Yesterday’s decision by the NSW Court of Criminal Appeal to order a retrial of Tayyab Sheikh, one of the notorious (alleged) participants in the Bilal Skaf pack rape crimes committed in south-western Sydney, will inevitably put the (“alleged”) rape victim through a huge amount of unnecessary trauma. She will be forced to relive her horrific ordeal in the witness box yet again, or the accused offender will walk free.
It’s a dilemma with which which my own family is very familiar. My daughter Rebecca was the only eye witness to the murder of her grandmother by a next-door neighbour in 1995. Fortunately, the lawyers for the accused man elected to allow Rebecca’s sworn deposition to be admitted into evidence without her needing to give evidence orally or submit to cross-examination. They didn’t make that concession out of deep compassion for Rebecca’s psychic welfare, but because they calculated that forcing a 7 year old child to give such graphic evidence in person would be very likely to inflame the jury against their client and make it more likely that jurors would bring in a murder conviction.
However, our family’s dilemma continued for a further 4 years after that, until the murderer’s final appeal was eventually rejected by the High Court in 1999. Until that moment, there was a very real prospect that, if the killer’s appeal had succeeded, Rebecca would have been forced to give oral evidence in any retrial. Jenny and I had already decided that we would refuse to allow Rebecca to give evidence in that situation, even though we knew the result (assuming the DPP didn’t try to insist) would be that the killer would either walk free or be convicted only of manslaughter. We had concluded that traumatising our daughter by making her relive the events, just when she’d begun to heal, was a worse consequence than allowing the killer to escape justice.
Of course, Tayyab Sheikh’s (“alleged”) victim was an 18 year old young adult not a 7 year old child, but does that make a huge difference? The trauma of being forced to relive the events might if anything be even worse than for Rebecca: young children are amazingly resilient even in the face of quite appalling events, as long as they don’t involve betrayal by a loved adult authority figure. I wonder whether the Court of Criminal Appeal majority, Justices Keith Mason and James Wood, have any real understanding of the suffering they’ve inflicted on a rape victim by ordering a retrial. Was Tayyab Sheikh really denied a fair hearing by having his trial take place in the immediate aftermath of the Bilal Skaf trial, with all the public controversy it generated? Would any jury have failed to draw the connection with the Skaf case, even if Tayyab Sheikh’s trial had taken place a year or more later? Jurors mostly aren’t stupid, and it would be almost impossible (not to mention arguably unjust) to censor the evidence to prevent jurors from making that connection.
In fact, yesterday’s decision highlights a quite central contradiction in the attitude of British-based justice systems to criminal juries. The mindset could almost be described as schizophrenic. On the one hand, the jury is seen as a central bulwark of the freedom of the citizen, with the sturdy commonsense of jurors supposedly ensuring both that citizens accused of crimes get a fair trial and that the justice system broadly reflects community standards and attitudes towards particular crimes. On the other hand, the legal system is simultaneously imbued with a deep distrust of jurors and a scepticism bordering on contempt for their capacity to bring an unbiased commonsense mind to the adjudication of a particular case. Thus, the Court of Criminal Appeal ordered a retrial in the Tayyab Sheikh case because:
The four other men – Skaf, his brother Mohammed Skaf, Mohamed Ghanem and Mahmoud Chami – were found guilty at a separate trial a few days after Sheikh’s case had started.
The president of the court, Justice Keith Mason, and Justice James Wood said coverage of that case ensured “feelings of anger, revulsion and general hostility to young Lebanese men” would linger at Sheikh’s trial.
They said the decision to order back-to-back trials was unnecessary and ruled that Judge Michael Finnane should have discharged the jury. …
The judges said the media had provided graphic details of the later assaults with which Sheikh was not involved and coverage of an earlier gang rape at Greenacre involving the Skaf brothers. There was also strident condemnation of the convicted men, with repeated references to their ethnicity.
“What was reported about the basic facts of the earlier trial would have readily brought home to a juror that the appellant was part of the group of Lebanese young men who, on the jury’s verdict in the earlier trial, had lured the complainant from the train to the car park and assaulted her in turns in the toilet there.”
They said directions by Judge Finnane would have confirmed the link with the earlier trial “in terms which put beyond any doubt the guilt of the others who were charged with sexual assaults in the car park toilet”.
Yet, if we really do believe that the criminal jury is the best way of deciding guilt or innocence, why should we assume that jurors will be any less able than judges to disregard information that they’ve learnt prior to being sworn in as jurors in a particular case? And why should we imagine that the effluxion of time will make it easier for juries to disregard that sort of extrinsic knowledge? If a case is sufficiently high profile as to imprint itself on the general public consciousness in the first place, it’s highly unlikely that this effect wil have faded within a few months or even a year or more.
The logical result of accepting the legitimacy of the arguments advanced by Sheikh’s counsel is that no co-accused in a high visibility criminal matter could ever be tried until long after the trials of the principal defendants had occurred. In turn, that will necessarily mean that the trauma inflicted on the victim by the legal system itself will be extended over a period of years. This approach gives primacy to fairness to the accused criminal to the complete exclusion of the rights and interests of the victim. Surely a more balanced approach to deciding these questions, one which affords more than lip service to the “sturdy commonsense” of the jury, would be preferable.
This example is just one of many contradictions in the legal system’s attitude towards juries. Evan Whitton, bete noire of the legal profession and author of The Cartel: Lawyers and Their Nine Magic Tricks, made this point in an address to Murdoch Law School in Perth back in 1998:
I touch briefly on fatal flaws in the three elements of the game. The adversary system allows lawyers to cross-examine and thus obscure the truth. The basic technique is to shift the goalposts, often from accused to victim.
The flaw in taking control of trials away from judges was that it put it in the hands of people who are necessarily more interested in winning than in truth and justice. Lawyers decide what witnesses will be heard and what evidence they will give, including “expert” witnesses known in the US as “saxophones”, with the lawyer playing the tune. Hence Spencer and Flin’s remark about the “deeply-corrupting effect” of the adversary system. The surprise is not that the cartel organised this system, but that they have got away with it for 200 years.
The judges of course still had the status and control of the court, but two of their major tasks were now to look judicial and stay awake: Lady Coleridge sat on the bench and kicked His Lordship when he went to sleep; Lord Reading wrote letters; Lord Thankerton took up knitting.
Judge Rothwax notes the flaw in concealing relevant evidence. He says: “Suppressing evidence is suppressing truth … Without truth there can be no justice.” Evidence was not concealed before the cartel’s revolution, judges chatted informally with jurors to see how they were thinking, and put them straight if they were going wrong, perhaps on weight.
But when lawyers got control of trials, the cartel decided that jurors were so deficient in intelligence and sense of fairness that it would be fairer to subtract certain relevant evidence rather than let them weigh it. Whatever Mr Littlemore may think, this makes it easy to get the guilty off.
The rules seem as irrational as much of the English system. The right of silence protects the guilty only, and was successfully exercised by Justice Lionel Murphy and the dingo. The rule against similar facts conceals patterns of crime, and is particularly helpful to lawyers for rapists and organised criminals. The rule against hearsay hides the evidence of dead victims, e.g the former wife of O.J. Simpson, but not that of dead judges. The Christie discretion allows the suppression of virtually all evidence tending to prove guilt. The discretion to conceal evidence improperly gained punishes the victim and the community rather than erring authorities.
I don’t agree with everything Whitton says about the legal system. He has a tendency to overreach and exaggerate, and fails to recognise that there are sometimes quite sound and just reasons for particular legal/evidentiary rules that have nothing to do with advantaging lawyers themselves or their criminal clients. However, I mostly agree with the points Whitton makes about juries. We need a much more open, critical public debate about these sorts of issues, one which rejects lawyers’ self-serving claims to unchallengeable expertise about rules of evidence and other practices that may sometimes serve to conceal truth and defeat justice.
Update – here’s a link to the Court of Criminal Appeal judgment in the Tayyab Sheikh case.
Update 2 – Dave Ricardo points out that Richard Ackland also wrote about this decision in his SMH column this morning. I generally agree with Ackland as well.