Thursday, February 13, 2014

One angry juror

The integrity of the trial process was called into question in Smith v Western Australia [2014] HCA 3 (12 February 2014). After a jury had returned guilty verdicts and had been discharged, a note was found in the jury room. It was addressed to the judge and said:

“I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel [sic].”

The Court qualified the rule that a jury’s deliberations are private and evidence of them will not be received:

“[45]  If public confidence in the system of criminal justice is to be deserved, criminal misconduct calculated to prevent free and frank deliberation by a jury must not be kept secret lest it become endemic. In such cases, the application by the courts of the exclusionary rule to preserve finality would be contrary to the first duty of the courts to preserve the integrity of the system of criminal justice which they administer.”

There is a threshold to be crossed before the issue is opened:

“[50] A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion; but where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation as part of its consideration of whether a miscarriage of justice has occurred.”

Here there was no challenge to the correctness of the verdicts – in the sense that the appellant accepted that they were reasonably open to the jury on the evidence, but it was argued – and accepted by the Court – that this case involved evidence, that was capable of belief, that raised reasonable ground for suspicion that one juror had exercised unlawful intimidation over another, and “on the face of things, there has been a serious breach of the presuppositions of the trial” [54].

For those of us who have to understand the workings of s 232 of the Criminal Procedure Act 2011 [NZ] it is useful to see how it would fit to these circumstances. Section 232(4) includes in the definition of a miscarriage of justice an “irregularity, or occurrence in or in relation to or affecting the trial” that has a specified consequence. The note in Smith is evidence of such an event. It is not contended that the outcome of the trial was affected - one of the ways in which an irregularity can amount to a miscarriage of justice: s 232(4)(a) – so the argument is directed at satisfaction of the alternative consequence of the irregularity: it made the trial unfair: s 232(4)(b). The common law establishes that an unfair trial is one where the law was not properly applied to facts that were determined impartially, and here it is the impartiality of the determination of the facts that is relevant.

Smith illustrates how a verdict may be correct - in the sense that it was open to the jury to convict the defendant - but it may still have been arrived at in a way tainted by impartiality. A biased decision can be correct, but nevertheless be arrived at unfairly.

And here is a tutorial question: if a majority verdict could have been returned in this case, would it matter that the one dissenting juror may have been unlawfully threatened but still had refused to join the majority? And alternatively, if a majority verdict could have been returned, would it matter that the threatened juror had joined in the verdict which ultimately was unanimous?