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.
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?
