CDPP is accusing the banks of engaging in cartel conduct following ANZ’s $2.5 billion capital raising in 2015.Credit:Glenn Hunt
"Pity the judge who has to compile a coherent set of jury directions!"Beaton-Wells says.
She points out the Federal Court has been preparing jury directions for some time for cartel trials,anticipating these challenges.
Complexity is nothing new in the law,but Fisse says that if it leads to confusion,it can favour the defendant.
"If you get jury confusion,the chances are that there won't be a majority verdict,because quite a few of them will feel there's a reasonable doubt about liability,"he says.
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Another potential issue is that it may be harder for the banks to appeal a jury’s verdict.
Associate Professor of criminal law at Monash University,Jacqui Horan,says it is generally easier for well-resourced defendants to appeal a judge's decision,because it will come with published reasons - unlike a jury decision.
But Horan also says juries are capable of understanding complex financial matters,and that available research in this area has found that judges and juries “tend to decide things similarly".
"Juries these days are sophisticated enough to decide financial matters,and you don't have to have any financial background to be a judge,"Horan says.
Besides,she says a jury trial has the advantage of giving the community a voice in the very topical issue of corporate conduct.
"In this day and age,the voice of the jury is a great way to send a message to the banks about what behaviour is tolerated,and appropriate,and what behaviour is not."