On articles of faith

Shortly following your admission as a barrister and solicitor, just after you sign the roll, you’re invited to drink a cup of Kool-Aid.  Once you imbibe, you find yourself believing in certain foundational myths of the legal system.  Things like witnesses draft their own affidavits, and sailing trips for judge and counsel are just fine.

There are good reasons for these myths.  Any system works best when everyone speaks the same lingo and believes the same things.  Outside the academy, I don’t know if the law goes in much for denominationalism.  God knows the law loves its legal fictions.  But a straight legal fiction is not really what I’m talking about.  Everyone knows a corporation isn’t really a person, and the sky won’t fall in if you say this to someone else.  I’m talking about legal fictions that everyone has to believe because without the belief the system stops working.  The sort of ur-fictions that seem like they’re enforced by a Stonecutter-esque secret society dressed in robes (possibly a poor metaphor given how commonplace be-robed elitism is in the law).

All of which preamble serves to underscore the heresy reported in a story this week about a murder trial in Palmerston North.  During his evidence, a Crown witness blew the doors off his witness protection and admitted he could not have heard key evidence he purported to give.  That was reported very well in this story by Jono Galuszka.  Following that, both the Crown and defence agreed that the witness did not warrant further name suppression (subject to maintaining secrecy of witness protection arrangements).  The media would be free to report on the wheels coming off mid-trial.

The trial judge – Ellis J – opted to continue suppression of the evidence.  Her Honour’s essential reasons are below:

The part that caught my attention was that Ellis J was “not prepared to proceed on the basis that all jurors will have managed (or will continue) to comply” with the standard judicial direction not to read media reports.

“Juries will obey judicial directions” is one of the core foundational beliefs in the legal system.  So much of our jury trial system depends on that statement being true.  And the fact it might not be true is intensely problematic.  Because if it’s not true then how do we know juries might not Google things?  How do we know juries are applying the right standard of proof?  How do we know jurors aren’t discussing the case at home each night with their flatmates?  Do we admit to ourselves we leave a case in the hands of twelve people who might be deciding a case however they want?

The solution of the legal community presently seems to be to simply believe really really hard that it’s true.  So when Moore J considered whether to make media take-down orders in R v Tarapata [2017] NZHC 3209 at [43]-[48] his Honour decided:

[43] … I must be satisfied that a real risk exists despite the direction I gave the jury that they were not to undertake any inquiries of their own including internet searches.

[44] This is not a notorious case such as Bain or Lundy . It is unlikely that any members of the jury would bring to their role a residual memory or knowledge of Mr Tarapata or the events in 2014 and the media coverage of his first trial. Thus the issue is whether I should make the orders solely to prevent jurors from undertaking a course which I specifically directed them they must not.

[46] … the primary question here is whether there is a real risk a juror or jurors may ignore my direction. If risk to that level is made out I accept Mr Tarapata’s fair trial rights would be adversely affected for the reasons identified by Mr Krebs.

[47] Thus I return to the primary question which is whether I am satisfied there is a real or substantial risk a determined and irresponsible juror might undertake their own internet inquiries.

[48] On that point I agree with Lang J’s reasoning. The posted stories and articles in question would not be in the public consciousness. To access articles on the internet a juror would have to actively search Mr Tarapata’s name or those of his victims. Given my firm direction I regard that as a remote possibility.

In R v Rewa [2018] NZHC 1846 at [67] Venning J dismissed concerns that jurors wouldn’t put from their mind any previous publicity:

[67] In my judgment and experience jurors take their responsibilities which they solemnly confirm by the oath or affirmation to try the case on the basis of the evidence very seriously and abide by the trial Judge’s directions. The structure and formality of the trial processes and courtroom setting, all of which are completely new to the jurors and well outside their general experience removes them from day–to–day life and enhances the likelihood they will follow and adhere to judicial directions. Judges’ collective experience is that almost all jurors approach their task responsibly. Trial judges will all have experienced the nods of assent from jurors when the judge explains why they must not be influenced by media reports, or why propensity evidence is to be led and how it may be used for example. Jurors well understand the concept of fairness. Experience shows that jurors become engaged in the trial process to the exclusion of other considerations and particularly so when the trial runs for a period of weeks. 

And Winkelmann J (as she then was) in R v Bailey HC Auckland CRI-2007-085-7842, 23 April 2010 at [67] stated:

[67] Trial judges regularly express confidence in the efficacy of judicial direction. These are not expressions of wishful thinking, but reflect the common experience of the trial Judge that juries do follow judicial direction. Judges are able to measure the efficacy of judicial direction in the verdicts delivered by juries who, by their verdicts, show that they have understood and followed directions, including those as to prejudice and the proper use of evidence.

I digress briefly to say that, of course, this presupposes that juries have in fact been directed on what to do.  In one of my very few trials the jury didn’t like the bathroom facilities supplied to them.  Over the course of their deliberations they started ducking out of the jury room to use the bathrooms in the public area of the Court, where they ran into members of the press bench.  A slightly bemused Lang J had to call the jury back in and (in what was no doubt a high point in his judicial career) directed the jury on which bathrooms they were to use.  To my knowledge, once directed, they obeyed.  I am unsure whether this direction now forms part of the standard directions in the bench book.

Returning to the point, though, the near-uniform approach of the bench has been to insist juries will follow directions.  Whether that’s a case of putting one’s fingers in one’s ears, closing one’s eyes and saying very loudly “LALALALA I can’t hear you”, I’m not sure.  But at least one judge isn’t buying it.  The Palmerston North murder trial isn’t the first time that Ellis J had expressed doubts.

In R v Lyttle [2017] NZHC 2426 (not on NZLII) Ellis J made a take down order for online media articles.  Her Honour reviewed empirical evidence that showed that – at least in respect of internet searches – jurors do not always follow judicial direction.  That evidence operated as one factor (among others) justifying the take down order (at [19](d)):

notwithstanding the truth of the proposition that faith in the jury system is necessarily predicated on the assumption that jurors will comply with judicial directions, there is empirical evidence (which was not before the Courts in Lyttelton) that strongly suggests that that is not always the case in relation to internet searches…

Sssshhhhhhhh!!!

I guess it’s too flippant to suggest that all this makes Ellis J the Lloyd Geering of the High Court bench.  Her Honour’s approach relies on overseas and Law Commission research for the point she makes.  And the empirical evidence is so far only focused on making one’s own media enquiries.  But it’s an uncomfortable intrusion into the accepted wisdom that juries will follow directions.  An uncomfortable intrusion that makes a very good point and makes me miserable at having to cast-off comfortable accepted wisdom.

And if juries don’t follow certain directions, what other directions do they not follow?  We have proof of partial non-compliance.  Retaining faith that juries follow directions in light of that isn’t intellectually bankrupt, but it could at least verge on intellectually insolvent trading.  It’s a rabbit hole I don’t really want to go down.

It strikes me that this question of faith in judicial directions is but one instance of a string of recent clobberings meted out to the legal system by empirical evidence.  The Court of Appeal is soon to grapple with the idea that long prison sentences don’t seem to deter offenders (and see the frontrunner in that debate – Palmer J in R v Wellington [2018] NZHC 2196 at [8]).  That’s a large ship to turn.

Reports under s 27 of the Sentencing Act 2002 are permitting courts to take into account demographic-based statistical evidence of Maori deprivation, and the social history of how we reached that point (a shameless plug for my earlier piece Thoughts on Solicitor General v Heta).  We have Alcohol and Other Drug Treatment Courts and Rangatahi Courts.  And some other empirical evidence successes have already taken seed – it seems unlikely we’ll go backwards on the Churchward v R youth factors, which were based on scientific research about young person brain development.

These things are all positive developments, where scientific or empirical evidence has led to better outcomes.  But none of them seem so fundamental to the system as juries.  The thing that’s too scary to contemplate is that if it’s true that if a jury room is the wild west then the entire system is borked and the solution isn’t clear.  I’m not saying it is.  In fact, I doubt it is.  But right now its integrity is an article of juridical faith.  And we should be honest with ourselves that that’s what it is, and that there is empirical evidence to challenge that faith.

In the meantime, we can all sit quietly in a dark room and ponder the consequences for our legal system if juries won’t do what they’re told simply because they’ve been told to by a room full of people dressed like extras from a Harry Potter movie.

 

 

 

(For completeness, a helpful synthesis of Lyttle, Tarapata and another decision of Moore J’s called Kahia v Police [2018] NZHC 1023 (not on NZLII) can be found in a decision by Gordon J called Parangi v Police [2018] NZHC 3123 (also not on NZLII), which provides no real answers to the main dilemma.)