Judge and Jury

The findings of guilt by a Melbourne jury in the case of Cardinal George Pell provides cause for reflection about trial processes in an age of saturation media.

Now is not the time to speak about Cardinal Pell’s guilt or innocence — this is a matter for the Victorian Court of Appeal. But what the Pell case does bring to light is the issue of jury trials in an era when it is impossible, unless one lives on a remote island without access to the internet, to avoid news and opinions about specific individuals. 

At the outset let it be noted that there is no suggestion the jury members in the Pell case did anything other than deliberate to the best of their ability, and in accordance with the instructions they were given by the judge in the case. In Australia — and this contrasts with the United States where jury members can and do talk about how they deliberated after a trial has finished — we never know what drives jury dynamics or how a jury reasons collectively.

We can still, however, reflect on some broader policy issues concerning cases where there has been a saturation of publicity prior to an individual going to trial. Should, in such cases, there be an automatic right to a judge-alone trial? Should we move towards the US practice of allowing background checks and questioning of potential jurors?

At present, the practice of judge-alone trials exists in New South Wales, Western Australia, South Australia and Queensland — in Victoria, Premier Daniel Andrews’ government is now looking at adopting it too. These are utilised by the defence if they think that there is a danger, because of pre-trial publicity, that their client might not get a fair trial. 

There are two prominent examples which illustrate this point. In Western Australia Lloyd Rayney, a barrister and former prosecutor who was charged with murdering his wife in 2007, was acquitted after a judge-alone trial in 2012. The Rayney case had dominated the Western Australian news cycle for some years and WA Police had conducted themselves in such a way as to make it clear they only had one view about who killed Rayney’s wife. 

The other example is Dennis Ferguson, who had numerous child sex abuse convictions and was subjected to a sustained campaign of vilification by the Queensland media after it was discovered where he was living. He was facing trial on similar offences, and in a judge-alone trial in 2009 he was acquitted. 

Surely in cases where there is a perceived risk that a jury might be influenced by a high degree of prejudicial media, the option of a judge-alone trial should be open to all Australians? At the end of the day what is required is a fair trial for an accused person — and that right should not depend on where one lives or is charged.

The issue of greater scrutiny of jurors in high profile or deeply emotive cases is more problematic from the point of view of the Australian legal profession. There is a great deal of stock placed by the legal system in the jury system. Maintaining trust and confidence in that system requires, according to this mindset, that we do not scrutinise jurors but instead rely on their integrity when they agree to sit on a jury. But as  former governor of Western Australia and prominent barrister Malcolm McCusker QC said in an interview last year, the faith placed in juries in this day and age is, in his view, misplaced:

For a start because of the jury selection process, although it’s not like the United States, you will never get a random selection of people from all walks of life. In fact very commonly you will find unemployed people, anyone who has got a good reason for getting out of a jury will in many cases will use the reason. People can think up reasons of getting out of jury service so what you get left with is random all right, but is that a good thing to have people who may not have the faintest experience in dealing with these important matters of judgment?

In the United States the defence is able to examine the backgrounds of potential jurors and question them before selection. This enables the flushing out of individuals who might, for example, have researched the defendant or the case heavily or whose social media accounts demonstrate they have very strong views about the individual charged — or about the specific offence. In the United States this process of jury selection is regarded as essential by both prosecution and defence to enhancing a fair trial.

The Pell case does throw up important issues about how we as a society ensure that the opportunity for a fair trial is maximised for both victims and the accused. 

Greg Barns is a barrister and National Criminal Justice Spokesman for the Australian Lawyers Alliance