Published on 2 December 2017 at 4:27pm
I Introduction According to Lord Devlin, ‘the jury is invested with a dispensing power to be used when their respect for law is overridden by the conviction that to punish would be unjust’.[1]This statement encapsulates the weak, concealed and deviational nature of juror discretion as jurors are permitted to ignore legal rules and judicial directions in favour of their own perspectives of justice in the individual case. They are an anomaly in the criminal justice system as they are effectively afforded the vast discretion to return merciful verdicts of ‘not guilty’ regardless of the strength of the prosecution case. Despite the largely discretionary nature of this decision-making, especially in the context of defining the criminal standard of proof, the exercise of juror discretion is predictable to the extent that it reflects community attitudes and the emphasis that lay individuals place on scientific evidence. However, the reviewability of jury verdicts are substantially restricted by the limited avenues for appeal and the secrecy of the jury’s reasoning process even in cases of alleged juror misconduct. The issue of juror misconduct is becoming increasingly relevant in the digital age as technology exacerbates the temptation for jurors to conduct their own research rather than rely solely on the evidence presented by counsel. The problem of jury comprehension is also gaining greater significance in contemporary litigation as trials are becoming increasingly lengthy and complex. Protracted litigation also has the potential to heighten the prospect of juror intimidation and coercion. Ultimately, the weak nature of juror discretion means that it is subject to very few practical limitations but significant risk factors present a real threat to the decision-making process.
II The Jury’s Discretionary Powers The jury’s ultimate discretionary power is to determine whether the accused is guilty of the crime(s) charged in the indictment.[2] Coupled with this discretion, they are also able to deliberate as long as they wish and they cannot be directed to reach a speedier verdict.[3] In theory, the jury’s discretion is limited to a consideration of the trial judge’s directions and the evidence presented at trial.[4] Jurors are also expected to act in accordance with their oath or affirmation to give ‘a true verdict in accordance with the evidence’.[5] Despite these theoretical limits on the discretionary power of jurors, in practice their discretion remains broad as juries are not compelled to provide reasons for their verdict so there is no way of determining whether it is a ‘true verdict’ or if jurors follow judge’s directions or indeed if they even understand the substance of these directions.[6] In the words of a study conducted by the New Zealand Law Commission, ‘by and large, juries simply [do] not seem to appreciate the importance, or…understand the logic, of restricting themselves to the information presented by the parties and the judge.’[7] The precise extent of the discretionary powers of jurors is also unclear in the context of jurors conducting their own investigations or actively testing evidence.[8] Section 53(5) of the Evidence Act 1995 (NSW) prevents jurors from conducting experiments in the course of their deliberations. The High Court of Australia has elaborated that active testing of evidence in the jury room is impermissible if ‘it goes beyond a mere examination and testing of the evidence, and becomes a means of supplying new evidence’.[9] A tangential issue arises when jurors discover certain objects within an exhibit that were previously unnoticed. In some cases, the court has held that this circumstance creates an unfair trial if the new evidence has not been tested.[10]However, in other cases, courts have simply instructed the jury to disregard these findings or to ‘make…what you will’ of the findings.[11] Nevertheless, in practice the jury retains the discretion to disregard the judicial directions completely in coming to their verdict by instead relying on evidence the judge instructed them to disregard. Alternatively, the judicial directions themselves could afford juries a broad discretion. For example, in Barker v The Queen the jury retained the discretion ‘to examine the exhibits for themselves and arrive at conclusions in accordance with their own observations’ even though there was no scientific basis for the conclusion that they reached.[12]
III Predictability of Jury Verdicts The predictability of jury verdicts depends on a number of factors including the jury’s interpretation of the criminal standard of proof, the influence of prevailing community attitudes and undue reliance on scientific evidence.
A Defining Beyond Reasonable Doubt The predictability of jury verdicts is undermined by the uncertainty surrounding the precise definition of ‘beyond reasonable doubt’. In a report conducted by the New South Wales Bureau of Crime Statistics and Research (BOCSAR) in 2008, approximately half of the jurors surveyed equated the term with being ‘sure’ of the accused’s guilt and just under one quarter equated the term with being ‘almost sure’ of the accused’s guilt.[13]These statistics highlight the unpredictability of jury verdicts as individual jurors are provided the discretion to attribute their own meaning to the criminal standard of proof. The BOCSAR study also found that juror’s understanding of the phrase ‘beyond reasonable doubt’ was more predictable for specific offences. For example, in sexual assault cases, jurors were 1.4 times more likely than jurors hearing trials dealing with other offences to interpret the term to mean ‘pretty likely’ or ‘very likely’ that the accused is guilty.[14] As the New South Wales Law Reform Commission (NSWLRC) observed in 2012, ‘the standard of proof is pivotal to the criminal justice system’ and ‘it is unsatisfactory if there are significant concerns that jurors do not sufficiently and consistently understand the concept, or if judges are constrained in providing a meaningful explanation of the phrase’.[15] In order to improve the predictability of verdicts, the NSWLRC has suggested that the law limit the jury’s discretionary power in defining the requisite standard of proof by developing uniform legislation detailing directions to juries about the precise nature of this standard.[16]
B Community Attitudes Despite the unpredictability of juror’s interpretations of the standard of proof, the exercise of juror discretion is predictable to the extent that it reflects prevailing community attitudes. Particularly in sexual assault cases, the likely outcome of jury verdicts can be predicted by analyzing myths and stereotypes within the broader community.[17] There is no statutory definition of consent in NSW and even though judges provide some directions, jurors are still provided the discretion to interpret the term in a manner that accommodates community prejudices.[18] Research has shown that jurors’ pre-existing views in sexual assault cases shape their judgments to an even greater degree than the facts of the case and the presentation of the evidence.[19] For example, a study conducted in the United Kingdom in 2005 found that individuals in a simulated trial and focus groups understood alcohol can impact on an individual’s power to provide meaningful consent but nevertheless were inclined to attribute responsibility for sexual intercourse to a complainant who was intoxicated.[20]Similarly in an Australian mock trial study in 2005, many of the hypothetical jurors assessed the complainant’s testimony according to their own pre-conceived and often stereotypical views that, for example, a ‘real’ victim would shout for help and immediately report to the police or to a hospital. [21] These community perceptions provide a degree of predictability in assessing the likely jury verdict in sexual assault cases especially considering that ‘only about one in 10 reported incidents results in a guilty finding’.[22]
C Disproportionate Emphasis on Scientific Evidence The exercise of juror discretion in the context of assessing forensic evidence is also predictable to a certain degree. Studies have shown that jurors are more likely to find an accused guilty than not guilty when forensic evidence is tendered, especially in homicide and sexual assault cases.[23] The ‘CSI Effect’ reflects this notion that jurors will be unduly influenced by scientific evidence and testimony to such a degree that they will accept this evidence unquestioningly and often wrongly acquit if it is not made available.[24] Research undertaken by Dr Rhonda Wheate supports this theory as she found that many jurors interpreted scientific evidence as ‘more important than other evidence in the trials’.[25] Similarly, in a study completed by Professor Mark Findlay, he found that jurors ‘constantly rated [DNA evidence] above the actual forensic impact it had in the construction of the prosecution case’.[26] Thus, there is an element of foreseeability in the jury’s exercise of their discretionary power to determine the relative significance of evidence.
IV Reviewability of Jury Verdicts Due to the concealed nature of juror discretion, jury’s decisions are largely unreviewable as the jury secrecy rule operates to restrict the assessment of jury reasoning even when investigating alleged juror misconduct and the right to an appeal.
A Jury Secrecy The secrecy of jury deliberations and the absence of any requirement to give reasons severely limit the reviewability of the verdict. Neither trial judges nor appeal courts can investigate any alleged irregularities relating to matters intrinsic to jury discussions.[27]This common law jury secrecy rule essentially states that a court cannot receive an affidavit from any of the jurymen themselves about conduct that occurred during deliberations ‘but in every such case the Court must derive their knowledge from some other source, such as some person having seen the transaction through a window or by some such other means.’[28] Thus, jurors cannot provide evidence to rebut the assumption that each and every member of the jury have assented to a verdict delivered in their collective presence.[29]
B Juror Misconduct The jury secrecy rule operates to limit the reviewability of juror deliberations even in cases of alleged juror misconduct. Although the Court may discharge individual jury members or the entire jury if it is satisfied of juror misconduct, the jury secrecy rule operates to limit the extent to which the court may review the conduct of jurors.[30]This rule has ‘led to some unusual results’ such as the court refusing to admit evidence from two jurors who stated that the jury achieved their verdict by tossing a coin.[31] In Nanan v The State, the court refused to admit a sworn affidavit by a jury member that stated when he gave the verdict he erroneously agreed that the verdict was unanimous but the jury were in fact split eight to four.[32] However, precedents seem to have established that juror misconduct is reviewable when it occurs outside the jury room. For example in R v Skaf, the Court ordered a retrial after it was satisfied that a substantial miscarriage of justice occurred due to two jurors privately visiting the crime scene to conduct their own investigation.[33] Moreover in R v Young, the court set aside a verdict that was achieved after four jurors consulted a Ouija board in a hotel room.[34] As the Hon. Peter McLellan observed, ‘If it had happened in the jury room, the evidence would not have been accepted [and] [t]he supernatural forces would have been allowed to operate’.[35]
C Right of Appeal Although an individual who claims to have been wrongfully convicted by a jury has a right of appeal, a victim who claims the accused was wrongfully acquitted has no practical right of appeal. The prosecution could apply for an ‘academic appeal’ against a ‘not guilty’ verdict but these opportunities are limited and will often not be pursued due to a lack of resources and the prospect of only clarifying the law for future application, without influencing the verdict in the specific case.[36]
V Main Risk Factors Distorting the Decision Making Process The advent of technology and the rise of increasingly lengthy and complex litigation have effectively posed the greatest risks to the jury’s decision-making process.
A The Use of Technology Although jurors are not to be prejudiced by media publicity and opinions disseminated in social media, critics of the jury system have observed that keeping ‘jurors in a bubble’ and ‘trying to scrub the internet clean to protect the delicacy of the jury is simply impossible’.[37] Peter Lowe argued that telling ‘anyone from the millennial generation not to retrieve information available at their fingertips is a red rag to a bull’ as the ‘anonymity and immediacy’ of the internet ‘encourages transgressions through the phenomenon of disinhibition, leading to impulsive behaviour’.[38] The reality is that the Internet now provides jurors with instant access to a wealth of information. This has created new issues of juror misconduct as jurors progressively become more inclined to engage in independent online research rather than rely solely on the evidence presented at trial.[39] Thus, the digital age arguably poses a real threat to the right to a fair trial as ‘the capacity to closet jurors away from the real world of swirling prejudice is gone’.[40]
B Difficulty in Understanding Complexity of Law Another persistent risk factor to jury’s decision making is their suspected difficulty in comprehending the law. According to a New South Wales BOCSAR report in 2008, only 47.2 per cent of jurors surveyed indicated that they understood the judge’s directions completely.[41] Rapid growth in the number of lengthy and often highly complicated trials further exacerbates this issue of jury comprehension.[42] John Fairbanks Kerr argued that ‘most juries are essentially a group of amateurs who are engaged in a task that requires highly trained professionals’.[43] The Hon. Peter McLellan similarly argued that ‘there is a sense of unreality in what we ask jurors to do’ as numerous studies have concluded that jurors generally demonstrate great difficulty in comprehending the law or judicial instructions.[44] This issue of juror comprehension is somewhat alleviated by providing jurors access to transcripts, written directions from the trial judge and so on.[45] However, there have been suggestions for reform including that ‘serious consideration should be given to reviewing the absolute prohibition on taping jury room deliberations’.[46] In addition, it has been suggested that jurors should be required to have a minimum level of education in order to ensure that they are less likely to be influenced by ‘prejudicial publicity and would be more inclined to comply with trial directions’.[47] Other less radical possibilities for reform have included highlighting the need for brevity and simplicity in the conduct of criminal proceedings in order to ensure juries do not lose interest.[48]
C Juror Intimidation The exercise of the jury’s discretionary power in reaching a verdict is also inevitably distorted by the prospect of juror intimidation. A study conducted by Judith Fordham in Western Australia in 2010 revealed that the most common source of intimidation that jurors experienced was at the hands of fellow jurors in the jury room rather than ‘actual intimidation by corrupt conduct from lawyers, their clients or criminals’.[49] The study found that the instances of jurors intimidating their co-jurors were ‘disturbingly high’ and this could affect the jury’s ability to arrive at a true verdict.[50] The statistics demonstrated that 13.4 per cent of ‘metropolitan District Court jurors felt uneasy, threatened or unsafe during or after the trial’ and a similar response was provided by Supreme Court jurors.[51] Moreover, the study indicated that this pressure and intimidation had resulted in jurors altering their initial decision which they regretted after the jury announced their verdict.[52] For example, 20.1 per cent of jurors who changed their vote during deliberations ‘cited pressure from various sources’ and ‘73.8% of those who felt pressured felt pressured by the other jurors’.[53] However, there is an inherent difficulty in differentiating between juror complaint of vigorous yet stressful argumentation that is protected from disclosure compared to juror-to-juror threats, intimidation and coercion.[54] There have been some suggestions to implement informal practices to ‘guard against verdicts by oppression’ through, for example, requiring more breaks in deliberations or requiring the trial judge to repeat to the jury that they are able to receive the court’s assistance.[55]
VI Conclusion Juries are invested with undoubtedly one of the most important discretionary powers in the criminal justice system, namely deciding whether an accused is guilty or not guilty of the alleged offences. Despite the gravity of the decision-making process, the nature of the jury’s discretion is weak, concealed and deviational. Jury members are legally bound to follow the trial judge’s directions and rely solely on the evidence presented at trial. However, in practice, jurors are effectively able to disregard these limitations on their discretionary power. The jury can safely ignore judicial directions because they are not required to give reasons for their decision and the entire deliberation process is secret. Even if a jury member makes allegations of misconduct against another juror, the court cannot be made privy to any alleged misconduct relating to matters intrinsic to jury discussions. The jury secrecy rule limits not only the reviewability but also the predictability of jury verdicts as the jury is provided the discretion to attach their own meaning to the ‘beyond reasonable doubt’ standard of proof. Nevertheless, an analysis of widely held community beliefs and prejudices, particularly in sexual assault cases, provides an element of foreseeability in determining likely jury verdicts. In addition, an examination of commonly held public opinions relating to the supremacy of forensic evidence clarifies the potential outcome of many jury trials. Moreover, the phenomenon of modern technology poses a significant threat to fundamental principles of the criminal justice system, such as the right to a fair trial, by increasing the ease with which jurors may conduct their own research. Coupled with the dangers of technology, the difficulty of assisting ‘amateurs’ to comprehend the complexity of the law continues to be a major risk factor in distorting the jury’s decision-making process. The substantial length of modern litigation further exacerbates this issue of jury comprehension as well as the potential for juror intimidation and coercion. In sum, juries may be the sole arbiters of fact but they are also provided an even broader deviational discretion to ultimately disregard the arbiters of law.
[1] Patrick Devlin, ‘The Conscience of the Jury’ (1991) 107 Law Quarterly Review 398, 402.
[2] Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2017) [1-480]; see also: Brown v The Queen (1986) 160 CLR 171, 197; Mark Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, Victoria, 1994) 13.
[3] Black v The Queen (1993) 179 CLR 44, 52-52.
[4] Criminal Trial Courts Bench Book, above n 2.
[5] Criminal Trial Courts Bench Book, above n 2, [1-615].
[6] See for example: Peter McLellan, ‘Looking Inside the Jury Room’ (2011) 10 The Judicial Review 315, 323-329.
[7] New Zealand Law Reform Commission, Juries in Criminal Trials, Part Two: A Summary of the Research Findings, Discussion Paper No 37 (1999) vol 2, 59.
[8] Criminal Trial Courts Bench Book, above n 2, [1-492], [1-480]; R v Skaf (2004) 60 NSWLR 86.
[9] Kozul v R (1981) 147 CLR 221, 242.
[10] R v Cotter [2004] VSC 295 (25 June 2004).
[11] R v Allan [2002] NSWCCA 412 (4 October 2002); Barker v The Queen [2002] WASCA 127 (16 May 2002) [50]-[51].
[12] Barker v The Queen [2002] WASCA 127 (16 May 2002) [50]-[51].
[13] Lily Trimboli, ‘Juror understanding of judicial instructions in criminal trials’ (Contemporary Issues in Crime and Justice 119, NSW Bureau of Crime Statistics and Research, September 2008) 4.
[14] Ibid.
[15] New South Wales Law Reform Commission, Jury Directions, Report No 136 (2012) 72.
[16] See for example: Ibid.
[17] Natalie Taylor, ‘Juror attitudes and biases in sexual assault cases’ (Trends and Issues in Crime and Criminal Justice No 344, Australian Institute of Criminology, 2007) 2.
[18] For suggested reform, see: Australian Law Reform Commission, Family Violence: Improving Legal Frameworks, Consultation Paper Summary 1 (2010) 188.
[19] See Ibid; Taylor, above n 17.
[20] Emily Finch and Vanessa Munro, ‘Juror stereotypes and blame attribution in rape cases involving intoxicants’ (2005) 45(1) British Journal of Criminology 25, 25-38 cited in Taylor, above n 17, 3.
[21] Natalie Taylor and Jacqueline Joudo, ‘The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainantson jury decision-making: an experimental study’ (Research and Public Policy Series No 68, Australian Institute of Criminology, 2005) cited in Taylor, above n 17, 4.
[22] Taylor, above n 17, 1.
[23] McLellan, above n 6, 329.
[24] Judith Fordham, ‘Secrets of the Jury Room: The ‘CSI Effect’’ (2008) 35(1) Brief 16, 16.
[25] Rhonda Wheate, ‘The importance of DNA evidence to juries in criminal trials’ (2010) 14(2) International Journal of Evidence & Proof 129, 130.
[26] Mark Findlay, ‘Juror comprehension and the hard case-making forensic evidence simpler’ (2008) 36(1) International Journal of Law, Crime and Justice 15, 22.
[27] Jill Hunter, ‘Before the High Court, Jury Deliberations and the Secrecy Rule: The Tail that Wags the Dog?’ (2013) 35 Sydney Law Review 809, 811.
[28] Vaise v Delaval (1785) 99 ER 944.
[29] Ellis v Deheer (1922) 2 KB 113, 121 cited in McLellan, above n 6, 317.
[30] Criminal Trial Courts Bench Book, above n 2, [1-505], [1-520]; Jury Act 1977 (NSW) Pt 7A.
[31] Vaise v Delaval (1785) 99 ER 944; see also McLellan, above n 6, 317.
[32] Nanan v The State [1986] AC 860.
[33] R v Skaf (2004) 60 NSWLR 86.
[34] R v Young [1995] QB 324.
[35] McLellan, above n 6, 317-318.
[36] Brown et al, Criminal Laws: Material and Commentary (The Federation Press, 5th ed, 2011) 18.
[37] Criminal Trial Courts Bench Book, above n 2, [1-450], [1-480]; Richard Ackland, ‘A return to village life: internet bursts the bubble protecting juries’, The Sydney Morning Herald (online), 16 September 2011 <http://www.smh.com.au/federal-politics/a-return-to-village-life-internet-bursts-the-bubble-protecting-juries-20111215-1owts.html>.
[38] Anne Susskind, ‘Technology Undermines Jury System, As Does Complexity’ (2011) 49(9) Law Society Journal 20, 20.
[39] See: David Harvey, ‘The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm’ (2014) 2 New Zealand Law Review 203, 207.
[40] Ackland, above n 37; See also: Laura McDonald et al, ‘Digital Evidence in the Jury Room: The Impact of Mobile Technology on the Jury’ (2015) 27(2) Current Issues in Criminal Justice 179.
[41] Lily Trimboli, ‘Juror understanding of judicial instructions in criminal trials’ (Contemporary Issues in Crime and Justice 119, NSW Bureau of Crime Statistics and Research, September 2008) 9.
[42] See: John Willis, ‘The Processing of Cases in the Criminal Justice System’ in Duncan Chappell and Paul Wilson, Crime and the Criminal Justice System in Australia: 2000 and Beyond (Butterworths, 2000) 137, 153.
[43] John Fairbanks Kerr, A Presumption of Wisdom: An Expose of the Jury System of Injustice (Harper Collins, 1987) 63.
[44] McLellan, above n 6, 329.
[45] See Criminal Trial Courts Bench Book, above n 2, [1-525]-[1-535]; Jury Act 1977 (NSW) ss 55, 55C.
[46] Susskind, above n 38, 21.
[47] Ibid.
[48] Willis, above n 42.
[49] Judith Fordham, ‘Juror Intimidation? An investigation into the prevalence and nature of juror intimidation in Western Australia’ (Department of the Attorney General (WA), April 2010) 118; see also: Phil Boulten, ‘Trial by Jury or Trial by Ordeal’ (2011) The Journal of the New South Wales Bar Association 62, 63.
[50] Fordham, above n 49, 118.
[51] Ibid 74.
[52] Ibid 107.
[53] Ibid 62.
[54] Hunter, above n 27, 813.
[55] Boulten, above n 49.
REFERENCE LIST A Articles/Books/Reports Boulten, Phil, ‘Trial by Jury or Trial by Ordeal’ (2011) The Journal of the New South Wales Bar Association 62 Brown, David, Farrier, David, Egger, Sandra, McNamara, Luke, Steel, Alex, Grewcock, Michael and Donna Spears, Criminal Laws: Material and Commentary (The Federation Press, 5th ed, 2011) Davis, Fergal, ‘Trial by Jury: Time for a Re-evaluation’ (2007) 32(2) Alternative Law Journal 86 Devlin, Patrick, ‘The Conscience of the Jury’ (1991) 107 Law Quarterly Review 398 Findlay, Mark, ‘Juror Comprehension and Complexity: Strategies to Enhance Understanding’ (2001) 41 British Journal of Criminology 56 Findlay, Mark, ‘Juror comprehension and the hard case-making forensic evidence simpler’ (2008) 36(1) International Journal of Law, Crime and Justice 15 Findlay, Mark, ‘Legitimating Criminal Justice through Community Engagement: Lessons from the Jury Experience’ (2008) 20(2) Current Issues in Criminal Justice 303 Fordham, Judith, ‘Bad Press: Does the Jury Deserve It?’ (2012) 112 Precedent 36 Fordham, Judith, ‘Secrets of the Jury Room: The ‘CSI Effect’’ (2008) 35(1) Brief 16 Harvey, David, ‘The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm’ (2014) 2 New Zealand Law Review 203 Henderson, Emma and Kirsty Duncanson, ‘A Little Judicial Direction: Can the Use of Jury Directions Challenge Traditional Consent Narratives in Rape Trials?’ (2016) 39(2) UNSW Law Journal 750 Hunter, Jill, ‘Before the High Court, Jury Deliberations and the Secrecy Rule: The Tail that Wags the Dog?’ (2013) 35 Sydney Law Review 809 Kerr, John Fairbanks, A Presumption of Wisdom: An Expose of the Jury System of Injustice (Harper Collins, 1987) McDonald, Laura, Tait, David, Gelb, Karen, Rossner, Meredith and Blake McKimmie, ‘Digital Evidence in the Jury Room: The Impact of Mobile Technology on the Jury’ (2015) 27(2) Current Issues in Criminal Justice 179 McLellan, Peter, ‘Looking Inside the Jury Room’ (2011) 10 The Judicial Review 315 Spears, Donna, ‘Jury Misconduct or Irregularity’ (2007) 90 ALRC Reform Journal 20 Susskind, Anne, ‘Technology Undermines Jury System, As Does Complexity’ (2011) 49(9) Law Society Journal 20 Taylor, Natalie, ‘Juror attitudes and biases in sexual assault cases’ (Trends and Issues in Crime and Criminal Justice No 344, Australian Institute of Criminology, 2007) Trimboli, Lily, ‘Juror understanding of judicial instructions in criminal trials’ (Contemporary Issues in Crime and Justice 119, NSW Bureau of Crime Statistics and Research, September 2008) Tunna, Jennifer, ‘Contempt of Court: Divulging the Confidences of the Jury Room’ (2003) 9 Canterbury Law Journal 79 Warner, K, Davis, J and P Underwood, ‘The Jury Experience: Insights from Tasmanian Jury Study’ (2011) 10 The Judicial Review 333 Wheate, Rhonda, ‘The importance of DNA evidence to juries in criminal trials’ (2010) 14(2) International Journal of Evidence & Proof 129 Willis, John, ‘The Processing of Cases in the Criminal Justice System’ in Duncan Chappell and Paul Wilson, Crime and the Criminal Justice System in Australia: 2000 and Beyond (Butterworths, 2000) 137 Young, W, Cameron, N and YTinsley, Juries in Criminal Trials, Part Two: A Summary of the Research Findings (Law Commission of New Zealand Preliminary Paper 37, vol 2, 1999) 59.
B Cases Barker v The Queen [2002] WASCA 127 (16 May 2002) Black v The Queen (1993) 179 CLR 44 Brown v The Queen (1986) 160 CLR 171 Ellis v Deheer (1922) 2 KB 113 Kozul v R (1981) 147 CLR 221 Nanan v The State [1986] AC 860 R v Allan [2002] NSWCCA 412 (4 October 2002) R v Cotter [2004] VSC 295 (25 June 2004) R v Skaf (2004) 60 NSWLR 86 R v Young [1995] QB 324 Tootle v R [2017] NSWCCA 103 (19 May 2017) Vaise v Delaval (1785) 99 ER 944
C Legislation Australian Constitution Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Jury Act 1977 (NSW)
D Other
Ackland, Richard, ‘A return to village life: internet bursts the bubble protecting juries’, The Sydney Morning Herald (online), 16 September 2011 <http://www.smh.com.au/federal-politics/a-return-to-village-life-internet-bursts-the-bubble-protecting-juries-20111215-1owts.html>
Australian Law Reform Commission, Family Violence: Improving Legal Frameworks, Consultation Paper Summary 1 (2010)
Bibby, Paul, ‘Former NSW Crime Commission boss Mark Standen loses appeal in drug supply case’, The Sydney Morning Herald (online), 14 August 2015 <http://www.smh.com.au/nsw/former-nsw-crime-commission-boss-mark-standen-loses-appeal-in-drug-supply-case-20150813-giy6w0.html>
Findlay, Mark, Jury Management in New South Wales (Australian Institute of Judicial Administration, Victoria, 1994)
Fordham, Judith, ‘Juror Intimidation? An investigation into the prevalence and nature of juror intimidation in Western Australia’ (Department of the Attorney General (WA), April 2010)
Hall, Louise, ‘Mark Standen appeal says trial was unfair due to jury’s low morale’, The Sydney Morning Herald (online), 17 February 2014 <http://www.smh.com.au/nsw/markstanden-appeal-says-trial-was-unfair-due-to-jurys-low-morale- 20140216-32tyx.html
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2017)
New South Wales Law Reform Commission, Jury Directions, Report No 136 (2012)