I read all about George Pell’s conviction and the details of the trial on the day it happened. It was not though some privileged journalist’s network, but pretty much by accident. It popped up as a line item on the paid subscriber’s Washington Post morning news feed.
“Gosh,” I muttered to myself, or words to that effect. I then clicked the link to the full article and nothing came up. I started searching The Canberra Times, then The Sydney Morning Herald and then the ABC. Nothing. Odd, I thought, concluding that there must have been a suppression order and a suppression order on the suppression order. Presumably, it would last until the second trial was over.
Obviously, The Washington Post when publishing electronically to its US readers would not be subject to that order, but if it was being delivered to an Australian IP (internet protocol) address it would be, or at least could be if it happened to be going to Victoria.
Every IP address has a country identifier.
Internet service providers assign IP addresses and Australian internet service providers would be subject to the suppression order, or could be if the computer getting the assigned address was in Victoria. But they cannot tell from the IP address the whereabouts in Australia of the computer being assigned, so they block the lot just to be sure.
So in a way, the internet facilitates nationwide suppression, even though judges technically only have jurisdiction in their home state.
But in other ways, the internet makes suppression orders a joke. Even though your computer is in Australia, it is possible to buy a virtual private network (VPN) from an overseas supplier that disguises your computer so when it connects to a server, like that of The Washington Post, that server thinks it is a computer in the US or UK or some other designated country.
A VPN costs a few dollars a month. So in December, it was open to any Australian to buy a VPN, log in to The Washington Post and search for Cardinal George Pell.
Moreover, the Australian computer user would not be publishing contrary to the suppression order. The Washington Post would be the “publisher”. The Australian computer user would only breach the suppression order if they passed on the Washington Post material to someone else in Victoria.
I would not do that because I respect and obey court orders, even if I might disagree with one of them and the reasons for it.
But obviously many others would not have the same view, making suppression orders in the internet age very difficult. It is difficult for a judge in a single country or a single state or province of a single country to prevent information going from that jurisdiction to the world wide web and back to that jurisdiction.
What is the answer? Do we have secret trials with no media or public audience, but perhaps with a video recording which can be replayed after the reason for suppression is passed? That does not sit well with the principles of liberal democracy.
No the real question to be asked is that if potential jurors are so weak-minded that they are going to be prejudiced by such things as prior convictions, instead of sticking to the evidence before them, then why are they given the task of determining guilt or innocence in the first place.
It is bizarre that people who make such important decisions do not have to publish reasons.
The judge in the Pell case was quite right to say that that potential jurors in up-coming cases against Pell might be prejudiced by news coverage of the first trial. But surely that means that they are also equally likely to be prejudiced by, for example, being Catholic, atheist, very sensitive to the question of child abuse and so on.
People randomly selected from the population are very likely to be untrained in sticking to the evidence, unlike judges, who do it all the time.
Moreover, the sort of people who might be so suited are usually better equipped to get themselves excused from jury duty. They often have demanding jobs and obligations that make jury duty too onerous.
Worse, there is a false security in the idea that because 12 randomly selected people who do not know each other come to a unanimous verdict it must be solid. Psychologists have been aware of the tendency for people to conform for decades. They want to fit in; they do not want to look foolish; they don’t want to make trouble, so they change their behaviour.
Numerous psychology experiments bear this out.
Moreover, in a way judges encourage it. “Please, go back and try your best to come to a unanimous verdict,” they implore. “Or at least an 11-1 majority verdict.”
Imagine the pressure that puts on some poor bunny plucked from the semi-articulate, semi-educated masses at random.
An interesting experiment would be to separate the jurors from each other during the trial and for them not to deliberate at all, but to give their verdict and to write down their reasons.
My guess is that we would rarely get unanimous verdicts and the reasons would be all over the place because jurors are amateurs at assessing evidence and drawing conclusions.
If such an experiment were conducted the legal profession’s and public’s faith in juries might wilt in the face of hard evidence.
Lastly, juries are held in such high esteem (despite their obvious short-comings) that appeal courts are reluctant to overturn them. By law they cannot replace the jury’s assessment with their own. According to the High Court you have to show that the evidence lacks credibility, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force for reasons which are not explained by the manner in which it was given, so that the appeal court decides there is a significant possibility that an innocent person has been convicted.
Sounds like an almost a reverse onus of proof.
And remember, an appeal court has to decide this without seeing the reasons for the jury’s decision – an unnecessarily impossible task.
We could solve the suppression problem by replacing juries with more transparent and rational justice.
This article first appeared in The Canberra Times, The Sydney Morning Herald and The Age on 1 March 2019.