In the matter of IH, a juror
[2017] VCC 2042
•20 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| IN THE MATTER OF IH, A JUROR |
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| JUDGE: | HIS HONOUR JUDGE STUART |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 December 2017 |
| DATE OF RULING: | 20 December 2017 |
| CASE MAY BE CITED AS: | In the matter of IH, a juror |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 2042 |
EX TEMPORE REASONS FOR RULING
---Catchwords: Criminal trial – Juries Act 2000 – Misconduct of jury foreman – Secret communication of juror with trial judge – Disclosure of communication to parties – Discharge of jury –– Affording juror due procedure and natural justice –– Permanent disqualification of juror from jury service
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APPEARANCES: | Counsel | Solicitors |
HIS HONOUR:
1Lord Hewart CJ in R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 said:
“Justice should not only be done but should manifestly and undoubtedly be seen to be done.”
2On 7 December this year, I empanelled a jury of 13 to try Jenny Margaret Smith, who was charged with three charges of sexual penetration of a child under 16 and two charges of indecent act with a child under 16. The trial commenced on Thursday, 7 December, and continued on the following Friday, Monday, Tuesday, Wednesday, Thursday and the Monday and Tuesday of the following week.
3On the last day of the trial, being 12 December, I received a letter from the jury foreman, IH. This letter was unsolicited and was contained in an envelope given to my tipstaff, Mr Rouse, in the morning in the presence of some of the jurors in the jury room. Mr Rouse asked IH whether it was a question from the jury to which IH said words to the effect that “It was not" and that it was from him alone.
4I received the letter in chambers, commenced to read it and was immediately concerned. I directed that copies of the letter be prepared for distribution to the prosecution and for the defence. I came onto the bench and concluded reading this letter and left the matter in abeyance until after the conclusion of the playing of the accused's record of interview.
5The letter is dated “early AM, 12 November 2017”. It was of course 12 December 2017. It reads:
"Note for Judge Stuart. Indictment wording. Early AM, 12 November 2017.
I continue to have concerns about the indictment working in the sense that I fail to understand why it does not read “that on an occasion between the dates of … (“Occasion A”) …
And that on Occasion A the defendant did also …
And that on Occasion A the defendant did also …
for the five charges.
Forgive me for the “the defendant did also” but I did not have the indictment in front of me as I am at home it being early morning and thus do not have the indictment wording before me to precisely copy. I hope, however, that the principle of the concern is clear.
My thoughts turned to your earlier comments about the need to be sure that the events actually did happen rather than that there is a sense of reasonable probability in order to return a verdict of guilty.
I have not heard the evidence in total and so find it hard to make any sensible comment at this stage but as I read the Indictment it actually says to me that five illegal actions or activities took place at some point over a 15 month period. In broad terms but not related to this case I would be much more tempted to accept and believe that a number of offences took place over a period rather than one specific occasion. For instance if I owned and operated a motor vehicle for twenty years it would be much easier for me to believe that at some point one of the tyres got a puncture rather than that the puncture happened on 6th August 2003.
If the case of the prosecution is centred on providing evidence about one specific occasion on an imprecise date between Sept 2010 and December 2011; then, until yesterday, that had not been made clear to the jury (or at least to several members of the jury). It is also clear to me that the burden of proof of the prosecution is much higher for a single occasion than that indicated by the indictment as presently written.
You have kindly indicated and directed that we the jury are to consider this on the basis of one single occasion only. I believe the jury now all understand that and as best as I am aware are not questioning that. I do not want to create a mistrial or even a wobble but I still have the indictment before me with the present wording and I am concerned that we go through the whole trial only to have any outcomes open to challenge because of indictment wording.
I have not shared this with the remainder of the jury and do not intend to do so as we have been clearly directed by you concerning this matter and will do our best to follow that direction. However, personally speaking, I continue to struggle with the apparent looseness and the generality of the wording of the indictment. I am not a lawyer but as an experienced business person dealing with contracts and standing in the defendant's shoes I would feel I had a right to say that the indictment did not match statements of direction made during the trial and that the generality of the indictment wording placed a higher burden of guilt upon me than was stated as being the range of consideration of the jury.
Please do not feel obliged to raise this matter in open court - I am making a statement about matters as I see them. Although I am jury foreman these comments are from me personally and are not directed to be sent to you by any other member of the jury. If you wish to share any comment with me privately I would be gratefully pleased to receive them but such response is not required or requested."
6The letter is hand dated 12/12/17 and signed “IH - Member of the jury”. The envelope that contained this letter was addressed “Note for Judge Stuart”.
7Having drawn the matter to the attention of counsel for the Crown and for the defence, they jointly submitted that I could only discharge the jury. I agreed. The focus at that point of time was on two aspects:
(1) the contents of the letter; and
(2) its existence as being a means of communication with me, contrary to the manner in which I directed the members of the jury when asking questions.
8The foreman, IH, is 69 years of age. He presented to me as being one who was involved during the course of the trial, as were all the other 12 members of the jury. This is illustrated by a series of questions that were directed towards me from the foreman and also another member of the jury towards the tail-end of the questions that appears at pp.68 to 73, which becomes Attachment 1 to this ruling.
9Having heard submissions, I then discharged the jury saying apart from other matters the following:
“Thank you, Mr Foreman, ladies and gentlemen. Not infrequently something occurs which causes the judge concern during the course of a trial, and it has occurred here. And the trial process is a very time-honoured one and justice must be done and seen to be done. You probably have certainly no idea of what I'm talking about. Well, I'm sorry, but I've received a communication from one of your number which has given me concern and in the circumstances, I must discharge you from further hearing of this trial.”
10Thus, after a trial of six days, I discharged the jury. I considered in the following days what, if anything, I should do in relation to this matter. Under s.12 of the Juries Act 2000, subsection 1 provides as follows:
(1) If a court thinks it is just and reasonable to do so, the court may, on its own motion, or on an application under subsection (2), order that a person not perform jury service-
(a) for the whole or part of the jury service period; or
(b) for a longer period specified by the court; or
(c) permanently."
11Subsection (2) provides for the Juries Commissioner to apply for an order under subsection (1) in relation to a particular person who may not be able to perform the duties of a juror.
12Jury service is not only a privilege, it is a right of members of our community to be drawn at random and come to serve as a juror in a criminal trial.
13Having reflected on the matter, I asked the Juries Commissioner, Mr Paul Dore, to attend last Friday, 8 December. I requested him to make contact with IH in order to advise him that the following Wednesday 20 December, being today, I would be considering whether or not to make an order pursuant to section 12 of that Act.
14My purpose was to ensure that IH was aware of this matter and of my powers under section 12 of the Act to disqualify him from performing jury service for a specified period or permanently. I also asked Mr Dore to emphasise that I am not requiring IH to attend today and that a letter confirming that telephone conversation or otherwise will be sent.
15In compliance with those instructions, Mr Dore sent IH a letter dated Friday, 15 December this year, which perfectly sets out what I asked of Mr Dore to convey to IH. In response, IH sent an email dated 16 December, saying:
"Dear Paul,
Many thanks for following up as promised with regard to the letter which you have sent me about the hearing at 10.30am Wednesday 20th December 2017." I will be unable to attend at that time but would be pleased to hear the outcome of Judge Stuart's decision. I would point out that I am approaching seventy years of age and tis [sic] may be an impinging factor.
Yours sincerely,
IH."
16Two days later on 18 December, he sent a further email addressed to the Juries Commissioner. In it, he wrote:
"Dear Paul,
I have indicated that I am unlikely to be present when Judge Stuart considers the matter but I would be grateful if you forward this message to him on my behalf.
As I understand matters it was my note that brought about the dismissal of the jury which was precisely not what was intended. I remain unclear as to the reason for this in terms of what I wrote and I do not need to know now. However I am both saddened and sorry for me being the cause of wasting court time and jury time and I apologise for causing the dismissal. I simply wanted Judge Stuart to know this. I do not ask for any particular outcome of the consideration concerning my future attendance as a juror but I await the decision until it arrives.
Yours sincerely,
IH."
17My purpose in asking the Juries Commissioner to write to IH as he did is to ensure that IH was afforded procedural fairness and natural justice. He has declined to attend and that is his choice.
18My preliminary directions to the jury were unexceptional. I made it plain to them that they were to consider the case as solely on the evidence brought forward in open court and not conduct any investigations. Further, I directed them that they should not discuss the case other than between themselves in the privacy of their jury room and that if they had any questions, they should write those questions down and those questions would be conveyed to me and after consultation with counsel, answered.
19I further directed them, as I always do, that upon gong home on the first day of the trial, they could say to those in their family and friends that they were on a criminal trial that is expected to last five days, but to go no further, and if pressed, to say, "I cannot discuss the case because the judge has told me not to."
20In the intervening period since the discharge of the jury on 12 December, I have reflected on the circumstances of this matter. In the close-on 40 years that I have been involved in the criminal justice system in this State as counsel and in the last six years or so as a judge of this court, I have never heard or experienced any such case as is before me. I have spoken with other judges of this court and colleagues. None have heard of such an occasion as this.
21It is, so far as I am concerned, and having looked at Archbold Criminal Pleading, Evidence & Practice, 41st Edition, unprecedented for a member of the jury to secretly convey his thoughts about matters before the court and further, having initiated such contact, suggested that I should have communication with him unbeknown to other members of the jury, the Crown and the defence is staggering.
22It is not as if IH did not have an opportunity to reflect on this course of conduct. The letter itself is long and detailed. It speaks to matters of law and other things which I will come to in due course. That IH knew that providing this letter to me was improper is patent from the secrecy with which it was done and the secrecy with which any contact with me should be observed. That is plain from the last paragraph, which I will repeat:
"Please do not feel obliged to raise this matter in open court - I am making a statement about matters as I see them. Although I am jury foreman these comments are from me personally and are not directed to be sent to you by any other member of the jury. If you wish to share any comment with me privately I would be gratefully pleased to receive them but such response is not required or requested."
23Not only does this letter come from a member of the jury, it comes from the foreman who, if anybody should have reflected on the impropriety of this conduct, it was him.
24In other circumstances, were he not the foreman, I would have seriously considered simply discharging him. But to discharge a foreman without giving reasons would suggest my interfering in their province as judges of the facts or in some way me seeking to influence them because of the questions asked during the course of further directions by the foreman himself and another member of the jury. I therefore concluded that there was a high degree of need to discharge this jury.
25If I detected that the purpose behind this letter and the back corridor communication between he and I as suggested had a nefarious purpose, I would have undoubtedly referred the matter to the Director of Public Prosecutions for consideration as to whether IH should be dealt with for an attempt to pervert the course of justice and/or contempt of court, being a contempt not in the face of the court.
26Thus far, I have confined myself to the fact of the letter and it being kept secret, but there are numerous other aspects to this letter which are disturbing and evidenced a reluctance by IH to apply the law as I have directed the jury to the case, as exampled by statements such as:
"I have not shared this with the remainder of the jury and do not intend to do so as we have been clearly directed by you concerning this matter and will do our best to follow that direction. However, personally speaking, I continue to struggle with the apparent looseness and the generality of the wording of the indictment."
27And earlier, convoluted ideas, such as the one encapsulated in the sentence:
"It is also clear to me that the burden of proof of the prosecution is much higher for a single occasion than that indicated by the indictment as presently written.”
28Where that came from, I have no idea, nor the notion earlier in this letter of "reasonable probability", though I did direct the jury about the civil standard of proof, being the balance of probability, as contrasted with the criminal standard of proof, being beyond reasonable doubt. I never used the phrase "reasonable probability".
29There is inherent in this letter and its contents a desire to question my directions of law to the jury.
30I am satisfied that he should no longer have the right to be called to perform jury service and therefore pursuant to s.12(1)(c) of the Juries Act 2000, I permanently order that he not perform jury service.
31The retrial of this matter is to commence on Monday, 5 February 2018. The other 12 members of this discharged jury who have done no wrong and perhaps know little, if anything, other than what I have said as to why they were discharged ought in my view be acquainted with what has happened and why they were discharged as jurors. To that end, upon this ruling being revised, I direct the name of the jury foreman be initialised and IH and the 12 other members of the jury be advised of its publication on the County Court of Victoria website - as well as the and Jade websites - and upon the completion of the retrial of Ms Smith.
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