The Instagram posts of takeaway coffee cups that nearly forced a mistrial in the Tinder murder case have highlighted the problems courts have in enforcing social media restrictions on jurors.
Gable Tostee, 30, was found not guilty of the murder or manslaughter of Warriena Wright, a woman he met using the dating app Tinder.
After four days of deliberation at Queensland’s supreme court in Brisbane, jurors reached a verdict on Thursday afternoon – but their decision was called into question when one was found to have been posting about the trial to Instagram.
The Queensland woman shared at least four photos of takeaway coffees with her 2,500-plus followers, tagged at the supreme court, as well as some of her thoughts about the case.
“I snagged a bad one lovelies,” she wrote last week, beneath an image of a skim-milk flat white. “But I’m sure that I’m never thrown anything that I can’t handle, so although it will be a tough trial, I will learn and grow from it.”
On a later post, also of a coffee cup, she commented that the trial was “draining”. “It’s a high profile case ... Interesting to see the process though,” she wrote.
In a post on Wednesday she wished her followers good morning before a screed of hashtags: “Happy hump day people! Another day of jury duty, another stroll across the Goodwill Bridge, another delicious coffee in a gorgeous cup.”
She was asked by one Instagram user if she was on the Tostee case and replied in the affirmative. She told another: “I’m so glad I’m finding these pretty cups every day … because the trial has certainly been less than pretty.”
The woman posted a picture of yet another cup on Thursday morning, hours before the jury delivered its verdict.
“Right now I am feeling highly caffeinated after drinking this huge coffee from #cafeonthegoodwillbridge and ready to face yet another day of deliberations … I think.”
She did not discuss evidence or the jury’s deliberations but, as her account was public, all three images of the images she posted this week appeared on the court’s Instagram page.
The near-miss has highlighted the difficulties of keeping jurors off social media, lest their posting about trials – or reading others’ commentary – affects their outcome.
The problem has only increased as social media has become more ubiquitous. Prof Anne Wallace, a Perth-based law academic who has done extensive work on the impact of social media on the work of courts, said it reflected the blurring of lines between private and public across the board.
“It’s a serious business, you’re there doing a civic duty – [posting about] coffee is not really appropriate when you’re deciding about someone’s liberty, and someone else’s death ...
“The comments you might have made to your partner at the end of the day in private, we now have made ‘in private’ to your Instagram followers.”
Discussion of the woman’s posts delayed the delivery of the verdict on Thursday afternoon, with Tostee’s barrister arguing for a mistrial on the basis that they equated to a discussion of the case with outsiders.
But Justice John Byrne rejected the application, saying that the juror’s posts, though “unfortunate”, were not prejudicial.
“This is a particularly disappointing feature of the events of the day but only one is responsible for it,” he said.
“That juror will discover when she accesses her Instagram account that many members of the public have commented on her decision to communicate with others during the course of the trial.”
A court spokesperson on Friday said that although jurors are told repeatedly not to use social media during trials, no further action was planned against the woman.
The state’s Jury Act sets out a maximum penalty of two years’ imprisonment for information about a jury’s deliberations or “identifying or likely to identify a person as a juror in a particular proceeding”.
Similar restrictions apply in the rest of Australia, as well as in the UK, Canada and New Zealand.
Marilyn Bromberg, a senior lecturer at the University of Notre Dame’s law campus in Fremantle, Western Australia, said social media activity had caused jurors in Australia – and, in some cases, entire juries – to be dismissed, but no charges had been laid.
In the UK, however, there had been two cases of jurors being imprisoned for contempt of court: one in 2011, and one in 2013.
The US allows jurors to identify themselves. But social media activity had compromised proceedings in at least 20 US trials, Bromberg said.
She said of the problem: “We don’t even know how widespread it is because it could be happening and we don’t know about it.”
Jurors are also forbidden from reading information about the trial other than the evidence presented in court. Such information, Bromberg said, was “very hard to avoid” on social media.
Introducing blanket bans for the duration of court proceedings and legislating stricter penalties have been put forward as possible solutions. A Queensland criminal barrister commenting on the Tostee case proposed “quarantining … jury members from phones and outside communications until they reach a verdict”.
But enforcing that would present a new range of problems. “The general idea is you shouldn’t be punishing juries because they’re doing their civic duty, even if they do use social media,” Bromberg said.
“A lot of jurors who do comment about a case, they’re not malicious – they just either don’t realise that it was wrong to do, or they’re addicted. They post everything in their lives – it would seem incomprehensible that there’s something they can’t post about.”
She and Wallace are in favour of more detailed and consistent warnings about the potential consequences of posts to social media – not just to the trial, but to jurors personally.
“There’s why we preserve the anonymity of our jurors, in part – to protect them, as well as to guard against people putting pressure on them in relation to the verdict,” Wallace said.
Asking jurors to supply details of their social media presences – as is common practice in the US – would remind them to be prudent, as well as allow the court to monitor their activity.
But the risk of a juror either posting or reading potentially prejudicial commentary is heightened in trials in which there is as intense interest, as was the case for Tostee’s.
A closed Facebook group for “discussion” of the case has drawn close to 3,200 members in the 10 days since it was founded on 11 October; more than 600 joined after he was declared not guilty and that number is climbing.
After the verdict, discussion of his innocence is ongoing in the group, as are reactions from members as far away from the Gold Coast as Germany and the US. Links purporting to lead to the full 199-minute audio recording that he made of the fatal night have been shared there at multiple users’ requests.
One of the group’s two administrators – who have no known connection to the case – tried to enforce some parameters for the discussion in a pinned post about “a bit of housekeeping” on Thursday afternoon.
“We will not be approving one-line posts like ‘yeah baby, he’s free, i love you gable’ etc. These take up space and add nothing to the group.”
The admin also warned members to “post about the Instagram juror at your own risk”, as she would “take NO responsibility for any legal issue” that were to arise.
Screenshots of the woman’s posts – many scathing at her thoughtlessness – had already been widely shared on social media before she made her account private within an hour of the jury being dismissed on Thursday.
