Shand said the verdicts were inconsistent and that the jury could not agree an “”came to a compromise, which had the result of releasing them from further duties. I have a suspicion in my own mind that they spent too long in deliberation and had to find a way out.”
If Connell were acquitted on one charge the fabric of the other charge fell away, he argued. He said there would be an appeal.
This was good stuff, I thought. Instead of the dumb silence you get from lawyers, here was a lawyer explaining his misgivings about the jury _ clearly something in the public interest coming from a prominent lawyer who had spent six months at close quarters with this jury.
Around the same time another barrister let the cameras into his chambers. He spoke to the media and allow the camera to record a telephone interview with the plaintiff who was in hospital. Good, I thought, the public would get a better feel for what was going on in the law.
The day after Shand spoke to the media, Connell was given five years with 18 months non-parole. Leaving the court, Shand said nothing. He sternly walked through the throng of reporters and cameras. Would there be an appeal against the sentence? Silence. Was the sentence fair? Silence. So much for the trend to public discussion, I thought. But it was such an abrupt turnabout and seemed inconsistent with the previous day. And unfortunate. Why shouldn’t the public get the view of the man who had fought virtually 24 hours a day for six months on behalf of his client?
But, alas, the forces of silence rather than robust comment and debate won the day.
Since then, I have reflected on the fate of another QC who made a spirited defence of another man convicted over the perversion of the course of justice (this time attempting).
In 1985, Neville Wran, QC, then Premier of NSW said he had a “”very deep conviction that Justice [Lionel] Murphy is innocent of any wrong-doing”. He made the statement after the NSW Court of Appeal had over-turned Murphy’s conviction and ordered a new trial.
What happened to Wran? He was convicted of contempt of court and fined $25,000.
It was an asinine ruling. There is a presumption that a person is innocent until proven guilty. So Wran was just stating what the law presumes.
At the time various prominent people condemned Wran.
Wran was a gratuitous outsider, of course, and had less grounds for speaking out than Shand. But you could argue that Shand’s sudden turnabout on whether he should talk further to the media is evidence that the climate of silence has been strengthened by the idiotic Wran ruling.
I don’t carry brief for Connell. (He still has eight defamation writs out against The Canberra Times _ can we have our costs back please?) However, the silly contempt laws should not prevent people stating that they think he is innocent even if a retrial is a possibility.
You could argue that with a retrial in the wind, it is not in the interest of justice to have big-name people talking about the guilt or innocence of people charge because a new jury might be influenced by what was said.
Well, that theory went out the window this month when a jury awarded Nicholas Carson $1.3 million in a retrial in a defamation action. The earlier $600,000 award had been overturned as hopelessly excessive by the NSW Court of Appeal affirmed by the High Court in a double blaze of gloating media-self-serving publicity. Did the new jury see that earlier prejudicial publicity, or if it did, did it take the slightest bit of notice? No.
There has been too much unnecessary silence enforced on the ground of needing to mollycoddle juries.
If we are serious about mollycoddling juries we wouldn’t forcibly take six months out of their lives in a drawn out trial like Connell’s which, with a bit of commonsense by all sides, should have been knocked down to a week or two.