The right to jury nullification

I’m absolutely thrilled at today’s verdict in the trial of Joseph ‘Jihad Jack’ Thomas. This is the second time a jury has examined the case against Thomas and issued a split verdict, clearing him of major terrorism charges and convicting him of trivia. In both trials, the verdict was surprising in light of the evidence, where Thomas confessed to the appearance of being a terrorist, but claimed that it was all a ruse.

While it may be that both juries diligently applied the requirement of proof beyond reasonable doubt, I suspect – and indeed hope – that the split verdicts were deliberate messages aimed at the Australian authorities, expressing outrage at their connivance in conduct that is much worse than anything Thomas is accused of.

There’s been some talk lately of abolishing juries. I’m torn by such calls. The complex task of fact-finding strikes me as ideally suited to professionals, who can be trained for their job and can be expected to provide testable reasons for their decisions. But professionals so often tend to toe official lines. These conflicting criteria for good fact-finders appear in the Charter’s fair hearing right:

24(1) A person charged with a criminal offence…  has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Lord Devlin beautifully expressed how competence (via the long service of professional life) can be at odds with independence when it comes to the task of finding the facts that connect the law to individuals:

The power that puts the jury above the law can never be safely entrusted to a single person or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon a random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.

The juries of Jihad Jack managed to accomplish a justice that completely eluded the various institutions involved: the AFP, the Cth DPP, the Supreme Court, the Court of Appeal and the High Court.

The Charter, alas, was inapplicable in Thomas’s trials, due in part to its federal aspects (the involvement of AFP and ASIO, and the federal offences) and also (in relation to state aspects, such as court procedure) because of  the Charter’s appalling transitional provision. If the Charter had been applicable, some weighty rights indeed would have been engaged:

  • Charter s. 10 (torture): Not only was Thomas (on all accounts) tortured and degraded at the hands of Pakistani and CIA agents, but Cummins J appallingly admitted confessions he made to escape further torture.
  • Charter ss. 14, 15 & 16 (civil freedoms):The ridiculous offence of receiving money from (as opposed to funding) a terrorist organisation, without any requirement to prove an intent to further the organisation’s aims or to commit a crime, would, if it was a Victorian offence, have almost certainly engages the Charter’s rights to belief, expression and association. While these rights can be subjected to ‘lawful restrictions’, that caveat requires that the restrictions be accessible and proportionate. Charging Thomas with an offence that was recently created while he was out-of-contact overseas scarcely meets the first requirement; the 25 year maximum penalty (and the oppressive five-year sentence Cummins imposed) make a mockery out of the second.
  • Charter s. 25(2)(b) (right to a lawyer): The AFP told Thomas of his right to communicate with a lawyer, but simultaneously informed him that he couldn’t exercise it (due to Pakistani restrictions.) Their failure to stop the interview then and there is what made his first trial possible, after Cummins appallingly held that compliance with Thomas’s rights wasn’t required in the circumstance. If Thomas had access to a lawyer, he would have been made aware of the new offences (and, of course, advised to exercise his right to silence.)
  • Charter s. 26 (double jeopardy): The Court of Appeal, after correcting the erroroneous admission of THomas’s tortured and unadvised confessions, which permitted his first trial, erroneously permitted a second trial, sidestepping a clear High Court authority (not to mention a major ruling of the US Supreme Court) to allow the prosecution to have a second go based on entirely new evidence. The outgoing Chief Justice and Hayne J weren’t bothered.

The new evidence was interviews given by Thomas that were published after his first wrongful conviction. A lot of commentators have glibly observed that Thomas was ‘badly advised’ about giving that interview. But I disagree. Once Thomas drew Phil Cummins as a judge and it became clear that his tortured words would be used admissible, going to the responsible media was an entirely sensible move. A person who is so let down by the judiciary is well advised to appeal to the public for help. The only danger that could have arisen from giving the interview was the unlikely scenario where the Court of Appeal would be willing to right Cummins’s wrong, by throwing out the evidence, but then to immediately wrong that right by allowing a new trial on evidence that wouldn’t have existed but for that wrong. Alas, the Court of Appeal incredibly chose to do exactly that, wittingly or otherwise answering calls in the media for the courts to ‘find a way’ to get Thomas. Fortunately, the jury were unmoved by such pleas. [EDIT: Sally Neighbour’s account appears to put the decision to go to the media somewhat earlier, before Cummins’s bad admissibility decision looms. But that just means that the decision would only have gone pear-shaped if Cummins made the wrong decision (on admissibility), the Court of Appeal made the right decision (on admissibility) and then the Court of Appeals made the wrong decision (on a new trial.) Who would have thought?]

In my view, it’s the confession evidence so prized by the prosecution that ensured Thomas’s acquittal of the major charges. It’s that evidence that ensured that both juries were aware of the uncontested claims of Thomas of the torture he suffered at the hands of Pakistan’s security service and an unknown CIA agent, including such stomach-churning threats as testicular twisting and raping his wife. The first jury would have been told of these matters so that they could assess the reliability of confessions made to the AFP in their aftermath, appallingly ruled admissible by Cummins J. The second jury would have learnt of them the same way most of Australia did, via the Four Corners story that was the main fresh evidence against Thomas, appallingly endorsed as the basis for a fresh trial by the Court of Appeal. The well-produced and balanced Four Corners account was, I believe, much better evidence for the defence than the prosecution, amply showing that Thomas is a victim of much greater evils than he was ever accused of doing and given them ample cause to exercise the power that Americans term ‘jury nullification’, a protest against bad prosecutions via a verdict that disregards the facts and/or the law.

Jury nullification is controversial, as it is inconsistent with the rule of law and may well harm rights as well as promote them. Australian courts treat jury nullification, not as a right, but as an unavoidable byproduct of juror secrecy and the finality of acquittals. Nevertheless, it also has powerful supporters, such as the Fully Informed Jury Association and even a discussion paper by the Victorian Parliament’s Law Reform Committee last decade:

The Committee is inclined to the view that a jury ought to be properly instructed and informed before, during and at the end of evidence and addresses in a trial. It should be possible to inform a jury of its powers without encouraging it to use them without a great deal of careful and conscientious deliberation.

Issue 3.15 Should jurors generally be informed that they have the power to return a verdict which is not consistent with their understanding of the law as it applies to their view of the evidence? If so, when and in what form should such information be given?

These issues seem to have just disappeared in the Committee’s final report. Indeed, just a couple of months after Thomas’s first conviction, Victoria’s Court of Appeal held (in an unrelated case):

The applicant’s concept of nullification is also said to entitle a jury to return a verdict of not guilty notwithstanding that they are satisfied that a breach of the law has been committed if the jury thinks the law unjust. The applicant contends that the trial judge in the present case was obliged to tell the jury that they could treat s.21A of the Act [the offence of stalking] thus

It is recognised that juries may deliver merciful verdicts…  It is another matter altogether for a jury to determine which of the laws of the land are to be enforced. The trial judge was under no duty to instruct the jury that they could return a verdict of not guilty if they thought s.21A of the Act or its application in this case was unjust. Indeed, he would have erred had he done so.

Perhaps, it could be argued that Chatter s. 24’s requirement of an ‘independent’ court has now overtaken that approach. While the exemption of courts acting non-administratively from the conduct mandate makes any such right hard to enforce, it could be a basis for a challenge to the statutory jury oath:

You and each of you swear by Almighty God that you will faithfully and impartially try the issues between the Crown and [name of accused] in relation to all charges brought against [name of accused] in this trial and give a true verdict according to the evidence.

Interestingly, reports of the recent trial make it clear that Thomas’s lawyers made their own pleas to the jury:

Mr Kennan also said prosecution case was “riddled with doubts”, based on speculation not inference and they did not have any hard evidence against his client. “You are the ones with the power to do justice for Mr Thomas in this case,” he told the jury last week.

Ultimately, the trial is not necessarily the best venue for making such pleas. That is why Thomas was well advised, in the end, to make his case in the court of public opinion.

Alas, the Court of Appeal’s dreadful decision to allow the government to use Thomas’s plea to the public against him (even though it was made in response to wrong decisions by other state bodies, and ran against Thomas’s right against double jeopardy) will have the further effect of chilling Thomas’s right to freedom of expression (a right the Court of Appeal ludicruously claimed to be promoting):

Outside court Mr Kennan said the verdict was a great relief for his client who would celebrate it “quietly”. “He has now been acquitted of all terrorism-related charges and obviously that is a matter of great satisfaction for him,” Mr Kennan said. “It is a big relief for him. He has had this hanging over his head for many years and it has now been brought to a conclusion. “Mr Thomas won’t be giving any interviews now or in the future on this matter.”

More’s the pity. And it’s especially sad that future defendants will, as a result of the Court of Appeal’s poor judgments, be deterred from making their pleas to the public, when public authorities (Victorian and federal) fail them.

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