Alternative Law Journal
A critical perspective on the Chesterman Report is offered by DARAIUS SHROFF[*]
In an age of mass technology, where society is saturated by the availability of instant electronic communication, the sound byte, the inanity of talkback radio, the monopolisation of media outlets, it is difficult to dissemble the medium from the message, the real from the manipulated, the conscious from the subliminal. A jury in a criminal trial affords a microcosm for a study of the effects of publicity on its deliberations and the extent to which a jury is reactive to, and conditioned by, such all-pervasive exposure.
The Chesterman Report (the Report), though referred to by that title, was actually a collaborative research project of the University of New South Wales and The Law Foundation entitled Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (February, 2001). It was a joint study undertaken by Janet Chan and Shelley Hampton and overseen by Professor Chesterman.
The Report was instigated at the behest of former NSW Attorney-General, Mr Jeff Shaw QC, who granted permission for jurors to be interviewed. The Report is radical in that the veil of secrecy that surrounds jury deliberations has been punctured to afford meaningful insights into the workings of juries, the perceived rather than the actual effects of publicity and our efforts, perhaps misplaced, to control it.
If one starts from the presumption that jurors will be affected by prejudicial publicity, the premise becomes self-fulfilling and provides the bedrock in justification of sub judice laws for contempt. The nexus as to the effect of such publicity on jurors cannot be discredited but neither should it be proffered as a self-evident axiom. The Report undertook an empirical analysis which tested such self-evident precepts against reality.
The Report focused less on the exposure of the jury to publicity and their capacity for such recall and more on the use to which juries put publicity in terms of reaching their verdict. Information is so easily and readily disseminated in our technological society that to constrict the very medium which is the message, adulterated though it may be, is an ill-fated recourse to stemming the tide by checks and controls which can never be afforded the certainty of strict compliance.
Interviews were conducted with 175 jurors, 21 judges, 24 crown prosecutors and 30 defence barristers involved in 41 criminal trials in the Supreme and District Courts between 1997 and 2000. Whether these constitute a representative sample will inevitably be the subject of criticism. The Report's conclusions revealed that in 40% of these trials the verdict resulted in a different outcome to that suggested by the media and in 75% of these trials the judges and counsel were of the view that the verdict was justified by the evidence. Furthermore, 83% of jurors said that the publicity did not impact on their verdict. This may be open to claims that the jurors were disingenuous, that they were subliminally affected but repressed their bias or that it was simply fortuitous that their determination coincided with the weight of the evidence. It may well be that the publicity reflected emotive and stereotyped reactions towards certain offences. As the Report states, the law cannot eliminate all partiality. However, 'what must be avoided is the formation of prejudiced opinions which are held so strongly that they cannot be swayed by contrary evidence put before the juror in the courtroom'.
The Report makes a distinction between 'pre-trial' and 'in-trial' publicity. Significantly, the Report indicates that although the influence of publicity can never be discounted, it cannot be definitively asserted that it thereby taints the deliberations of the jury such as to arrive at a verdict independent of the evidence adduced. It therefore detracts from categorical assertions that all publicity compromises a verdict independently arrived at and should be proscribed under the law of sub judice. However, as the Report states 'the fundamental point remains, our findings presuppose the existence of a regime of sub judice restrictions and would carry little or no validity if that regime were to be wholly or substantially dismantled'.
The Report examines the part played by restrictions on publicity such as changing the trial venue and judicial directions to jurors regarding publicity. In terms of change of venue to deflect publicity, the Report's authors state that their research supports only tentative conclusions. However, they emphasise 'the importance of change of venue as a remedial measure' and suggest 'that changes are not occurring sufficiently frequently or to sufficiently remote locations'. This is significant where local community pressures may be so pervasive as to detract from a fair trial.
A distinction is also made in the Report between generic and specific publicity. As to generic publicity, one of the professionals consulted by the Report states:
I think generic publicity has a potential to influence juries more than specific publicity. Generic publicity is insidious, it is there all the time and we get conditioned to it ... Similarly, what do we expect from drug dealers or drug affected people committing robberies? Or, more insidiously what do we expect from certain sections of our community, eg, the Vietnamese community in a certain locality? So, generic publicity is really, in my view, more dangerous than specific publicity, particularly if it coincides with a trial that happens to be related to the issues.
The Report does not definitively state that jury deliberations are not influenced by prejudicial publicity. However, it does state that the weight attached to such prejudice is not realistically evaluated and that judges are needlessly peremptory in delaying or aborting trials. In terms of judicial directions to jurors regarding publicity, the Report found that jurors trusted their own recollections and confirmed their reaction to media reports of trials which they found to be incomplete, or inaccurate, if not demonstrably biased. Many jurors admitted they ignored judicial warnings not to read newspaper reports and said they followed the daily coverage of the trial. Some even brought newspapers into the jury
room where they were often discussed. Anecdotal instances cited in the Report are of one juror stating, 'newspaper reports are a lot of crap normally ... [Discussing the reports] was the highlight of the day'. Another said, 'if you didn't know any better, you would have thought that the reporter was watching another murder trial, not ours'. Professor Chesterman has stated that 'in some cases, it seemed the perceptions of individual jurors, but not the verdict itself, was influenced by publicity. This suggested the process of discussing the evidence in order to reach a unanimous verdict overrode any influence exerted by the publicity'.
The main thesis of the Report was the likelihood of juries to be susceptible to prejudicial publicity and to consider the evidence as elicited in court independently of it. The findings are stated to be 'reliable at least to the extent of exploding the myth - if indeed such a myth still has currency - that Australian juries generally are mere puppets or playthings of the media'.
The Report's findings were two-fold. First, that jurors appear to recall less pre-trial publicity than judges and lawyers have generally supposed and second, that when considering their verdict, jurors were able to withstand the influence of whatever publicity might be in their minds.
The Report gives a positive endorsement of the jury system with all its attendant anomalies and contradictions. Juries, being an embodiment of our community, are capable of being influenced by emotive and speculative factors. It is time that we accept this and not perpetuate a charade that we start off with emotions, biases and prejudices which are then cast aside by a clinical dissection of facts conducted in the artificial confines of a court, unaffected by the exigencies of life.
[*] Daraius Shroff is a lawyer in the Office of the Director of Public Prosecutions, NSW.
© 2003 Daraius Shroff
 Australian Law Reform Commission, Contempt, Report No 35, 1987.
 Australian, 14 March 2001.