It’s time for a legal shake-up

The law is very traditional and conservative. That’s not a bad thing, per se, but it does lead to ossification of ideas and sees some things stay in place when they should have been done away with long ago. One such convention is keeping secret, the previous criminal history of a trial defendant.

No less a legal identity than the Chief Justice of Queensland, Paul de Jersey, is breaking with tradition in arguing that jurors are sufficiently intelligent to be able to learn a defendant’s history and still deliver a fair and unbiased verdict.

Examples he uses to illustrate his point include a jury being advised that an alleged rapist had been convicted of an earlier rape six months previous or revealing that someone charged with fraud has numerous convictions for dishonesty.

Such disclosure is illegal in all states and territories of Australia although courts in the United Kingdom have had discretionary leeway for a decade to reveal a defendant’s similar offences.

No doubt the Chief Justice’s bold thinking will cause serious ripples to wash through the halls of justice with many conservative lawyers aghast at such progressive notions.

It should be admitted that this practice came into being for good reasons and the fact it has remained in place for so long is testimony to its inherent worthiness. Even so, we live in a different world today in which we are awash with information, unlike earlier eras.

It is also pertinent that we are these days awash with the scandalous affairs of people from every strata of society and that not much shocks us anymore. However regrettable that may be.

The inescapable fact is that trials these days bear distressingly similar characteristics to reality television. A community groomed on such trash should not be shaken by revelations made in a courtroom.

And, even if justice is miscarried as a consequence of revealing previous offences, is that not a natural corollary of trial by one’s peers? When we found our justice system on the reasoning ability and instincts of ‘the common people’, it’s a lottery whether justice truly will prevail. But the evidence is substantial that learned counsel are no less prone to making mistakes than the rest of us. To err is human after all.

The Chief Justice’s suggestions are worthy of a trial, so to speak.  The UK legal system appears not to have fallen apart yet.


Acknowledgement: Renee Viellaris, The Courier-Mail