerations.’ And the hope was expressed that it might become so again in New Zealand.