Andrew L. Urban
In a Sydney murder trial, Juror John was so disturbed by what he saw as the Crown’s unethical behaviour, unrestrained by the judge, he barely could restrain himself from jumping out of his seat and shouting his objections to the prosecutor and the judge. He was recalling this a few years after the trial. He is still outraged. Juror John (not his real name) spent many weeks in the jury room for that trial. He was pretty disgusted by the ignorance and or carelessness of some of his fellow jurors, too. And in the end, the jury could not agree on a verdict.
GIGO – the famous observation about computer science, Garbage In Garbage Out – is just as true of criminal trials. Whether it is a judge alone or a trial by jury that is the finder of facts, those facts are provided by the Crown in delivering its case. That’s the INput. The verdict is the OUTput. The INput is also subject to the rules – the law.
What if the law is flawed? What if the Crown misleads?
Wrongful convictions can result, no matter who is the finder of facts. This sombre observation comes from this morning’s The Australian, with Chris Merritt’s excellent, thoughtful response to the British Justice Secretary’s proposal to halve jury trials. By all means preserve jury trials as the gold standard, but begin by ensuring the INputs are true to the rule of law.
I’ll start with law – a flawed law – relevant in the two most recent cases that I’ve explored at book length. Both were men convicted of historical sexual abuse of minors decades earlier. It is the skewed law itself that produced injustice. One of the two cases was tried by a judge alone; the other by a jury.
Since the 1980s, all Australian jurisdictions have abolished the mandatory requirement for corroboration of claims in sexual crime prosecutions. This means no jurisdiction requires independent evidence to support a complainant’s testimony for a conviction. Notwithstanding the natural sympathies with victims of such crimes, how does the absence of the standard protections of the law serve the principles of justice?
Merritt reports that in Britain, “former judge Brian Leveson persuaded David Lammy, Britain’s Justice Secretary, it was a good idea to wind back the use of juries in criminal justice – a proposal which has triggered a wave of outrage across Britain and all the way to our shores.
“Former Law Council president Arthur Moses, SC, described the British plan as misguided because jury trials promote public confidence in the administration of justice.
“This view is shared by prominent silk Margaret Cunneen, SC, president of the Rule of Law Education Centre, who has produced a video for schools explaining the benefits of trial by jury.
“It allows those 12 disparate people drawn from our community to really give a decision about what our society wants, what sort of behaviour our society will tolerate in terms of criminal or alleged criminal behaviour,” Cunneen says.
“We have to defend juries forever because no judge, no panel of judges, can ever bring the (depth of) justice that a jury can bring to any case. “I thought that as a prosecutor and I believe it as a defence counsel,” Cunneen says in that video.
That doesn’t mean juries don’t sometimes get it wrong, as history has shown. But Cunneen’s point is valid.
As for the Crown, supposedly a model litigant, the very reason wrongfulconvictionsreport.org came into existence and continues to report is the sometimes subtle, sometimes overt malpractice of some Crown prosecutors. Regular readers will know full well how prosecutors too often chase verdicts instead of the truth. It’s no good relying on juries to be finders of fact if they are presented not with the facts but the Crown’s ‘facts’.
Andrew, this is a tad long (as have been some of my other contributions) but it is, I submit a bare minimum contribution / argument on this topic.
Justice, Truth, and the GIGO Principle: An Essay on Reforming Australia’s Criminal Justice System
The Australian criminal justice system is often described as one of the most robust in the world—an institution that upholds the rule of law, protects the innocent, and punishes the guilty.
Yet the presence of wrongful convictions, flawed investigations, and prosecutorial overreach demonstrates that the system, while strong in principle, is undeniably fragile in practice. As Andrew L. Urban’s “Juries and the GIGO principle” reminds us, criminal trials operate much like computer systems: if garbage goes in, garbage comes out. Whether the finder of fact is a judge or a jury, their decision is only as reliable as the information presented and the structural safeguards in place.
This essay expands on eight key reform proposals aimed at reinforcing integrity, fairness, and transparency in criminal proceedings. These proposals are not offered as radical departures from existing practice but as reasoned, overdue enhancements to protect the innocent and strengthen public confidence. Before addressing each point, it is important to acknowledge the three contributors whose commentary enriches the discussion and helps shape the contours of the debate.
Engaging with the Contributors
Rachael M.
Rachael M. argues succinctly that the Crown’s effectiveness is only as good as the investigation that feeds it, and that police misconduct can amplify prosecutorial confirmation bias, leaving the jury to sift through distorted facts. I agree wholeheartedly. This precisely embodies the GIGO principle: biased or incomplete investigations produce distorted briefs, leading prosecutors astray and burdening juries with compromised material. Her observation reinforces several reform points, particularly regarding evidence handling and oversight.
Tony Brownlee asserts that jury trials must still be held in Commonwealth matters. He is absolutely correct under the Australian Constitution. Section 80 requires that indictable Commonwealth offences be tried by jury. However, Tony’s comment intersects awkwardly with the reform proposal advocating a universal right to judge-only trials. To that extent, I respectfully disagree with any interpretation of his comment that suggests jury trials must always remain mandatory even when the accused seeks an alternative. While the Constitution requires jury trials for Commonwealth indictable matters, the broader principle still stands: the accused should have maximal agency in choosing their trial format. When both principles collide, the contradiction must be acknowledged, but the reform still holds merit for State matters and for future constitutional reconsideration.
Garry Stannus challenges Margaret Cunneen SC’s statement that juries decide “what our society wants”, arguing instead that a jury’s role is to determine whether an accused committed an illegal act, not to regulate societal boundaries. I agree with Garry.
Juries are fact-finders, not social barometers. When juries start to impose morality or sentiment rather than strictly applying fact to law, the risk of wrongful convictions rises dramatically. His contribution reinforces the need for better jury preparation, better evidence handling, and the need to ensure that jurors act within the legal framework rather than outside it.
1. Reducing Prosecutorial Qualified Immunity
Prosecutors wield immense power, arguably more than any other actor in the justice system. They decide who to charge, what to charge them with, how evidence will be presented, and what version of events will be emphasised. When this power is exercised ethically, justice is served. But when prosecutors pursue conviction at any cost, accountability becomes elusive.
Current qualified immunity doctrines protect prosecutors from consequences unless their misconduct is proven to be intentional, malicious, and outside the scope of their duties, a near-impossible threshold. This framework tolerates tunnel vision, suppression of exculpatory evidence, and undue pressure on witnesses.
The Juror John anecdote presented by Andrew Urban, of a juror who felt physically sick witnessing prosecutorial misconduct illustrates that these issues are not theoretical.
Reducing prosecutorial immunity does not threaten legitimate prosecution it merely ensures that the immense power of the Crown is matched by commensurate responsibility.
A system that can imprison an innocent person must have mechanisms to discipline those whose actions contribute materially to that injustice.
2. Mandatory Critical Thinking Assessments for Jurors
The romantic idea of the jury, a group of ordinary people exercising democratic justice, is historically meaningful. But in complex trials, especially those involving forensic evidence, behavioural analysis, or circumstantial inference, jurors often operate far beyond their cognitive training.
Urban’s account of Juror John disgusted by the “ignorance and carelessness” of fellow jurors is not surprising to anyone who has observed a jury room. Group dynamics, dominant personalities, and intellectual disparities frequently determine verdicts more than evidence does.
A minimal critical thinking test is not elitist. It is responsible.
We test students before university.
We test drivers before licensing.
We test professionals before certification.
Yet we entrust life-and-death decisions to individuals who may lack basic skills in reasoning, comprehension, or resisting coercive persuasion.
A juror should not need a PhD. But they must be capable of analysing evidence without being overpowered by a loud personality or a charismatic “leader” juror. A justice system cannot rely on chance composition.
3. Direct Evidence Handover to the ODPP
Traditionally, police construct the brief of evidence and deliver it to the prosecution. While efficient, this process embeds police bias, confirmation bias, tunnel vision, or simply professional pride into the very core of the case. Handing all evidence directly to the ODPP, without police filtering, does several things:
1. It ensures prosecutors see everything, not merely what police deem “relevant.”
2. It mitigates the risk of police discarding or minimising exculpatory evidence.
3. It creates independent oversight over investigations before charges are laid.
4. It improves early decision-making, reducing weak or biased prosecutions that should never reach a courtroom.
This reform directly answers Rachael M.’s concern: the Crown cannot correct flawed inputs if it never receives the full dataset.
4. A Universal Right to a Judge-Only Trial
This proposal is straightforward: an accused person should have the unrestricted right to request a judge-only trial, no tests, no criteria, no judicial discretion.
This right is not about diminishing jury trials. Rather, it offers protection where:
• extensive media coverage has poisoned public perception
• scientific or technical issues exceed ordinary comprehension
• community biases (racial, cultural, social) cannot be reliably neutralised
Historically, wrongful convictions occur both in jury trials and judge-only trials. But giving the accused flexibility enhances fairness.
The contradiction with Tony Brownlee’s reminder of the constitutional requirement for Commonwealth jury trials is acknowledged. Yet the reform remains essential for State-level matters and highlights the need for future constitutional debate. A justice system must evolve to account for modern complexities, something the framers of the Constitution could not have foreseen.
5. Mandatory Media Blackouts Before and During Trials
Presumption of innocence dies the moment an arrest hits the evening news.
In cases like the “mushroom killer,” media frenzy generates profit-driven narratives that shape the public’s imagination long before evidence reaches a courtroom. Stories become entertainment; suspects become characters; and trials become theatre.
A media blackout:
• protects the integrity of jury selection
• prevents trial-by-media
• shields victims, families, and the accused from harassment
• ensures trials are decided inside the courtroom, not on talk shows
Furthermore, once an appeal is lodged, the blackout must resume. Appeals are not public spectacles, they are legal processes determining whether justice was done.
This reform conflicts with the later proposal to televise trials, but the contradiction is not fatal. Media blackouts concern pre-trial and active trial reporting, not carefully structured, wholly transparent courtroom broadcasts. Both reforms can coexist when designed properly, as explained below.
6. Televising All District Court Trials and Above
At first glance, televising trials appears contradictory to media blackouts. But the distinction is fundamental:
A blackout prevents distortion. Televising prevents monopoly.
Blackouts stop uncontrolled, sensationalised reporting.
Televising provides complete, unfiltered transparency.
When the public sees:
• exactly what the judge sees
• exactly what the jury sees (or, in judge-only trials, what the judge evaluates)
• exactly how evidence unfolds
• exactly how prosecutors and defence counsel conduct themselves
the opportunity for media manipulation shrinks.
This does not undermine privacy, witness protections, name suppression, and camera restrictions can be applied case-by-case.
But public confidence increases when proceedings occur openly and honestly, not behind closed doors with journalists shaping narratives to fit commercial incentives.
7. Mandatory Court Attendance for Law and Media Students
Law students learn doctrine but often lack real-world understanding of courtroom mechanics. Media students learn storytelling but rarely witness the solemnity, complexity, and pressure of legal proceedings.
Mandating their attendance:
• produces better lawyers who appreciate the stakes of their work
• produces better journalists who understand nuance and resist sensationalism
• strengthens the next generation’s respect for due process
• demystifies the courtroom, making legal culture more grounded and accountable
The public benefits enormously from journalists who understand the difference between reporting and influencing.
8. Humane Transit and Holding Facilities for the Accused
Justice does not begin at the courtroom door, nor end at the prison gate. Accused persons—still presumed innocent—are often transported under degrading conditions and left without access to clean clothing, legal consultation, or proper rest.
Creating dedicated holding facilities adjacent to courthouses resolves this:
• a shower, clean clothes, and basic hygiene preserve dignity
• private access to legal counsel enhances fairness
• neutral court-affiliated officers remove the intimidation of police or prison personnel
• better physical and mental preparedness ensures the accused can meaningfully participate in their defence
This reform is both humane and practical. The fairness of a trial depends not only on evidence but on the capacity of the accused to engage with it.
Conclusion: Strengthening the System by Improving the Inputs
The reforms outlined above, each expanded, integrated, and examined through the lens of the GIGO principle, aim to fortify the justice system at its most vulnerable points.
From reducing prosecutorial immunity to modernising jury selection, from protecting trials from media contamination to ensuring transparency through televised proceedings, these proposals share a single goal: to produce a system where truth, not bias, not pressure, not institutional inertia, determines outcomes.
Justice must not only be done; it must be seen to be done.
But above all, it must be done correctly, which requires better processes, better oversight, and a commitment to reform that recognises both strengths and failures within the current system.
Until we fix the inputs, we cannot reliably fix the outputs.
‘fraid I have to disagree with Cunneen’s:
The job of the jury is to decide whether an accused has committed an illegal act.
It is not a jury’s job to decide what our society wants, or what sort of behaviour our society will tolerate.
Cunneen’s support for “a further inquiry into all the evidence” [relating to the Neill-Fraser conviction] is remembered and acknowledged. [Murder by the Prosecution /Andrew Urban 2018, Foreword: vi]
However, Cunneen’s ‘jury’ statement [quoted above] should – on the face of it – be rejected. In my opinion, it is for society through legislative process by elected representatives, to determine what behaviours are to be tolerated or not.
Garry,
I think you’re right in a strictly legal sense, but I don’t think that actually undermines what Cunneen was getting at.
Of course, as you say, “the job of the jury is to decide whether an accused has committed an illegal act” and Parliament decides which behaviours are and aren’t tolerated, via legislation. On that narrow definition of function, you’re absolutely correct: juries don’t make the criminal code, and they don’t set penalties.
Where I read Cunneen differently is at the level of justification, not mechanism. Once Parliament has defined an offence and judges have directed on the law, the jury still has to decide things like:
Was the force “reasonable”?
Was the belief “honest and reasonable”?
Has guilt been proved “beyond reasonable doubt”?
All of those standards are intentionally vague, because they’re meant to be grounded in community values. In that sense, the jury does operationalise “what our society will tolerate” within the framework set by legislation. They don’t write the rules, but they give the rules their human, social content in specific cases.
So I’d read Cunneen’s comment as shorthand for that: not that juries are mini-parliaments deciding criminal policy, but that they are the community’s voice in the application of those policies. On that reading, what you’re saying about Parliament and what she’s saying about juries are actually complementary, not mutually exclusive.
And ironically, your last point about SNF — the need for a further inquiry into all the evidence — actually reinforces her other underlying point: juries are important, but not infallible. We honour the jury system and we scrutinise particular verdicts (like Neill-Fraser’s) when serious questions arise about evidence, procedure, or fairness.
So I’d put it this way:
Parliament decides what society tolerates in law.
Juries decide whether, in this concrete case, under those laws, the state has legitimately proven that the accused crossed that line — using the community’s sense of reasonableness and doubt.
On that basis, I wouldn’t reject Cunneen’s statement outright, but I’d refine it along those lines.
Yes, and I found in Cunneen’s video some support for the interpretation of her stance which you have proposed. She uses the notion of an “indecent act” … e.g. “sexual touching” as it’s “up to the jury to decide whether that type of conduct amounts to sexual touching” [e.g. hand on a leg, or on the back or some type of kiss]
The volume of the video that I watched was quite low … virtually to the point of being inaudible on my laptop … so I apologise for any errors in my reporting of her words which may be present here.
But if I heard her correctly, then I would think, JK, that you have been more than a little charitable in trying to relate her remarks to the well-known legal reluctance to seek definition of concepts of ‘reason’, ‘reasonableness’ and ‘reasonably’.
However, I do appreciate what you have written and I’ll keep it in mind … for further thought. So too with Steven Fennell’s comment of a Justice system ‘strong in principle – fragile in practice’. His suggested remedies warrant consideration, in my opinion.
Jury trials must still be had in commonwealth trials.
The Crown is also as good as the information supplied by the investigation. Prosecution’s confirmation bias is boosted from police misconduct. The jury has to decide on all relevant facts