What Is Juror Misconduct, And How Does It Impact A Fair Trial?
Juror misconduct halted the recent Bruce Lehrmann sexual assault trial. The entire jury was dismissed, the trial aborted and a new trial was ordered for early next year.
The juror misconduct was discovered when the jury were already deep in deliberations. The fact that this happened was particularly disappointing for many because it caused yet another delay in this case being finalised, after the trial was previously postponed due to extensive media coverage and commentary.
The postponement had occurred after Mr Lehrmann’s lawyers unsuccessfully applied to the Supreme Court for a permanent stay of proceedings. The basis of the application was that, given the media scrutiny that had followed the allegations, including the comments made by TV presenter Lisa Wilkinson during her Logies speech, it would be virtually impossible for the court to find 12 impartial jurors required for a fair trial.
The importance of an impartial jury
In many states, as is the case in Western Australia, defendants in high profile trials can apply to have a judge-alone trial, without a jury. In recent times there have been a number of high-profile judge-alone trials in Western Australia. The State of Western Australia v Lloyd Rayney, The State of Western Australia v Francis Wark, and the State of Western Australia v Bradley Edwards are examples.
However, in the Australian Capital Territory, where the Higgins and Lehrmann case is being tried the law is that sexual assault cases are to be tried by a jury.
In recent times, the issue of juror misconduct has become more common with the proliferation of the internet and social media. Mr Tom Percy QC has previously expressed that "it's too seductive for a [juror] to go home at night and go, 'geez what about this bloke, Bill Smith, I'll just go and Google him'…They find out about him and what he does, they go on Facebook and look him up there and if they don't disclose that... they are armed with knowledge that's not in evidence at the trial that may well be considerable prejudice to the accused”.
What constitutes juror misconduct?
Juror misconduct can take many forms. For example, in 2016 here in Western Australia, a juror was dismissed from a murder trial for posting that the defendants were "guilty" on social media before the high-profile trial had even commenced.
The juror was dismissed and the trial proceeded with a new jury member.
In another example, the trial of Ronald Pennington, 85, who was charged with murder, was aborted after a jury member's girlfriend looked up details of the defendant's past trials and disclosed these to her partner.
In the case of Higgins and Lehrmann, a juror reportedly brought a research paper on sexual assault into the deliberation room. Would this research have been helpful? The answer is a resounding no.
Jurors have an obligation, as directed by the judge presiding at the trial, to determine the case solely on the evidence presented in court. Jurors cannot undertake their own research, or talk to anyone else about the trial other than all of their fellow jurors inside the jury room. Jurors are directed by the court to ignore the media and social media while the trial is underway and while they are deliberating. That is because extraneous information or opinion can potentially ‘contaminate’ a jury's deliberations and the defendant, in these circumstances, will then not be afforded a fair trial.
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