How does the dismissal of this jury represent justice?
IT’S a sad day when identity politics becomes part of our justice system, writes Janet Fife-Yeomans. Imagine if a jury of women was dismissed because they might be prejudiced.
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INTERFERING with the make-up of a jury is a recipe for disaster.
The decision by Judge Donna Woodburne to discharge a jury of 12 men in a sexual assault case for no other reason than that they were 12 men strikes at the heart of the jury system and the right to be tried by our peers.
It is a tenet of our system that juries are chosen at random.
Jurors’ names are chosen from the electoral roll with no thought as to their gender, age, skin colour, sexual orientation, religion or any other identity beyond being an eligible Australian. Potential jurors join jury panels whose names are drawn to see if they end up in the jury box or go home.
But Judge Woodburne said she was discharging the jury of 12 men because they were not representative of the community and subsequently the trial they were to sit on may not be fair or be seen to be fair.
Far from being a victory for feminism or the #Metoo movement, it only entrenches the worst sort of gender stereotypes with its suggestion that men might not return a verdict in a sexual assault trial, or any other trial, as fairly as women?
Imagine if a male defendant applied to have the jury hearing his trial discharged because the jurors were 12 women and might be prejudiced against him. He would be quite rightly laughed out of court.
More importantly, Judge Woodburne seems to have misconstrued the whole idea of what being “representative” of our community really means.
It would be a shame to let such an important part of our civic life fall prey to the sort of divisive identity politics that seeks to put us all in little boxes based on our external characteristics, rather than treating us as individuals bound together by our common Australianness.
Taken to its logical conclusion, courts in the future may need to construct jury panels made up equally of men, women, indigenous Australians, the gay and lesbian and gender neutral community, disabled people?
There are regularly jury panels with nine women and three men, or vice versa. Or eleven to one.
If we start juggling with jurors then does a 60-year-old man have to be judged by a panel of people of the same age?
Would it be unfair if that man was judged by a jury made up of a different generation, people aged under 25?
The judge based her decision on section 47A of the Jury Act which gives a judge the power to “discharge the jury that has been selected if, in the opinion of that judge, (it) resulted in a jury whose composition is such that the trial might be or might appear to be unfair”.
There is nothing in there about gender — or age or colour, for that matter.
The jury room itself is sacrosanct. No one knows or can ask how those 12 anonymous jurors selected at random came to a consensus about guilt or innocence, how much they based their decision on sympathy and how much on law.
They will each carry their own opinions, bias and even pigheadedness into the jury room. How do we know if they are truly representative?
Overall, jurors take their task very seriously and the job is tough enough without being rejected because of their gender.
Janet Fife-Yeomans is the Daily Telegraph’s Chief Reporter.