Prof Jill Hunter1, Prof. Richard Kemp1
1UNSW Sydney, Sydney, Australia
Biography:
Jill is a criminal trial empirical researcher and scholar with expertise in applied criminal justice-focused law reform. Her research has informed law reform, legislation and case law. Jill's 11 books have been extensively cited by law reform bodies and appellate courts, nationally and internationally. Her publication have been cited across about 50 law reform bodies’ reports and 40 different Australian appellate courts judgments, including 8 in High Court judgments.
Jill's research has included a survey of jurors and studies of how judges', witnesses' and lawyers' actions impact on the integrity of verdicts, the trial process, and the administration of justice.
Abstract:
As lawyers know, appeal courts define how trial judges instruct juries. Crucially, appellate judges rely on surmise to establish a view of how lay people (jurors) will understand and apply a trial judge's direction on the law to specific evidence. Gilbert v R ([2000] HCA 15) represents the law’s immense confidence in this process – Gleeson CJ and Gummow J observed that the law assumes that ‘that, as a general rule, juries understand, and follow, the directions they are given by trial judges’ and Justice McHugh added that if the assumption ‘was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state’, adding that ‘unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials’. Hence, this absence of doubt is considered central to the architecture of the jury trial – as ‘fundamental’, such that if ‘it was rejected or disregarded, no one … could have any confidence in any verdict of a criminal jury … ’ (Carter (a pseudonym) v R [2026] NSWCCA).
The Gilbert principle was possibly defensible when jury deliberation dynamics were unknowable, but nowadays robust research can and does test law’s assumptions. This paper explores the challenge of experimental psychology to law's cardinal assumption of jury behaviour. This presentation presents a legal framework for the papers in this session.