The Gazette 1983

GAZETTE

JULY/AUGUST1983

The Right to Jury Trial in Cases

of Contempt

Part l

Gerard McCormack, B.C.L.

rticle 38.5 of the Constitution provides that subject

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.

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

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

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

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.

"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

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