It is going to be hard to divorce the personality of John Laws from any debate about the law he was convicted under this week. Laws was convicted of soliciting information from a juror. He faces a maximum sentence of seven years jail.
In any event, the law he was convicted under is a draconian infringement of free speech with an unnecessarily high maximum penalty and next to the ACT the toughest in Australia. Most other jurisdictions make it an offence to harass a juror or identify a juror, but where the juror allows identification and voluntarily speaks out then the media can publish what the juror has to say, provided the case is over.
Surely, a willing juror who wants to go on the John Laws show should be allowed to discuss what happened in the juryroom, provided other unwilling jurors are not identified and the case is over.
But the NSW legal system does not like that idea. Why? Because if too many jurors go public, the public might realise what a mad system the jury system is. Jurors will tell of coercion to get a quick result so they can get out of the place. They will tell of finding guilt or innocence on silly, irrelevant grounds. In short they will highlight the fundamentally unsatisfactory nature of the jury system. Unqualified people are drawn from a hat. They are shut in a room, unable to consult anyone, until they come up with a decision. They do not have to give reasons for their decision. Freed of that burden, they do not have to focus their minds by applying reason to the facts. They can just say guilty or not guilty and go home unaccountable to anyone. Worse, appeal judges sanctimoniously say they are very reluctant to overturn a jury decision. Small wonder. How can anyone reasonably analyse a decision made in secret with no reasons given for it?
It is really the most ridiculous system of decision making.
Laws has been found guilty of the crime of interviewing a juror. She identified herself. She told her own story on the John Laws show. She told how she had been coerced by fellow jurors into acquitting two people accused of murdering a computer store owner. She said, she “”did not feel in her heart that justice had been done”. It was a nightmare and after a time she “”just crumbled”.
Laws did the public of NSW a good service. He highlighted the defects in the jury system. He showed how it was possible for a juror to be coerced into acquiescing with a finding that they fundamentally disagree with. His publication of this example must make people wonder how many acquittals have been secured this way.
But it was contrary to Section 68A of the NSW Juries Act which says a person shall not solicit information from a former juror for the purpose of obtaining information on the deliberation of a jury. Maximum penalty seven years.
Incidentally, unlike other offences under the Jury Act, there is no provision for a fine. I suspect that this will put Justice James Wood in a bit of the dither when it comes to sentencing next week. He will not want to jail Laws because that would make him a martyr, and also Laws (unlike Derrin ch sp Hinch before him) apologised. He might give Laws a bond or some weekend detention. Though last time Laws transgressed (for saying nasty things about a defendant then on trial) one judge, Justice Roderick Meagher, said he should be jailed “”for some months” because fines meant nothing and $20,000 was what “”he would spend on a small cocktail party”. But that was a different case. The comments were made while the trial was in progress. Laws deserved punishment. In the latest case, however, the trial was over. There was no danger of damage to anything but the reputation of jury system.
Justice Wood might not want to make Laws a martyr because Laws can quite reasonably point out that he was helping the people of NSW get educated about defects in the jury system. That would not be good for the smug members of the NSW justice system.
The NSW law would not be tolerated in the US. It is a major infringement of freedom of speech. If journalists (or even radio entertainers) find a juror willing to speak out about their experience, why shouldn’t they ask questions for broadcast or publication? What has the precious legal system got to hide?
Other provisions of the Juries Act provide the necessary protection for jurors who do not want to come forward and they provide penalties for people disclosing information coming out during a trial. But the section that Laws was convicted under appears to be there for the sole purpose of preventing information about the jury system from coming out at all, ever.
The ACT’s provisions are even more draconian. They provide a fine for jurors who disclose information to the media about goings-on in the juryroom, as well as penalties for the media. This is an appalling infringement of freedom of speech. If jurors want to tell the world (after the trial and all appeals have run out) about their experiences in the juryroom they should be allowed to. The ACT’s law is badly drafted because it lumps together with a single level of penalty identification of jurors (with or without permission) with disclosure of details of deliberations of the jury room – surely three different offences requiring separate levels of penalties.
If legislatures are going to enact these sorts of laws, we need a Bill of Rights with a freedom-of-speech clause.
Maybe Laws should quixotically run his case to the High Court asserting an implied freedom of speech in the Constitution. When he inevitably loses people might realise how fragile their freedoms are. (made even more fragile by the Federal Government’s cavalier attitude to human rights.) How can we improve political and legal systems in Australia unless we can talk about them, with concrete examples and experience?
But, no, the lawyers who dominate the legislatures in Australia do not want the jury system to be exposed.
It is different in Europe.
The British Lord Chancellor has said that when Britain joins the European Human Rights regime later this year, juries might be required to give reasons for decisions. The Europeans have the very sound view that convicted people have a right to know the reasons for their conviction. They should not have to put up with 12 people chosen out of the hat determining their fate behind closed doors on who knows what grounds: race, colour of eyes, persuasion and coercion of other jurors, as Laws so damningly pointed out. (No doubt defenders of the system will point out that there is no evidence that jurors decide on colour of eyes and skin and the like. Well, of course not, the whole process is shrouded in indefinite secrecy.)
If the jury system is so good and such a wonderful bulwark against oppression, surely it can only benefit by exposure. If it is a dud, however, which I strongly suspect, we will all be better off by changing it.