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New Zealand Law Students' Journal |
Last Updated: 24 October 2012
MEDIA PREJUDICE AND JURY CHALLENGE
EMMA LANGLANDS*
Introduction
The right to a fair trial is given constitutional significance by
its assertion in the New Zealand Bill of Rights
Act.1 The
ability of the court to act against prejudice serves as a safeguard for an
accused’s right to a fair trial: where
the rights to freedom of expression
and to a fair trial cannot both be assured, the courts have held that
it is appropriate
in our free and democratic society to curtail the former in
order to guarantee the latter.2
In the modern era, ensuring the impartiality of jurors has become an increasingly difficult task for the court system. In 1995, the Court of Appeal in Gisborne Herald Co Ltd v Solicitor-General (Gisborne Herald) considered the approach of the Canadian Supreme Court, noting that the consideration of measures to prevent or ameliorate the effect of pre-trial prejudice formed part of the test of contempt of court.3
Possible instruments included adjourning trials, changing venues,
sequestering jurors, allowing challenges for cause and voir dires
during jury selection, and providing strong judicial direction to the
jury.4 The New Zealand Court of Appeal remained unconvinced
that such measures “should be treated as an adequate protection
in this
country against the intrusion of potentially prejudicial material into the
public domain.”5
The rarity of the use of the challenge for cause in the New Zealand legal
system is such that the tool has been described
as
largely
* Candidate for BCA, LLB(hons) Victoria University of Wellington. This article is a revised version of a research paper submitted in 2009 in partial completion of studies. The advice and support of my supervisor Professor Tony Smith, and of my friends and family is gratefully acknowledged.
1 New Zealand Bill of Rights Act 1990, s 25(a).
2 Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA) [Gisborne Herald].
3 Ibid.
4 Ibid.
5 Ibid, at 573.
obsolete.6 Subsequent changes in the judicial climate,
including the modern interaction of the media and the criminal justice system,
require a reconsideration of the way in which the challenge for cause might be
employed to ensure the impartiality of the jury.
This paper illustrates the
ineffective operation of the traditional methods of addressing media prejudice,
the advantages that may
be gained in lessons from other jurisdictions, and the
way in which a modern challenge for cause might operate in the New Zealand
justice system.
A. Challenging a Juror in New Zealand
1. Existing Challenges
The New Zealand jury system provides several mechanisms for the challenge of
a juror. The defence and the prosecution are
able to challenge a
juror on the basis that they are not qualified, are
disqualified, or are ineligible
from serving as a juror.7 The
judge may also issue an order for a juror to stand by on application from one
party with the consent of the other party; the juror
must then return to the
jury panel and will only be called again where there is an insufficient number
to serve on the jury.8 Both parties are also permitted to
challenge four jurors each without cause in what are known as
peremptory challenges:9 these challenges are often used to
challenge a juror whose impartiality is in doubt, but where such doubt is
considered insufficient
to justify challenging for cause.10
The challenge for cause may be exercised where the juror is not
indifferent between the parties, or where the juror
is unable to
act
6 R v Greening [1957] NZLR 906 (CA). See also Law Commission Juries in Criminal Trials (NZLC PP32, 1998), referring to Stephen Dunstan, Judy Paulin and Kelly-Anne Atkinson Trial by Peers?: the composition of New Zealand juries (Department of Justice, Wellington, 1995) in which no challenges for cause were recorded.
7 Juries Act 1981, s 23.
8 Ibid, s 27. R v Taito [2005] NZCA 22; [2005] 2 NZLR 815 (CA) is authority for the practice that the size of the jury panel should be sufficiently large to allow for the exercise of all peremptory challenges, and the possibility that jurors may be stood by. It is therefore unlikely that a juror who is stood by will ultimately serve on that jury.
9 Ibid, s 24. The number of peremptory challenges has been as high as six per party: this was reduced to four by s 17 of the Juries Amendment Act 2008.
10 Law Commission Juries in Criminal Trials (NZLC R69,
2001) [Juries in Criminal Trials, R69].
effectively as a juror because of a disability.11 The
trial judge will determine the matter in private, and in such manner
and on such evidence as he thinks fit.12 To exercise a challenge
for cause, the party must call out ‘challenge’ after the
juror’s name is called and before
that juror reaches his seat.13
This is generally thought to carry great risk: unless the party has
information that is damaging to the potential juror, an unsuccessful
challenge
may leave the juror unwilling to cooperate with the challenging
party.14
The challenge for cause is often passed over in favour of the
peremptory challenge or the consensual procedure
of standing jurors aside.
The limited information available to counsel about potential jurors
renders the challenge
for cause largely ineffective as a tool to ensure
that the trial is free from the influences of prejudicial publicity. The name,
date of birth, occupation, and address of potential jurors are available to
counsel, as well as limited information regarding
their criminal
history.15 This allows counsel to challenge a juror where the
juror may have some connection to the accused, victim or witness, and addresses
the problem of bias originating from a criminal background; however there is
no mechanism to determine the effects of pre-trial
publicity, or
pre-determined attitudes of the jury.
2. Questioning to Establish Cause
Historically, New Zealand legislation provided for the use of voir dire
in a challenge for cause. Section 421 of the Crimes Act 1908 outlined the
procedure to be followed where a challenge for cause was
made. The practice
followed that of the English mini-jury, where the last two jurors sworn
would try the challenged juror
for indifference between the King and the
accused.16 According to T A Gresson J in R v
Greening,
11 Juries Act 1981, s 25.
12 Ibid, s 25(3).
13 Ibid, s 26. See also Juries in Criminal Trials, R69, above n 10.
14 Submission of Sir Graham Speight in Juries in Criminal Trials, R69, above n 10.
15 Gordon-Smith v R [2009] NZSC 20, [2009] 2 NZLR 725 confirmed the legality of jury
vetting in a limited form: namely the practice of obtaining non-disqualifying convictions of the jury panel on which to base peremptory challenges. The Supreme Court added the requirement that the prosecution must pass on the information to the defence where the previous conviction gives rise to a real risk that the juror might be prejudiced against the accused or in favour of the Crown.
16 Crimes Act 1908, s 421(6).
there was no reported case in New Zealand in which a challenge for cause
had followed the procedure set out in the Act; in practice,
the Crown would
stand challenged jurors aside.17 The procedure was repealed
by the Crimes Act 1961,18 and replaced by a more general
provision stating that a challenge for cause shall be determined by the court on
such evidence as
the court thinks fit to receive.19 The current
provision is similar, stating that the judge, rather than the court, shall
determine every challenge for cause, in private,
in such manner and on such
evidence as he thinks fit.20
Questioning to establish cause was addressed in a New Zealand context in
R v Sanders, where defence counsel applied unsuccessfully for an
order permitting the examination of potential jurors for cause during
the
selection of the jury.21 Preceding the trial, there had
been a substantial amount of negative publicity directed toward the
accused’s motor cycle
club, the Road Knights. Defence counsel argued
that:22
... the emotionally charged atmosphere in Timaru in relation to the
gangs was likely to cause some prospective juror’s
minds to become
“so clogged with prejudice” that they would be unable to try the
case impartially.
The High Court considered the earlier New Zealand case of R v
Greening, where T A Gresson J described the use of the challenge for cause
and the procedural requirement of voir dire as “... an imperfect
instrument to secure a fair trial”.23 The use of voir dire
in the United States jury system was described as a waste of time, and the
court was not aware of any reported case in New Zealand
where voir dire
had been exercised to determine a challenge for cause.24
The High Court concluded that in modern society, there can be no
guarantee that jurors will have no knowledge or preconceptions
about the
particular case; however this does not require that jurors must be
cross-examined
17 R v Greening, above n 6.
18 Crimes Act 1961, s 412(2).
19 Ibid, s 363, repealed by s 37(1) of the Juries Act 1981.
20 Juries Act 1981, s 25(3).
21 R v Sanders [1994] 2 NZLR 568 (HC).
22 Ibid, at 570. The phrase “so clogged with prejudice” originates from the judgment of
Lawton J in R v Kray (1969) 53 Cr App 412 at 415.
23 R v Greening, above n 6, at 914.
before serving on a jury.25 Where a real possibility of
impartiality arises, in most cases the juror will either be discharged by the
judge, or stood aside by
the judge under ss 22 and 27 of the Juries
Act 1981 respectively. The questioning of jurors in a challenge for cause
was
held to require “wholly exceptional” circumstances,26
following the English Court in R v Kray.27 The Court of
Appeal agreed with the High Court, adding that such inquiries would be time
consuming, inconclusive and intrusive, and
that the quality of the jury gained
after such a process would be questionable.28
B. The Modern Media
The methods by which news media operate have developed substantially since the worldwide adoption of the internet: the digital environment has been described as a “... new paradigm for the availability and dissemination of information”.29 The growth of news media websites has broadened the availability of news, and extended the length of time that information is available in an unprecedented manner.30 Traditional media providers such as TVNZ, Fairfax Media, and Radio NZ have converged online, with newspapers providing online editions of publications, and radio and television stations providing online streaming. Such information may be archived, and the database is usually made available to global search engines such as
‘Google’ and ‘Yahoo’. The ability of
information to migrate from online media outlets to web-logs
and forums
for social commentary illustrates the danger that once information is
published online, it is difficult to
track down and remove. The explosive
popularity of the web-log (blog) and the amateur nature of such media raise
concerns as
to the volume and quality of the information released in the
public domain. These developments have not gone unnoticed
by the courts, who
remark that the internet is “... part and parcel of the lives of many New
Zealanders today.”31
Auckland University Law and Information Technology lecturer
Judge
25 R v Sanders, above n 21.
26 Ibid, 577.
27 R v Kray, above n 22.
28 R v Sanders [1995] 3 NZLR 545 (CA).
29 Police v PIK and Others YC Manukau CRI 2008 092-013287, 19 September 2008 at [49].
30 Police v PIK and Others [2008] DCR 853 (YC).
31 R v Cara (2004) 21 CRNZ 283 (HC), at [79].
DJ Harvey identifies the viral quality of the internet and the
vast potential for the dissemination and preservation
of information.32
He distinguishes between two different media: the traditional print or
broadcast media, and digital media. Traditional media
possesses the
quality of immediacy: information is communicated at a point in time, and the
level of comprehension will depend
on the amount of time that the information
is available.33 In contrast, digital media possesses a
greater preservative and disseminatory power; once information has been
published
on media websites it can spread to blogs or be logged in an online
archive.34
Ownership of media in New Zealand is concentrated, and tends to be in the
hands of large overseas media and investment corporations.
Fairfax New
Zealand and APN News and Media between them dominate the print media,
owning all national daily newspapers except
one.35 The large number
of radio stations in New Zealand also lack competition; approximately 85 per
cent of radio audiences listen
to MediaWorks and The Radio Network
stations.36 The New Zealand Press Association is the largest news
agency in New Zealand, providing news to Fairfax New Zealand, APN News and
Media
and other independent media, and editing international newsfeeds for
New Zealand audiences. Due to these features
of the New Zealand media, sources
and stories are often shared, and repeated in publications or stations
nationally: this
accessibility is enhanced by the broad
availability of news online, regardless of locality. The development of the
media has implications for the traditional assumptions about the effect of
the media in the justice system: judicial
tools to remedy exposure,
such as change of venue, may have a limited effect on increasingly nationalised
New Zealand media audiences.
32 Police v PIK and Others, above n 30.
33 Ibid.
34 Ibid.
35 Bill Rosenburg “News Media Ownership in New
Zealand” (2008) Campaign Against Foreign Control of Aotearoa
<http://canterbury.cyberplace.org.nz>
.
Fairfax New Zealand own The Dominion Post, The Press, Waikato Times and six
provincial dailies; APN News and Media own The
New Zealand Herald and nine
provincial dailies; The Otago Daily Times is owned independently.
C. The Media and the Justice System
A Law Commission report considered research carried out on juries in criminal
trials, stating that “jurors are not generally
affected by the
current level of pre-trial or during-trial publicity.”37
Significantly, the Commission noted that should levels of publicity
change, a greater impact and different result would be
expected.38
In light of the development of modern news media, the impact of pre-trial
publicity on potential jurors can no longer be dismissed
as negligible, and
judicial instruments used to address prejudice may no longer be effective. The
following discussion identifies
a selection of methods employed by the judiciary
to address the effect of the media on the justice system, and attempts to
demonstrate
the inability of those methods to protect the accused’s right
to a fair trial in modern society.
1. The Law of Contempt
In the pre-trial period, the law of contempt acts as a deterrent to those
considering the publication of prejudicial material,
and its precedent
acts as a guideline to those hovering on the edge of illegality. To
establish contempt, it is necessary
for the Solicitor General to show “...
whether as a matter of practical reality there is a real risk, as opposed to a
remote
possibility, of interference with a fair trial.”39
Following the High Court decision of Solicitor-General v
Fairfax New Zealand Ltd (Fairfax), it seems that editors, and those with
editorial responsibilities, are more willing to test the boundaries
especially when
taking into account financial
motivations.40
37 Juries in Criminal Trials, R69, above n 10, at 180, discussing the findings in W Young, N Cameron and Y Tinsley Jury Trials in New Zealand: A Survey of Jurors (1999) [Jury Trials in New Zealand].
38 Ibid. The Commission looked to the results of United States jury research, noting that
while the degree of pre-trial publicity in the United States was greater than that of New Zealand due to the First Amendment to the United States Constitution, it could be assumed that a higher level of pre-trial publicity would have a greater effect on jurors.
39 Solicitor General v Wellington Newspapers Limited [1994] NZHC 1740; [1995] 1 NZLR 45 (HC), at 56. See also
Solicitor General v W & H Specialist Publications Limited [2003] 3 NZLR 12 (HC) and R v
Rickards HC Auckland CRI-2005-063-1122, 28 November 2005.
40 See Solicitor-General v Fairfax New Zealand Ltd [2008]
BCL 1007 (HC) [Solicitor-General v Fairfax] where the Court noted several
comments made by Tim Pankhurst, then editor of the Dominion Post, detailing the
financial rewards
that the newspaper had reaped as a result of the publication.
See also David Morrison and Michael Svennevig The Public Interest, the Media
and Privacy (British Broadcasting Corporation, Manchester, 2002) who suggest
that the media are motivated by their pecuniary interests, and not
solely by
public
The Fairfax case explored the modern application of the law
of contempt, following the publication of newspaper articles detailing
police surveillance on suspected terrorist activity in the Urewera
ranges.41 The unsuccessful prosecution raised questions as to the
effectiveness of the law of contempt to guard the right to a fair trial:
despite the fact that the Solicitor-General described the articles as
“... the most serious challenge to the public policy
underpinning the law
of contempt that New Zealand has ever seen”,42 the
court was not convinced that the publication added materially to the existing
body of prejudice in the public domain.43 The cumulative effect of
the media is effectively ignored by the law as contempt must be assessed for
each publication individually:44 this weakness is amplified when
considering the competitive nature of modern media. A similar concern
was expressed by Lord
Justice Phillips, who noted that the English offence of
contempt of court: 45
... raises the almost insoluble problem of the incremental effect of
publications, no single one of which can be said to create
a substantial risk of
serious prejudice but which, when taken together, certainly do so.
The internet and its transformation of communication and media in modern
society also pose problems for the effective operation
of the law of contempt.
The popularity of blogs in modern society has been attributed to the
influence of the internet
on the lives of New Zealanders, as well as
the growing trend for professional journalists to maintain blogs.46
Prominent blogger David Farrar pointed to the difficulties that
interactive blogs can present: public discussion boards
interest in the matter.
41 Solicitor-General v Fairfax, above n 40.
42 David Collins QC, Solicitor-General “Closing Submission in Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV 2008-485-000705, 10 October 2008” (undated) at [178].
43 Solicitor-General v Fairfax, above n 40.
44 ATH Smith “The Future of Contempt in a Bill of Rights Age” (2008) 38 HKLJ 593.
45 Nicholas Phillips, Baron Phillips of Worth Matravers “Challenge for Cause” (1996) 26
VUWLR 479, at 483. See also David Corker and Michael Levi “Pre-trial Publicity and its Treatment in the English Courts” [1996] Crim LR 622 where the risk of prejudice was said to arise in reality from the cumulative effect of publicity decisions over time, and not typically from single articles.
46 Philip Mathews “Bloggers left and right” The Press (New Zealand, 15 February 2008)
on online forums are rarely monitored, and the pre-approval of comments on popular forums is often administratively unworkable.47
The authors of comments are also relatively anonymous, and difficult to
identify.
During the 2009 trial of Clayton Weatherston, attention was called to the
number of internet blogs and social forums that had discussed
the trial.48
Two websites were investigated by the Solicitor-General’s office
for contempt of court: a Facebook group page entitled ‘Clayton
Weatherston
is a Murderer. He committed murder, not manslaughter’, and Farrar’s
Kiwiblog, where comments were posted
about Weatherston by Farrar.49
Similar Facebook pages were created during the retrial of David Bain
in 2009, and suppressed information was posted online
during the historic
police rape trials in 2007.50 Although occurring in the trial
period, such activity is similarly common in the pre-trial period, as
individuals increasingly
turn to the blogosphere for information, networking,
and public debate.51 Wellington lawyer Peter Dengate Thrush is
reported as commenting that “the problem is we are dealing with legal
concepts
that have taken us hundreds of years to refine, but they were
developed in a world where the internet didn't
exist.”52
2. The Law of Suppression
The right to freedom of expression is upheld by s 14 of the New
Zealand Bill of Rights Act 1990, and is subject
to limitation as
prescribed by s 5 of the same Act. The media’s right to freedom of
expression and that of individuals
in a public forum has increasingly become
a cause for concern for the courts. Information introduced into the public
domain in
the pre-trial and trial periods have always drawn
47 Rebecca Milne “Trial commentators under scrutiny” The New Zealand Herald (New
Zealand, 12 July 2009) <www.nzherald.co.nz>.
48 Ibid.
49 Emma Page “Trials under threat from online chatter” Sunday Star Times (New Zealand,
9 August 2009) <www.stuff.co.nz>. The investigation concluded that there had been no
breach of contempt of court laws: email from David Farrar to the author regarding the
Solicitor-General’s investigation (25 July 2010).
50 Ibid.
51 Bill Ralston “Public opinion on Key turns rabid” The New Zealand Herald (New Zealand,
7 October 2007) <www.nzherald.co.nz>.
52 Page, above n 49.
attention, as the potential exists to improperly influence those who play a
part in the administration of justice. In
New Zealand, the
conventional approach is to restrain freedom of expression only to the extent
that it results in a real risk
to the right of a fair trial.53
Other jurisdictions have focused on an unfettered right to
freedom of expression, directing fair trial concerns
at the jury
system, and minimising their exposure to such influence.54
The law of suppression operates as a preventative tool, designed to
allow the courts to wield some control over information
entering the public
domain. Where it is in the interests of justice that information be suppressed,
the court is able to limit
the public’s right to freedom of expression.
The Court of Appeal in R v B stressed that in deciding whether to
grant a suppression order, consideration must be given to whether and how a
fair trial can
be defended, and the orders awarded must reflect the facts of the
particular case.55 The courts have accepted the media’s right
to publish news contemporaneously with its newsworthiness; however this ability
to publish when desired may be curtailed where the public interest of a fair
trial demands.56
In considering whether to grant a suppression order, the court must operate on the assumption that the media will ensure that reporting is fair and accurate, and that a balanced account is given to the public.57
The reliance on the integrity and responsibility of news media is
supported by professional regulation of the
industry by such
organisations as the Press Council for newspapers and print
publications and the Broadcasting
Standards Authority for
broadcasters.58 Despite having comparable powers of
communication and dissemination to traditional media, many bloggers and
internet
53 Solicitor-General v Fairfax, above n 40.
54 The United States Supreme Court in Sheppard v Maxwell [1966] USSC 109; 384 US 333 (1966) stated that it
was unwilling to place any direct limitations on the freedom traditionally exercised by the news media, instead focusing on methods including sequestration of the jury, voir dire, protective orders, change of venue, and strong judicial direction to jurors.
55 R v B [2008] NZCA 130, [2009] 1 NZLR 293.
56 R v Burns (Travis) [2002] 1 NZLR 387 (CA).
57 Curtis v Police [2008] DCR 259 (HC).
58 “Statement of Principles” New Zealand Press
Council <www.presscouncil.org.nz>; s 4
of the Broadcasting Act 1989 outlines the responsibility of broadcasters for
programme standards. The standards encompass
concepts including accuracy,
privacy, the maintenance of law and order and balance.
users do not consider themselves bound by these same rules.59
As noted in the English Court of Appeal in R v Karakaya, the
internet is not a neutral source of information:60
The internet has many benefits, and we do not mean to diminish its value.
Of course, not every site is always right. Some
sites seek to persuade.
The contents of some are inconsistent with the assertions made in
another.
The courts have acknowledged that there are limitations on their ability to control information, and stressed that for the law of suppression to operate effectively there must be public support for their decisions.61
The development of news media outside the application of professional standards, and incidents of online breaches of suppression orders,62 have resulted in public concern about the effectiveness of such orders.63 A breach of a suppression order can result in a fine up to
$10,000 or potential prosecution for contempt of court;64
however most breaches are only subject to a maximum fine of
$1,000.65 This lack of an effective deterrent for breach of a
suppression order was identified by the High Court in Fairfax,
who urged Parliament to consider substantially increasing the
penalties.66 The Law Commission has since recommended an increase
in the penalties for breaches of suppression orders.67
Jurisdictional difficulties arise when suppressed information is
breached
59 Page, above n 49.
60 R v Karakaya [2005] EWCA Crim 346, at [26].
61 R v B, above n 55.
62 See for example New Zealand Press Association “Lawyer says All Black's name will
have to go from website” The New Zealand Herald (New Zealand, 4 March 2005)
<www.nzherald.co.nz>. The permanent name suppression order was breached on a
United Kingdom website as individuals speculated and accurately posted the name of the
All Black.
63 Peter Jenkins “Name Suppression” The Sensible Sentencing Trust
64 A person that breaches an order made under s 138(2)(c) of the Criminal Justice Act
1985 may be dealt held in contempt of court. A person that breaches s 438 of the
Children, Young Persons, and their Families Act 1989 is liable on summary conviction to a maximum fine of $2000 for an individual, and $10,000 for a body corporate.
65 A person that breaches an order made under s 138(2)(a) or (b), or s 140 of the
Criminal Justice Act 1985 is liable on summary conviction to a maximum fine of $1000.
66 Solicitor-General v Fairfax, above n 40 at [138].
67 Law Commission Suppressing Names and Evidence (NZLC R109,
2009).
on foreign websites.68 The fact that the information on
the foreign website must first be downloaded in New Zealand raises the argument
that publication
– and therefore actus reus – has occurred
in New Zealand, however this has not yet been successful in a
New Zealand
court.69
In Police v PIK and others Judge DJ Harvey granted an internet
specific suppression order, allowing publication to a newspaper or by way of
contemporary
radio or television broadcast, but prohibiting publication on a
website or internet server.70 The order was given out of concern
that at a later stage, availability of information stored online might prejudice
the right to
a fair trial. The Judge considered that by prohibiting
the publication of such material online, the spread, and availability
of the
information is “seriously inhibited”.71 The legitimacy
and effectiveness of the order was widely questioned,72 and it was
withdrawn in a later judgment.73 Although publication of
information on the internet is prohibited by general suppression orders
on an everyday basis,
no further internet specific suppression orders
have been granted since Police v PIK and
others.74
68 See NZ Herald Staff “Suppressed names appear in online forum” The New Zealand
Herald (New Zealand, 26 August 2008)
69 Police v PIK and Others YC Manukau CRI 2008-092-013286, 3 September 2008. The Judge considered the impact of the Australian case Dow Jones v Gutnick [2002] HCA 56 involving an action for defamation brought by a Victorian businessman against Dow Jones & Co Inc for statements made on their online magazine and subsequently accessed by individuals in Victoria. The High Court of Australia in that case held that downloading the article from the internet constituted ‘publication’ in the place in which it was downloaded.
70 Police v PIK and Others, above n 30. The order was made under s 438 of the Children,
Young Persons and their Families Act 1989, which operates on a presumption of suppression.
71 Police v PIK and Others, above n 69, at [54].
72 “Suppressed names appear in online forum”, above n 68.
73 Police v PIK and Others, above n 29.
74 In Suppressing Names and Evidence, above n 67, the Law Commission upheld the
legitimacy of an internet specific suppression order, but stated that they
could not envisage an appropriate situation for such an
order.
3. Judicial Direction
One of the primary tools used to address the influence of
pre-trial media is the judicial direction given to the
jury. The High
Court decision in R v Rickards summarised the presumed effect on the
jury:75
It is not to be assumed that jurors ignore judicial directions to put to one
side matters they may have heard outside the
Court. Again, experience
shows that jurors are responsive to judicial directions of that kind and
tend to be more
robust than defence counsel often assume. A strong
judicial direction to the jury will be given in respect of pre-trial
publicity.
The strength of judicial belief in the effect of direction can
be illustrated by reference to the abandoned trial of
Eric Smail for murder.
Smail had previously pleaded guilty to the charge, and was allowed to appeal
under unusual circumstances.76 The jury was not to be told of the
prior court proceedings, however the history of the proceedings, and
Smail’s guilty
plea were available freely online.77 The
jury was partially empanelled: due to a lack of potential jurors,
they were dismissed for the night without having
had judicial direction. A
concern was raised by defence counsel that any member of the jury, being
acquainted with the names of the
parties involved, might access information
about the case online and view the accused’s argument for manslaughter
with some
scepticism. The court dismissed the jury, holding that the fact
that they had knowledge of the case before any direction could
be given created
“... an unacceptable and avoidable risk to fair trial process”,
and that the judicial direction
would be of “heightened
importance” to the jury eventually empanelled.78
Foreign jury research has drawn attention to occasions where judicial
direction to disregard prejudicial material has not
had an effect, or
where juror assertions of impartiality have proved incorrect.79
This
75 R v Rickards, above n 39, at [97].
76 R v Smail [2009] NZCA 143.
77 See for example Jarrod Booker “Caregiver who killed Paralympian escapes life term”
The New Zealand Herald (New Zealand, 13 May 2006) <www.nzherald.co.nz>.
78 R v Smail, above n 76, at [40]-[41].
79 Christina A Studebaker and Steven D Penrod “Pretrial
Publicity: The Media, the Law, and Common Sense” (1997) 3 Psych Pub
Pol
and L 428. The article detailed a study by Kramer, Kerr and Carroll (1990) that
concluded that pretrial publicity instructions
did not reduce the bias effect of
exposure to pretrial publicity.
raises serious questions as to the effectiveness of judicial direction as a
tool to mitigate prejudice in the jury system. Difficulties
arise when the case
involves substantial prejudicial material: where other methods have failed to
prevent such material from entering
the public domain, a possibility exists
that a specific direction not to ‘google’ the material might
unintentionally
encourage jurors to seek that information outside the
courtroom.80
The decision of the English Court of Appeal in R v Thakrar involved an
appeal against a conviction entered despite the judge’s knowledge that a
member of the jury had accessed online
information concerning a
previous conviction of the accused.81 The court found that there was
a real possibility that members of the jury had not followed the judge’s
direction. Commentary
on R v Thakrar suggested that the case might be an
indication that explicit reference to the internet should be made in every
situation.82 Currently, the recommended direction from the
United Kingdom Judicial Studies Board warns the jury not to attempt to obtain
information elsewhere, for example the internet.83 In New
Zealand, a Law Commission report indicates that only 18 per cent of the
judiciary specifically include the internet in
their direction to the
jury; the low figure was attributed to the belief that pointing to the
internet as a source of such
information might unintentionally awaken jurors to
the possibility of doing so.84 The High Court in R v Harder
acknowledged this risk, concluding that “it is probably
preferable in such cases to alert the jury to the fact the case
has previously
attracted publicity and stressing that it is therefore even more
important that jurors comply with the standard
directions.”85
Research carried out by the Law Commission found that in trials where there
had been pre-trial publicity, only two jurors from a pool
of 312 jurors
acknowledged that the publicity had impacted on their
thinking.86 The study went on to state that because jurors are
generally
80 R v B, above n 55.
81 R v Thakrar [2008] EWCA Crim 2359.
82 N Taylor R v Thakrar [2009] Crim LR 357-8.
83 United Kingdom Judicial Studies Board Crown Court Bench Book Specimen Directions (2008)
part 55A.
84 Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and
Bad Character (NZLC R103, 2008). See also R v B, above n 55.
85 R v Harder HC Auckland CRI-2003-404-000291, 5 February 2004 at [44].
86 Law Commission Juries in Criminal Trials (NZLC PP37, 1999)
Volume 2 summarised
aware of the dangers of bias, and the importance of coming to a
decision based solely on evidence heard in the courtroom,
jurors who have been
affected by pre-trial publicity are often reluctant to admit to such bias, or
may be unaware of any biases or
preconceptions arising from the publicity, or
believe that they have put them aside. In one trial, evidence was found
that
pre-trial publicity may have influenced the collective deliberations of
the jury: all of the jury had knowledge of the case and
of the accused and his
history, and had referred to this extensively in their deliberation.
This research has been cited in New Zealand and abroad as authority for the
proposition that the impact of pre-trial publicity
and of prejudicial
media coverage during the trial, even in high profile cases, is minimal.87
It is dangerous to treat such research as conclusive evidence that no
further action is necessary to address the effect of publicity
in the jury
system.88 The type of publicity surveyed in the study may differ
substantially from publicity in a specific case,89 and
furthermore, the Law Commission acknowledges that should levels of media
publicity increase, the assumption is that there
would be a greater effect on
the jury.90
D. The Challenge for Cause Abroad
1. The United States
The United States voir dire is perhaps the most well known illustration of examination of jurors in jury selection, and involves the examination of all prospective jurors to establish their qualifications and fitness to serve on a jury, and to ensure the selection of fair and impartial jury.91
There is no presumption of juror partiality – all members of the jury
pool are presumed to be suspect. The questioning of a potential juror will
usually centre on the exploration of that juror’s
private
attitudes
the findings Jury Trials in New Zealand , above n 37.
87 See R v Burns (Travis) (No. 2) [2002] 1 NZLR 410 (CA); HM Advocate v Montgomery [2003]
1 AC 641; R v Abu Hamza [2006] EWCA Crim 2918, [2007] QB 659.
88 Smith, above n 44.
89 R v Burns (Travis), above n 56.
90 Juries in Criminal Trials, R69, above n 10.
91 Les A McCrimmon “Challenging a Potential Juror for Cause: Resuscitation or
Requiem?” (2000) U NSWLR 127.
and practices, and may include inquiries about the juror’s
religious beliefs, education, drinking habits, occupation,
hobbies, prior
experience with lawyers, and knowledge of the trial.92 This
meticulous scrutiny of potential jurors has meant that in some cases, the
process of jury selection may take as much time as
the trial
itself.93
Whether the voir dire is conducted by the trial judge or by
counsel depends on the particular court; however many federal and state courts
limit
voir dire to the direction of the judge in the interests of
reducing time devoted to jury selection.94 The process
is often used to indoctrinate, or sway jurors as to the merits of a
particular case: it has been noted that if
voir dire is conducted well,
“... by the time you reach opening statement, you will be preaching to the
converted.”95
The nature of the questions has also raised serious concerns as to
whether the process is an unwarranted intrusion into
the privacy of the
potential juror, and used to identify those are open to persuasion, rather than
to identify potential bias.96 Because of a preference for those who
have no knowledge of publicised affairs, the jury system is often
criticised for
targeting potential jurors in a manner that is
not representative of society as a whole. This criticism is
in no way
a modern development: Mark Twain noted in 1872 that “the jury system puts
a ban upon intelligence and honesty,
and a premium upon ignorance,
stupidity and perjury.”97 Although arguably more prevalent in
the United States due to the constitutionally protected right of
freedom of expression,
similar concerns exist in other jurisdictions.
98
92 See Albert W Alschuler “The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts” (1989) 56 U Chi L Rev 153; McCrimmon, above n 91.
93 Alschuler, above n 92. A famous example of lengthy jury selection is the Connecticut
jury in the New Haven Black Panther trial of Bobby Seale in 1970 that was selected after four months of questioning, during which 1,000 potential jurors were examined.
94 See V Hale Starr and Mark McCormick Jury Selection: An Attorney’s Guide to Jury Law and
Methods (Little, Brown and Company, 1985) 39, cited in Alschuler, above n 92.
95 Susan E Jones “Voir Dire and Jury Selection” (1986) 22 Trial 60, at 66, cited in
Alschuler, above n 92.
96 Alschuler, above n 92.
97 Mark Twain Roughing It (1872) Chapter XLVIII.
98 (20 November 1979) 974 GBPD HC 210. In abolishing the right
of peremptory challenge, Alfred Dubs MP noted the publicised example of
an
Etonian professor who was the subject of a peremptory challenge, and his
grievance with his exclusion from such an important public
role.
2. The United Kingdom
In 1988, the United Kingdom Parliament passed the Criminal Justice Act
into legislation, abolishing the right of peremptory
challenge.99
It was considered that the peremptory challenge had
engineered imbalance due to the assistance that the prosecution
were given by
the police in vetting the jury; detracted from the premise of random
selection; impacted on the civil
liberties of jurors and gave the
procedure a veil of secrecy going against the presumption of open
justice.100 The operation of majority verdicts was considered to
be a sufficient safeguard against any idiosyncratic individual
who
may become a member of the jury.101
Lord Justice Phillips has since raised a concern that the inability of defence counsel to remove a juror who, from his look, or the manner in which the oath is taken, is considered “totally unsuitable to be entrusted with the responsibility for determining a verdict” poses a problem for the system.102 In the absence of evidence meeting the requirement of a challenge for cause, the ability of either party to stand by such a juror with the consent of the other party is the only remaining tool;103 this is often time-consuming and embarrassing.104
The extraordinary stay of prosecution of Geoff Knights in the United Kingdom
is illustrative of the increasingly apparent conclusion
that the current
mechanisms in the criminal justice system are no longer able to conquer the risk
posed by media publicity to an
accused’s right to a fair
trial.105
99 Criminal Justice Act 1988 (UK), s 118(1).
100 Alfred Dubs MP, above n 98.
101 Ibid.
102 Nicholas Phillips, above n 45, at 483.
103 Shortly after the Criminal Justice Act 1988 (UK) was passed, the Attorney General
issued Practice Note [1988] 3 All ER 1086 limiting the right of the prosecution to exercise the right to stand a juror by.
104 Nicholas Phillips, above n 45.
105 Attorney General v MGN Ltd and others [1997] 1 All ER 456. The contempt of court
proceedings concerned the unlawful, misleading and scandalous reporting by MGM in relation to a charge of wounding with intent against Geoff Knights. The publicity later led to a stay of proceedings, the only known incidence in reported case law. See also (26
October 1995) 264 GBPD HC 797-807, where the Attorney-General said that at least
five trials in the last three years had been halted as the trial judge had
decided that media coverage would make a fair trial impossible.
The abolition of the peremptory challenge, along with strict limitations on the prosecution’s right to stand jurors by, have given a new significance to the challenge for cause in the English courts. The grounds of challenge include, among others, presumed or actual bias.106
The challenger must show “a foundation of fact creating a prima facie
case before a juror can be cross-examined.”107 Where there
has been significant pre-trial publicity, it seems that the challenger must
show that publication has “positively
caused a particular juror to be
unable to try the case impartially.”108 This requirement
generally precludes the cross-examination of jurors to establish cause;
however in rare cases knowledge
of the case gained through the media may found
a challenge for cause.109
In the United Kingdom, questioning to establish cause has been
allowed only in a select number of cases. In R v Kray, Lawton J required
prospective jurors to complete a questionnaire, prepared with the help of
counsel.110 He considered the completed questionnaire with counsel,
examining jurors to explore the possibility of prejudice as suggested by the
questionnaire. There had been significant coverage of an earlier trial,
and publication of discreditable background information
about the defendants and
inadmissible evidence. The court held that reporting of a previous trial where
the verdict was adverse to
the defendant would not usually provide an argument
for potential bias; conversely, where those publications had deliberately
published discreditable allegations knowing that there was to be a later trial,
there was a presumption that potential jurors might
find it difficult to remain
impartial. Regret was expressed at the necessity of such action, and
the practice was
described as “... foreign to the spirit of the
administration of justice in this country.”111 It was
stressed that the circumstances demanding such an action were “wholly
exceptional” and that the case should not
be taken gifting “... a
licence for counsel to examine and cross-examine
106 Juries Act 1974 (UK), s 21(5). This was confirmed in R v Mason [1981] QB 881.
107 R v Chandler [1964] EWCA Crim 1; [1964] 2 QB 322 at 338.
108 Richard Buxton QC “Challenging and Discharging Jurors – 1” [1990] Crim LR 225, at
232.
109 Ibid.
110 R v Kray, above n 22.
111 Ibid, at 416.
prospective jurors as to what they believe or do not
believe.”112
In R v Maxwell, the jury was empanelled over a period of several days,
during which they were presented with a questionnaire in order to
identify those jurors who might be prejudiced as a result of the media
coverage.113 Lord Justice Phillips expressed reluctance at the use of
questionnaires, expressing concern that the precedent might lead to practice
similar to that in the United States; however it seemed “... a lesser
evil than staying proceedings on the ground that there
can be no fair
trial.”114 It may be that in New Zealand, where the
effectiveness of alternatives measures – such as change of venue –
may be limited,
the challenge for cause could be put to use where an application
for a stay of proceedings is under consideration. Indeed, surprise
was
expressed that the approach in R v Maxwell was not adopted by McGechan J
in Gisborne Herald, where an application to question the jury as to
whether they had read a prejudicial article from a local newspaper
in
a neighbouring jurisdiction was declined.115 The Court of
Appeal in Gisborne Herald reiterated the undesirability of examination
of jurors for cause as expressed in R v Sanders,116
and highlighted the lack of empirical data as to the impact of media
publicity on jury behaviour in a New Zealand context.117
3. Australia
The mechanisms for challenging a juror differ among Australian states.
Generally, a challenge for cause is exercised on the
basis of limited
information, and subsequently has little practical relevance.118
Both
112 Ibid.
113 R v Maxwell (25 May 1995) unreported (CCC) Phillips J. The trial was that of brothers Kevin and Ian Maxwell, and Larry Trachtenberg, acquitted of fraud charges following a United Kingdom Serious Fraud Office investigation into their father Robert Maxwell’s corporations. The defendants received significant adverse publicity, enhanced by the fact that the alleged fraud involved the plundering of employee pension funds.
114 Nicholas Phillips, above n 45, at 484.
115 Gisborne Herald, above n 2. The case was discussed in Corker and Levi, above n 45.
116 R v Sanders, above n 28.
117 Gisborne Herald, above n 2. The case preceded Jury Trials in New Zealand, above n 37.
118 Philip R Weems “A Comparison of Jury Selection Procedures for Criminal Trials in
New South Wales and California” [1984] SydLawRw 5; (1984) 10 Syd LR 330. Information might
include the juror’s name, appearance and occupation. Jury vetting in
respect of information provided by the
police is prohibited in New South Wales
by s 67A of the Jury Act 1977 (NSW), and was subsequently held to be unlawful in
Victoria under s 21(3) of the Juries Act 1967
parties have an unlimited right to challenge for cause in all
states;119 however such challenges are relatively rare.120
The High Court of Australia ruled in Murphy v R that for
a challenge for cause to be exercised it is necessary to establish a prima
facie foundation of fact to anticipate
the probability of prejudice in an
individual juror: once founded, that juror may be questioned under oath by
the judge.121 If disqualification or bias has been found on the
balance of probabilities, the juror will be removed from the panel.
Where
the challenge for cause is based on alleged partiality, Murphy v R
confirmed that a prima facie foundation of fact is necessary to justify a
challenge for cause:122
There may be cases where a reading by the trial judge of offending material,
where it has been published in circumstances that
justify an inference that
members of the jury are likely to have read it and to have been influenced
against the accused,
will be enough to justify acceding to an application
to question potential jurors. But they are exceptional cases.
The High Court of Australia went on to state that the fact that one
prospective juror had volunteered to the court that she felt
unable to fulfil
her duty impartially due to publicity was not sufficient to establish a sound
basis to anticipate the probability
of prejudice on the part of an individual
juror.123 Mention was made to the inappropriateness of permitting a
“fishing expedition with each prospective juror,” referring
to the
voir dires of the United States.124
4. Canada
The challenge for cause in Canadian jurisdictions is governed by the
Criminal Code: a prosecutor or accused is entitled to any number
of
(Vic) in R v Katsuno (1997) 99 A Crim R 350, at 358.
119 Jury Act 1977 (NSW), s 41; Juries Act 2000 (Vic), ss 34, 37, 40; Juries Act 1927 (SA), s
67; Jury Act 1995 (Qld), s 43(1); Juries Act 1957 (WA), s 38(1); Juries Act 1899 (Tas), s
52; Juries Act 1967 (ACT), s 34(2)(c); Juries Act 1962 (NT), ss 42, 46.
120 New South Wales Law Reform Commission The Jury in a Criminal Trial (NSWLRC R48, Sydney, 1986), cited in McCrimmon, above n 91. The study recorded only one challenge for cause based on partiality, where a juror who was known to a witness was successfully challenged.
121 Murphy v R [1989] HCA 28.
122 Ibid, at [24].
123 Ibid.
124 Murdoch, Murphy, Murphy and Murphy v R (1987) 37 A Crim R
118, at 126.
challenges on the ground that a juror is not indifferent between the Queen and the accused.125 Procedure departs from Australian and English authorities in that a prima facie foundation of fact is not necessary to establish grounds for a challenge for cause: to meet the burden, there must merely be an “air of reality” to the application.126
This has been described as the lowest burden of proof in the law of
evidence:127 the question is not whether there is a
probability of partiality, but whether there is a realistic potential for the
existence
of partiality.128 The Supreme Court of Canada has stated
that the burden generally requires satisfying the court that a widespread
bias exists in
the community, and that some jurors may be incapable of setting
aside this bias, despite trial safeguards, to render an impartial
decision.129
Interestingly, one the grounds for a challenge have been established, the
challenge can be used, in appropriate circumstance,
to questions each
prospective juror.130 The challenge for cause is determined by a
mini-jury of the last two sworn jurors, or two prospective jurors if no jurors
have been
sworn.131 The decision of the two jurors is final, and
there is no right of appeal.132
The Ontario Court of Appeal in R v Hubbert were adamant that
development of the procedure should not resemble the United States challenge
for cause,133 and subsequent case law makes it clear that the courts
will not allow the challenge for cause to be used as a “fishing
expedition.”134 The scope, content and number of
questions is managed by the judge, who is guided by common law direction as to
discretion:
the process cannot be used to determine the character of the juror;
to try to achieve a favourable jury; to deliberately discover
information on
which to base a peremptory challenge; to indoctrinate the jury as to the merits
of the challenger’s case;
or to cause the jury to
125 Criminal Code RSC 1985 c C-46, s 638.
126 R v Sherratt [1991] 1 SCR 509, at 535.
127 David M Paciocco, David M Tanovich and Steven Skurka Jury Selection in Criminal
Trials: Skills, Science, and the Law (Irwin Law, 1997), cited in McCrimmon, above n 91.
128 R v Sherratt, above n 126; see also R v Find 2001 SCC 32, [2001] 1 SCR 863.
129 R v Find, above n 128.
130 McCrimmon, above n 91.
131 R v Sherratt, above n 126.
132 Ibid.
133 R v Hubbert (1975) 29 CCC (2d) 279.
134 R v Sherratt, above n 126, at 528.
over or under represent a certain class of society.135 L’Heureux-Dubé J in R v Sherratt justified the use of voir dire in determining the challenge for cause as such:136
If the challenge process is used in a principled fashion, according to its
underlying rationales, possible inconvenience to potential
jurors or the
possibility of slightly lengthening trials is not too great a price for society
to pay in ensuring that accused persons
in this country have, and appear to
have, a fair trial before an impartial tribunal, in this case, the
jury.
E. Development of the Challenge for Cause
1. The Value of the Challenge for Cause
Where publicity threatens the impartiality of a potential juror, it may be
unlikely that upon questioning, all jurors will
be able to recognise
personal prejudice, or if so, will admit to it. There is an inherent
difficulty in that questioning
to establish cause relies upon the open and
honest participation of the potential juror. In the High Court of
Australia,
Mason CJ and Toohey J noted in Murphy v R that “...
the more prejudiced or bigoted the jurors, the less can they be expected to
confess forthrightly and candidly their
state of mind in open
court.”137
Conversely, empirical research carried out by Vidmar and Melnitzer
during a criminal trial in Toronto concluded that
when challenged under
oath, some jurors will honestly reveal their prejudices, and that the
mini-jury is reasonably able
to identify these jurors.138 It
is not possible to determine the objective effect of the challenge for
cause, however “... one thing is certain –
if potential jurors are
not questioned, lack of impartiality cannot be
exposed.”139
Much of the opposition to expanding the use of the challenge for cause can be
attributed to a strong objection to the lengthy voir dires seen in the
Unites States justice system. The New Zealand judiciary has expressed
its reluctance to allow jury trial procedures
similar to those allowed in the
United States, reiterating in Gisborne Herald that “cross-
135 McCrimmon, above n 91.
136 R v Sherratt, above n 126, at 528.
137 Murphy v R, above n 121, at [23].
138 Neil Vidmar and Julis Melnitzer “Juror Prejudice: An Empirical Study of a Challenge
for Cause” (1984) 22 Osgoode Hall LJ 487.
139 McCrimmon, above n 91, at 143.
examination of prospective jurors about their views and beliefs is
generally undesirable.”140 The Court of Appeal in R v
Sanders spoke of the “... intrusive and quite possibly fruitless
cross-examination of potential jurors” in Canada, suggesting
that
perhaps the United States had been a negative influence on that criminal
justice system.141 It is perhaps appropriate to note that similar
criticisms of the United States procedure have been made by the Canadian
courts.142
Voir dire in the United States is quite rightly viewed as an example
of the dangers of excessive use of the procedure. However, the illustration
has
been used to argue that “any expansion in challenges for cause will
have serious consequences for the administration of jury service.”143
As McCrimmon argues, the problems associated with the United
States jury selection underline a fault with the specific process
used, and not
an inherent deficiency in the use of voir dire in jury
selection.144 The challenge for cause offers the potential for the
disqualification of some prejudiced jurors, allows the jury to be exposed to
the
intolerability of permitting bias to influence their verdict and reaffirms
the accused’s perception of justice and
fairness.145
2. A Prospective Outline of the Challenge for Cause
In circumstances where there has been significant publicity of a case, it is
possible that potential jurors might have formed preconceptions,
whether
consciously or not, about the defendant’s guilt, character, or history.
This is especially relevant in the pre-trial
period, where the defendant does
not have the same opportunity as the prosecution to present a version of
events to the public,
to respond to disputed facts or to present a defence to
the charge.
In New Zealand, wholly exceptional circumstances are required before a judge
may exercise judicial discretion of allowing
jurors to be examined
before taking their seat.146 Preceding the retrial of
David
140 Gisborne Herald, above n 2, at 575.
141 R v Sanders, above n 28, at 553.
142 See R v Find, above n 128 and R v Hubbert, above n 133.
143 Mark Findlay Jury Management in New South Wales (Australian Institute of Judicial
Administration, Melbourne, 1994) 176 (emphasis added), cited in McCrimmon, above n
91, at 137.
144 McCrimmon, above n 91.
145 Ibid.
146 R v Sanders, above n 28.
Bain, Professor Scott Optican raised the possibility of the cross-
examination of jurors to allow for a more rigorous selection
of
jurors.147 He argued that due to the extensive publicity the case
had received, the circumstances would qualify as ‘wholly
exceptional’. Indeed, if any case was to meet this requirement, this would
have been a serious contender. The fact that the
‘wholly
exceptional’ requirement is yet to be satisfied in New Zealand suggests
that the current burden is virtually
impossible to meet, and that as yet, the
full potential of the challenge for cause has not been harnessed by New Zealand
courts.
The basis for an application to challenge for cause due to
pre-trial publicity should focus on the existence of such publicity
and the
impact that it may have on a potential juror, rather than the
connection between a particular juror and the
publicity. This requirement
would ensure that once the foundation is established, the challenger would be
able to examine all
potential jurors. Further, the application could be made
without requiring extensive investigation into the private affairs
of
individual jurors – such investigation would go beyond the limited
practice of jury vetting approved by Parliament
and the Supreme
Court.148
The burden to satisfy in an application to challenge for cause should be
drawn from the Canadian jurisdiction; in essence requiring
some foundation of
fact establishing a realistic potential for the existence of partiality. This
would involve satisfying the court
that a widespread bias exists in the
community, and that some jurors may be incapable of setting aside that
bias, despite
trial safeguards, to deliver an impartial decision.149
These two elements of the inquiry are concerned with the existence of a
material bias, and the potential effect of that bias on the
trial process
respectively.
Although this standard of proof has been described as inadequate, the
experience of the Canadian courts is testament to the court’s
resolve to
limit the challenge for cause to appropriate cases. In R v
Find, the Canadian Supreme Court demonstrated the difficulty in
satisfying the
147 Deidre Mussen “Call for Bain juror bias-testing” Sunday Star Times (New Zealand, 3
March 2009)
148 See Gordon-Smith v R, above n 15, for a discussion of the practice of jury vetting.
149 R v Find, above n 128.
first element in holding that there was no widespread bias in Canadian
society against an accused in a sexual assault case.150 The
Court dismissed argument based on the prevalence of strong views and
emotions, widespread victimisation, and accepted
stereotypical beliefs,
holding that strong emotions are common to the trials of many serious offences,
and that universal abhorrence
of sexual crimes did not establish
widespread bias.151 If such a bias is accepted by the courts, the
applicant must still show the potential for impartiality. Impartiality does not
equate
to neutrality: it is expected that the experience of a juror will inform
their decisions, and the diversity that is present
on a jury is
intended to be representative of the community at large.152 The
fact that a potential juror may harbour prejudicial opinions is not sufficient;
it must be shown that they are incapable
of setting aside those
prejudices in their role as juror.153
Once the burden of proof was satisfied, the potential jurors could be
questioned by the judge, as in Australia, or using the mini-jury
model as in
Canada. A similar questionnaire to that used by Lord Justice Philips in R v
Maxwell may be appropriate where the questions posed are of a personal
nature, or would reveal personal information of the type that a juror
would be
reluctant to admit to in oral questioning. The following is an illustration of
how the challenge for cause might be used
in New Zealand.
3. The Challenge for Cause in the Bain Trial
The violent killing of five members of the Bain family on the morning of 20
June 1994 in their family home in Dunedin, and the subsequent
trial of David
Bain for their murders, caught the attention of the New Zealand public in a
way that no case has done since that
of Arthur Allan Thomas. The case was a
classic ‘whodunit’ investigation, appropriately summed up by
Williamson J in
the 1995 trial: “Who did it? David Bain? Robin
Bain?”154 After a three week trial in the Dunedin High Court,
David Bain was convicted of the murders, and sentenced to a mandatory life
term.
150 Ibid.
151 Ibid.
152 Ibid.
153 Ibid.
154 David Cullen Bain v R (2007) UKPC 33, at
[8].
A variety of appeals followed in ensuing years against the background of a
media campaign proclaiming Bain’s innocence, culminating
in the successful
2007 appeal to the Privy Council. The court held that there had been a
substantial miscarriage of justice,
quashing Bain’s convictions,
and ordering a retrial.155 A retrial was subsequently ordered by the
Solicitor-General later in 2007,156 and commenced in the
Christchurch High Court in 2009. The jury in the retrial returned a
verdict of not guilty on all five
murder charges on 5 June 2009, after less than
six hours of deliberation. In allowing the retrial of David Bain,
Solicitor-General
Dr David Collins QC stated that “... it is
not appropriate for there to be further public debate about the evidence
or any
other public comment that is calculated or likely to influence a future
jury.”157 He acknowledged the intense media interest in
the retrial, warning that “guilt or innocence of an accused person
is not decided by the media or public opinion polls. Those who attempt to usurp
or otherwise influence the trial process risk
facing a charge of contempt of
Court.”158
Following the Privy Council appeal quashing Bain’s convictions,159 media reporting focused on Bain’s release from prison after 13 years of imprisonment: media commentator Bill Ralston has described the coverage as a media circus, stating that “the initial media hysteria over his release seems like a collective failure in editorial judgment.”160 There was a spotlight on Bain’s apparent vindication, and his new life as a
‘freed’ man. The fact that the Privy Council judgment had made no
comment on Bain’s innocence or guilt was largely overlooked
and much attention was paid to the faults made in the prosecution
of Bain.
Ralston went on to conclude that:161
As a result of that Karam campaign, the sensational nature of the
crime and the first trial with all the subsequent hearings,
I doubt
if
155 Ibid.
156 David Collins QC, Solicitor-General “Decision of the Solicitor-General in Relation to
the Retrial of David Cullen Bain” (press release, 21 June 2007).
157 Ibid, at [7].
158 Ibid, at [8].
159 David Cullen Bain v R, above n 154.
160 Bill Ralston “Media circuses and a chance for justice” The New Zealand Herald (New
Zealand, 8 June 2009)
161 Ibid.
there was a person in the country who didn't have an opinion on his guilt or
innocence.
It is likely that the burden of proof requirement would have been met in the
Bain retrial, namely a realistic potential
for partial juror
behaviour. Evidence of the significant media publicity of the case over the
past decade, the immense
public interest and debate as to the identity
of the Bain family murderer, the focus on either David or his father as the
killer,
the manner in which the case has been tried by the media –
influenced by Bain campaigner and former All Black Joe
Karam – and
the effect of the inadmissible evidence released after the first trial would
arguably satisfy the requirement of
a widespread community bias: indeed it is
said that the trial has captured the New Zealand public’s interest like
no other
trial in history.162 Satisfaction of the second element is
more difficult, but could be argued as a matter of reasonable inference as to
how such bias
might affect a jury’s decision- making process.
Once the application was allowed, the potential jurors would then
undergo a limited voir dire, the extent and type of questioning under the
strict control of the presiding judge. The questions asked might
resemble
the following:163 have you heard about the case in the
media? Have you discussed the case with anyone? Have you formed an opinion as to
the guilt or
the innocence of the accused? Do you believe that you can set aside
any preconceived partiality or bias in order to decide the case?
It may be
that, having had their attention drawn to the issue, respect for judicial
processes would have led several
jurors to reveal impartiality would
otherwise have remained unknown.
Conclusion
In 1999, Victoria University Professor Dr Warren Young, along with Senior
Lecturer Neil Cameron, and Susan Potter
of the Law Commission
commented that vague, uncertain contempt laws, an increasingly market-driven
media, and the lacking impact
of judicial direction have all contributed to
an increasing risk of prejudice for
162 Stuff.co.nz “David Bain Not Guilty” (2009) Stuff
163 See A Cooper “The ABCs of Challenge for Cause in Jury
Trials: To Challenge or Not to Challenge and What to Ask if You Get It”
(1994) 37 Crim LQ 62, at 66.
defendants in New Zealand, with little opportunity to detect this
prejudice, let alone to combat it.164 More than a decade later, the
state of affairs has arguably worsened. The failure of the application
to question jurors
for cause by the Court of Appeal in R v Sanders cannot
be allowed to act as a blockade against all future applications:165
the level of publicity in that case was contained to a local level, and
incomparable to the extensive national publicity that
many criminal
cases receive today.
The Canadian procedure is testament to fact that an expansion of the
challenge for cause will not result in the extensive
and generally
undesirable voir dires of the United States. It is not proposed that
questioning to establish cause will act as a panacea to the difficulties
facing
the justice system, indeed the challenge has been described as
“rough and primitive instrument.”166 The same instrument
was later compared to a fishing net with a number of holes: “yet, even
with these holes, the net appears
adequate to snare at least many of the persons
who are not indifferent between the Queen and the accused.”167
The challenge for cause possesses the potential to identify partiality,
and the ability to act against it, while preserving
the right to
freedom of expression enjoyed by New Zealand media. Questioning to
establish cause should be available
in practice and not merely in
‘wholly exceptional’ theoretical
circumstances.
164 Neil Cameron, Susan Potter and Warren Young “The New Zealand Jury” (1999) 62(2) L&CP 103.
165 R v Sanders, above n 28.
166 Vidmar and Melnitzer, above n 138, at 511.
167 Ibid, at 511.
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