R v Wilton

Case [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        

  1. SULAN J: I would allow the appeal.  I agree with the reasons of Blue J and the orders that he proposes.

  2. KELLY J:             I…

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AGLC
R v Wilton [2013] SASCFC 60
Case
[2013] SASCFC 60
Decision Date

CaseChat Overview and Summary

The appeal concerned Ms Wilton, who was convicted of criminal offences. The central dispute revolved around the admissibility of evidence concerning communications between jurors, specifically regarding information about Ms Wilton's prior convictions that had not been presented during the trial. The matter was heard by the Full Court of the Supreme Court of South Australia, comprising Sulan, Kelly, and Blue JJ.

The court was required to determine whether evidence of communications between jurors was admissible, particularly when those communications involved information about the defendant's prior convictions that had not been admitted into evidence during the trial. A key legal issue was whether such information constituted an improper extraneous influence on the jury's deliberations and, if so, whether its disclosure to the jury rendered the verdict unsafe and thus grounds for appeal.

Blue J, with whom Sulan and Kelly JJ agreed, held that evidence of communications between jurors is not automatically inadmissible. Such evidence is admissible if the communication can be characterised as extraneous to the jury's deliberations. In this instance, the affidavits from the jurors were deemed admissible because the conversations detailed within them were not part of the jury's deliberative process. The court found that information about Ms Wilton's prior convictions, which had not been formally admitted as evidence, constituted an improper extraneous influence. Consequently, a miscarriage of justice occurred due to this improper influence.

The court allowed the appeal, set aside the conviction, and remitted the matter for a retrial. This outcome was based on the inability of the court to be satisfied that the same verdict would have been returned had the jury not been exposed to the improper extraneous influence of Ms Wilton's prior convictions.

Orders

Orders of the court

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]).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.