The first mistake people often make when they talk about juries is to say that they’re necessary and important because they’ve “always” been part of the justice system. As though 1) the justice system doesn’t grow and change, and 2) the way it’s always been is the way it needs to be. There’s a lot wrong with Australia’s current jury system, but more importantly, there’s a lot of simple, easy stuff we can do that would go a long way to fixing it.

When jury trials first started in Australia, only land-owning men of a certain means would be called for duty. Criminal laws (and therefore laws around juries) are legislated by state, not federally, in Australia. Queensland was the first state to allow women to serve on juries, and that was back in 1924, but according to the state library of Queensland’s archives, the first female juror wasn’t actually empanelled until 1945. Victoria didn’t catch on until 1975, and when women first started serving on juries, the Sydney Morning Herald reported they were being paid nine shillings a day compared with men receiving 16 shillings and twopence per day.

Our jury system has been, and may continue to be, flawed. It will always be in need of improvement. Our justice system is supposed to serve our society as it grows and changes.

A jury is supposed to be a randomly selected representative cross-section of society. Pre-emptive challenges stop this

A couple of weeks ago I spoke on ABC Radio National with Assoc Prof Jacqueline Horan, the author of Juries in the 21st Century. Most of our conversation focused on the point of empanelment and pre-emptive challenges. It’s an issue I express a lot of frustration about in my own book, Eggshell Skull, and one I have also personally experienced.

A “pre-emptory challenge” is an opportunity for either the prosecution or defence counsel to veto a potential juror from being empanelled without having to give any reason or justification. In practice these challenges are barely used by prosecution but are considered a long-held right of a defendant. Most frequently, women, young people and non-Caucasian people are challenged. The problem is that a jury is supposed to be a randomly selected representative cross-section of society. Pre-emptive challenges stop this from happening. In Queensland there are eight challenges, but in Victoria they’ve acknowledged the problem of bias and dropped it down to four. Better still, in the UK – from where we got this whole system – they’ve abolished the process of pre-emptive challenges.

When I was a judge’s associate in Queensland, I frequently saw defence barristers use up most, if not all, of their challenges. In a state where they are allowed eight, that can have a huge impact on the makeup of a panel. One of the roles of an associate is to pull names out of the barrel and call people to be empanelled. Where I would call out the names and numbers of potential jurors, in other states they might also announce the person’s profession, and in others the number only with no names. The critical problem, though, is that all jurisdictions allow counsel to take a good look at the individual – making immediate assessments of age, gender and race.

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I remember watching the potential jurors file into the courtroom for my own trial, and a person watching the trial, Alex, coming out after empanelment was finished.

“They challenged all the women,” Alex said, emerging from the courtroom about 20 minutes later. I just laughed and shook my head. A bitter laugh. “But there are still four.”

“Still four?” I asked quickly.

“Yep, it was pretty funny, actually. It was so obvious what they were doing, but the associate just kept pulling out women’s names and they ran out of challenges.”

Facebook Twitter Pinterest Bri Lee’s book, Eggshell Skull, is an account of her attempts to find justice for a crime perpetrated against her. Photograph: Alana Potts

The second phase is no less flawed. Once the jurors are empanelled, things become extremely opaque. It’s illegal for jurors to talk about their deliberations with anyone outside the jury room. We do this to avoid the heinous spectacle that the US system suffers from (where jurors sign book deals before they’ve even delivered a verdict) and to ensure that no external pressures or perceptions shape a jury’s decision. It also makes research and reflection on the process difficult.

New South Wales is currently reviewing its sexual assault and consent legislation. The Saturday Paper recently reported on Karen Willis, the executive officer of Rape and Domestic Violence Services Australia, arguing that the review is too narrow and needs to take a broader view of the inequalities of the current trial process – including juries. Her organisation’s submission to the review includes a recommendation to eliminate juries in sexual assault trials. Instead, a specially trained judge would make findings of both fact and law because “juries often lack the knowledge of trauma required to make sound judgements [sic] in sexual assault matters”.

We need to get to a point where instead of just bypassing juries, we help members of the public actually do justice

This is a question I’m frequently asked: should we get rid of juries altogether? New Zealand has been trialling a judge-only model for sexual assault matters and it’s had a positive effect on wait times and complainant experiences. In other countries they have a combination of judges and expert non-lawyers too. There are all kinds of alternative models.

The jury in my case found the defendant guilty of both counts, so of course I feel like they “got it right”, but consent was not a live issue at my trial. Many women have written to me describing their disappointment that the jury were told of their sexual history and depression medication, and that they froze instead of fighting back, and that the defendant was subsequently acquitted. Willis is right that juries don’t have enough information to make sound judgments.

My frustration is that getting rid of juries may be a shortcut to justice for complainants. It provides temporary relief to those going through the system right now, but really we need to get to a point where instead of just bypassing juries, we help these members of the public actually do justice. There are huge advantages to having members of the public coming into courts, interacting with our justice system, and then taking what they’ve learned and experienced back out into the community. If we updated our attitudes towards consent and sex offences – including our attitudes to “freeze” responses and childhood trauma – imagine what a powerful tool for understanding and education the courts could be.

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To get to this point juries would need to hear from expert witnesses who explain normal trauma responses. They could be informed by an expert about the reasons a complainant has waited several years before being emotionally ready to make a complaint, instead of their “inexplicable delay” harming their credibility. There’s even an option to have a complainant stepped through their evidence-in-chief and cross-examination by a court-appointed third party not paid for by the accused, leading to a gentler and more respectful process.

The potential beauty of a jury is when it represents a true, random cross-section of our society and peers. It means we are judged by one of our own. This is not possible with pre-emptive challenges the way they currently exist across Australia. The other potential beauty of a jury is how it can be a tool for learning and understanding. States that have positive definitions of consent (that is, if it’s not an explicit “yes”, then it’s a “no”) result in 12 people being educated on that fair definition, who then take that message back out into the world with them.

If getting rid of juries is the only way to ensure justice in sex offence trials, then let it be done. I just wish we’d try a little harder to get them right first.

• Bri Lee is the author of Eggshell Skull