THE JURY SYSTEM

Wanganui Chronicle, Volume 72, Issue 82, 6 April 1929, Page 8

THE JURY SYSTEM

WEAKNESSES DISCUSSED SUGGESTED IMPROVEAIENTS. Describing the principle of granting exemption from jury service as one depriving the jury of the best brains of the community, Mr A. T. Donnelly (Christchurch), at the Legal Conference at Wellington, contended that there should be a thorough conscription of jurymen, and that applications by business men should receive less consideration, “It is the fashion to speak contemptuously of the jury,” he said. “According to an American authority, the only tiling the Almighty Himself does not know is what the verdict of a common jury will be. A great jurist in New Zealand once told me that juries were a device occasionally used by Judges in times of doubt and difficulty to avoid responsibility and work. In New Zealand the hostility to the jury has undoubtedly recently grown stronger, but. this hostility is partially founded on lack of knowledge and experience because it is greatest among lawyers who have practised before juries the least. Necessary Isolation. “One. of the observations I would like to make is that decisions of fact in order to satisfy litigants and the public must accord with the average standards, principles, and opinions current in the community at the time, and sometimes it is better to satisfy the community with a bad decision rather than offend it with a good one. The advantage of the jury over the Judge is that the decision of the jury, unless tainted by rare passion or prejudice, is the anonymous average of the honest and honourable impartiality of the community as the whole. The decision of the Judge may be sounder and wiser and yet not give the same satisfaction because the standards of the Judge may be higher or lower, broader or narrower, than the average community standard at the time. The necessary isolation of the high office of Supreme Court Judges in New Zealand may, as the years go by, leave the Judge a little out of touch or sympathy with the current changing standards of everyday life. In New Zealand a Judge’s resident jurisdiction extends over a whole province of an island. If decisions of fact in common law actions are left permanently and exclusively to the Judge, then all such decisions over a great territory may be stamped or coloured or bent, too strongly by the outlook on life of the Judge or his personality or cast of thought. Common law decisions of fact depend on the reaction to the evidence of the tribunals’ knowledge and experience of life. These cases are not the same as controversies about technical doctrines such as the Statute of Frauds or the perpetuity rule because the man in the street has the material and competence in many of these cases to match, and does match, his opinion with that of the Judge. “Attacks Will Come.” “There are changes which we might consider in the working of the jury system. One disability is to be found in the principle of exempt ion which excuses the best, brains in the community from service on the jury. Exemptions are too wide to-day and organised bodies of commercial men, commercial travellers recently for example, have applied for total exemption for members of their trade or business. A thorough conscription of jurymen should be enforced, exemptions should be diminished rather than increased, and applications for exemptions by business men should receive les consideration than in the past. “No enemy of the system has had the. courage to attack the criminal jurisdiction the jury, but if the whole institution is not defended such, attacks will come. In criminal cases, there are certain practical changes which may be considered. If there is no fear of interference with the jury, there is no reason for the continuance of the Crown’s right to stand aside, which can only be justified a.s an emergency weapon against, possible corruption of the course of justice. The right is not generally abused, but is always available and in important criminal eases it has been extensively used. “The preponderant selection of the tribunal should not be left to the discretion of individual prosecutors, because the vesting of such a right in one party to the litigation may sometimes prejudice, and does frequently’ dissatisfy the other.”

“The community is protected from all real perils in the jury system by the power of correction and control by the Judge, which is always available to cheek irregularities and misconduct. This power of control has in some, times and places been extended to include a right in the Judge to express publicity in the presence of the jury his personal disagreement with a verdict. I. feel no delicacy in making this reference because there has been no such comment by a Judge in New Zealand for a very long time. “We should carefully reserve the balance of the component parts of out system of justice. A Judge is hardly more entitled to comment on the verdict of a. jury than a defeated litigant from the body of the Court or a defeated counsel from his place* at the bar. Criticism by the Judge beyond his traditional power of control and correction not only hurts the institution of the jury, but also lessens the dignity of the Bench.”