Dennis Ferguson’s pretend fair trial

The Queensland Court of Appeal today overturned District Court judge Hugh Bottling’s ruling that Dennis Ferguson couldn’t receive a fair trial on sexual assault charges relating to an incident in 2005. Bottling, after examining the publicity about Ferguson in the Queensland press, held:

My judgment is, therefore, that the accused cannot have a ‘fair’ trial in respect of this charge because I think it improbable that a jury can be empanelled, all of whom would be able to be dispassionate and follow the judge’s directions. To pretend otherwise would, I think, be disingenuous.

Alas, Queensland’s top court has ruled that disingenuity is mandatory in this part of Queensland’s legal system:

[W]e consider that the primary judge’s conclusion that it was “improbable that a jury can be empanelled, all of whom would be able to be dispassionate and follow the judge’s directions” underrates the average citizen’s sense of fairness in the context of the other considerations discussed above. As our discussion of the authorities shows, juries are expected to discharge their duties properly even after sensationalised and prejudicial media reporting of quite horrific crimes. That expectation is informed, both by the necessity to accept, if jury trials are to be maintained, that jurors will be true to their oaths and follow the trial judge’s directions, and the justified confidence that jurors do routinely meet that necessity.

In short, judges are obliged to make some factual assumptions about jurors in order to maintain confidence in the jury trial system. Justice Bottling’s error in deciding that the jury (or at least some of them) wouldn’t be able to act impartially in Ferguson’s case was that he made factual findings that would undermine the jury system. His findings weren’t factually incorrect, but instead legally forbidden. (The Court of Appeal tellingly provides no reasons for its ‘justified confidence’ that its assumptions are correct. Apparently, we can safely assume that this sort of thing never happens, unless it happens.)

Indeed, the Court held, Bottling’s fact-finding contradicted a Queensland statute, its Jury Act:

50 The members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury’s deliberations except as allowed or required by law.

69A(1) A person who has been sworn as a juror in a criminal trial must not inquire about the defendant in the trial until the jury of which the person is a member has given its verdict, or the person has been discharged by the judge.

Maximum penalty–2 years imprisonment.

Commenting on these provisions, the Court held:

A court asked to grant a permanent stay of proceedings on indictment should not proceed on the basis of speculation that jurors might, not only disregard their oath to render a verdict based only on the evidence, but also commit an offence in order to do so.

So, a bill presently before Victoria’s parliament to create a similar criminal offence, will not increase the protection for defendants’ Charter right to a fair trial, as the bill’s statement of compatibility claims, but instead decreased it, by requiring Victorian courts to put out of their mind the possibility that the jury will make inquiries that they shouldn’t make.

Alas, the Court failed to pick up a key bit of Bottling’s reasoning, that could have avoided all this embarrassment about generic confidence in the jury system:

Bearing in mind the extraordinary nature of the public comment in this case, the fact that it is virtually entirely adverse to the accused, that it varies between rational statements and vitriolic attacks, that the press publicity has been compounded by film shown on television, and that the Crown case is so very weak, I have formed the view that the accused cannot receive a fair trial and that were the trial to proceed there would be a real prospect of a miscarriage of justice.

As previously posted, Bottling didn’t rule that Ferguson could never receive a fair trial for any offence; he ruled that Ferguson couldn’t receive a fair trial for the particular offences he was charged with, because the evidence was so weak (consisting of one child’s vague statement that Ferguson did ‘something to me right here in my little bum’, pointing at her waist, in an interview, much of which was inaudible and where she later contradicted that evidence by identifying the other person in the room as the culprit.) The jury’s ability to assess evidence dispassionately isn’t something you assess in the abstract (e.g. by reference to the oath they swear) but in relation to the very evidence they’ll have to consider. The Court of Appeal not only missed this crucial point but ruled that it was forbidden too:

[I]t is no part of the function of a judge to pre-empt the decision of the jury on the question of the guilt or innocence of the accused. It is one thing to stay proceedings on indictment, or, for that matter, to rule at the trial, that there is no case for the accused to answer, but it is another thing altogether to pre-empt the jury’s function because the Crown’s case is seen to be extremely weak.

Now, in fairness to the Court of Appeal, a lot of its reasoning focused on the provisions in the Jury Act that are designed (curiously, alongside the requirement to swear an oath to render an oath ‘according to the evidence’) to vet out dud jurors, in paticular s. 47:

47(1) If a judge who is to preside at a civil or criminal trial is satisfied, on an application by a party under this section, that there are special reasons for inquiry under this section, the judge may authorise the questioning of persons selected to serve as jurors and reserve jurors when the court reaches the final stage of the jury selection process.

Example– Prejudicial pre-trial publicity may be a special reason for questioning persons selected as jurors or reserve jurors in the final stage of the jury selection process.

(6) When a person has answered the questions put under this section and any further examination allowed by the judge has finished, a party may make a challenge for cause against the person on the ground that the person is not impartial.

The Court held:

In our view, a conclusion by a judge that his or her fellow citizens are not capable of bringing an impartial mind to bear on the evidence in accordance with the directions of the trial judge is a conclusion which should not be reached on the basis of speculation. Section 47 of the Jury Act affords a basis for reaching a better informed view on this crucial question, and, more importantly, it is a safeguard of the right of an accused to a fair trial which should be deployed before the court reaches the conclusion that a fair trial is not possible. On this basis, the learned primary judge’s conclusion was, at best, premature. In failing to advert to the provisions of s 47 of the Jury Act, and the safeguard which they afford an accused person, the learned primary judge erred.

It is conceivable that upon an inquiry under s 47 of the Jury Act, it might emerge that jurors had been so saturated with media comment adverse to the accused that the judge could not be satisfied that the right of the accused to a fair trial could be vindicated. The effect of the media coverage may be such as to lead the trial judge to conclude that jurors are overwhelmed by a perception that the expectation of the community is that the respondent must be convicted whatever the weaknesses in the Crown case may be. In such circumstances, the proceedings might properly be stayed. But, ordinarily, even then the court would explore other possible means of dealing with the problem, such as an adjournment of the trial so as to allow perceived pressures to dissipate.

Bottling doubtless should have averted to s. 47, although  the planned vetting of jurors and decision-making by Bottling will be quite fraught. I wonder if the DPP will try to get a new trial judge for to make the decisions under s. 47(6) and about a fair trial, given Bottling’s already stated views?  As for the prospect of delays or finding a remote corner of Queensland to hear the trial that lacks newspapers and televisions (or, at least, people who read or watch them), good luck with all that!

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