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Barry Lane
9 June, 2005  
Judges want the information age to STOP

Quaintly, judges hope that curiosity won’t get the better of internet savvy jurors. If trial by jury is to survive there has to be fresh thoughts about the way criminal justice is conducted

imageA report on May 20 in the American National Law Journal lamented about the growth in waywardness among jurors:

“Jury misconduct has created a legal migraine for many attorneys who say that jurors are increasingly ignoring judges’ orders and trying to investigate and solve crimes on their own.

This renegade behavior, they say, ranges from jurors independently investigating crime scenes to researching legal issues on the internet to lying on questionnaires just to get on a jury. And their curiosity is costing the courts time and money.

In recent months, a murder conviction in Virginia was overturned because a juror was caught buying newspapers at a 7-11, the Colorado Supreme Court threw out a death penalty because jurors were reading the Bible and a New York judge overturned a bribery conviction because a juror was caught reading a newspaper.

Lawyers blame this misbehavior on several factors, including the internet, Court TV and the slew of crime-related television shows.”

Similar “misconduct” has occurred in this country. Heaven forbid that 21st century jurors should behave in a 21st century way, notwithstanding that a judge and learned counsel have told them to do otherwise.

It occurs to me that the root of the problem lies in the aphorism about being kept in mushroom country. To the ardent forensic insider, however, there is no obvious contradiction in the inherently incongruous nature of a modern criminal trial conducted along adversarial lines.

In accordance with the rules of evidence, each side produces to the jury as much or as little it can in order to achieve the result it seeks.

The parties are aided by the presiding judge who tells the jury that a criminal trial is not a search for the truth, that they should rely only on the evidence presented to them, that they should not speculate about what is not before them and that they should use their “common sense”.

Such instructions might come as a bit of a surprise to most jurors reared on a steady diet of TV legal drama from an early age, particularly if they have got past year 12 at school and developed even a modicum of common sense.

Add to that the revolution in obtaining knowledge brought into the home by the information superhighway and a potent mix of principle and hypocrisy results. This becomes obvious when high profile cases, especially ones involving sex offences, come before the courts. Sex cases, like no others, produce enormous tension for the criminal justice system.

When a sex case involves multiple complainants, the first application usually made by an accused is for separate trials of each complainants allegations.

If, as is often the case, there is not much corroborating evidence to support a complainant’s allegations, whether of lack of consent or otherwise, the hope is that the defence will be able to create enough doubt in jurors’ minds to have them bring in a not guilty verdict.

Its obvious that if a number of complainants give evidence in the same trial then the likelihood of a conviction is considerably increased, particularly if the accused exercises his or her right not to give evidence. However, the benefit obtained by an accused from separate trials can be quickly dissipated as the quantity of information built-up on the public record after each trial or appeal becomes accessible via the internet.

Take the case of former Catholic priest, Michael Charles Glennon. He has had numerous trials some of which have resulted from successful appeals. If any juror does a Google or Austlii search on Glennon, a mountain of material would be disclosed. See for example, the Victorian Court of Appeal’s decision R v Glennon which contains a fairly comprehensive rsum of Glennon’s background.

In one of the NSW Lebanese rape cases, a suppression order applies to the name of a particular prisoner after the Court of Criminal Appeal ordered that he have a retrial.

The appeal judges thought his original trial miscarried because of media coverage of a back-to-back trial of other accused which revealed overlapping offences common to both trials.

The gory details are still available for potential jurors to see, on the NSW Attorney General’s web site, no less.

Despite beefing up the standard instructions to juries and making it an offence in NSW and Queensland for jurors to conduct their own research, it is delusional to think that internet savvy jurors won’t seek to satiate their curiosity with a few clicks of a mouse.

People are now becoming increasingly aware from various sources that the modern criminal trial is a highly artificial proceeding which seeks to corral the jury rather than provide relevant material upon which jurors can come to a fully informed conclusion.

How can an accused get a fair trial while ensuring that the justice system doesn’t look as though it’s suffering from terminal lack of common sense?

imageJustice Virginia Bell (seen here), from the Supreme Court of NSW, came up with a proposal which she floated at the judges’ knees-up earlier this year in Darwin. Her speech was entitled, “How to preserve the integrity of jury trials in a mass media age”.

Her “practical first step” was that the Crown in any pending case should:

”... carry out searches on the internet and, in the event that prejudicial material is identified, to request any Australian based website to remove it until the trial is completed.”

That disposes of Australian web sites, but leaves untouched the mountains of stuff on sites hosted on offshore servers. What should happen if an Australian site refuses this invitation from the prosecution – maybe hosted in NSW with material potentially prejudicing a trial in Victoria? The resistance to these “requests” might have to be tested in the courts and Gods knows what the High Court would make of it.

Then there’s the problem of duration. “Until the trial is completed” is as long as a piece of string, what with appeals and retrials.

Quite recently the prosecution in the trial of one of Victoria’s alleged “gangland” identities, Mick Gatto, sent this message to media organisations:

“The Supreme Court murder trial of Dominic Gatto has today (April 28, 2005) commenced in the Melbourne Supreme Court before Justice Cummins. The judge is concerned about the extensive material which the internet reveals about Mr Gatto, and has asked the prosecution to contact as many websites and news organizations as possible to request that all material in relation to Mr Gatto be removed from their websites for at least two months from now. Your cooperation is therefore requested by Justice Cummins.”

This is not a formal order of the court, but a request that news websites accommodate the delicacies of the criminal justice system out of the goodness of their hearts.

Just Google “Mick Gatto” now and you’ll see volumes of features, profiles and backgrounders about the accused still on numerous news sites – and “Fabulous” Phil Cummins’ two months embargo is not up yet. Just sample this one from The Bulletin.

Rather lamely the courts are asking to rest of the world to change in order to preserve the artiface of criminal proceedings.

One shudders to think of the chaos that can be caused to the system by accused citizens setting up their own blogs, well in advance of their trials, to spruik their cause, expose the folly of their accusers and generally unload on all and sundry. For instance, just see the blog spot of Andrew Landeryou.

There has to be some deep thinking about the nature of the adversarial criminal trial and the function of the jury – if trial by jury is going to survive.