Jurors, Twitter, Facebook, Oh my!

One British juror who could not reach a verdict on a child abduction and sexual assault trial turned naturally to Facebook.

”I don’t know which way to go, so I’m holding a poll,” she announced.

Another sitting on a drugs trial befriended the accused and traded messages with him on Facebook.

But a Californian juror needed no such help. ”Guilty! He’s guilty! I can tell!” he tweeted.

In the age of social media, the only way to guarantee that jurors are not exposed to prejudicial material about their trials would be to abolish juries altogether, according to a report commissioned by the Australian attorneys-general.

The report by the Centre for Law, Governance and Public Policy recommends sending jurors on training courses before trials and constantly warning them against external influences, with written directions, daily reminders and signs in the jury rooms.

It does not advocate the increased use of trials in which only judges delivered verdicts.

Research quoted in the report indicates that jurors have neither the willingness nor ability to disregard material that they regard as relevant, even if they are told to do so.

Jurors admit to checking the internet even when a judge has told them not to, but they more likely to heed written directions than oral ones.

The standing committee on law and justice, which is made up of state and territory attorneys general, is investigating how to mitigate the impact of social media on the right to a fair trial.

Full  story in the SMH.

Conductor Brings Music to Gaol

CHICAGO (AP) — Strains of classical music echoed on Sunday — not inside an august concert hall — but in a bleak Chicago jail where the mostly teenage boys await trial on charges ranging from dope dealing to murder.

The concert was part of a unique outreach that’s the brainchild of the Chicago Symphony Orchestra’s musical director, the Italian-born Riccardo Muti, who attended the event at the Cook County Juvenile Temporary Detention Center on Chicago’s West Side.

The concert included half a dozen of the orchestra’s members. But the center-stage performers were some 10 inmates who participated in a weeklong musical workshop at the lockup. It culminated in the Sunday concert featuring compositions the inmates wrote in collaboration with the professionals.

When one of the organizers announced the inmates and their families will receive CD recordings of the concert, one mother buried her head in her hands.

“Oh my God, this is so special,” she said aloud.

The goal of the outreach, which has included other jail visits, is to impart a wider appreciation for music and to inspire at-risk youth. It seemed to work for at least some of the teens.

“I learned more about classical music,” a teen named Ricky told reporters after the concert. He was identified only by his first name because he is a juvenile charged with a crime. “I’d heard of Beethoven and Bach. I liked it.”

The center’s own 2012 annual report noted that, almost daily, someone either talks about killing himself or tries. The center holds around 250 inmates in total, a few of whom aren’t yet teens.

The Naples-born Muti has taken his act into prison before.

He once performed Robert Schumann’s “Warum?” — which means “why” in German — in a Milan prison. The work, he explained later, was his way of asking inmates what had brought them to such misfortune.

“We will meet again in the future,” he said. He quickly added, “Not here! But on the outside.”

Right to Silence is Gone. What Were You Doing When Your Rights Were Being Taken Away?

I wonder what you were doing while your rights were being taken away? This from a colleague:

The Evidence Amendment (Evidence of Silence) Act 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 has been passed by NSW Parliament.

Both will come into force very shortly. It is now far too late to do anything about any of this. Except perhaps a challenge in the Court?

The Evidence Amendment (Evidence of Silence) Act 2013 will amend the Evidence Act 1986 to provide an exception to section 89 to allow an unfavourable inference to be drawn at trial against certain defendants in respect of their silence during official questioning. Under the new section 89A, an inference may be drawn where:

  • The accused failed to mention a fact during police questioning that they could reasonably have been expected to mention in the circumstances existing at the time.
  • A special caution explaining the nature and effect of a failure or refusal to mention a fact was given to the defendant before the failure or refusal.
  • The special caution was given in the presence of the Australian legal practitioner acting for the defendant at the time of questioning. 
  • The defendant was allowed a reasonable opportunity to consult with that legal practitioner about the general nature and effect of the special caution, in the absence of the investigating officer and before the failure or refusal to mention a fact.
  • The investigating officer who gave the special caution had reasonable cause to believe that the defendant had committed the serious indictable offence.
An unfavourable inference cannot be drawn where, at the time of questioning, the defendant was under 18 years of age or was incapable of understanding the general nature and effect of the special caution. Additionally, an unfavourable inference cannot be drawn where the failure or refusal to mention a fact is the only evidence that the defendant is guilty of the serious indictable offence. The giving of the special caution in accordance with the new section does not, of itself, render evidence obtained in response inadmissible in proceedings for any other offence (whether or not a serious indictable offence).

The Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 will amend the case management provisions of the Criminal Procedure Act 1986. It will require the defence to set out in its mandatory response to the notice of the prosecution case:

  • The nature of the accused’s defence, including particular defences to be relied on.
  • The facts, matters or circumstances on which the prosecution intends to rely to prove guilt, with which the accused intends to take issue.
  • Points of law which the accused intends to raise.
The Act retains capacity for court-ordered defence disclosure of other material in accordance with the existing provisions of the Criminal Procedure Act. The timing of disclosure will be managed by court practice notes, as is currently the case, which will require notices to be served by a particular period before trial. If the accused fails to meet any of its disclosure requirements imposed under the Act, or serve a notice of alibi where required to do so, then:

  • The court, or any other party with the court’s leave, may make such comment at trial as appears proper.
  • The jury may then draw such unfavourable inferences as appear proper.
The accused cannot be found guilty of an offence solely on an unfavourable inference. An unfavourable inference cannot be drawn if the prosecution fails to comply with its pre-trial disclosure obligations under the Act. Should the prosecution serve material after the defence has served its response, the Act allows the defence to seek the court’s leave to amend its response if the late-served material affects the contents of the response. The Act amends the existing waiver provisions to provide that the court may waive any of the Act’s pre-trial disclosure requirements if it is in the interests of the administration of justice to do so. In reaching its decision, the court will now be required to take into account whether the accused is legally represented, and must also give reasons for making such an order.

The Bills can be found here:



New Duty List Pro-Bono Solicitor at Wollongong

A group of local lawyers have put their heads together to help people faced with coming to the Wollongong court who don’t have a lawyer and cant qualify for Legal Aid.

At Wollongong Court House, most new criminal matters are listed in a call-over list on Tuesday mornings (starting at 9.30). The list is where people often find themselves when they first come to court, frequently without any idea what is going on or what they are supposed to do next. 

On Thursdays, the Apprehended Violence Order List sits in Court Five at Wollongong from about 10 AM and this is where people will find themselves if they have an AVO being taken out against them.

These days can be confusing and difficult and often people who are unrepresented can be in need of some guidance and help. 

From the start of April 2013 there will be a Duty List Solicitor there, from the local private legal profession, to provide simple advice and pointers on what your options are and what to do next. It’s all pro-bono (meaning it’s free).

This is service is run by private practitioners who are helping the Court by providing advice to defendants and accused people who are appearing for themselves and require some pointers. Based on similar initiatives at the Sydney Downing Centre Local Court and elsewhere in the state, this is a special contribution made by private lawyers to assist the community.

People will be able to obtain the help of a Duty List Pro-Bono Solicitor on Tuesdays and Thursdays from 9.30 AM until approximately 11.30 AM. Where a person is unrepresented the Magistrate may refer that person to the Duty List Pro-Bono Solicitor for some advice before proceeding to deal with the matter.

Local Law Firms who are participating in this scheme are: 

Kernaghan & Associates     Good Legal     Graeme Morrison Law     Helen Volk Legal

Wollongong Court to Close for Renovations

Wollongong Court will close at the end of next year, but for how long….?

According to a report by Emma Spillet, Chief Magistrate Judge Graeme Henson wrote to the Law Society of NSW earlier this month about the closure, saying Wollongong Local Court matters would be relisted at Port Kembla, Kiama, Albion Park and Sutherland.

Wollongong and District Law Society president David Potts has slammed the decision, saying a partial closure would have been a better option.

“Although the renovations will take longer, the inconvenience to the community would likely be reduced,” he said.

“Our concern is that this closure will make it very difficult for many people in the area; it’s likely that thousands of people will be affected [including] parties to proceedings, witnesses and the police.”

A spokesman for the Attorney-General’s Department said closing the court was the least disruptive option: “Conducting court sittings at a noisy and dusty construction site is not an option and would cause significant delays to the completion of the project.”

Mr Potts said the society was particularly concerned about defendants in custody, as it understood there were limited cell facilities at other courts in the region.

Full story here.

Gay Marriage: Listen to the US Supreme Court Argue

One of the great things about the US legal system is its genuine attempt to be transparent and open. The US Supreme Court makes available audio recordings of the oral argument (submissions by lawyers and questioning by the members of the bench) and there are a number of projects that maintain those recordings online for availability. Better yet, transcripts are almost immediately available. In a country as large as that, with a case load to boot, what an achievement. If only the High Court of Australia could manage something similar, so that all of us (and not just Canberrans) might be able to hear first-hand the arguments in our nations highest court.

This week, the US Supreme Court is considering, in part, gay marriage and yesterday they reviewed DOMA. In a case named United States v Windsor (Docket No. 12-307).

The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of federal law, the words “marriage” and “spouse” refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale.

Edith Windsor is the widow and sole executor of the estate of her late spouse, Thea Clara Spyer, who died in 2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by New York state law. Thea Syper left her estate to her spouse, and because their marriage was not recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been recognized, the estate would have qualified for a marital exemption, and no taxes would have been imposed.

On November 9, 2010 Windsor filed suit in district court seeking a declaration that the Defense of Marriage Act was unconstitutional. At the time the suit was filed, the government’s position was that DOMA must be defended. On February 23, 2011, the President and the Attorney General announced that they would not defend DOMA. On April 18, 2011, the Bipartisan Legal Advisory Group of the House of Representatives filed a petition to intervene in defense of DOMA and motioned to dismiss the case. The district court denied the motion, and later held that DOMA was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed.

The questions on this appeal are:

Does the executive branch’s agreement with the lower court that the act is unconstitutional deprive the Supreme Court of jurisdiction to decide the case?

Does the Bipartisan Legal Advisory Group of the House of Representatives have standing in the case?

Does the Defense of Marriage Act, which defines the term “marriage” under federal law as a “legal union between one man and one woman” deprive same-sex couples who are legally married under state laws of their Fifth Amendment rights to equal protection under federal law?

The full audio and transcripts can be found here.


Wollongong solicitor Aaron Kernaghan has taken a swipe at new laws that effectively “roll back” a person’s right to silence, creating more work for solicitors, academics and law students.

The Evidence of Silence legislation was passed in Parliament last week, allowing juries to draw a negative inference if an accused wants to divulge information during a trial that they did not initially provide to police.

Mr Kernaghan said the reforms, introduced to assist police in the fight against organised crime, were unacceptable.

“It’s created a situation where the right to silence is still on the books but it can now be used against people; it’s really creating a risk of prejudice,” he said.

Full story here.