“How Do You Find The Accused?” A Rape Trial Through The Eyes Of A Juror
"The more I think about what exactly 'beyond reasonable doubt' means, the more it begins to bend my mind. And the court will not help."
There are about 40 of us sitting in a jury selection waiting room in a town in Australia. I want to be here, and yet I don’t want to be here. I want them to pick me, and I want them to reject me. I feel well-equipped to judge my fellow man, and I feel utterly, hopelessly ill-equipped to judge my fellow man.
The wisecracking sheriff accepts the excuses of a handful of potential jurors, who gather their belongings and move calmly but with purpose out the door before anyone in a position of authority has a chance to change their mind. Other excuses will need to be ruled on by the judge.
We file into the court, where the judge — a man of about 70 with silver hair, a wise, kindly face and a gentle demeanour — releases other jurors and then reads a list of people who will be involved in the trial. Several more from the jury pool are dismissed after recognising a name.
He then informs the jury panel that the trial involves allegations of sexual assault and asks anyone who might find it too distressing to come forward. A handful of women rise and are dismissed; during the process, they are joined by three or four men, who are also let go.
The jury will be formed from those of us left, and our odds of avoiding the civic call are widening with each passing minute. We’ve been assigned an individual jury number, and a court officer draws numbers randomly from a vessel. Mine is about the fifth called. I walk to the two-row jury box and take my place. When a dozen numbers have been called, we each stand one at a time and say our number. If the prosecution or the defence don’t want us on the jury, now is the time for a swift removal. They don’t have to give a reason, they simply say “Challenge” loudly and the judge releases the juror.
There are a few challenges to other jurors, but when I stand and say my number, there is only silence.
A long oval table and a dozen chairs. A whiteboard. A wall-mounted hot water dispenser, and a sink. A small fridge with milk and cheap supermarket orange juice made from concentrate. Pens that mostly don’t work. A dozen green folders with hard plastic covers that are all but impossible for a left-hander to write in.
For the next five days the cramped jury deliberation room is our home. The jury has seven women and five men, ranging in age from a rural lad of about 20 to an urbane woman of about 70. If we are not in court, we are in the deliberation room. There is a small balcony with enough space for two people, where smokers can smoke, but they must re-enter the room immediately if they spot the accused, who is on bail. I duck out for a bit of air and am informed upon my return that they have selected me as foreman. I grimace. Our mobile phones are rounded up and will be returned at the end of the day.
In court, the crown barrister — a plump, bearded man in black silks and a horsehair wig — presents his witnesses and evidence. Most witnesses appear in court, but two give testimony by video link, including the claimant.
After each prosecution witness, the defence barrister — a short, jug-eared fellow with a no-nonsense manner who is perhaps a few years younger than the judge, and also in silks and a wig — is invited to cross examine the witness. He propels forward at the glacial pace of a cruise ship, working through his questions, striking them out horizontally across the page with a pen as he goes.
The constraints of squeezing a legal drama into 45 minutes of TV don’t allow for… the… time… taken between questions in a real court. At no stage during the trial does an interrogation build to any kind of feverish tempo, a barrister throwing a rapid-fire volley of questions in order to trip up a witness. In fact, the seconds often tick by as the defence barrister responds to a previous answer with a neutral “Is that so?” or similar, and then stands in the court constructing his next question, accompanied only by the hum of the air conditioner.
Although there are numerous breaks — for morning tea, legal argument conducted without the jury, lunch, faulty audiovisual links, more legal argument — the level of concentration required is significant. During each break we are taken back to the jury room, which is so modestly proportioned that there is no room to stand and talk while you stretch your legs. Aside from the odd question posed to the room — querying a specific detail in the evidence or testimony, or asking about each other’s jobs and families — these periods are spent in relative quiet, as jurors study documents, take notes, read a book, fix a coffee and nibble on a biscuit, or chat softly in groups of two or three.
The judge reminds us on a number of occasions that we are not to make any decisions either individually or as a group until we have heard and seen all the witnesses and the evidence. This is some challenge, and though I can’t speak for the other jurors, the urge to make micro judgements as we go is one I must fight vigilantly throughout the trial, as the pieces of the jigsaw are put into place to form at least part of a picture. I also want to google the names of the key personnel the minute I get home on day one, but it’s a temptation I resist.
The accused is facing a number of charges — allegations of vaginal and anal sexual assault, two instances of detaining, and one of assault occasioning actual bodily harm.
Among the pieces of evidence we are shown are rumpled gaffer tape with hair stuck to it, a photo of a bathroom floor with a spot of blood on it, photos of injuries to the body and face of the claimant, clothes with blood stains and an old knife.
Video of a police interview conducted bedside at a hospital with the dazed claimant within hours of the alleged incidents taking place is difficult to watch. The woman has three broken ribs, her face is swollen and she is covered in bruises. She appears unaware, until asked by a police officer, that she is holding a clump of her own hair. For the police and, if the case proceeds to trial, the crown prosecutors, a first interview with an alleged victim is crucial. I feel for the officers as they gently attempt to extract information about what happened. When an officer asks the woman if she was sexually assaulted, she begins to tremble and cannot form an answer. The officers do not press her.
A number of fleeting thoughts cycle through my mind. Right now, I despise the accused, who sits in silence as the video is played, looking at either the judge, the floor or the wall opposite. The woman, of a small build, didn’t stand a chance. What cowardly piece of shit does this? I imagine him being smashed around by someone twice his size. Whimpering. Begging for it to stop. Would I intervene in such circumstances, or walk on by? And what does my answer to that question say about me? I push these thoughts aside, and focus on my job.
A police interview with the man, shortly after he has been brought to the police station, is also screened. I note that I cannot see a scratch on his face or his hands. He is not accompanied by a lawyer. He answers a series of questions, but when the queries veer towards what happened between him and the claimant, he shuts down and says he has been advised not to comment.
The crown calls the claimant to give evidence. She does this via video link, as the nature of the charges mean she is not required to front her alleged attacker. The alleged victim oozes a weary resignation, and concedes she has struggled at times with drug and alcohol abuse.
Modern convention means the defence thinks twice before attempting to shame a woman in the witness box. The claimant is made to admit, though, that because of these drug and alcohol issues she lost custody of her young child in the period before the alleged events occurred.
In describing the alleged sexual assaults and cause of her injuries, the woman claims that midway through the attack, as the accused was dragging her by the hair down the hallway of his house, he stopped to urinate on her. It is a detail she had not shared in previous interviews, and the defence pounces on it to suggest she is making the story up.
The defence barrister calls the accused to give evidence. He walks from his box on the other side of the court to the witness box, and for the first time we get to see that he is over 6ft tall. He is sworn in, and is sitting so close to me that if we both leaned over we could shake hands. I swing my chair to face him directly. He catches my eye only once or twice. What am I looking for? Am I listening? Properly. Listening. To. Every. Word? What are my fellow jurors doing behind me? Are they glaring at him? What did he just say? What is the judge doing? Am I being distracted by my own thoughts? This man’s future sits in the palm of our hands. I wonder what’s for lunch? More sandwiches, I suppose.
The defence barrister tells us that the accused is not required to give evidence, and that he is obliged to prove nothing.
The accused explains that the gaffer tape had been wrapped around the claimant’s head by the claimant’s young child as a punishment for using bad language. Speaking in a near-monotone, he also says that he and the woman had consensual sex before she was injured, and that her injuries were the result of him having to remove her from his house the following morning by force because she refused to leave.
The accused is cross-examined by the crown barrister, who first establishes that the man is stronger than average, by evidence of his day job. He then puts to the accused another version of events: the accused began bashing the woman shortly after they arrived back at his house, and then proceeded to rape her five times over the course of the night and the following morning, before dragging her out of the house and leaving her to catch a taxi so he could go to work. The man denies it all.
In civil trials the bar for a guilty verdict is set at “on the balance of probabilities”. In criminal cases, greater certainty is required and the jury must find the defendant guilty “beyond reasonable doubt”. The more I think about what exactly “beyond reasonable doubt” means, the more it begins to bend my mind. And the court will not help. In NSW there is a “longstanding authority for the proposition that, except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase ‘beyond reasonable doubt’ … The question of whether there is a reasonable doubt is a subjective one to be determined by each individual juror … the words ‘beyond reasonable doubt’ are in the ordinary English usage and mean exactly what they say’.”
More witnesses appear, including a pathology expert who explains that the exact timing of the woman’s injuries cannot be pinpointed, as each person bruises differently.
The evidence over more than three days is at times disturbing, but our job is not to be disturbed. Or to feel anger. Or pity. Or seek vengeance. Or guess at what might have happened. Or what probably happened. Or assume that if it didn’t happen on this occasion, it may have happened on another. We can do none of this. Our job is stark: weigh the physical evidence and the testimony put before us, and deliver a verdict on whether the charges have been proven beyond reasonable doubt.
Before we retire to the jury room, we are guided by the judge on various points of law. He also speaks words that could be considered in favour of both the claimant and the defendant. He says it is not uncommon for some details in accounts from traumatised assault victims to change over the course of a number of interviews, but that shouldn’t necessarily mean their evidence is not being recollected honestly and to the best of their ability. And he reminds us that the defendant was not required to give evidence, but chose to do so, and that he is not required to prove anything to us as a jury.
We are handed detailed legal notes that flesh out the judge’s speech to us. Ultimately, though, he cannot take our hands and guide us to the line in the sand where reasonable doubt ends and unreasonable doubt begins. The judge says we are not bound by time constraints: “You may take 10 minutes, 10 hours, or 10 days.” He reminds us that we have been chosen not for our superior legal minds, but for the wisdom that life experience brings.
Australian law forbids me from writing about deliberations in the jury room. Although it means the path to any verdict in a criminal trial remains shrouded in mystery, I don’t really have a problem with that, for any public account I write “on behalf” of the 11 other jurors would be irretrievably tainted with my own biases and perceptions. And they would have every right to be upset about that.
It’s Friday afternoon, about four hours into deliberations, when there is a knock at the door. The sheriff enters and says the judge wants to know how we’re travelling.
We file out of the jury room and are led into the court. The judge asks where we’re at. I tell him we have reached verdicts on most of the charges and am stunned when he directs me, as jury foreperson, to now deliver those verdicts. As in right now.
I have been given no warning, and have to ask the judge if I can return to the jury room to collect my notes. He permits this after asking the court to record my absence, and I dash to the jury room, scramble through piles of notes and printed testimony and locate the paper on which the charges have been written.
All around the printed words on the page are my handwritten notes, and beside each charge I’ve written either “G”, “NG” or “?”, each with a circle around it. I return, completely flustered, and as I stand to face the judge I start worrying that the accused and the lawyers and barristers will be able to see the Gs, NGs and ?s through the paper. I begin folding it as an officer of the court reads the first charge and then asks me: “Have you reached a verdict?”
I lean down and across to the little microphone: “We have.”
“How do you find the accused?”
Another charge is read, and again I say “Not guilty”. The crown and defence barristers, and the crown solicitor, are busy writing notes, and do not react when each verdict is read. However, I note the defence solicitor, who is in my line of sight, pumping his fist and grinning like a fool. I am overwhelmed with indignation. There is a quiet rumbling and grunting from some of the jurors behind and beside me, and I assume it’s because they too have observed this lowbrow behaviour. Given all we have seen and heard during the trial — the broken ribs, the busted up face, the bruising, the clumps of hair — how fucking dare he.
The next charge is read, and I lean down and across to deliver the verdict into the microphone — “Not guilty” — and again the solicitor grins. I feel physically ill.
Having read most of the verdicts — not guilty on the rape counts and two counts of detaining a person; guilty of assault occasioning actual bodily harm — the judge asks if I know how long we may need to consider the final sexual assault charges. I suggest perhaps an hour.
It’s late afternoon when I deliver the final verdicts on behalf of the jury — the accused is found not guilty. The judge thanks us for our service and tells us we are free to go home.
By the time I trudge the 10 metres from the jury box in the courtroom to the jury deliberation room, tears are rolling down my cheeks and I am barely holding it together. Back in the jury room, we gather our books, handbags, mints and other bits and pieces with barely a murmur. The mood is jet black.
The handwritten notes in our folders, and the vast reams of printed documents from the court, are to remain in the jury room and will be destroyed. Had we used the whiteboard today, it would be wiped before the cleaners do their night rounds.
A scene is imagined and freezes in my mind in which a lawyer, social worker or court officer is informing the claimant that the jury found the accused not guilty of most of the charges. In this imagined scene, the claimant assumes that we didn’t believe her, and as I stand, dazed, in the jury room, this thought is too much for me to cope with. I turn away from the others to face the corner of the kitchen bench, just to give myself a few seconds before we are herded out, and watch the small sachets of Nescafe and little squares of leftover Sara Lee banana cake from lunch dissolve into an Impressionist painting.
A court officer returns our mobile phones in a small plastic basket. The room fills with bleeps, rings and chirps as the contraptions spring to life, dumping a day’s worth of texts and emails. A juror places a hand on my back and he asks softly, “You OK mate?”
The sheriff hands out pamphlets for a jury helpline and suggests we call it if we need it. “Ready to go?” he asks. He leads us along a corridor and down a flight of stairs. Each day up until now we’ve exited from a separate jury door that puts us back onto the street a distance from those appearing in court as accused or witnesses. But as it’s after 5pm on a Friday and there is nobody about, he sneaks us out the public exit.
Summer has come early and it’s unpleasantly muggy outside. We stand on the footpath adjusting our eyes to the light. A few cursory goodbyes are exchanged and it’s over. Just like that.
We fan out in different directions to wherever we’ve been able to jag an all-day parking spot. I walk to my car, slump into the front seat, close the door and turn the engine. Hot air blasts from the vents and I start to weep. ●
For help or information on domestic violence, visit 1800RESPECT or call them on 1800 737 732. The Men’s Referral Service is aimed at men who need help to stop violent or controlling behaviour, but it also supports victims and families. You can call on 1300 766 491.