Much has been made of the influence that the Teacher’s Pet podcast might have had over the bringing to trial of Christopher Dawson and over the trial itself.
One argument was that the podcast had denied Dawson a jury trial because potential jurors and witnesses would be influenced by the podcast which has been listened to by 60 million people worldwide since it went online in 2018.
On that reasoning, tough, he was only denied the chance that one or more rogue or inattentive jurors could have delivered a not-guilty verdict or a hung jury – quite wrongly given Justice Ian Harrison’s judge-alone verdict.
Moreover, if you believe that jurors can be improperly influenced by media coverage rather than deciding on the evidence alone, the logical conclusion is that the decision over guilt should not be trusted to jurors.
The call should not be to gag the media because of the possibility of “trial by media”, but to remove the possibility of “trial by media” by entrusting the trial to judges with or without lay assessors, with the added safeguard that they must publish the reasons for their decision.
Judges have been trained not to consider irrelevant matters and to stick to the evidence.
Justice Harrison mentioned the podcast in his judgment and explained how it did not influence him but how it might have affected some evidence given by some witnesses and how he had treated that evidence so it would not poison his verdict.
His judgement was 100,000 words. The summary alone took five hours to read. Surely, that is much more satisfactory to the public and the administration of justice than a one or two-word verdict by a jury, the reasons behind which can only be guessed at?
Jury verdicts leave too much room for speculation. In major cases, they tend to undermine confidence in the justice system not enhance it.
Plucking people from the electoral roll for jury duty and giving easy exemptions for most professionals and business principals seems almost designed to deliver people who are not equipped for the job – certainly not capable of delivering the sort of detailed reasoning in Harrison’s judgment.
And thorough reasoning is critical in a case like Dawson, in which there was no body, where the events took place 40 years ago, where the evidence was circumstantial, and where there was no physical evidence linking the defendant to the act of killing.
If you were designing a system from scratch, there is no way any sensible legislature would come up with a random selection of decision-makers with little or no verification of whether they have the capacity to deal with complex issues.
Indeed, when new justice systems were designed after World War II to deal with war crimes and later to deal with international criminal law in general, absolutely no thought was given to a jury system.
But somehow lawyers, judges, legislators, and most of the public in the common-law world have got it into their heads that the jury system is the best way to guard our freedoms and to ensure that only the guilty are found guilty.
They think that because it has been around for such a long time that it has stood the test of time and must be right.
By 1700, the divine right of kings had been around in England for 1000 years, but then failed the test of time. As Dennis the Peasant said in Monthy Python and the Holy Grail when questioning King Arthur, “Strange women lying in ponds distributing swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony. . . . You can’t expect to wield supreme power just because some watery tart threw a sword at you.”
So, too, are juries failing the test of time. Modern psychology warns us about the dangers of groupthink and the ease with which some people can grab leadership.
Humans have a need to belong. It is part of the survival instinct. Humans in the wild (or even in modern lawless cities) do not do well as loners. They have to co-operate to obtain food and shelter.
Standing out alone invited ostracism and death, and the instinct remains. It is easier to join the herd or the gang – often allowing oneself to accept a decision so everyone can go home. There is no comfort in unanimity.
My guess is that if each juror had to come to a decision separately without talking to other jurors, unanimous decisions would be a rarity.
But it can only be a guess because the law prohibits jury research – probably because it would expose the folly.
Indeed, such research might result in what happens with some medical research when only part way through it becomes apparent that the research has to stop for ethical reasons because the treatment being researched is either so obviously harmful or effective that it would be unfair to either those being treated with a dud or those denied being treated with a remedy.
Surely, it is not beyond the wit of the social sciences to record some jury proceedings to test their effectiveness and to publish results without identifying jurors.
In these days of Covid and climate change, sensible people are railing against anti-vaxers, climate-change deniers, and science spurning generally. Yet, we continue with the decidedly unscientific jury system.
Harrison’s judgement was not done in haste, like jury decisions. It is demonstrably superior to a one-word jury verdict. And critically, it makes the appeal process easier. Too often, successful appeals from jury verdicts become near impossible in the absence of material about the jury’s decision-making and in an atmosphere where juries are held in such awe.
Finally, say what you might about trial by media, I cannot help but think that the Teacher’s Pet podcast had some role in the decision to charge Dawson 40 years after the event.
This article first appeared in The Canberra Times and other Australian media on 6 September 2022.
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