Recent developments in mushroom country

What must jurors think when they discover the truth after the event? ... Writing on the wall for juries when accused prefer judges alone ... Systematic subversion of the system ... Barry Lane call attention to the truth issue  

Jurors who sat on the trial of Jason Courtney in the New South Wales District Court could be forgiven for thinking that they occupied a parallel universe after they saw the excellent ABC doco of Jason's second trial broadcast on June 9. 

A certain scribbler opined about the program here. 

At the trial jurors would have heard witness after witness, including Jason, swear to tell the truth, the whole truth and nothing but the truth.

Following a fight in a pub toilet on May 19, 2006, Jason was charged with possession of an unlicensed pistol and using an offensive weapon to intimidate.

The complainant alleged that Jason produced a pistol, said he knew how to use it and pointed it at his head.   For what reason was not at all clear. 

The complainant also said that Jason had let off a round from the pistol but fortunately it went up through the ceiling of the toilet without breaking skin along the way.

Jason was acquitted on that count.

His "defence" was that he was not the aggressor at all, but the victim of an attempted robbery and assault by the complainant and another man.

He claimed that the complainant fancied a gold necklace he was wearing and tried to relieve him of it.

In cross-examination Jason swore that he knew nothing about guns, had never owned or fired one and was definitely not packing on the day of the alleged assault. 

What the jurors didn't know when they trundled off to consider their verdict was that the crown prosecutor had in his brief a happy snap of Jason brandishing a handgun and a statement from a former girlfriend saying that she had witnessed him discharging the said piece.

12 men - entitled to be angryNone of this was put to Jason in cross-examination because it had been ruled inadmissible by the trial judge in a voir dire at an earlier trial.  

The trial judge refused the prosecutor's application to reopen his case because he didn't make an application to raise the former girlfriend's evidence as soon as Jason denied knowing anything about guns.

Faced with two diametrically opposed sworn accounts from the perp and the victim and no real forensic evidence to support either account, the jury were unable to agree on a verdict for the two most serious charges and after a week's deliberation they were discharged.

You can just imagine how they would've felt after seeing post-trial developments on the ABC's doco.

After the trial, the prosecution proposed a retrial (which would've been the third trial) of the two principal charges based on the former girlfriend's evidence. 

Ultimately a deal was offered: plead to the possession charge and the intimidation charge would be dropped.

Given that Jason had already been in custody for 10 months, no doubt he and his advisers thought that he wouldn't get all that much more porridge, if any, by rolling over on the possession charge.

ABC doco series: On TrialUnfortunately, he got another five months. 

The judge didn't think that simply saying sorry for carrying a loaded semi-automatic pistol in a public place while highly intoxicated, and denying it on oath, played all that well. 

Also occupying jurors' thoughts after the ABC program might have been the usual instruction that judges, at least in Victoria, routinely give to juries in criminal trials.

That's the one where they are told that a criminal trial is not a search for the truth.

A traditional form of the direction was given by a County Court judge in the trial of one Anthony Norman Cherry, viz:

"You have been told in this case that the onus of proof rests upon the crown. A criminal trial is not a search for the truth of everything that happened in the transaction before the court. You do not have to be satisfied of all of the facts alleged or of the truth of all of the evidence given but you must be satisfied of the guilt of the accused before you may find him guilty. So the onus or burden of proof is upon the crown. The accused man, does not, I repeat does not, have to prove anything." 

See R v Cherry (No 2) [2006] VSCA 271 (December 8, 2006). 

Lovett: jury mushroomedThere was an interesting report in The Age on July 26 following the acquittal of footballer Andrew Lovett on rape charges. 

The reporter, Adrian Lowe, referred to evidence known to the prosecution, which some might have thought relevant in the circumstances, but was not put before the jury.

If noticing such things becomes a regular feature of reporting on criminal trials, I imagine that the rhetoric of people like Greg Barns, president of the Australian Lawyers Alliance, will become more strident. 

Barns warned that a defendant acquitted of a charge by a jury faced another trial by media if details of excluded evidence were released into the public domain. Such disclosure might cause "speculation and innuendo [and] undermine the verdict ...". 

You can bank on that!

Perhaps some of the "speculation and innuendo" produced by the application of adversarial principles might abate if pursuit of the truth was the overriding objective of a trial rather than the tricks, misdirection and sleight of hand that at the moment passes for proper process.

It seems that changes to the relevant legislation enacted in New South Wales earlier this year will put jurors out of their misery, because jury trials will become a thing of the past.

The amendments permit defendants to opt for a jury-free trial without necessarily obtaining consent from the prosecution.

Without citing any evidence, The Daily Telegraph reports that the change in policy is "deeply unpopular" and that it is "driving up acquittal rates and increasing the workload of judges". 

It appears also to be the trend in New York. 

According to The Wall Street Journal between 2006 and 2010 felony defendants who opted for a judge alone trial were convicted 61 percent of the time, whereas juries convicted 67 percent of the time. 

If the Tele and the WSJ are correct in finding that jury-free trials are resulting in higher acquittal rates it will place the traditionally pro-jury defence bar in a quandary. 

To the defence winning is everything and if the prospect of acquittal is higher with judges rather than juries then I predict a stampede for jury-free trials. 

Regardless of how this particular change pans out, the "truth" issue still requires attention if public confidence in the trial process is to be retained.