Proving the point, Bill Hastings

No Verdict: New Zealand’s Hung Jury Crisis
John Goulter
Random House $29.95, ISBN 1 86941 298 2

Dear Murderer: Mike Bungay’s Life on Trial
Ronda Bungay
Random House $29.95, ISBN 1 86941 314 8

Justice Without Fear or Favour
Kevin Ryan
Holder Moa Beckett, $44.95, ISBN 1 86958 573 9

Deadline: My Story
Pat Booth
Viking, $39.95, ISBN 0 670 8929 0

A barrister will always take over a dinner party. An inevitable consequence of the profession is that each has a personal stockpile of war stories. What makes these stories compelling is that they involve the intrusion of state apparatus into the private lives of people who neither sought nor welcomed it. Dinner party guests are given the vicarious thrill of a first-hand account of private lives made public by acts of deceit or violence. Ethical questions are raised by the conflict between public and private, and between principle and opportunity. Each of these books is gripped by the resolution of these conflicts. But the writing of each itself raises interesting ethical problems.

To what extent should barristers be allowed to trade on the misery of their clients’ lives? Recounting intimate details of private lives gone wrong, lives of both perpetrator and victim, is often an uncomfortable read. It is embarrassing to follow Vicky Calder’s daily life before and during Professor Lloyd’s illness, as told in Goulter’s No Verdict. I was mortified to read a letter sent to Mike Bungay when he was dying of cancer by a former client wishing him “a long, lingering and very painful death”, reprinted in Ronda Bungay’s Dear Murderer. Yet the fact that these lives have been put into the public arena by wrongdoing is arguably sufficient for them to remain in the public gaze. And who better to manipulate that gaze than the barristers most involved with the cases? There is no closure in criminal trials.

Many of the “real-life” stories told in these books first played themselves out before a jury. The retelling of these trials puts the reader in much the same position as a juror, except that these are retellings. It is tempting for the reader to act as a sort of review jury, sitting in judgment on both the evidence presented at trial and the verdict of the original jury. The temptation to act as a review jury must, however, be resisted. The reader can never see the evidence unfold, cheek the demeanour of witnesses or gauge the eloquence of counsel. The only thing the reader can assess is how compelling is the argument of these authors, most of whom question the viability of the jury system.

Thus the invasion of private lives by public process creates a platform used by authors to debate greater public issues. When the greater public issue is how well jury trials actually work, there is a double risk: in not being able to dissociate himself or herself from acting as a review jury, the reader sits in judgment on hearsay; and by retelling events which were the subject of a jury trial, the author increases the potential that the wrong questions may in fact be asked about the jury system. As we are told time and again in these books, it is not the job of a jury to declare the guilt or innocence of an accused person. In a criminal trial, the jury’s job is to decide if the Crown has proved its case beyond a reasonable doubt. It is wrong to argue that hung juries let society down by not resolving guilt or innocence. It is better to ask why the jury is hung. It could be because of a deficiency in the rules of evidence and procedure or a deficiency in the make-up of the jury itself. A deficiency in the Crown’s case should in theory result in an acquittal if it raises a reasonable doubt, regardless of how guilty the jury thinks the accused is.

The imaginary “Case of the Blue Bus” once taught at the Harvard Law School shows one of the difficulties faced by juries. It is night. Jones is driving along a dark highway when she sees lights coming at her. To avoid a collision she swerves off the road into a tree. The oncoming vehicle speeds by and Jones notices that it is a bus. Jones finds out that the Blue Bus Company owns 80% of the buses using that road. The Blue Bus Company is brought to trial. Jones admits at trial that she could not tell the colour of the bus that forced her off the road. If this were a criminal trial, the Blue Bus Company would be acquitted because there is at least a 20% chance, enough for a reasonable doubt, that the errant bus was not owned by the Blue Bus Company. In a civil trial, where the plaintiff must prove her case on a balance of probabilities, the Blue Bus Company in theory ought to be found liable. Yet it is unlikely that a jury would ever find against the Blue Bus Company without some piece of evidence connecting it to the injury, such as an eyewitness. Verdicts based on odds are not enough to give a judicial system moral force and the ordinary people making up juries know this.

The conviction of Heather Ross, after two trials, for the manslaughter of Emma and Samantha Wales, raised a Blue Bus-type dilemma for both juries. Goulter has included photographs of the two gleeful, vibrant children in his book. No doubt the jury saw similar photographs and would have been keen as a result to get to the bottom of their deaths. Nobody saw Heather Ross kill the children. The only evidence linking Ross with the children was that she was looking after each of them when they died. The case boiled down to statistics. The jury heard evidence that the statistical chance of Samantha dying from cot death while in Ross’s care was one in 40,000; for Emma, it was one in 200,000. Was this evidence sufficient to convict? Or would the odds have to be higher to remove a reasonable doubt? The Crown in the end could not prove murder, the second jury returned a verdict of guilty of manslaughter.

Retelling these cases is important to our formulation of the right questions. There was for a time in New Zealand, as Goulter correctly points out, an unusual number of hung juries. To discover why involves working backwards through a dark fog. Jurors cannot discuss what happened in the jury room and the press cannot report their deliberations. Any investigation of how juries work has involved an examination of the process of selecting jurors, the conduct of the trial, and then a great leap over the unknown and secret deliberations to a landing at the next available public point, the verdict (or non-verdict).

Undoubtedly, apparently perverse or absent verdicts have many causes. Capable but busy professional people often excuse themselves from jury service, leaving juries to be staffed by those less busy, perhaps less capable – people for whom the paltry sum paid jurors is adequate compensation for their time – combined with those who still believe in social duty. Peremptory challenges are based on the prejudices of counsel, evidence may be wrongly excluded, witnesses may perjure themselves, judges may give faulty directions. Many factors contribute to hung juries. But until we know what goes on in the jury room, we will never begin to approach a full understanding of how juries reach or do not reach a verdict.

The writing of these books therefore raises a third risk. They can never explain fully why a jury reached any given verdict. If one of the purposes of writing these books is to attempt to explain this (and admittedly Bungay does not have this purpose), then the books are doomed to fail on this count. What, then, is the role of the reader? It is difficult to be a review jury if what is being reviewed remains partly unknown. The reader must consequently be cast as a voyeur. The reader has been told, dare I say, often lurid, details of cases already tried, for no greater public purpose than to tell a ripping good yarn. The barrister returns to the dinner party.

All of these books are written with passion. All of them recount the famous trials and retrials of our time. I was left with the feeling after reading these books that it is very easy to scapegoat a jury instead of investigating what actually happened. Sometimes even defence lawyers forget their role. It is axiomatic that a defence lawyer is not concerned with whether or not her client is actually guilty. Bungay makes this very clear. Kevin Ryan says that it is “very stressful dealing continuously with rapists, murderers, thieves and drug pedlars. However, they are facing serious charges and are entitled to a defence. Their counsel should not be their judge.” Yet when he was interviewing Joseph Thompson, the South Auckland serial rapist, Mr Ryan writes:

“‘Before we go any further,’ I said, ‘I want to know, and look me in the eyes, are you guilty of these offences?'”

The magic of the jury system is that it is democratic and consequently dependent on the ethical conduct of police, barristers, judges and juries themselves. Juries, as representatives of ordinary people in our society, are an integral part of a system that tolerates guilty people going free if the state cannot prove its case. That is the price of democracy. How frustrating for the state when it has to pay the price and how tempting for agents of the state who have lost sight of the big picture to attempt to wriggle out of paying that price. While these books may not be able to say how juries arrive or do not arrive at verdicts and while they may take the reader to the knife-edge of voyeurism, all of them offer an insight into how a system of substantial integrity can be knocked about by abuse of power and lack of principle. If that is their only purpose, it is good that they were written.

Bill Hastings is a barrister and solicitor, and Deputy President of the Film and Literature Board of Review. He teaches law at Victoria University of Wellington.

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