Australia: Should a jury know only what is said in the court?

A young journalist was recently convicted of sub judice contempt of court and given a good behaviour bond, and her employer fined $300,000 for the extra information she added to her story about a man facing court for murder. (See DPP v Johnson & Yahoo!7 (No 2) [2017] VSC 45.)

The man was facing trial in Melbourne for the murder of his partner, but when the journalist wrote her online story about the case for Yahoo!7, she added material on the man that she had gleaned from his social media accounts and that had not been mentioned in court.

Four days after the journalist posted her unedited story online, the defence protested that it prejudiced the trial. The judge declared a mistrial, as a juror may have read the story and it could have potentially influenced their evaluation of the evidence.

Jurors only meant to know what they hear in the courtroom

The young journalist broke the golden rule not to report anything said in the absence of the jury. She wasn't the first. In 2013 broadcaster Derryn Hinch was found guilty of breaching a court suppression order when he revealed the criminal history of a man accused of committing murder while he was on parole.

Hinch was also jailed in 1987 for revealing the prior convictions of a paedophile priest. Hinch had considerable public support for his action and is now a senator.

However, the law is very strict on this. The jury is not supposed to know anything beyond what the jurors hear in the courtroom. They should not read media reports on the case, and certainly they should not play detective and conduct their own investigations or research. In reaching their verdict, the jury is supposed to consider only the evidence they hear in court.

If an Australian judge heard that a juror had done something similar to what Henry Fonda did in the 1957 movie Twelve Angry Men when he dug up his own evidence, Fonda would be the one locked up.

Should a jury be able to learn more about the accused?

But the laws might change if reforms suggested by the Royal Commission into Institutional Responses to Child Sexual Abuse are adopted. The Commission's proposed reforms would allow more details about an accused person's past – known in law as "tendency and coincidence evidence" – to be put before a jury. (See Evidence (Tendency and Coincidence) Model Provisions, public consultation draft.)

After its long and torrid investigation, the Commission felt that a jury should be able to know more about a person accused of child sexual abuse and be able to hear from previous victims, so that a child abuse case does not come down to just one person's word against another's.

Would changing rules of evidence increase risk of innocent people being convicted?

However, relaxing the rules of admissible evidence could lead to an increase in wrongful convictions. The Commission's proposed law changes would apply nationally to all crimes, not only those involving child sexual abuse.

The jury might conclude that if a defendant has been convicted earlier of a similar crime, he probably committed this crime as well. It has the potential for increasing the likelihood of innocent people going to jail.

The Australian Lawyers Alliance and the Law Society of NSW have expressed similar concerns.

Are we underestimating the jury's ability to assess evidence?

But is it time to ask whether the legal system is underestimating the ability of jurors – twelve citizens chosen at random – to weigh the evidence presented in court? Is it detrimental to the defendant for the jury to be told of their previous criminal convictions? Is it detrimental to the victim for the jury not to know about the accused's criminal past?

It is a question that perhaps should be asked, particularly in cases of child sexual abuse or sex crimes, where there is a high incidence of repeat offending.

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