JURIES,JUSTICE AND JUVENILES!

by

JOHN ROBERTS(1998)

There is, in the English Legal System, in which the principles of the Common Law apply, a clear distinction between the rules of law applicable in the criminal and civil jurisdictions. My remarks will apply, principally, to the Criminal jurisdiction, as it is in this area, that the present system fails.

From time immemorial, the Common Law has accepted the criminal system of Trial by Jury. This is a system whereby a Judge, who is learned in the law, sits at the trial of an accused person and hears the evidence of witnesses, sworn on oath or (nowadays) affirmation. Juries, composed of twelve “good men and true”, lacking legal knowledge, are called upon to hear the evidence and, after due deliberation, to bring in a verdict of “Guilty” or “Not Guilty”. The Judges role in the matter, is to guide the Jurymen on questions of Law. The latter are the sole arbiters of the facts. This system worked well for hundreds of years, particularly in cases where the death penalty was imposed for a great many crimes, varying from Sedition and Murder to Petty Theft. The Jury was, therefore, an escape valve, mitigating the severity of the law.

Unfortunately, the law itself becomes more complex and jurors remain simple human beings. They frequently confuse facts and allow themselves to be influenced by either prosecution or defence lawyers, who are well versed in the arts of psychological warfare. The net result is that, all too often, Juries bring in perverse verdicts: acquitting the guilty and convicting the innocent.

This is seen, in cases where one lawyer may be highly skilled in presenting evidence, emphasizing certain points and trivializing the importance of others.

It is apparent that the interests of neither the prosecution nor the defence are served by such miscarriages of Justice. The O.J. Simpson trial in the United States has received much publicity and has been seen to have, quite clearly, miscarried. Here in Australia, recently, there was an instance in which a serving Police Officer, whilst off-duty, approached a person accused of sexual molestation of a minor and emptied his service pistol into the person in the precincts of the Court. The jury dismissed a charge of Murder and the assassin is a free man to this day. He even had the temerity to request his re-instatement in the Police Force of New South Wales. I, myself, have witnessed several clear instances of the miscarriage of justice, resulting from perverse verdicts.

Lawyers, generally, prefer the Jury system. It prolongs the hearing of cases and increases costs (fees). Defence lawyers are rarely concerned with the justice of a case: are not interested in the punishment of offenders. Their only concern is the satisfaction of winning a case. Provided a lawyer does not actually know that his client has committed an offence, he is justified in defending the case vigorously, to the best of his ability. He knows that his Client has a good chance of an acquittal in the case of a Jury Trial, whereas, an alternative Trial before a Judge sitting alone, or with, perhaps, a panel of three Judges, is likely to prove to be a different proposition.

All through the British Legal System, and this includes the United States, there must be countless thousands of perverse verdicts each year, resulting in criminals being free to pursue their nefarious activities.

Much has been said regarding the essential fairness of the Jury system. It is a “time honoured” procedure. This in itself says nothing regarding the effectiveness of the system. An innocent man convicted by a misguided Jury, is hardly likely to feel that he has received a fair trial. The guilty criminal who escapes a prison sentence, is always pleased with the result.

I recall one case, many years ago, in which I was instructing a Prosecution Counsel. It was a case of house breaking: the accused had been observed by a next-door-neighbour for about twenty minutes. He first drove up to the house, went to the door and returned to his brother’s car, which he was driving. Some minutes later, he returned and was seen to walk up the driveway once more. Five minutes later, he carried a sheet, containing stolen articles, to the vehicle, placed it in the boot and drove away.

The defendant conducted his own case. He gave evidence: admitted his lengthy criminal record but denied committing this particular theft. When cross-examining the female witness, she affirmed directly to him that she had observed him for quite some time and was sure of his identity. There was a flaw in the police case, as they were originally looking for the accused’s brother, his car being the vehicle used by the thief. The Jury brought in a verdict of “Not Guilty”. Whilst collecting his personal effects from the Police Office at the Courthouse, he was asked, “Did you do it Bill?” “Sure, I did”, replied Bill.

This was, of course, only a minor case, but it illustrated for me the perverseness of Jurors.

When one considers the cost to the community of Jury Trials, so many of which permit criminals to escape the net of the judicial system, it becomes evident that there must be a better way. A Judge, sitting alone, to hear legal argument and to make a decision on the facts, is, by far, a more objective method of hearing criminal cases. In serious matters, a panel of three Judges, with provision for a majority Judgement, seems to me to be a preferable way of dealing with these cases. It would, undoubtedly, result in shorter trials, less cost to the Community and, in addition, would result in more equitable and fairer verdicts. It would also help to reduce the delays evident in the present system.

Above all, the criminals would be behind bars, not out amongst the law-abiding Public, creating havoc.

A word about Juvenile Crime.

“Spare the rod and spoil the child”:

( Old Proverb )

It has been my lot to spend many hours in the Children’s Courts, over a period of thirty-years, both as a Juvenile Probation Officer and a lawyer.

One must certainly feel a degree of compassion for children and young people, who come before the Courts for the first time, charged with an offence involving, say, Car-Theft or Housebreaking. Whilst these crimes are commonplace and create havoc in the Community, children are always on the lookout for excitement. “Joy-riding” or breaking into other people’s houses is one way in which they seek to gratify this urge. It is just one aspect of juvenile immaturity.

The case of the “First-Offender”, therefore, calls for a measure of caution, particularly in the case of juveniles. Usually, they are reprimanded by the Children’s Court Magistrate and released, without conviction, under a period of Probationary Supervision. Most children who are released under these conditions do not offend again. However, there are, inevitably, a number of children,( some of tender age ), who re-appear before the Court, time and time again. For the first few occasions, here in New South Wales, they are usually given further Probation periods, subject to more stringent controls. When these do not effect a reformation, the offenders are sent to institutions, for relatively short periods. Sometimes, a period of remand for a fortnight or so, does the trick.

During the 60’s, it was not uncommon for a recidivist child-offender to spend eighteen months or so away from home in a Juvenile Institution, where he, or she, was disciplined for a lengthy period. During the 80’s, it became apparent that these periods of incarceration were being seriously curtailed. Sometimes, youths who had accumulated lengthy criminal records, involving many cases of theft, destruction of property, house-breaking and other serious offences, were spending very short periods in Juvenile Institutions: being released after only a few weeks, on the grounds that there was serious overcrowding in these establishments. At the same time, many centres for the punishment of Juveniles were being closed, as cost-reduction measures. Such leniency on the part of the authorities (not the Courts) brought the whole system of punitive detention into contempt in the eyes of these young people.

Juveniles in New South Wales are covered by certain protective provisions under Child Welfare legislation. The principle ones are that their names must not be published until they reach the adult status of an 18-year-old. They may only be detained in certain establishments: not prisons, unless their conduct is so unruly as to present a danger to staff or other children. In this case, provision is made for their detention in gaols. These provisions are necessary, in the case of first offenders, but should be varied, in my view, when criminal recidivist juveniles appear before the court. Certainly, youths over the age of 16 years, who repeatedly offend, should not be given the benefit of protective legislation. By this age, and with very lengthy criminal records, they have forfeited the right to the protection of the community.

The standard of physical care in remand centres borders on the luxurious. Many children, who have been committed to these places, have never lived in such comfortable surroundings, where they enjoy all the benefits of modern facilities, including Television and Computers. Whilst this reflects Society’s concern for children, it does little to convince them that they are being punished for their misconduct. A little discipline and deprivation are necessary in a nominally punitive environment. Children need to see that they are being punished for the crimes they commit.

Of course, much of the trouble with children, arises from the fact that they are hardly instructed in moral behaviour at home. Their parents are often extraordinarily permissive and find it easier to allow them to do what they wish, without any attempt at parental guidance. However, children do need to be told what is right or wrong. Here again, the principle of precept and example is necessary. If parents themselves have an easy attitude towards honesty and fair dealing, it does not take children long to discover this fact. The inevitable result is that they will adopt a loose attitude towards, what should be, very clear guidelines for personal conduct and behaviour.

These failings in family standards are reflected in the growing rate of crime and violence in our Community. Somewhere along the line, there has to be a tightening of the standards imposed externally by Society: particularly in the case of people who have little inward moral consciousness. This is the sad but inevitable result of the general malaise, which is evident in all aspects of modern life: aspects reflected so often in these essays. One might be excused for developing pessimistic views as to the foreseeable course of human life. Unless there is drastic change in social attitudes and behaviour, the world is undoubtedly heading for a cataclysmic disaster. Whilst violence is on the rise, due to a lack of discipline in Society, the suggestion that violent criminals should receive a taste of the rod would be rejected as inhuman. Nevertheless, there will, inevitably come a time when the use of limited corporal punishment will, once again, become necessary.

This is obvious, when one considers the complete breakdown of discipline in the school system. At the present time, unruly students often abuse their teachers, using foul-language and threats, with impunity. All this leads to an absence of self-discipline, as young people grow older. More and more juveniles are involved in crimes of violence: knifings are not uncommon. If children are subjected to strictly controlled physical punishment, when they offend at an early age, much later delinquency would be avoided. This is a fact that will have to be faced sooner or later.

In trying to control immoderate violence towards children, we have provided the young person with a big stick, with which he is vigorously belabouring Society. He sees himself as immune from pain but has no compunction regarding the infliction of pain on others. Had the rod been used, though sparingly, we might all have been saved the present anquish. We would not now have a thoroughly spoiled child on our hands.

In spite of my repeated and strongly expressed criticisms, I still have a great deal of faith in the ultimate goodness of human beings. I believe in this principle more firmly than in any other, in spite of the evidence of corruption and evil which surrounds us. We are all, ultimately, marching forward on the pathway of personal progression, whether we like it or not. It does, however, help to have some concept of these truths. Certainly, in the case of children, they have not reached the stage wherein they are beyond the pale. There must always be hope for the youngsters: that they will ultimately understand the principle that, as members of society, we are all interdependent upon one another.

THE END

John Roberts: 5th September l998.

mailto:robertsjno@gmail.com