The Constitution's Trial By Jury Clause

The right to a trial by jury is a topic that is covered in various legal documents, including the constitutions of Australia and the United States. In the US, the Sixth Amendment guarantees the right to a trial by jury in criminal prosecutions, and this right applies in both federal and state courts due to the Fourteenth Amendment. Similarly, the Australian Constitution also includes the right to a trial by jury in Chapter III, Section 80, which states that trials for offences against Commonwealth law shall be held by a jury in the state where the offence occurred. The Australian Constitution also distinguishes between indictable offences, which are tried by a jury, and summary offences, which are heard by a judge alone.

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The right to trial by jury in Australia

The right to a trial by jury is a well-established part of the justice system in Australia, though it is not a right that is universally enjoyed by all. The Australian Constitution contains very few rights, but one of them is understood to be a right to a trial by jury. This right is found in Chapter III of the Constitution: Section 80, which states:

> "The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

The jury's role in both criminal and civil trials is to determine questions of fact and apply the law, as stated by the judge, to those facts to reach a verdict. In criminal trials, the jury determines guilt or otherwise, while in civil trials, the jury decides on fault and damages.

However, the right to a trial by jury in Australia is not absolute. The word 'indictment' in Section 80 implies that a trial by jury only occurs on offences that have been deemed indictable. Indictable offences are decided by the Parliament, and so it is within their powers to determine what is and is not an indictable offence. This means that the right to a trial by jury is dependent on the nature of the offence and the discretion of the Parliament.

The history of the trial by jury in Australia dates back to the country's colonial period before federation, when indictable offences were prosecuted in the name of the Attorney-General. This process, known as 'information, presentment, or indictment', meant that the indictment was made by a law officer (the Attorney-General) rather than by a grand jury, as was the case in other countries like the US. The inclusion of Section 80 in the Constitution was intended to create a clear distinction between indictable offences, offences punishable in a summary way, and misdemeanours.

While the right to a trial by jury is an important part of the Australian justice system, it is not without its critics. Some commentators argue that the Parliament could use its power arbitrarily, while others question the continued relevance of trials by jury in the modern age.

Section 80 of the Australian Constitution

The Australian Constitution contains a limited number of rights, and one of them is understood to be a right to a trial by jury. This right to a trial by jury is enshrined in Section 80 of the Constitution, which states that "the trial on indictment of any offence against any law of the Commonwealth shall be by jury". This means that for indictable offences, a jury will decide on guilt or innocence, while for summary offences, a judge will preside.

Section 80 falls under Chapter III of the Constitution and ensures that trials for Commonwealth offences are held in the state where the offence was committed. If the offence occurred outside of any state, the trial will take place at a location prescribed by Parliament. This provision guarantees the right to a trial by jury for Australians.

The third branch of the Australian government, the judiciary, acts as a check and balance on the legislature and executive. While the judiciary has previously interpreted Section 80 narrowly, this does not necessarily dictate future interpretations. Some commentators suggest that if Parliament were to abuse its powers, the Court might re-evaluate and place new limits on parliamentary power.

In the case of Vunilagi v The Queen [2023] HCA 24, the applicability of Section 80 to self-governing territories was questioned. The court considered whether a trial on indictment for an offence against the law of a self-governing territory fell under the scope of "law of the Commonwealth" as per Section 80. This case highlighted the ongoing evolution of legal interpretations and the dynamic nature of constitutional law.

The role of the judge vs. the jury

The judge and the jury have distinct and complementary roles in the judicial system. The recognised principle is that questions of law are decided by the judge, while questions of fact are decided by the jury. The jury is a group of people summoned and sworn to decide on the facts of a case. They represent a cross-section of the community and are tasked with listening to the evidence, determining what facts that evidence has established, and drawing inferences from those facts to reach a verdict. The jury decides whether a defendant is guilty or not guilty in criminal cases and liable or not liable in civil cases.

The judge, on the other hand, acts as a referee and is responsible for ensuring a fair and orderly trial. They interpret and apply the rules and laws to the specific case, ruling on issues of law before and during the trial. Judges decide what evidence is admissible and instruct the jury on the legal principles and rules that must be followed in weighing the facts. They also play a role in sentencing, determining the appropriate punishment based on sentencing guidelines and individual circumstances.

In the United States, the 7th Amendment of the Bill of Rights guarantees the right to a jury trial for criminal and civil matters. The U.S. Constitution provides for trial by jury in most situations, ensuring that decisions about facts are made by ordinary citizens. During jury selection, the judge and attorneys work together to ensure that the final jury will be fair and impartial, eliminating potential biases.

While the jury decides on matters of fact, the judge decides on matters of law. For example, a judge may rule on the admissibility of evidence, such as whether to suppress evidence collected without a valid search warrant. Judges also have discretion over matters like allowing or disallowing certain witnesses or types of questioning. In a bench trial, where there is no jury, the judge decides on both facts and law.

The dynamic between the judge and the jury is crucial to ensuring a fair and impartial trial. The jury brings a diverse perspective as a group of ordinary citizens, while the judge provides legal expertise and ensures the trial follows the appropriate rules and procedures. Together, they contribute to a judicial system that aims to deliver justice and protect the rights of those involved.

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Waiving the right to trial by jury

The right to a trial by jury is understood to be a right enshrined in the Constitution, though the Constitution contains very few rights. In Australia, this right is found in Chapter III, Section 80 of the Constitution, which states:

> The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

However, in some cases, it may be advantageous for defendants to waive their right to a jury trial. This is not a decision to be taken lightly, and defendants should seek legal advice from their defence attorney before making a decision. Here are some factors that may make it beneficial to waive the right to a trial by jury:

• Imperviousness to Public Sentiment: In high-profile or contentious cases, a bench trial can prevent the potential influence of public opinion on a jury. Judges base their decisions solely on the law and the evidence presented, regardless of public sentiment. This may be particularly important in cases involving violent crimes where jurors may struggle to remain impartial.
• Efficient Resolution: Bench trials typically conclude faster than jury trials. By eliminating jury selection, instruction, and deliberation, they offer a more expedient resolution to the case.
• Cost-efficiency: The shorter duration of bench trials can result in reduced court costs and attorney fees, making them more cost-effective than jury trials.
• Criminal History: If the defendant has a criminal history, it could influence the jury and make them more likely to convict.
• Defendant's Appearance: Certain physical characteristics, such as visible tattoos, might create a negative impression on the jury.
• Leniency or Sympathy of the Judge: If the judge presiding over the case is known for their leniency or sympathy, waiving the jury trial could be advantageous for the defendant.
• Lack of Trust in Law Enforcement: If the judge is perceived to have a lack of trust in law enforcement, it may influence how they interpret the evidence presented.
• Nature of the Charges: In cases involving violent crimes or domestic violence, the inflammatory nature of the charges might influence the jury.
• Complexity of Factual Allegations: If the case involves complex factual allegations, it may be challenging for jurors to understand and could potentially confuse them.
• Media Coverage: If the case has received local or national news coverage, it may be challenging to find jurors who are unbiased and unaware of the defendant's identity.
• Quicker and Less Expensive Trial: The defendant may seek a quicker and less expensive trial, especially if they intend to plead guilty or not contest the charges as part of a plea agreement.

On the other hand, there are also considerations where keeping the right to a jury trial may be beneficial:

• Reasonable Doubt: In a jury trial, the defence only needs to convince one juror to create a hung jury by raising reasonable doubt about the defendant's guilt.
• Empathy and Sympathy: Jurors may be more likely to empathise or sympathise with the defendant than a judge, who typically maintains impartiality.
• Balancing Biases: A jury consists of multiple individuals, allowing for a balance of biases and perspectives. While judges strive for impartiality, they may still hold unconscious biases.

The historical origins of trial by jury

The right to trial by jury is one of the most time-honoured inheritances from the Magna Carta in United States law. The right was brought over from England by colonists, who saw it as an essential liberty of a free country. Eighteenth-century Americans viewed the jury as an independent deliberative body that could refuse to cooperate with an unjust court or law.

The Assize of Clarendon in 1166 provided the groundwork for the present Grand Jury system. During the reign of Henry II (1154-1189), 12 "good and lawful men" in each village were assembled to reveal the names of those suspected of crimes. It was during this same period that juries were divided into two types: civil and criminal. By 1290, these accusing juries were given the authority to inquire into the maintenance of bridges and highways, defects of jails, and whether the Sheriff had kept in jail anyone who should have been brought before the justices.

The right to trial by jury was guaranteed in the constitutions of the original 13 States and in the body of the Constitution and the Sixth Amendment. The right was also included in the constitution of every State that entered the Union thereafter. The inclusion of the right to trial by jury reflected a reluctance to entrust plenary powers over the life and liberty of citizens to one judge or a group of judges.

The Stamp Act Congress of 1765 wrote that "trial by jury is the inherent and invaluable right of every British subject in these colonies". John Jay, who later became the first chief justice of the United States Supreme Court, wrote, "Know then that we claim all the benefits secured to the subject by the English Constitution, and particularly the inestimable right of trial by jury". In 1774, the First Continental Congress met in Philadelphia and resolved that the American colonists were entitled to "the great and estimable privilege of being tried by a jury of their peers in the vicinage".

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