The Gazette 1983

GAZETTE

JULY/AUGUST1983

The Right to Jury Trial in Cases of Contempt Part l by Gerard McCormack, B.C.L. A rticle 38.5 of the Constitution provides that subject

to one judge or group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence". The jury is of course not without its vices. Indeed in certain situations the requirement of trial by jury might conceivably work to the disadvantage of an accused. The jury, it has often been argued is prone to popular prejudice and untrained jurors are presumably less adept at reaching accurate conclusions of fact than judges, particularly if the issues are many or complex. In Duncan v Louisiana arguments were advanced to the effect that juries are incapable of adequately understanding evidence or determining issues of fact, and that they are unpredictable, quixotic, and little better than a roll of dice. The court rejected these con- siderations as being of little weight or importance. It referred to Kalzen & Zeisel's exhaustive and then recent study The American Jury (1966). This concluded that juries do understand the evidence and come to sound conclusions in most of the cases presented to them and that when juries differ from the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed. It might also be said that opportunity exists for the correction of erroneous convictions on appeal. The social degradation that accompanies a criminal conviction is a deadly serious business. It is difficult to disagree with the principle that a conviction on a serious charge should only follow meticulous proof and that the jury is as good an institution as any other, despite its drawbacks, for charging with the responsibility of deciding if the proof is adequate. To have to convince twelve people is more of a task than to have to convince but one. The Contempt Power It is axiomatic that the administration of justice must be preserved free from improper interference and obstruction and there are a number of substantive criminal offences relating to the administration of justice such as perjury and subornation of witnesses. Neverthe- less our judges have also arrogated to themselves a significant role in securing this end. This is manifested in the power of the superior courts to punish contempts. The contempt power is of wide and uncertain scope; a proposition illustrated by the following observations of Johnston J. in In Re M.M. and H.M. 1 "The tricks and turns by which justice may be obstructed or perverted are so numerous and varied, and the ingenuity of mankind is so constant, that it is 177

to certain specified exceptions no person shall be tried on any criminal charge without a jury. This imperative reflects a profound judgment about the way in which law should be enforced and justice administer- ed. The jury trial guarantee fulfills a number of important functions. It ensures, inter alia, an element of lay participation in the administration of criminal justice. However lay participation in the determination of criminal cases has been judicially regarded in this jurisdiction as something less than an incontrovertible desideratum. This is so even where no express exception has been made to the constitutional guarantee of trial by jury. Judicial approval of the jury trial system in criminal cases has not been absolute and unqualified. More especially, at particular points, it has come into conflict with another judicially desired end, namely, the resolve to maintain the independence, impartiality and integrity of the judiciary through a summary power of putting persons in prison for contempt of court. The con- titutional command concerning jury trial has been subject to far-reaching limitation in contempt cases. It is intended in this article to assess the legitimacy and const- itutional propriety of this substantial retrenchment on the scope of procedural protection. The issue of the distinction between civil and criminal contempt will also be addressed. The Jury in Criminal Cases; Merits and demerits The jury affords ordinary citizens a valuable opportunity to take part in a process of government. It ensures that the standards of the law do not become remote from the concerns of the ordinary individual. The jury injects a democratic element into the law. 1 This element is vital to the effective administration of criminal justice not only in safeguarding the rights of the accused, but also in encouraging popular acceptance of the laws and the necessary general acquiescence in their application. Above all, the jury trial guarantee is in accord with the constitutional command of criminal due process. The following extract from Duncan v Louis- iana 2 is no less true in this jurisdiction: "Providing an accused with the right to be tried with a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge. If the defendant preferred the commonsense judgment of a jury to the more tutored but perhaps less sympathetic reaction of single judge he was to have it. Beyond this, the jury trial provisions in the Federal and State constitutions reflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the life and liberty of the citizen