Lawmaker Taimus Werner-Gibbings’, after 1.5 years in the Assembly, has his training wheels off and taken the mighty step to reduce the number of peremptory challenges in jury selection.”This isn’t even tokenism. It’s just pathetic,” writes legal columnist HUGH SELBY.

When a jury is being chosen, the prosecution and the defence can object to a potential juror being selected.

There are two types of objection (known as “challenges”): for cause, and peremptory. 

Suppose that a politician was about to go on trial, say for allegedly accepting an inducement to ensure that one building company was preferred to a second builder despite the lower tender coming from the second builder (thank goodness, such things do not happen here). 

Among the potential jurors is one wearing a T-shirt bearing the slogan, “Pollies are crooks”. If they are called up to be a juror then there will be an objection based on the inability of the T-shirt wearer to be impartial. That’s a challenge for cause.

Such objections for cause are almost non-existent because juror background and beliefs are not shared with the judge or the lawyers.

An intelligent reform would be to use social science expertise to test potential jurors before they come into the courtroom, allowing the trial judge to question those who might be incapable of being dispassionate assessors of the evidence.

For now, if the “Pollies are crooks” believer wants to be a juror, then he or she will not wear that T-shirt. Their beliefs remain hidden until they are talking to their fellow jurors. Too late then.

A peremptory objection requires no reason. Its rationale was to give the accused “a say in who tries them”, albeit that that “say” had no foundation. It’s a licence to be a bigot. 

It’s also a way for “show pony” advocates to pretend to know more than everyone else about how to choose a good juror using appearance, clothing, gender, age and race. It’s just quackery.

Hence, it’s time to abolish peremptory challenges.

That’s abolish, not fiddle. This is a message not yet understood by Labor’s member for Brindabella, “taimus wg” (Mr Werner-Gibbings’ self-description) who, after 1.5 years in our Assembly has had the training wheels removed. 

According to his press release, this is his first foray into legislation: a mighty step to reduce, not abolish, the number of peremptory challenges. Section 34 of the Juries Act will replace “8” with “4”.

He says his reform will “improve the representativeness of juries – particularly in relation to gender – and support a more efficient jury selection process.”

This isn’t even tokenism. It’s just pathetic.

Do something worth doing

Taimus, mate, there are worthwhile changes to the Juries Act that you could usefully sponsor. We don’t have to stay in the 19th century.

You might want to explore the following changes:

• Use social science to explore the views of prospective jurors so that those unfit to assess the facts are excluded;
• Establish a pool of jurors who volunteer to be jurors for a 12-month period. Ensure an overlap from one group to the next so that the knowledge of one group passes seamlessly to the next. This is a way to ensure the diversity that you want. This standing pool could provide a fixed proportion of the total jury in a trial. Keep in mind the likely high calibre of Canberrans who might like to be one-year jurors;
• Make clear that more than a dozen jurors should be empanelled so that those who disregard the judge’s directions about the rules can be sent home without the trial being jeopardised;
• Empower judges to be more pro-active in inviting questions from jurors, especially to help jurors deal with the inevitable distractions that come from everywhere else in their lives. The present practice is that a juror who has a question must put it in writing through the foreperson who gives it to the jury officer who gives it to the judge. It’s a system designed to discourage communication. Little wonder jurors use the internet to get answers.

And, since you have an interest in our criminal justice system, please give your attention to turning the prison and the youth detention centre from being warehouses and training schools for inept criminals into nation-leading rehabilitation success stories.

Instead of just catching up, let’s get to lead the nation using the talent among us. It can be done ever so cheaply. Done well it will even save money on present expenses for trials and imprisonment.

Hugh Selby is a former barrister and the CityNews legal affairs columnist.