Trial by jury is an ancient mechanism of justice. Its origins are traced back to Athens, where citizens would be compensated a day’s wage for their duties sitting in judgment of their peers.
In our justice system, the right to trial by jury is a strong protection for those facing the might of the state and the resources of the Crown.
Our Chief Justice Sian Elias and her colleague in the Supreme Court, Justice McGrath, summed up the importance of the jury in the case of Siemer v Heron  1 NZLR 309:
“The primary and most important function of the jury in a criminal trial is to determine the relevant facts of a case and to apply the law to reach a verdict of guilty or not guilty. In exercising that function jurors bring a diverse range of perspectives, personal experiences and knowledge to bear in individual cases which judges may lack. As fact finders, jurors determine which of the admissible evidence presented at a trial is to be believed and acted upon. Juries ultimately decide whether the facts fit within a particular legal definition, according to community standards. In this way they reflect the attitude of the community in their determination of guilt or innocence.
The right to trial by jury is also generally seen as providing a safeguard against the arbitrary or oppressive enforcement of the law by the government. It is a common perception that when jurors perceive that a prosecution has these characteristics they are likely to acquit. The same point is made about trials where a law sought to be applied itself may be thought to be arbitrary or oppressive by a jury. For these reasons the jury is seen as standing between the accused and the state in a way that judges, who are sworn to apply the law, are not always able to do.”
That, I suspect, is why the state does not like them. In July 2013 the Government made the first substantive amendment to our New Zealand Bill of Rights Act 1990 in 23 years. Sadly, it wasn't to strenghten our rights, but to weaken them. Guess what right they weakened? The right to trial by jury. It had previously been the case that anyone charged with an offence that carries a maximum penalty of more than three months imprisonment had the right to be tried by jury. Now, you are only entitled to trial by jury if you’re charged with an offence that carries a maximum penalty of two years imprisonment or more. This unfortunately leaves a number of crimes you can be charged with where you are not entitled to trial by jury.
For most serious crimes, however, the right exists and needs to be considered very early on in the piece. Another change the Government recently made was during the overhaul of the criminal justice system – you now have to elect trial by jury at the same time you enter a plea, and can not change that unless there is a change of circumstances. You are expected to enter a plea on your second appearance, usually, two weeks after you first appear in Court. It used to be the case that you could reserve the right of election until status hearing – now, there needs to be an almost immediate assessment of the pros and cons.
Whether or not a jury trial is best will of course depend on your case – the particular charges, the witnesses for the prosecution, you and your witnesses (if any). Some charges are better for juries than others. Drink driving, for example, will almost never see a jury. Allegations of a sexual nature, however, should almost always see a jury as a matter of course. This is illustrative of the fact that charges that have a primarily legal defence are better for a judge, while factual defences can be better for a jury. Where your case presents both legal and factual issues, it’s sometimes advantageous to elect a jury trial as sometimes, the court which deals with jury trial matters is better than those that only deal with minor crimes. That being said, sometimes its better to keep a charge in the lower jurisdiction, where you are up against a police prosecutor who (usually) is not a lawyer, as opposed to the Crown solicitor’s office who deal with jury trials.
There is a lot to think about when you make this strategic call. There is, of course, also the question of cost. As a general rule a jury trial can double or triple the cost of your defence, as the time and effort required is significantly more. That being said, it’s hard to put a price on justice, and if you can afford it, you’ve a better chance of obtaining a favourable result.
We seek to tip the scales well in truly in favour of the defence when it comes to a jury trial. The Government, in its overhaul of the criminal justice system, has seen fit to slash funding for both legal aid lawyers and the Crown Solicitor. We do not take legal aid, and are not constrained by the limitations of the crown. So, while maintaining a competitive pricing model, we go in no holds barred. A Crown Solicitor during a whopping defeat recently said to Stephen in an adjournment “your case is so well prepared – when will it end? I just don’t know what’s coming next…” –that is our goal.
By and large, a Crown Solicitor is assigned the file to juggle with their heavy court commitments. They prepare for the trial a week or two before hand, and often lack the time to chase leads and prepare witnesses thoroughly. On the other hand, we have the file from the day we enter the plea and elect trial by jury on your behalf. We investigate all leads possible, and advise you what we need you to do. We prepare you and all of your witnesses well in advance, and have colleagues run you through a mock-court scenario, including putting you through a cross-examination. We even have a connection to sort you out with a cheap suit if you need suitable attire! We do our homework. We make sure your case is presented to the jury in the best possible way.
We love jury trials. They provide an opportunity for justice to be taken out of the hands of the state and put in the hands of ordinary folk. Juries, in our experience, take their duty very seriously. If you’re concerned by virtue of the fact that a judge is simply a functionary of the state, then you need to seriously consider whether a jury trial is right for you. If you want to discuss your options, feel free to contact us for a chat today.