Shrivastava v The State of Western Australia [No 2] - [2011] WASCA 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SHRIVASTAVA -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2011] WASCA 8

CORAM: McLURE P
PULLIN JA
BUSS JA

HEARD: 29 NOVEMBER 2010

DELIVERED : 14 JANUARY 2011

FILE NO/S: CACR 10 of 2010

BETWEEN: AVINASH CHANDRA SHRIVASTAVA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :IND 1097 of 2009

Catchwords:

Criminal law - Jury deliberations - Whether evidence of what was said during jury deliberations is admissible

Legislation:

Evidence Act 1906 (WA), s 79C
Juries Act 1957 (WA), s 56A, s 56B, s 56C, s 56D, s 56E

Result:

Leave granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr J A Scholz

Solicitors:

Appellant: Pynt & Partners
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Burrell v The Queen [2007] NSWCCA 65; (2007) 190 A Crim R 148
Ellis v Deheer [1922] 2 KB 113
Jackson v Williamson (1788) 100 ER 153; (1788) 2 TR 281
Minarowska v The Queen (1995) 83 A Crim R 78
Nanan v The State [1986] AC 860
R v Brandon (1969) 53 Cr App R 466
R v Emmett (1988) 14 NSWLR 327
R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431
R v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11
R v Medici (1995) 79 A Crim R 582
R v Minarowska (1995) 83 A Crim R 78
R v Mirza [2004] 2 WLR 201
R v Norton‑Bennett [1990] 1 NZLR 559
R v Pan [2001] SCC 42; [2001] 2 SCR 344
R v Papadopoulos [1979] 1 NZLR 621
R v Potier [2005] NSWCCA 336
R v Rinaldi (1993) 30 NSWLR 605
R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86
R v Woodfall (1770) 98 ER 398; (1770) 5 Burr 2661
R v Young [1995] QB 324
R v Zampaglione (1981) 6 A Crim R 287
Re Portillo [1997] 2 VR 723
Tan Seng Kiah v The Queen [1999] NTSCCA 64; (1999) 150 FLR 470
Tuia v The Queen [1994] 3 NZLR 553
Vaise v Delaval (1785) 99 ER 944; (1785) 1 TR 11

McLURE P: I have had the advantage of reading the judgment of Pullin JA. I agree with him for the reasons he gives that the appeal should be dismissed.
The email purports to record what juror X said to other members of the jury about the appellant (the information) in the course of their deliberations on the verdicts in the appellant's trial. The relevant statements in the email are (1) that during the trial juror X received from his/her mother the information (the first statement); and (2) that juror X conveyed to the jury the information supplied by the mother. The appellant sought to tender the email in evidence in the appeal to prove the truth of the statements made therein. I agree that the email from the juror is within the common law rule prohibiting the admission of evidence of statements made between jurors in the course of their deliberations and for that reason alone is inadmissible. Statements made between jurors in the course of their deliberations are within the exclusionary rule even if the content thereof relates to material extraneous to the trial. That is sufficient to dispose of the appeal.
I also agree with Pullin JA that the email from the juror cannot provide the factual foundation for the making of court orders facilitating an investigation into whether or not there is admissible evidence of events extrinsic to the deliberative process that had given rise to a material irregularity. The common law exclusionary rule is not confined to admissibility of evidence: Minarowska v The Queen (1995) 83 A Crim R 78. Gleeson CJ said:
[T]he common law principles designed to maintain the secrecy of jury deliberations … limit the scope for challenging a verdict on the basis of a complaint as to the way in which the jury went about performing their task. This limitation relates both to facts that may or may not be proved, and to evidence that may or may not be adduced. Because the underlying policy aims to preserve the secrecy of jury deliberations, and to maintain the integrity and finality of a formally expressed verdict, the distinction between what may and what may not be proved, and what may and may not be challenged, is not drawn by reference to the degree of seriousness or potential injustice of what might have occurred. It is primarily drawn by reference to the outer limits of the veil of secrecy which is drawn over the jurors deliberations (86 ‑ 87).
The only statement in the email which could potentially be the subject of admissible evidence is the hearsay statement allegedly made by juror X in the course of jury deliberations concerning information received from his or her mother. That statement also falls within the common law exclusion. That is, there is no exception to the exclusionary

rule which permits statements made between jurors in the course of deliberative discussions to be relied on for the purpose of justifying an investigation into whether or not there is admissible evidence from juror X and/or the mother to support the claim that juror X had received extrinsic material about the appellant. Such a limited exception would result in incoherent outcomes. The necessary first step in any court facilitated investigation would be evidence on oath from the email juror confirming that juror X made the first statement. If such proof was forthcoming, the second step would be to obtain evidence from juror X and his/her mother. They could give admissible evidence about relevant discussions (if any) between them. However, evidence could not be adduced about what, if anything, juror X had said to the other members of the jury or whether or not the information had any impact on juror X's verdict.

As explained by Pullin JA, there are sound reasons of public policy for the exclusionary rule. The clear weight of current authority in Australia is that there is no residuary discretion to allow evidence of jury deliberations even where there are sufficiently compelling reasons to do so. Even if that is subsequently held not to be the common law of Australia, the residuary discretion would not be enlivened in this case. In my assessment, there is insufficient prejudicial potential in the extrinsic material in this case to take it outside the compelling policy basis for the secrecy rule.
PULLIN JA: The appellant appeals against convictions recorded on 17 December 2009 after a trial in the District Court before Schoombee DCJ and a jury.
The indictment read:
(1) On a date unknown between 24 July 2001 and 23 November 2002 at West Perth Avinash Chandra Shrivastava sexually penetrated RMB, a child under the age of 13 years, by penetrating her vagina with his finger.
(2)On a date unknown between 24 February 2002 and 14 September

2002 at the same place as in Count (1) Avinash Chandra

Shrivastava sexually penetrated EHB, a child under the age of

13 years, by penetrating her vagina with his finger.
(3)On a date unknown between 17 August 2003 and 8 November 2003 at West Leederville Avinash Chandra Shrivastava indecently dealt with SMA, a child of or over the age of 13 years and under the age of 16 years, by touching her breast with his hand.

(4)On a date unknown in the month of October 2004 at the same place as in Count (3) Avinash Chandra Shrivastava unlawfully and indecently assaulted KLA by touching her breast with his hand.
(5)On a date unknown between 20 January 2005 and 21 May 2005 at the same place as in Count (3) Avinash Chandra Shrivastava unlawfully and indecently assaulted KLA by touching her breast with his hand.
(6)On a date unknown between 5 May 2005 and 10 September 2005 at the same place as in Count (3) Avinash Chandra Shrivastava sexually penetrated KLA without her consent, by penetrating her vagina with his fingers.
(7)On another date unknown between 5 May 2005 and 10 September 2005 at the same place as in Count (3) Avinash Chandra Shrivastava sexually penetrated KLA without her consent, by penetrating her vagina with his fingers.
(8)On the 25th day of November 2005 at the same place as in Count (3) Avinash Chandra Shrivastava unlawfully and indecently assaulted KLA by touching her breast with his hand.
(9)On the 27th day of January 2006 at the same place as in Count (3) Avinash Chandra Shrivastava unlawfully and indecently assaulted

KLA by touching her breast with his hand.

The jury returned verdicts of not guilty on counts 1 and 2 and verdicts of guilty on counts 3 to 9. As to counts 3, 4, 5, 8 and 9, the evidence led by the prosecution supported the charges which all occurred during treatment of the complainants in the appellant's rooms.
The appellant gave evidence. At the beginning of his testimony, the appellant stated that he was 63 years old, that he was married in 1971 or 1972 and that his wife was in court and that he had two children. He also stated that he was born in India and migrated to Australia in 1977 and that he was an Australian citizen. He confirmed that he treated the complainants. He denied committing any unlawful acts against any of the complainants. He called other witnesses in his defence. The jury returned its verdicts on 17 December 2009. The appellant was subsequently sentenced by the trial judge on 21 December 2009.
On 22 December 2009, the associate to the trial judge wrote a letter to counsel for the appellant appearing at trial. Attached to the associate's letter was an email that a juror had sent to the associate the day after the verdict was given and conviction recorded. The juror's email read:
Dear Judge Schoombee
I am writing to advise of a matter which occurred during the jury deliberation for the case presided over by you being 1097/2009 State of Western Australia -v- Avinash SHRIVASTAVA
I am writing this as best I am able whilst remaining in compliance with my duty not to disclose matters of jury deliberation.
In the latter period of deliberation yesterday a member of the jury asked the jury if their decisions would be affected by knowledge of matters related to Mr Shrivastava's marriage. The jury member advised she had had a discussion with her mother during the course of the trial where her mother who I think worked in a hospital had knowledge of Mr Shrivastava. The jury member told the jury that Mr Shrivastava had divorced his wife in the Supreme Court as well as associated matters of the difference in education and social status of Mr Shrivastava and his wife. Later, after we had finalised the verdicts, but before they were delivered to the court, she spoke of gossip associated with Mr Shrivastava relating to his interest in other women.
I raise this matter only because it seemed extraordinary and I thought it should be put to Your Honour for consideration.
I will not speak of this matter again unless requested to by yourself or another relevant official. I will also delete this email after it has been sent.
If there is a need to contact me please ring (number deleted).
Yours sincerely
Juror (number deleted)
The juror's telephone number and jury number were deleted by direction of the trial judge. This juror will be referred to in these reasons as the 'Email juror'. The unidentified female juror referred to in the email will be referred to as 'Juror X'.
The appellant instructed his solicitors that the statements allegedly made by Juror X that the appellant had divorced his wife and that he had been divorced were false.
The grounds of appeal read:
1.The trial of the appellant miscarried as a result of some or all of the jurors being told information by another juror during the course of their final deliberations that was not the subject of evidence in the trial and was, in any event, inadmissible, irrelevant, false and prejudicial to the appellant's case.
Particulars
a)False information that the appellant had divorced his wife.
b)False information that there was a difference in the social and educational status of the appellant and his wife.
c)False information regarding the appellant's interest in other women.
In an affidavit sworn on 29 April 2010, Ms C C Paterson, a solicitor employed by Pynt & Partners, solicitors for the appellant, explained the steps which were then taken upon receiving a copy of the email from the associate to the trial judge:
(a)On 6 January 2010, Ms Paterson met with the appellant and his instructions were obtained about the email.
(b)On 22 January 2010, an appeal notice was filed.
(c)On 8 February 2010, Pynt & Partners wrote to the Sheriff's office asking the Sheriff to conduct an investigation into the juror's email.
(d)By letter dated 10 February 2010, the Sheriff advised that he had received Pynt & Partners' letter of 8 February 2010 but that as there did not appear to be any legislative authority for him to interview jurors, and because the issues involved 'protected information', he intended seeking advice from the State Solicitor's Office.
(e)By letter dated 31 March 2010, the Sheriff wrote to Pynt & Partners advising that he had received advice from the State Solicitor's Office that he was not authorised or otherwise empowered to investigate jury deliberations after the completion of a trial and that he did not propose to do so.
On 12 May 2010, the appellant filed an application in this court seeking orders that:
(a)the Registrar of the District Court deliver to the Court of Appeal the letter from the associate to the trial judge dated 22 December 2009 and the attached email in its unedited form and that the unedited email be admitted into evidence on the appeal;
(b)the letter and email be admitted into evidence on the appeal;
(c)the Sheriff deliver to the Court of Appeal a list of the names, addresses and juror numbers of the jurors; and
(d)the lawyers for the appellant be permitted to issue witness summonses to jurors returnable in this court 'for the purposes of ascertaining whether they sent the email' to the associate and 'whether they were aware of the information contained' in the email.
It appears that on Friday 14 May, there were further events involving lawyers for both parties. These events were described by Mazza J on 18 May 2010 when his Honour was dealing with the appellant's application dated 12 May 2010. His Honour said:
Counsel, I want to make comments for the future conduct of this appeal, if I can, but before I do can I just raise what happened I think on Friday of last week? As I understand it - just correct me if I have this wrong because it was a little unclear to me precisely what had happened - you, Mr Perrella, and Mr Levy went to the District Court registry.
PERRELLA, MR: That's correct, your Honour.
MAZZA J: Spoke to one of the counter clerks there and eventually got a direction from the principal registrar in which you were given a copy of the email sent to the learned trial judge.
PERELLA, MR: Edited.
MAZZA J: Edited but showing the juror number.
PERRELLA, MR: Correct.
MAZZA J: You then went to the sheriff's office and asked the sheriff to look at the jury lists for the relevant week to see if that juror number corresponded with a juror who was on Mr Shrivastava's file.
PERRELLA, MR: Correct.
MAZZA J: The information that you then got was that there was a correspondence in the numbers.
PERRELLA, MR: Yes.
MAZZA J: So that meant that you are both satisfied that the email came from a juror.
PERRELLA, MR: I can say that the - ‑ ‑
MAZZA J: Is that the state's position?
PERRELLA, MR: Yes; yes.
MAZZA J: Mr Merrick, that's your position, is it, on behalf of the appellant?
MERRICK, MR: Yes, as I understand it. (Ts 41 ‑ 42)
On 18 May 2010, Mazza J heard the appellant's application which had been filed on 12 May 2010. As revealed by the interchange in the transcript, counsel for both parties were agreed that the email came from a jury member. It may be inferred that the appellant did not then press for an order that the Sheriff deliver the list of names, addresses and jury numbers or press for witness summonses to jurors because, as mentioned above, those orders were proposed for the purposes of 'ascertaining whether' a member of the jury 'sent the email to' the associate to the trial judge. As a result, the only order relevant to this appeal made by Mazza J was that:
The appellant have leave to adduce the e‑mail sent to Judge Schoombee as additional evidence at the hearing of the appeal.
This was not an order that determined the admissibility of the email. The order was that it could be 'adduced', ie produced, at the hearing of the appeal. Mazza J said before making the order that the original email had now reached this court and that if it were called on '[u]ltimately it would be ... a matter for the Court of Appeal as to how that document is dealt with' (ts 43).
The appeal was listed before this court on 12 November 2010. In a letter dated 27 October 2010, an associate of this court advised the parties that the court desired written submissions as to the admissibility of the email and, if admissible, what facts were established relevant to the determination of the appeal.
Written submissions were filed. In a letter dated 11 November 2010, the appellant foreshadowed a proposal to tender the email relying on s 79C of the Evidence Act 1906 (WA). On 12 November 2010, the court convened for the purpose of giving directions. The court ordered the parties to make further submissions concerning the appellant's contention that the email was admissible pursuant to s 79C of the Evidence Act and adjourned until 29 November 2010.
On 29 November 2010, the court heard the appeal and the appellant's submission that the email was admissible pursuant to s 79C of the Evidence Act.

The appellant's application to tender the email pursuant to s 79C

The appellant sought to tender the email pursuant to s 79C to prove what Juror X said to the Email juror in the jury room before the verdicts were delivered. Section 79C(1) states that 'where direct oral evidence of a fact … would be admissible, any statement in a document and tending to establish the fact … shall, on production of the document, be admissible as evidence of that fact'. Section 79C(2) provides that a person making a statement in a document to be tendered must be called as a witness unless certain conditions can be satisfied. The appellant wished to rely on two of the conditions, namely that all reasonable efforts had been made to identify or find the author of the email without success (s 79C(2)(d)) and that having regard to the circumstances of the case, undue delay, inconvenience or expense would be caused by calling that person as a witness (s 79C(2)(g)). However, the first question is whether evidence of the fact, ie that Juror X made the statements attributed to her by the Email juror, could be the subject of 'direct oral evidence' from the Email juror.
There is nothing in the Evidence Act which provides an answer to the question. The question requires consideration to be given to a common law rule concerning the admissibility of such evidence.

The common law rule

The common law has long had a rule that evidence of what was discussed between the jurors in the course of their deliberations is inadmissible. It is a rule recognised in Australia, New Zealand, Canada and the United Kingdom: R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 [212]; Minarowska v The Queen (1995) 83 A Crim R 78, 84 (Gleeson CJ, James & Ireland JJ agreeing); R v Zampaglione (1981) 6 A Crim R 287, 298; RePortillo [1997] 2 VR 723, 726. See also Tuia v The Queen [1994] 3 NZLR 553, 555; R v Papadopoulos [1979] 1 NZLR 621, 626; R v Mirza [2004] 2 WLR 201 [11], [41], [61], [142], [159]. Lord Steyn, in his dissenting speech in Mirza [11], collected together many authorities which refer to the general rule. See also the many cases cited by Lord Hope at [95] ‑ [107]. Other cases are cited in J D Heydon, Cross on Evidence (2010) [27,215]. It is a rule recognised not only in common law countries but also in the European Court of Human Rights: Mirza [108]. References to the rule can be seen as early as the late 1700s in England: see R v Woodfall (1770) 98 ER 398; (1770) 5 Burr 2661 (Lord Mansfield); Vaise v Delaval (1785) 99 ER 944; (1785) 1 TR 11; Jackson v Williamson (1788) 100 ER 153; (1788) 2 TR 281.

Rationale for the rule

One of the reasons for the common law rule is that, apart from appeal rights, verdicts of a jury should be final: Minarowska (84) (Gleeson CJ); Mirza [159] (Lord Rodger); Nanan v The State [1986] AC 860, 871; Ellis v Deheer [1922] 2 KB 113, 121 (Atkin LJ). Another reason for the rule is to protect persons serving on the jury and to prevent them from being exposed to pressure to explain the reasons which actuated them in arriving at their verdict: Minarowska (84) (Gleeson CJ); Zampaglione (298); Mirza [99] (Lord Hope); Tuia (555); It was expressed this way in R v Rinaldi (1993) 30 NSWLR 605, 612 ‑ 613:
What has to be made clear, and which we here seek to emphasise, is the necessity for not only ensuring the finality of jury verdicts, but also the need to ensure that jurors or former jurors are not subjected to pressure, harassment or otherwise, either in relation to their deliberations in reaching a verdict, or, in relation to the verdict itself.
The need to ensure that a juror or former juror's privacy and anonymity are respected, is self evident. Further, a juror's performance of the civic duty of service ought not to be accompanied by fear, apprehension, or concern for actual or potential embarrassment.
The Court has a duty to see that the sanctity of the jury room is not invaded and also, to ensure that an attempt by anyone to breach a juror's confidentiality is to be rejected. Public confidence in the jury system demands nothing less.

Juries Act 1957

The provisions of pt IXA of the Juries Act 1957 (WA) prevent publication of protected information. 'Protected information' is defined to mean:
(a)statements made, opinions expressed, arguments advanced or votes cast by member of a jury in the course of their deliberations, other than anything said or done in open court; or
(b)information that identifies, or is likely to identify, a person as, or as having been, a juror in particular proceedings.
The prohibition is on 'publication', which has a defined meaning. 'Publish' is defined in s 56A(1) as follows:
[P]ublish in relation to protected information, means communicate or disseminate the information in such a way or to such an extent that is available to, or likely to come to the notice of, the public or a section of the public.
Section 56B(1) provides that a person who discloses protected information commits an offence 'if the person is aware that, in consequence of the disclosure, the information will, or is likely to, be published'.
Section 56C(1) provides that a person who solicits or obtains protected information 'with the intention of publishing or facilitating the publication of that information commits an offence.'
Section 56D(1) provides that a person who publishes protected information commits an offence. Section 9 of the Interpretation Act 1994 (WA) states that where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings. Thus, the words 'published', 'publishing' and 'publication' are defined, with appropriate amendments, by the definition of 'publish' in s 56A(1).
The provisions of the Juries Act are a partial reflection of the policy referred to in Rinaldi. There are provisions entirely or partially reflecting the policy in all Australian States and Territories except for South Australia. See Jury Act 1995 (Qld), Juries Act 2000 (Vic), Juries Act 2003 (Tas), Juries Act 1927 (SA), Juries Act (NT) and Juries Act 1967 (ACT). In New South Wales, the Jury Act 1977 contains statutory provisions more fully encompassing the policy concerning the protection of juror privacy referred to in Rinaldi. For example, s 68A(1) makes it an offence for any person to solicit information from a juror about the deliberations of a jury.
The common law rule prohibiting the admission of evidence about jury deliberation is one manifestation of the policy referred to in Rinaldi, the provisions of the Juries Act 1957 are another.However, the provisions of the Juries Act 1957 do not bear on the issue of admissibility of the email.

The email may not be tendered under s 79C

The common law rule of evidence renders inadmissible evidence of what was said by Juror X to the Email juror during deliberations in the jury room. 'Direct oral evidence' of what Juror X said in the jury room to the Email juror could not therefore be given. For that reason, the email cannot be tendered into evidence under s 79C of the Evidence Act, even if the Email juror were called as a witness.
The prohibition against the admission of evidence from jurors about what was said in the jury room cannot be circumvented by tendering hearsay evidence about what a juror allegedly said during the jury's deliberations: Minarowska (84) ‑ (85) (Gleeson CJ); Mirza [118] (Lord Hope).

Extrinsic material

Having stated the rule of evidence which makes inadmissible evidence of what was said by jurors to each other during deliberations in the jury room, it is necessary, because of submissions made by the appellant, to refer to a distinctly different potential basis for an appellant to attack the verdict of a jury. This is because of the appellant's submission that there was prejudice and therefore a miscarriage of justice because of what Juror X's mother said to Juror X outside the courtroom and a miscarriage of justice because Juror X disobeyed instructions from the trial judge not to discuss the case with non‑jurors.
As to that submission, it is a matter of mere speculation as to whether there was a miscarriage of justice due to Juror X disobeying the trial judge's instructions. For example, Juror X may not have discussed the details of the case in disregard of the trial judge's direction at all. Instead, Juror X's mother, knowing that Juror X was a juror on the trial involving the appellant, may have proffered the information without any prompting from Juror X. It is obvious from this that at the moment it is a matter of speculation to claim that there was a miscarriage of justice on the basis of Juror X disobeying the trial judge's instructions. Further, even if the appellant could obtain evidence of what was said by Juror X's mother, it is debateable whether there was any prejudice to the appellant. It is not prejudicial to say that a person has been divorced at some time in the past and it is not at all clear why a comment about the social standing of the appellant in relation to the appellant's wife would be prejudicial. It would be a matter of debate whether it is prejudicial to say of a professional man charged with sexually interfering with these young patients, that he is 'interested in other women'.
However, for the purpose of proceeding further with these reasons, the assumption will be made that the appellant wishes to prove by fresh evidence that Juror X disobeyed the trial judge's instructions and that there was something prejudicial said by Juror X's mother to Juror X.
Evidence may be led about events extrinsic to the deliberation process which shows that the verdict may have been tainted: Minarowska (85) (Gleeson CJ); Skaf [214]; Portillo (726); Tuia (556) and R v Pan [2001] SCC 42; [2001] 2 SCR 344 [77]. This is sometimes referred to as an exception to the common law rule. But it is not an exception at all. The common law rule makes inadmissible evidence about deliberation between jurors; but evidence establishing that prejudicial events extrinsic to the process of deliberation occurred is admissible and is not affected by the common law rule. Evidence of extrinsic events will be admissible providing that it can be proved without proving what was said by one juror to another during deliberations. Evidence about such extrinsic events does not involve any examination about what was discussed in the jury's deliberations. For example, evidence proving that a bailiff made remarks to jurors indicating that the accused had previous convictions is admissible extrinsic material which may be received on appeal: R v Brandon (1969) 53 Cr App R 466. Other examples were given by Gleeson CJ in Minarowska (85); namely evidence that inadmissible and prejudicial material was sent into the jury room, or evidence that a Sheriff's officer expressed a view to jurors that the accused was guilty, or evidence that a juror was drunk or could not speak English. Another example is R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431, where there was an appeal against a conviction for murder and affidavits from jurors were presented to the Court of Appeal disclosing that several jurors had performed internet searches outside the jury room and ascertained that the appellant had been accused of murdering his second wife and that the trial was a retrial in respect of a charge of the murder of his first wife. This evidence did not concern what was discussed or said by jurors to each other in the jury room, but merely identified the fact that extraneous material had been gathered by jurors outside the jury room.

The appellant's attempt to establish an irregularity outside the jury room

There is no ground of appeal asserting that Juror X's mother spoke to Juror X outside the jury room. The present ground alleges a miscarriage because of what was said inside the jury room. However, as already mentioned, counsel for the appellant suggested that the appellant also wished to assert a miscarriage because of what Juror X was told by her mother outside the jury room and because from that it might be inferred that Juror X disobeyed the trial judge's direction. No application was made to amend the grounds of appeal and no application could properly be made unless there was some admissible evidence to support such a ground.
The appellant did not spell this out but it seems likely that the appellant wishes to attempt to gain that evidence by a series of steps. First, the appellant will seek to obtain advice from the Email juror as to

the identity of Juror X. Then, having obtained that information, it may be inferred that the appellant proposes obtaining the address of Juror X from the jury list. Thirdly, it may be inferred that the appellant then proposes asking Juror X (or asking the court to direct the Sheriff to ask Juror X) whether Juror X will agree that she did make the alleged statements to the Email juror in the jury room. If so, the appellant will ask Juror X whether her mother did make the alleged statements to Juror X. If the answer is yes, then, it may be inferred that the appellant will then say he has evidence of extrinsic material being given to Juror X outside the courtroom. Finally, it may be assumed that the appellant would then apply to amend the appeal grounds to allege a miscarriage of justice on the basis of that extrinsic evidence.

The problem for the appellant is that he can only gain the evidence to support such a ground by a breach of jury room confidentiality and by speculating about what Juror X might say. That proposed course of action cannot be countenanced. It asks the court to allow a breach of juror confidentiality. It raises the potential for disputation between Juror X and the Email juror about what was said inside the jury room which could not be resolved.
The appellant may claim this result is unfair because, if Juror X had come forward to the appellant's solicitors and confessed that she had gained information from her mother about the appellant outside the court, this might have provided a foundation for a ground of appeal asserting prejudicial extrinsic material reaching a juror and without breaching jury room confidentiality. That is what happened in R v K when jurors' affidavits were filed, confessing that they had carried out internet searches outside the courtroom. But there is no unfairness. The appellant has merely encountered a rule of evidence. In many circumstances, a party to litigation may have evidence of a fact in an inadmissible form and which remains unproved because of an inability to obtain the evidence in admissible form. This happens every time that hearsay evidence of a fact is excluded during a trial. Hearsay evidence may be relevant but it is not admissible. Parties face this type of problem in the courts on a daily basis. The evidence the appellant seeks to give about what was said by Juror X may be relevant but it is not admissible.
I would grant leave to appeal but the appeal should be dismissed.
BUSS JA: The appellant was tried in the District Court before Schoombee DCJ and a jury on nine counts in an indictment which alleged:

(1) On a date unknown between 24 July 2001 and 23 November 2002 at West Perth [the appellant] sexually penetrated RMB, a child under the age of 13 years, by penetrating her vagina with his finger.
(2)On a date unknown between 24 February 2002 and 14 September 2002 at the same place as in Count (1) [the appellant] sexually penetrated EHB, a child under the age of 13 years, by penetrating her vagina with his finger.
(3)On a date unknown between 17 August 2003 and 8 November 2003 at West Leederville [the appellant] indecently dealt with SMA, a child of or over the age of 13 years and under the age of 16 years, by touching her breast with his hand.
(4)On a date unknown in the month of October 2004 at the same place as in Count (3) [the appellant] unlawfully and indecently assaulted KLA by touching her breast with his hand.
(5)On a date unknown between 20 January 2005 and 21 May 2005 at the same place as in Count (3) [the appellant] unlawfully and indecently assaulted KLA by touching her breast with his hand.
(6)On a date unknown between 5 May 2005 and 10 September 2005 at the same place as in Count (3) [the appellant] sexually penetrated KLA without her consent, by penetrating her vagina with his fingers.
(7)On another date unknown between 5 May 2005 and 10 September 2005 at the same place as in Count (3) [the appellant] sexually penetrated KLA without her consent, by penetrating her vagina with his fingers.
(8)On the 25th day of November 2005 at the same place as in Count (3) [the appellant] unlawfully and indecently assaulted KLA by touching her breast with his hand.
(9)On the 27th day of January 2006 at the same place as in Count (3) [the appellant] unlawfully and indecently assaulted KLA by touching her breast with his hand.

The jury convicted the appellant on counts 3 to 9 and acquitted him on counts 1 and 2. The verdicts were unanimous.
The background facts and circumstances are set out in the reasons for decision of Pullin JA, with whom McLure P has expressed agreement. I will not repeat the relevant facts and circumstances except to the extent necessary to explain my reasons.
At all material times, the appellant practised as an occupational therapist. He specialised in the treatment of pain and stress management. His treatment included acupuncture and laser therapy. The complainants referred to in the indictment, namely RMB, EHB, SMA and KLA, were the appellant's patients, and the offences were alleged to have occurred in the course of treatment provided by him.
The appellant was born on 19 March 1946. During the period of the offending he was aged between 55 and 59. The complainant in relation to count 3, SMA, was 14 when her treatment occurred and 20 at the time of the trial. The complainant in relation to counts 4 to 9, KLA, was aged between 20 and 22 when her various treatments occurred and 26 at the time of the trial.
The appellant gave sworn evidence. He said he was married in 1971 or 1972 and that his wife was in court. They had two children. The appellant confirmed that he had treated the complainants, but he denied having committed any of the alleged offences. His counsel called some other witnesses.
The appellant appeals against his conviction on counts 3 to 9.

The email from the juror to the trial judge

On 17 December 2009, the jury returned their verdicts and the trial judge recorded convictions on counts 3 to 9. On 21 December 2009, her Honour sentenced the appellant.
On 18 December 2009 (that is, the day after the jury returned their verdicts and the trial judge recorded convictions on counts 3 to 9), one of the jurors (the email juror) sent an email to her Honour, as follows:
Dear Judge Schoombee
I am writing to advise of a matter which occurred during the jury deliberation for the case presided over by you being 1097/2009 State of Western Australia -v- Avinash SHRIVASTAVA
I am writing this as best I am able whilst remaining in compliance with my duty not to disclose matters of jury deliberation.
In the latter period of deliberation yesterday a member of the jury asked the jury if their decisions would be affected by knowledge of matters related to Mr Shrivastava's marriage. The jury member advised she had had a discussion with her mother during the course of the trial where her mother who I think worked in a hospital had knowledge of Mr Shrivastava. The jury member told the jury that Mr Shrivastava had divorced his wife in the Supreme Court as well as associated matters of the difference in education and social status of Mr Shrivastava and his wife. Later, after we had finalised the verdicts, but before they were delivered to the court, she spoke of gossip associated with Mr Shrivastava relating to his interest in other women.
I raise this matter only because it seemed extraordinary and I thought it should be put to Your Honour for consideration.
I will not speak of this matter again unless requested to by yourself or another relevant official. I will also delete this email after it has been sent.
If there is a need to contact me please ring (number deleted).
Yours sincerely
Juror (number deleted).
On 22 December 2009, the trial judge's associate sent a copy of the email to the appellant's trial counsel and the Office of the Director of Public Prosecutions (WA).

The ground of appeal

The sole ground of appeal reads:
The trial of the appellant miscarried as a result of some or all of the jurors being told information by another juror during the course of their final deliberations that was not the subject of evidence in the trial and was, in any event, inadmissible, irrelevant, false and prejudicial to the appellant's case.
Particulars
a)False information that the appellant had divorced his wife.
b)False information that there was a difference in the social and educational status of the appellant and his wife.
c)False information regarding the appellant's interest in other women.
The ground of appeal is based solely upon the assertions made by the email juror in the email sent to the trial judge.
I will assume, for the purposes of the appeal, that the information specified in the particulars to the ground of appeal was false.
On 10 May 2010, Mazza J referred the appellant's application for leave to appeal to the hearing of the appeal.

The State's position in relation to the email

The State accepted that the email was authentic in that it was sent by a person, the email juror, who was a juror at the trial, but the State did not accept the truth of the assertions contained in it.
Counsel for the State objected, on two grounds, to this court receiving the email in evidence. First, the email included information about discussions among jurors in the course of their deliberations. Secondly, the email included hearsay assertions.
Counsel conceded that it was appropriate for this court to receive the email, on a provisional basis, for the purpose of determining the question of admissibility. This is consistent with the approach adopted in R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 [51] and R v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11 [121].
I agree with Pullin JA, for the reasons he gives, that Mazza J, at a directions hearing on 18 May 2010, did not determine the admissibility of the email as additional evidence in the appeal.

The secrecy of a jury's deliberations

It is a well‑established common law principle that a court will not receive evidence from a former juror as to discussions between jurors in the course of their deliberations, the reasons for the jury's verdict or the individual thought processes of a juror referable to the verdict. See R v Zampaglione (1981) 6 A Crim R 287, 298; R v Rinaldi (1993) 30 NSWLR 605, 610 ‑ 611; R vMinarowska (1995) 83 A Crim R 78, 84 ‑ 85; R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 [210] ‑ [212]; R v Potier [2005] NSWCCA 336 [12].
The principle is based on a number of public policy considerations: promoting free and frank discussions among jurors; ensuring that no juror should be deterred from expressing his or her independent opinion; protecting the privacy of jurors including protecting them from harassment and victimisation; ensuring the finality of the jury's verdict; and maintaining public confidence in the jury system. See R v Papadopoulos [1979] 1 NZLR 621, 626; Skaf [211]; Potier [12]. Decisions as to the scope and application of the principle are informed by these public policy considerations. See Skaf [211].
It is not possible to circumvent the principle by tendering hearsay evidence; that is, evidence of what a juror has told a third party about the jury's deliberations. See Minarowska (84 ‑ 85).
The better view is that the principle is not confined to discussions in the course of deliberations in the jury box or jury room, but extends to any process or interaction that may properly be characterised as deliberations by the jury. See Re Portillo [1997] 2 VR 723, 726, where Callaway JA (Southwell & Coldrey AJJA agreeing) said that references in the case law to the jury box or jury room are to be explained on the basis that most or all deliberations by the jury as a whole take place in those locations. See also Skaf [227], where Mason P, Wood CJ at CL and Sully J agreed with Callaway JA's observations. Earlier in their reasons in Skaf, their Honours noted that deliberations may occur, whether inside or outside the jury box or jury room, when less than the whole number of jurors is present [224].
The principle as to non‑disclosure does not, however, prevent the receipt by a court of evidence from a former juror on issues or matters extrinsic to the jury's deliberations. See R v Medici (1995) 79 A Crim R 582, 590; R v Young [1995] QB 324, 331; Minarowska (85); Portillo (726). The court may receive this evidence even though the issues or matters involve conduct which occurred in the jury room. See R v Emmett (1988) 14 NSWLR 327, 334 ‑ 335; Portillo (726).
A court may receive evidence from a former juror on issues or matters extrinsic to the jury's deliberations for the purpose of, amongst other things, determining whether a miscarriage of justice has occurred as a result of jury misconduct or the jury having considered documentary material that was not admitted into evidence. See Emmett (334 ‑ 335); Minarowska (85); Skaf [214].
In Minarowska, Gleeson CJ said in relation to the distinction between evidence relating to a jury's deliberations, on the one hand, and evidence relating to issues or matters extrinsic to those deliberations which proves a material irregularity at the trial, on the other:
The distinction between evidence relating to a jury's deliberations, and evidence of an irregularity in their conduct or procedures, or in the conduct of the trial in a manner capable of affecting the jury, although it may be blurred in some cases, is of considerable antiquity. However the dividing line between proof of a jury's deliberations and proof of an irregularity in the proceedings may, as the present case illustrates, be difficult to draw (85).
See also Skaf [216]; Burrell v The Queen [2007] NSWCCA 65; (2007) 190 A Crim R 148 [284].
After analysing numerous decided cases, Gleeson CJ concluded that the principle limits the scope for challenging a verdict on the basis of a complaint as to the manner in which the jury went about performing its task. His Honour elaborated:
This limitation relates both to facts that may or may not be proved, and to evidence that may or may not be adduced. Because the underlying policy aims to preserve the secrecy of jury deliberations, and to maintain the integrity and finality of a formally expressed verdict, the distinction between what may and what may not be proved, and what may and may not be challenged, is not drawn by reference to the degree of seriousness or potential injustice of what might have occurred. It is primarily drawn by reference to the outer limits of the veil of secrecy which is drawn over the jurors deliberations (86 ‑ 87). (emphasis added)
As is apparent from this passage, the principle is not merely or exclusively a rule of evidence. It is a rule of substantive law to the extent that it limits the facts that may or may not be proved. It is a rule of evidence to the extent that it relates to the evidence that may or may not be adduced.
In Minarowska, Gleeson CJ noted that in Tuia v The Queen [1994] 3 NZLR 553, 556 ‑ 557, the Court of Appeal of New Zealand was of the view that if, in a particular case, 'a sufficiently compelling reason were shown, a court, balancing competing public interests, might depart from the normal rule of confidentiality' (87). His Honour said that it was unnecessary in Minarowska to decide that question (87).
Gleeson CJ also noted a distinction which has been drawn in the authorities between 'inadmissible and prejudicial material which finds its way into a jury room, on the one hand, and impermissible and prejudicial communications which may find their way into a jury's deliberations, on the other hand' (88) (emphasis added). His Honour added:
It is permissible to prove, and challenge a verdict on the basis that, a document tendered in evidence and rejected was inadvertently taken into the jury room. It is not permissible to prove and challenge a verdict on the basis, that, in the course of their deliberations, one juror said to another that police only lay charges against people when they are certain of their guilt.
If the juror in question had not brought her magazine into the jury room, but had simply told the other jurors that she had read an article which explained that dock statements were not subject to cross‑examination, then nothing could be done about it. Evidence, direct or hearsay, from that juror could not have been received to prove what the jurors said to one another in the course of making up their minds (88).

Part IXA of the Juries Act 1957 (WA)

Part IXA of the Juries Act 1957 (WA) is headed 'Jury confidentiality'.
The terms used in pt IXA include 'protected information', which is defined in s 56A(1) to mean:
(a)statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations, other than anything said or done in open court; or
(b)information that identifies, or is likely to identify, a person as, or as having been, a juror in particular proceedings.
By s 56B(1), a person who discloses protected information commits an offence if the person is aware that, in consequence of the disclosure, the information will, or is likely to, be published.
The term 'publish' is defined in s 56A(1), in relation to protected information, to mean:
[C]ommunicate or disseminate the information in such a way or to such an extent that it is available to, or likely to come to the notice of, the public or a section of the public.
Section 56B(2) provides that s 56B(1) does not prohibit disclosing protected information, relevantly, to a court (par (a)) or to an Australian legal practitioner (within the meaning of that term in s 3 of the Legal Profession Act 2008 (WA)) for the purpose of obtaining advice in relation to, relevantly, a matter in a court (par (h)).
By s 56C(1), a person who solicits or obtains protected information with the intention of publishing or facilitating the publication of that information commits an offence.
Section 56C(2) provides that s 56C(1) does not prohibit soliciting or obtaining protected information in the course of proceedings in a court (par (a)) or by an Australian legal practitioner for the purposes of giving advice in relation to a matter, relevantly, in the course of proceedings in a court (par (g)).
By s 56D(1), a person who publishes protected information commits an offence.
Section 56D(2) provides that s 56D(1) does not prohibit publishing protected information, relevantly, as part of a fair and accurate report of (if the protected information relates to jury deliberations) proceedings by way of appeal from the trial in the course of which the deliberations took place if the nature or circumstances of the deliberations is an issue relevant to the appeal (par (b)(iii)).
Section 56E provides that s 56B, s 56C and 56D do not prohibit a person:
(a)during the course of a trial, disclosing, soliciting or obtaining, or publishing, with the leave of the court or otherwise with lawful excuse, information that identifies, or is likely to identify, the person or another person as, or as having been, a juror in the trial; or
(b)after the trial has been completed, disclosing, soliciting or obtaining, or publishing ‑
(i)information that identifies, or is likely to identify, the person as having been a juror in the trial; or
(ii)information that identifies, or is likely to identify, another person as having been a juror in the trial if the other person has consented to the publication or disclosure of that information.
The evident purpose or object underlying pt IXA is to protect the confidentiality of deliberations by juries and to prevent the identification of persons who have served as jurors. The Parliament has sought to promote this purpose or object by creating the offences embodied in s 56B(1), s 56C(1) and s 56D(1). In my opinion, the exceptions contained in s 56B(2), s 56C(2), s 56D(2) and s 56E do not evince a Parliamentary intention to alter or modify the general propositions that:
(a)a court will not receive evidence from a former juror as to discussions between jurors in the course of their deliberations, the reasons for the jury's verdict or the individual thought processes of a juror referable to the verdict; and
(b)a court may receive evidence from a former juror on issues or matters extrinsic to the jury's deliberations.
See, in relation to the analogous provisions in s 69A of the Juries Act 1967 (Vic), Medici (595 ‑ 596). Compare, in relation to s 49A of the Juries Act 1980 (NT), Tan Seng Kiah v The Queen [1999] NTSCCA 64; (1999) 150 FLR 470 [16] ‑ [23].
It is unnecessary, in the present case, to consider or decide upon the ambit of pt IXA.

Section 79C of the Evidence Act 1906 (WA)

Section 79C of the Evidence Act 1906 (WA) is headed 'Documentary evidence, admissibility of'.
By s 79C(1), relevantly:
Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement ‑
(a)was made by a qualified person; or
(b)directly or indirectly reproduces or is derived from one or other or both of the following ‑
(i)information in one or more statements, each made by a qualified person;
… (emphasis added)
The term 'qualified person' is defined in s 79B, in relation to a statement, to mean, relevantly, a person who had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement.
Section 79C(2) provides that where a statement referred to in s 79C(1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless, relevantly, all reasonable efforts to identify or find him or her have been made without success (par (d)).
By s 79C(3), s 79C makes a statement admissible notwithstanding, relevantly, the rules against hearsay (par (a)) or that the statement is in such a form that it would not be admissible if given as oral evidence (par (d)). However, s 79C(3) is subject to an overriding provision that s 79C does not make admissible 'a statement which is otherwise inadmissible'.
In the present case, the 'qualified person', for the purposes of the email and s 79C(1), is the email juror; that is, the juror who sent the email to the trial judge.
In my opinion, s 79C does not avail the appellant in relation to the tender of the email unless the common law principle as to non‑disclosure does not apply to the statements in the email. My reasons are these. First, the principle operates in part as a rule of substantive law and in part as a rule of evidence. Secondly, s 79C does not alter or modify the principle. Thirdly, although s 79C is concerned with the admissibility of documentary evidence, s 79C(1) applies only where direct oral evidence of a fact or opinion would be admissible. Further, by s 79C(3), s 79C does not make admissible a statement which is otherwise inadmissible.

The merits of the ground of appeal

The email contains, relevantly, three statements allegedly made by one of the jurors (juror X) to the other jurors including the email juror.
The three statements are, in substance:
(a)juror X's mother told juror X, in the course of a discussion between them during the trial, that the appellant had divorced his wife in the Supreme Court;
(b)juror X's mother also told juror X, in the course of this discussion, that there were differences in education and social status between the appellant and his wife; and
(c)there was gossip associated with the appellant relating to his interest in other women.
The first and second statements, if made, were made by juror X to the other jurors in the course of the jury's deliberations. According to the email juror, when the statements were made the jurors were 'in the latter period of deliberation'. It appears that the jurors were in the jury room and were still in the process of considering the evidence and the submissions. The verdicts had not been delivered or announced in open court.
The third statement, if made, was also made by juror X to the other jurors in the course of the jury's deliberations. Although the jurors had 'finalised the verdicts', those verdicts had not been delivered or announced in open court and, in consequence, the jury were not at that time irrevocably committed to them.
In my opinion, the three statements allegedly made by juror X to the other jurors were issues or matters passing between the jurors in the jury room and were made in the course of their discussion and consideration of the case. The statements were not issues or matters, and did not relate to issues or matters, extrinsic to the jury's deliberations.
The three statements, if made, are therefore within the common law principle that a court will not receive evidence from a former juror as to discussions between jurors in the course of their deliberations, the reasons for the jury's verdict or the individual thought processes of a juror referable to the verdict. This principle encompasses information passing between the jurors in the course of their deliberations that was not part of the evidence at the trial. As I have mentioned, this principle embodies a rule of substantive law, to the extent that it limits the facts that may or may not be proved, and it embodies a rule of evidence, to the extent that it relates to the evidence that may or may not be adduced. Accordingly, the three statements allegedly made by juror X to the other jurors:
(a)cannot form the foundation for an investigation or inquiry by this court into whether a material irregularity occurred at the trial; and
(b)are not admissible in evidence in the appeal.
In any event, even if, in a particular case, this court, balancing competing public interests, is empowered to depart from the normal rule of confidentiality if a sufficiently compelling reason is shown (being the view of the Court of Appeal of New Zealand in Tuia (556 ‑ 557) which was left open by Gleeson CJ in Minarowska (87)), I am satisfied that, in the present case, the three statements in question, if made, did not occasion any material prejudice to the appellant. No substantial miscarriage of justice has occurred. The statements did not affect the reliability or integrity of the verdicts. My reasons for these opinions are as follows.
First, the statement about the appellant being divorced was not in accordance with the sworn, uncontradicted evidence of the appellant at the trial (ts 367) that he was married, that he had been married in 1971/1972, that he and his wife had two children, and that his wife was present in court (and, presumably, observed by the jury). It was therefore known to the jury during their deliberations that, on the evidence, the appellant was not divorced.
Secondly, the information as to the difference in education and social status between the appellant and his wife is vague and equivocal.
Thirdly, the first and second statements are wholly irrelevant to the matters in issue at the trial. Also, the subject matter of the statements is not, on any reasonable view, derogatory of, or a slight upon, the appellant.
Fourthly, the gossip about the appellant's alleged interest in other women (whatever that might mean) was given after the jury had finalised their verdicts (which included acquittals on counts 1 and 2). Anyway, any reasonably sensible juror of modest intelligence would have recognised that the gossip was an unreliable and irrelevant piece of scuttlebutt.
Fifthly, each of the verdicts of acquittal and each of the verdicts of guilty was unanimous.
Sixthly, the contents of the email are insufficient to establish actual or reasonably apprehended bias on the part of any juror including juror X.
Seventhly, if there was a discussion between juror X and juror X's mother, as the email suggests, it is not apparent that juror X must have obtained the information in contravention of the trial judge's direction not to discuss the case with third parties. It may be, as Pullin JA has pointed out, that the mother volunteered the information without any request by or invitation from juror X and without juror X's participation in an improper discussion about the case.
Eighthly, as the Court of Appeal of New Zealand (Richardson, Bisson & Heron JJ) noted in R v Norton‑Bennett [1990] 1 NZLR 559, 566:
It is only natural that some jurors in the course of their deliberations may introduce some completely irrelevant matters, some gossip, make facetious remarks and express views showing an element of sympathy or prejudice. But the jury system does not depend on selecting 12 superior beings capable of undivided concentration on the issues before them. They are a cross-section of the community and whatever they say or feel in the course of their deliberations should, for the reasons stated, remain confidential. It does not follow that when all the varying views expressed by different jurors go into the melting pot in the course of their deliberations, that the unanimous end product is necessarily contaminated by some impurity such as a prejudicial comment which may in the end have been discarded by all as dross.

Conclusion

I would grant leave to appeal but, for the reasons I have given, the appeal should be dismissed.