Statistics and the Jury: The numbers don’t always add up

In my days prior to becoming a lawyer I profess that I was a sucker for all things Law & Order. Not the high-minded ‘concerned citizen’ use of that phrase but rather the fictional inner workings of two separate but equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders … in neat 40 minute episodes.

In those tightly written episodes the defendant was often baited into participating in an inculpatory interview with Police with his seemingly mute public defender by his side. In contrast to this legal ineptitude, what I really pined for was the courtroom scenes. Like those Tom Cruise cross examining Jack Nicholson moments (“You can’t handle the truth!” Mixing my references here, indulge me) where the wily prosecutor swayed the jury through devastating cross examination of the cocky defendant.

As I eagerly awaited these mic-drop moments I learned something else which, I am more confident in saying, is reflected more commonly in criminal practice…. Science is King. Whenever the State wheeled out a scientific expert their evidence was afforded significant weight as the jurors looked on nodding and taking fervent notes. Science, it seemed, was the backbone of every good prosecution.

Far more eminent minds than mine have spoken about the ‘Lab Coat’ and ‘CSI’ (a far inferior show, BTW) effects on jurors. Suffice to say, the evidence of an expert witness with all its real and imagined objectivity can cut through the clouds of lawyerly excrement and provide the jury with compelling evidence upon which to base their verdicts.

In the case of DNA juries have become increasingly exposed to the use of probability statistics and, when faced with competing arguments from either side of the bar table, jurors could be excused for falling back on those verifiable scientific figures as a sort of universal truth which trumps the fallibilities of the ‘human’ evidence.

‘Good Science’, therefore, helps both the Prosecution and the Defence. I am not going out on a limb by saying that advances in forensic science have led to a reduction in miscarriages of justice and, equally, helped convict offenders who might otherwise have escaped prosecution.

It was with all of this in mind that I read the recent Court of Appeal decision in R v Lang[1]. In their joint judgment the Court overturned a murder conviction and ordered a retrial.

In Lang the Appellant successfully argued that the jury had received statistics from an expert which were “irrelevant and hence inadmissible”.

The deceased, who was in a romantic relationship with the Applicant at the time of her death, had been found with a knife protruding from her chest. The defence case was that she had committed suicide, the Prosecution alleged that she was murdered by the Applicant. It was common ground at the trial that the deceased had Bi-Polar Disorder.

During the trial statistical evidence of the rates of suicide in women and, further, statistics about the use of sharp implements in such suicides, was adduced from an expert witness. The Court of Appeal explained the problem with such evidence:

[40] A death caused by a knife wound is itself a rare occurrence, whether the wound is self-inflicted or otherwise. This event having occurred, there were two hypotheses which had to be considered by the jury. The prosecution case was that it was very rare for a woman, even with bipolar disorder, to kill herself, particularly by stabbing herself, which, whilst not of itself proving the fact, made it more probable that she had been murdered. The fallacy in that argument is that the evidence signified nothing about the relative likelihood of the alternative hypothesis, namely that she was murdered….[42] In a case where the jury had to consider two alternative hypotheses, evidence which was said to indicate the likelihood of one hypothesis could mean nothing without evidence of the likelihood of the alternative…

Counsel for the Applicant in Lang cited the UK case of R v Clark.[2] When I noticed that name I was reminded of another example of how statistics can prove to be extremely dangerous in the jury room. It is here I must again digress. True to my clichéd middle-aged white male existence, I am now quite interested in podcasts. It was during an episode of They Walk Among Us, a fantastic podcast focusing on UK criminal justice, that I was first exposed to the harrowing story of Sally Clark.

In 1999 Sally Clark was convicted of the murder of her two infant sons. The first had lived for 2 months before being found unresponsive. At the time she was not charged with this child’s death as it was ruled the death was the result of a SIDs related illness. The second child, born the following year, tragically also passed away at a similar age. This time the expert opinion was that the child had died as a result of being shaken. The same expert re-examined the death of the first child and made new findings, ultimately resulting in the Mother being charged and later convicted of the murder of her children.

Vital to those convictions was the use of statistics. For example, at trial one expert suggested the likelihood of two children from the same family passing away due to SIDs was “1 in 73 million’. With such a statistic being front and centre in the minds of the jury it was perhaps unsurprising that Ms Clark was convicted.

It was therefore not without a healthy dose of irony that, after spending more than 2 years in jail, science –which had played a pivotal role in her conviction- came to Ms Clark’s rescue. It turned out that scientific evidence had existed at the time of the original trial which provided a compelling basis to suggest the deaths were as a result of an infection, rather than by an overt act of the Mother. Problem was, this evidence was not disclosed to the defence and their experts.

More importantly for present purposes the Court of Appeal also found that the use of statistics in the conviction of Ms Clark were ‘misleading’, ‘irrelevant’ and dangerous.

The Appeal was upheld and to their credit, the Crown did not seek a retrial. The case would go on to have profound effects on the way SIDs deaths were investigated in the United Kingdom.

The Takeaway

Statistics are powerful.

When either side of the bar table seeks to rely on them great care should be taken in questioning their underlying presumptions, the data upon which they rely and, most importantly, whether they are in fact probative in the case.

Both Lang and Clark demonstrate that even if statistics are accurate, they have the power to distract the jury to the point of appellable error. It would seem then that if there is any doubt about the probative nature of a statistic it is best that it not be put before the jury.

Statistics then, it seems, can be misleading. Much like a Law & Order episode they can be enticing at first blush but, upon closer inspection, may not stand up to scrutiny.

******

Remy Kurz
24 January 2020

The views of this author are his own and do not necessarily reflect the views of Robertson O’Gorman


The rise of the addendum- Tactical considerations in applying to Cross examine witnesses in committal proceedings

In 2010 the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act amended the Justices Act by removing cross examination as a matter of right in committal proceedings in Queensland.

Driven by the Moynihan Report[1], which called for a ‘more focused, streamlined effective committal process’, Queensland adopted the New South Wales system which requires a multiple step process to be completed before a witness may be cross examined in committal proceedings.

This process is initiated by the defence providing to the prosecution a ‘defence communication’ pursuant to section 110B(3)(a) of the Justices Act, which outlines the witness sought to be questioned, the general topics of questioning and the reasons to be relied on for that questioning. The prosecution then have the opportunity to consent to the questioning of the identified witness and the topics outlined. In the event of a refusal an application can then be made to the Magistrates Court to determine whether the witness can be cross examined and on what topics may form part of that examination.

Anecdotally, most practitioners report the starting position of the Prosecution is to refuse any request to cross examine witnesses. This can vary depending on the prosecuting body but, generally speaking, I have found that Police Prosecutions (who often retain carriage of indictable offences until committal in regional areas) are less inclined to consent than their DPP counterparts.

Since the roll out of these reforms the consistent approach from the Prosecution has been to address, where possible, the identified topics of cross examination by obtaining an addendum statement from the relevant witness. By taking this route the Prosecution figure that any ambiguity can be resolved without the need for the witness to be cross examined.

For those on the left hand side of the bar table this has led to much exasperation. Experienced practitioners are aware that the silences in the original statement may not be a simple case of inattention. Those silences may betray weaknesses in the prosecution case, inconsistencies between witnesses, or matters which may affect the credit of the statement writer. To seek an addendum to address these problems is akin to allowing the Prosecution to have a second bite at the evidence gathering cherry.

For these reasons some practitioners believe there is little utility in applying to cross examine witnesses. To do so may disclose your case theory or even subvert your client’s right to silence.

The problem with this approach is that it inevitably opens the defendant up to surprise at trial when the areas which required further scrutiny are finally put to a witness. Further, the more esoteric benefits derived from cross examination, such as an assessment of the witness’ demeanor and candour, are also foregone.

The middle ground regularly adopted by the defence is to request, on the face of the ‘defence communication’, that the contents of the communication not be disclosed to any prosecution witness. In addition and in response to the common practice outlined above, a request is often made specifically asking that no further addendum statement be obtained.

In the recent Supreme Court decision of Agnew v Thacker and Commissioner of Police[2]these requests were put under the microscope. Agnew had applied to cross examine witnesses and his lawyers had requested that the contents of the defence communication not be disclosed to prosecution witnesses and that no further statements be obtained. The Police went and took them anyway and, ultimately, the application to cross examine witnesses was refused.

Holmes CJ, in an overarching discussion about the lack of ownership in witnesses, found that “there was no legal basis for the applicant to place limits on the use of the information”.[3] With one fell swoop the Prosecution penchant for addendum statements has been validated. The Court found there was nothing inherently wrong with the provision of addendum statements in these circumstances and suggested the disclosure of a defence via a defence communication was similar to the disclosure required when relying on alibi or expert evidence.[4]

While it would be improper for a prosecutor to forewarn a witness about what evidence will be challenged under cross examination during a trial, it now seems permissible to allow for the same information to be provided to the witness prior to committal in the interests of ‘streamlining’ the committal process. This is a concerning development.

Where does that leave the defence? The starting point is that we must assume that the Prosecution will disclose the contents of any defence communication with Crown witnesses. That means that extreme care must be taken in the drafting of the defence communication. Should the communication disclose too much detail of the proposed defence there is a real risk that the witness, who previously may have had cause to doubt their recollection when challenged, may tailor their evidence to address the concerns raised in the communication.

Moving forward greater forensic attention will required when drafting the defence communication. It will be imperative to explain the potential impact on a client’s trial prospects should they pursue cross examination at committal. On a practical level it may be beneficial to craft the communication with recourse only to the prosecution evidence, rather than running the risk that your client’s instructions percolate into and inform the communication. Finally, there is great merit in either engaging or at least consulting with your likely trial counsel prior to the provision of the communication. The forensic decisions surrounding this communication will impact how the trial is conducted and having counsel’s input at this early juncture will ensure consistency of tactical approach.

[1] Titled ‘Review of the civil and criminal justice system in Queensland’

[2] [2019] QSC 161

[3] Ibid, [41]

[4] Ibid, [34]


Blue Card laws: Is ‘exceptional’ the new normal?

In Queensland those who wish to work with, or foster, children must have a Blue Card. A Blue Card is required even if this ‘work’ is undertaken on a voluntary basis.

Obvious Applicants include those who work in education and childcare but also include sports coaches and administrators. Similar schemes are in place across the country.

When assessing the Applicant’s suitability the government agency responsible, Blue Card Services, considers the applicant’s previous criminal history (broadly defined[1]) and other matters they deem to be relevant (such as known mental health issues).

The whole process is governed by the Working with Children (Risk Management and Screening) Act[2]. This act, quite properly, acknowledges that applicants with a criminal history should not, due to that reason alone, be excluded from holding a Blue Card.

Central to the safeguards within the Act are a list of ‘disqualifying’ offences[3]. These offences are, as you would expect, largely offences against children. Convictions for these offences disqualify a person from receiving or holding a Blue Card. A tier below disqualifying offences are ‘serious[4]’ offences. If convicted of a serious offence there is a presumption against the grant of a Blue Card placing a reverse onus on the applicant.[5]

Unsurprisingly the demarcation of serious and disqualifying offences contemplates a nexus between prior offending against children and the potential of placing children at risk in the future.

Those who have not been convicted of such an offence, irrespective of their other criminal history, are, prima facie, entitled to a Blue Card.  This common sense approach strikes the correct balance between protecting children on the one hand and the rehabilitation of the offender on the other.

In the wake of the tragic murder of foster child Tialeigh Palmer, the Queensland Government announced a Review of the Blue Card System. That review led to 81 recommendations and, perhaps more pertinently for the average applicant, ushered in a new era of increased scrutiny. This increased scrutiny has created a tension between the wording of the Act and its implementation.

The issue which has arisen, post Tialeigh Palmer, is the use of s221(2) which reads:

(2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [6]

It is this discretion vested in Blue Card Services which is contributing to huge delays, unjust outcomes and the issuing of more negative notices. Put simply, the bar for ‘exceptional case’ seems to be lowering at an alarming rate.

In the recent decision of FLS v Directional General, Department of Justice and Attorney-General[7] Member Pennell summarized[8] how QCAT has considered the concept of an ‘exceptional case’ (citations omitted):

Whether the circumstances of a person’s case would render it an exceptional case is the threshold to be applied when the tribunal is deciding whether an applicant should be issued with a positive notice. In applying that principle, regard must be given to the intent, purpose and design of the legislation. The tribunal need only weigh up the competing facts and apply the balance of probabilities principle.

Although the term “exceptional case” is not defined in the Working with Children Act, the phrase has been the subject of many previous discussions in a variety of jurisdictions, including the tribunal’s own appeal jurisdiction. An exceptional case is a question of fact and degree to be decided in each individual case and is a matter of discretion.

In exercising that discretion and deciding whether an exceptional case exists, the tribunal is required to bear in mind the gravity of the consequences involved if a positive notice and blue card were to be issued. Guidance has previously been provided to the tribunal that it would be most unwise to lay down any general rule about what an exceptional case is because all of these matters are matters of discretion11 and each case should be considered on its own facts.

Having regard to the relevant discussions on the term exceptional case, if the respondent decides that a case is exceptional because of the applicant’s criminal history, or because of an event that occurred involving that person, then justification may exist if the decision and refusal to issue a positive notice and blue card was made in the best interests of children.

The Member’s comments demonstrate that arbitrary consideration of what may constitute ‘exceptional’ is unhelpful. What is most important is that that the exceptional nature of the case be inextricably linked to the best interests of children. It is this issue which is being unreasonably expanded leaving many applicant’s stranded.

This is perhaps aptly demonstrated by two cases I have been involved with in the past few years. Other practitioners and Applicants have shared with me their frustration about many other such examples.

In one instance my client was found guilty of assault occasioning bodily harm assault in the Magistrates Court. He had been charged with choking and, when the evidence did not support that charge, it was downgraded. The defendant was placed on probation for 9 months and no conviction was recorded. There was never any suggestion that children were placed at harm during the offending. The defendant had no previous criminal history.

Blue Card Services obtained their information relating to an Applicant’s criminal history from Police. In this case they would have seen that he was charged with the offence of choking and accessed the summary of allegations drafted by Police (which ultimately formed no part of the sentencing basis). Acting on that misleading, preliminary and untested information, they deemed my client to be an exceptional case. They did not seek out the sentencing remarks, which would have shown the proper sentencing basis. They did not seek out the exhibits to the proceedings, which included a psychological report which spoke of a low risk of re-offending. Instead, he was issued a negative notice and forced to apply to QCAT to appeal this decision. He is currently mired in that process.

In another case[9] my client unlawfully disclosed information she obtained in a coercive hearing. She pleaded guilty and was fined, no conviction was recorded. That coercive hearing related to the investigation of the death of a child. There was no suggestion that she was personally involved in harming the child. The offence was not a disqualifying or serious under the legislation. She had no criminal history and was issued a negative notice.

In that case the Applicant had worked in allied care for many years. More than 2 years had passed since she had been found guilty of the offence and more than 4 years since the offence took place. Throughout that period she had received ongoing counselling from both a psychologist and a psychiatrist. She had gone to the trouble of unsuccessfully applying for the removal of the negative notice already and spent a small fortune on reports, treatment and legal fees.

Despite all of this, Blue Card Services still wanted to torture the definition of ‘exceptional’. This was concerning in two aspects. Firstly, it suggested that even the most abstract involvement of a child engaged the ‘exceptional’ clause and secondly, it suggested that someone who had been truly committed to addressing underlying issues which contributed to their offending was given no discernable credit for those efforts.

Fortunately in that case QCAT overturned Blue Card’s decision paving the way for the issuing of a positive notice. While this provides some cold comfort, there are questions which still need to be asked: How many are in the position to pay a lawyer and a psychologist to appear and increase their chances of success? How many will be disadvantaged by being opposed to a trained lawyer who specializes in appearing in the QCAT jurisdiction? How many job opportunities have been missed by those without the ability to challenge a negative notice?  How many will have career paths closed to them on the basis that their non-disqualifying or serious offending is deemed ‘exceptional’?

Blue Card Services are reacting to the increased scrutiny on their system in the wake of some well documented tragedies. That, in itself, is understandable. However, if it were truly the legislature’s intention to make it this difficult to obtain a Blue Card the presumption in favour of a Blue Card would have been dispensed with. As it has not been we are seeing an increased reliance on a case being deemed ‘exceptional’ which, in of itself, devalues that very standard. Reform may be needed to re-balance the playing field in line with the legislature’s intention.

[1] Including where the charges have been discontinued, or sentencing facts have been significantly altered;

[2] Henceforth ‘the Act’

[3] See schedule 4 & 5 of the Act

[4] See section 167 and schedules 2 & 3 of the Act

[5] Section 225 of the Act

[6] My emphasis

[7] [2019] QCAT 5

[8] At [7] – [10]

[9] See published decision: https://archive.sclqld.org.au/qjudgment/2017/QCAT17-411.pdf


The Teacher’s Pet: Do viral podcasts have the ability to taint a jury pool?

I, like many thousands of others, have recently been immersed in the Australian’s podcast series The Teacher’s Pet. This brainchild of award winning journalist Hedley Thomas charts the disappearance and probable murder of a mother of two on Sydney’s northern beaches in the early 1980s.

As an avid fan of ‘true crime’ television series such as The Staircase, Making a Murders, The Jinx, The Keepers and the irreverent (and fictitious) American Vandal, I expected to embrace this series with similar relish. Surprisingly, however, I found myself guarded about the narrative pushed in this podcast phenomenon.

I suspect my hesitance to fully embrace the series is borne from my own dealings working within the criminal justice system in Australia. More precisely, I couldn’t help myself thinking about the rights of the (likely) defendant and how any future trial may be horribly prejudiced by this (understandably) popular podcast.

Foremost among my concerns was the impact the podcast may have on potential jurors. I would suspect, without being able to prove, that this podcast has been popular with a demographic which can relate to the heady days of the early 1980s. Anecdotally, those Baby Boomers account for the majority of jurors in criminal trials. In other words, this podcast is hitting the exact demographic who may find themselves called upon to pass judgment on Chris Dawson, should he ever be charged and tried.

A journalist is, at the end of at the day, a story teller. Hedley Thomas has told a ripping and compelling yarn but there are times, despite his best intentions, where questions of admissibility are left by the wayside. Of course a juror will only hear evidence which is admissible. They will not hear scores of opinions offered by concerned neighbours or hearsay conversations. Rules of evidence exist to recognise the danger and unreliability of such evidence. A journalist need not make such a distinction.

By populating the podcast with so much innuendo and opinion, which makes for great listening, there is a risk that any potential juror who has followed the podcast or accessed related news content may be exposed to evidence which is ultimately unable to be led at trial. This can lead the juror to base their decision on matters which are not relevant to the case.

Much like Making a Murderer there has been an absence of a competing narrative throughout The Teacher’s Pet. That is no fault of Hedley Thomas who has noted on numerous occasions that the Dawson’s have been given the opportunity to come on record. Quite sensibly, they have not done so. Any criminal lawyer who has ever worked on a case of a historical nature will see the grave risks of taking such a step.

As a result the series pushes an agenda which, in turn, has caused a significant groundswell and justifiable outrage as to the ineptitude of the early investigation and the lack of accountability of the Office of the DPP. The risk to a juror however is that they are being exposed to such a partisan version of events. Such a risk can manifest itself in the onus of proof shifting from the prosecution to the defence.

One can only hope that should a trial ever be reached that the jury will be polled on the knowledge of the podcast and the case generally. Hopefully any potential juror who discloses such an interest should be excused from service. My concern though is that there may be some jurors who play down their interest in the case so as to place themselves in what shapes to be a dynamite trial or that when selected as a jury member, they begin undertaking their own ‘background reading’.

It has been commented on by far more erudite minds than mine that jurors in the current technological age have far more information available to them than jurors in the past. They are far more susceptible to outside influence and the scourge of fake news. If I were acting on behalf of Mr Dawson I would be greatly concerned about the real or perceived risk that the jury pool has been tainted by the popularity of the podcast.

So, that being the case, would it be worthwhile seeking a ‘judge alone’ trial (if a trial is ever reached)? That is a topic for later musings. For now, I think the lesson we can learn is this: the increased interest in true crime reporting is likely to result in the number of truly objective jurors dwindling.

 

Remy Kurz

29 September 2018


Remy Kurz Presentation at Balmoral State High School

Solicitor Remy Kurz attended Balmoral State High School yesterday to present a session to the school’s year 10 to 12 students about his experiences as a lawyer.  

The presentation covered a number of contemporary legal topics such as cyber safety, the death penalty, issues surrounding consent, and the legalisation of cannabis. The students enjoyed hearing some real life examples of interesting criminal cases and had plenty of questions about how a defence lawyer operates in this dynamic area of the law.  

Remy spoke of the advantages of pursuing a career in the legal profession, noting that there are a range of growing areas within law that offer a diverse range of career choices.

Should your school be interested in having Remy speak to aspiring young law students contact Robertson O’Gorman on 3034 0000. 

 


Consorting Laws: Worth the Effort?

Following the passage of the Serious and Organised Legislation Amendment Act in 2016 Queensland now has the new offence of habitually consorting with a recognised offender[1].This offence outlaws anyone from having intentional contact with two or more ‘recognised offenders’, with certain (narrow) statutory exceptions.

 

The explanatory notes for the new laws suggest that they are more constitutionally robust, fairer, efficient and effective than those which had been preferred by the Newman Government. Time will tell.

 

By May 2017 the Courier Mail were reporting[2] that over 100 warnings had been issued without any charges being laid.

 

Under the old version of this law, proceedings against the 7 alleged members of the Rebels Motorcycle Club took almost four years to be conclude in the Magistrates Court. At the time of last report, only two of the original ‘Yandina 7’ were prosecuted. The cost to the taxpayer for prosecuting 7 men ‘having a beer’ would have been monumental. Several defendants were legally aided and a deputy director appeared for the Crown.

 

While apparently aimed at any ‘organised’ crime there is little doubt that the legislation was drafted with outlaw motorcycle gangs (OMGs) in mind. Despite this, this author has seen three recent examples of how the Queensland Police Service have broadened their application of these controversial laws.

 

In the first instance, a female partner of my client (who admittedly had ties to OMGs) was issued a consorting warning listing her partner as someone she could not consort with. The warning was issued despite statutory defences found in section 77C which include, amongst others, that any consorting with a spouse or someone whom you share parental responsibility with should be disregarded.

 

In the second instance a young man’s father called me sounding irate. His son had been served an official consorting warning seeking to prevent him from seeing his best friend since childhood. The friend had one previous conviction which had been resolved summarily. Despite this, the friend was defined as a ‘recognised offender’. He had been convicted of a drug offence which carried a maximum penalty which exceeded 5 years[3]. There was no suggestion he was a member of an OMG.

 

The third instance shows how the legislation is being contorted to apply to just about any group of people the Police have their eye on. I acted for a young client who, with several others, was charged with a violent home invasion. My client was released on Supreme Court bail before the charges against him were discontinued. Following his discharge my client was given a consorting warning prohibiting contact with some of his former co-accused (who I presume met the definition of reportable offender). Importantly, the co-accused had been in custody together for some time (another statutory defence under s77C) and any evidence which suggested a gang affiliation was not pursued by the Crown at committal. In reality, the Police wanted to impose upon my client a quasi-bail condition preventing him contacting his co-accused. All of this when he was no longer before the Courts.

 

Each instance here reveals a lack of understanding of the application and intention of the consorting laws. Further, it crystallises the dangers outlined in the High Court challenges to this type of legislation namely that such laws are, in practice, being used to simply stop association, rather than to prevent organised crime.

 

More pointedly, it suggests that the QPS are giving very little thought to s5BAC of the PPRA which stipulates that before giving an official warning they should consider whether it is appropriate to give the warning having regard to the object of disrupting and preventing criminal activity by deterring recognised offenders from establishing, maintaining or expanding a criminal network.

 

One hopes that the Public Interest Monitor, who is responsible for gathering statistical information about the use and effectiveness of these warnings[4], is taking careful note. To suggest that no charges have been preferred on account of the effectiveness of the warnings is simplistic. Unless the law is applied as intended, its benefits will never come to fruition.

 

 

 

[1] Section 77B Criminal Code

[2] http://www.couriermail.com.au/news/queensland/queensland-consorting-laws-more-than-100-warnings-issued-in-two-months/news-story/62b53785190d0078ea3c8db8b63a9985

[3] As most offences under the Drugs Misuse Act do.

[4] Section 742(4)(e) Police Powers and Responsibilities Act (2000)