Mandatory jury trials ‘outdated, harm defendants’: lawyers

Accused rapists should have the right for their trial to be heard before a judge only in all jurisdictions, Australia’s peak lawyers body says.

The Australian Lawyers Alliance says defendants in rape cases should be entitled to a judge-only trial.

Accused rapists should have the right for their trial to be heard ­before a judge only in all jurisdictions, the nation’s peak lawyers’ body says, arguing mandatory jury trials are “outdated” and can unfairly prejudice the defendant.

It also argues defence counsel attempting to cross-examine complainants should not be further restricted in cross-examination, despite a strong push from sexual assault advocacies that the government should crack down on defence counsel, and even make them submit their line of questioning before a trial begins.

The Australian Lawyers Alliance, which has a membership of more than 1500 lawyers, has tendered a submission to the Australian Law Reform Commission’s inquiry into justice responses to sexual violence, arguing the “flaws” of the traditional jury system are “glaringly obvious”.

The group also says that if rape trials were permitted to be heard by a judge alone, it would “avoid the possibility of jurors accessing inadmissible or inappropriate ­materials during the trial”.

In its submission, the ALA argues Victoria, the ACT and the Northern Territory, which do not allow the option of a trial by judge alone for sexual assault trials, should be brought into line with other jurisdictions.

“The flaws of the traditional jury system have become glaringly obvious in our digital age, with the exponential increase in the dissemination of information and the increasingly complex legal principles and factual scenarios in modern court cases,” the submission reads. “Demanding mandatory jury trials in the modern era is outdated and leaves many Australian jurisdictions with systems that unfairly prejudice accused persons.”

Greg Barns SC, who assisted in compiling the submission, told The Australian “if there has been a good deal of negative media about a person before the trial, a judge alone trial may ensure a fairer trial”.

“The defendant should always have the right to choose a judge alone or jury trial,” he said.

Greg Barns SC.

The submission argues judge-only trials should be permitted because “there is a real and likely possibility that jury members have been exposed to highly prejudicial information about the allegations before they are even empanelled as jurors”.

“There are strong concerns that jurors’ prejudices play out in their decision-making during a trial, including and especially towards Aboriginal and Torres Strait Islander peoples, since there is no way for courts to know how jurors deliberate or whether they act on their own biases and prejudices,” it reads.

The ALA also says by allowing judge-only trials, it would reduce the possibility of “jurors accessing inadmissible or inappropriate ­materials during the trial”.

The recommendation comes nearly two years after the rape trial of former Liberal staffer Bruce Lehrmann was aborted after a juror brought external material into the jury room.

The Australian last month revealed members of Attorney-General Mark Dreyfus’s lived-experience advisory group were, in their submission, calling on a crackdown of inappropriate defence counsel questioning to avoid the re-traumatisation of complainants.

The ALA submission accepts there is “a difficult balance that must be achieved in trial processes – to reduce the chances of re-traumatising the victim survivor, and to provide the defendant with a fair trial”.

However, it says it “supports measures already enacted across Australia to minimise re-traumatising victim survivors when they give evidence”.

“It is important to note there are already limitations on questioning of complainants contained in legislation and ethical rules,” the submission reads.

Questions which are “misleading or confusing, unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive” are not permitted.

Nor are those that are “put to a witness in a manner or tone that is belittling, insulting or otherwise inappropriate” or “has no basis other than a stereotype (for example a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability)”.