Thursday, November 10, 2005

Professor David Brown: Majority verdicts: a poor judgement: "THE decision yesterday by the NSW Attorney-General, Bob Debus, to move to majority verdicts in jury trials constitutes a capitulation to political and media pressure rather than a considered response to the issues.

"There is no clearer demonstration of this than the fact the decision was announced the same day as the tabling of a NSW Law Reform Commission report on majority verdicts, which recommends against this very change. In short, political pressure trumped considered legal argument.

"A curious feature of that debate has been the lack of reference to the High Court decision of Cheatle in 1993. Here the High Court said that on the grounds of "history, principle and authority", the right to jury trial contained in the constitution meant the right to a unanimous verdict; a unanimous High Court bench held that unanimity was "an essential feature" of a jury trial.... This central argument favouring unanimity is traceable to the Magna Carta. Early Australian colonists saw the right to a (unanimous) jury trial as a fundamental political inheritance and an analogue to the right to vote. The absence of jury trial for the first 40 years in NSW became a grievance that filled the more politically serious and astute press of early Sydney."

Perhaps I am imagining things, but in days gone by the views of the Courts, and more so the High Court, and other distinguished legal personages would be treated with the greatest respect. Careful arguments would have to be made and objections countered before proceeding with any such changes.

These days both major parties are progressively abandoning very longstanding traditional values of conservatism and legal practice. Its hard not to conclude it is part of a process of populism and power aggrandisement on the part of the executive.
PS. We need a lawyer-blogger who understands and explains our traditional legal rights and civil liberties, and monitors the assaults on them from State and Party power. Is there anybody out there?

No comments: