Why, oh why? Juries and the reasons for their decisions

By Legal Eagle

It’s easy to be an armchair judge or jury member. I must admit that I was surprised when I read that Thomas Towle was found not guilty of six counts of culpable driving causing death. Instead, the jurors found him guilty of dangerous driving causing death, which is a lesser offence carrying a lesser sentence.

In 2006, the car Towle was driving spun out of control and crashed into a group of teenagers walking home from a party, killing 6 of them and seriously injuring 4 others. After the accident, he fled the scene, leaving his four year old son and ten year old daughter in the car. The parents of the dead teenagers have been outraged and distressed by the lesser conviction, particularly after it emerged that Towle had prior driving offences about which the jury had not been told. Of course, the reports that Towle’s father blames the “sinful” teenagers rather than his son for the accident will distress the parents even further.

But I also know from my own days in practice that it’s very different sitting through an entire case than it is reading a newspaper report. Indeed, the Victorian Setencing Advisory Committee prepared a report on public perceptions of sentencing which established exactly that. In the executive summary to the report it is stated that:

  • In the abstract, the public thinks that sentences are too lenient
  • In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient
  • People have very little accurate knowledge of crime and the criminal justice system
  • The mass media is the primary source of information on crime and justice issues
  • When people are given more information, their levels of punitiveness drop dramatically
  • People with previous experiences of crime victimisation are no more punitive than the general community
  • People with high levels of fear of crime are more likely to be punitive
  • Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment
  • Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions
  • Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts
  • Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders
  • Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture

{emphasis added}

The report is well worth reading in full if you have a moment. Essentially, the only criminal cases about which we are told in the media are the “juicy” and shocking ones, where the result is newsworthy and sensational. Of course, media outlets like to focus on outraged victims and/or their families in these cases. Further, we only know a small proportion of the facts that come before a judge and jury, and studies have shown that when people are given more facts, their views of an appropriate response change. So I’m wary of claims that sentencing is “too lenient”. In individual cases, mistakes happen, but it is not an across-the-board phenomenon.

Back to the Towle case. The four principal charges against Towle were:

  • Six counts of culpable driving causing death;
  • Four counts of negligently causing serious injury;
  • Six counts of dangerous driving causing death;
  • Four counts of dangerous driving causing serious injury.

There were other charges, but I won’t mention them here. The first two were the more serious charges, with culpable driving carrying a penalty of up to 20 years in gaol. The second two were the alternative lesser charges, with dangerous driving carrying a penalty of up to 5 years in gaol. In order to prove that Towle was guilty of culpable driving, the prosecution had to prove that Towle was “grossly” negligent, whereas for the lesser charge of dangerous driving, the prosecution merely had to prove that Towle was negligent. In judging whether Towle’s driving was grossly negligent, or merely negligent, the jury could not be swayed by the horrific consequences of the accident or Towle’s cowardly actions afterwards. The question was to what degree the driving up to the accident was negligent?

I can’t answer that question. I don’t know all the information which the jury received. It is clear that he was speeding, with his son sitting on his lap, but I don’t know what the expert evidence was.

We also don’t know what the sentence will be yet. Justice Cummins will consider that question on Monday. However, in that context, I thought I might look at another report by the Victorian Sentencing Advisory Committee, which provides a “snapshot” of sentences for culpable driving causing death. It was interesting to note that the most common sentence of imprisonment for the more serious offence of culpable driving was four years with a non-parole period of two years. The median principal imprisonment level was 5 years. So even if Towle had been convicted of the more serious offence, according to the law of averages, he may still have been facing a sentence of around 5 years. It will be interesting to see what the sentence is. I suspect it will be at the higher end for dangerous driving, but I can’t say for sure.

The other question which has been raised in the light of this case is whether juries should explain their verdicts. Dr Mirko Bagaric and Colin Lovitt QC presented opposing points of view in The Herald Sun today. Presently, juries are not allowed to explain their verdicts to the press or anyone else. This is in contrast to the US, where juries can give interviews to the press explaining why they decided as they did. Sometimes this creates an unpleasant media circus where jury members are hounded by the press.

I think I sit somewhere between Bagaric and Lovitt. I think it’s important for juries to give an idea of why they decided as they did to maintain public confidence in the criminal justice system. As I’ve noted above, the more facts people know about a decision, the more likely they are to find it acceptable. But I think it is really important that individual jury members not be interviewed or identified by the press, and they certainly should not be hounded. I would favour an agreed written statement of reasons produced by the jury, to accompany the handing down of a verdict. Of course, the problem with this is that it may lead to more appeals in criminal cases if a potential flaw is found in the jury’s reasoning. But then, as Bagaric says, isn’t it fairer that we redress flaws than leave them hidden? And I think it’s always better to know than to be left in the dark. It may be that the jury had perfectly explicable reasons for deciding as they did in this case, and I think they should be allowed to give a statement justifying their decision.


  1. philiptravers
    Posted March 12, 2008 at 10:22 am | Permalink

    Having lived and worked,picking grapes in the area,my sympathy is naturally with the outraged,because justice is about something other than outrage then,relying on my reasoning ,without sitting through the case would be a diminished responsibility.I know this could be off the subject matter,but, another trial involving Police of Mildura type addresses where licence testing didnt proceed normally,and illegal recipients of driving licences were asked to dob themselves in..is playing across my mind in an obvious question form.I do hope these two court cases,are not connected in anyway,because my diminished state of responsibility would suggest,I am justified in being outraged,or sympathising with those in that state.Low income an illegality on road is one thing,a bribe here and there paid under duress of the bribe being offered by the law enforcer is another matter all together.

  2. Posted March 12, 2008 at 11:20 am | Permalink

    I’ll have a read of it at some point soon(ish) and perhaps use it as a reference document at some point in the future as I’m regularly getting into arguments over things like this with the lornorder types.

    I’m generally sympathetic to shorter sentences and an increase in education (surprise, surprise) and other opportunities for reform (a lack of which usually precipitates the crime in the first place). That being said, I’ve been exposed to a fair bit of crime in my life, either vicariously or somewhat closer to home and I’ve seen some examples that make my blood run cold while simultaneously causing it to boil. Enough to test my patience somewhat.

    One example was a couple of violent psychopaths (and I say “psychopaths” as in the currently un-treatable clinical variety* – they have since been diagnosed after the test became available in the late 90s) getting clemency in the hope that they may take the opportunity to right themselves. Despite the pair of them threatening to kill my grandmother if my brother didn’t hand over my father’s firearm (this was just prior to the mid-90s handback), I was hoping for a while that they’d be reformed rather than punished (one of them was an ex-friend from my junior primary days) but since the psychopathy diagnosis there hasn’t been much in the way of hope for them.

    Another example was only a few years ago and involved a crash in rural Victoria which killed a mate’s Uncle and Aunt. A little old couple was speeding in their 4WD and speed through a crossroad where they were supposed to give way – in the process plowing into the side of friend’s Uncle and Aunt’s car, killing them instantly.

    The thing that bugged me (and said friend) was that the couple showed no remorse when they simply explained that they were running late for bowls, as if their justification was self-explanatory. Given their age, the driver didn’t go to prison, rather they got a fine and the driver’s license was taken away. Not that there was the greatest call for vengeance from amongst the family (although they did let them have it in the victim impact statement), there was some degree of offense taken at the ageism inherent in the way things were handled.

    The deceased who still had a lot of their lives to look forward to, would never been extended this level of clemency (albeit with a penalty more in line with the goal of rehab fitting those with years to learn from their mistake) if they had made the same mistake with the same level of disregard or remorselessness. The consequence to the elderly driver simply couldn’t be equal to the impact a criminal record could have upon the life of a younger person (e.g. employability/career and so on.)

    It was generally opined that the elderly couple shouldn’t have had access to the option of driving given the obvious diminished psychological capacity (if not practical skills), and that younger people who are sentenced for similar offenses should be treated more fairly. Alternatively, failing this and to even up the system, “justice” (aka vengeance**) should be served by eking out whatever trace of dignity the offender had by having them possibly die of old age on the inside.

    The latter option was somewhat of a reductio of course.

    * They sure do raise ethical questions don’t they; can they be held to account? What to do with them if they can’t be rehabilitated?
    ** I’d really wish people would be more honest and not conflate these terms.

  3. Posted March 12, 2008 at 1:23 pm | Permalink

    Putting aside ethics and justice for a moment (and your excellent set of data on what changes attitudes), high levels of incarceration and expanding prison populations (e.g. required from tougher sentencing, whether by regulation or popular demand) makes for poor economics and poor value from government spending.

    The Economist has a few interesting pieces about the UK changes here and here, from which I’ll draw a couple of pertinent quotes from the second:

    But Britain’s jails always fill up, no matter how many there are. And new cells cost about £100,000 (US$184,000) apiece. A better answer than banging more people up inside is to strengthen facilities to deal with them outside.

    Jailing offenders is supposed to do four things. It satisfies society’s legitimate desire to smite evildoers (though advocates of restorative justice may favour community work or fines). It deters potential offenders (though many crimes are committed on impulse, or when drunk or drugged). It protects the public by taking dangerous offenders out of circulation. And it provides an opportunity to change the way offenders will think and act on their release.

    These last two—incarceration and rehabilitation—are often cast as competitors in the tussle for scarce resources. In fact they should be seen as complementary. Society is protected in the short run when offenders are locked up, and in the long run when they are reformed.

    It was a Tory home secretary who said, a decade and a half ago, that “prison is an expensive way to make bad people worse”. Not much has changed.

    Hard-nosed economists and touchy-feely social justice advocates on the same side? That ought to make this issue a no-brainer, if journos and politicians were fulfilling the duties of their profession.

  4. Posted March 13, 2008 at 1:11 pm | Permalink

    I have been a member of two juries. On both occasions all members took their responsibility very seriously. However also on both occasions the most influential factor in determining whether the accused was guilty on the charges was the what the judge said to us at the end.

    I suspect juries tend to look for guidance from the judge as the ‘expert’ in the proceedings.

  5. Posted March 14, 2008 at 10:12 am | Permalink

    Bruce, I know exactly what you mean. I also struggle with that conundrum – what do you do with psychopaths who have no remorse and very little or no chance of rehabilitation? Is the legal system equipped for dealing with such people? My post The Mad, the Bad and The Sad explores this somewhat, with an apt quote from a criminal barrister of my acquaintance.

    Dave, I think the US is an even more stark example of how no matter how many gaols you build, they’ll get filled up to overflowing. And some States have that “three strikes” policy, which seems injust in the extreme to me.

    Guido, I think that’s spot on – the judge’s directions to the jury have a lot of influence over what the jury decides. Hence many appeals are based on errors in the judge’s direction.

  6. Posted March 14, 2008 at 1:35 pm | Permalink

    LE: You are totally right that “the US is an even more stark example”, which is why the analysis of the economics in the less aggressive system in the UK is more valid: it’s less likely to discuss extreme cases that can sometimes overturn usual arguments: besides the UK rates are closer to Australia’s. The other thing in the UK (has it been mooted here in Oz?) is that a three-strikes against a mere “social control order” (e.g. hanging about a street or mowing too early on a Sunday) created by mere councils and you land in jail without trial.

  7. Posted March 14, 2008 at 1:55 pm | Permalink

    Yes, use of UK is an interesting example.

    Can’t stand the “three strikes” policy – it’s just ridiculous, doesn’t take into account the gravity of the offences or the circumstances. Ugh! Anathema to a lawyer.

3 Trackbacks

  1. By Club Troppo » Missing Link Daily on March 13, 2008 at 9:14 am

    […] Eagle posts a rather more considered analysis of juries, reasons for decision and sentencing in the wake of the Thomas Towle cuplable driving […]

  2. By Updates « The Legal Soapbox on March 31, 2008 at 5:29 pm

    […] driver who killed 6 teens and seriously injured 4 others, has been sentenced to 10 years in gaol. I told you it would be interesting to see what his sentence would be! Although Towle was convicted of […]

  3. […] thing that really annoys me is the way in which the press reports jury decisions. I wrote a post a year ago about the Thomas Towle case, where Towle was charged with culpable driving and dangerous driving. […]

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