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Tom Meagher's agony shows it's time to update the law to end `stupid juror rule'

by: Chris Merritt From: The Australian October 01, 2012 12:00AM

THE increasingly desperate pleas to moderate the online commentary about the death of Jill Meagher are as futile as they were predictable. They are the direct result of what happens when judges and politicians allow the law to remain frozen in time, unable to address the reality of social media yet pretending that it can. The cruel impact of this gap between reality and the law is now on show: Jill Meagher's widower, Tom, has been left to agonise about whether the wave of commentary on Twitter and Facebook will have an adverse effect on the legal process that is about to unfold. Lecturing the Twittersphere on the law -- which journalism academic Julie Posetti tried in The Age on Friday -- is likely to be just as effective as the decree imposed on the sea by King Canute. It also misses the point that the problem here is the legal impact of that commentary, not the commentary itself. It's the law that needs to change. Twitter and Facebook are the focus of this affair merely because they are the most widespread and immediate methods of mass communication yet developed. They have empowered the entire community -- ratbags and geniuses, they are all there. But the legal issue is as old as the hills: can jurors in criminal cases be trusted to fulfil their oaths to make decisions based only on what they hear in court? At the moment, the law frequently answers that question with a resounding "No". This is despite consistent research showing jurors take their role extremely seriously and pay little regard to what they might read in the media about the cases they later decide. Until the advent of Twitter and Facebook, state governments and the courts had chosen to simply ignore that research. That can no longer be sustained. They continued to embrace a system of law that seeks to protect the weak minds of jurors by imposing penalties on those who write things that, on this view, will be absorbed uncritically by readers. And readers eventually become jurors. The clearest example of the law's distrust in the ability of jurors to discharge their oaths took place two years ago in the Supreme Court of Victoria. It was a decision that caused such affront that the judge concerned, Lex Lasry, later took the extraordinary step of publicly denying that his decision had created "the stupid juror rule". Lasry had banned 70,000 copies of The Weekend Australian Magazine to prevent jurors in a case he was hearing from reading one article. That story, by Caroline Overington, concerned a man in another state who killed his child. Lasry was hearing an unrelated case about a man in Victoria, Robert Farquharson, who killed his three sons. Lasry's ban was upheld on appeal despite the fact that even the prosecutor believed it was not necessary.

The agony of Tom Meagher shows why the law that made that ban possible needs to be brought into line with reality. The real answer to the online wave of commentary is statutory intervention that accepts that jurors do abide by their oath and will decide criminal cases based only on what they hear in court. It should then be up to defence lawyers to test the impartiality of jurors before they are empannelled instead of simply assuming that everybody is influenced by online ratbags. In 2004, Jim Spigelman, the then chief justice of NSW, gave a very clear message about the direction that was necessary in this area of the law. "There are now a significant number of cases in which the issue has arisen as to whether an accused was able to have a fair trial in the light of substantial publicity," he said. "Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. "Trial judges of considerable experience have asserted again and again that jurors approach their task in accordance with the oath they take. "They listen to the directions they are given and implement them; in particular, they listen to the direction that they are to determine guilt only on the evidence before them."