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Tuesday, July 10, 2007

Trial by Jury - it's no operetta

The following statement was published in Crikey to-day.
Last year, twelve jurors found three Western Australian men guilty of the murder of Phillip Walsham nine years ago. The men were at the centre of last year's controversial Australian Story three-part series "Beyond Reasonable Doubt". Last Friday, the Western Australian Court of Appeal quashed the convictions of the men who were serving life jail terms. The following statement was released yesterday. It represents the opinion of the majority of the jurors:
Every stakeholder in this case has been allowed to express their opinion in the media with the exception of the twelve people who were charged with the responsibility of making an extremely difficult decision.
As a jury, the justice system forbids us to have a public voice on what occurred within the jury room during the trial. This we respect.
We would, however, like to express our deep frustration at a number of things that have occurred since our decision was handed down.
There are a number of issues that we would like to address, along with our concern and disgust at the obvious bias and inaccuracy of much of the media representation.
We did not choose to be jurors on this trial. We were initially selected by means of a ballot system, with final approval by the defendants, the defence and the prosecution. Once selected we all acted professionally throughout the trial.
We all took the role of juror very seriously. We are all intelligent and professional people who were prepared to listen to both sides of the case and were more than capable of analysing the evidence presented to us.
When we went into deliberations we did so carefully, thoroughly and did not allow emotion to enter into our decision-making process. Our decision was based purely on the evidence put to us.
We all support and recognise the need for, and right of, appeal.
We recognise that it is the prerogative of the appeal judges to overturn a jury’s decision.
Unfortunately, a decision that took many days to reach has now been ruled as “unsafe and unsatisfactory”. What part of our decision was “unsatisfactory”? We made the only decision we felt possible on the evidence presented to us over the ten weeks. Does the decision of the appeal judges undergo the same thorough scrutiny?
We are disgusted with the subsequent public attack on the jury – specifically, our integrity and ability to make reasoned decisions. It is easy to blame and speculate about the jury when their decision does not suit. Remember, the system chose us. We did not choose to be on the case.
Our experience has led us to believe that the jury system is a farce. If the judicial system deems that a jury is unable to make reasoned decisions in a high profile and/or prolonged case, then surely those cases should only be heard before a panel of appeal judges. Why do juries even exist? Criticism of the decision we accept, what we object to is the public maligning of us personally. Again, the system chose us.
The media reporting of the case has been scandalous. Certain commentators have stated they heard all ten weeks of the trial. Not one media representative heard all the evidence presented – the evidence on which the jury based their decision. Much of what has been put in the public domain by so-called commentators, both in newspapers and on the internet, has been biased, speculative and factually inaccurate.
One constant criticism leveled at the jury has been the amount of speculation allegedly made by them in the process of them reaching their verdict. How ironic it is that those same people are now speculating themselves about the alleged prejudices of the jury and their ability to make decisions without emotion.
Do those charged with the responsibility of informing the public have an obligation to be factually correct and unbiased? Unfortunately, it appears not. Some, it appears, align themselves with one side and present only the information beneficial to their case. Sadly, the West Australian public in general have not been given an unbiased account of the facts and as such go on believing that another miscarriage of justice has been averted.
This was a legitimate trial by twelve peers. Is this really justice?
Have you come to the end of this statement, dear Reader, feeling slightly troubled, perturbed? Miss Eagle has been concerned for some time about erosion of the principles surrounding and undergirding trial by jury. For nations whose law is founded on British common law, being innocent until proven guilty and trial by jury are foundations of our freedom.
When there are outcries about our judicial system, it seems to Miss E that large sectors of the community have forgotten, if they had ever learned it in the first place, that - in our system - it has traditionally been held that rather ten guilty people go free than one innocent person is condemned.
Scotland has, by tradition, had majority verdicts - but do we really need majority verdicts? The cost of running the judicial system means that major trials which are expected to be lengthy frequently carry "understudy" jurors. Queries frequently arise about where jurors are equipped to make decisions based on highly specialised or abstruse expert opinion. We are seeing moves to remove the principle of double jeopardy. We see the possibility of jury interference - particularly in the dramatised documentary, Joh's Jury, which told the story of a widely held view of interference which resulted in a hung jury.
All these factors and more lead to consideration of more widespread use of judicial rather than jury trials. Judicial trials are more common in civil cases than criminal cases in higher jurisdictions although one has to be alert to changes which allow more power to the summary jurisdiction of Magistrates without referral to higher jurisdictions.
We hear a lot to-day about requiring of new immigrants seeking citizenship a knowledge of Australian values. Miss Eagle hasn't noticed that any of these values make reference to being innocent until proven guilty, to the right of trial by a jury of one's peers.
And, on the topic of a jury of one's peers, one wonders whether this could be streamlined. Juries are not publicised under our system - that is why the statement above is highly unusual. Miss E - along with most Australians - would not advocate the way of the U.S. where individual jurors speak to the media soon after a trial. But Miss E is not aware how many Aboriginal people were on the jury in the recent Chris Hurley trial following the death of Cameron (Mulrunji) Doomadgee. Would an all white jury verdict differ from the verdict where Aboriginal people were included in such a situation?
Plain and simple - Miss Eagle believes that Australia waters down or over-rides the trial by jury system with great caution. However slight the erosion, this might pose/or already poses a threat to the entire principle. Judicial oversight cannot, in Miss E's view, become the 100% decision making process at law. There must be room for authentic peer review.