High Court warns appeal courts to respect the role of the jury

The High Court has reinstated a murder conviction in the high profile case of Gerard Baden-Clay, confirming an initial jury verdict. Baden-Clay was charged with murdering his wife in 2012 after she discovered he was having an affair. He was tried in the Supreme Court of Queensland in 2014. The jury convicted him following a hearing that lasted more than a month, and he was sentenced to life imprisonment. Baden-Clay appealed the jury verdict, arguing that it was “unreasonable, or can not be supported having regard to the evidence”.

During the appeal, Baden-Clay’s lawyers argued that the jury could not rule out the possibility that their client had an altercation with his wife and accidentally killed her. This would mean they could not find, beyond reasonable doubt, that Baden-Clay had the required mens rea for murder (that is, intention to kill or seriously injure the victim). The Queensland Court of Appeal accepted that argument and substituted a verdict of manslaughter.

The prosecution then appealed this decision to the High Court, arguing that the murder verdict should be reinstated. They said that while “the defence offered theories of suicide, overdose, a fall, drowning and alcohol as the cause, unintended or accidental killing by Mr Baden-Clay was not offered during trial”. In fact Baden-Clay had chosen to give evidence and denied any involvement with his wife’s death, which would rule out accidental death.

The High Court agreed with this argument. In the unanimous judgment of five justices, it found that Baden-Clay had chosen to testify that he had not had a physical altercation with his wife, and therefore “the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.” The jury could logically exclude the accidental death scenario, which meant their guilty verdict was not unreasonable.

Importantly, the High Court gave a strongly-worded warning that overturning a jury’s verdict should not be done lightly: “Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … [A] court of criminal appeal is not to substitute trial by an appeal court for trial by jury.”

While the issue in this case was the concept of an “unreasonable” verdict under s 668E(1) of the Queensland Criminal Code, the High Court’s comments will be relevant in other jurisdictions. For example, the Victorian Criminal Procedure Act 2009 includes a similar rule for appeals in s 276(1)(a): the Court of Appeal “must allow the appeal against conviction” if the court is satisfied that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence” — in other words, if the appeal court agrees that the jury reached an impossible verdict based on the evidence presented at the trial.

The High Court has made it clear this power to overturn a jury verdict should only be exercised cautiously.

Bias concerns force Qld Chief Justice to withdraw

Turmoil in the Supreme Court of Queensland continued yesterday, with Chief Justice Tim Carmody dramatically withdrawing from a case, and the President of the Court of Appeal Margaret McMurdo declaring she “cannot sit with him again on any court.” The Chief Justice’s appointment was controversial from the outset, with senior lawyers and judges expressing concern that he is politically biased and underqualified for the the role. Those concerns have not subsided.

Retiring Justice Alan Wilson gave a speech accusing Carmody CJ of calling other judges “snakes” and “scum”. The speech also condemned his work ethic: “The Chief Justice has not sat in an actual hearing since the 15th of February this year. He has withdrawn himself from all published court calendars so nobody knows when or whether he intends sitting again.” In response, Carmody CJ sought to prove he had a busy schedule by publishing his calendar of engagements.

This revealed he held a private meeting with child protection campaigner Hetty Johnston in April. At the time, he was one of three judges considering an appeal by Brett Cowan over his sentence for the rape and murder of 13-year-old Daniel Morcombe. In the wake of Cowan’s conviction, Johnston spoke to the media arguing that he “should not be released”: “These offenders are released from our courts on a daily basis and it must stop.” Her organisation, Bravehearts, formed a partnership with the Daniel Morcombe Foundation.

When McMurdo P discovered the meeting, she became concerned about the possible perception of bias, and asked the Chief Justice to disclose the meeting to the parties. An exchange of letters between the court and the lawyers followed, and ultimately Cowan’s legal team argued that due to the perception of possible bias, Carmody CJ should withdraw from the appeal bench. He told them they would need to be “armed to the teeth” to remove him, so they argued he should not make that decision himself as he appeared to have prejudged the matter.

At that point, Carmody CJ called a mention hearing and announced that while the application was “unmeritorious … it is in the best interests of this Court and overall public confidence in the administration of justice that I withdraw instead of prolonging this bizarre sideshow”.

He also released further correspondence that showed the depth of disagreement within the Court. McMurdo P said she was “deeply concerned” about the meeting with Johnston; Carmody CJ said his colleague’s investigation of the matter was an “exceptional interference with the ordinary judicial process”. Ultimately McMurdo P wrote to the Court registry: “I regret to inform you that following an extraordinary memorandum yesterday from the Chief Justice in relation to R v Cowan, I cannot sit with him again on any court. Please ensure in future that I am not listed to sit with the Chief Justice.”

The Court now needs to decide whether the remaining two appeal judges can deliver their decision, or if the appeal needs to be heard fresh by a new bench. The family of Daniel Morcombe are understandably upset by the delay and uncertainty; however, given the concerns about perceptions of bias were shared by lawyers and the President of the Court of Appeal, it is important that they be carefully addressed: “Not only must Justice be done; it must also be seen to be done.”

Judge threatens age-old punishment for wordy lawyers

Sir James Munby, President of the Family Division of the UK Royal Courts of Justice, has issued a scathing judgment criticising lawyers who ignore court limits on the length of pre-trial documents. In Re L (A Child), 989 pages of documents were filed, far more than the 350 page limit set by the Court rules. After reviewing the case the judge determined that only 51 pages of the documents were essential for the hearing. His Honour wrote: “The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats.” He threatened to impose “financial penalties” and “public condemnation in judgments in which they are named”. If they failed to work, “delinquents will be summoned to explain themselves in open court”. The courts’ frustration with excessively prolix lawyers has a long history, and fines and public shaming are some of the oldest punishments. In the 1596 case of Mylward v Weldon, a solicitor prepared a 120 page document that could have been reduced to 16 pages. As punishment, the English Court of Chancery ordered a prison warden to “cut a hole in the myddest” of the document and “put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward”, before parading him before all of the Courts at Westminster Hall while they were sitting. He was then to be imprisoned until he paid a substantial fine. Plus ça change…

Review to question police veto over diversion

Chief Magistrate Peter Lauritsen has launched a review of the Criminal Justice Diversion Program, which allows people to avoid being prosecuted for a minor crime if they agree to participate in a program. The program was last reviewed 10 years ago, shortly after it was introduced, and the recommendations at the time were about improving awareness of the scheme. This time, a key issue that will be considered is whether “discussions about whether an offender should be placed on an order often occur behind closed doors without the oversight of a magistrate”. This is because under s 59(2)(c) of the Criminal Procedure Act 2009 (Vic), diversion is only available when “both the prosecution and the accused consent”, and some lawyers complain that police veto their requests for diversion before the court has a chance to consider them. In 2011-2012, Deputy Chief Magistrate Jelena Popovic travelled to eight countries to study their approaches to low-level offenders. In addressing diversion, she recommended that “the views of apprehending police officers … be ascertained and taken into account by judicial officers, but the police veto be removed”. In related news, the new Labor Government has committed to keeping the previous Liberal Government’s Youth Diversion Pilot Program in the Children’s Court, which is expected to begin later this year.

Grand juries in Missouri and (formerly) in Victoria

Protests have again erupted across the US, after a grand jury decided not to indict a white police officer over the shooting of an unarmed black man, Mike Brown, in Ferguson, Missouri. The grand jury process in Missouri requires 9 of 12 jurors to agree there is “probable cause” to indict the accused. This is similar to a committal in Victoria, in which a magistrate determines whether a prima facie case exists prior to the preparation of an indictment. Critics of the US grand jury system point out that they almost always result in prosecution—except when the accused is a police officer. Historically, Victoria had a very different grand jury system. Instead of weeding out weak cases, it was intended to ensure prosecutions could go ahead. Indictable prosecutions were brought in the name of the Attorney-General—a politician. To ensure that political corruption did not prevent prosecutions, private citizens could call for a grand jury of “not less than twenty-three men” to decide if the accused should be committed for trial. It was used 10 times before the independent DPP was established in 1983, removing the Attorney-General and the risk of political corruption from the process. The Victorian grand jury process was then effectively obsolete. Nevertheless, conspiracy theorist Brian Shaw was declared a vexatious litigant after unsuccessfully filing applications to summon more than 40 grand juries between 2001 and 2007. The grand jury process was then abolished by the Criminal Procedure Act 2009.

Is courtroom architecture unfairly biased?

A NSW legal researcher is questioning whether Australian courtroom architecture is unfairly biased against the accused in criminal trials. In 2011, Professor David Tait wrote an article for the Chicago-Kent Law Review called Glass Cages in the Dock? Presenting the Defendant to the Jury, in which he considered the history of the dock—the area where the accused sits during a trial. In the US, the dock has been regarded by courts as inappropriate, in part because it may prejudice the jury by making the accused look guilty or even dangerous. In Australia, the dock has been maintained as a tradition inherited from England, but in 2007 a judge ruled that a perspex screen around the dock “materially diminish[ed] their right to the presumption of innocence” and ordered it be removed. However, in his article Tait observed there was “a lack of empirical evidence” to guide judges about how jurors would react to different dock arrangements. To solve this problem, Tait and his team at the University of Western Sydney set up an experiment—they ran the same mock trial before 100 juries: “The only difference in the cases, performed by actors, will be that he accused is either behind glass, in a traditional dock or at the bar table next to their lawyers.” The results of the experiment showed the accused’s seating arrangement may have a significant impact on the outcome of the case: “When the glass dock was used, 60 per cent of jurors delivered a ‘guilty’ verdict, compared to 47 per cent for the open dock and 36 per cent for the bar table.”

Chief Justice calls for inquisitorial approach

In a speech given to the Victorian Bar & Law Institute Joint Conference, Chief Justice Marilyn Warren has called for lessons to be learned from the inquisitorial legal systems of Europe: “It is an adversarial setting that we live and breathe every day. What we need to do is to find ways to dilute, vary and soften the impact of the adversarial setting. We might learn from the European experience where judges very much control the litigation. … If we learn from the European experience trials would be shorter and costs may be a fraction what they are now.” Her Honour argued that creativity and cooperation between the courts and the parties could yield significant benefits. Citing a dispute involving 1600 closely connected cases, she noted that the judge worked with the parties to develop a template for identifying issues. As a result, “his Honour was able to conduct a directions hearing for about 150 separate pieces of litigation in a single morning by 11:30am. Justice Judd was able to achieve this because of the approach he took… but also, importantly, because of the cooperation of the parties.”

Legal costs in County Court civil trials increased

As of 7 October 2014, an amendment to the County Court Civil Procedure Rules 2008 has increased the amount lawyers can charge for preparing and running cases. The County Court will no longer maintain its own scale of costs; instead, it will set rates at 80% of the Supreme Court scale. As barrister Paul Duggan explains, “Under the former County Court scale, a solicitor’s time was allowable at $277 per hour for attending a conference… That same solicitor’s time under the new County Court costs regime is now worth $296 per hour (ie 80 per cent of the Supreme Court rate of $370 per hour).” Another significant changes mean that costs will be determined on a new “standard basis” rather than the traditional “party-party” basis. This reflects a change made in the Supreme Court last year, and essentially means costs will be awarded not just for work that is “necessary”, but will also include work that is “reasonable”. Winners will recover more of their costs, which may be fairer—but the risk of paying more if you lose your case can nevertheless be a barrier for less wealthy plaintiffs.

Blogging Justice predicts Supreme Court digital shift

As part of its new website, the Supreme Court of Victoria has launched launched a weblog. The first substantive post is from Justice Jack Forrest of the Trial Division, who predicts a number of changes in court procedure in coming years. Of note is the emphasis on digital documents: “an online filing system called ‘RedCrest’ … is being rolled out in the Commercial Court. … Hopefully, it will reduce the size not only of solicitors’ paper files, but also of briefs provided to counsel. Furthermore, it will make life much easier for court staff, counsel and solicitors alike by allowing them to search electronic databases quickly and effectively”. In addition, Justice Forrest remarks: “Any case involving five or more folders of court documents will be required to be run as an e-trial—at least for those cases before me.” Other predicted changes will focus on narrowing the issues in dispute as soon as possible: “The days of trials proceeding by attrition are gone. Practitioners should expect the courts to take a grim view of unnecessarily adversarial conduct.”

High Court excludes “body mapping” evidence as unscientific

In June, two academics from the Sydney University claimed that “too much weak, speculative and unreliable opinion is allowed into criminal proceedings”. They said Honeysett v The Queen was “an opportunity for the High Court to provide critically important guidance on the admissibility of expert opinion evidence in criminal proceedings under the now (almost) Uniform Evidence Law (‘UEL’)”. The High Court handed down its ruling this week. Under the UEL (which includes the Evidence Act 2008 (Vic)), expert opinion is admissible as evidence as long as it is based on specialised knowledge. In Honeysett, a professor of anatomy compared CCTV video to photos of the accused. The High Court ruled this so-called “body mapping” was not based on expertise: “his conclusion that Offender One and the appellant each have oval shaped heads … was based on Professor Henneberg’s subjective impression of what he saw when he looked at the images”. This was a comparison the jury could make for themselves. Furthermore, presenting “body mapping” as expert evidence could mislead the jury: “the use of technical terms … gave the unwarranted appearance of science to the prosecution case” and was unfair to the defendant. The High Court ordered a new trial.