LSB September 2019_Web

SOCIAL MEDIA
Posts like these potentially bring the
justice system into disrepute because they
suggest that justice is not being done
and similarly it is not seen to be being
done. Whether or not a juror’s use of the
internet/social media is representative
of genuine bias, prejudice, and/or
predetermination is not the entirety of the
matter. The requirement of impartiality on
the part of jurors may be adversely affected
by both actual and perceived irregularities.
Significantly, when jurors publish
material about jury service on the internet
or social media, they have no control over
what material they may receive by way of
a response. Even apparently innocuous
material posted by jurors, or the simple
act of a juror ‘tagging’ their location as
the courthouse, may elicit unsolicited and
inordinate replies capable of interfering
with the juror’s impartiality (or being
perceived as capable of doing so).
GOING VIRAL?
There has been some limited research
conducted in this area in Australia and
overseas, however, the prevalence of juror
misconduct of this kind remains largely
unknown and unknowable.
Whilst the detection of juror misconduct
of this kind may be rare, this does not
necessarily mean that such misconduct
is, in fact, rare. Rather, all indications are
that juror misconduct of this kind is under
reported, at least to some extent, and
that the reported cases represent the bare
minimum of cases of misconduct of this
kind.
It is not a phenomenon that is peculiar
to larger jurisdictions and high-profile
criminal trials.
‘DROPPING THE PIN’: WHERE TO FROM
HERE?
The Tasmania Law Reform Institute is
currently researching jurors’ use of social
media and other internet platforms during
criminal trials. The Institute released an
Issues Paper on 21 August, which seeks to:
• assess, as far as is possible, the nature
and gravity of this phenomenon;
36 THE BULLETIN September 2019
• explore how and why juror misconduct
of this kind occurs and the causes
and/or motivations that underlie juror
misconduct of this kind;
• canvas the laws and practices which
currently exist to safeguard against
juror misconduct of this kind as well
as those that exist to remedy and/or
otherwise deal with such misconduct
after it occurs; and
• examine the operation and efficacy of
these measures as well as the possible
alternatives.
The TLRI invites submissions on this
topic until 4 October 2019.
All submissions will inform the
Institute’s final report which will ultimately
consider whether reform of the current
laws and practices is justified and, if so,
what form that should take.
The Issues Paper is available at:
https://www.utas.edu.au/lawreform/publications/ongoing-lawreform-projects2
Jemma Holt is currently working as a Research
Fellow at the Tasmania Law Reform Institute
and prepared the Issues Paper jurors’ use of
digital media during criminal trials. The Paper
is the result of joint research and collaboration
between the Tasmania Law Reform Institute
and South Australian Law Reform Institute.
Jemma also works part time as a Prosecutor at
the Office of the Director of Public Prosecutions
in Hobart. She has previously worked as a
Prosecutor at the Office of the Director of
Public Prosecutions in Adelaide and the Crown
Solicitor’s Office in Adelaide. She is returning
to practice in Adelaide in 2020. B
Endnotes
1 The juror later told fellow jurors that, based on
her research, the difference between the two
involved ‘malice’: R v JP (No 1) [2013] NSWSC
1678; R v JP (No 2) [2013] NSWSC 1679. The
juror was discharged, and the trial proceeded to
verdict.
2 R v Folbigg [2007] NSWCCA 371. The
misconduct was discovered after the jury had
been discharged. On appeal, it was held that
irregularities had occurred, but the appeal was
dismissed.
3 In Western Australia in 2016, a juror in a drugrelated
trial researched methylamphetamine
production online. See Heather McNeill, ‘Calls to
Overhaul WA Jury System After Juror Dismissed
for Facebook Post’. WA Today (online, 13
October 2016) .
4 Registrar of the Supreme Court of South Australia v S;
Registrar of the Supreme Court of South Australia v C
[2016] SASC 93. Both jurors were dismissed and
the balance of then jury discharged. Both jurors
were subsequently convicted of contempt, had
convictions recorded and were fined $3000 each.
5 R v K (2003) 59 NSWLR 431.
6 See Joanne Menagh, ‘Judge “almost speechless
with rage” after third Ronald Pennington trial for
1992 murder aborted’, ABC News (online, 31 July
2014) .
See also R v K
(2003) 59 NSWLR 431.
7 Brenden Hills, ‘Jury Getting off Their
Facebooks’, The Daily Telegraph (online, 12 May
2013) . The
judge became aware of this conduct two months
into the trial after being alerted by the trial
prosecutor. The judge ordered a court officer
to examine the material to see if it included any
prejudicial material. It was ultimately concluded
that the material was not such so as to warrant
the jury being discharged.
8 Andrea Petrie, ‘No-show juror in hot water
over “stupid” action’, The Sydney Morning Herald
(online, 17 April 2010) .
The juror
was referred for potential prosecution.
9 See Heather McNeill, ‘Calls to Overhaul WA
Jury System After Juror Dismissed for Facebook
Post’. WA Today (online, 13 October 2016)
.
10 Michaela Whitcourne, ‘Social media post sparks
probe into jury conduct in sex crime trial’ The
Sydney Morning Herald (online, 15 April 2019)
.
See
also Agelakis v R [2019] NSWCCA 71: On 29
March 2019, the NSW Court of Criminal Appeal
ordered an investigation into the alleged juror
misconduct, pursuant to s 73A of the Jury Act
1977 (NSW).
11 R v JH (No 3) 2014 NSWSC 1966, [8]. Juror
dismissed, trial proceeded to verdict.