The mistrial in the high-profile Bruce Lehrmann case highlights yet again a weakness in the jury system made worse by 21 st century technology.
The trial was aborted when it was found that a juror had done some internet searching and brought the results back into the jury room.
Nothing could be more prejudicial or unfair to a defendant (or, indeed, the prosecution) in a criminal trial than a juror going on a frolic of their own digging stuff up on the internet and distributing it among other jurors.
It was especially egregious in this case because the jury had been deliberating for nearly a week without a result. We can only speculate because the law has put the goings on in the jury room beyond public scrutiny, but it seems apparent that one or more jurors were holding out and needed some “convincing”.
That convincing should be done with reference only to the evidence given in court and arguments by the lawyers and instructions to the jury by the judge.
That evidence is presented according to the rules of evidence which have been developed to protect the accused against unfairness and prejudice. And as we all know the internet is laced with prejudice and unfairness.
Among other things, those rules require the evidence to be admissible, and a critical test for admissibility is relevance. Once evidence is admitted, the accused must be given the right to test it through cross-examination.
As a general rule evidence must be direct. If I say Smith told me he saw XYZ, that is not admissible evidence of the fact of XYZ. It is hearsay. You have to bring Smith to court to say he saw XYZ to have evidence of XYZ.
You cannot bring evidence of past convictions or past charges (with some very narrow exceptions).
Again, the internet is laced with hearsay and reports of prior convictions. I hasten to say there is no suggestion of prior convictions in the Lehrmann case. I am just illustrating the general point about the menace the internet poses to jury trials.
However, we do know that material from the internet was brought into the jury room. It obviously was not subject to challenge for either its admissibility or credibility. As the judge, Chief Justice Lucy McCallum, said, the danger of prejudice could not be overcome with warnings from the judge. You simply cannot unsee this stuff, at least not without significant legal training and experience.
Short of locking juries up away from internet access, it is difficult to stop jurors doing their own internet “research”. Warnings from the judge are obviously a help but they are not a guarantee.
However, there is a kind of self-policing. Lone-wolf internet searches remain just that and can only influence one juror who is probably already beyond reasonable persuasion anyway, until the lone-wolf communicates it to other jurors. And when that happens it is almost inevitable that one or more of the other jurors will tell the judge. By then, of course, the damage is done.
The judge can hold the juror in contempt and impose a jail term or fine, and probably should do so. This rogue juror has caused a lot of costly damage, not least to the complainant who will have to give her evidence again and to the accused who will have the case unresolved for longer than necessary.
This case adds to the argument that at the very least anonymised research should be allowed into the jury process so we can at least see whether it is working satisfactorily.
Even without that research, there is a good case for abolishing jury trials. The most damning thing about jury trials is that they do not have to give reasons. How can that be fair to any accused? Moreover, the mystical reverence for jury verdicts makes appeals against them extremely difficult.
Just because something has been around a long time does not make it correct. The earth is not flat.
Modern psychology tells us that the evolved human need and desire to belong results in group think and that a strong if flawed character can lead people to all sorts of irrational ideas and actions. Trump and January 6 is a good example.
Would you ever get a unanimous jury verdict if each juror heard and decided the case alone? I doubt it.
The rules of evidence are so strict in criminal cases to guard against unfairness and prejudice. The guard has to be there because most of the people plucked off the street to do jury duty are so susceptible to drawing prejudiced and unfair conclusions.
On the other hand, when criminal cases are heard by one or three judges, the possibility of prejudice is reduced and in any event is easily exposed because they have to give reasons. And in such trials, there are no mistrials because of exposure to prejudicial material and, obviously, there are no hung juries.
Crispin Hull
This article first appeared in The Canberra Times and other Australian media on 28 October 2022.
I believe every adult should do a number of jury duties, just to see the inner workings of the sausage factory that is our criminal law system.
I have done three. A murder. Death by reckless driving. Sexual assault.
The murder was a sad case, but there was one member of the jury who could not bring himself to pass a guilty verdict. It came out that his religious beliefs was holding him back and it took the other 11 angry men (yes all men because it was an alleged gay assault) a good two days and a lot of persistence to finally get to a guilty verdict. We all thought we owed it to that poor defenseless gay guy, but there were no winners here!
The death by reckless driving, did involve one jury member who did his “own research”. In my mind it was harmless, in that he just visited the site, but according to the rules, if you wanted to see the site – we all see the site with the judge and lawyers. But again, I think there was a fair bit of psychology going on with this juror, he definitely saw himself as being the smartest person in the room.
The sexual assault was a classic case of he said, she said. And while we all thought he probably did it – we all (sensibly) believed that we couldn’t convict on the evidence put forward in the trail. Sound familiar?
Juries and judges are all humans and they all suffer from the frailties of humans. There is no one perfect system. Sometimes when I listen to the judgement of judges, I would wish for a trial by my peers (judges often sound like they live on another planet). But other times when I hear the thinking and logic of my peers I would be scared about what they actual will conclude, especially with all the citizen investigation shows now on streaming services.
After the murder case, I thought that maybe we should have a rota of professional jurors who could go from case to case, but I can’t see that being funded. I am no lawyer, but my work did give me a familiarity with the law and the working of the law, so at least I have some understanding of what should or should apply. It was scary to observe the utterance of some of my fellow jurors and think of how much fate plays a role in possibly more jury cases than what we would like to believe, or know!
These arguments are based on two flawed assumptions. The rules of evidence are largely based on historical precedent and some rather suspicious assumptions about human behaviour (sometimes known as psychology) Some root and branch rewriting of the rules of evidence and the overall approach to determine the truth or guilt seems a much better place to start improvements than removing citizens from being involved in criminal trials.
Secondly, judges in Australia have a very poor track record of treating defendants with prejudice, perhaps related to the unrepresentative nature of the judiciary. (Based on who gets into law school, the bar and appointed by attorneys-general) There is plenty of statiscal evidence that CALD people get much harsher sentences in Australia, so why would you want the same judges deciding on people’s guilt?
The broader role and impact of the involvement of citizens in the criminal trial process also needs to be considered – encouraging confidence in the justice system and discouraging judges and lawyers from allowing it to become an impenetrable and technical ‘scientific’ determination.
Perhaps we are better off getting over our worship of the common law system and exploring alternatives, for example, mixed jury and judge trials, rather than preferring one set of prejudice people over another?
I think you have already mentioned your view on the jury system. Do you think what your recommend has any chance to be implemented one day?
For major crimes yes 1or 3 judges would seem the logical way to go, it has been happening already. We need more Judge John Deeds.
Of course it would have to be judges and not liberal party staffers as is the case in the Administrative Appeals Tribunal.
In my view the Judge should have discharged the jury earlier rather than to hope intolerable pressure would build up on the single holdout juror until he agreed to a guilty finding.