DO JUDGES REALLY KNOW BETTER?
22.07.1999

David Solomon
contributing editor


JUSTICE Richard Chesterman is among a small number of Australian judges who believe that judges rather than juries should assess medical evidence in criminal cases.
Last week Justice Chesterman, in the course of a debate on these pages with The Courier-Mail chief reporter Tony Koch, defended the present Queensland system which gives to the Mental Health Tribunal the power to determine whether a person was insane at the time he/she was alleged to have committed a crime.
The tribunal consists of a Supreme Court judge (currently Justice Chesterman) who is assisted by two psychiatrists.
Its main virtue is that it saves public money in that it makes a decision before a trial takes place.
Its vice is that it prevents a trial taking place, removing from a jury the ultimate question of whether an accused was guilty, or not guilty because of insanity.
The tribunal system also prevents victims or their friends and relatives from seeing that justice was done.
Justice Chesterman argued that the tribunal ``is no less qualified than a jury to make the appropriate determination''.
Yes and no; it depends what is meant by ``qualified''.
Yes, because few if any judges have qualifications in psychiatry.
No, because judges are not necessarily better able to evaluate expert evidence (though some think they are).
Our system of justice is based on trial by one's peers, and on involving the common sense of the community through the jury system.
It is quite common for juries to come to decisions different from those of the judge presiding at the trial.
THAT can apply as much to the evaluation of medical or psychiatric evidence as to the other factual issues a jury has to determine in order to reach a verdict.
Justice Chesterman's argument is as much an argument against jury trials generally, as it is for excluding the jury in determining whether a person accused of a crime is fit to plead, or was insane at the time the crime was allegedly committed.
A survey just completed for the Australian Institute of Judicial Administration shows that he is among a small minority of judges who believe that judges are better equipped than juries to evaluate medical evidence.
Asked whether ``matters involving complex and conflicting expert medical evidence be withdrawn from juries and be determined by judges sitting alone or by some other means'', only one in six judges said yes.
Five times as many judges disagreed with taking these issues away from juries.
The survey provides material that the State Government can assess in its review of whether the Mental Health Tribunal should continue.
As Koch pointed out, the Queensland system for determining the sanity of an accused person separately from the trial is unique in Australia.
That does not mean it is right or wrong.
However its utility does need to be measured against changes in the administration of the law in recent years, including the recent acknowledgement by the law and by the courts that the needs and rights of victims also have a place in the criminal justice system.