The risks of jury trials

An Australian crime reporter comments on a recent trial where a jury verdict of "Guilty" was overturned by a court of appeal. I am inclined to think the jury got it right but did not get it right beyond reasonable doubt

Winston Churchill, in one of his many famous proclamations, said, "It has been said that democracy is the worst form of government, except all the others that have been tried." So might it be said of juries: that they are the best way to resolve an issue, at least in criminal law, where it is presumed one of the parties is lying.

But Gordon Wood's acquittal last week on appeal has once again raised the question of whether there might be a better system. There are certainly others available, as in Europe's inquisitorial courts.

Wood might well have been at The Gap on that night in June 1995, and there might have been evidence that his girlfriend Caroline Byrne was thrown from the cliff top. But how could such a gross accusation - of a beastly and violent act - be alleged against Wood when there were no eyewitnesses, no clearly established motive and nothing in his life that suggested he had such evil in him?

The Court of Criminal Appeal took several months to reach its finding and it left no stone unturned. But the comments from the bench during the hearing indicated that in their view it was an outrageous verdict. If ever there was a case of reasonable doubt, this was it. And if Appeal Court judge Peter McClellan and his two colleagues had been hearing the trial rather than the appeal then surely Wood would not have spent three years rotting in prison.

There was criticism of the senior Crown prosecutor, Mark Tedeschi, QC, but perhaps the worst that can be said of him is that he was too good at his job. Just as Ian Barker, QC, the prosecutor who had Lindy Chamberlain convicted, was brilliant at his job. It has been argued that, had Barker had the defence, the Chamberlains might have been acquitted - though in the Chamberlain case, as in the Wood case, the defence counsel was no slouch.

One school of thought says a prosecutor should be there only to ensure the evidence is properly presented, and to leave the rhetoric and tactical decisions to the defence. In the celebrated trial of Patty Hearst in 1976 for bank robbery, for example, the flamboyant defence lawyer F. Lee Bailey was pitched against prosecutor James Browning, who just plugged on methodically and Hearst was convicted. But prosecutors usually go on the attack. Their job is to prove a case, and to defeat tactics by the accused to obfuscate, evade and dissemble. Smart crooks should not beat the system.

Juries are a lottery. There is no saying whether a particular 12 heads, selected randomly from the community, represent commonsense. The one safeguard is that counsel are able to challenge empanelling a limited number of jurors - three per side in NSW - but that is a very uncertain means of weeding out unsuitable individuals.

There is no guarantee of how the jury will turn out. A juror in the 1991 perjury trial of the former Queensland premier Joh Bjelke-Petersen turned out to be a member of the Young Nationals, identified with "Friends of Joh". He became foreman and was held largely responsible for a not-guilty verdict that flew in the face of the evidence.

The idiosyncrasies of individual jurors caused two murder trials, of Phuong Ngo for the murder of John Newman and Bruce Burrell for the murder of Kerry Whelan, to produce hung juries - when in both cases the evidence was always strong enough for a finding of guilty beyond reasonable doubt. In Burrell's case, one juror was replaced as foreman by fellow jurors in the retrial because of his increasingly erratic views and looked like he might produce a hung jury. Eventually he did not. But the law had to be changed to allow a jury verdict in a major criminal trial where there is one dissenter.

Original report here




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