Stepping backwards out of the dark

Chief Justice Paul de Jersey dominated the news agenda with a speech suggesting that it was time juries have more information about an accused's other offences ... Queensland criminal barrister Peter Callaghan SC has his reservations 

de Jersey CJ: "trusting the intelligence and wisdom of fellow citizens"

IN a speech this month at a Queensland Law Society symposium Chief Justice Paul de Jersey questioned why juries should continue to be kept "in the dark" about an accused's prior convictions. He said:

"I trust the intelligence and wisdom of my fellow citizens. I do not accept a claim that made aware of prior misconduct, jurors would automatically say: 'he did that so he must have done this'."

The speech by Queensland's Chief Justice on March 15 was newsworthy, even for the way it made the news, and it was remarkable for the manner in which the issues were framed. 

But, what I found most extraordinary was the fact that it was made at all. 

The speech was released in advance to the media. The Courier-Mail dedicated its front page to the story under the heading "exclusive".

It was then delivered from a podium provided by the Queensland Law Society.

The Chief Justice took no questions and left the stage which was soon to be occupied by the State's Attorney General.

He then gave an interview to a television journalist. It was not clear from the part of the interview that was broadcast whether the journalist actually asked any questions of the Chief Justice, but the report did contain the concession that his speech was not prompted by evidence of existing failures in the system.

As an exercise in media management, it had the precision of a military campaign, and was extremely effective. 

There was a significant response posted on the Courier-Mail's website, but little in the way of commentary from lawyers or legal academics.

Those who might have a contrary view on such matters - the self employed like myself, or even organisations like the QLS or the Queensland Bar Association - are simply not equipped to respond to such a tactical media strike.

It was therefore left to Terry O'Gorman to point out that the speech read like something that might be expected "from a law and order politician".

Certainly any politician would have been proud of the manner in which the news cycle had been manipulated and dominated by one opinion.

As a result, the Chief Justice's views have settled, undisturbed, on the wider public consciousness. 

There is a different way in which responsible debate about law reform can take place.

Framing

There is also a different way in which debate about the Chief Justice's concerns could have been introduced.

The issues were framed provocatively.

"Why", the Chief Justice asked, "should a jury be denied knowledge that an alleged rapist committed another rape six months earlier?"

The overall impression created was that the issue can be reduced to a contest between "keeping a jury in the dark" versus "trusting the intelligence and wisdom of fellow citizens".

It is not quite that simple.

The High Court - whose decisions must be respected by the Chief Justice, at least when he is in court – has often been called upon to consider these issues.

The benchmark case involved a man called Pfennig.

Pfennig was charged with the murder of a ten-year-old boy who went missing in January 1989. There was evidence that he had been seen talking to the boy at around the time he went missing, but little else to implicate him.

Then, nearly a year later, in December 1989, Pfennig abducted and molested a 13-year-old boy in a different location.

He entered a plea of guilty to charges relating to that abduction, but continued to deny any involvement in the other boy's disappearance or murder.

The trial judge ruled that the jury in the murder trial should hear about the abduction, and the High Court unanimously agreed that was correct.

The law as articulated by the High Court in Pfennig's case applies in Queensland today.

If prosecutors have evidence of prior (or even, as in Pfennig's case subsequent) misconduct, and believe that it is relevant and actually proves something, they can apply to a judge for the evidence to go before the jury.

If juries are "kept in the dark" about such evidence, it is because an experienced judge has ruled, after considering the High Court's decisions, that it is not sufficiently relevant in the circumstances of the case.

However, in the trail of the media blitz, the Courier-Mail reported public support for an alternative approach, based on "the premise that juries be armed with as much information as is available". 

The populist appeal of this pitch is understandable, but its consequences should be understood. There is always a lot of information available, more so now than at any time in history. The law of evidence operates as a filter.  

It is not just irrelevant criminal histories that are caught. For example, it is common now for police to arrange a telephone conversation between a person who claims to have been a victim of a crime and the person they accuse of committing it.

These so called "pretext calls" are made in circumstances where the person accused has no inkling that their responses are being recorded and may be played to a jury.

Confronted with the allegations made against them, they frequently then make admissions that prove their guilt.

However, even in circumstances where they can have no suspicion that they are being recorded, if they make a spontaneous, complete and apparently convincing denial of the allegations being made against them, the jury never gets to hear about it.

It is fair to ask why the "intelligence and wisdom of our fellow citizens" should not be entrusted with this knowledge. It would certainly be of advantage to defendants if they were.

The jury: "He did that, so he must have done this."

It is also open to argue that we should let juries apply their "common sense and general life experience" when assessing the sexual history of a complainant in a rape case.

Why, it might be asked, should a jury be denied knowledge that a woman has consented to intercourse with nine men when they are called upon to decide whether she withheld consent from a tenth?

Would the jury automatically say, "She did that, so she must have done this"? 

Some of us think there is a danger they might, and that to change the rules which keep juries "in the dark" about those things would be a backward step.

I hope these examples demonstrate that this is not a "law and order issue". It is an issue that involves consideration of the law of evidence, which as all law students will tell you is one of the most difficult subjects they study.

It involves intricate concepts that are not well served by debate staged in sound bites, and without a contradictor.

Judges on the stage

Nor does the position taken in the "law and order" versus "civil liberties" debate affect the question of whether the Chief Justice should have made a speech like this at all.

Some years ago a judge made a speech to the National Press Club in which he described anti-terrorism laws as "truly Draconian".

I share that judge's concerns about those laws, but I do not believe that it was right to air that opinion in that forum.

The judge may have been required to interpret and apply those laws in court. The same problem - and it is an uncomfortable one - may confront the Chief Justice if the laws about which he speaks are changed.   

There is another thing that the public should understand about the Chief Justice's opinions.

Notwithstanding his title he does not, like a party political leader, make policy statements on behalf of the entire judiciary.

He is an independent judicial officer, who has been granted judicial power for the purpose of doing justice according to law in a particular case.

To use a judicial position for any other purpose might be thought to be a form of judicial activism, a concept which many deplore.

There is a strong view that those who take judicial appointments must make a decision about the extent to which they engage in such things, and should renounce ambition to voice personal opinions about issues they will confront when performing their public duty.

This thought invites consideration of the views held by other judicial officers who have been granted the same power.

I do not know whether the media will solicit the opinions on these issues from every serving judge in Queensland.

If that happens, I suspect many of those judges would find it intrusive.

However, given the example of the Chief Justice, such approaches would be difficult to criticise.

Of course, it might be simpler if, in keeping with the level of debate thus far, all judges could reduce their contributions to 140 characters, and then post them on Twitter. 

Peter Callaghan SC 

Comments

[Nils Monahan]

The words "alleged rapist committed another rape 6 months earlier" rather confirm the problem, because one cannot use the words "another rape" except by assuming that the instant offence was itself committed, in which case one is not speaking of an "alleged" rapist but an actual one. A Freudian slip by the Chief Justice perhaps.