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  • Writer's pictureSami Abbas

The Influence of Social Media on Criminal Investigations and Trials in Western Australia

A jury all looking on their

Social media is a big part of our lives today. Platforms like Facebook, Twitter, TikTok, and Instagram have changed many things, from the way we communicate to how we receive news and even, potentially, our justice system. In Western Australia and around the world, social media has caused significant changes in how crimes are investigated and prosecuted. In the context of trials and criminal investigations, there are many ways social media can affect the outcome of a trial, whether it is someone posting about their crimes or potential prejudice against the accused due to widespread social media usage. With social media deeply integrated into our daily lives, maintaining a fair trial becomes increasingly challenging. The central tenet of the criminal justice system is the right to a fair trial and that an accused person is presumed innocent until proven guilty.[1]


This article explores how social media and the law intersect. It examines how these platforms affect crime investigations and trial proceedings.

 

Social Media as Evidence

Many people think their posts on social media are not admissible, not monitored, or inconsequential, so they post whatever they want without considering the consequences. There is a notable trend these days of individuals openly posting their crimes on social media, whether it's a joyride in a stolen vehicle or flaunting the proceeds of a crime. This behaviour has been widely documented and is increasingly becoming a trend on social media. Criminals are now flaunting, or "flexing" as it's commonly known, counterfeit money in an attempt to show off but also to find customers for the counterfeit bills.[2]


Little do they know, when they show up in court, they've essentially snitched on themselves. Social media posts can be used as evidence of a crime. They can provide important information about a person’s actions, thoughts, or connections. Courts recognise that social media content, such as text, photos, or videos, can be relevant and reliable evidence.


Additionally, attempting to delete or block social media posts can also have severe consequences. Under common law, if a party destroys discoverable material, it can constitute contempt, particularly if litigation is already underway. In Australia, courts have the power to stay or dismiss proceedings, in whole or in part, where a party has deliberately destroyed discoverable material. [3] This underscores the importance of understanding the legal implications of social media activity.

 

Influence on Jurors

How can we navigate this issue effectively to uphold the right to a fair trial amidst the pervasive influence of social media? Jurors can use social media to look up information about the accused, which is problematic, especially when they are members of a jury in a criminal trial and search for details about the defendant, the victim, or even legal terms. This has happened multiple times and has resulted in penalties, such as when jurors Googled the names and backgrounds of the accused. [4] Tom Percy KC has identified this as a regular trend which may deny defendants a fair trial, he states:

It's too seductive for a [juror] to go home at night and go, 'geez what about this bloke, Bill Smith, I'll just go and Google him…They find out about him and what he does, they go on Facebook and look him up there and if they don't disclose that... they are armed with knowledge that's not in evidence at the trial that may well be considerable prejudice to the accused.[5]

Juror misconduct through conducting online research about the law or the accused may be inadvertent. Jurors may be exposed to bias through online sentiment or unsolicited contact with other jurors, leading to frustration with the trial process and resulting in posts made in the pursuit of fairness. The introduction of any extraneous information or influence from social media or the internet is an irregularity that undermines the fairness of any trial.


Jurors must be seen as independent and unbiased; otherwise, the accused’s right to a fair trial can be undermined. Any person before a court has the fundamental right to a hearing by a judge who is independent and impartial. In Australia, judicial independence and impartiality are seen as fundamental to the common law system. TV and the news can sometimes impact a juror's impartiality.


An example of this is when an accused is so high-profile or notorious that their right to a fair trial may be jeopardised because a jury may not be able to be unbiased or impartial, such as in the Claremont Serial Killings case. [6] Another more prominent example is the Bruce Lehrmann sexual assault trial, where juror misconduct was readily apparent.[7] Chief Justice Lucy McCallum dismissed the jury after she became aware one juror had been conducting their own research by downloading an academic article that had not been presented in the 12-day trial, this was after the trial was previously postponed due to extensive media coverage and commentary. Social media, mainstream media coverage and everything surrounding this trial makes it very difficult, if not impossible to find 12 impartial jurors required for a fair trial.


One of the first Australian cases to receive extensive social media coverage was the case of R v Bayley, involving the murder of Jill Meagher in Melbourne in 2012. This case generated significant interest among social media users while she was missing and following the arrest of Adrian Bayley.[8] After police arrested Adrian Bayley for her murder, numerous hate-related pages calling for justice and the reinstatement of the death penalty emerged, drawing large amounts of interaction. The Age newspaper reported that in the 24 hours after Bayley’s arrest, mentions of Jill Meagher appeared in over 35 million Twitter feeds globally, and her name was mentioned every 11 seconds across Twitter and Facebook. This widespread social media activity raised concerns about the offender’s chance of receiving a fair trial due to the pervasive and potentially prejudicial public discourse.


With the new world of social media, now it is not only the famous and notorious who have their information readily available, but anyone who has a Facebook or Instagram account. Any juror can look up an accused or victims’ profile and be presented with a wealth of information and photos, as was the case in a case in South Australia where the jurors searched up information on an accused past outlaw motorcycle gang affiliations.[9]


When dealing with a criminal trial, jurors often encounter many new concepts and unfamiliar terminology. Faced with this new world of legal terms, jurors may be tempted to Google definitions for words and phrases to seek clarity on concepts like "murder," "manslaughter," and "beyond reasonable doubt."[10] This inclination to seek clarity outside the courtroom can introduce bias or misinformation, undermining the integrity of the trial process. Justice Peek summarises this by stating:

The internet, social media and social networking websites all give access to a huge amount of information and enable their users to themselves create and disseminate information. Needless to say, all such information varies greatly in accuracy and reliability…[11]

Jurors are often warned to keep off social media. The fear is that jurors could become aware of information that wasn't heard in court, that they might contact people involved in the trial, or that they might use social media to discuss the trial with others. They might read something mistaken or misleading without knowing it. The defence doesn't have an opportunity to point this out, which could lead to a miscarriage of justice. This could result in jurors being influenced by outside information, which compromises their impartiality and undermines the fairness of the trial.


Juror Misconduct with Social Media – Other Examples

Social media allows jurors to easily publish comments, posts, and tweets that can reach a wide audience. Before the advent of social media, jurors would have had to speak directly to the media to share such information, which was clearly identified as misconduct and relatively easy to monitor. However, with platforms like Facebook, anything can happen. Comments on the case, its verdict, or personal opinions on the accused or defendant are common and can negatively impact the right to a fair trial. This unchecked dissemination of information can introduce bias and prejudice, undermining the judicial process. People have gotten into trouble for posting on Facebook, like in a case here in WA where a juror was dismissed from a murder trial for posting that the defendants were "guilty" on social media before the high-profile trial had commenced.[12] Justice Hall stated in relation to this juror that their actions were “inappropriate” and “foolish”.[13] 


In the United States, a juror was sentenced to 3 days in jail for adding the defendant on Facebook, the court was particularly angered by the jurors lack of regard for the incident and the judge in this case stated:

I cannot think of a more insidious threat to the erosion of democracy than citizens who do not care.[14]

 

Conclusion

The pervasive influence of social media presents significant challenges to the criminal justice system, particularly in ensuring the right to a fair trial. Jurors must be vigilant about their social media use, understanding the serious implications their online actions can have on the judicial process.


It is worth being careful when using social media; your posts, comments, and tweets have consequences, especially if you are ever called up for jury duty. You must be cautious and mindful of the principles of justice. If a court wishes to uphold the right to a fair trial, it must consider the potential misuse of social media and juror misconduct.



Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific situation.


[1] Dietrich v The Queen (1992) 177 CLR 292, 298 (Mason CJ).

[3] Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264.

[4] Registrar of the Supreme Court of Southern Australia v S [2016] SASC 93.

[5] Heather McNeill, ‘Calls to overhaul WA jury system after juror dismissed for Facebook post’ WAToday (Online, 13 October 2016) <https://www.watoday.com.au/national/western-australia/calls-to-overhaul-wa-jury-system-after-juror-dismissed-for-facebook-post-20161012-gs0wwa.html>.

[6] The State of Western Australia v Edwards [No 7] [2020] WASC 339.

[7] SBS News, ‘Trial aborted: How juror misconduct in the Bruce Lehrmann court case was uncovered’ (Online, 27 October 2022) < https://www.sbs.com.au/news/article/trial-aborted-how-juror-misconduct-in-the-bruce-lehrmann-court-case-was-uncovered/5xq9j2w0y>.

[8] R v Bayley [2013] VSC 313.

[9] Registrar of the Supreme Court of Southern Australia v S [2016] SASC 93.

[10] R v Sio (No 3) [2013] NSWSC 1414.

[11] Strauss v Police [2013] SASC 3; 115 SASR 90, [12].

[12] Heather McNeill, ‘Calls to overhaul WA jury system after juror dismissed for Facebook post’ WAToday (Online, 13 October 2016) <https://www.watoday.com.au/national/western-australia/calls-to-overhaul-wa-jury-system-after-juror-dismissed-for-facebook-post-20161012-gs0wwa.html>.

[13] Ibid.

[14] Katie Wiggin, ‘Judge sentences juror to 3 days in jail for “friending” defendant on Facebook’ CBS News (Online, 17 February 2012) < https://www.cbsnews.com/news/judge-sentences-juror-to-3-days-in-jail-for-friending-defendant-on-facebook/>.


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