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A return to village life: internet bursts the bubble protecting juries

There are some suprises in the various reasons given for why the traditional criminal jury should be done away with.

There are some suprises in the various reasons given for why the traditional criminal jury should be done away with.

That was a nice little firecracker that Justice Peter McClellan tossed into the drowsy end-of-year chambers of the crime bar.

At a speech to the law faculty at the University of NSW earlier this month the Chief Judge at Common Law let fly with his well-rehearsed thesis against the continued use of juries.

He's also been in the headlines recently as one of the judges in the appeals of Jeffrey Gilham and Gordon Wood.

McClellan has been keen for some time to get rid of jurors from their last remaining foothold in the civil area - defamation cases - and now he's widening his argument against them trying criminals, or people accused of crimes.

Startlingly, he says only about 3 per cent of all criminal trials in NSW are conducted with a jury.

Part of the reason, apparently, is that the Office of the Director of Public Prosecutions and Legal Aid don't have enough money to resource all the trials on indictment that they might like. Hence, there are more and more summary trials without juries.

Another ingredient is that the DPP can no longer veto a defendant choosing trial by judge alone.

Justice McClellan puts up various reasons why the traditional criminal jury should be done away with, and there are few surprises: expert evidence is too complex for a judge, let alone a jury; so too evidence about accounting and market transactions; fewer and fewer people actually want to serve on a jury, and many have worked out how to avoid the task; juries don't give reasons, so no one has much of a clue whether they understood the case correctly; every other decision maker has to provide reviewable reasons, but when it comes to a citizen's liberty, reasons are not required; judges are accountable, jurors are not.

Juries are an article of faith for the criminal defence business - it's trotted out like a mantra. It's not unfair to say jury trials give rise to more opportunities to appeal and to more retrials. The process is longer, and therefore more expensive. All worthy reasons to keep juries.

Yet, it's not as though criminal defence lawyers' objections do any favours for their clients. The Bureau of Crime Statistics has figures that show judge-alone trials result in higher rates of acquittal than jury trials.

Time-worn practitioners say this is because judges are busy people and to convict someone requires more detailed and carefully written reasons than if they are acquitted.

McClellan attributes it to the possibility ''judges are not so easily swayed by the rhetoric of the skilful advocate''.

He suggests a different configuration. The accused still needs to be protected from mad or bad judges.

Multiple trial judges sitting in panels or lay assessors deliberating alongside judges are among the ways to achieve the right balance and are used in other civilised corners of the globe.

Of course, for major offences prosecuted under Commonwealth law in state courts you'd need a change in the constitution to do away with juries. Lurking alongside Justice McClellan's list of compelling reasons to ditch the jury is the glaring reality that the kind of confected environment in which jurors are expected to operate is no longer functional. The capacity to closet jurors away from the real world of swirling prejudice is gone.

The most recent example of this the Bandali Debs murder case, tried in the NSW Supreme Court by a jury and Justice Robert Hulme.

This week Debs was found guilty of murdering a Sydney woman, Donna Anne Hicks. He is already serving two consecutive terms of life imprisonment for murdering two Victorian police officers in 1998. He has also been convicted for the murder in 1997 of another young woman in Melbourne, Kristy Harty.

In October, before Debs's most recent trial, Hulme made orders that there be no publication of the fact Debs had murdered anyone or that he is currently serving sentences in Victoria and that his DNA has been associated with the Kristy Harty crime scene.

In effect, the judge issued take-down orders to dozens and dozens of online publishers who had masses of information posted about this notorious criminal.

It was like King Canute trying to hold back the waves. Many of the mainstream publishers did take stories off the web in compliance but, during the course of the trial, I counted on any given day between 41 and 65 Google pages of information about Debs that stayed put, including material on Wikipedia and Facebook.

Trying to scrub the internet clean to protect the delicacy of the jury is simply impossible.

That the presumption of innocence is constructed on jurors being kept in a bubble, but not judges, is a proposition increasingly difficult to swallow.

In the old days in Sydney jurors were quarantined by being driven around the streets in a cart until they had reached a verdict.

Maybe the purists could recreate a contemporary equivalent and keep the tottering edifice alive for a bit longer. The historical view of the jury was that the people of the village judged the accused, an accused they knew well. Defence lawyers and the judges steadily sought to exclude the existence of prior knowledge in the name of ''a fair trial''.

The internet has brought us back to where we started. We're all in an information village, again. The bubble has burst.

justinian@lawpress.com.au

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28 comments

  • GJH makes a pleasant argument, and I suspect one favoured by prosecutors everywhere. Perhaps GJH would change his or her tune if found in the dock?

    The presumption of innocence is, and must remain, a fundamental protection in our legal system. As Mortimer's alter ego reminded us, it is the golden thread that stops us from being arrested and banged up with six lunatics and a chamber pot.

    Commenter
    Tom
    Location
    Crows nest
    Date and time
    December 16, 2011, 6:56AM
    • My one experience of serving on a jury was a case of alleged molestation of a minor. The court was closed.

      For two days we were shuffled in and out of the courtroom while "legal matters" were discussed out of our hearing.

      We, the jury, were not presented with enough evidence to warrant a committal, let alone a conviction.

      This did not, in my view, constitute trial by jury.

      Commenter
      Farmer Ted
      Location
      Rural NSW.
      Date and time
      December 16, 2011, 7:07AM
      • I agree with McLellan, and with Ackland's brief critique of the jury system, and would go further.

        Not only should the presumption of innocence be discarded and replaced with a neutral stance, swathes of the evidence act need at least revision.

        Indeed, as former SMH journalist Evan Whitton has ably argued in these pages, the whole adversarial system should be made justify its continuance, given the superiority of the inquiry model for finding truth, as used in places such as the coroner's court and by ICAC.

        Of course that would not suit blustering barristers, but so much the better.

        Commenter
        GJH
        Location
        Sydney
        Date and time
        December 16, 2011, 7:15AM
        • @ Richard Ackland

          Possibly Justice McClellan is ahead of his time in wanting defamation cases heard without a jury because it appears most defamation cases belong in the 1% category and the 99% of jurors earning much, much less then even the Honourable Justice would not possibly be quite as amenable to the nuances of big corporation chiefs or the obscenely rich.

          As for the white collar crime of accounting then of course juries would have difficulty or may not understand the theory of relativity completely but then again white collar crime has not been a hanging offence for some 200 years and Justice McClellan's peers on the Appeals bench may disagree with him.

          I wonder what his peers think of his idea in relation to juries ?

          Commenter
          John Fraser
          Location
          Queensland
          Date and time
          December 16, 2011, 7:22AM
          • Sometimes, it takes a lame duck to come out and try to say or do what is right.

            Commenter
            Knee Jerk
            Location
            Sydney
            Date and time
            December 16, 2011, 7:47AM
            • Who is to say that an appointed judge, or several judges, all ignorant of biology and statistics, are better arbiters of complex data than a random selection of 12 citizens? While it might be true that fewer people wish to serve on a jury (of course the selection criteria for jurors could be modified to favour inclusion of retirees, say), the presumption that present-day jurors will consult the internet is entirely untestable and unknowable.

              Commenter
              anor277
              Date and time
              December 16, 2011, 8:02AM
              • The reasoning and logic in this article is just as flawed as that of a court. Until such time as someone comes up with a well designed method of assessing and evaluating 'evidence' the judiciary will always be subject to human opinion, bias, prejudice and misunderstanding.

                Juries are supposed to stop one person, the judge, from making a mistake but are usually no better equipped to make the judgement. Being fully informed, having all the so-called facts, doesn't qualify a person to make a judgement, they need a structured method with which to assess and evaluate the information, so that the judgement comes out of the method and not from the flawed and erratic human mental and emotional processes.

                Until the judiciary realises how flawed human judgement really is, it will not solve the problem of fair trials.

                Commenter
                WillD
                Date and time
                December 16, 2011, 8:04AM
                • "The historical view of the jury was that the people of the village judged the accused, an accused they knew well."

                  Your last paragraph contains the salient point. Juries of old actually were composed of people who knew the defendant and probably also the victim, and would have been able to make judgements about the character of each.

                  They would have known or heard of the circumstances of the crime. Those factors would undoubtedly have played a role in their deliberations and decisions. That was how the jury system was designed.

                  Current practice of isolating the jury from external inputs and limiting them only to what lawyers allow them to know is really a perversion of the original intent and produces no better "justice" than if the facts were fed into a computer which would then spit out a verdict.

                  Citing your example, if someone accused of murder is already a twice-convicted murderer and their DNA is found at a murder scene, how is that not relevant or allowable information for a jury? On what planet does suppression of that information help produce an just outcome?

                  It seems one would need to be a lawyer to understand or accept the twisted logic of the rules that govern rules of evidence at jury trials. Certainly they appear to be beyond the capacity of mere mortals who can only rely on reason, life experiences and an innate moral compass whose needle has not been rusted on by over exposure to the legal profession.

                  Commenter
                  Victor
                  Location
                  Sydney
                  Date and time
                  December 16, 2011, 8:16AM
                  • Many judges are very bright people, but they can be swayed by dodgy arguments, too. Does anyone remember the "forensic evidence" presented at the Lindy and Michael Chamberlain trial? The jury was directed by the judge on how to interpret the evidence, and the judge got it wrong -- albeit on "scientific" evidence.

                    Commenter
                    L. Beau Bendon-Stretton
                    Date and time
                    December 16, 2011, 8:40AM
                    • "The internet has brought us back to where we started. We're all in an information village, again. The bubble has burst."

                      Why make such sweeping statements as thought they are fact?

                      And even more bizarrely that an opinion that isn't "fact" justifies the dismissal of a cornerstone of a legal system that the Western World identifies as integral in defining our society's fundamental differences with those not only of the past, but also those societies we cannot afford to become like.

                      If 'villages' of the past supplied jurors for criminal cases, it was a matter of logistics... Until the development of high speed personal transportation in the mid to late 20th century, it was implausible for jurors to be enlisted from outside specific geographic regions and therefore a region's smaller localised communities.

                      To imply that earlier forms of communication weren't as capable of 'tainting' a jury's or specific juror's knowledge/perception of a case or the accused's role in a specific case - yet the "Internet" is; as though it's the only thing society is incapable of overcoming and therefore we must succumb to it's influence, is immature and disingenuous.

                      There's a reason "justice" is served by the presumption of innocence and trial by jury. It's a piddle poor World we live in that is prepared to turf such principles merely because some academics think it's OK and a journo reckons the internet makes it so...

                      Commenter
                      Steve_C
                      Location
                      Blue Mountains
                      Date and time
                      December 16, 2011, 8:46AM

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