Trial by jury and trial by judge alone
23Before turning to consider the issues raised in this appeal, it is instructive to reflect on the origin of trial by jury and the more recent intervention by legislatures to provide the alternative procedure of a trial by a judge alone. The trend in recent years has been toward the use of judge-alone trials - the trend being more pronounced in the resolution of civil disputes. As is apparent from the decisions of judges, both in England and Australia, any suggestion that trial by jury should be confined, either for the trial of civil disputes or crimes, can arouse a strong response from many lawyers: see, for instance, Ford v Blurton (1922) 38 TLR 801 at 805 (Atkin LJ); Brown v The Queen [1986] HCA11; (1986) 160 CLR 171 at 201-203 (Deane J), 216-217 (Dawson J); J, S, M v R [2010] EWCA Crim 1755 at 8 (Judge LCJ). However, notwithstanding its many supporters, the Parliaments of many of the States have legislated to increase the opportunity for judge-alone trials: see Supreme Court Act 1933 (ACT) s 68B; Criminal Code (Qld) s 615 and Criminal Code Act 1899 (Qld) Sch 1; Juries Act 1927 (SA) s 7; Criminal Procedure Act 2004 (WA) s 118.
24In AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, an appeal concerned with defects in the reasons of a judge who tried an alleged offender without a jury, Heydon J discussed the nature and benefits of trial by jury and trial by judge alone. His Honour drew upon statements by Lord Devlin, a strong supporter of jury trials, describing them as the "lamp that shows that freedom lives" (Lord Devlin, Trial by Jury (rev ed, 1966 at 164). Heydon J discussed five advantages of trial by jury which had been identified by Lord Devlin. His Honour said:
"First, Lord Devlin thought juries were superior to judges in assessing defence points: "the hope of the defence very often lies in impalpabilities - the willingness to make allowances for muddle-headedness, illogicalities and unreasonableness - impalpabilities that are less appealing to the legal mind than to the lay". He said: "[I]t is an essential part of the system that the law should recognise that there are cases in which such factors should be dominating."
Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility:
'[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers.'
Lord Devlin also saw a third advantage in trial by jury:
'[M]inisters of justice have to serve two mistresses - the law and the aequum et bonum or the equity of the case. Their constant endeavour is to please both. That is why the just decision fluctuates ... between two points. In most systems the just decision is tied pretty closely to the law; the law may be made as flexible as possible, but the justice of the case cannot go beyond the furthest point to which the law can be stretched. Trial by jury is a unique institution, devised deliberately or accidentally - that is, its origin is accidental and its retention deliberate - to enable justice to go beyond that point.'
He considered that trial by jury had a "unique merit" in "that it allows a decision near to the aequum et bonum to be given without injuring the fabric of the law, for the verdict of a jury can make no impact on the law". Thus Lord Devlin saw the jury as being for some purposes "the best judicial instrument". A clear illustration of this role of the jury is seen when the jury decides whether the facts it finds answer certain legal criteria. That phenomenon is recognised by s 118(6) of the Criminal Procedure Act, for the court may refuse to order trial by judge alone "if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness". Other examples of factual issues requiring the application of "objective community standards" include whether behaviour was "threatening, abusive or insulting"; whether conduct was "dishonest", a matter to be decided by the jury "according to the ordinary standards of reasonable and honest people"; whether an assault is "indecent"; and whether an accused person had a particular intention.
Lord Devlin saw a fourth advantage of jury trial which was "of great importance in the constitution. The ... existence of trial by jury helps to ensure the independence and quality of the judges."
A fifth advantage detected by Lord Devlin was:
'[T]rial by jury ... gives protection against laws which the ordinary man may regard as harsh and oppressive. I do not mean by that no more than that it is a protection against tyranny. It is that: but it is also an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just. If it does not, the jury will not be a party to its enforcement. They have in the past used their power of acquittal to defeat the full operation of laws which they thought to be too hard.'
In this respect, an accused person who is tried by judge alone is in a very different position from one tried by jury. A jury may have no right to acquit in the face of evidence, but, unlike a judge sitting alone, it has a power to do so, and a power which it is impossible to control on appeal because of traditional limitations on the capacity of the prosecution to appeal from acquittals. In R v Shipley, Lord Mansfield CJ said:
'It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.'
As Lord Goddard CJ told the House of Lords in 1955, "no one has yet been able to find a way of depriving a British jury of its privilege of returning a perverse verdict". A judge cannot tell a jury to convict, for that would be to make the judge "decide the case and not the jury, which is not the common law". The Criminal Procedure Act has gone a step further from the common law by making the judge decide the case without any jury being present at all. The fact-finding procedures of juries thus can be marked by a kind of benign irrationality, for it is open to juries to acquit in the face of very strong evidence merely because they dislike some aspect of the law being enforced, or the behaviour of the police, or the testimony of prosecution witnesses or the conduct of the judge. A judge sitting alone, however, is expected to conform in all respects with rational criteria - the criteria commanded by applicable rules of law, and the criteria imposed by the "logical faculty" - in assessing the credibility of witnesses, in weighing the probabilities of particular events having happened and in drawing inferences from primary facts." (footnotes omitted)
25Heydon J also recognised that not everyone admires jury trial and identified what his Honour referred to as the "irrational" aspects of trial by jury in criminal cases. His Honour said:
"The selection of 12 as the number of jurors has never been satisfactorily explained. Jurors are expected to understand, remember - on occasions for months - and weigh evidence, which is sometimes not given clearly or is complicated in character, often without ever having done this before. They are expected to grasp and apply sometimes complex propositions of law, almost always without any prior experience of or training in this activity. Many jurors were and are "unaccustomed to severe intellectual exercise or to protracted thought". The development of jury trial has been "irrational" in the sense that the jury began, against the background of irrational modes of trial like trial by ordeal and trial by battle, as a body selected for the very reason that the jurors, men of the neighbourhood, had knowledge of the facts relating to the dispute. In this respect it was superior to those rival modes of trial shortly to be forbidden by the Fourth Lateran Council in 1215. But now persons who have any prior knowledge of the dispute or the protagonists in it are likely to be excluded from the jury. The jury is now a body which knows nothing, beyond the teachings of common experience and what may be judicially noticed, except what witnesses tell it or supply to it. It began in order to serve one function; it came to serve another; and its role in performing that latter function has been deliberately preserved."
26Heydon J discussed the protection afforded an accused person flowing from the jury's right to return a perverse verdict and recognised the benefits derived from the obligation of a jury to return a unanimous verdict. Of course, in some jurisdictions, including New South Wales, that principle has been eroded: see Juries Act 1927 (SA) s 57; Criminal Code (NT) s 368; Juries Act 2003 (Tas) ss 3, 43; Criminal Procedure Act 2004 (WA) s 114; Jury Act 1977 (NSW) s 55F(3); Juries Act 2000 (Vic) s 46. Trial by judge alone removes the principle of unanimity by multiple decision makers but, as Heydon J indicated, it is replaced by the duty of a judge to give reasons which "can operate to safeguard the interests of the accused and the public interest generally": at [104]. His Honour continued: "that is because a move to trial by judge alone causes appeals to operate in a radically different way. It is much easier for an appellate court to detect appellable error where reasons for the verdict at trial must be provided than it is when the appellate court is limited only to the record of the proceedings before a jury."
27Trial by jury of civil disputes has, at least in New South Wales, virtually disappeared. It remains for defamation cases, although it is burdened in those cases by the many practical difficulties inherent in explaining the arcane principles of defamation law to laypersons. The move to judge-alone trials was not without controversy: Statement of the Bar Council of the New South Wales Bar Association, Your Right to a Jury Trial (1965); see also Ian Barker QC, Sorely Tried: Democracy and Trial by Jury in NSW, Francis Forbes Lecture Series (2002) at 242. However, it continues today with only the occasional suggestion that a jury trial would be preferable or that individuals or corporations have suffered any injustice by not having a jury decide their case. As Heydon J pointed out, it enhances the capacity for appellate review, the facts being first determined by the trial judge and subject to reconsideration by the Court of Appeal. Many would accept that there is a benefit by having four judicial minds applied to the task of discerning the appropriate law and applying it to the facts: see Lord Devlin, Trial by Jury at 134-135.
28A measure of the controversy can be seen in the decision of the Court of Appeal in Pambula District Hospital v Herriman (1988) 14 NSWLR 387. The case concerned proceedings by a patient of the hospital who sued in negligence. The plaintiff requested that the Court dispense with a jury pursuant to s 89(1) of the Supreme Court Act. That section empowers the court to order that issues of fact be tried without a jury.
29Section 89(1) was set against the background that the Supreme Court Act, with certain exceptions, provided that proceedings were to be tried without a jury. However, in proceedings on common law claims, parties could requisition a jury pursuant to ss 86 and 87. Section 88 provided that certain proceedings, including those involving issues of fraud or defamation and some others, were to be tried with a jury. The defendant sought a jury.
30The application of s 89(1) had proved controversial and the Common Law judges had divided opinions as to the matters relevant to deciding whether to dispense with a jury. The nature of that controversy has relevance to the present case. It concerned whether matters of more general concern, including efficiency, cost and the predictability of verdicts, were relevant considerations. As it happened, the Court of Appeal divided. Kirby P and Samuels JA upheld the appeal, while Mahoney JA dissented.
31Kirby P recorded the arguments in favour of the "right to trial by jury" in terms which echo the words of many supporters of trial by jury in criminal trials. I can do no better than repeat the President's discussion of the issue (at 394-395):
"The appellant argued that the right to trial by jury, even in a civil action and even in the somewhat circumscribed terms provided by the Act, was a precious civic right. The extent that this was so, so it was argued, could be gleaned from the ancient lineage of jury trials, the general satisfaction felt with jury awards, the opportunity thereby provided for the involvement of citizens and their values in the administration of justice and the numerous judicial encomiums about jury trials both in England and in this country: cf Blackstone, Commentaries, Book IV, 349-350 where the jury is described as the "sacred bulwark of the nation". Typical of like judicial observations are the remarks of Atkin LJ in Ford v Blurton (1922) 38 TLR 801 at 805, when his Lordship was reluctantly driven to the conclusion that s 2(1) of the Administration of Justice Act 1920 (UK) deprived a party of trial by jury:
'... for the first time in history the British subject is permanently deprived of his right to have common law actions tried by a jury. For the future the right to a jury is taken away. Whether a jury shall try a dispute is left to the uncontrolled discretion of a Master or a Judge ... I speak reluctantly because I cannot bring myself to believe that this far-reaching result was intended by the Legislature. Trial by jury, except in the very limited classes of cases assigned to the Chancery Court, is an essential principle of our law. It has been the bulwark of liberty, the shield of the poor from the oppression of the rich and powerful. Anyone who knows the history of our law knows that many of the liberties of the subject were originally established and are maintained by the verdicts of juries in civil cases. Many will think that at the present time the danger of attack by powerful private organizations or by encroachments of the executive is not diminishing. It is not without importance that the right now taken away is expressly established as part of the American constitution. A wise and temperate discussion of the whole question will be found in the second report, dated April 30, 1853, of the Common Law Commissioners, appointed in 1850. Hitherto, notwithstanding the far-reaching changes of the Judicature Acts, the right to trial by jury has been substantially maintained. The right to a jury, up to 1918, had always been asserted in express terms in the rules of the Supreme Court ... The war resulted in the temporary withdrawal of the right to a jury ... There already existed a rule that a Judge might direct trial without a jury in cases where an action required prolonged examination of documents or accounts or any scientific or local examination which ... could not conveniently be made by a jury ... I do not myself see any inconvenience in trying before a jury contested facts, even though upon their ascertainment questions of law may emerge. It seems to me to be everyday practice to try such cases with a jury.'
Atkin LJ closed his judgment with an appeal for a Parliamentary reconsideration of the section.
The normal method of trial in all civil cases in England, for five hundred years, was by jury: see Ward v James [1966] 1 QB 273. In that case, it was pointed out in argument that the civil jury was the foundation of our liberties and is a "common law right which is highly valued". The withdrawal of the right during the First World War was referred to, as was its substantial restoration by the Administration of Justice (Miscellaneous Provisions) Act 1933 (UK).
Ward v James is one of a number of cases in England at about the same time which examined the operation of the Rules of the Supreme Court, O 36, r 1(3), made pursuant to s 6 of the 1933 Act. That rule provided a general discretion in a judge to "determine whether the trial is to be with or without a jury". Specifically it provided that the discretion was "an absolute one". Special provision was made by s 6 of the 1933 Act for trial by jury in reputational cases and unless the court was of the opinion that the trial required prolonged examination of documents, etcetera. It is plain that the lineage of s 88 and s 89(2) of the Supreme Court Act may be traced to these provisions and those which went before them in England.
The language used in the English authorities must, however, be approached with caution in this State. This is not only because of the significantly different terms in which the legislation of the two jurisdictions is expressed. It is also because, in the judicial elaboration of the statute and Rules of Court in England, the judges appear to have introduced a requirement on the part of the applicant for jury trial to show "special circumstances", although such requirement is not provided for either in the Act or the rules: see, eg, Watts v Manning [1964] 1 WLR 623; [1964] 2 All ER 267; Hennell v Ranaboldo [1963] 1 WLR 1391; [1963] 3 All ER 684 and Sims v William Howard & Son Ltd [1964] 2 QB 409.
Examination of these and other decisions of the English Court of Appeal suggest that the introduction of the necessity to show "special circumstances" to secure trial by jury of a personal injuries action was based upon judicial policy. That, in turn, appears to have been grounded in a stated concern about the suggested excess of some jury verdicts and the need to secure comparability of awards of personal injury damages in like cases. It is worth remarking in the present appeal upon the irony that here the applicant for trial by jury is the defendant in such an action whereas it is the plaintiff who seeks trial by judge alone.
There is nothing in s 89 of the Act or any of the surrounding sections, to require that "special circumstances" be shown to warrant either the retention or discharge of a jury to try a common law damages action. When under the Act Parliament required "special grounds" to appear before an order of a particular kind should be made, it so enacted: see, eg, 75A(8) of the Act. Therefore reliance upon English authority elaborating different legislative provisions and evincing a judicial policy which might not be appropriate for this State, involves dangers. Safer by far is adherence to the language of the Act, read in the context of its local history.
Agitation for jury trial in the New South Wales colony began as early as 1791: see J M Bennett, "The Establishment of Jury Trial in New South Wales" (1961) 3 Syd L Rev 463 at 464. Successive Governors, from the earliest times, favoured the provision of juries, particularly in criminal trials. The earliest court for the trial of civil actions, the Civil Court, which first convened in July 1788, did not provide for jury trial. Nor did the Supreme Court established by the Charter of Justice of 1814. It was the New South Wales Act of 1823 (4 Geo IV C 96) pursuant to which the present Supreme Court was later established by Charter issued by the Crown, which allowed for the trial of issues of fact by jury if both parties concurred in an application for that purpose. By 9 Geo IV C 83 (1828), the Court was afforded a discretion to allow trial by jury on the application of either party. There was also reserved to the local Legislative Council "by some general law or ordinance" to decide "the qualification, numbers and summonses and other rules for the constitution and proceedings" of such juries. The history of the gradual introduction of juries in New South Wales is described in essays which have secured fresh attention because of the Bicentenary: see, eg, P H Henchman," The New South Wales Jury of Four Persons" (1959) 33 ALJ 235; J M Bennett (above) and A C Castles, An Australian Legal History (1982) at 75ff: see also M H McHugh "Jurors' Deliberations, Jury Secrecy, Public Policy and the Law of Contempt" in M Findlay and P Duff (Eds) The Jury under Attack (1988) at 56, 57. The special provision reducing the civil jury, in the normal case, from twelve (which had been the traditional number in England) to four was introduced by the statute 8 Vic No 4 (1844). In his judgment in Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 489f, Else-Mitchell J details this history, including the consolidation of 11 Vic No 20 (1847) which passed into the Jury Act 1912.
By the end of the nineteenth century jury trial was certainly the normal mode of trial for disputed issues of fact in common law proceedings in the Supreme Court. Section 29 of the Jury Act 1912 so provided. In the last-mentioned case, Else-Mitchell J held that there was both an inherent and statutory power in the Court to determine that a matter should proceed without a jury in certain circumstances. His Honour so ordered in that case. However, the normal rule and practice was as stated. By the 1960s, in this State, as earlier in England, a controversy had arisen about the merits of jury trial of civil causes. That controversy was stimulated by a paper delivered by Wallace J (as the former President was) "Speedier Justice (and Trial by Ambush)" (1961) 35 ALJ 124. The paper canvassed various ways by which modification of jury trial, without total abolition, could be introduced to reduce the delays and costs of litigation in the State and to promote greater consistency of decision making. The paper sparked a lively debate at the 12th Australian Legal Convention to which it was read (see especially ibid 140ff). Most of the commentators defended the civil jury by reference to legal authority, judicial opinion and personal experience. But the paper proved influential. In 1965, following a change of government in New South Wales, Parliament enacted the Law Reform (Miscellaneous Provisions) Act 1965. By s 5(1) of that Act, provision was made whereby running down cases would thereafter normally be tried by a judge without a jury. That provision, and s 4 of the 1965 Act (which was associated) became in 1970 the s 87 of the Supreme Court Act. It was that Act which gathered together provisions in relation to jury trial in the Court formerly found in the Jury Act and in other provisions. The terms of the Act are to be understood against the background of the common law rights and statutory arrangements which had obtained in the State before 1970."
32Kirby P traced the history of juries in civil trials in this State and of the different manifestations of s 89(1). His Honour referred to the Second Reading Speech of the Attorney-General in which the Attorney-General indicated that the legislation was initiated as a response to the delay in hearing cases in the Common Law list, causing significant problems for persons suffering the latter stages of illness occasioned by asbestos. The Attorney-General contrasted New South Wales courts with those in other states, which had had "a broad discretion to dispense with civil juries where that would be in the interests of justice." The President noted that those words had not (unlike s 132 of the Act) found their way into the legislation and furthermore emphasised that the Attorney-General had gone on to say that the court would be able, by reason of the amendment, "to make a decision consistent with the needs of justice in each particular case."
33In the final analysis, Kirby P concluded that the primary judge had erred by having regard to matters of general convenience rather than the interests of justice in the particular case. The President said at [400]:
"the basic flaw in Cole J's reasoning was in considering to be relevant as such, universal characteristics of jury trials. This was impermissible because the scheme of the legislation assumes that jury trials will continue to be available for proceeding on a common law claim such as this. Indeed, whether or not s 86 of the Act confers a "right", strictly so called, it does envisage that a party to proceedings on a common law claim will continue to have an entitlement to requisition a jury. Having done so (as the appellant is to be taken to have done here) the exercise of the discretion called for by s 89 requires the party seeking the alternative mode of trial to discharge the onus to satisfy the Court that it should exercise its discretion upon the particular application made, to order that the trial be had, despite that fact, without a jury. It is therefore not to the point to consider universal characteristics of jury trials. They must be taken to have been known to, and accepted by, Parliament when contemplating that jury trial would continue, except where the discretion under s 89(1) of the Act was exercised.
This is not to say that the general characteristics of jury trials, as such, may not have consequences upon a particular litigant that would warrant account being taken of them, in exercising the discretion under the section as they produce such consequences. Thus, if a litigant were seriously ill or dying, the difficulties and delays of the jury list or of jury trial itself, would certainly be relevant considerations to be taken into account, as Clarke J suggested in Peck v Email Ltd.
There is nothing in the above Parliamentary debates which takes the meaning of the legislation beyond that which emerges from the statute itself."
34Samuels JA agreed with the President. His Honour said of s 89 (at 412-413):
"The question which a judge exercising discretion under s 89 must ask is not whether trial with a jury or trial by a judge should be ordered as the most efficient means of disposing of litigation of the class in suit, but rather whether there are reasons for concluding that the jury assigned to the case by dint of a party's statutory right (conditional though it may be) should be dispensed with. Moreover, this inquiry must be made in the knowledge that by passing a measure in the terms of s 86 and, especially by leaving it unamended when s 89 was varied, the legislature has indicated that it regards trial with a jury as a proper and acceptable mode of trial in the cases in which it is available. The legislature has not yet concluded that the various matters set out by Cole J in Smoje and placed in the forefront of the appellant's argument on this appeal, are such as to render a jury an incompetent tribunal for determining facts or assessing damages.
It must follow that there can be no room in the exercise of this discretion for consideration of matters which are, as the President has put it, "of universal application to all jury trials". The undoubted circumstances that trial by jury is longer, and therefore more expensive, and procedurally more inflexible than trial by judge alone, are not to be taken into account. The legislature clearly must have determined to accommodate them when it provided that, in a particular class of case, a jury might be requisitioned by the act of one party. The same characteristics entail that jury trials tend to clog up the lists and impede the expeditious trial of matters to be dealt with by a judge alone. But this again is an inevitable consequence of preserving trial with a jury. It must, once more, have been intended by the legislature that these detriments must be stoically endured as the appropriate price for the continued employment of civil juries. Whether the value of the commodity is worth the expenditure in time, money, frustration and delay is a debatable question which falls, however, outside the scope of this judgment. It is also, I venture to say, outside the scope of the discretion under discussion, whose exercise cannot, to my mind, involve considerations of how the general dispatch of business in the list can best be promoted; and if the remedy for delay is in part the abolition or reduction of trials with juries, that physic is not a relevant ingredient in the decision whether or not to dispense with the jury requisitioned in the particular case. Accordingly, I agree in general with what the President has written about the necessity to exclude from examination in the exercise of this discretion matters which are wholly general or universal, and which raise only the inherent and inevitable consequences of employing juries in civil trials. The Parliament has decreed that juries are to be retained and that means warts and all. The presence of the warts cannot be used to destroy the picture. They are part of the picture. Accordingly, in order to make good an application to dispense with a jury it is not enough to point to the supposed deficiencies of jury trial. It is necessary to show grounds which are particular to the case in hand. These may of course be produced by the pressure of singular circumstances upon the general character of a jury trial. For example, the state of the jury list, if it entails a delay likely to exceed a plaintiff's life expectancy, would be a matter involving the particular application of a general condition. But the argument (however correct in fact) that to dispense with a jury or two at the top of the list would accelerate hearings at the bottom, would not. Specific difficulties in obtaining the attendance of witnesses might constitute grounds for preferring the greater flexibility (in point of adjournments and otherwise) of non-jury trial and for dispensing with a jury. But the fact that in the instant trial, alike with all other jury trials, there are problems in securing the orderly attendance of expert witnesses would not."
35The nature of trial by jury and trial by judge alone have been considered on other occasions. In Swain v Waverley Municipal Council [2005] HCA 4, 220 CLR 517, Gleeson CJ discussed the recent trend toward the use of a judge alone rather than jury trial. Although speaking in the context of civil trials, his Honour observed the trend toward reasoned decisions, also acknowledging that involving the public in the administration of justice and keeping the law in touch with community standards were "important collateral advantages" of the jury system. The Chief Justice said:
"The resolution of disputed issues of fact, including issues as to whether a defendant's conduct conforms to a requirement of reasonable care, by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly. The alternative is to commit the decision to a professional judge, who is obliged to give reasons for the decision. In one process the acceptability of the decision is based on the assumed collective wisdom of a number of representatives of the community, properly instructed as to their duties, deciding the facts, on the evidence, as a group. In the other process, the acceptability of the decision is based on the assumed professional knowledge and experience of the judge, and the cogency of the reasons given. In the administration of criminal justice in Australia, the former process is normal, at least in the case of serious offences. In the administration of civil justice, in New South Wales and some other jurisdictions, in recent years there has been a strong trend towards the latter process. Originally, there were no procedures for appealing against the verdict of a jury, reflecting what Barwick CJ described as "the basic inclination of the law towards early finality in litigation". He referred, in another case, to the move towards trial by judge alone in civil cases as an abandonment of "the singular advantage of the complete finality of the verdict of a properly instructed jury". In many areas, the law seeks to strike a balance between the interest of finality and the interest of exposing and correcting error. In a rights-conscious and litigious society, in which people are apt to demand reasons for any decision by which their rights are affected, the trend away from jury trial may be consistent with public sentiment. Even so, decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards." (footnotes omitted) [7]
36Gibbs CJ in Brown at 179 spoke in similar terms of the "collateral" advantages of trial by jury. However, this view may be contrasted with the opinion of Deane and Dawson JJ that trial by jury should not be understood as only conferring a right or privilege on an accused. Deane J said at 202:
"The institution of trial by jury is also a source of other benefits to the community as a whole. In Kingswell [v The Queen [1985] HCA 72; (1985) 159 CLR 264 at 301-302] I endeavoured to identify the more important of them. It is unnecessary that I repeat what I there said. It suffices to say that the advantages of trial by jury to the community generally serve to reinforce what the plain words of the Constitution convey, namely, that the general prescription of trial by jury as the method of trial on indictment of any offence against any law of the Commonwealth constitutes an element of the structure of government and distribution of judicial power which were adopted by, and for the benefit of, the people of the federation as a whole. To construe the fundamental law of s. 80 as involving no more than the mere conferral of a privilege would be to distort the whole by confining attention to a single aspect."
37Similarly, Dawson J said at 209:
"Trial by jury is the method selected by s. 80 for the achievement of this high aim in proceedings upon indictment, and there is nothing on the face of that section to suggest that the benefits which it secures may be waived as a matter of choice by either the accused or the prosecution. No doubt the section confers a benefit on every person charged on indictment under a Commonwealth law, but its benefits extend beyond the individual and its guarantee is more than personal."
38Before turning to decisions of particular relevance to s 132 I should refer to the common law's acceptance, notwithstanding indications that from time to time there may be problems, of the capacity and functioning of the jury in a criminal trial. Under the heading "the function of the jury" and in the context of an application for a permanent stay of the trial, by reason of adverse publicity, the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237 confirmed that the common law accepts that the jury provided with appropriate directions is a robust institution capable of providing a just decision:
"Nettle JA based his decision upon the footing that to grant an indefinite stay "would be to recognise that the media has the capacity to render an accused unable to be tried" and this would deny the 'social imperative' that an accused be brought to trial.
There is an important point here. It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza:
'Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.
In his reasons for dismissing the stay application, which are extracted in part and described above, Cummins J used similar terms with respect to the conduct of jury trials in Victoria.
Earlier, in Gammage v The Queen Windeyer J expressed the governing principle in terms which acknowledged that the jury room might not be a place of undeviating intellectual and logical rigour (a point made by Callinan J in Gilbert v The Queen) by saying:
'A jury in a criminal case may sometimes, from compassion or prejudice or other ulterior motive, fail to perform their sworn duty to determine the case before them according to the evidence. If they do so in favour of the prisoner, and not of the Crown, the law is powerless to correct their dereliction. They must be assumed to have been faithful to their duty. Their verdict must be accepted.'
Conclusions of this kind are not examples of the "ordinary" questions of fact which regularly arise for determination. The assumed efficacy of the jury system of which Windeyer J spoke, whereby the law proceeds on the basis that the jury acts on the evidence and in accordance with the directions of the judge, represents the policy of the common law and is more akin to a species of 'constitutional fact', in the sense of that term explained by Heydon J in Thomas v Mowbray.
Whilst the criminal justice system assumes the efficacy of juries, that 'does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.' In Glennon, Mason CJ and Toohey J recognised that '[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.' What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused." (footnotes omitted)