When police raided a house in a drug case last year, they made a startling discovery. Their suspect was also a jury foreman.
He’d been impanelled with 13 other citizens in the unrelated fraud trial of Sydney underworld figure George Alex.
The fraud trial of underworld figure George Alex was marred by a drug conspiracy involving two jurors. Credit: Dion Georgopoulos
Exchanges on the juror’s phone revealed he’d been conducting his own forbidden research into Alex. Not only that, but the foreman had been discussing selling drugs to another juror, and even the prospect of being paid to ensure a not guilty verdict for Alex.
The entire jury was hauled in for questioning, but the trial – already such a marathon that it required 14 jurors rather than the usual 12 – continued, minus the two jurors caught up in the drug conspiracy.
It’s hardly the first case of jurors behaving badly. There was the Sydney murder trial thrown out after “rogue” jurors planned their own visit to the crime scene and the three-month drug trafficking trial aborted because the defendants spotted jurors playing sudoku in court.
During a recent trial in Melbourne, infighting among the jury was so bad the entire group had to be referred for counselling. Jurors have been sacked for an inappropriate exchange with the accused in court; expensive trials aborted because of everything from wild affairs to a banal Google search.
The high-profile trial of Greg Lynn, accused of murdering missing campers Russell Hill and Carol Clay, had to pause for an entire day last year so the court could determine whether a juror really had fallen asleep. Lynn was ultimately found guilty of murdering Clay but not Hill.
Another double murder trial in the UK unravelled spectacularly in 1994 when it was revealed that the jury, while staying in a hotel to consider their verdict, had secretly consulted a makeshift Ouija board to ask the victims directly who had killed them. (A retrial delivered the same verdict: guilty.)
We have the right to be judged by a jury of our peers. Our justice system is built on the idea that 12 people plucked from their normal lives to weigh the evidence will make a fairer decision about our guilt or innocence than one judge alone.
But when you bring everyday people into a courtroom, “you get what happens with everyday people”, says Melbourne law professor Jeremy Gans, who has written about the Ouija board case. “Inevitably there will be shenanigans. You can’t call a mistrial every time things get strange.”
Greg Lynn was last year found guilty of murdering Carol Clay in the Victorian High Country in 2020.Credit: Jason South
About 10 per cent of all criminal and civil jury trials in Victoria for the past five years have been discharged due to an issue with the jury – from sickness and impanelment problems to interference or misconduct – according to data provided by Court Services Victoria.
Some high-profile cases of late have led to calls from certain quarters for more judge-only trials. There was the ACT rape trial of Liberal staffer Bruce Lehrmann – thrown out because a juror brought in external academic research on sexual assault – and the High Court’s decision to overturn a jury’s guilty verdict against Cardinal George Pell on charges of child sex abuse.
What happens in the jury room ...
The secrecy of the jury room used to carry the same sanctity as the confessional. Jurors are forbidden from speaking about their deliberations, even after a trial.
“They could be tossing a coin, making racist slurs, coming to blows, we’d never know,” says Gans. “Courts were afraid every trial would lead to another trial into what went on during the jury’s deliberations if they didn’t give them cover, total secrecy.”
But about a decade ago, that cone of silence cracked open when a mysterious note from a distressed juror was discovered at the end of a trial in Western Australia.
The juror had been forced to agree with a unanimous guilty verdict, the note read, ganged up on – and even accosted in the private jury bathroom – until he relented. His claims couldn’t be substantiated, but the High Court ruled that jury deliberations could be investigated in Australia.
Once, the key problem was keeping a jury away from the rest of the world – from newspapers and gossip. The OJ Simpson trial in the US sequestered the jury, forcing them to live away from their families, under strict conditions forbidding booze, small gatherings or locked doors, for eight months. (Longer than OJ himself was incarcerated at the time.)
Jurors complained of bullying and infighting during a recent secretive murder trial at the Supreme Court.Credit: Vince Caligiuri
Sequestrations are rarely used now – though an upcoming trial in Victoria is so high-profile that jurors are expected to be sequestered away for the first time in decades.
Today the world is already at a juror’s fingertips, says Melbourne jury researcher Jacqui Horan, and trials need to adapt – giving clearer instructions to jurors and considering the threshold for a mistrial.
Research in the UK and elsewhere suggests a high number of jurors will look up a case online.
“We’re still running trials like we’re in a different century,” says Horan, who has leapt through dozens of bureaucratic loopholes for dispensation to interview more than 100 Australian jurors.
She predicts organised crime and perhaps certain well-resourced defendants will eventually start planting fake information online for jurors to find.
Juror detectives
In Melbourne, specific laws making it an offence for jurors to research a case passed during the terrorism trial of Abdul Nacer Benbrika – and those jurors still got in trouble for it. “Clearly people will break the rules,” says Gans.
Today, two or three spare jurors will sometimes be impanelled for a trial and then dismissed at verdict time. (“It’s not a ‘it’s time to leave the island’ popularity vote, of course,” laughs Gans.)
Occasionally, prosecutors will pursue misbehaving jurors. The Lehrmann mistrial led to a crackdown in the ACT on juror misconduct, most of which is already a criminal offence in Australia.
But a spokeswoman for the Director of Public Prosecutions in Victoria said allegations being made against jurors were still rare. “Our records indicate the DPP has considered only two referrals since 2020, one coming from the presiding judge and the other from Victoria Police,” she said.
Sometimes jurors are just confused about the rules, or not getting on with a fellow juror. Often they are distressed by what they’ve had to listen to, and watch, in court.
The weight of holding someone’s life in your hands is no small thing, says Gans. “They want to get it right.”
Confidential counselling for jurors is offered after deliberations, though technically, they are still not meant to discuss the case.
Horan agrees most jurors want to do the right thing, with a few glaring exceptions. “They’re not being gossipy,” she says. “They really don’t understand things like [proving guilt] ‘beyond reasonable doubt’.
“But they also think they’re detectives, and they’re not.”
Lawyer Peter Schmidt describes jurors who play the gonzo investigator as “the scourge of the courtroom”.
Other experts such as Horan and Gans think jurors should have more opportunity to ask questions during a trial.
“There is a tidal wave of information on the internet, and people will naturally want to use it if they’re still unsure,” says Horan.
Although sometimes, the problem is that there’s too much information. Jurors get bored (and nod off).
“Trials in NSW and Victoria run twice the length of other jurisdictions,” says Horan, who has also studied the art of courtroom persuasion. “When someone’s falling asleep, [lawyers] really need to think about their own culture.”
At other times, such as during recent underworld murder cases, juror concerns about their own safety can derail a trial. Gangland heavies from drug kingpin Tony Mokbel to bikie John Higgs have targeted juries down the years with bribes and threats, even staking out private juror entrances to court.
Courts only carry out rudimentary checks on prospective jurors called up at random from the electoral roll to serve, adds Gans. You can’t be a lawyer or a police officer, for example, and you can’t have been recently convicted of a crime. “But really, jurors can be anyone, even criminals.”
He recalls a strange case in New Orleans, where a jury descended into chaos after it emerged an imposter working for the crook on trial had swapped places with one of the jurors. “They assumed no one would notice,” says Gans. “They infiltrated the jury.”
Still, most experts still firmly believe juries remain an essential part of the justice system, with some countries, such as Japan, now introducing jury models to try to restore public trust.
“When you’ve got a jerk in the jury room, usually other jurors will pounce on them,” says Horan. The 12-person model helps correct for biases such as racism, she argues, and her research has found the make-up of Australian juries generally represent their communities accurately, unlike in the US, though Indigenous Australians are too often excluded.
Still, Horan says sexual assault trials are not working under the current system. “Juries will say, ‘We believe [the victim] but we can’t get to beyond reasonable doubt on the evidence’. But it’s not the juries failing, it’s the system.”
With Erin Pearson
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