R v Wilton - [2013] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v WILTON
[2013] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Kelly and The Honourable Justice Blue)
26 June 2013
JURY - CONFIDENTIALITY OF JURY ROOM AND DELIBERATIONS
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL
Ms Wilton was found guilty by a jury of aggravated serious criminal trespass in a place of residence and aggravated assault. She appeals against her conviction relying upon affidavits sworn by three jurors. The affidavits state that before the jury returned its verdict the wife of another juror told him that Ms Wilton had prior convictions and that he in turn communicated that fact to the other members of the jury. The Director contends that the affidavits are inadmissible as they disclose the private deliberations of the jury.
Held by Blue J (Sulan and Kelly JJ agreeing):
1.       Evidence of a communication between jurors is not necessarily inadmissible. Such evidence is admissible where the communication is properly characterised as being extraneous to the jury's deliberation (at [28]-[41]).
2.   The jurors' affidavits were admissible notwithstanding that they deposed to conversations between jurors because the conversations were not part of the jury's deliberation (at [44]).
3.       Information about Ms Wilton's prior convictions, which was not admitted into evidence, was an improper extraneous influence on the jury's deliberation (at [43]).
4.       A miscarriage of justice ocurred by the jury having been exposed to a material improper extraneous influence (at [45]).
5.       The Court cannot be satisfied that, absent disclosure of Ms Wilton's convictions, the same verdict would have been returned (at [46]).
6.       Appeal allowed. Conviction set aside. Matter remitted for retrial (at [47]).
Criminal Law Conslidation Act 1935 (SA) ss 20, 170, 246, 353; Evidence Act 1929 (SA) s 59J, referred to.
R v Pan [2001] SCC 42, [2001] 2 SCR 344; R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86, applied.
R v Emmett (1988) 14 NSWLR 327; R v Minarowska and Koziol (1995) 83 A Crim 78; R v Myles [1997] 1 Qd R 199; R v Rinaldi (1993) 30 NSWLR 605; R v Softley [1999] SASC 538; (1999) 206 LSLS 48; Ras Behari Lal v The King Emperor [1933] All ER Rep 723, discussed.
Barker v The Queen [1994] 54 FCR 451; Clamp v Lyne (1895) 11 WN (NSW) 108; Ellis v Deheer [1922] 2 KB 113; M v The Queen (1994) 181 CLR 487; R v Armstrong [1922] 2 KB 555; R v Bates [1985] NZLR 326; R v Glastonbury [2012] SASCFC 131; (2012) 115 SASR 37; R v Nguyen [2010] HCA 38; (2010) 242 CLR 491, considered.

R v WILTON
[2013] SASCFC 60
Court of Criminal Appeal: Sulan, Kelly and Blue JJ

SULAN J: I would allow the appeal. I agree with the reasons of Blue J and the orders that he proposes.
KELLY J: I agree that the appeal should be allowed and the matter remitted for retrial. I agree with the reasons expressed by Blue J.
BLUE J: The appellant/defendant, Ms Wilton, was found guilty by a jury of aggravated serious criminal trespass in a place of residence[1] and aggravated assault.[2]
[1] Criminal Law Consolidation Act 1935 (SA) s 170(1) (“CLCA”).
[2] CLCA s 20(3).
She appeals on the ground that there was a miscarriage of justice.[3] She contends that the wife of one of the jurors had been present during the trial while the jury was absent and had learnt thereby that Ms Wilton had been arrested 12 previous times. She communicated that fact to her husband and her husband communicated it to the other members of the jury during the trial and before the jury returned its verdict.
[3] CLCA s 353.
The appeal involves the intersection of two common law principles relating to jury verdicts, namely:
1.a court of appeal will not inquire into what has passed between members of the jury in the course of their deliberations;[4]
2.a guilty verdict is vitiated by material improper extraneous influence.[5]
[4] R v Softley [1999] SASC 538; (1999) 206 LSJS 48 at 53 per Doyle CJ (Debelle J and Wicks J agreeing).
[5] Ibid at 53-54 and 56 per Doyle CJ (Debelle J and Wicks J agreeing).
The question raised on appeal is whether the first of those principles precludes the admissibility of evidence of communications between jurors amounting to improper extraneous influence, namely information about Ms Wilton’s prior convictions.
Background facts
Ms Wilton’s trial commenced mid afternoon on 24 September 2012. The jury was dismissed for the balance of the afternoon while a voir dire hearing took place. During the voir dire, a police officer gave evidence that she had been involved in the arrest of Ms Wilton on at least 12 previous occasions.
The trial proceeded on 25 September with the jury present. The jury retired to consider its verdict on the morning of 26 September. The jury returned verdicts of guilty.
The Sheriff’s Officers noticed a woman present in the public gallery throughout most of the trial. The woman informed one of the Sheriff’s Officers that she was married to one of the jurors.
On the afternoon of 26 September, after the jury returned its verdicts, one of the Sheriff’s Officers was informed by a juror (“Juror A”) that another juror (“Juror X”) had been receiving information from his wife (“Mrs X”) who had been in the courtroom during the trial and that Juror X told his fellow jurors that Ms Wilton had 12 prior convictions for criminal offences.[6]
[6] The police officer’s evidence about 12 prior arrests was apparently transmuted into 12 prior convictions.
On 18 December 2012, by the consent of the parties, a Judge of this Court directed the Sheriff to attempt to obtain affidavits from Juror A and at least one other juror concerning the matter, without enquiring whether the matter affected their deliberations.
Affidavits were obtained from Juror A together with two other jurors (“Jurors B and C”). Juror A’s affidavit confirmed the matters set out at [10] above. The affidavits from Jurors B and C corroborated Juror A’s affidavit.
Submissions on appeal
Ms Wilton contends that the affidavits of Jurors A, B and C are admissible and ought to be admitted on appeal as evidence that an improper extraneous influence was brought to bear on the jury, namely the information that Ms Wilton had 12 prior arrests/convictions. Ms Wilton contends that this information was inherently capable of influencing the jury’s verdict and this Court cannot be satisfied that it could not have done so. In those circumstances, the verdict ought to be set aside.
The Director opposes reception of the affidavits of Jurors A, B and C on a single ground. The Director contends that reception of the affidavits would offend the common law principle precluding evidence on appeal of jury deliberations.
The Director makes four concessions. First, Juror A’s affidavit should not be rejected on the ground that it includes hearsay evidence, namely evidence of communications from Juror X’s wife to Juror X. To the extent that that evidence comprises hearsay and would otherwise be inadmissible on that ground, the Director concedes that it would be appropriate to receive it under s 59J of the Evidence Act 1929 (SA). Secondly, the Director concedes that Juror A’s evidence is reliable, being corroborated by Jurors B and C and by the fact that a police officer did in fact give evidence on the first day of trial in the absence of the jury that she had been involved in the arrest of Ms Wilton on 12 occasions. Thirdly, the Director concedes that, if the Jurors’ evidence is properly admitted, it demonstrates an irregularity and, further, this Court could not be satisfied that the jury’s verdict was not influenced by that irregularity, such that it would follow that the verdicts should be set aside.
Finally, the Director concedes that section 246 of the Criminal Law Consolidation Act 1935 (SA) does not preclude the adducing of evidence from the jurors. Section 246 precludes a person publishing, or knowingly taking steps likely to lead to the publication of, protected information. “Protected information” is defined relevantly to mean:
particulars of statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations, other than anything said or done in open court.[7]
The Director accepts that, by reason of paragraph 246(5)(a), section 246 does not prohibit the disclosure of protected information to a court, and accordingly section 246 has no operation in the present case. In any event, the definition of protected information is apt to capture jury deliberations but not improper extraneous influence upon the jury.[8]
[7] CLCA s 246(11). Protected information is also defined to mean information that identifies, or is likely to identify, a person as, or as having been, a juror in particular proceedings, but that aspect of the definition is not presently relevant.
[8] There is a marked similarity between the language of the definition of “protected information” and the common law rule of preclusion as formulated by the Supreme Court of Canada in R v Pan [2001] SCC 42; [2001] 2 SCR 344 quoted at [40] below.
Each of these concessions by the Director was rightly made. It follows that the sole issue on appeal is whether reception of the jurors’ affidavits is precluded by the common law principle of jury deliberation preclusion.
Jury deliberations and extrinsic influence
There are five fundamental principles affecting challenges on appeal to jury verdicts insofar as they raise influences on a jury’s determination of guilt.
The first principle is that evidence is inadmissible on appeal about what has passed between members of a jury in the course of their deliberations.[9] This principle is based on public policy considerations which include:
1.   preservation of the unity of a jury verdict;
2.   preservation of secrecy of the deliberations amongst the jurors and promotion of full and frank discussion amongst jurors;
3.   preservation of finality of the jury’s verdict;
4.   protection of jurors from extrinsic pressure and criticism;
5.   maintenance of public confidence in juries and preservation of the integrity of jury verdicts.[10]
[9]    R v Softley [1999] SASC 538; (1999) 206 LSJS 48 at 53 per Doyle CJ (Debelle J and Wicks J agreeing); Ellis v Deheer [1922] 2 KB 113 at 117-118 per Bankes LJ; R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 at [210] per Mason P, Wood CJ at CL and Sully J.
[10] R v Armstrong [1922] 2 KB 555 at 568 per Lord Hewart CJ; Ellis v Deheer [1922] 2 KB 113 at 120-121 per Atkin LJ; R v Skaf (2004) 60 NSWLR 86 at [211] per Mason P, Wood CJ at CL and Sully J; R v Glastonbury [2012] SASCFC 141; (2012) 115 SASR 37 at [30] per Sulan J (Kourakis CJ and Stanley J agreeing).
The second principle is that there is a right of appeal by a defendant against a jury verdict of guilty.[11] Insofar as an appeal relates to the merits of the jury’s verdict,[12] the appeal court determines whether the verdict is unreasonable or cannot be supported having regard to the evidence.[13] Because of the existence of the first principle referred to at [19] above, the approach of an appeal court to an appeal from a jury’s verdict is quite different to an appeal against a conviction by a magistrate or judge sitting alone. The appeal court does not directly consider credibility findings, factual findings or the reasoning of the jury (which remain secret). It considers the objective question whether a reasonable jury could have been satisfied of the matters necessary to convict having regard to the objective evidence, the conduct of the trial and the trial judge’s rulings and directions.[14] This principle is based upon public policy considerations including:
1. the interests of the defendant in those cases in which the jury’s verdict is regarded by the appeal court as unreasonable or unable to be supported having regard to the evidence;
2. the public interest in justice and the preservation of public confidence in the criminal justice system.
[11] CLCA s 352. The right of appeal is subject to permission on a ground other than one involving a question of law.
[12] As opposed to rulings or directions of the trial judge or a substantial miscarriage of justice.
[13] CLCA s 353(1).
[14] M v The Queen (1994) 181 CLR 487 at 493-495 per Mason CJ, Deane, Dawson and Toohey JJ; R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at [33] per Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The third principle is that a jury’s verdict of guilty is vitiated by the jury having been subjected to material improper extraneous influence.[15] This principle is based on public policy considerations including:
1.   guilt or innocence should be determined by the jury only on the basis of evidence properly presented to them in the course of the trial in the presence of and subject to challenge and comment by the accused;[16]
2.   protection of jurors from extrinsic pressure;
3.   protection of the integrity of jury verdicts;
4.   protection of public confidence in jury verdicts.
[15] R v Bates [1985] NZLR 326 at 328-329 per Eichelbaum J (Woohouse P and Somers J agreeing); R v Emmett (1988) 14 NSWLR 327 at 334-335 per Lee J (Enderby J and Grove J agreeing); R v Softley (1999) 206 LSJS 48 at 53-54, 56 per Doyle CJ (Debelle J and Wicks J agreeing); R v Glastonbury (2012) 115 SASR 37 at [31]-[40] per Sulan J (Kourakis CJ and Stanley J agreeing).
[16] R v Glastonbury (2012) 115 SASR 37 at [33] per Sulan J (Kourakis CJ and Stanley J agreeing).
The fourth principle is that evidence is admissible on appeal if it relates to matters extraneous to the jury’s deliberations and discloses a material irregularity potentially affecting the jury’s verdict.[17] This principle is a corollary of the third principle and, properly understood, is not inconsistent with the first or second principles discussed above.
[17] R v Softley (1999) 206 LSJS 48 at 53-54 per Doyle CJ (Debelle J and Wicks J agreeing); R v Glastonbury (2012) 115 SASR 37 at [31]-[40] per Sulan J (Kourakis CJ and Stanley J agreeing); R v Skaf (2004) 60 NSWLR 86 at [212]-[214] per Mason P, Woods CJ at CL and Sully J.
The fifth principle is that, where an irregularity has occurred in the sense that the jury has been subjected to improper extraneous influence, an appeal court will not inquire into the actual effect of that influence upon the jury’s verdict but will determine the materiality of the influence according to whether the court considers it was objectively capable of affecting the verdict. Generally, the verdict will be set aside unless the court is satisfied that the same verdict would have been returned had the improper influence not been present.[18] This principle is a corollary of the second, third and fourth principles discussed above.
[18] R v Softley (1999) 206 LSJS 48 at 56 per Doyle CJ (Wicks J agreeing) and 57-58 per Debelle J; R v Glastonbury [2012] SASCFC 141 at [50]-[62] per Sulan J (Kourakis CJ and Stanley J agreeing).
The distinction between internal deliberations and extrinsic influence
At a conceptual level, the distinction between internal deliberations amongst the jury and extraneous influence upon the jury is clear. In practice, the dividing line can be difficult to draw in cases lying on the periphery of internal deliberations and extraneous influence.[19] This is in part because jury members are expected to use their general knowledge and worldly experience in their deliberations.[20]
[19] R vMinarowska and Koziol (1995) 83 A Crim R 78 at 85-88 per Gleeson CJ (James and Ireland JJ agreeing); R v Skaf (2004) 60 NSWLR 86 at [216] per Mason P, Woods CJ at CL and Sully J.
[20] R v Minarowska and Koziol (1995) 83 A Crim R 78 at 85-88 per Gleeson CJ (James and Ireland JJ agreeing).
In some cases, it may be difficult to draw the line between a member of the jury contributing general knowledge and worldly experience on the one hand and an improper extraneous influence being brought to bear on the other hand. In Minarowska and Koziol,[21] the Court of Criminal Appeal of the New South Wales Supreme Court considered that knowledge contributed by a juror about unsworn statements, proposals by the Attorney-General to abolish them and the reasons given by the Attorney-General for the proposed abolition fell on the internal deliberation side of the line even though that knowledge was derived from a specific magazine article brought into the jury room or referred to by the juror. On the other hand, in R v K,[22] the Court held that knowledge contributed by jurors from internet searches relating to the accused fell on the extraneous influence side of the line.
[21] (1995) 83 A Crim R 78.
[22] [2003] NSWCCA 406; (2003) 59 NSWLR 431.
The Director accepts that the admissibility of evidence relating to jury communications does not turn on whether the evidence is adduced from a juror or from a non-juror. That proposition is now clearly established by authority.[23] For example, matters properly characterised as being intrinsic jury deliberations cannot be proved by hearsay[24] or evidence from a sheriff’s officer or other non-jury member who heard or saw the jury deliberation in question.[25] Similarly, evidence of what is properly characterised as improper extraneous influence upon the jury can be adduced directly from a jury member as much as from an outsider.[26]
[23] R v Myles [1997] 1 Qd R 199 at 204-205 per Fitzgerald P; R v Skaf (2004) 60 NSWLR 86 at [212] per Mason P, Wood CJ at CL and Sully J.
[24] Clamp v Lyne (1895) 11 WN (NSW) 108 at 109 per Darley CJ (Windeyer J and Innes J agreeing); R v Emmett (1988) 14 NSWLR 327 at 333 per Lee J (Enderby J and Grove J agreeing).
[25] R v Skaf (2004) 60 NSWLR 86 at [212] per Mason P, Wood CJ at CL and Sully J.
[26] Ibid.
However, the Director contends that evidence cannot be adduced of any communication amongst the jury in the jury room, even if the communication amounted to extraneous influence. Thus, the Director contends that evidence would be admissible from Mrs X or Juror X of a communication from Mrs X to Juror X that Ms Wilton had 12 prior convictions and that this had been disclosed during the voir dire in the absence of the jury. However, the Director contends that evidence is not admissible from Jurors A, B or C that they were told this by Juror X and nor would such evidence from Juror X be admissible.
I reject the Director’s contention. As a matter of principle, as explained at [19]-[23] above, the true distinction is between internal jury deliberations on the one hand and extraneous improper influence on the other. The principle is not that any communications amongst the jury whatsoever, however removed from being jury deliberations, cannot be the subject of evidence.
The first principle identified at [19] above is not inconsistent with the third principle identified at [21] above. The admissibility of evidence involving jury communication under the fourth principle simply depends on whether the communication is an intrinsic part of jury deliberation or is an improper extraneous external influence.
Similarly, the public policy considerations which give rise to the fourth principle do not suggest that evidence of improper extraneous external influences should be rejected as inadmissible. A consideration of each of the five public policy considerations identified at [19] above shows that they are advanced by admissibility and would be adversely affected by non-admissibility in such circumstances.

Such a principle would lead to a loss of confidence in jury verdicts, would result in verdicts which have been truly vitiated being unchallengeable and would be contrary to justice and the proper administration of justice.
The principle suggested by the Director would lead to distinctions without a difference. If a third party entered the jury room and threatened to shoot the jury members unless they delivered a guilty verdict, evidence of that threat would be admissible. If one of the jurors did the same thing, evidence of the threat would not be admissible.
The suggested principle is contrary to authority.
In Ras Behari Lal v The King Emperor,[27] Lord Atkin on behalf of the Privy Council said:
The question whether a juror is competent for physical or other reasons to understand the proceedings is not a question which invades the privacy of the discussions in the jury box or in the retiring room. It does not seek to inquire into the reasons for a verdict. If the alleged defect of the juror could be proved at all aliunde there seems to be no reason why the evidence of the juror himself should not be available either for or against the allegation. It would seem remarkable that if evidence of neighbours could be given that a juror did not understand English, it should not be open to the prosecution to produce the strongest evidence possible by calling the juror himself to show that he fully understand [sic] the proceedings. Similarly, their Lordships are unable to accept the view that any presumption of assent by all the jurors to a verdict given in their presence is decisive of, or, indeed, relevant to, the question. …
It would be remarkable indeed, if what may be “a scandal and perversion of justice” may be prevented during the trial, but after it has taken effect the courts are powerless to interfere. Finality is a good thing, but justice is a better.[28]
[27] [1933] All ER Rep 723.
[28] Ibid at 725, 726.
In R v Emmett,[29] Lee J (Enderby J and Grove J agreeing) said:
[29] (1988) 14 NSWLR 327.
… what the rule as to jurors not being able to impugn a verdict is designed to protect is the secrecy and finality of those deliberations irrespective of the fact that jurors involved may consider that other jurors are not fulfilling their role in the fashion which justice requires. The rule establishes that every juror who participates in the ultimate verdict is bound by that verdict irrespective of his inner satisfaction with it or not.
I have taken some time to go through the authorities to make clear that the present proceedings are in no way a departure from accepted law as to non-disclosure of a jury’s deliberations and the finality of a jury’s verdict. The rule as to non-disclosure by a juror of what goes on in the jury room serves a valuable public purpose as has been explained. But the rule is not one which prevents a court from considering evidence of jurors on matters which are extrinsic to the matter of deliberations of the jury. What happened in the present case happened, in significant respects, in the jury room and it is for that reason that I am at pains to point out that none the less the course taken in this case is in no sense a departure from established law but, indeed, an application of established law. For there are a number of cases which make clear that when matters extrinsic to the jury’s actual deliberations are brought to the notice of the court by members of the jury the court will in a proper case intervene and set aside a verdict.[30]
(emphasis added)
and Enderby J in supplementary reason said:
The integrity of our system of criminal justice has to be seen to be above suspicion. Juries play an important part in that system. … They bring their common-sense, or their lack of it, and their collective wisdom, or their lack of it, with them into the jury room. We require them to deliberate in private and without covert outside influence. The only influence permitted is that which flows from the evidence given in open court, the addresses of counsel given in open court and the summing-up of the judge given in open court. It is the antithesis of our jury system that covert extraneous influence be presented to a jury or be seen to be presented to a jury. That is what has happened in this case.[31]
(emphasis added)
[30] Ibid at 334.
[31] Ibid at 338-339.
In R v Rinaldi,[32] Carruthers, Sully and Abadee JJ said:
It is a well-established general principle that:
“… the Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be.” …
However, this rule does not prevent the court from considering evidence of jurors on matters which are extrinsic to the matter being deliberated on by the jury and which in a proper case may be grounds for setting aside the verdict.[33]
(emphasis added; references omitted)
[32] (1993) 30 NSWLR 605.
[33] Ibid at 610-611.
In Barker v The Queen,[34] Jenkinson and O’Loughlin JJ (Miles J agreeing) said:
The first question which the facts found raise is whether any member of the jury examined any one or more of the three original exhibits to which we have referred. If that question be answered in the affirmative, the question arises as to whether any of the jurors read any of the excluded parts. It may perhaps be thought that inquiry now of the jurors to obtain answers to those questions would not violate the principle that inquiry be not made after verdict into the deliberations which resulted in that verdict. But if an affirmative answer to both questions were obtained from one or more of the jurors, any further inquiry as to what the juror thought, or as to what he did, in relation to what he read would be likely to result in contravention of that principle.[35]
(emphasis added)
[34] (1994) 54 FCR 451.
[35] Ibid at 465.
In R v Myles,[36] Fitzgerald P said:
[36] [1997] 1 Qd R 199.
It was submitted for the prosecution that, while jurors may give evidence of extrinsic matters, eg, the improper intrusion of outsiders into jury deliberations, and evidence of irregular conduct by jurors may be given by other persons, evidence from jurors themselves with respect to the jury’s deliberations must not (or should not) be received in any circumstances … However, whatever may once have been the position, such an unqualified approach can no longer be justified and should not be accepted; the public interests in the confidentiality and finality of jury deliberations ought not be permitted to produce or hide such gross injustice as the conviction of an innocent person. An obvious example would be a case in which an innocent person was convicted by jurors frightened by threats to their lives made in the jury room by one of their number who confessed to his or her own guilt of the crime.
Further, the traditional objection to any reception of evidence from a jury member concerning jury deliberations, that if [sic] “would force the jury room wide open” cannot be sustained; it is logically possible to keep the door firmly shut in all but exceptional circumstances and to open it then only to the extent necessary.[37]
(emphasis added; references omitted)
and Pincus JA said:
The authorities also show that a distinction is generally drawn between inquiries into the course of discussions in the jury room on the one hand, and those into extrinsic matters on the other. …
If one of the jurors were credibly alleged to have conveyed to the others, in the jury room, threats of physical retaliation if they acquitted an accused, it is inconceivable that that could not be gone into by way of inquiry. …
… it may be that if further inquiries were made, it would be confirmed that information which was not in evidence and which could have influenced the verdict of the jury was indeed placed before them. There is in my view power in the court to have such inquires made.[38]
(emphasis added)
[37] Ibid at 204-205.
[38] Ibid at 207, 208-209.
In R v Softley,[39] Doyle CJ (Wicks J agreeing and Debelle J relevantly agreeing) said:
There is a well established principle that a court of appeal will not hear evidence about what has passed between members of a jury in the course of their deliberations, and will not enquire into such matters. However, that has not prevented courts from receiving evidence about events in the jury room that do not, of themselves, disclose the contents of jury deliberations.[40]
(emphasis added)
[39] (1999) 206 LSJS 48.
[40] Ibid at 53-54.
In R v Pan,[41] Arbour J (delivering the judgment of the Supreme Court of Canada) said:
As the English cases show, the rule seeks to preserve the secrecy of the jury’s deliberations, while ensuring that those deliberations remain untainted by contact with information or individuals from outside the jury. As a result, where the evidence establishes that the jury has been exposed to outside information or influences, it will generally be admissible …
Evidence indicating that the jury has been exposed to some information or influence from outside the jury should be admissible for the purpose of considering whether or not there is a reasonable possibility that this information or influence had an effect upon the jury’s verdict. Such evidence should be admissible regardless of whether it is a juror or someone outside the jury who offers the evidence. However, while jurors may testify as to whether or not they were exposed to extrinsic information in the course of their deliberations, the court should not admit evidence as to what effect such information had upon their deliberations. …
… in my view a proper interpretation of the modern version of Lord Mansfield’s rule is as follows: statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors’ minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict.[42]
(emphasis added)
[41] [2001] 2 SCR 344.
[42] Ibid at [55], [59] and [77].
In R v Skaf,[43] Mason P, Woods CJ at CL and Sully J said:
[43] (2004) 60 NSWLR 86.
The exclusionary rule is based on considerations of public policy that should inform decisions as to its scope and application (see generally R v Pan [2001] 2 SCR 344 at 373 [48]-[52]). The exclusionary principle is based on the need to promote full and frank discussion amongst jurors, to ensure the finality of the verdict, to protect jurors from harassment, pressure, censure and reprisals, and (to a degree) to maintain public confidence in juries.
Consistent with this rationale, the rule of preclusion encompasses at least evidence about discussion amongst jurors in their deliberations as well as evidence from jurors as to their individual thought processes referable to the verdict in which they participated (cf Ellis v Deheer [1922] 2 KB 113 at 117-118; R v Mirza (at 218 [41], 942 [41], 226 [76], 950 [76], 233 [99], 956 [99])). A very useful summation is offered by Arbour J in R v Pan (at 386 [77]) …
…
It is equally well established that there is no blanket exclusion of evidence of matters extrinsic to jury deliberations directed, nevertheless, at establishing miscarriage based on jury misconduct or the consideration of material not admitted into evidence (see, for example, R v Emmett (1988) 14 NSWLR 327; R v Mirza (at 234-235 [102]-[107], 957 [102]-[107])).
…
In R v Miah (1997) 2 Cr App R 12 at 18, the English Court of Appeal said that the reasoning in Ellis v Deheer must extend to everything said by one juror to another about the case from the moment the jury is empanelled, at least provided what is said is not overheard by anyone who is not a juror. The court cited R v Brown (1907) 7 SR (NSW) 290. In our view, this overstates the position.
…
We agree that “deliberations” may take place outside the jury box or jury room and that they may occur when less than the whole number of jurors are present. For example, deliberations are not interrupted because a juror goes to the toilet. There will be matters of degree and the line may not always be easy to draw. But there is no authority that we know of that suggests every discussion that takes place between a juror and a third party or between a handful of jurors represents deliberations whose nature cannot be examined because evidence will not be received from a juror or third party about what took place. The policies informing the preclusive rule must always be kept in mind.
…
… the issue must be considered substantively, not formally; and by reference to the policies that inform the rule of preclusion. In R v Young, the nub of the reasoning was that the evidence related to events that occurred at a time when the jury were sent to the hotel to give them a break from their deliberations (see at 331-332). Conversely, there will be situations where evidence of things that happen in the jury room is evidence of matters extrinsic to the jury's deliberations (see R v Emmett at (333-334)).[44]
(emphasis added)
[44] Ibid at [211]-[212], [214], [222], [224] and [228].
Analysis of the communication
In the present case, if the affidavits of the Jurors are admissible, they demonstrate that there was a communication to Juror X, which in turn was conveyed to all members of the jury, that, during the voir dire hearing from which the jury had been excluded, it was disclosed that Ms Wilton had 12 prior convictions.
That communication is properly characterised as not forming part of the jury deliberations as to the guilt or innocence of Ms Wilton. It comprised unequivocally extraneous influence on the jury. The very reason the jury was excluded from the voir dire in the first place was because evidence of an accused’s prior convictions is ordinarily not admissible and is not to be known or taken into account by the jury in assessing guilt or innocence. It follows that the communication was improper and an irregularity.
Accordingly, the evidence of Jurors A, B and C was admissible and is not required to be excluded by the common law exclusionary principle concerning jury deliberations. As the Director raised no other objection to the admission of the affidavits, and conceded that the evidence contained therein was reliable, the affidavits should to be admitted.
The affidavits of the Jurors establish the occurrence of an irregularity and a miscarriage of justice. The verdicts of guilty ought to be set aside unless this Court can be satisfied that the irregularity could have had no effect upon the verdicts.
The common law recognises that evidence of prior convictions of the defendant can be highly prejudicial. There is a real risk that a jury will adopt propensity reasoning which is regarded by the law as illegitimate, namely that a person with previous convictions has bad character and thereby is likely or more likely to have committed the offence charged. Given those risks, it is impossible for this Court to be satisfied that, absent disclosure of Ms Wilton’s prior convictions, the same verdict would have been returned. The Director concedes this point.
Conclusion
The appeal should be allowed. Ms Wilton’s convictions should be set aside and the matter remitted to the District Court for a new trial.