Rob Rattenbury: Our jury system must stay, but changes are needed

The Government must make the jury system more attractive to a wider range of the community to attend, writes Rob Rattenbury.

OPINION:

Fifty years ago as a young cop I often heard the phrase "better to be tried by 12 fools than one judge" meaning, where possible, if a person is charged with an offence and there is an option for trial by jury take that option, you will have a much better chance of being acquitted.

Our jury system in New Zealand goes back to 1841. Back then, to be selected for a jury you, of course, had to be white and a male property owner. Only men of substance were allowed to sit in judgement of their community. This slowly changed over the years but it was not until 1962 that Māori could sit on a jury if either the accused or the victim was a "non-Māori".

It was not until 1942 that women were allowed to volunteer for jury service. They were not selected like men, the idea being that they may find it difficult to spend days in court when looking after the home. How thoughtful.

Juries as we know them have been around for about 1000 years. Even the ancient Greeks had a form of jury system. Jury duty has always been regarded as a community duty, even if failure to answer a jury summons can result in being charged in court.

Nowadays in New Zealand jury duty is viewed by most of us as a bore and a chore, to be got out of if at all possible. Anybody with any imagination can make an excuse to not answer their jury summons. A summons to jury duty can occur every two years.

Excuses include medical reasons, work commitments, family care arrangements, in the big cities a lack of parking, disqualification by reason of being related to police, lawyers or court officials. Any excuses such as these are usually provided after the receipt of the jury summons, well before any court case. Job done, managed to miss for another two years.

When jury lists are compiled the defence and the prosecution always get copies. These are gone through by both sides in any court case with a view to identifying jurors who will not help the cause of whatever side. For some reason teachers were never, in my day, looked upon by either the defence or prosecution as reliable jurors and were sidelined if possible. Of course anyone with criminal convictions was excused.

By the time a jury is called for any trial the original list of prospective jurors is much reduced by accepted excuses, people with convictions and teachers being scrubbed off the list. I have no idea why teachers were not welcome.

The court then has to rely on a goodly proportion of the remainder to actually answer their summons to court. A recent example of how poorly we take our responsibility to undertake jury duty was in Palmerston North where only 20 per cent of the people summonsed to attend actually showed up at court on the day. Sadly the national average for such attendance is only 17 per cent.

We are in danger of having juries that do not reflect a true cross-section of our communities, juries compiled mainly of retired folk, amateur sleuths and busybodies.

People with wide professional, business or life experience usually manage to dodge such events. Also wage-workers who will not be paid their time away from work by an employer will simply not come to court, knowing that there will likely be no consequence for this. It is a matter of food on the table for many people.

Jurors get about $80 per day, hardly enough to compensate for lost wages plus parking fees that, in the large cities, will use that amount of money up in a few hours. There is also the chance of family disruption if a jury member has to stay late into the evening or, on the odd occasion, be sequestered in a hotel overnight.

Well, what to do? Is it time for the jury system to be abolished and "judge alone" trials or tribunals used?

The jury system must stay and the Government must make it more attractive to a wider range of the community to attend. The daily allowance needs to be increased substantially and employers encouraged to consider ways of supporting their staff called for jury duty. The bigger the cross-section of a jury the more sound and just a decision will be.

In my experience the jury system works. There will always be controversial decisions, but those who spend a lifetime in law or in the criminal justice system in New Zealand know and understand the following maxim and its importance to our way of justice:
"For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer." – English jurist Sir William Blackstone (1783).

References
Sir William Blackstone, Commentaries on the Laws of England, 9th ed., book 4, chapter 27, p. 358 (1783, reprinted 1978
English Legal History – History of trial by Jury
Encyclopaedia of New Zealand – Juries (1966)