Why … ?

Andrew L. Urban.

In a criminal legal system that relies for legitimacy on uniformity of application and consistency of outcomes, apparent anomalies stand out. 

A jury in a criminal trial must deliver unanimous 12:0 verdicts, while in some jurisdictions, 11:1 verdicts are accepted. Yet the five judges hearing the High Court appeal of Derek Bromley, for example, split 3:2 against granting the appeal and the appeal was thus lost. Likewise, in the infamous Lindy Chamberlain case, the High Court appeal against her conviction resulted in another 3:2 decision to dismiss. The three Tasmanian Court of Appeal judges hearing the matter of Sue Neill-Fraser, split 2:1 to dismiss her appeal. In other words, the dissenting judge found that the jury verdict of guilty was wrong. Had he been trial judge, perhaps the verdict would have been different. How is that fair?

In the case of Cardinal Pell, the appeal court split 2:1 to dismiss the appeal. The dissenting opinion was ultimately echoed by the High Court ruling 7:0 in Pell’s favour, overwhelmingly overturning the appeal court’s two judges’ decision.

Those are just a few of many examples, where a majority decision by judges is enough to prevail – unless/until overturned in a higher court. To a lay person not blessed with the sacred knowledge of the law, this state of affairs seems like a serious anomaly.

It could be argued that in results such as these split decisions, the accused should be as entitled to the same outcome as with a hung jury: the presumption of innocence and allowed the appeal to succeed. A dismissing bench split 3:2, for example, is the equivalent of a jury splitting roughly 7:4. Such a split is not accepted and constitutes a hung jury. The accused is then still considered not guilty and eligible for a retrial.

But at least the judges’ decisions and reasoning is set out in full for scrutiny – unlike verdicts by a jury. Judges MUST explain, juries MUST NOT explain … This is “an out-dated, irrational quirk in our system of justice,” as lawyer Dr Mirko Bagaric writes (in a March 2008 news.com.au article). “The most important decision is guilt or innocence in relation to a serious crime. Paradoxically it is the only decision that we are not entitled to have explained to us.”

He goes on: “This silence flies in the face of trends in all other areas of law and government where there is a growing need for decision-makers to give reasons for decisions.”

Strangely enough, as he points out, “The underlying reason for this anomaly relates to distrust of jurors, who are assumed to be lacking in the higher intelligence and knowledge of human behaviour in which lawyers are seemingly over-endowed. This contention appears to be flawed.”

Flawed indeed. Counter-intuitive, in fact. If jurors are ‘lacking in higher intelligence’ all the more reason to hear how they came to their verdict. [This would have been fascinating, for instance, at the third trial of Robert Xie. According to one of the jurors, “The level of ignorance of some jurors was astounding…. prejudice and worse. There was a level of antipathy that was palpable and by the end of proceedings the atmosphere was toxic.” That jury was hung at 8:4 in favour of the accused; the jury at the fourth trial found Xie guilty.]

As Bagaric argues with perfect common sense: “Jury reasons might show the reasoning of juries is often wrong and hence provide fertile grounds for appeal. It may become apparent that juries often act irrationality and contrary to the law.” (As in Pell, where the High Court stated that “a jury acting rationally should have entertained reasonable doubt about the guilt of the accused.”)

“They may in fact pay too much weight to their hunches or base their decisions on irrelevant considerations, such as sympathy or dislike of accused people. [As one lawyer reports, “A woman juror blurted out “Well I don’t like her shoes. Who wears bang me pumps to court! So I vote guilty!”]

“Worse still though, is not knowing how they reach their decisions.

“There is too much at stake to continue to allow juries’ deliberations to continue to be lost in the black box of the jury room.

“If juries make sound decisions, accused people will derive some degree of comfort.

“If their decision-making is flawed, however, then we can fix it at the appeal stage or by abolishing juries altogether.” As has been done elsewhere …

The jury system was abolished in Germany in 1924, Singapore and South Africa in 1969, and India in 1973. Today, in some countries where the jury system still exists, it is used only sparingly or as part of a “mixed court” that includes both laypersons and judges, such as the French system, where judges, together with a small panel of jurors, decide upon the facts in a case.

The concept of the jury trial is often credited to King Henry II, who convened groups of 12 “free and lawful” men to decide disputes over land. The expansion of the British Empire spread the jury system throughout the globe with the reach of the setting sun.

Abolishing juries would not automatically deliver better, fairer outcomes, and there are valid arguments in favour of juries, not least by former prosecutor now defence barrister, Margaret Cunneen SC. She believes juries represent a cross section of people whose various biases and preferences are balanced out by each other. But the process can be refined …

In jury trials, the court should require reasons for the verdict – not a legalistic treatise but some indication of the key evidence that supports the decision.

And if the legal system pays heed to the old 18th century Blackstone formulation that it is better that 10 guilty go free than one innocent suffer, one possible cure would be to treat split decisions of a bench in favour of the accused. That seems only fair, since it demonstrates doubt about the guilt of the accused.

These are reforms the legal profession alone can – and should – bring about.

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11 Responses to Why … ?

  1. Damian says:

    No reasonable minded person could convict Sue Neill-Fraser ! Three normal requirements in a murder conviction being 1. A body 2. Motive 3. Sound evidence Eg a witness. All three were missing. Yet there was DNA evidence of another party on that boat, it was quickly washed overboard by police and the court. Justice hrumph !
    Margaret Cuneen, hasn’t there been some comment in legal circles and or media about those with whom she associates (undesirables) along with a daughter or son a motor vehicle accident and a tow truck driver with advice being given as to how to avoid a breath analysis when police arrive ?

    Andrew “justice” or is it vindication of ones actions is only available to those with unlimited funds to attend the High Court or those with friends in high places. The adversary system we currently have relies on police and courts getting convictions to
    justify their performance.

    • andrew says:

      I agree with your comments, Damian, except your uninformed smearing of Margaret Cunneen SC. I co-authored her memoir, The Boxing Butterfly, which includes the details about the accident you do not seem to have come across. Here is an extract from the book dealing with that incident:

      In fact, Cunneen was not speaking to Tilley in that ‘smoking gun’ phone call; she was speaking tongue-in-cheek to the smash repairer who she knew socially from the pub, on the tow truck operator’s phone, some time after the crash as the wreck was about to be towed to the smash repairer. The tow truck operator’s phone calls were coincidentally being covertly recorded by the Crime Commission in relation to other matters, totally unrelated to the job at hand.
      ICAC didn’t interview anyone at the scene of the crash. ICAC didn’t seek any information about Sophia’s blood alcohol level. ICAC wasn’t interested Sophia’s blood alcohol level, only in Cunneen’s professional blood.
      Cunneen immediately took ICAC to the Supreme Court which ruled it a knock out in her favour. Gluttons for punishment, Megan Latham’s ICAC wasted no time in appealing to the High Court. And in May 2015, when the High Court found ICAC had been exceeding its jurisdiction for decades, it was an even more resounding defeat for ICAC.

      Cunneen’s victory in the High Court left ICAC seriously weakened in the eyes of the public. It was further damaged at year’s end after Inspector Levine’s investigation into Operation HALE, which delivered a scathing indictment of an operation that should never have been contemplated.

      PS You can buy the book here:

  2. Jerry says:

    “These are reforms the legal profession alone can bring about.” That’s totally incorrect ! The laws of the land are made by the parliaments of the land . Finally, if it is of sufficient importance (and they got the guts) the Feds can override most state stupidity. Australia has signed international legal rights obligations . Using these obligations and going to the relevant UN body if necessary, the Feds could have released Derek Bromley many years ago. The very idea that a prisoner has to lie to get parole ? The judges wish to reduce Derek Bromley to their level of morality. Who is the bloody cave dweller? It has taken a very long time , but the word around some circles is that there may have been some international shaming of Australia coming up,and its shocking shameful treatments of a poor bugger me Aborigines. No joke.

    • Owen Allen says:

      The corruption is entrenched and mutual between States and Canberra. Australia has been in front of UN Courts but its all kept quiet.

  3. Jerry says:

    Germany abolished the jury system in 1924 . At the 1942 Wannsee conference, German respected law making leaders, most (8).with law PhDs,decided to murder 11 million Jews. From much recent reading of WCR, I can’t see that our paragons of wisdom and virtue
    (prosecutors/judges),even of the higher courts) are any more or less halfwitted than the average jury member in the deliverance of justice. A clique of pompous, conniving refuseniks. The stacking of juries has been well described by other contributing cave dwellers. Would suggest those interested should read of the stacking of the courts with politically / religiously desirable judges.Often these appointments done by other lawyer judge geniuses and politicians.(depends in which country’s system) Derek Bromley WASN’T kept in prison for 40 years by a jury .Lindy Chamberlain WASN’T kept in prison by a jury. Sue Neil-Fraser WASN’T kept in prison by a jury.The juries that decided the guilty verdicts on these victims were systematically fooled,tricked, straight out lied to by the police, dpp, judge gang of the scurrilous power drunk.mongrel morons. In the case of Derek Bromley, what the jury was presented with,were informed,the much respected Manock
    (flexible forensics) and a mentally ill witness. Both nut cases. ? Take a read , as to the dingoe vomit Lindy Chamberlain’s jury was presented with by the dpp with the judge watching on like some kind of retard.Read of the confessions presented to the unsuspecting juries that had Ray Bailey murdered by the State and Daryl Beamish sentenced to death. This travesty is not the work of juries . It’s the magnificent total achievement and guilt of the second rate humans in our police forces / prosecution/forensics and judge mongrels. The obvious problems with the jury system could be mostly remedied. Except our legal system of so called leaders would fight like hell to block any reforms. The finally selected jurors should be required to stand up in front of the accused and swear they haven’t been on a jury before . One year jail for lying . To qualify for potential jury service, the person must pass a few basic tests.reading and writing. Must be capable of publically explaining their decision to the poor bastard they just sentence to 40 years (or death. Wait on. That wasn’t a jury that locked up Derek Bromley for 40 years . That was Manock and the police,dpp, judge mates. Let’s write a book. Thr South Australian Government murder of poor Ray Bailey, and refusal to appologise. Going to be a very big book ! Stop bagging juries .FIX IT. Many a judge, right through history,has been a horrible little bastard .

  4. Owen Allen says:

    I know nuffin. I am a pleb, but I have experienced a lot; and I should be grateful.
    My experience, through personal research to learn more than nuffin, I did find out wonderful Mother England, (and I am a Monachist ) in their wisdom sent to Port Arthur Prison, the very first (mutineers) Unionists, which included a Methodist Preacher, a Christian, standing up for farm workers whom wages were being cut by the land owners. That is the bottom line of Government low life scum.
    Fast forward to 1991, I lost my career pilots job in Tasmania, and got a part time job picking grapes in a vineyard. At the time Vineyard Hands in Tasmania were paid the award agricultural workers pay, quite a bit less than the award Vineyard Workers pay in other states. Tasmania hangs on to all the inhumane skullduggery of Mother England of Old, hence modern injustice.
    I think the establishment of a Criminal Case Review Commission in Australia is an immediate priority, not to be discussed for twenty years but implemented asap. Owen

  5. Pv says:

    Hi Andrew , you remarked about Judge Adam’s comment saying my accusers’s evidence was implausible and inconsistent in the CCA appeal then upheld the conviction. You may not remember , I got all the way to the high court and was refused leave to appeal by them 3 to 2. A hung High court or for that matter any appeal court proceeding should be treated as a hung jury ! Someone has to get serious about innocent people going to prison in spite of implausible and inconsistent evidence ,,or in other words reasonable doubt. Regards pv. PS and yes it cost me my home of 27 years and but for the love and ability of our twins to help I would also be bankrupt. This injustice cost us house , superannuation, business income and credibility plus our good name .

    • andrew says:

      Yes. The legal fraternity must be urged to undertake the necessary reforms to provide greater safeguards against wrongful convictions – and self-protective appeal processes. Your case is a shocking example of the damage inflicted without those reforms.

  6. Dee Harris says:

    Do Lawyers/DPP run cases significantly differently when presenting “narrative of the accused” that they wish to portray when it is a jury vs Judge only trial. Do juries understand the vagaries of co_incidence and tendency trials being used ? Ms Cunneen would be very interesting to hear from in this regard. Given that she has filled both shoes, she would be ideal to offer some insights from her perspective.

    Great explanation Andrew above. It makes more sense now why some cases event achieved a fair decision upon appeal. What happens to those who have sold houses and been bankrupted in the process.?

    The Law should not be allowed to be used to keep justice out of reach of the vulnerable.

    • Ross Cameron says:

      Regarding Margaret Cunneen, she is part of a panel discussing this very topic later in the year, June I recall, in Sydney.
      The selection of the Jury in Australia also discounts certain people based on occupation and other “factors”. Maybe this fact also requires further debate on the subject on how the composition of Juries is determined.
      I also personally disclose to being a fan of “Bull”, the television character who appears able to pick off “unsuitable” Jury members for his clients who he defends. There is obviously a lot of bull in Bull but even though the show’s creativity licence would outweigh its factual being, it may have some parallels here in Oz. We do import the good and bad from the US!

  7. Williambtm says:

    Thank you, Andrew, I believe your commentary spells out its merit.
    I “know” that in Tasmania there is only 1 Supreme Court Judge that delivers his decision
    beyond any further about toward that handed down decision.
    As for the rest of this State’s Supreme Court judges, they are little other than a claque of pompous conniving and conspiring no-good-niks.
    This same goes for the State director of Tasmania’s public prosecutions, who performs in the same refractory manner as his predecessor.

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