Every system has its strong and weak points, but we would favour the jury system in our country. There are various justifications for jury trial. Lord Devlin[ii] regarded the “best blend of logic and common sense” as being in the verdict of 12 jurors. Many judges will accept that the pooled experience of 12 men and women is a better instrument for arriving at a just verdict than the experience of one person.
The jury is surely the best instrument for deciding on a witness’s credibility or reliability, and so for determining the primary facts of a case. It is easy for a single mind (or even the mind of two or three) to be fallible about whether a person is telling the truth. This decision often has to be judged from the witness’s demeanour and his way of giving evidence.[iii] As Lord Devlin said: “The impression that a witness makes depends upon reception as well as transmission, and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of 12 people is more reliable. A judge may fail to make enough allowance for the behaviour of the stupid because by his training he regards so much as simple that for the ordinary man may be difficult. The jury hear the witness as one who is as ignorant as they are of lawyers’ ways of thought”.[iv]
Perhaps too much had been deliberated on the supposed frailties and defects of the jury system that everyone seems to have forgotten that a judge is also a human being like everyone else. If some people have qualms and reservations about taking a person’s life, that could also happen to a judge. This is because unfortunately what could happen next is that if, as has been suggested, a jury can be swayed to go the wrong way by an eloquent speech, it could also happen that a judge who is disturbed by his moral convictions or is affected by any other personal or extraneous reason, may be inclined to simply adopt counsel’s line of argument, for what it is worth. After all, no one can read what is in his mind. He may, in doing so, have committed a miscarriage of justice, but is he entirely to be blamed for it?
It requires, to be asked, therefore, which is a better system after all: One where, if a man makes a mistake or comes to a wrong conclusion, the others with him may not necessarily adopt it and may even query it; or a system where if a man alone makes a mistake or a wrong conclusion, that is the end of the matter? The Court of Appeal may correctly not even disturb it since it relates to a finding of fact.
Hence, it is a fallacy to conclude that because in some other countries, the jury system does not seem to work, it would necessarily mean that the system as such is bad and is not acceptable here. It must still be a fair and just system. Otherwise, how do we explain that for hundreds of years since its inception the jury trial has still not been abolished in most modern democracies like Britain, America, Australia, Canada and New Zealand? It is true seemingly appalling abuses have been committed by the juries in America, but we do not hear of any such abuses and scandals elsewhere in those other countries mentioned. This can only mean that the system can work if the authorities concerned want to make it work.
What needs to be done is to ensure that the jury members are properly educated because they will understand what the judge tells them. More importantly, they will understand what integrity and responsibility mean and what it means to be fair and just and to act without fear or favour. So the question of being bias (racial or otherwise) or prejudicial for whatever reason, good or bad or being dominated by a strong character, does not come into play as far as they are concerned when making decisions.
There is also the contention that it is unsafe to entrust our fate to a few untrained people. But what is the training that we are talking about, minus the fact that juries are not expected to be trained in law? What law are they expected to know to decide on the facts? In fact, people generally may know the facts surrounding a case and the conclusion to be drawn from them better than the judge himself, except of course, the juries have to be guided by the judge as to what facts can be admitted and which to be excluded and the weight to be given to them.
Jury trials are also said to be the cause of backlog. But has a proper study been made of the statistics to support that assertion? If we analyse it, we would find the number of days taken to hear the witnesses is the same, whether there is a jury trial or not. That goes also for the submission by counsel. We are left only with the decision-making process itself. As far as one can remember, there has never been a case where a jury in this country has taken more than a day to decide. It has always been the case that they will do it on the same day the judge gives his directions to them. But a lone judge may take time to do so simply because he has the added task of making the decision on the facts himself.
Finding jurors who are knowledgeable and effective may pose an initial problem, but if the people in charge asked for volunteers and vetted applicants carefully, they will have a bank of jurors to draw from to sit on trials. There is a wealth of talent out there to choose from, especially retirees whose mental acuity may surpass those of a younger age and who would be able to apply the standard of “the reasonable man” more effectively.
Jury trial is of course inconvenient and expensive. But I feel passionately that jury trial, however inconvenient and however expensive, should be retained. It is the very touchstone of our liberties.
We opine that there are few approaches that can be considered by the Government if the jury trial were to be reintroduced in the judiciary system of Malaysia. These approaches are deemed to be a reconciliation that strikes a balance stance between the advantages and disadvantages of jury trial.
Firstly, the roles of juries and judges in a trial can be restructured in order to uphold fairness in a case. The role of the jury can be restricted so to be limited to question of facts only. This is different form the conventional structure of the jury system[vi] since we suggest that the jurors should not have the discretion to determine the verdict of guilt of an accused. The jurors should merely examine the veracity and credibility of a witness and evidences. They should not encroach the prerogatives of verdict which remains with the role of a judge.
Juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.[vii]
In Balachandran v. Public Prosecutor, the court said that “in order to make a finding either way the Court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established.As the trial is without a jury it is only with such a positive evaluation can the Court make a determination for the purpose of section 180(2) and (3).Of course in a jury trial where the evaluation is hypothetical the question to be asked would be whether on the evidence as it stands the accused could (and not must) lawfully be convicted.That is so because a determination on facts is a matter for ultimate decision by the jury at the end of the trial.”
However, the modern approach is contrary to the above decisions since the conviction of the accused is a matter for ultimate decision by the judge at the end of the trial. The rationale behind this approach is because the jurors have no knowledge of the applicable laws due to the fact that they are not well trained or qualified as lawyers. Even if they have the knowledge of law after listening to the explanation of the law by the judge (direction of the judge as to law in the current common law and civil jury system), but they may not be wise enough in applying the applicable laws to the relevant facts in hands. This is definitely a daunting task for jury deliberations since the professionals in legal fraternity encounter the same obstacles as well. Hence, the judge’s role should be widened in a jury trial to the extent of applying the law to the jury’s determined facts and delivering his judgments thereafter. The sanctity of the judge’s roles may also be preserved at the same time. It’s like killing two birds with one jury trial.
Secondly, the purpose of awarding Justice of Peace (JP) to the public may be altered to the effect that they may be called for jury’s duties when needed. This in turn safeguards the fairness of the trial since those who are awarded JP are deemed to be wise people who have contributed to the society. Besides that, the cost of summoning jurors may be reduced tremendously. This is because the jurors are put on guard of their jurors’ duties at their own State.
Thirdly, a jury committee may be established by the State Government at each State. The function of this committee is to regulate the summons of jurors, conducts of jury trial, expenses of jury trial and protection of the safety of the jurors. Experience shows that jury tampering is quite a serious problem, though fortunately not widespread. Jurors are subjected to bribery, harassment, intimidation, threats to themselves and their families, damage to property, and suffer stress, anxiety, fear, sleeplessness, and disruption of their lives. The police have to provide protection. If the matter comes to the attention of the judge he discharges the jury and orders a retrial, all involving a waste of time and money and imposing a burden on the witnesses.[viii] By setting up this committee, the jurors or public would have more confidence in the jury system of Malaysia and they may attend to the jurors’ duties more effectively.
Last but not least, we have to take into consideration of the rights of the accused. In the name of natural justice, the accused shall also be given the right to object the selection the jurors as opposed to the existing right of choosing the jurors in certain trials. This is because the accused ahs the inherent right of defending himself and raising preliminary objections. Similarly, the accused should have the right to object the appointment of certain jurors provided sufficient grounds are given to support the objection.
Unless such be the rights and duties of jurors, it is plain that, instead of juries being a “palladium of liberty” — a barrier against the tyranny and oppression of the government — they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.[ix] Jury trial depends on the decency of jurors acting collectively. If that is no longer the case, then jury trial is finished. As Lord Bingham said in R v H; R v C[x]: “The achievement of fairness in a trial on indictment rests above all on the correct and conscientious performance of their roles by judge, prosecuting counsel, defending counsel and jury.”[xi]
[i] The jury’s unlikely champion;Author and former Sunday Telegraph editor, Trevor Grove, used the time he spent doing jury service putting the system itself on trial, writes Philip Hoult. The Lawyer September 15, 1998
[vi] For more than six hundred years — that is, since Magna Carta, in 1215 — there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.