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The jury system works well when jurors respect the rules. But whether there are clean hands among the media personalities who have inserted themselves into the story, time will tell, writes Mark Sawyer.

The discharging of the jury in the rape trial of Bruce Lehrmann made October 27, 2022, a black day for Australian justice. The cost of the aborted trial runs into the millions, notwithstanding the prolonged anguish it has caused accuser and defendant.

Lehrmann has pleaded not guilty to the charge of raping a fellow political aide, Brittany Higgins, in an office at Parliament House, Canberra, in a case which has drawn saturation media coverage.

The presiding judge, ACT Chief Justice Lucy McCallum, dismissed the jury after it was discovered one of them brought information into the jury room which had not been presented during the trial. “It is beyond question the conduct of the juror is such as to abort the trial,” she said.

Contrary to her directions to the jury not to undertake their own research, the chief justice said three academic papers which had not been presented in court had been inadvertently discovered among one of the juror’s notes.

A system under scrutiny

It is at these times that the validity of the jury system, an inheritance of British law, comes under its harshest scrutiny. The Lehrmann trial had run 12 days, with five days of deliberations. Not only has there been a massive waste of public money, but the participants are now forced to relive the matter. Higgins was clearly distressed when she addressed the media after the trial was aborted, and Lehrmann’s life is on hold until the expected retrial in February. There are no winners.

Brittany Higgins responds after trial ends

It’s not the first time the conduct of an Australian jury has come under an unwelcome spotlight, and that’s not just the verdicts that were overturned, such as the conviction of Lindy Chamberlain for murdering her daughter Azaria. In the 1990s, a juror failed to disclose his personal and political links to former Queensland premier Joh Bjelke-Petersen, who was on trial for perjury. Florence Bjelke-Petersen later said “they would have plonked” her husband in jail if not for that errant juror.

And with the latest fiasco, it is natural at these times to question whether the ancient system of judgment by our peers has reached its use-by date. After all, we now live in the age of the specialist, the degree-qualified expert, not the gifted amateur. And if a juror indulges in some amateur sleuthing, the structure can collapse alarmingly fast.

It might be reassuring to note that there is another, much more positive side to the institution of the jury.

Based on my experience of a long trial, I have nothing but praise for the system. The worst that could be said is that the biscuits supplied by court officers were a bit on the bland side and that the coffee came in packets. If my experience is any guide, the jury part of the system at least is functioning well and serving the people as well as could be hoped.

Serious people, unserious people

The case on which I was a juror involved actions by a person in authority against children decades ago. The trial was something of a marathon, but the jurors did not flag. Even before the deliberation process, my fellow jurors gave every indication of being seriously committed to ensuring the right and fair outcome.

They discussed alternative scenarios and rigorously examined inconsistencies. I lost count of the number of notes requesting information and clarification that we sent to a seemingly appreciative judge. Our folders grew fat with our copious notes, some of which served as case summaries during deliberations. We only slackened in our note-taking in the final week of the trial when we were assured that the summaries of Crown and defence would be made available for our deliberations. And even then, some of us kept up the vigorous note-taking.

To my mild surprise, I found myself thinking that we brought greater inquisitorial rigour to our task than do half the interviewers and talking heads that float across the airwaves of the ABC. I remembered the quote by American political commentator William Buckley:“I would rather be governed by the first 2000 people in the telephone directory than by the Harvard University faculty.”

That’s not how one disgruntled juror, from another trial, sees it. ”Silvia” was disgusted by the antics of her fellow jurors, who she believed did not take the case seriously and never considered anything but a not-guilty verdict.

A man had been grievously wounded after falling from a balcony during a drinking binge. His friend, the accused, was acquitted of all charges relating to the matter.

It left Silvia with a sour taste because so many of her fellow jurors adopted such a jocular attitude to a boozing mishap. ”They even wanted to bring alcohol into the jury room. One said it would loosen me up and make me see the logic of their argument.”

Silvia doesn’t agree with the British system. ”I come from a European nation where the Napoleonic Code applies. Trials should be decided by judges, who are trained in all legal matters.”

The juror who caused the Lehrmann trial to be aborted may now be feeling the hot breath of shame on his or her neck. And for what? My perception of jury duty is that it was the first ”job” that I didn’t take home with me. As soon as I took off my numbered tag and exited the court complex, I was under no expectation to give the matter even a moment’s thought. For jurors with busy lives, that might be a rare feeling of liberation.

No place for amateur sleuthing

During our trial, I heard an ABC radio program in which journalist, Louise Milligan, who has become a prominent chronicler of sex-abuse cases in the Catholic Church, denounce the way such cases are tried. She suggested that prosecution witnesses be granted their own legal representation, because the prosecution does not represent them personally. That idea deserves consideration.

Nonetheless, in most cases, jurors are a strong and functioning pillar of the system. Most of the Lehrmann jurors have clean hands. Whether there are clean hands among the media personalities who have inserted themselves into the story, time will tell.

As ”my” trial approached 10 weeks, my colleagues continued to attack the manifold dilemmas of the evidence with thoroughness. The younger women on the jury were especially impressive in their thoroughness, and willingness to lead the process, commandeering a whiteboard and marking notes in the big folders containing transcripts of the trial.

My advice to jurors is: forget the amateur sleuthing and enjoy a very different aspect of community life. If nothing else, the jury room is a great place during court lulls to catch up with that book you have always meant to finish.

As soon as I was thanked by the judge and packed up my belongings, I was already yesterday’s thing for the legal system. Oh well, that IS the system. The jury had done its job, and we all went back to our lives. I was left  proud of my small role, and proud of my fellow jurors.

Media silence urged on Lehrmann rape trial

Mark Sawyer is a journalist with extensive experience in print and digital media in Sydney, Melbourne and rural Australia.

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