A Case to Answer: Juries and Jury Duty in Western Australia’s History -2022

By Christie Strauss: Museum Officer, The Old Court House Law Museum

Jury duty is an often-overlooked significant element of the Australian legal system, and Western Australia played a huge role in developing it. The very first true jury in Australia was formed in Fremantle in 1830. Whilst we were not the first state to allow women to serve upon a jury, Western Australia was the first to admit women on equal terms with men.¹Walker, S. (2004). Battle-axes and sticky-beaks: women and jury service in Western Australia 1898-1957. Murdoch University Electronic Journal of Law, (11)4, p. 1-11. https://search.informit.org/doi/epdf/10.3316/agispt.20052908 This article will take you on a brief and eventful look at the history of Jury Duty in Western Australia.

Early Colonial Juries

Originally jury duty was a civic duty of men, aged between 21 and 60, who owned real estate to an appropriate value, and who were not fulfilling the most important jobs in the colony. They also could not be illegal aliens or criminals, and jurors were paid for their attendance. Two kinds of juries were established; a Grand jury, deciding if there was a case to answer (abolished in 1855), and a petty jury (current) who decided upon a verdict.²Russel, E. (1980). A History of the Law in Western Australia and its Development from 1829 to 1979, p. 138. The University of Western Australia Press.  It was not till 1962 that those who were eligible to vote in the Legislative Assembly, were also able to serve on a Western Australian jury.³Handford, P. (2018). Criminal Prosecutions in Western Australia: A view from the nineteenth century. University of Western Australia Law Review (43)1, p. 143-171.

In the new colony it was inevitable that jury members often had prior knowledge of the cases and individuals on trial, and that the same jurors were repeatedly called upon to serve (an issue still cited in regional Western Australia today).⁴Law Reform Commission of Western Australia (2010). Selection, Eligibility and Exemption of Jurors: Final Report. Government of Western Australia. https://www.parliament.wa.gov.au/publications/tabledpapers.nsf/displaypaper/3812809aa86380427e6648d3482577d6002bf9fa/$file/tp2809.pdf Many fascinating and peculiar cases were held within the Old Court House; in 1838 a sailor was brought on charges of ‘drinking the Captain’s brandy’. As the jury retired to consider a verdict, they took a bottle of brandy with them and allegedly toasted to the health of the prisoner. After the drink the jury returned to the clerk’s query of “How say you?” They cried “Not guilty!” and escorted the newly cleared man to the nearest bar.⁵Green, N. The old Court House 1837: A brief History. p. 3. The Law Society of Western Australia.  There were also cases where the jury were sequestered to stay overnight within the Old Court House.

Women as Jurors

There were six attempts to amend the Jury Act by the Legislative Assembly in favour of placing women on the jury list. Reasons presented as to why women would not be suitable included that women are irrational, they would be influenced by male jurors and their husbands, the cases would likely shame a woman’s sensibilities. My personal favourite explanation was that a man seeing a woman he had performed jury service with, would find her ‘quite diminished’.⁶Walker, S. (2004). Battle-axes and sticky-beaks: women and jury service in Western Australia 1898-1957. Murdoch University Electronic Journal of Law, (11)4, p. 1-11. https://search.informit.org/doi/epdf/10.3316/agispt.20052908

In 1957 the Western Australian Jury Act was amended, abolishing the property qualification, and finally allowing men and women between the ages of 21 and 65 for jury service IF they were eligible to vote.

Aboriginal Peoples as Jurors

Aboriginal Peoples were not eligible to sit on juries in Western Australian Jury until they were finally afforded the right to vote in 1962. This overt racism was also present in the early juries. In many cases where a ‘man of good character’ was tried for the murder of an Aboriginal person, a jury would on the rare occasion find the accused guilty, and yet make a strong recommendation to mercy. In 1853 John Jones was tried for the murder of Wardandi man, Neader. Though witnesses explained the attack was unprovoked the jury found him guilty on the charge of manslaughter.

Jury Duty Today

Today jury duty is the civil responsibility of any persons registered on the Western Australian electoral roll between the ages of 18 to 75. The Juries Act of 1957 has been regularly updated, and now, very few people are ineligible, and deferrals rather than exemptions have been introduced. However, as one editor declared in 1873 “since the signing of the Magna Carta, trial by jury is regarded as the great palladium of British (and Australian) liberty. That a man should be tried by his peers and pronounced guilty or innocent by the united voices of 12 “good men” has been regarded by most minds as the summum bonum of human justice.”⁷Plater, D & Geason, V. (2019). “The prisoners could not have that fair and impartial trial which justice demands”: A fair criminal trial in 19th century Australia. Canterbury Law Review (25). p. 161-204.

If you would like to learn more on Western Australia’s legal history or see the Court House were many a juror was sequestered overnight, visit the Old Court House Law Museum, Tuesday to Friday 10am-4pm in the Stirling Gardens.