Was the Polkinghorne jury note for the Judge or the public?

After the jury note in the Polkinghorne Trial was read out, I commented on Twitter it is hard to see a guilty verdict based on it. In fact the nature of the question was so easy to answer, that I seriously think the jury may have in fact been sending a message to the public, not a question to the Judge.

The note was reported as saying:

“Most of the people on the jury do not think there is enough evidence to support Pauline having committed suicide. However, some people on the jury do not think that the Crown has supplied enough evidence that we can answer yes to the question, ‘Has the Crown made you sure that Dr Polkinghorne caused the death of his wife, Ms Pauline Hanna, by intentionally strangling her?’ Please can we have some direction.”

The Judge responded:

The judge responded by noting that each question in the question trail begins with “are you sure” and that the defence doesn’t have the onus of proof. “At the end of the day, it’s not sufficient for you to say that Dr Polkinghorne is probably guilty or even very likely guilty,” Justice Graham Lang repeated from his summing-up.

Now this is no surprise. One of the most basic points of law almost everyone is familiar with is that the prosecution has to prove guilt, the defence doesn’t have to prove innocence.

I find it difficult to believe the jury didn’t understand this, and needed direction. Unless Ron Mansfield is incompetent (which clearly he is not) he would have made this point many times. Unless Justice Lang is incompetent (which he is not) he would have stressed this in the summing up. The question trail ever made it clear.

What also strikes me as unusual is the jury indicated their thinking in detail, saying both that some though the prosecution had not made it case, and also most do not think it is suicide. I can’t recall a trial where the jury indicates their thinking in such detail, and the judge reveals it in public session. Off my lay experience, I can only recall situations where a jury was having trouble reaching a unanimous verdict that all they reveal is they are not unanimous. They don’t say the majority think not guilty and the minority guilty. Yet in this case they do give such details.

Also the view that the majority think it wasn’t suicide is superfluous. The test is whether the prosecution had established the facts beyond reasonable doubt. There was no need to offer their view on suicide.

It gets even more interesting when you consider the original note, as found by Steve Braunias:

After we spoke, I went back inside courtroom 11, that hothouse where everyone wilted these past eight weeks, to check on the jury’s document. A word had been crossed out. I wanted to take a closer look to see which word.

The foreperson’s handwriting was very nice and his spelling was immaculate. The word crossed out was “everyone”. It had originally read, “Everyone on the jury do not think that the Crown has supplied enough evidence.”

It was a prophecy of their verdict.

This strongly suggests that the vast majority thought the prosecution had failed to the make the case. Maybe even everyone thought that. But maybe they realised sending a note saying we all think the Crown has failed to establish guilt beyond reasonable doubt, would look ridiculous as it is so clear that means they need to deliver a not guilty verdict. So they downgraded “everyone” to “some”. That is also intriguing as they had previously said “the majority” in relation to suicide. Why did they go from “everyone” to “some”?

My theory is the jury think Polkinghorne did it, and wanted the public to know that. That explains the note. They had reached a stage where “everyone” thought the prosecution had failed to establish guilt beyond reasonable doubt. They knew they had to do their duty, but they didn’t like Polkinghorne, and that he would be officially declared not guilty. They thought it was more likely than not he did it, and by sending that note, they made sure the public knows that too. So their not guilty verdict is seen as a verdict of “not proven” rather than “innocent”.

I welcome feedback from readers, especially those with legal experience, as to how unusual it is to have a jury note like this one. To me I don’t think they needed direction at all. They just wanted to explain their verdict in the only way they could.

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