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Sunday, 27 June 2010

Jurors not allowed to do research

It's a traditional common law directive (now given a 'gloss' at s 78A of the Juries Act 2000) that jurors are not to make their own enquiries about the case they are required to decide.



The rationale is easy to follow. Evidence that goes into the jury room without the knowledge of the court hasn't had the benefit of being tested. It might be inadmissible, or prejudicial, or capable of an explanation by one of the parties, who didn't think to present the explanation because it didn't know that the jury had received that information. Jurors are repeatedly told in the course of their service that they must make their findings solely on the evidence presented to them.



The prohibition on research most often relates to the facts of the case, and there are numerous examples of individual jurors (or more rarely, entire juries) being discharged after contact between juror and party, either before or during a case.



In rarer examples, jurors have been discovered conducting their own research into the case. Notoriously in R v Young [1995] QB 324, a retrial was ordered after it was discovered that some of the jurors in a double-murder trial had used a oiuja board in an attempt to contact the victims.



(Fortunately for Henry Fonda, the judge never found out what he'd been up to):









In Martin v The Queen [2010] VSCA 152 the Court of Appeal was confronted with a different problem. After the verdict of the jury had been given (guilty, obviously, given that it was the accused who appealed) the judge's tipstaff found 7 pages of material downloaded from the internet, discarded in the jury room. The pages concerned the legal definition of the phrase beyond reasonable doubt (a phrase which the High Court has notoriously admonished trial judges not to attempt to define for a jury, even should they ask). It raised the question, should a jury be prevented from conducting its own legal research?



The question didn't really get answered, as the Court felt that to consider the impact that the material may have had on deliberations would either amount to baseless speculation, or else intrude into the confidential workings of the jury room. Ashley JA referred to R v Chatzidimitriou (2000) 1 VR 493 where a trial judge allowed a jury access to a standard English dictionary to assist them in deciding the meaning of the phrase.



73 The question which I posed in the preceding paragraph needs to be considered, in my opinion, in the context of the standard of proof direction; not in the context of a general enquiry about the permissibility or otherwise of jurors researching the legal principles applicable to the case before them. The authorities make it very plain that it is for the jurors to give meaning to the critical phrase. The fact that a judge may not elaborate upon its meaning, except in particular circumstances, does not mean that jurors may not consider what meaning to give it.




The Court of Appeal advised trial judges to tell jurors that s 78A extends to searching legal dictionaries (though the Court did not actually find that this was the case). If such a direction had been given in this case it would have been easier for the Court to find that an irregularity had occurred (the jury would have been in breach of the trial judge's specific instruction). But, of course, this provides no assistance to jurors in determining what the phrase should mean.



For some observers Martin's case no doubt adds to Vincent J's criticism of the insistence in Australian law that beyond reasonable doubt not be further defined. (He described it as 'ridiculous' [at page 40] in his report to Parliament regarding the conviction of Farah Jama by flawed DNA evidence). If jurors are left to search the internet for the meaning of terms which are central to their decisions, there's a strong suggestion that jurors are not being properly assisted in their task. It may, but then again may not, run contrary to the current popular opinion that holds that most jury charges are overly long, needlessly complex and full of irrelevent material.



Against this backdrop, the state government has coincidentally announced plans to widen the jury pool to include people who are currently excluded from service. Last Tuesday, Rob Hulls announced that lawyers, judicial officers, police officers and Members of Parliament will be able to serve on juries sooner after leaving their office or practice under reforms to Victoria’s jury system.



The prohibition of people intimately involved in the day-to-day operation of the courts traditionally doesn't just stem from a concern that they won't be able to shed any previous bias to one side of the adversarial system or the other to perform their role as a juror. There was also a concern that other jurors might be inappropriately swayed by a juror with intimate knowledge of the justice system and not go about reaching their own verdict independently.



Given the lack of guidance being provided outside the jury room, it's interesting (and, in some cases, perhaps worrying) to think about the potential influence that a retired judge, police officer or practitioner might have.

12 comments:

Tony M. said...

Look at Cahir v Jamieson (the Coroner) if you want to know why our system needs juries.

link

It's a good thing the Supreme Court chucked out the Coroner's decision. She recommended him for prosecution. Any jury hearing the same evidence would give Sgt Sam Cahir a medal (he deserves one for what he has gone through).

Matt said...

On the related issue of the need to stop the jury considering untested material, have a look at R v Cotter [2004] VSC 295.

http://www.austlii.edu.au/au/cases/vic/VSC/2004/295.html

In that case, a bag was tendered as an exhibit, and there was some dispute as to whether it belonged to the accused. At some stage, the jury sent out a message informing the court of the presence of 5 handwritten notes in a pocket of the bag. Apparently neither the prosecution or defence knew of these notes, and at least some of the notes were highly probative in terms of proving that the accused owned the bag. The jury was discharged, on the basis that the parties had not had the opportunity to test the notes.

LL Cool J said...

Doc,

Don't know if you're right about a lawyer/cop/judge doing a "12 Angry Men" on the rest of a jury. According to this survey we would listen to the vet or the farmer before any of them.

TRUSTED PROFESSIONS

1. Ambulance officers

2. Firefighters

3. Nurses

4. Pilots

5. Doctors

6. Pharmacists

7. Veterinarians

8. Armed forces

9. Farmers

10. Scientists

11. Dentists

12. Teachers

13. Police officers

14. Childcare providers

15. Bus/train drivers

16. Judges

17. Chefs

18. Hairdressers

19. Psychologists/counsellors

20. Plumbers

21. Accountants

22. Baristas

23. Domestic cleaners

24. Weather forecasters

25. Religious leaders

26. Financial planners

27. Mechanics

28. Charity collectors

29. Fast-food servers

30. Lawyers

31. Tow-truck drivers

32. Taxi drivers

33. CEOs

34. Roof-insulation installers

35. Journalists

36. Real estate agents

37. Sex workers

38. Politicians

39. Car salesmen

40. Telemarketers

We don't trust the politicians who make the laws or the reporters who tell us what is going on either.

Love to y'all,

LL Cool J

Anonymouse said...

What has juries got to do with the Magistrate's Court?

Elucubrator said...

A couple of other notorious cases where jurors did their own unauthorised investigations are R v K (2003) 59 NSWLR 431, where the three jurors searched the internet for information on the case they were considering; (it seems with the now-established ubiquity of the internet, we've moved beyond potential access by jurors first raised by Hampel J in R v McLachlan [2000] VSC 215 and progressed to actual access being the (understandable) concern of the courts) and perhaps the most compelling example was the notorious rape trial of Skaf (2004) 60 NSWLR 86, when several jurors did their own out-of-hours view of a crime scene and a re-trial was ordered.

And what does this have to do with Magistrates' Courts? Directly, not much. But, it does highlight the importance of any finder of fact acting only on what is evidence received in the case and not considering extraneous material.

Jeremy Gans said...

So, can a magistrate look up a legal textbook while mulling over her/his judgment?

Anonymous said...

When he's preparing to direct himself, sure. But once he's given himself his directions, no way!

Dr Manhattan said...

I don't know enough about the case to comment on it, Tony. I do think that coronial investigations are frequently criticised for exercising 20/20 hindsight, even though that is the very point of the process (to examine pre-mortem events in light of the fact that a death subsequently occurred).

Thanks for the survey, LL.

I wasn't aware of Cotter, Matt, but it does strongly suggest that the jury of 12 Angry Men would have been discharged if it had been known that there was a second knife brought into the jury room.

On the other hand, not every surprise will prejudice the trial. In Ricciardo v WA [2010] WASCA 116 a ground of appeal was rejected as 'hopeless' when it was asserted that a jury's discovery of an additional mobile phone SIM card in a tendered camera bag resulted in an injustice.

Alan said...

This post is really about Peter Dupas isn't it?

Dr Manhattan said...

No, I didn't have Dupas in mind when I wrote this post.

Now that you mention it, I can see the connection with the recent High Court decision. The trial judge warned the jury in no uncertain terms to disregard everything but the evidence they heard while seated in the jury box.

Dr Manhattan said...

And another case from WA:

In Hansen v WA [2010] WASCA 180 a juror was found to have downloaded aerial maps of the location of the murder. The trial judge's decision not to dismiss the jury was upheld by the Court of Appeal.

Anonymous said...

This is the modern day equivalent of Twelve Angry Men:

http://www.guardian.co.uk/uk/2011/jun/14/facebook-juror-defendant-contempt