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’.