So after a case has been ruled on and the judicial process has stumbled to its conclusion, ANYONE who voices a differing opinion can be charged with contempt? I have plenty of contempt right now. Contempt for the ridiculousness of such a law.

There's an awful lot of evidence in the case you are referring to which does not elevate the defence to "beyond reasonable doubt" there will always be doubt without a confession - but it's not beyond reasonable.

If I can be arrested for saying that, then I must be living in North Korea.

Bill,

I see blogging as no different to voicing your opinion in the street. The media "speculate" and accuse all the time, the government "speculate" and accuse, health officials "speculate" and accuse, police "speculate" and accuse. It's part of life. Just because something is in the courts should not immediately condemn everyone to silence of opinion. We still "claim" to live in a "democracy" do we not?

Surely the third, and proper, solution is to treat jurors as intelligent citizens instead of pig-ignorant serfs to be herded around by the court bureaucracy?

That would involve paying them as well as all the professional stuffed shirts in the court room, allowing them to ask their own questions of witnesses and hear legal debates on admissability of evidence, and allowing them to say whatever they want to say publicly after the trial ends.

The public should also be allowed and in fact encouraged to criticise the courts severely and publicly since that is the only way the system will ever be improved.

During an actual trial is the only time it is reasonable to ban public discussion of guilt or assertions of evidential matters other than those advanced in the court room. However the jury should anyway be regarded as competent to exclude inadmissable evidence with proper professional guidance.

I favour the approach used in France. A jury is comprised of nine citizens and three judges. Therefore, if the jury were talking about or clearly considering opinions voiced outside of the courtroom, the judges would be on hand to tell them that this was not allowed.

@ Alan - treating the jury as more than "pig-ignorant serfs" may be a good idea in practise but it was my impression that due to the low pay and length of trials, most juries are made up mainly by the unemployed lower levels of society who don't have anything else with their time? Such people possibly would find it hard to ignore stuff they have heard outside the courtroom. I know from personal experience that it is hard to deliberately ignore a piece of relevant information when making a decision. I am not convinced that we can trust the juries we currently have to do it.

One thing is for sure - our jury system does need a large shake up. If it is done properly many of Bill's concerns could be addressed

It's funny how the courts want to protect the "alleged" offender yet will allow the police to call the defendant an "offender" outright before even going to court! This implies to everyone (media and public at large) that the person/'s is automatically guilty via police "speculation" does it not?

J-Ann, I would wager a jury once instructed is better able to exclude inadmissible evidence than a judge.

Why? Because they are a range of personalities and backgrounds with differing prejudices. It is easy to dismiss inadmissible evidence that conflicts with your prejudices but much harder when it is consistent.

A judge has no-one to call him to account but a juror has the other eleven different personalities to blow the whistle on his blind spot. I don't believe you need three (or any) judges on the jury to make that happen.

@ Alan

Juries do have a mixture of personalities, backgrounds and biases and this is undoubtedly an advantage of having a jury at all. However I would argue that it is one of very few advantages of the system. Too often with juries the decision comes down to which lawyer they liked better, or what they personally thought of the defendant or a key witness. One of my lecturers, a prominent defence attorney from the States, told our class that he deliberately aimed for a jury of older ladies because they would be more likely to be sympathetic to him and thus acquit his client. This is a lawyer who has defended thousands of clients. Furthermore, even the range of backgrounds is guaranteed, when counsel have the opportunity to strike potential jurors without cause. Look at the trial of Pumpkin's dad in Auckland - the prosecution must have been stoked to have an all female jury in that case.

Lastly, I find it a little hard to accept that juries can, from brief instructions, completely understand the rules of evidence that law students, generally a reasonably intelligent bunch, take at least a semester to learn. Juries are meant to be there to decide the facts of a case. Therefore they should be given only the facts that are admissable and asked to base their decision on those. Why confuse the matter by allowing them to sit through the legal wranglings which go on behind the scenes?

J-Ann, to take your last point first, the two instances are not comparable. Law students need to learn the entire set of rules and precedents they might encounter in their career. The jury has to learn only those applicable to the circumstances of the particular case.

"Why confuse the matter by allowing them to sit through the legal wranglings which go on behind the scenes?" Because then they will have the maximum understanding of the case. More information is always better than less. Only our legal system attempts to deny this.

Yes, it's natural for personal prejudices to have an effect. Your argument is for having a representative spread of jurors rather than just one segment of the population. You will note the prejudicial effect is even greater when there is a single judge.

J-Ann, one other point you raise is another legal fiction that juries are simply there to decide the facts of the case.

Joe Public understands very well that there is much more to it than that. Juries are there to decide what is reasonable, sometimes explicitly but otherwise implicitly. They are there to defend the ordinary citizen against unreasonable oppression by the all-powerful State. Whereas a judge must simply, blindly, apply the law, a jury can, and often does, consider whether the law is fair before entering a conviction.

That is why the public will never agree to abolish juries.

Alan

I do not believe that juries have the ability to decide if a law is fair before applying it. If a judge sums up by saying "these are the elements of the offence. If you believe they have been sufficiently proven by the prosecution beyond reasonable doubt then you must convict the defendant" there seems to be little, if any, wriggle room for a jury to say "yeah they made out those elements but we'll acquit because the law stinks". And if a jury were to do that, then we'd be running into a whole heap of trouble. What happens if a jury happened to be made up of people who didn't really like the law of rape? Or who thought that having sex without consent shouldn't be a crime? Its a long shot that that could happen, I know, but do we really want a system where juries effectively decide what the law should look like? The law was made be elected representatives who can be held to account through public scrutiny and elections. Jurors are anonymous and unaccountable. I for one do not want to see NZ move to a situation where juries can choose which laws, or parts of laws, they wish to enforce. Where is the accountability, the certainty and the sense in that?

It is for these reasons that I strongly believe that a jury should only be there to decide the facts of the case at hand. The lawyers and judges can tell them what the elements of the offence are; if the facts are found to satisfy all those standards beyond reasonable doubt then never should a jury just decide to acquit anyway.

Finally, you will note that I am not promoting eradication of the jury trial all together, although there are some strong arguments in favour of this, not in the least that it would cut costs astronomically. I acknowledge that jury trials are an important part of our system and that a person has a right to trial by his peers. I just do not see why the jury cannot be made up of 9 citizens and three judges. At least then we would have a guarantee that at least some people on the jury are of at least average intelligence. And the concerns about judge-alone trials and bias, etc, would no longer be a concern. Additionally, perhaps then the jury could have access to admissibility arguments, as there would be someone on the jury who could interpret the legal jargon.

Oh, and you say that more information is better but is it really when such information is unreliable, possibly false and yet highly emotive and persuasive, such as a confession? The rules of evidence exist for a reason, not the least to protect the public from coercive police tactics that are often used to force someone to confess to a crime.