The unpalatable truth [Australia]
Kirby J dissented on both questions. The nub of his dissent, at [143], is worth reading:
Moreover, on subjects such as a criticism of a restaurant’s food and service, lay jurors are much more likely to reflect community standards than judges, many of whom, like myself, have no special interest in culinary matters, expensive restaurants or cuisine generally. Astonishing as it may seem, judges may occasionally lack a sense of irony or humour. Some may undervalue “free speech†or sometimes even feel hostility to a “free pressâ€. In such matters, therefore, there is safety in the numbers of a jury. It was an error of the Court of Appeal to consider that community standards were insignificant in judging the suggested defamatory character of the review of the respondents’ restaurant. With all respect, such an attitude contradicts the legislative preservation by s 7A(3) of the function of a jury. That function is not unreviewable. It does not exclude a proper role for the Court of Appeal. But the jury’s function is still very important. Because Parliament exceptionally provided for it, it is to be respected in defamation actions.
I rest my case: Kirby J is a hip cat. It is, as his Honour suggests, a instance where Parliament has required that the lawyers refer a matter to the general public to see what they think of a matter. The general public answers in a way which leads lawyers to think, “That’s not the right answer!â€, and then proceed to argue that the “right (lawyerly) answer†should be substituted.
What, then, is the point of asking a jury what it thinks about a matter if judges are just going to overrule the jury when they don’t come up with the answer that a lawyer would come up with? Isn’t that the whole point of a jury? I understand that it is scary for lawyers to put things in the hands of the hoi polloi, but for goodness sakes’, sometimes we lawyers need a reality check. I have described in a previous post how lawyers see things quite differently to the rest of humanity. Sometimes that’s a good thing, but sometimes, it means that we are “out of touchâ€. We can make the illogical seem perfectly illogical.
