Research Brief 13
In 1898, police constable Edward Johnson was committed for trial on larceny charges. Johnson, acting in his official capacity, had allegedly received an overdue rates payment from a householder at Bendigo, and neglected to pay it into the council fund. In December Johnson was duly tried, but the jury failed to agree on a verdict. The following month, an application was made by the Crown Solicitor’s office for a change of venue for the second trial. It was argued that a ‘fair and impartial’ trial could not be achieved in Bendigo, where Johnson was a well-known figure. The constable had apparently received considerable community sympathy since being suspended from the force, and it was believed that a local jury was unlikely to agree on a guilty verdict.
Johnson disputed this assessment of his popularity. Having only worked in Bendigo for eighteen months before his arrest, Johnson claimed to have few acquaintances in the town, and none likely to sit on the jury of the forthcoming trial. Moreover, a change of venue would severely compromise his defence, as he lacked the funds necessary to cover travel costs for the witnesses he proposed to call in his defence. After due consideration, it was decided the trial would proceed in Bendigo. Johnson was subsequently acquitted.
Until the early modern period, jurors were often well-known to both defendants and victims in the English trial process. Neighbours would be called upon to provide evidence about crimes, and simultaneously to arbitrate over the matter. It was only with increasing urbanisation and industrialisation that the anonymous and unbiased jury became a possibility, and eventually a principle, for the justice system.
During the nineteenth and into the twentieth century, however, it remained hard to guarantee jury impartiality when it came to familiarity with the defendant or the facts of a case. The pool from which jurors were drawn was restricted to male British subjects of age who were able to meet the necessary property qualifications, and who were not disqualified on the grounds of previous convictions or membership of one of the professions disbarred from jury service. As a result, jurors were often drawn from small business-holders and prosperous tradespeople, individuals particularly likely to come into contact with a wide cross-section of their local community.
This was especially problematic in rural areas. Johnson’s case was not the only one where an application for a change of venue was made to negate jury bias. In 1905, another application was made to shift a trial from Bendigo. The defendant, Frederick Herman Gray, was a bank teller accused of embezzling money while employed at the Bank of Australasia. Two trials in Bendigo had resulted in disagreements, and the third in an acquittal. A fourth trial had been ordered on new charges of false record-keeping. The Crown argued that Gray’s job had given him the opportunity to become acquainted with many of the businesspeople in Bendigo, and that he was on friendly terms with most of those eligible for jury service. Gray’s defense counsel countered that as there were several other banking establishments in Bendigo it was unlikely that all the potential jurors had been customers of Gray. The trial was nevertheless moved to Melbourne, and Gray was convicted.
Similarly, in 1885 the Crown made an application for a change of trial venue on the grounds that it was unlikely that a jury at Hamilton would convict farmer Michael Moore of sheep stealing. As the local jury pool consisted principally of farmers, it was reasoned that their personal knowledge of the defendant and sympathy for his defence that livestock wandering onto neighbouring properties was a hazard of farming life had probably influenced the two previous jury disagreements over the case. Moore’s trial was shifted to Melbourne, where he was found not guilty anyway.
While juries in the capital were more anonymous, this did not necessarily make them any more impartial. David O’Donnell, in a memoir about his career as a Victorian police detective in the 1890s and early 1900s, wrote:
Juries, especially Melbourne juries, very often allow their minds to wander off into all sorts of side issues foreign to the charge, which should not concern them at all. Juries have to deal with the evidence, and not with the person.
O’Donnell was recalling a case in which a female defendant charged with obtaining goods by false pretenses appeared in court carrying a baby in her arms. It was not her own, but had been borrowed for the occasion to act upon the jury’s sympathies. Even where personal knowledge about a defendant was lacking, evaluations of a defendant’s character or circumstances based on their outward appearance thus potentially resulted in jury bias. Indeed, studies have shown this continues to be an issue in contemporary courtrooms.
For historians, juries often present as an invisible force in the records. While the voices of lawyers, judges, defendants and victims are often preserved in trial reports, frequently little is known about the jury apart from their ultimate verdict. However, jury members were far from mere cyphers; and they brought their own sympathies and personalities to bear on their powerful decision-making process.
Author: Dr Alana Piper, Postdoctoral Research Fellow
To cite this research brief: Alana Piper, ‘Juries and impartial justice’, The Prosecution Project, Research Brief 13, https://prosecutionproject.griffith.edu.au/juries-and-impartial-justice (9 June 2015, viewed 19 July 2016).