The inappropriate use of social media is compromising the integrity of jury trials, according to a leading barrister.
Peter Lowe, who recently represented Pauline Hanson in a Supreme Court action related to the results in the NSW state election, spoke on the topic of the challenges for the jury system and a fair trial in the 21st Century at a major international conference hosted by the Australian Institute of Judicial Administration Incorporated (AIJA) in Sydney today (8 September).
Lowe said the explosion in the number of social media forums over the past decade can alter the ways juries decide cases and, in some instances, prejudice the results of criminal trials.
"There is currently a class of society who do not really know how to survive without this technology and, when asked that they do not use that technology to search for particular information, find the request quite disconcerting," said Lowe. "To tell anyone from the millennial generation not to retrieve information available at their fingertips is a red rag to a bull."
Lowe went on to provide numerous examples of juror misconduct in cyberspace, including a juror empanelled in a criminal trial in Victoria who posted on Facebook that "everyone's guilty" in the initial stages of a trial. The jury was discharged and the trial judge referred the matter to prosecution.
"The spectre of this form of impropriety is palpable," said Lowe. "There is no guarantee that the information used by an aberrant juror hasn't been placed on the net by the accused ... or through their agent."
Lowe believes that such inappropriate use of the internet can undermine the justice system.
"The issue of digital injustice has the potential to derail the very basis upon which justice is administered, and must, on that score alone, be addressed if the notion of a fair trial according to law is to be preserved."
Warning against over regulation
Even though Lowe cited the abuse of social media as the greatest challenge to the jury system, he warned against imposing strict surveillance measures to ensure jurors are behaving appropriately.
According to Lowe, such measures could change the nature of the criminal trial process to such an extent that it "no longer resembles the instrument by which justice is administered".
"If jurors can't be trusted to do the task that we repose in them and report irregular contact, then why would anyone serve on a jury if they knew that their absolute privacy was going to be invaded? Who would want to serve?" asked Lowe. "Legislation must be introduced to prevent any or all such surveillance."
Lowe said that while there is no uniform legislation in Australia which covers jury impropriety and confidentiality of jury deliberations, there are options available for reform. This includes having a judge retire with the jury to assist them in their deliberations, or the use of a "jury facilitator" to assist in discussions. Such a facilitator would be trained in helping groups reach consensus, but could not offer an opinion regarding the evidence.
Raised in a transcript of Lowe's presentation obtained by Lawyers Weekly prior to his presentation, but not explicitly addressed during his speech, Lowe said one area of reform that should be strongly considered is the taping of jury deliberations. He acknowledged this might be "an unpalatable suggestion", but nonetheless policy makers should give serious consideration to lifting the prohibition of taping jury room deliberations. Currently in Australia, no jurisdiction allows the recording of jury proceedings.
"Such direct evidence would demonstrate whether the presumption ordinarily underpinning juror deliberations -- that they comply with their oath and assiduously follow the trial judge's instructions -- has been complied with and, even if not the case, whether a miscarriage of justice has been occasioned," he said.