Should Jurors be Informed of a Defendant’s Criminal Record?

The Queensland government is proposing to broaden the situations where fact-finders – such as juries – are permitted to hear about a defendant’s criminal record, in a move which representatives of the legal profession argue will undermine the presumption of innocence and the right to a fair trial.

Queensland Attorney-General Yvette D’Ath released a draft bill of the proposal, which is part of broader reforms based on recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse.

Other proposals include a new offence requiring members of the clergy to report information about child sexual abuse and the banning of child sex dolls.

Current law

The tendency evidence rule, which is contained in section 97 of the Evidence Act in NSW and other Australian jurisdictions, currently prohibits the admission into evidence of a defendant’s past criminal conduct, unless:

1. The prosecution has given reasonable notice to the defence about producing it;
2. The proposed evidence has significant probative value; in other words, is highly relevant to the facts that are in issue), and
3. That value substantially outweighs any unfair prejudice that may be caused to the defendant by the admission of the evidence.

The rationale is that jurors should decide a defendant’s guilt or innocence based on evidence which directly relates to the offence they are alleged to have committed, rather than what the defendant may have done in the past.

Proposed law

Under the Queensland proposal, courts would be given the discretion to decide whether it is in the public interest for fact-finders to be informed about the defendant’s past criminal history.

The test will be whether the evidence generally outweighs the risk of an unfair trial.

In some trials, including those for sexual assault, judges would also be prohibited from warning juries about the risks of placing too much weight on past criminal history.

The case of Brett Cowan

A case which gave impetus to the current proposals is that of Brett Peter Cowan, who had an extensive history of violently and sexually abusing children when he was was placed on trial for the abduction and murder of 13-year-old schoolboy Daniel Morcombe,

Mr Cowan’s convictions included child molestation, sexually assaulting a 6 year old boy and causing grievous bodily harm, depriving liberty and gross indecency.

While Cowan was ultimately found guilty of the murder, many expressed the view that the jury should have been told of his propensity to commit sexual crimes against young boys.

Criticism of the change

Queensland Law Society president Bill Potts has expressed concerns that the proposed laws will make it difficult for affected defendants to receive a fair trial.

“It’s not a matter of loving the criminal or loving the crime,” he stated.

“The criminal law has to actually develop with the times but when we start tinkering with people’s rights, when we start abrogating the laws that are there to both punish and protect people … we will have effectively watered away all of the rights and protections which apply.

The internet’s impact on a fair trial

Concerns have also been expressed about the impact of the internet and social media on a defendant’s ability to obtain a fair trial.

A recent report by the Tasmania Law Reform Institute found that jurors often search for information about defendants on Google and social media platforms such as Facebook, which can contain false, misleading and/or irrelevant information about defendants and their cases.

“There’s a huge range of potential juror misconduct of this kind, and certainly one of the most common ones are jurors conducting research about the people they see in the courtroom”, the Institute found.

“A lot of people use social media on a daily basis to look up people they’re interested in, and this behaviour can simply continue when they’re sitting as jurors but have much greater consequences than the casual ‘stalking’.”

The concern is that the use of social media combined with information about past criminal history will lead to defendants being convicted based on considerations other than the evidence adduced in relation to the offence charged.