Alternative Law Journal
by Michael Chesterman, Janet Chan, and Shelley Hampton; Sydney; Justice Research Centre, UNSW, 2001; $1 D. Also available at <http://www.lawfoundation.net.au/jrc/publications/> .
edited by Chris Corns; Federation Press, 2001; $33. Also published as Vol. 18(1) Law in Context.
These two recent and rather different publications shed light on the way in which decisions are made in our courts. The first is an empirical study focusing on juries. The second is a collection of academic essays considering the role of judges.
The study by Michael Chesterman, Janet Chan and Shelley Hampton considers the effects of publicity on juries hearing criminal trials. This study involved analysis of 41 criminal trials held in NSW between mid-1997 and 2000. Jurors were contacted via the Sheriff's Office (because of the strict rules regarding contact with jurors about their role) and those who agreed to be interviewed were asked a series of questions in relation to the influence of publicity on the trial: 175 jurors were contacted and 41 were then asked more extensive questions in a follow-up telephone conversation.
In chapter 2 the authors outline their reasons for choosing the methodology used and discuss the strengths and limitations of using juries from real trials (as compared, for example, to mock or shadow juries). The use of actual jury members was deemed appropriate as they were subjected to the ordinary pro cesses of absorbing pre-trial publicity rather than artificially created publicity environments. Thus on typical juries some members may have taken in a large amount of information about the case before they were selected for jury service and others may not have been aware of any such publicity. Participants were questioned about their own exposure to publicity about the specific case and also to 'generic' publicity about the type of offence the defendant was accused of committing. They were then asked a series of questions about the way in which the jury deliberations proceeded in order to determine what effect, if any, the publicity had on the outcome of the trial. The views of 'experts' (the lawyers and judge involved in each case) were also sought as a way of checking whether the outcomes appeared sound to more experienced participants in the criminal justice system.
The core of the report is contained in chapters 3-5 which detail the authors' findings about the jurors' recall of publicity, the influence of the publicity on jury deliberations, and the role played by legal restrictions and remedial measures relating to prejudicial publicity. The authors note that within the scope of the current rules juries demonstrate a 'relatively satisfactory level of resistance ... to publicity' (p.xxi). Thus the study does not conclude that the rules should necessarily be changed, as it concludes that one of the reasons for the ability of juries to deal appropriately with publicity is the existence of the present legal restrictions on prejudicial publicity.
The authors usefully include in chapter 7 an overview of some of the experiences of serving in a jury trial discussed by participants, even though these comments were not directly related to the subject matter of the study. A mixed picture of juries emerges from the study. On the one hand, most jurors were able to assess cases on their merits and were sceptical about media reporting. On the other hand, disturbing stories about abuse, shouting and manipulation by fellow jurors in an attempt to reach unanimous verdicts and the trauma experienced by some jurors raise concerns that could be followed up in further research. Another area in which further research remains to be done is whether the conclusions about prejudicial publicity can be generalised to apply in regional and remote areas. Jurors were more likely to recall publicity about an event that occurred in the area in which they lived. Only six of the trials studied took place outside metropolitan Sydney and, as the authors concede, they could in no way be considered representative.
This study will be of great interest to those involved in the general community debate about the usefulness of juries, as well as to those who have a more specific interest in the ways in which publicity may affect the outcome of trials.
A special issue of Law in Context explores another aspect of the court system by devoting an edition to Reshaping the Judiciary. Five articles, as well as a substantial introduction by Chris Corns constitute the issue. There is an interesting article by Margaret Allars on 'Citizenship Theory and the Public Confidence Rationale for the Bias Rule'. While perhaps not fully exploring the citizenship theory aspect, the article considers the way in which the rules of bias require rethinking, particularly in light of the decision in Pinochet (no. 2) that Lord Hoffmann should have been disqualified from hearing Pinochet (no. 1) because of his links with Amnesty International, which appeared as an amicus curiae.
The article by Peter Russell looking at the way in which the courts in former British colonies can only work as limited agents for change gives an interesting, but rather superficial overview of a variety of judicial approaches to indigenous rights. Elizabeth Handsley asks the important question: 'Can Public Sector Approaches to Accountability be Applied to the Judiciary? 'but she attempts to deal with so many issues in a short piece that she does not have time to develop her theme in the sophisticated way that it deserves. Ivan Potas' overview of the judicial commission of NSW will be of interest to those who are unfamiliar with the workings of this institution and John Willis issues a plea for respect for 'The Magistracy: The Undervalued Workhorse of the Court System'. While all of these articles could have been more rigorous, they may provide useful material for introductory courses in law or legal studies.
Carolyn Evans teaches law at the University of Melbourne.