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Decisions Without Reasons ‒ Rethinking Jury Secrecy

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Decisions Without Reasons ‒ Rethinking Jury Secrecy Decisions Without Reasons – Rethinking Jury Secrecy ______________________________________________________________________________ Decisions Without Reasons – Rethinking Jury Secrecy Jason Donnelly BA (Macquarie University), LLB (University of Western Sydney) Decisions Without Reasons – Rethinking Jury Secrecy ______________________________________________________________________________ Decisions Without Reasons – Rethinking Jury Secrecy © 2008 Jason Donnelly All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording or any information storage and retrieval system, without permission in writing from the publisher. Published by: BookPal Unit 4, 28 Boyland Avenue, Coopers Plains, QLD 4108 Tel: (07) 3712 2800 Web: www.bookpal.com.au National Library of Australia Cataloguing-in-Publication entry: Author: Donnelly, Jason Title: Decisions without reasons – rethinking jury secrecy / Jason Donnelly Edition: 1st ed. Subject: Jury. Trial practice. Dewey Number: 347.0752 ISBN 978-1-921300-96-7 Decisions Without Reasons – Rethinking Jury Secrecy ______________________________________________________________________________ For my Grandmother, Irmgard Napieracz Decisions Without Reasons – Rethinking Jury Secrecy ______________________________________________________________________________ Abstract It has often been asserted that the system of trial by jury in the Australian common law tradition represents a fundamental component of the criminal justice system. Yet, interestingly, the number of criminal and in particular civil jury trials has steadily declined in recent years. In an effort to instil newfound confidence and strength in a system in decline, this dissertation examines whether and to what extent jurors should provide a rational and cogent set of reasons for any decision that they reach. Rather than undermine public confidence in the mandatory provision of reasons, an explanation for a particular verdict by a jury will bring these decision-makers in line with most other fact-finders in the Australian legal system, where reasons for a decision is compulsory. Besides examining the substantive arguments for and against the jury secrecy rule, an extensive survey of the system of trial by jury will be examined in light of both international law and those nation states around the world that make use of the jury system. Surprisingly, little academic and judicial treatment has been given to the implications of the jury secrecy rule in Australia in light of Australia‟s obligations within the spectrum of international law. With the development of the common law, there has been a growing trend in recent times within the area of administrative law that administrators provide reasons for their decisions. It is argued that the rationale behind this increasing obligation upon administrators can also be extended to jurors, who paradoxically make more important decisions without the need to provide reasons for their verdicts in a criminal trial. Moreover, an outline of the fundamental importance in the giving of reasons for a decision by fact-finders will be examined in light of the overarching principles of the rule of law. Finally, given the great difficulty in changing a system that has itself remained predominantly unchanged for hundreds of years, a range of reforms will be offered to the current Australian trial by jury system, with a focus on the mandatory provision of reasons by a jury verdict of guilty at the very least. Decisions Without Reasons – Rethinking Jury Secrecy ______________________________________________________________________________ Table of Contents CHAPTER 1 – THE NATURE OF JURY SECRECY .................................................. 1 1.1 INTRODUCTION ............................................................................................................ 1 1.2 HISTORY OF THE JURY ................................................................................................. 2 1.3 ROLE OF THE JURY IN A CRIMINAL TRIAL ................................................................... 5 CHAPTER 2 – A CRITIQUE OF THE ARGUMENTS SUPPORTING JURY SECRECY .......................................................................................................................... 7 2.1 THE LAW OF JURY SECRECY IN AUSTRALIA ................................................................ 7 2.2 FOUR GOLDEN FACTORS ........................................................................................... 11 2.3 COMMUNITY OF JURORS ............................................................................................ 19 2.4 MISCELLANEOUS ARGUMENTS .................................................................................. 21 CHAPTER 3 – VERDICTS WITHOUT EXPLANATION, WHY JURORS SHOULD PROVIDE REASONS FOR THEIR DECISIONS ..................................... 27 3.1 INTRODUCTION .......................................................................................................... 27 3.2 JURY NULLIFICATION OR JURY EQUITY ..................................................................... 27 3.3 INCREASED ACCOUNTABILITY OF JURORS ................................................................. 29 3.4 WHAT ROOM FOR JURY SECRECY ON APPEAL? ......................................................... 33 3.5 SOME FURTHER ARGUMENTS AGAINST JURY SECRECY ............................................ 38 CHAPTER 4 – UNDERSTANDING MANDATORY PROVISION OF JURY REASONS IN LIGHT OF ADMINISTRATIVE LAW ............................................... 44 4.1 CONNECTION BETWEEN ADMINISTRATIVE LAW PRINCIPLES AND JURY SECRECY .... 44 4.2 ACCESS TO INFORMATION ......................................................................................... 45 4.3 NATURAL JUSTICE AND PROCEDURAL FAIRNESS ...................................................... 54 4.4 ABUSE OF POWER AND BROAD ULTRA VIRES ........................................................... 59 CHAPTER 5 – REASONS FOR JUDGMENT, WORLD JURY SYSTEMS AND THE RULE OF LAW ...................................................................................................... 65 5.1 IMPORTANCE OF REASONS FOR JUDGMENT ............................................................... 65 5.2 RULE OF LAW AND JURY SECRECY ........................................................................... 69 Decisions Without Reasons – Rethinking Jury Secrecy ______________________________________________________________________________ 5.3 PRESUMPTION OF INNOCENCE AND BEYOND REASONABLE DOUBT .......................... 73 5.4 WORLD JURY SYSTEMS AND JURY SILENCE .............................................................. 77 CHAPTER 6 – AN INTERNATIONAL LAW PERSPECTIVE ON THE CONCEALMENT OF JURY DELIBERATIONS ....................................................... 85 6.1 INTRODUCTION TO INTERNATIONAL LAW ................................................................. 85 6.2 CIVIL RIGHTS IN INTERNATIONAL LAW ..................................................................... 85 6.3 POLITICAL RIGHTS .................................................................................................... 92 6.4 EUROPEAN COURT OF HUMAN RIGHTS ..................................................................... 94 CHAPTER 7 – JURY REFORM AND EVOLUTION OF THE AUSTRALIAN JURY ................................................................................................................................. 97 7.1 MANDATORY PROVISION OF REASONS FOR JURY VERDICT ....................................... 97 7.2 DRAFT LEGISLATION ............................................................................................... 101 7.3 SERIES OF QUESTIONS FOR JURY JUDGMENTS ......................................................... 103 7.4 CONCLUDING REMARKS .......................................................................................... 104 8. ANNEXURE ............................................................................................................... 106 8.1 AUSTRALIAN CRIMINAL LAW JURY SURVEY........................................................... 106 8.2 COMMENTARY OF PARTICIPANTS REGARDING AUSTRALIAN CRIMINAL LAW JURY SURVEY ........................................................................................................................ 107 9. BIBLIOGRAPHY ...................................................................................................... 108 9.1 BOOKS..................................................................................................................... 108 9.2 JOURNAL ARTICLES................................................................................................. 110 9.3 WEBSITES................................................................................................................ 114 9.4 ENCYCLOPEDIA & MISCELLANEOUS SOURCES ........................................................ 117 9.5 AUSTRALIAN CASES ................................................................................................ 118 9.6 AUSTRALIAN LEGISLATION ..................................................................................... 122 9.7 INTERNATIONAL CASES ........................................................................................... 124 9.8 INTERNATIONAL INSTRUMENTS ............................................................................... 126 Decisions Without Reasons – Rethinking Jury Secrecy ______________________________________________________________________________
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