The Covid-19 crisis has put a stay on many jury trials. If we were sensible, the High Court’s judgement to overturn the conviction of George Pell should result in the end of them forever.
Imagine designing from scratch a system today for society to determine an accused’s guilt. You would be laughed at if you suggested you should go out on the street and pick 12 people at random and make them listen to evidence and legal submissions and then be locked in a room until they came up with a verdict and you did not require them to give any reasons.
People take comfort in the fact that a jury’s verdict has to be unanimous. But modern psychology on herding and leadership nullifies that comfort. People like to belong. They do not like being on the outer. We evolved that way to survive in the wild. People like being led. We cry out for leadership. It only takes one or two to lead the rest into agreement.
It would be an interesting experiment to randomly pick 12 people to hear the same evidence as a jury and ask them not to speak to each other, but individually deliver their “verdict”. My guess is that unanimity would be rare indeed.
One of the worst things about our jury system is its secrecy. No-one is allowed to research how juries behave. Surely it would do no harm to have CCTV secretly running for jury deliberations and handed to researchers under conditions of confidentiality.
We have elevated juries and their decisions so much that they are almost sacrosanct. It is extremely difficult to get a jury’s decision over-turned.
A court of appeal cannot overturn a jury verdict just because it would have decided the other way. It cannot substitute its view of the evidence for that of the jury. Rather it must find that the verdict was unreasonable or cannot be supported on the evidence or that the verdict was not reasonably open on the evidence.
It is an extremely high bar. And it reveals a deep flaw in our system. What about the presiding judge in a jury trial? The judge hears all the evidence. Surely, if the evidence was such that it could not be reasonably open for a jury to find guilt, the judge should be able to work that out and not allow the case to go to the jury. The judge should enter an acquittal instead.
Why didn’t the judge in Pell’s case do that? If you read the High Court judgement, you would conclude that that is what should have happened.
But judges rarely do this, such is the sacrosanct nature of the jury. Perhaps they think that confidence in the legal system would be eroded if judges took cases away from the jury too often.
On the legal tests on the nature of appeals from jury verdicts, the High Court in Pell’s case merely cited previous cases with approval and did not attempt to elucidate, expand or change them.
But it took an approach that in effect amounted to the judges taking on the role of a jury. The lion’s share of their 15,000-word judgement was a detailed analysis of the evidence. It was the sort of work and analysis that you would hope a jury would do, but for the obvious fact that most jurors plucked from the street are simply not qualified or intellectually equipped to engage in that sort of concentrated detailed analysis, let alone explain it in writing.
And they are not trained to put aside emotion and prejudice.
We expect and demand a skill level for virtually everything in society these days: doctors, lawyers, surveyors, electricians. plumbers, fork lift drivers etc. We demand people be qualified with a certificate to prove it. And they are accountable and can be sued if they mess it up. They have to explain themselves. But not a jury.
We are happy to pick 12 people randomly – they could be PhDs in logic or idiots off Bondi Beach in the midst of the Covid 19 crisis. More likely the latter. Anyone with an ounce of brain can get off jury duty. And usually the sort of people who would be qualified to do a juror’s role are in occupations that would grant them an excuse not to.
The Pell case should make people question juries. The High Court as good as accused the Pell jury of being irrational.
It said that granted the jury accepted the complainant’s evidence as “thoroughly credible and reliable”, the issue was whether the “compounding improbabilities”, such as the lack of opportunity for Pell to have committed the crime shown by the unchallenged evidence of people at the cathedral, “required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt”.
In short, a rational jury should have acquitted. How many irrational juries – plagued by emotion and prejudice – convict the innocent or acquit the guilty?
The Law Council of Australia, the peak body for the nation’s lawyers, rushed to defend the jury system. It said the High Court applied “a technical legal test to determine whether the verdict was unsafe”. It said that nothing in the Pell case “has overturned or diminished the crucial and primary responsibility of juries”.
I beg to differ. There was precious little “technical, legal” stuff in the judgment. Rather, it was a detailed look at the facts and evidence and the replacement of the irrational conclusion of the jury with the rational conclusion of the judges.
Not many people will read the judgement but if you do you can easily see why there was enough reasonable doubt to acquit.
That the High Court in effect behaved like a jury and did a good job of it raises the question of why shouldn’t all accused people have the advantage of their guilt being determined by rational judges. Ninety per cent (the less serious ones) already are – by magistrates. Why can’t the more serious cases be judged by a judge and, say, two qualified assessors who have to give reasons for their decisions?
Finally, the jurors in the Pell case might well ask: “Why did you drag us off the street to do a long hard job we are not qualified to do with poor pay and conditions when you are going to second-guess us anyway? Why not abolish us?” Indeed, why not?
This article first appeared in The Canberra Times and other Australian media on 11 April 2020.