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Marta: Truth and illusion, George; you don’t know the difference.
Edawed Albee, Who’s Afraid of Virginia Woolf
George: No, but we must carry on as though we did.
Edward Albee’s 1962 play, Who’s Afraid of Virginia Woolf, rips down a compulsive response in the human psyche: hysteria. What is worth believing? So too did Arthur Miller in The Crucible, where kids crying “witchcraft” became the word of law.
If you were to search up ‘Beef Wellington Lady’ or ‘Mushroom Case’, you would be inundated with articles surrounding the Murder Trial of Erin Patterson. If you were to search up ‘Dingo Case’ on the internet, you would get a similar story of articles surrounding the ill-fated murder trial and corresponding witch hunt of Lindy Chamberlain in 1982. If you search up ‘Tony Mokbel’, a similar story of media frenzy and a sensationally-public trial.
In the case of these people, they have received the double-edged sword that is Australia’s mismanaged concept of ‘open justice.’
Open Justice in some form stems from the Magna Carta, which guaranteed individuals a fair trial. Time has shown a good way to achieve this is by having publicly-viewed trials, where members of the jury – if there is a jury – are the accused’s everyday peers. Another method of open justice is having media reports on the court proceedings and publishing the judgments after the trial. An open-and-shut example of this would be:
- Channel 9 reports that an individual has been charged with Assault
- A reporter goes to the Downing Centre to watch the day in court
- That reporter publishes the verdict that afternoon
- The judge publishes his reasoning a few days later
- The general public knows the fate of the accused just as much as they know themselves
- End of story
There are complexities to this, however, stemming from times the judiciary has missed the mark and has changed the rules. Examples of this include:
- Not everything is public: if the trial involves children, members of the military, protected witnesses, military matters, or matters of national security, there is a ‘closed court/suppression order’, meaning there is less open justice, so as to protect whoever is in the chair. No media coverage, no public viewing, nothing.
- Not everyone gets a jury: if the matter is too complex for the average Australian to understand (such as a technicality of medical malpractice that only a specialist doctor would know), or is of too much public opinion, the court opts for a judge-only trial. The latter of the stipulations is where, in my opinion, the wheels fall off.
Summarily, open justice is various steps (there are many more I’ve omitted) to prevent the law from becoming this draconian-style kangaroo court popularised in films such as The Dark Knight, where there is no due process and justice is anyone’s guess. It also prevents the politicisation of justice. Episodes of Black Mirror – despite being fictional – actually display brilliant examples of this spectrum. Often, it ends in an ongoing push-and-pull between the interests of the public and the interests of the state.
The idea of having a jury is often to understand what a ‘reasonable’ person would do – balancing how the law views someone (the judge) and how society views them (jury) and assessing their criminality from there. For example, a judge may ask a jury if they would have acted in self-defence if in the position of the accused. The nature of juries being randomly selected Australians generally gives a good temperature check to see if someone has morally missed the mark in their actions. For your ‘run-of-the-mill’ crime, this typically works.
Where things get complex is when the alleged crime falls into the media before the courts, or when the case is just as tragic as it is bizarre.
R v Chamberlain was the trial of Lindy Chamberlain and her husband for the murder of their one-year-old baby, Azaria. In tragic essence, whilst camping at Uluru, baby Azaria was taken by a Dingo and killed. However, Lindy herself was being blamed for the murder, in response to a vast array of social concerns at the time (her stoic remorse, their subscription to the Seventh Day Adventist Church, and the uncommon name of their daughter).
This case has relevance to me personally, as my Mum grew up in a Seventh Day Adventist school, to which Mr Chamberlain was a pastor at the time of the trial. As time went on, the joint trial of Lindy and Mr Chamberlain became the most highly publicised murder trial in history, and every detail of the couple’s lives was spread across the Australian landscape. Where open justice was supposed to find out what happened to baby Azaria, it devolved into a frenzied witch-hunt against a mother who had lost her child. Tabloids painted Lindy as a witch, poorly evidenced by their misunderstanding and potential ignorance of the Seventh-Day Church. A common storyline held that Lindy sacrificed baby Azaria in a religious ritual. ‘Americanised’ tabloids crashed into society, dividing public opinion beyond repair.
Australia in 1982 was a very different country from what it is today, hence her branch of Christianity being the primary concern in a comedy of judicial errors.
History tells us that the jury (Australians we pick off the street) were too easily swayed by the opinion of the media, and largely disregarded the evidence within the trial. In a legal sense, the trial was mismanaged and tragically missed the mark in terms of how to convict someone. I would argue that the jurors in the original trial were led to believe the narrative of Lindy, as opposed to the evidence placed before them at trial. Mob mentality crashes like a fullback into one’s life, especially if their entire society thinks one way
On Red Scare hysteria, Miller said:
And now, as though cornered, they let out a gigantic scream, and Mary, as though infected, opens her mouth and screams with them.
Lindy Chamberlain was exonerated and acquitted, but it took a long time to pull out the short blade.
Let’s jump to 2025. Erin Patterson was found guilty of triple murder after cooking a meal for members of her family laced with death-cap mushrooms, resulting in their tragic deaths. The trial ensued for twelve gruelling weeks, with regiments of media descending on the small Victorian town of Leongatha in the hopes of stirring up some action. The concern, however, is that it more or less got out of hand. Hundreds of media articles, videos, podcasts, satirical run-offs and general commentary swamped the Australian landscape. In my opinion, the media (and therefore the general public) was too quick to throw down the hammer, where lots of what was actually occurring inside the courtroom was unknown.
This trial was absolutely everywhere and anywhere. Work conversations. Theories with mates. Filling in time waiting in a bar line somewhere in an inner-Sydney pub post-8 pm.
The catch is, this was a trial with a jury. The jurors could’ve been the work colleagues. The theorist mate. The dude copping a legal earful waiting for a drink at an inner-sydney-pub-post-8 pm. Were they in a position to just forget?
Section 68C(1) of the Jury Act 1977 (NSW) strictly prohibits jurors from investigating the workings of the case beyond the courtroom. Jurors must completely switch off from the outside world during deliberations and must not make any attempt to discover more facts (or opinions) of the case. This is seriously enforced, and jury tampering is a serious offence.
Where it’s easy for a juror in 1950 to just not open the letterbox, today it is entirely impossible to remain isolated from media coverage and public opinion. If you don’t open the app, the ABC will let you know. Importantly, natural factors such as an increased number of journalists and the ability for anyone to report on the matter via social media do add to the complexity. This places the modern juror in an incredibly difficult situation: how do you switch off when the case you are a part of is literally everywhere? How do you refrain from hearing outside information for three whole months? The cruellest irony of the whole trial is that it seems the only way one can refrain from gathering information is if they were the one in the box, and had been denied bail.
I believe we place too much pressure on jurors who happen to be selected for cases of national prominence.
History will tell us that Erin Patterson was found guilty by a jury of her peers. This is not contested. But, I believe cases that are so high profile are the time to close the doors to opt for a judge-only trial. Further, for a twelve-week trial, the role of juror is gruelling and at times mundane without the pressure of the outside world.
Going no-jury is a fine line between defence counsel seeking a jury as an acquittal tactic, but also wishing to keep the doors closed to hopefully please a judge only. As the burden of proving everything down to the last atom sits with the Crown, Crown prosecutors are often reluctant to let things play out in the media, as it complicates their task of appealing to a jury.
I had the jury right here! Right here! And you tell me this now?
Cleaver Green, Rake
You never truly know who you’ve picked off the street.
In summary, jurors are a vital aspect of the modern Australian justice system. But, I believe in national cases that start to unfold akin to a crucible, it may be time to rethink the whole process. Victoria gets hot in the summer. Heat draws out the impurities. In his closing remarks, Justice Beale, the judge presiding over Erin Patterson’s trial, directed the jury for the last time in the fitting coda:
You are the only ones in this court who can make a decision about these facts.
