1×03: The Antiquity of a Prejudice is No Reason for its Survival

In this episode, I’ll talk about an issue that has been bubbling away on the political agenda for a very long time now: should two people of the same sex have a legal right to be married in Australia? How have other countries come to legalise same sex marriage, and what is the current status of the debate in Australia?
Continue reading “1×03: The Antiquity of a Prejudice is No Reason for its Survival”

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.

Police Minister steps down, highlighting vicarious trauma

Victorian Police and Corrections Minister Wade Noonan has stepped down from his role for three months. He said he needs a break from the job because of the psychological impact it has had on him. He explained, “It has been difficult to cope with the constant exposure to details of unspeakable crimes and traumatic events that are an everyday part of my role and the accumulation of these experiences has taken an unexpected toll.”

The issue of the exposure of people involved in the legal process to gruesome details of crimes has also been raised recently as a result of the sentencing of Matthew Graham, a 22-year-old Melbourne man who was responsible for websites sharing photos and video of the sexual abuse, torture and killing of children.

The prosecutor asked the County Court judge to view some of the worst videos: “It is with a great deal of regret that I urge your honour to view the material. Seeing it brings it home in a much more realistic and tangible way. It is probably one of the worst things you could see.” In April last year, the County Court recognised the psychological harm caused to judges and court staff who are required to observe traumatic evidence, and engaged five psychologists and psychiatrists to build judicial resilience.

Other participants in the system can also be affected. For instance, the Victorian Juries Commissioner recognises the potential for vicarious trauma, and after the trial jurors can access psychological services. Adrian Lowe, who spent four years reporting on crimes for The Age, said he asked to be assigned to different duties because he was being affected by the work, but that he still suffers the consequences: “It has been almost four years since I left the court round. The nightmares, flashbacks and visions have continued, fortunately with less frequency as the years pass.”

The issue can have an impact on the effectiveness and fairness of the legal system. In January, the ABC’s Law Report looked at how interpreters are affected by translating the details of evidence. A survey of 271 qualified interpreters found that “a quarter of respondents … said that they continued to feel traumatised for some period after and that they would choose to avoid those types of assignment in the future”. This can mean that it is hard to find appropriately qualified interpreters to deal with traumatic cases.

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.

Law Report focusses on unrepresentative juries

ABC Radio National’s Law Report this week focussed on the representativeness of juries. The first segment looked at the tactic of “black striking”, in which American lawyers try to remove African American jurors: “African Americans are three times more likely to be cut than white Americans”. Next, it turned to Alice Springs, and an NT Law Reform Committee report which acknowledged under-representation of Aboriginal people on juries was “clearly an affront to the principle ‘equality before the law’, a principle accepted as basic to this nation; the more so when translated into equally basic Australian such as ‘mateship’ and ‘fair go’.” It concluded, “There is no magic wand to be waved, no miraculous incantation to be pronounced… One must descend into the harsh world of reality and practicality; and that points inevitably to the obvious and comprehensive but long-term solution; education.” In the final segment, the chair of the VLRC explains its recent recommendation that peremptory challenges should be scaled back to prevent gender discrimination.


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.

Deaf jurors in mock trial experiment

Researchers at the University of NSW will conduct a mock trial this week to investigate the practicality of allowing deaf people to serve as jurors with the assistance of Auslan interpreters in the court and during deliberations. Professor Sandra Hale noted that “other countries already have them”, and said the trial would “find out what impact having a deaf juror in the deliberation room and the trial will have on the rest of the participants”. The Australian deaf community has been lobbying and running test cases for the right to participate in jury service. In 2006, the NSW Law Reform Commission recommended that “people who are blind or deaf should be qualified to serve on juries, and not be prevented from doing so on the basis of that physical disability alone”; instead, a decision should be made on a case-by-case basis. The Victorian Law Reform Commission is currently conducting an inquiry into jury empanelment, but it observed that “Issues associated with the eligibility of [deaf] persons to serve on juries are beyond the scope of the Commission’s terms of reference.”

VLRC considers Qld-style juror questioning

A Queensland judge has approved a series of questions to be asked of potential jurors in the trial of a man accused of murdering his wife. Before they are empanelled, they will be asked whether they lived near the family, whether they contributed to a fund to help find the killer, and whether they have ever expressed a view about the case. Queensland is the only State in which pre-trial questioning of jurors is allowed; however, as part of its inquiry into Jury Empanelment, the Victorian Law Reform Commission asked, “Should the judge or the parties have the ability to question prospective jurors to determine their impartiality in certain circumstances?” The VLRC’s final report was due on 31 May, and will be made public after it is tabled in parliament.

Jury directions just not cricket

A fresh trial has been ordered in a Queensland rape case, after the trial judge explained the concept of “beyond reasonable doubt” using an LBW cricket analogy: “if you’re not sure that that ball is really going to hit the stumps or whether there’s some element of doubt about whether the ball pitched in line or not, you have to give the benefit – the umpires have to give the benefit of the doubt to the batsman. And that’s the thing about criminal trials; the benefit of the doubt goes to the defendant.” The Supreme Court of Queensland Court of Appeal held that the analogy was misleading, and that it might have given cricket fans on the jury a disproportionate influence. In Victoria, judges are guided on this point by sections 20 and 21 of the Jury Directions Act 2013, which was passed in response to a VLRC inquiry.

Jury asks judge about self-defence, acquits abused husband

A Supreme Court jury this week acquitted Phillip Bracken of the murder of his partner, accepting his claim that he shot her in self-defence after enduring years of abuse. The prosecution argued that shooting the unarmed woman was a “plainly disproportionate” response to her coming towards him. After days of deliberation, the jury asked Justice Maxwell to clarify the law of self-defence. His Honour explained that the key question was whether the accused had “a belief that what he did was necessary even if he is responding to a harm that is not immediate.” The jury was entitled to take into account the “cumulative effect” of years of emotional and physical violence in deciding the issue.