The ACT Bar Association has confronted Chief Justice (CJ) Lucy McCallum over her self-admitted controversial statements about juries in sexual-assault trials.
The Bar, normally somewhat reserved in such areas, issued a statement on 19 November, expressing concern that there may be a perception, based upon the CJ’s words at the Jury Research and Practice Conference on 15 November, that juries in sexual-assault trials are getting it wrong because they do not believe the allegations made by complainants.
“The ACT Bar Association was not present when the comments were made by the Chief Justice and cannot comment on what was actually said or the context in which it was said,” the statement began by qualifying. “However, the Bar Association is concerned that there may be a perception that parts of the judiciary consider that culture wars or the graphic nature of allegations are seen to be swaying juries such that they are not believing the allegations.
“Such perceptions do not serve the interest of justice, and ought be rejected.
“The notion that juries come to the wrong result is flawed, and must be rejected. It is a notion which the Chief Justice herself rejected when apparently stating that juries always got the verdict right.”
Privately, barristers have been far more colourful, one talking of the impossibility of reconciling the two positions (that juries were getting it wrong when disbelieving complainants but still always got their verdicts right) as practising “linguistic hypocrisy and intellectual dishonesty”.
The Bar Association continued, “Juries are the ultimate arbiters of fact. Twelve members of the community, brought together to consider the evidence as presented to them, applying their common sense and life experience, make the decision of guilt or innocence. They are foundational to the common-law, criminal-justice system and their decisions must not be gainsaid.”
The Bar’s missive comes after considerable coverage of the CJ’s comments in national and local media.
The Canberra Times reported the CJ, in opening the conference, as saying she had a “feeling of unease over what juries make of allegations, particularly in sexual-assault cases”.
“I want to understand why in the 2020s, jurors find it so hard to believe allegations of sexual assault,” the CT reported her as saying. “I know that’s a controversial statement.”
Supreme Court Justice Belinda Baker added to the debate when she reportedly agreed with a conference speaker that a judge’s directions to a jury were “a weak mechanism for addressing misconceptions and rape myths in rape trials”. By contrast, experts “can explain why people don’t complain … why a person might freeze or become floppy or start to become compliant to perpetrator behaviour.”
Earlier this year, the CJ, in an interview with the Times, spoke of “an intractable problem in that our overriding task and function is to ensure an accused person has a fair trial. So, that’s immutable.”
Noting the Evidence Act powers to disallow cross-examination that was “misleading, confusing, offensive, annoying, harassing, humiliating, or repetitive”, she asked in May, “So why aren’t we doing that? Because we’re all scared of not giving an accused a fair trial.”
Her comments then ran into significant blowback from barristers, one telling the bar association that they were “quite concerning in terms of foundational precepts of the criminal-justice system in this country, in particular the presumption of innocence, the right to silence and the right to test and call evidence and the other hallmarks of a fair trial”.
Of McCallum’s comment then about “exactly what we’re up against with some juries” in sexual-assault trials, one said, “Who precisely the ‘we’ is that are up against some barrier is not entirely clear but is unfortunately expressed in a way (at least at one level) indicative of a view that in some juries in sexual-assault cases are inappropriately returning not-guilty verdicts.”
One written submission to the Bar then declared: “Leaving aside Her Honour apparently describing the overriding obligation to ensure an accused person gets a fair trial as an ‘intractable problem’, I would welcome someone explaining to me how the presumption of innocence – a presumption that remains up to and until the prosecution discharges its onus to prove an offence beyond a reasonable doubt, does not as both a logical and legal necessity mean that a jury IS entitled to think a complainant MIGHT be lying – at least until the presumption of innocence has been rebutted.”
Such was the vehemence of several leading members of the Bar, from both Prosecution and defence backgrounds, at that time.
The fact that the Bar, en masse, has now chosen to speak out is significant.
Of the CJ’s comments on 15 November that the impact of “culture wars” or the “extremely traumatic” nature of evidence may be disinclining jurors to believe sex-assault complainants, the Bar pointed to a 2008 judgment of Justice Dyson Heydon in the High Court:
“Juries are superior to judges in assessing defence points – the willingness to make allowances for muddle-headedness, illogicalities and unreasonableness – implausibilities that are less appealing to the legal mind than to the lay.
“Juries are superior to judges in assessing credibility – the impression made by a witness may be affected by the idiosyncrasies of the receiving mind; the impression made by a mind of twelve is more reliable.
“Judges are required to serve two mistresses, the law and the equity of the case. Juries enable justice to go further with the equity of a case without injuring the fabric of the law.
“The existence of trial by jury helps ensure the independence and quality of judges.
“Trial by jury is an insurance that the criminal law will conform to the ordinary person’s idea of what is fair and just.
“Allegations are just that, allegations. If jurors do not accept allegations beyond reasonable doubt, for whatever reason, then they remain allegations, and the accused is acquitted. Hypothesising as to why complainants may not be believed by juries does not advance the criminal justice system. The common sense and diligence of jurors must be respected and be seen to be respected in order to preserve the integrity of the jury system.”
The Bar Association statement, above the name of President Brodie Buckland, concluded by saying the association “strives for equity before the law, respect for the law and the fair and proper administration of the law.
“Respect for juries is paramount in achieving those ideals.”
Andrew Fraser is the principal of Fraser Criminal Law and has worked in criminal law in the Canberra region for more than 15 years. Before beginning legal practice, Andrew was a journalist for close to 30 years with the Canberra Times and the Sydney Morning Herald, including stints in the Federal Parliamentary Press Gallery. He is also a former news editor, chief of staff and political correspondent of the Canberra Times.
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