There’s nothing like a bit of research to find out what has been going on. The publication this week of “Sex, Lies and Question Time” by former Labor Minister Kate Ellis adds to a series of earlier revelations about the toxic, misogynist culture in Parliament House.
Leaving aside the physical, mental and verbal assaults, the sidelining of women’s views, and men constantly ignoring or talking down and over women has obviously made our government worse, to the cost of all of us.
It makes me wonder about other decision-making bodies. What if the talking down and over women and ignoring their views is also happening in jury rooms around Australia. Unfortunately, we can only wonder and not know. Ellis was able to interview women from all parties about their experiences and the revelations have done us a service. But the law in every jurisdiction in Australia makes it a criminal offence to interview jurors.
The ban is far too broad. There is nothing like a bit of sunlight to disinfect a place. With any luck, Parliament House and, indeed, Parliament Houses throughout Australia, are being disinfected by the revelations of Ellis and the MPs she interviewed and the brave revelations of staffers and others.
As things stand, however, this sunlight cannot enter the jury room so we cannot know how functional or dysfunctional it is. All we have to rely on are the assurances of the legal profession – where the male voice still dominates despite more female judicial appointments – that the jury system is beyond reproach.
The assurances are of their nature ignorant because nobody can find out. It is an offence for a juror to disclose details of what happened in the jury room and it is an offence for someone to publish those details.
Some jurisdictions have limited exceptions for research, but require an application by the Attorney-General to the Supreme Court (not going to happen). As the Australian Law Reform Commission acknowledged, “Due to legal restrictions protecting the secrecy of jury deliberations and limiting disclosures by jurors, the scope of empirical research on juries has been significantly limited.”
The idea that someone could do the sort of research Ellis did by interviewing jurors seems impossible.
Given all the bombast we hear about the jury system under-pinning liberty and justice, you would think that it would warrant some broad research projects to see if this is so, especially to find out if women jurors get heard.
We know that people with higher education, particularly people in professions, can get excused from jury duty more easily. This can only be speculation, but it may mean that the sort of people left over for jury duty are lesser-educated, know-all, bullying men and lesser-educated, unassertive, less self-confident women.
This might be important in cases where women are accused or women are victims. Two such cases got an airing in the past week. The appeal by Kathleen Folbigg, convicted of killing her four children, against the findings of an earlier inquiry into the convictions was denied by the NSW Court of Appeal.
Former NSW district court chief judge Reginald Blanch QC in 2019 found significant investigations had failed to find a reasonable natural explanation for any of the deaths of Caleb, Patrick, Sarah and Laura, who all died before their second birthday in the decade to 1999.
However, three weeks ago, a group of prominent scientists put their names to a petition calling for a pardon and Folbigg’s immediate release, saying the genetic data showing a propensity to cot death was compelling evidence she did not kill her children.
The 90 signatories included Australian Academy of Science president John Shine, epidemiologist Prof Fiona Stanley, Nobel laureate Prof Peter Doherty and former chief scientist Prof Ian Chubb.
The other case was Sue Neill-Fraser’s application to the Tasmanian Court of Criminal Appeal seeking a retrial following her 2010 conviction of murdering her partner on a yacht in the Derwent River.
These two cases and that of Lindy Chamberlain who was subsequently found innocent of killing her baby have lots of troubling aspects that the secrecy of the jury room only compound.
Once the jury has spoken courts show remarkable reluctance to overturn the verdict, even though their actual deliberations are never examined by appeal courts. I suspect (but can only suspect) that the treatment of women jurors during deliberations might be revealing.
The Australian Law Reform Commission cited some New Zealand research that concluded “jurors have difficulties understanding and following judicial directions”, but, surprisingly, said that this “did not indicate that juries are inherently incompetent”. Oh, no?
The commission cited one judge as concluding that not one juror in a hundred would be able to grasp the complex legal concepts required and correctly concluded a review of the operation of the jury system generally. That was in 2010. It hasn’t happened.
Juries do not even have to give reasons for their decisions. Without them, no-one can possibly know if they are competent.
Worse, psychology experiments going back to the 1930s prove that people are easily led and join majority opinion because they want to fit in. The Asch conformity experiments in the 1950s were extremely revealing.
In those experiments only one or two people were real participants. The others were all instructed to deliberately give a manifestly wrong answer to a test and show the real participants their answer. The one or two real participants then invariably changed their answer and agreed with the majority.
Other experiments revealed how the great majority of humans can be easily led.
Add to this the propensity for some men to ignore, talk down to or over women and there should be good grounds for some full-scale research to shine some sunlight into the secret jury room through CCTV cameras.
The argument about protecting the privacy of jurors could be dealt with by ensuring researchers do not get the names of jurors.
Who knows? It might reveal a well-functioning jury system that universally treats women jurors with respect and attention. I strongly suspect not, but at least we would know.
This article was first published in The Canberra Times and Australian media on 3 April 2021.
Crispin Hull BA, LLB (Hons) | Property Convenor | ANU School of Legal Practice Lawyer of the Supreme Court of the ACT, on the Register of Practitioners kept by the High Court of Australia