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The jury's out - and could stay out, judging from trends

"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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44 comments

  • The fundamental problem with the jury system is that the very people who should be on juries are the ones who avoid it at all costs. People who are worldly, educated and in reality are "the man on the Clapham omnibus" but those very people are not represented in any great proportion on juries. The basic reason is that these people are at work or otherwise busy in their daily lives, and cannot afford the time out required to serve on longer and complex trails. A juror's daily stipend cannot adequately cover both out of pockets expenses, lost income and opportunity costs, such as costs incurred because a person cannot be present to do things such, for example child care. Finally jurors are not given any consideration for the disruption in their lives, I personally found dealing with NSW state departments infuriating in their inflexibility despite my explanation I'd been 5 months on a trial and some stuff had been overlooked by the due date.

    I could, and nearly did, write a book about the crap jurors have to put up with, however suffice to say that while, by necessity, court staff fill long term jury panels with people manifestly unsuited to it, we will have problems with the system as it stands. Yes it is broken, and yes, probably beyond repair, at least in NSW.

    Commenter
    Wabster
    Location
    Hurstville NSW
    Date and time
    August 03, 2012, 8:42AM
    • The Lindy Chamberlain trials convinced me that the jury system simply doesn't work.
      If the State wants to "get" you, it has the power and the resources to succeed. Only a panel of judges can see through the artifices of the legal system.

      Commenter
      cruiseabout
      Location
      Broadbeach
      Date and time
      August 03, 2012, 9:05AM
    • Absolutely.

      The reputation of Jury work means it's a self-selecting system. The people who end up serving on a Jury are the people who weren't able to get out of serving on a Jury.

      Commenter
      DM
      Date and time
      August 03, 2012, 9:19AM
    • Agreed...the intelligence and wordliness of much of the Australian populace leaves a lot to be desired and it is scary that these are on a jury

      Commenter
      Lady
      Location
      Melbourne
      Date and time
      August 03, 2012, 10:42AM
    • cruiseabout from Broadbeach
      A panel of judges works if you have decent judges like Michael Kirby.
      Otherwise, the State will either bribe them or "convince" them using different means. I'd go for jury any day.

      Commenter
      Alex
      Location
      Sydney
      Date and time
      August 03, 2012, 11:09AM
    • I think that statement "5 months on a trial" gets to the heart of the real problem with the legal system. Strict limits need to be imposed on the length of trials. The favourite defence tactic these days is to so overwhelm the jury with conflicting information that they cannot make a clear determination.

      Commenter
      Jollyjumbuck
      Date and time
      August 03, 2012, 1:18PM
    • indeed, you cant trust anyone who isnt smart enough to be able to get out of jury duty.

      Commenter
      blue
      Date and time
      August 03, 2012, 1:19PM
    • indeed, you cant trust anyone who isnt smart enough to be able to get out of jury duty.

      Commenter
      blue

      Location
      Date and time
      August 03, 2012, 1:19PM

      That is just a plain stupid comment. It may come as an enormous shock to you blue but there a lot of people who have a sense of social obligation and civic duty and actually don't mind being called up if they feel they have the time and resources to be without an income for a while.

      It just comes as a shock how long you might be required to stay on that jury, how you are treated by everyone in the system (and idiots who scorn those who do it without complaint or evasion) and the composition of the jury you serve on.

      I for one believe I have done my civic duty and will not again be empanelled without some attempts to get out of it on that basis.

      Commenter
      Wabster
      Location
      Hurstville NSW
      Date and time
      August 03, 2012, 1:47PM
    • Agreed. I was called up recently and asked if I had issues that the case could run from 12-15 weeks.

      Who these days can afford to take three months out of their lives to sit on a case? When jobs often last less than 2 years, three months is a massive amount of time. In my case, my company has a team of 4 across the entire Asia-Pacific region with the experience to do what I do. Taking one person out for three months just means I'd need to work at night, probably hand-in-hand with somebody in the US or Europe who had been roped in as a partial-back fill. When normal working weeks already run 50 hours plus, who can pick up the slack? Yes, if I was hit by a truck, the company would need to cope, but they could also go out to market, bring somebody in, and invest the six months of training required to bring somebody up to speed.

      Yes, it is a civic duty, but it's a duty that's secondary to keeping the job that feeds the family.

      Commenter
      Matt
      Location
      Sydney
      Date and time
      August 03, 2012, 1:58PM
    • @Wabster 1:47pm - Oh, get off your high horse. To me and I suspect a lot of others, the jury system is fine in theory but don't put me on one. If you're so keen on 'civic duty' you can have it. I'll go to some lengths to get out of it, for mine. I hope I'm never tried by a jury that you're on, though.

      Commenter
      McDuff
      Date and time
      August 03, 2012, 4:18PM

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