Juries In Australia Essay

To what extent do Juries represent the community? An analysis of Aboriginal people within Juries in Australia

Introduction

Juries are essential to the fairness of the criminal justice system, as they provide an application of the law at one with community conscience. They are expected to be representative, impartial and also independent to help ensure the fairest outcome within a trial. In Australia, juries are often criticised for being unfair when it comes to the representation and involvement of different minorities. This is mainly an issue concerning Aboriginal people and their absence within juries as they are seen to be disproportionately over-represented in the criminal justice system. The aim of the following

essay will be to address how the justice system in Australia fails to impartially represent the Aboriginal community within jury trials. (Through the use of numerous journal articles) the essay will explain the role of juries and the selection process. The representation of Aboriginal people as a minority within the criminal justice system will be explained, with a brief comparison of juries in Australia and The United States of America. The essay will come to the conclusion that juries within Australia are not in fact representative of the whole community, as Aboriginal people are, and have been for many years, excluded from participation in juries.
The selection Process of Juries in Australia
Juries have been around for many years within the criminal justice system and they play a crucial and important part in determining the guilt or innocence of offenders. In Australia the number of jurors in a trial is twelve. What distinguishes juries from other criminal justice institutions is that they do not need to be made up of professionals. Unlike a judge, lawyer or any other type of law enforcer, jurors are made up every day members of the community and are not required to have any legal or professional knowledge. Although a jury trial is not perfect, it “introduces into the law an element of community” (Watkins, n.d), which cannot be achieved from just having a judge deciding the verdict. Jury members are selected at random from the electoral role. However, using this method of selecting jurors becomes a problem when it comes to representativeness of the whole community as many individuals who are not Australian citizens cannot be on the electoral role, thus they cannot be selected to participate in juries. Also, many Aboriginal people do not take the necessary steps to ensure that they are enrolled in the electoral roll (Chesterman, 1999). There are many factors taken into consideration when selecting individuals to serve in juries and occupation is one of the factors considered. Lawyers, dentists, pharmacists, medical practitioners and also pregnant women in New South Wales are allowed exemption from jury duty(ref.). While in Queensland local councillors are also exempted(ref.). Another factor which is considered when selecting jurors is language barriers. Individuals have to be able to read, write and speak English. This means that individuals who do not understand English and do not speak it cannot be selected, and for Aboriginals this means a majority of them as most of them are not educated, therefore they do not know the English language(ref.). The criminal history of an individual is another factor taken into consideration. Aboriginals have higher rates of imprisonment than non-aboriginals, which is another reason they are not selected to serve in juries. The residency of individuals is also considered when selecting juries. Most Indigenous people are denied the right to participate in jury service on the basis of residential location. Residents who reside 81 km from a courthouse are excluded from participating in jury service, and this is the case for most Indigenous people who live in rural and remote areas (Law Reform Commission of Western Australia, 2010). The Law Reform Commission examined available evidence regarding participation in jury service by Aboriginal people and found that they are underrepresented as jurors. A survey which was conducted by the sheriff’s office in 2009 found that 1% of jurors self-identified as Aboriginal and according to the 2006 census, Aboriginal and Torres Strait Islander people make up approximately 1.5% of the metropolitan population (Law Reform Commission of Western Australia, 2010). This figure shows that the percentage of Aboriginals serving as jurors is relatively low.
Representation of Indigenous people in the criminal Justice System
Since the early times of the British invasions, Aboriginal people have been overrepresented and treated unfairly within the criminal justice system in many different ways.

Representation is an extremely important and key principal concept guiding jury selection. The notion that the jury should represent the community is the basis from which the jury and the criminal justice system derives its legitimacy (Law Reform Commission of Western Australia, 2010). The aim of selecting a jury which represents the whole community is to involve different backgrounds, knowledge, different perspectives and personal experiences in the jury process. By having different backgrounds prejudices and biases can be prevented. In order to achieve the goal of having a jury which is representative of the whole community, it is vital that all ethnic and social groups within the community should have the right and opportunity to be represented on juries (Law Reform Commission of Western Australia, 2010). As every other citizen, Aboriginal people also share an interest in being able to represent the community through jury service. However, in Australia, ethnic minorities, in this case Aboriginal people, do not share the same rights as other minorities to be tried by juries consisting of members of their ethnic group. The Australian Law Reform Commission stated “The jury ... are white, never Aboriginal, and, with the best will in the world, they find it difficult to act fairly in cases in which

white and native people are involved: white prestige and the maintenance of the white man’s superior position are felt to be at stake, and while it might sometimes be possible to find an accused native person to be not guilty, it is almost never likely that an accused white will be found guilty. A surveyof trials in the marginal regions of Australia during the past forty years bears out this generalization”(page ref.) This statement by the Australian Law Reform Commission further explains the treatment of Indigenous people within the justice system compared to white people and how they are treated unfairly by being excluded from taking part in juries. It shows how racial discrimination is evident in juries when deciding a verdict. An advantage of allowing different ethnic minorities and the whole community to participate in juries is not only that it is fair and representative of the whole community but it plays an important role in engendering public confidence in the criminal justice system. A study that was conducted in Victoria, New South Wales and South Australia by the Australian Institute of Criminology found that people who served as jurors have a higher level of confidence in the justice system then those who did not serve (ref.). Furthermore, in Western Australia, a survey of jurors also showed that their confidence in the justice system was enhanced by their experience as a juror (ref.). It is crucial that the jurors selected to serve within the jury come into court with an impartial mind. Matters that might affect a juror’s impartiality can include acquaintances with the accused or the victim.
Although fairness and equality is an important factor within the criminal justice system this can be questioned when it comes to the treatment of different ethnic minorities such as Aboriginal people. For decades, the issue of juries has been a problem for Aboriginal people who have been deprived of their rights to both participate in juries and have their cases heard by a jury consisting of Aboriginal people. In 1841 in New South Wales two aboriginal men argued for the right to face a jury made up of their people, however they were denied that right and were convicted by an all-white jury and were hanged (Horan & Tait, 2007) There have been many other cases like this one where Aboriginals have argued to have an aboriginal jury but all have been unsuccessful (ref.).
There is some research which has shown that Aboriginals are deliberately denied the right to be selected to serve on juries. This can be seen in a case in Derby in 1984 where an all-white jury was selected in a town which had a population of 60% Aboriginals (ref.). Another case in 1989 saw an Aboriginal man who was charged for breaking into a car, and only one-third of the 40 to 50 members of the jury panel were Aboriginal (Israel, 1998). Over an 8-year period the Deputy Sheriff in Perth could not recall any Aboriginal people serving on a jury although there was a high population of Aboriginal people (ref.). Another example which can be used to show how Aboriginal people were denied the right to serve in juries is the Royal Commission into deaths of custody, which investigated the death of John Pat. Concerns were raised over the fact that the trial was conducted before a jury that had no Aboriginal members, despite the high population of Aboriginals in the area (ref.). There has also been evidence found in New South Wales which claims that some prosecutors, when faced with an Aboriginal defendant, have in fact attempted to challenge the composition of juries in a way that no Aboriginal jurors are selected (Israel, 1998). One perception as to why jurors should not be the same race as the victim or the offender is that they will be overly sympathetic towards the victim (Horan & Goodman-Delahunty, 2010). In this case, if an Indigenous victim or offender has an Indigenous jury, their judgement will be clouded by sympathy and they will not decide on the correct verdict.
The inadequate representation of Aboriginals minority within the Australian justice and criminal system does not stand alone. This indecent representation in juries of particular minorities can be seen in other parts of the world today. In the United States of America there has long been widespread discrimination some may say in the varieties of race, gender and occupations in juries. In June 2010 there was an initiative named the ‘Equal Justice Initiative’ (EJI) which studied the selection process of court juries (Weddell, 2013). Throughout this the study it was evidently found that discrimination and bias within the jury system was obvious. This study found that the action posed threats in the criminal justice system concerning its integrity and dependability for the country’s citizens. Another finding by the EJI found that in the Alabama (Houston County) prosecutors strived to remove eighty percent of African Americans minorities from jury service (Weddell, 2013). The study also found that prosecutors generally posed strikes to the jurors in the African American minority of jurors much more than the white American population for the same reasons. The dismissals of some African American jurors were found to include such things as a lack of intelligence, looking like a criminal, chewing gum, wearing sunglasses in court and even those who have beard a child out of wedlock (Weddell, 2013). The EJI has produced astonishing evidence that minorities have been denied the right to sit without discrimination in a jury and to this day is still occurring at a highly disturbing rate. Evidently, this shows that just like within Australian juries’ bias, impartiality and representativeness of the community are also issues present within juries elsewhere in the world. Aboriginal people are not the only ethnic minority that are treated unfairly within the criminal justice system. By comparing Australian juries to juries in America, it is evident that there needs to be changes made in order to maintain fairness and equality with all members of the community.
Conclusion
In conclusion it can be evidently seen that although juries are expected to be representative of the whole community, impartial and independent this is not the circumstance within juries in Australia.

Juries in Australia are unfair when it comes to representing and involving different minorities such as Aboriginal people, who are overrepresented and unfairly treated in the criminal justice system (ref.). In order to achieve the most impartial and unbiased outcomes for both offenders and victims, it is vital that juries include the involvement of all ethnic and social groups. If juries within Australia are to act as a symbol of integrity and impartiality by invoking the ideals of fairness and community conscience, then there are changes which need to be made in how juries are selected. There are many recommendations that can be implanted to ensure that Aboriginal people are able to participate within juries. Such recommendations include ensuring that they are on the electoral roles. Another recommendation is to allow individuals who are from rural areas to participate. Another recommendation could be that if individuals do not speak English, they can be provided with a translator. Putting into practice all of these recommendations and changes can allow Aboriginal people to become more involved within the criminal justice system, and in this case serve within juries. Not allowing different ethnic minorities to partake in juries leads to many issues within the criminal

justice system. These issues include individuals believing that the verdicts reached are unfair, those not selected to serve in juries feel as though they and their community are not being represented or given the opportunity to participate and have a say in the criminal justice system. Overall, Aboriginal people and all Australians- regardless of their race, gender, occupation or socioeconomic status should be allowed to participate in juries.