"To see [juries] shunted is an extraordinary indication of the delicacy of their condition."

"To see [juries] shunted is an extraordinary indication of the delicacy of their condition." Photo: Angela Wylie

Are we seeing the quiet, steady disintegration of the 800-year-old jury system? There are telltale signs that it may be going the way of the dodo, another victim of the creative-destructive forces beyond our control.

A few local examples are interesting pointers.

The Lloyd Rayney murder trial in Western Australia is being conducted without a jury. Justice Brian Martin, a judge imported from another jurisdiction, has the task of deciding alone the facts and the law.

It's a high-profile case. The accused is a former criminal prosecutor accused of murdering his glamorous wife, who was a Supreme Court registrar. It's a trial that has gripped media consumers beyond the boundaries of Perth.

What it shows is that those who determine how the system functions do not have sufficient faith in juries when it comes to a long trial of some complexity that might be difficult to protect from ''prejudice''.

It could be interpreted as insulting - that jurors who can keep their minds on the task and remain undistracted by whatever the rest of the world thinks cannot be mustered for the trial of a man for murder.

Juries for murder have been one of the bedrocks of the criminal justice system and to see them shunted is an extraordinary indication of the delicacy of their condition.

Steadily, jurors have been expunged from the civil trial process, but cling on in a strange one-foot-in, one-foot-out manner in defamation trials.

They can decide the basics, whether something is defamatory, but when it comes to the money, they are not to be trusted. They might award either too much or too little, so the damages decision goes back to the judge.

It is here that judges can recast the findings of juries in a way that better reflects the judicial perspective.

We can see this in a Sydney case decided last month in the Supreme Court called Holt v Channel Nine. A jury found found that four meanings pleaded by Andrew Holt, a Gold Coast carpenter, were not true, and they all related to the way he was said to have treated his wife, who was dying of cancer: that he abandoned his wife to die in hospital; he behaved disgracefully by refusing to allow his wife to return home from hospital; he treated his wife like a dying animal; and that he wanted his wife to die.

Channel Nine also succeeded with some meanings of its own drawn from the program: that Holt callously withheld insurance money from his dying wife and that he misused thousands of dollars paid to her as part of her insurance.

Justice Christine Adamson could not have been impressed with the jury's verdict and that was reflected in her awarding the plaintiff a miserable $4500.

She took into account a number of factors adverse to Holt, which she spelt out in her judgment - including an acceptance that he took $75,000 of his wife's money and used it in a ''morally despicable'' way.

Appeal courts quite systematically overturn jury findings and replace them with their own verdicts. This was done in another famous defamation case in which this newspaper was sued by restaurateurs who ran the Coco Roco establishment at King Street Wharf. The High Court affirmed that appeal judges can supplant a jury's interpretation of the meaning of words with their own version.

We've also seen some big murder verdicts overturned by the criminal appeal courts, with no order for the case to go back before another jury for retrial. Most recently this was a unanimous decision in the Gordon Wood case.

So you wonder, what is the point of the extravagant luxury of juries when their findings can be cast aside by judges? In the end, to whom would you prefer to trust your fate, a judge or a jury? There can be bad juries and some god-awful judges - so in some situations each can be a check on the other.

But what ultimately will bury the ancient system is digital technology. Already suppression orders, the sanctity of pending trials, the law of contempt, and internet take-down orders are all routinely ignored by thousands of citizens who have become instant publishers, courtesy of open media platforms.

This can be seen in the case of Kieran Loveridge, accused of the murder in Kings Cross of Thomas Kelly. The social media landscape blossomed with opinions about the accused and the police, all outside the boundary of the courts traditional cordon sanitaire.

The old model where everyone dutifully did what they were told by courts is finished. While the legacy media generally abide by the rules, on Twitter and Facebook people have other ideas and are able to generate large alternative waves of defiant opinion.

We saw recently in Britain privacy superinjunctions heroically squelched by twitterers. Orders here to take down potentially prejudicial online news stories that might affect a criminal trial are also widely ignored or are beyond jurisdiction.

Judges are left looking a little lame as they fossick about trying to prop up the remnants of an ancient system, which was an unimpeachable idea - a couple of hundred years ago.

justinian@lawpress.com.au

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