5. Directions about external influences

Updates and background for this project (Digest)

• Extra-curial influence
• Extra-curial investigations

5.1^{* *} This chapter focuses on judicial directions regarding inappropriate external influence upon jurors.

5.2 Part of the challenge of addressing external influences upon jurors is combating jurors’ sense that those outside the trial process, whether it be the media, the internet or friends and family, might usefully contribute to a juror’s task. Where jurors otherwise lack a framework and appropriate techniques for filtering, processing and organising evidence pre-deliberation, high quality juror induction may assist them to cope with exposure to large amounts of often contradictory and commonly contested information.¹ Failure to cope in this sense or to understand the process more broadly can affect the quality of jury deliberations and may also give rise to inappropriate juror conduct. For these reasons, there is a strong case for recognising that a judge’s opening remarks present the best opportunity for introducing jurors to a criminal trial’s basic rules of engagement, and providing useful advice on the task before them.

5.3 Judicial instruction and direction on jury fact-finding requires care.² This judicial sensitivity stems from jurors’ undeniable autonomy over their deliberations. Jurors may “organise their individual processes of reasoning” and their group discussions “in whatever manner appears to them to be convenient”.³ If a judge intrudes upon the jurors’ sole domain, there is a danger that the trial will miscarry. But jurors do not have unfettered latitude on fact-finding. There are some topics that judges are expected to bring to a jury’s attention because they address matters that are not negotiable for jurors. For example, in 2003, Justice Wood in R v K⁴ described as customary that a trial judge should warn jurors to disregard publicity. His Honour indicated that this warning should be supplemented with a judicial direction that jurors not engage in independent research or inquiry.

5.4 Drawing the line between appropriate judicial assistance and unacceptable judicial intervention can be difficult, but there are some well-accepted conventions that operate. In particular, a trial judge must make clear to jurors that, within certain bounds, they are free to approach their task as they wish, and that judicial suggestions on matters relating to the deliberation process are no more than that. Prescriptive language on matters squarely in the jurors’ domain is incompatible with suggestion. Further, judges must ensure that parties’ cases are fairly and unambiguously represented to the jury. These are not matters of controversy except in circumstances where a judge errs in the execution of these rules.

5.5 Trial judges are not required to instruct jurors on the basic rules of engagement in a particular way, but, at its most basic, jurors should receive from the judge at the commencement of the trial a statement of core responsibilities. The court in Black v The Queen provided a pithy statement of juror obligations, albeit in a context removed from the induction process.

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light.⁵

5.7 An additional aspect relating to the issue of timing of directions is worth mention. This Consultation Paper has focused largely on judicial direction and instruction arising during a judge’s summing-up. Because the summing-up is where judicial directions on matters of law and evidence naturally fall, it attracts the greatest concentration of appellate and other commentary. Indeed, but for rare observations such as referred to below in R v K,⁶ there is relatively little judicial analysis of judicial instruction at the stage when jurors are inducted into the process and commence hearing the taking of evidence. For this reason, jury research studies are particularly important. The Australian Institute of Judicial Administration’s (AIJA) study, The Jury Project,⁷ provides some useful insight on this phase of judicial instruction to the jury. In addition, research from the New Zealand Law Commission study,⁸ the Prejudicial Publicity survey,⁹ the Juror Satisfaction study¹⁰ and the UNSW Pilot Jury Study¹¹ also offer guidance regarding relevant juror attitudes and judicial practice.

5.8 The Jury Project study suggests a surprising diversity of practice regarding judicial induction of jurors across Australia. Noting that the judicial sample for NSW is relatively small,¹² overall judicial feedback on empanelment instruction tends to indicate that NSW trial judges’ standard practice is to provide a more comprehensive instruction to jurors than the Australian average in almost every respect surveyed.¹³ For example, the 23 NSW trial judge respondents reported almost universally that, like the Victorian judge respondents, their practice was to inform jurors of the nature of the trial and the role of the jury.¹⁴ However in SA,¹⁵ just more than half of the 17 judge respondents indicated that they provide the jury with an explanation of the nature of the trial and only three-quarters inform jurors on the role of the jury.¹⁶

5.9 There are indications in both case law and from jury research studies that the rationale and the practical scope of some very important instructions relating to fact-finding, particularly those relating to jurors not engaging in extra-curial investigations and research, may not be reaching jurors. For this reason, there is a sound basis to believe that current practice may benefit from some reconsideration. Self-evidently, the effectiveness of judicial directions requires that they be comprehensive and that they be delivered clearly. It is particularly important that directions regarding forbidden behaviour and forbidden forms of reasoning be persuasive.

EXTRA-CURIAL INFLUENCE

Prejudicial publicity

5.10 Where jurors are influenced by media commentary, it threatens to rob the process of an intrinsically essential element of adversarial process – the right to test all evidence and to exclude unfairly prejudicial evidence. A package of mechanisms is currently available to limit the adverse impact of prejudicial publicity on the fairness of a trial. Most importantly, the law of sub judice restricts the publishing of potentially prejudicial material, ensuring that intense highly prejudicial coverage is relatively uncommon, although it sometimes still occurs.¹⁷ Where the danger of prejudicial reactions by jurors may be intensified by local knowledge of a crime, the victim or the defendant, the court may order a change of venue of a trial.

5.11 Internet publications are the latest new-generation development in the area of external influence prejudicing jurors.¹⁸ They can escape the notice of counsel and a trial judge. Obviously, where this occurs, there is no scope for legal sanction or corrective action such as specific judicial direction or submissions from counsel regarding threats to the fairness of proceedings.

Underbelly, prejudicial media and the Internet

5.12 In early 2008, there was no danger of the Victorian Supreme Court in R v A missing the 13-episode television series, Underbelly.¹⁹ Its broadcast was preceded by an extravagant publicity campaign marketing its impending national broadcast just as the murder trial of a defendant described as A was about to commence. Underbelly depicted fictionalised versions of gangland killings and related crimes occurring in Melbourne some years earlier. It was promoted as a factual account, and it was found by the court that it relied upon dialogue that merged fact and fiction.²⁰ The series sought to explain why the deceased, referred to as “B”, was murdered. The Victorian Court of Appeal held that Underbelly “depicted in detail the parts allegedly played by the accused [A], the deceased and a major witness in the intended trial”.²¹ It ordered that the applicant not publish the series in Victoria until the conclusion of A’s trial.²²

5.13 The situation following this ruling underscores the fact that, with the mass availability of Internet access and modern technology, the law’s reach is less than that of a juror. The first episode broadcast in all states except Victoria in mid-February 2008.²³ It apparently attracted well over a million viewers across Australia. Internet commentator Crikey reported²⁴ that, within two hours of its first episode, one file-sharing network had already attracted more than 6,500 downloads. Crikey²⁵ observed that their own online poll on 5 May 2008 attracted 263 Victorian responses in a day, with 69.8% saying that they had seen the series, and the vast majority said they had watched a “downloaded, burned or bootlegged copy”. The remaining 2.6% reported watching it on television.²⁶

5.14 The 2001 Prejudicial Publicity survey provides insight into jurors’ reactions to prejudicial publicity, chiefly from traditional formats.²⁷ The study involved interviewing 175 jurors and the vast majority of trial judges and counsel in 41 trials held between 1997 and 2000 where significant publicity occurred before or during the trial. In almost all trials, the judge provided the jury with a direction at the beginning of the trial (i) to avoid contact with, or (ii) to ignore the content of, pre-trial and in-trial publicity. The study captured a considerable majority of metropolitan Sydney trials attracting moderate to high levels of specific publicity for the relevant three-year period.²⁸ In terms of pre-trial publicity, the survey results indicated that reports of alleged offences created the most potential for juror recall of media reports, with recall occurring in 78% of the studied trials in which the media published a relevant report.²⁹

5.15 Jurors were most likely to recall pre-trial publicity relating to: defendants who were well-known in the community independently of the trial process; or to offences which occurred locally to the jurors; or, thirdly, to publicity that jurors encountered close to or after the beginning of the trial.³⁰ In just over 50% of the 41 trials, at least one juror in each trial recalled pre-trial publicity that was discussed in the jury room. Unsurprisingly for a cohort of trials in which significant media publicity was a prerequisite for inclusion in the study, the Prejudicial Publicity survey found that the large majority of interviewed jurors reported that they were aware of specific media publicity of the case occurring before and/or during their trial.³¹ In the 34 trials that received media coverage during the trial, at least one or more jurors reported that they “kept in touch” with the media coverage and, in 32 of these trials, jurors reported that at least some discussion about that media commentary took place in the jury room.³² Interviews revealed four jurors (approximately 2%) who acted contrary to judicial instructions by actively seeking out media coverage.³³ One juror, for example, especially ordered daily delivery of a newspaper that carried lengthy reports of the trial.

5.16 After a study of the safety of verdicts, incorporating the views of judge and counsel and features of the juror responses, the researchers concluded that the study provided “a relatively successful record of resistance to publicity”. The researchers placed particular reliance on the importance of jury discussion and jurors’ close scrutiny of evidence brought on by the requirement that the verdict be unanimous. Although the Prejudicial Publicity survey included jurors’ exposure to Internet material, the rate of household Internet access has quadrupled in the eight years since 1998.³⁴ In 1998, less than 20% of households could access the Internet from home, compared with over 60% by 2007.³⁵ Australian statistics indicate that 70-80% of adults (aged between 18-54 years) use the Internet. Predictably, there is a bias in Internet usage to those with higher incomes and to those who are young. There is a significant dip in usage for those over 55 years of age, though the Australian statistics indicate that, on average, 50% of those in the 55-64 year age group use the Internet. The average usage rate drops to less than 20% for those over 65 years of age.³⁶

5.17 Prior to the Internet, potentially prejudicial publicity and commentary was relatively controllable. Publications from outside the State rarely had mass penetration and publishers were relatively accountable to the law. However, as the Underbelly situation revealed, the increase of web-based information, entertainment and commentary, and household access to it, creates an exponential growth in problems relating to the management of criminal jury trials where there is only imperfect control of the media.

5.18 Self-evidently, as time passes, the penetration of Internet usage will increase in the population both by virtue of expanding innovation in technology, falling costs to consumers, and the continuing growth of information on the Internet, all intersecting with today’s youth becoming tomorrow’s adults.³⁷ Consequently, the next decade is likely to see a trend towards saturation of usage, and indeed reliance upon the Internet as the major general and specialist information resource for the vast majority of the juror population base.

5.19 In terms of judicial direction, the NSW judge respondents to the AIJA survey reported that their practice was universally to direct jurors regarding prejudicial publicity.³⁸ This strong commitment to including a judicial direction was found also in the Prejudicial Publicity survey trials, the New Zealand study and the UNSW Pilot Jury Study. In all 10 trials in the UNSW Pilot Jury Study, the trial judge specifically referred to the Internet.

5.20 The Prejudicial Publicity survey examined jurors’ reactions depending on whether they received a direction (i) to avoid contact with, or (ii) to ignore the content of, pre-trial publicity and publicity during the trial (referred to as “in-trial publicity”). The researchers concluded that the instruction to avoid the coverage was only partially effective, but the instruction to ignore the content:

would appear … to have been valuable – perhaps more so than has been professionally realised – in so far as it encouraged jurors to trust their own first-hand, individual recollections of the evidence and argument. It may have inspired jurors to be confident in their abilities in this regard and thereby encourage and confirm the reaction to media reports of the trial which we found to be quite common – namely, that they are inevitably incomplete and are often inaccurate, if not demonstrably biased.³⁹

that judicial instructions to juries regarding publicity should encourage [jurors] ... strongly to trust their own capacity to recall and understand the evidence and the issues to be resolved, rather than any version of these conveyed expressly or impliedly by media publicity, specific or generic.⁴⁰

If you have read or heard or have otherwise become aware of any publicity about the events with which this trial is concerned, or about the accused, it is of fundamental importance that you put any such publicity right out of your minds. Remember that you have each sworn an oath, or made an affirmation, to decide this case solely upon the evidence presented here in this courtroom and upon the basis of the legal directions I give to you. You would be disobeying that oath or affirmation if you were to take into account, or allowed yourself to be influenced by, information that has come to you from some other source.⁴¹


ISSUE 5.1

(1) Should directions better address the potential problem of jurors being influenced by prejudicial publicity by encouraging them to exercise independent judgment with regards to the evidence before them?

(2) Should the judicial direction omit reference to jurors avoiding pre-trial and in-trial publicity?

5.22 The problem of jurors engaging in extra-curial investigations extends beyond Australia, with cases arising across the common law world. The English, New Zealand and Australian authorities discussed below represent a selection of recent cases. They are not exhaustive, but they illustrate the various ways in which jurors can embark upon inappropriate extra-curial research.

5.23 Jury research studies reveal that the problem is not one limited to isolated acts or rogue jurors. The UNSW Pilot Jury Study⁴² received detailed comments from a small sample of 39 jurors from 10 Sydney trials. Jurors responded to a scenario concerning a hypothetical juror. Five jurors across three trials⁴³ agreed – one strongly – that, where a hypothetical juror felt frustrated with the adequacy of the evidence in the trial, it would be very acceptable for the juror to take action outside the trial process to find out more about the accused, witnesses or the circumstances of the crime. Another juror in a fourth trial reported an actual instance of a juror using inadmissible sentencing material to advocate an acquittal. Twenty-five of the 39 juror respondents were interested in obtaining further information about the defendant.⁴⁴ In the Prejudicial Publicity survey,⁴⁵ the researchers uncovered five cases in which, unknown to counsel or the judge, one or more jurors became aware, it seems by active investigation, that the accused had prior convictions or criminal charges. This pattern was present also in the 1999 New Zealand Law Commission jury study where “in a couple of cases, [jurors] ... reported to the jury adverse information about the character of the accused which they had picked up from local knowledge or media publicity” as well as five cases of juror extra-curial investigations.⁴⁶

5.24 These studies indicate two identifiable features found in both case law⁴⁷ and in research findings. First, there is a tendency for jurors to engage in the equivalent of a background check on the accused. Secondly, there is a trend showing that judicial directions consistently fail to impact upon certain jurors.⁴⁸ The New Zealand Law Commission’s jury study observed:

By and large, juries simply did not seem to appreciate the importance, or did not understand the logic, of restricting themselves to the information presented by the parties and the judge.⁴⁹

The motivation to sleuth

5.26 Jurors’ abilities to acquire information privately at little cost is an important factor influencing their desires to become private investigators. As indicated above, most Australians can now investigate and research on the Internet by broadband connection from home. The Australian Bureau of Statistics findings indicate that, in a single jury, representing an albeit imperfect sample, there will be between seven and eight jurors with Internet access from home. They are able to search the virtual world for information in complete privacy, employing habits that are likely to be second nature for the majority of them.⁵² The English case of R v Karakaya,⁵³ like R v K⁵⁴ in NSW, stands as authority that judges ought to direct juries against making extra-curial investigations. Both cases involved jurors gaining access to inadmissible material on the Internet. In Karakaya, a sexual assault case, the Court of Appeal described material found in the jury room as “of a campaigning nature”. It presented in strident terms the view that “people were too frequently acquitted wrongly of such offences”. In allowing the appeal, the Court of Appeal observed that “the material might have served to undermine the jury’s acceptance of the judge’s summing-up and directions of law”.⁵⁵ In R v K, the material was similarly acquired from an unreliable Internet site.⁵⁶

5.27 A recurring feature is that jurors do not believe they have enough information. Allied to this is their motivation to research beyond the evidence because they are anxious about making sure their verdict is “right”, a feature we will return to shortly. In R v Skaf, the foreman told the court, “I only went to the park to clarify something for my own mind. I felt I had a duty to the court to be right”.⁵⁷ In England in 2008, there have been two widely-reported instances of trials collapsing because of juror investigations.⁵⁸ In one, a manslaughter prosecution, the judge was alerted to the juror misbehaviour when one of the jurors sent the judge a Google Earth representation of the alleged crime scene with a list of 37 questions about the case. This example, like the case of the foreman in R v Skaf and anecdotal views and jury research findings, strongly supports the view that the jurors who consider private investigation acceptable do not believe it to be wrong.

5.28 On many occasions, it seems jurors seek to check evidence or clarify points of law.⁵⁹ In New Zealand, recent cases address Internet searches and the more traditional approach of jurors asking others. In R v Absolum,⁶⁰ a juror was reported to have spoken to two people unconnected with the case regarding aspects of the evidence before the court. The New Zealand Court of Appeal, in R v Harris,⁶¹ addressed a similar situation to that in Karakaya. Court officers found pages printed from a US Internet site, www.answers.com, in the jury room. The information described “beyond reasonable doubt” and “burden of proof” in a way that did not reflect New Zealand law.

5.29 This raises the question as to why judicial communications, including the specific judicial direction, are failing in key respects. What might motivate the jurors to believe that they need more information than that presented at trial, and that it is very acceptable to research or investigate the trial, despite direction to the contrary? As indicated above, one factor is undoubtedly the fact that an effective direction must counter more than juror access to a library book, a newspaper or a movie.

5.30 The messages sent by popular culture are no doubt a prominent motivator. Law and legal drama as entertainment has been part of Anglophone culture at least since Gilbert and Sullivan’s productions such as Trial by Jury. Film depictions of crime investigation dramas date back to Sherlock Holmes literature, and most pertinently Twelve Angry Men. They first brought the genre of entertainment based on fictional crime and fictional trials into the lounge rooms of prospective jurors. The deluge of criminal investigation TV programs has enhanced concern. Rumpole of the Bailey, Cracker, The Bill, Foyle’s War, Agatha Christie’s Poirot, Dalziel & Pascoe, Columbo, The Practice, Law & Order, Cold Case and Blind Justice, Blue Murder, Crime Investigation Australia, Underbelly, and even a whole cable TV channel through Foxtel’s Crime & Investigation Network, speak to today’s jurors. The impact of these forms of entertainment was underscored in the 2004 Home Office report.⁶² Forty nine percent of the juror respondents in this study reported TV drama as influential in shaping their views of the court system. Some made special reference to shows like Kavanagh QC and The Bill. Fifty five percent cited TV news in the same context, with 14% citing film.

5.31 A good percentage of fiction presents role models from every walk of life who by-pass conventional policing or justice and uncover key evidence missed by the professionals. These amateur investigators are victims, relatives, Henry Fonda, Hercule Poirot or Miss Marples. Popular culture may educate jurors to have false expectations that trials involve clear uncontested “facts”. Finally, drama rarely puts the prosecution to proof. It searches out the truth.⁶³

Current judicial practice

5.32 In the AIJA survey of judicial and court practice, only 43% of Australian judge respondents self-reported that they directed jurors not to conduct their own investigations or visit the crime scene.⁶⁴ The AIJA researchers suggested that a reason for “these relatively low [national] figures is that judges may be concerned that by telling jurors not to access certain material, at least one of them may be encouraged to do so”.⁶⁵ The proliferation of evidence that jurors are tempted to engage in Internet searches suggests that silence on the point is inappropriate.⁶⁶ In NSW, 100% of the 23 participating judges indicated that they direct jurors not to conduct private investigations. This high rate is no doubt in response to the Court of Criminal Appeal’s judgment in R v K.⁶⁷

5.33 However, a key issue is the content of any direction. It may be that judicial directions focus more heavily on command at the expense of reasoned explanation. The AIJA study found that, while the NSW judges reported universally that they give juries a direction that they not research or investigate, only 78% gave the jury reasons. The UNSW Pilot Jury Study found that judicial directions in its 10 trials were highly variable in the explanation of why juror investigations were unacceptable, to the extent that in two trials virtually no reasons were given.

5.34 Some jurisdictions, including NSW, have made juror research and investigations a serious criminal offence.⁶⁸ The criminalisation of this juror misconduct applied for nine of the 10 trials in the UNSW Pilot Jury Study, but it did not alter the attitudes of the jurors who agreed that extra-curial investigations could be very acceptable, nor did it stop the juror who was reported by a respondent to have brought inadmissible material into the jury room.⁶⁹ It is notable that only in three of the 10 trials in the study did the trial judge tell the jury that it was a crime to engage in private investigations and research. None mentioned that it was a serious crime.⁷⁰

5.35 The Judicial Commission has responded to the findings of the UNSW Pilot Jury Study with a number of enhancements to its guideline direction. It has included clear reference to the “serious offence” where a juror makes an inquiry, mentioned the danger of error, illustrated it by examples, and set out a comprehensive statement countering jurors’ misunderstanding of their role and the role of the trial:

The obligation is on the Crown to put evidence before the jury in seeking to prove beyond reasonable doubt the accused’s guilt. The accused has no obligation to produce any evidence or to prove anything. What all of this means is that it is not your role to try and determine where the truth lies. Jurors have indicated in studies and surveys that have been done in the past that they sometimes feel frustrated by a lack of evidence about some aspect of a case. In some cases it has led jurors to make enquiries for themselves to try and fill in the gaps that they perceive in the evidence. From what I am about to say to you, I trust you will understand that this is absolutely impermissible and that it is unfair to both the Crown and the defence. I want you to clearly understand that making enquiries about anything to do with the case is not your function. Your function is, as I have said, to decide on the evidence that has been placed before you, whether or not the Crown has proved the guilt of the accused beyond reasonable doubt.

… It is of fundamental importance that your decision in this trial is based only upon what you hear and see in this courtroom … It is a serious criminal offence for a member of the jury to make any enquiry for the purpose of obtaining information about the accused, or any other matter relevant to the trial …⁷¹

ISSUE 5.2

How much detail, context and explanation should directions include regarding the dangers of extra-curial influences?

** This chapter has been contributed by Professor Jill Hunter of the University of NSW.

1. That is, other than through the Crown’s opening address and where relevant, a defence opening statement.

2. See, eg, Stanton v The Queen (2003) 77 ALJR 1151; [2003] HCA 29; Norris v R (2007) 176 A Crim R 42; [2007] NSWCCA 235 (Howie J).

3. Stanton v The Queen (2003) 77 ALJR 1151; [2003] HCA 29, [35] (Gleeson CJ, McHugh and Hayne JJ).

4. R v K (2003) 59 NSWLR 431; NSWCCA 406.

5. Black v The Queen (1993) 179 CLR 44, 51.

6. See also R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37.

7 J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006), 12; J Goodman-Delahunty, N Brewer, J Clough, J Horan, J R P Ogloff, D Tait, and J Pratley, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, Research and Public Policy Series No 87 (Australian Institute of Criminology, 2008).

8. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2.

9. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001).

10 J Goodman-Delahunty, N Brewer, J Clough, J Horan, J R P Ogloff, D Tait, and J Pratley, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, Research and Public Policy Series No 87 (Australian Institute of Criminology, 2008).

11. J Hunter and D Boniface, with J Chan, M Chesterman and D Thomson, funded by the Law and Justice Foundation of NSW, awaiting publication, but see J Hunter and D Boniface, Secret Jury Business: What Jurors Search For and What They Don’t Get, Conference Paper, British Society of Criminology, Huddersfield, England (July 2008).

12. See para 9.91.

13. Interestingly, NSW judges appear to be under the national average in jury instruction on the procedure for asking questions – only 26% of judges reported that they included this in their jury instructions, with 74% of judge respondents giving jurors the basic information that they may ask questions. At a national level, 54% of respondent trial judges reported that they inform jurors that they may ask questions, with 43% providing jurors with a description of the procedure for so doing.

14. All include comments regarding the role of the jury and all but two judges (91%) informed the jury on the nature of the trial.

15. Of 17 respondents, 55% informed the jury of the nature of the trial and 75% informed jurors of the role of the jury. Jurors in SA are, however, given general directions by a judge at the commencement of their jury duty and before being selected for any particular trial. WA judges responded indicating that, of 16 respondents, 63% informed the jury of the nature of the trial and 94% informed jurors of the role of the jury.

16. For the 49 New Zealand judicial respondents, the figure was 94% informed the jury of the nature of the trial, and 100% informed jurors of the role of the jury.

17. See generally M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001).

18. See also, J J Spigelman, “The Internet and the Right to a Fair Trial” (6th World Wide Common Law Judiciary Conference, Washington DC, June 2005); V Bell, “How to Preserve the Integrity of Jury Trials in a Mass Media Age” (Supreme and Federal Courts Judges’ Conference, January 2005).

19. From J Silvester and A Rule, Leadbelly: Inside Australia’s Underworld Wars (Floradale Productions/Sly Ink, 2004).

20. General Television Corporation Pty Ltd v DPP [2008] VSCA 49, [32].

21. General Television Corporation Pty Ltd v DPP [2008] VSCA 49, [37].

22. The Court of Appeal noted that any person who, with knowledge of this order, sought deliberately to frustrate the effect of it could be liable for contempt of court, [65], [67].

23. The last episode was broadcast in early May 2008.

24. “A Torrent of Interest in Downloading Underbelly” (14 February 2008) Crikey «http://www.crikey.com.au/Media-Arts-and-Sports/20080214-A-torrent-of-interest-in-downloading-Underbelly.html» at 26 November 2008.

25. T Hunter, “Crikey Poll: Seven in Ten Victorians Have Seen Underbelly” (6 May 2008) Crikey «http://www.crikey.com.au/Media-Arts-and-Sports/20080506-Crikey-poll-Seven-in-ten-Victorians-have-seen-iUnderbellyi.html» at 26 November 2008.

26. Of the 30.2% who had not seen Underbelly, “50.8% weren’t interested, 24.6% couldn’t find a copy, 16.4% didn’t know how to download it, and 8.2% didn’t want to be held in contempt of court”.

27. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001).

28. Estimated as two-thirds of this category of trials occurring between 1997 and 2000.

29. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) xiv.

30. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) xiv.

31. 82%.

32. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [207]-[209].

33. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [207].

34. See Australian Bureau of Statistics, “Internet Access at Home” in Australian Social Trends, 4102.0 (2008) 1.

35. Figures from Australian Bureau of Statistics, “Internet Access at Home” in Australian Social Trends, 4102.0 (2008). The Bureau estimates that for the June quarter of 1997 there were 6.38 million home computers with just under 4% having access to the internet: see Australian Bureau of Statistics, Australian Demographic Statistics, 3101.0 (June Quarter, 1997) 18.

36. These figures relate to data taken between 2004-05 and 2006-07, see Australian Bureau of Statistics, Household Use of Information Technology, 2006-2007, 8146.0 (2007).

37. Increase in access is likely given the current Federal government policy to develop open access high-speed broadband network to reach 98% of Australian homes and businesses.

38. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 46, Appendix B, Table 1.

39. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [369].

40. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) xxii.

41. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [1-520].

42. J Hunter and D Boniface, with J Chan, M Chesterman and D Thomson, funded by the Law and Justice Foundation of NSW, awaiting publication, but see J Hunter and D Boniface, “Secret Jury Business: What Jurors Search For and What They Don’t Get” (Conference Paper, British Society of Criminology, Huddersfield, England, July 2008).

43. Because juror “sleuthing” is a topic that does not permit neutrality, it is strongly arguable that the sixth juror in a fourth trial who responded neither agreeing or disagreeing with the hypothetical juror sleuthing scenario should be included as expressing an incorrect view.

44. Though not necessarily with a desire or willingness to engage in extra-curial investigation.

45. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [336].

46. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.42].

47. For example, R v Folbigg [2007] NSWCCA 371 and R v K (2003) 59 NSWLR 431.

48. For example, R v Marshall [2007] EWCA Crim 35 and Folbigg v R [2007] NSWCA 371.

49. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.45]; J Goodman-Delahunty, N Brewer, J Clough, J Horan, J R P Ogloff, D Tait, and J Pratley, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, Research and Public Policy Series No 87 (Australian Institute of Criminology, 2008) 139 observed that 17% of the 134 juror respondents were confused about what they could discuss with non-jurors The same percentage were confused about what they could discuss with each other.

50. R v Tuporo [2008] NZCA 12.

51. R v Wilson [2008] EWCA Crim 134.

52. See Australian Bureau of Statistics, “Internet Access at Home” in Australian Social Trends, 4102.0 (2008).

53. R v Karakaya [2005] 2 Cr App R 5.

54. R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406.

55. R v Karakaya [2005] 2 Cr App R 5, [11] (Judge LJ).

56. That is, not publicly available law databases such as Austlii «http://www.austlii.edu.au» or sites such as «http://www.crimenet.com.au». See also R v Cogley [2000] VSCA 231.

57. R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37, [204].

58. R Verkaik, “Collapse of Two Trials Blamed on Jurors’ Own Online Research” (20 August 2008) The Independent «http://www.independent.co.uk/news/uk/home-news/jurors-internet-investigations-blamed-for-collapse-of-trials-902892.html» at 27 November 2008.

59. In Burrell v R [2007] NSWCCA 65 (location of Guyra in NSW); in Folbigg v R [2007] NSWCCA 371 (retention of body heat in a deceased baby); in R v Templeton [2006] NZCA 158 (a juror was found reading photocopied pages from a law text); in R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 (a murder trial involving ballistic evidence, a juror was found with a book, Guns and Gunsmiths and a brochure about ammunition).

60. R v Absolum [2003] NZCA 197.

61. R v Harris [2006] NZCA 273.

62. R Matthews, L Hancock and D Briggs, Jurors’ Perceptions, Understanding, Confidence and Satisfaction in the Jury System: A Study in Six Courts (United Kingdom, Home Office, 2005).

63. See also N J Schweitzer and M J Saks, “The CSI Effect: Popular Fiction About Forensic Science Affects the Public’s Expectations About Real Forensic Science” (2007) 47 Jurimetrics 357; S Cole and R Dioso-Villa, “CSI and Its Effects: Media, Juries, and the Burden of Proof” (2007) 41 New England Law Review 435.

64. Compare 57% of New Zealand judges.

65. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 19.

66. V Bell, “How to Preserve the Integrity of Jury Trials in a Mass Media Age” (Supreme and Federal Courts Judges’ Conference, January 2005).

67. R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406.

68. Jury Act 1977 (NSW) s 68C: “(1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror” Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. The section commenced in December 2004.

69. Burrell v R [2007] NSWCCA 65 (location of Guyra in New South Wales); Folbigg v R [2007] NSWCCA 371 (retention of body heat in a deceased baby, information from the Internet).

70. The Bench Book, until August 2008, included the offence within its guideline direction but only by extracting the relevant Jury Act section. While this might prompt a judge to consider including reference to the criminality of the conduct in his or her instructions to the jury, it would not aid a judge with a useful form of words.

71. Judicial Commission of NSW, Criminal Trial Courts Bench Book (August 2008) [1-520].