Ethos Winter 2022

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ETHOS . LAW SOCIETY OF THE ACT JOURNAL

Post-Pell

Intermediate appellate courts in evidence evaluation in the digital age Can twelve heads judge facts better than one? The Hon Helen Murrell SC, former Chief Justice of the ACT Supreme Court, explores this question in the 36th Annual Sir Richard Blackburn Lecture.

The first Blackburn Lecture — titled ‘The Courts and the Community’ — was delivered by Sir Richard himself. He spoke of the connection between the community and the administration of justice. As to the role of the jury, he concluded that: the jury — a collaboration of twelve heads — is less likely to be wrong than a single judge in answering the question “is this person guilty beyond reasonable doubt?”1 Like Sir Richard, Lord Devlin considered that juries were superior fact finders. With a characteristically dramatic flourish, in Trial by Jury he described jury trials as ‘the lamp that shows that freedom lives’.2 But is it correct that, when considering whether an accused person is guilty beyond reasonable doubt, twelve heads are less likely to be wrong than one head, regardless

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of whether the head is screwed onto the shoulders of an appellate judge? If not, should an appellate court ever intervene on the ground that the unanimous factual decisions of the twelve were necessarily wrong? The decision in Pell v The Queen3 may prompt us to reflect on this issue. In this lecture, I will explore the questions: a) Are juries the better fact-finders? Do judges and juries decide facts in the same way and, if not, which is the better way? b) Is an intermediate court of appeal well placed to decide whether the factual findings of the jury — or the trial judge where the trial has been by judge alone — have resulted in an ‘unreasonable’ verdict?

Traditional arguments supporting juries as superior fact finders In 1846, Vice-Chancellor Knight Bruce proclaimed that ‘The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice.’ But, he also acknowledged that ‘Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.’4 The law understands that rarely, if ever, can we be sure of the truth. Human decision-making is ‘inherently disputable’.5 Consequently, in the adversarial trial process, we do not ask whether the relevant facts exist. We ask whether, having regard to the facts that we think exist, the case has been proved to the requisite standard.