The Royal Commission on Criminal Justice

The Royal Commission on Criminal Justice recommended that in circumstances where an accused person had reasonable grounds to believe that he or she would not receive a fair trial because of an uneven ethnic jury panel, three ethnic minorities should be represented on the jury panel. The Victorian Law Reform Committee rejects such a provision claiming that it suggest that “the jury selection process should be deliberately tampered with. ”  Permitting such a process would be tantamount to redefining the notion of “one’s peers” as being “unrepresentative of the community” rather than representative of the community.

A jury of one’s peers have developed around concepts of fairness as much as separating the governed from the governing. The courts have sufficient discretionary powers to intervene in all instances where it appears that an accused person cannot have the benefit of a fair trial and this includes instances where a trial is by virtue of a jury of one’s peers. For instance, where it appears to the court that a suspect on trial may be denied a fair and impartial trial the court is at liberty to order a stay. Moreover, as Brennan J explained the judge by virtue of the process of jury directions can:

“… by a flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. ” Additionally, prior to the swearing in of a juror the judge has the residual power to excuse or discharge a juror if doing so will secure a fair trial. A judge also has the authority to discharge an entire panel if there are reasonable grounds to suspect that a juror has or likely has contaminated the jury panel by virtue of anything said or done.

The problem of redefining and applying the concept of a jury of one’s peers so as to be representative of the accused and/or the victim is that it compromises issues of fairness and impartiality. While Australia does not have a constitution it subscribes to the International Covenant on Civil and Political Rights. Article 14(1) of the International Covenant on Civil and Political Rights provides as follows: “… everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

” Obviously, selecting jurors whose characteristics are vastly similar to either or both the accused and the victim disposes of the idea of independence and impartiality. Counsel for both sides will engage in a selection process which will invariably end up with a jury who is partial to one side or the other. The Law Reform Committee of the Victorian Parliament noted that the practice of jury selection in Victoria seeks to achieve impartial jurors by relying on the following aspects: 1. Random selection from the voters’ registry;

2. Challenge for cause; 3. The trial judge’s discretionary powers to direct the jury; and 4. Jurors will be true to their oaths. These mechanisms for jury selection safeguard against the risk of unfairness and any definition of one’s peers must contemplate fairness to both the accused and the victim. Age old concepts of justice recognize that any man acquitted or convicted would have been tried by a system of unbiased judgers of the facts. It is against this background that the concept of one’s peers takes its fullest meaning.

Jury trials give way to the notion that ”justice must not only be done, it must be seen to be done. ”   In other words the mere appearance of bias can compromise any decision in a court of law and as such challenge the concept of just desserts. By focusing too narrowly on the definition of peers, impartiality becomes no more than a misnomer. Just desserts recognize that citizens who infringe upon the legal order of society should be punished. It therefore follows that the determination of guilt or innocent should be determined by a body separate and apart from the institution that proscribes punishment.

It is against this background that the term “jury of one’s peers” has its most effective meaning. Bruce Houlder QC argues that the jury system provides for a system of “participatory democracy. ”  In this vein, the idea of one’s peers cultivates the presumption that the jury panel should merely be composed of neutral individuals representing the ordinary member of the community rather than the elite officials who make and enforce the laws. Houlder’s synopsis of the importance of jury duty can be summarised as follows:

Permitting the individual to participate in the democratic system via jury trial and otherwise is a pivotal part of the democratic process. 2. Jury trials have the capacity to educate its participants. 3. Convicted persons are more comfortable with jurors passing judgment on the facts and that alone is an element of justice and fairness. Having a judge pass judgment on the defendant has the capacity to isolate him from society and hinders rehabilitation. 4. There is an element of serious injustice in a system that permits the state to investigate, charge, convict and sentence citizens accused of criminal conduct.

5. The presumption of innocence is undermined by a system that permits one body to investigate, accuse, convict and sentence the defendant. The juries role in the criminal justice system is therefore one of civic responsibility. It follows that the statutory provisions for qualifications and disqualification of jurors contemplate that jurors who have acted irresponsibly and who are incompetent by virtue of mental or physical impairments are not or should not be charged with the responsibilities associated with jury service.

By interpreting peers as representative of the characteristics of the accused or the victim, jurors who may not qualify as responsible or competent citizens might be permitted to serve. By making such allowances, irresponsible and partial citizens would end up on a jury panel and this would compromise the very essence of fairness envisioned by the term a jury of one’s peers. Conclusion The criminal justice systems of common law jurisdictions has as its primary aim the cultivation of confidence in the democratic process.

The appearance of justice is very important to the integrity of criminal justice without which confidence will fail The system of jury trials has vested some measure of responsibility for accountability in the average citizen which comprise a jury of one’s peers. Any attempt to redefine or restrict a jury of one’s peers to reflect the particular characteristics of the accused and/or the victim threatens the very foundation of democracy which entails citizen participation and the concept of impartiality, an integral part of criminal justice.

Having regard to the origins and development of the definition and application of a jury of one’s peers as representative of the community at large, the manner in which jurors are qualified and disqualified in Australia appears to be the best method of upholding the principles of criminal justice. A jury of one’s peer should therefore be no more than a fair-minded, responsible member of the community. After all, the jury is the judge of the facts and not of the accused or the victim.

It is his or her ability to process the facts of the case fairly that ensures that justice will be done.


Brind Zichy-Woinarski QC (1995),  “Submission No. 67 to Law Reform Committee”. Victoria, Australia Dietrich v. R. (1992) 177 CLR 292 Houlder, Bruce Q. C. [1997] “The Importance of Preserving the Jury System and the Right of Election for Trial” [1997] Crim LR 875-881 International Covenant on Civil and Political Rights Jago v. District Court (NSW) (1989) 168 CLR 23 Juries Act 1927