An international conference in Sydney has put the criminal justice system under the microscope. Justin Whealing and Stephanie Quine discover how social media and a lack of support for vulnerable witnesses affect fair trials.

The law can be slow to properly recognise victims of crime.

This significant acknowledgement of shortcomings within the criminal justice system was made by the Lord Chief Justice of England and Wales at the Australasian Institute of Judicial Administration's (AIJA) Criminal Justice Conference in Sydney last week.

The Rt Hon Lord Igor Judge provided the opening oration at the three day conference, addressing the topic of Vulnerable witnesses in the criminal justice system.

Pinpointing victims of sexual crime, violent crime, children and witnesses lacking communication skills, Judge said the principle of "innocent until proven guilty" often had "extremely painful" consequences for those who are victims of crime or who have given truthful evidence about the facts of a case.

"Many times in law, it is not even established that there has been a crime until the defendant has been convicted. If the allegation is rape, it's not until there's a verdict of guilty that, as a matter of law, there has been a victim at all," said Judge, adding that "in truth" there has been a victim from the very moment the rape occurred.

Judge said that while the profession has made significant progress in its handling of vulnerable witnesses, judges and magistrates must remain informed about the fact that witnesses who are vulnerable are under huge pressure.

"Every single witness should, so far as possible, have the stresses of attendance and so on reduced ... none of this is at the expense of the fairness of the defendants' trial."

Internet undermines the jury system

While the law has slowly developed over hundreds of years, it is struggling to deal with the affects of rapid technological change.

One of the most intriguing presentations at the conference was from the barrister, Peter Lowe, who recently represented Pauline Hanson in a Supreme Court action related to the results in the NSW state election. He said the explosion in the number of social media forums over the past decade can alter the ways juries decide cases and, in some instances, prejudice the results of criminal trials.

"There is currently a class of society who do not really know how to survive without this technology and, when asked that they do not use that technology to search for particular information, find the request quite disconcerting," he said. "To tell anyone from the millennial generation not to retrieve information available at their fingertips is a red rag to a bull."

Lowe went on to provide numerous examples of juror misconduct in cyberspace, including a juror empanelled in a criminal trial in Victoria who posted on Facebook that "everyone's guilty" in the initial stages of a trial. The jury was discharged and the trial judge referred the matter to prosecution.

"The spectre of this form of impropriety is palpable," said Lowe. "There is no guarantee that the information used by an aberrant juror hasn't been placed on the net by the accused ... or through their agent."

Lowe believes that such inappropriate use of the internet can undermine the justice system.

"The issue of digital injustice has the potential to derail the very basis upon which justice is administered, and must, on that score alone, be addressed if the notion of a fair trial according to law is to be preserved."

Warning against over regulation

Even though Lowe cited the abuse of social media as the greatest challenge to the jury system, he warned against imposing strict surveillance measures to ensure jurors are behaving appropriately.

"If jurors can't be trusted to do the task that we repose in them and report irregular contact, then why would anyone serve on a jury if they knew that their absolute privacy was going to be invaded? Who would want to serve?" asked Lowe. "Legislation must be introduced to prevent any or all such surveillance."

Lowe said that while there is no uniform legislation in Australia which covers jury impropriety and confidentiality of jury deliberations, there are options available for reform. This includes having a judge retire with the jury to assist them in their deliberations, or the use of a "jury facilitator" to assist in discussions. Such a facilitator would be trained in helping groups reach consensus, but could not offer an opinion regarding the evidence.

Raised in a transcript of Lowe's presentation obtained by Lawyers Weekly prior to his presentation, but not explicitly addressed during his speech, Lowe said one area of reform that should be strongly considered is the taping of jury deliberations. He acknowledged this might be "an unpalatable suggestion", but believes policy makers should give serious consideration to lifting the prohibition of taping jury room deliberations in Australia.

"Such direct evidence would demonstrate whether the presumption ordinarily underpinning juror deliberations -- that they comply with their oath and assiduously follow the trial judge's instructions -- has been complied with and, even if not the case, whether a miscarriage of justice has been occasioned," he said.

Cyber crime, the problems associated with long and complex terrorism trials, the role of statistics in the sentencing debate, and multicultural justice issues such as the cross-examination of niquab-wearing Muslim witnesses and delivering justice in newly-arrived African communities was also addressed at the conference.