Courts, juries and the media

The Press Council's Chairman, Professor Ken McKinnon, looks at what a recent Appeals Court decision says about the relationship of judges to juries and to the media.

The mantra of 'the rule of law' obscures the fact that no amount of law can assuredly deliver justice free of the risk of prejudice. Courts apparently accept without question that media publicity might prejudice trials and that juries might be prejudiced by media reports. Judges' prejudices about juries and the media might affect trials more.

Two judges' conclusion that what was published by the media certainly prejudiced the jury was the real basis of the recent Appeals Court majority decision in overturning the jury verdict in the rape case known as Regina v Tayyeb Sheikh. Justices Mason and Wood, forming the majority, after pointing to a problem resulting from an inane decision to run a second related trial overlapping with the first, with the second commencing before the imminent jury decision was announced in the first, wrote that the core of their decision to overturn was the inescapable and obvious prejudicial effect of the publicity from the first trial on the decision of the second trial jury. Justice Sully, in the minority, saw the argument for prejudicial effect as "unsubstantiated speculation".

Paul Sheehan's vitriolic attack on the decision (Sydney Morning Herald, 8 March 2004), former judge David Hunt's predictable defences (Sydney Morning Herald, 12 March 2004) and Sheehan's further comments (Sydney Morning Herald, 15 March 2004) are not the whole story. The Press Council believes there is room for better testing of what was said in the judgment about the effect of media reports of the trial on jurors.

A quick Google search suggest that there has been a centuries-long struggle by courts and judges to wrest power from juries. Judges clearly think they make better and more reliable decisions. There was even a fairly recent unsuccessful move in NSW for the abolition of juries in certain cases. But remembering that the first juries were made up of people who either knew the defendant or the victim/plaintiff or had been witness to the event, the overturning of a jury decision on the grounds of prejudice arising from media publicity ought surely to be governed by some evidence.

At the heart of the Appeals Court judgment was the assertion that

appellate courts have a power to set aside a conviction in an extreme case if the trial has miscarried because of the atmosphere of external hostility in which it was conducted. Justices Mason and Wood find this was such a case ...

The majority judgment said that the directions given to the jury in the trial did not remove the prejudice from extensive media comment to a degree that enabled the majority to be confident that the trial was not compromised.

The feelings of anger, revulsion and general hostility ... that emanated from the media coverage of the earlier trial would have lingered heavily in the atmosphere of the appellant's trial. Its fairness and the appearance of its fairness were undermined to an unacceptable degree due to the unnecessary decision to direct back-to-back trials.

Media comment was evidently the demon. But is saying "would have lingered heavily" more than simply an assertion?

David Hunt put the mind-set of judges very clearly in saying,

Even judges who are trained to ignore extraneous prejudicial material have to exercise great care in doing so. For jurors, who have no such training, it is obvious that there will be cases where the extraneous material is so overwhelming that they could not be expected to disregard it, and such a trial will inevitably be compromised ... This is not an assertion of distrust in juries, merely a commonsense recognition that in some cases a jury will be unable to ignore such extraneous material.

Jurors can't, but judges can! Is this touch of arrogance well founded?

The courts have not allowed much research about jurors' behaviour, but what exists is potent. It does not support either the reasoning of the Appeals Court majority or David Hunt.

In a 2001 NSW study, Chesterman, Chan and Hampton found that

... jurors overall are not likely to recall pre-trial specific publicity;

and

... while juries are quite likely to seek out reports of the trial itself they are generally not vulnerable to influence from biased or incomplete coverage, because they perceive these defects;

and jurors saw no reason to

... pay any heed to the reports because they were better placed to know and understand the proceedings. They said variously that they were amused or angry at the poor quality of the reporting. (p93)

Similarly a 1999 study in New Zealand for the Law Commission by Young, Cameron and Tinsley said (paras 7.51-7.55) that the impact of pre-trial publicity is

... in almost all cases minimal [because] very few of the jurors knew anything of the case (despite the sample being high profile cases) at all beyond a hazy recollection of the bare essentials.

Any who did, made a deliberate effort to put them aside and make a decision on the evidence alone.

... most of the jurors who did see or hear media coverage during the trial said that they put it aside because it was partial and often inaccurate. They saw the coverage as an illustration of poor media standards, and regarded themselves, perhaps a little smugly, as being much better informed than the media about what the true story was.

As Lord Devlin a famous Master of the Rolls in The United Kingdom said about the integrity and commonsense of the jury; "A little parliament...the lamp that shows that freedom lives" (quoted in Fitzgerald and Maurice, 1983).

Judicial views on the impact of media reports on jurors are clearly overdone, probably part of a general disdain for the media among at least a proportion of judges - including at least one High Court judge. What bothers the Press Council is that the democratic right of citizens to be informed via the media is increasingly likely to be eroded by that mindset, leading as it obviously does to this Appeals Court decision. And to an increasing tendency for courts and tribunals to issue suppression orders preventing, or at least delaying, media reporting of cases of public interest.

It is fair enough for the press to get a pasting for allegations of erroneous, unbalanced or unfair reports. The Press Council deals successfully with complaints of that kind every month. And it accepts the evidence from the two research studies that indicate that reporting of court cases should be improved.

That said, is it a vain hope that the judiciary should reflect on the possibility of unexamined prejudice, on judicial attitudes to the objectivity and wisdom of juries, and on judicial attitudes to the public's right to know?

The Press Council thinks the present case illustrates exceptionally well that the freedom of the media to report courts should not be suppressed except in the most extreme of national security cases. Nor should jury decisions be overruled because judges assume that jurors are uniformly naive, malleable people, significantly biased by prior information and incapable of objective decisions.

Justice should be by and for the people.

Professor Ken McKinnon

see also
Material on courts and contempt

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