It is no surprise that Lloyd Rayney has chosen to have a judge sitting alone try the case against him rather than exercising his right to trial before a jury.
Past media speculation, the high profile of the victim and accused as members of the Western Australian justice system, police and DPP comments that there is no other suspect, the forensic focus on the family home, and the public image of Mrs Rayney as model mother fed a doubt that a representative jury would come to the trial with minds clear of predisposition or prejudice.
Although there is no suggestion that a local judge would be incapable of putting aside any predispositions they too might hold, the Court appointed former Northern Territory chief justice Brian Martin, to try the case. This was to ensure that not only would justice be done, but it also would be seen to be done.
However, this raises the question of whether the accused should have the option to choose his or her method of trial, or should that privilege belong to the people?
Whose is the right to trial by jury?
In granting the accused the right to choose between trial by judge alone or by a jury of their peers, the [Criminal Procedure Act](http://www.austlii.edu.au/au/legis/wa/consol_act/cpa2004188/ 20040 (WA), section 118(4) says, the court can make such an order “if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.”
That the court does so with some trepidation is evident in section 119 (10), which requires the sitting judge to apply as closely as possible the same principles that would apply to a trial before a jury.
This way lies the path to democracy. Or does it?
The community vs the accused
The community regards its involvement in the jury system as its right. Its preference for jury trial over that of trial by judge alone is universal and, apparently, increasing.
The jury is the community’s representative in the system to see that justice is done. Justice will be done to the community’s satisfaction only if verdicts and sentences reflect its values, or, expressing it more cynically, they reflect the prevailing standards that pass for values.
If one purpose of the representative jury is to guard against an arbitrary verdict of guilty, another is to ensure that a judge sitting alone does not arbitrarily acquit a guilty accused. Therefore, the philosophical question is whether the right to jury trial belongs primarily to the community or to the accused.
The historical record
The ancient tradition of the jury as the bulwark of democracy is too easily misunderstood as having existed always to safeguard the rights of the individual. History tells us otherwise.
Briefly, the Crown in the Middle Ages wanted a representative jury, but it wanted to define representativeness in its own image. And, the dilemma of definition still troubles the justice system today.
The reality is that through the Middle Ages, the justice system and the jury system that serviced it were manipulated to fulfil the Crown’s needs during successive eras of changing social conditions. As conditions changed through the epochs, so did the jury’s representative nature. But always it was tailored to suit contemporary needs of the Crown. We are still doing that, as attempts to reform the jury selection process attest.
The chequered history of reasonable doubt
However, we should be wary of investing the myth with more substance than it deserves. Take, for example, the hallowed principle of “beyond reasonable doubt.” Judges love to cite it (although with a great deal of caution when directing the jury) as the prisoner’s surety that the jury will only find him or her guilty if they know deep in their consciences that he or she “did it.” The problem is, “beyond reasonable doubt” is a principle with a doubtful provenance.
In the thirteenth-century England when “reasonable doubt” was born, it served a less noble purpose than that which we attribute to it today. Then, English people lived under both royal and ecclesiastical authority. They thought fearfully about the potential for eternal damnation if, sitting in judgment on another, they sent an innocent person to death. Legal historian James Whitman says, “For Christians living in an age of fear and trembling, any ‘doubtful’ act was full of danger”. Therefore, jurors did not want to convict, even when the evidence of guilt seemed overwhelming.
To overcome this timidity, we had the birth of a golden rule of law – satisfaction of guilt “beyond reasonable doubt.” However, unlike later when Blackstone uttered his famous dictum that “it is better that ten guilty persons escape than that one innocent suffer,” at it’s birth, the aim was to get more guilty verdicts by assuring jurors that God did not expect them always to be absolutely certain. It was a “rule bound up with the fate of those who sat in judgment.”
Beyond reasonable doubt allowed a bit of latitude in interpreting the biblical admonition “judge not lest ye be judged.” Judges dreaded their responsibility so much that they avoided entering verdicts if at all possible, or else sought to diminish their personal responsibility by embracing the old aphorism of safety in numbers, that is, through the unanimous decision of the jury.
In unanimity lay the spurious logic that God must have determined it to be so. If one has a tinge of guilt that perhaps the accused is after all innocent, the opportunity still lies to rationalise one’s personal guilt in the idea of collective guilt.
A truly representative jury?
There might have been an injustice; however, as Hannah Arendt says, when the collective does nothing to right an injustice, we can subsequently wring our hands and say “we are all guilty,” but, as she says, “when we are all guilty no one is.” That sentiment might be comforting in a new, “enlightened” age. Whether it stands scrutiny by omniscient God is unknowable — or unthinkable?
But in trying to maintain the truly representative jury in the mythologised form of it as a bastion of democracy in a diverse modern society, we might instead reveal a need to question the relevance of the myth.
We meed more research to assure all community members that the jury still delivers substantive truth in justice. In the meantime, the justice system must work with what it has got.