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Barry Lane
31 October, 2005  
Juries, judges and mistakes

Robbie Richter says “juries do not make mistakes, judges do”. Which is all very well in the criminal world but, as Barry Lane reminds us, in the civil sphere the proposition is far from clear cut


“Juries do not make mistakes. Judges do.” So declared Robert Richter QC with a touch of hyperbole when reviewing Secrets of the Jury Room by Malcolm Knox in The Age and The Sydney Morning Herald.

Although he probably didn’t intend to, Richter raised an important question for the administration of justice, particularly in the context of civil litigation where it is common practice for the parties to obtain a verdict from a jury by asking it questions in the expectation of getting the “right” answers.

Civil is different from crime in this regard because in the latter all hell would break loose if there was any substantial departure from the binary approach – guilty or not guilty.

Perhaps that’s just as well otherwise Richter would actually be asking an appeal court to set aside a jury verdict, rather than have the verdict set aside by blaming the trial judge for “misdirecting” the jury when it returns a “wrong” verdict (such is the sophist way the system operates).

As we know, a “wrong” verdict is one in which an accused is convicted.

Fortunately for Richter, and the ever-suffering taxpayer, his client Dominic “Mick” Gatto (sometimes described as an industrial consultant) no resort to erroneous directions by the trial judge was necessary after Mick’s recent trial because the jury returned the “right” verdict.

imageAfter being acquitted on a charge of murdering underworld hit man Andrew “Benji” Veniamin, Gatto (seen here) is reported to have said, as he left the Supreme Court to the acclamation of waiting family and friends, “Thank God for the jury system”.

In civil cases, questions for the jury are usually drafted by the parties and submitted to the trial judge for approval before they are put to the jury.

In most negligence cases, the questions are pretty prosaic and have been used time and time again. Was the defendant negligent? If so, in what figure do you assess damages? Was there any contributory negligence on the part of the plaintiff? And if so, how much?

All pretty straightforward, you might think.

However, when one departs from the run of the mill negligence case risk is elevated but without any countervailing reward, for the judge that is.

imageTake the case of the recent libel action by footballer Harry Kewell (pic) against the Sunday Telegraph over some beastly things written about him supposedly by Gary Lineker.

Mr Justice Eady presided at the trial and he’s no slouch when it comes to defamation cases, yet he approved a set of six rather impenetrable questions going to the jury. See summary in UK Press Gazette.

The jury didn’t get past the first question, let alone progress to the sixth.

In De Reus v Gray the Victorian Court of Appeal was presented with a case where the trial involved multiple defendants (three police officers and the State of Victoria) and multiple causes of action pleaded in the alternative (negligence, trespass and misfeasance in public office) with a statutory conditional liability transfer thrown in for good measure.

Adding further complication to an already complicated case, the plaintiff had sought exemplary as well as compensatory damages.

The trial judge suggested to counsel that he would like the jury’s verdict to be delivered by answers to questions. Counsel at the trial had a couple of goes at the questions without coming to any real agreement. The trial judge stepped-up to the plate and offered to redraft the questions.

The plaintiff’s counsel was effusive in his praise for the judge’s handiwork, describing the redrafted questions as “masterpieces in precision and accuracy and simplicity”. The defendants’ counsel was not so sure and the questions went to the jury under cover of his objection.

Although it seems that the jury answered all 10 questions, the result was a bugger’s muddle with double counting from the alternative claims and confusion over the mix of compensatory and exemplary damages.

Fortunately for the plaintiff, the defendants did not contest the jury’s verdicts on liability and the Court of Appeal was able to sort out the money side of it.

Maybe Robbie Richter is right after all – civil judges included.