The jury system is regarded as a bedrock institution in the Australian legal system, as it is in others that have adopted the English common law framework. And the right to be judged by your peers is something which the legal system and legislatures have been very reluctant to interfere with because of this central importance. But we live in the age of Twitter and Facebook. Long gone is the reticence that the community, including the media, once had in discussing individuals facing criminal proceedings. The potential for jurors to have knowledge about a case they are selected to decide upon is self-evident.

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It raises an important question. Should Pell, given the hostility of the media, had the option a trial by judge alone? This was not available to him in Victoria but would have been in NSW, South Australia, the ACT, Queensland and Western Australia. Not because of Pell’s position but because such a right should be available to every person in Australia, irrespective of where they happened to be charged by police.

Pell became for media the personification of the arrogance of the Catholic Church in its dealing with chronic institutional sexual abuse. He had given evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse. It is fair to say there would be few in the community who had not read, heard, watched or even discussed Pell and his role in the church’s responses.

One will never know whether the jurors in the Pell case were influenced by the negative media. This does not mean they did not undertake their task to the best of their ability and with good conscience. But is it good enough to work on the hunch that a person’s liberty and reputation should be in the hands of 12 individuals about whom nothing is known, and in circumstances where no reasons have to be provided as to why they find a person guilty or not guilty? This is a point made often by Malcolm McCusker QC, a leading West Australian barrister and Kim Beazley’s predecessor as governor of that state.

There is great faith placed in the jury system. Another high-profile defendant, former Hey Dad actor Robert Hughes, subjected to an extraordinary trial by media the lead-up to his conviction in 2014 of multiple counts of sexual assault, couldn’t convince the High Court that his court trial was unfair.

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On the other hand, in the US, where background checks of potential jurors is allowed, the story is perhaps more realistic. Before American comedian Bill Cosby faced trial for sexual assault in 2017, a questionnaire sent to 100 potential jurors showed a third had already made up their minds about Cosby’s innocence or guilt, forcing the selection of a jury from outside the jurisdiction. A 2018 paper by Shirin Bakhshay and Craig Haney of the University of California, Santa Cruz, examining the impact of pre-trial publicity, cites five pieces of research and studies that demonstrate “biased news coverage of crime can affect public opinion and may influence the outcome of criminal cases". In specific cases, the found, “exposure to media coverage has been shown to have a prejudicial impact on potential jurors’ attitudes toward criminal defendants".

There is little point courts trying to suppress unfavourable pre-trial media coverage about an accused person. The internet has changed all that. But defendants across Australia should have a right to a judge-alone trial. In fact, courts should have the right to order one. This protects the right of an accused to a fair trial and diminishes the perfidious influence of trial by media.

The Pell case, one hopes, will ensure that attorneys-general in every jurisdiction enshrine this right into nationally consistent legislation.

Greg Barns is a barrister and a lecturer in RMIT’s Graduate School of Business and Law.