Smith v The State of Western Australia

[2013] HCATrans 298

[2013] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra   No P51 of 2013

B e t w e e n -

MARK SHARNE SMITH

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 29 NOVEMBER 2013, AT 10.01 AM

Copyright in the High Court of Australia

MR C.P. SHANAHAN, SC:   May it please the Court, I appear with MR A.L. TROY, for the appellant.  (instructed by Legal Aid WA)

MR J. McGRATH, SC:   May it please the Court, with MR L.M. FOX, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions (WA))

FRENCH CJ:   Yes, Mr Shanahan.

MR SHANAHAN:   Your Honours, this case engages the common law rule that evidence about what has passed between jurors in the course of their deliberations is inadmissible, and I will refer to that as “the rule”, or “the exclusionary rule”.  Chief Justice Gleeson, in R v Minarowska, number 9 on the appellant’s list, at the middle of page 85 describes the difficulty in drawing a line between, on the one hand, conduct by jurors that is subject to that rule, and on the second, conduct by jurors that falls outside that rule, which I will refer to as “extrinsic or extraneous matters”.

GAGELER J:   It is just a rule of evidence we are concerned with?

MR SHANAHAN:   Yes.  The appellant contends that despite the difficulties identified by his Honour in Minarowska, one category of jury conduct clearly falls outside the rule’s operation, and that is criminal conduct.  The appellant contends there is a bright line which separates criminal conduct from the operation of the rule.

It is said that criminal conduct by jurors can be divided into two subcategories.  The first of those subcategories is criminal conduct by jurors that does not affect the verdict.  Where criminal conduct by jurors does not affect the verdict, for example, an assault by one juror on another over football rivalry, the appellant says such criminal conduct would be investigated and prosecuted in the ordinary way.  The rule would not render evidence of such conduct inadmissible because such an assault is clearly not properly part of a jury’s deliberations.  The second subcategory, and the one that concerns this Court today, is where criminal conduct occurs between jurors which affects the verdict, and in this case it is contended that physical violence or the threat of physical violence to coerce a vote is such conduct.

FRENCH CJ:   What are the findings of fact that you are assuming here?  I am looking at Chief Justice Martin’s judgment at round about paragraphs 35 through to 39.  Do you have a problem with the equivocal character of the message?

MR SHANAHAN:   We say no, your Honour.  I will come to that in due course.

FRENCH CJ:   Well, that is fairly fundamental though, is it not?  You do not get to the principle until you establish the factual base.

MR SHANAHAN:   I am content with that, your Honour.  We say that the ‑ ‑ ‑

CRENNAN J:   It begs the question to describe what is described there as criminal conduct, does it not?

MR SHANAHAN:   Well, what the appellant says about that, if I can take your Honours to the text of the note, which appears in the reasons below at page 69 of the appeal book, paragraph 3.  The appellant says this is a description of a matter of fact, not a legal quantity, when the author of the juror’s note says:

I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote ‑

The appellant says that it not ambiguous, that it is clearly an allegation by a juror that their vote is being coerced and it is being coerced in a particular way. The basis for suggesting that is criminal, or alleged criminal conduct is, it is said by the appellant, that that breaches section 123 of the Criminal Code and your Honours would – I am sorry, I have got a fly buzzing around my head ‑ your Honours will see that section 123 of the Criminal Code is set out at annexure A to the appellant’s submissions at page 6.

Subsection (1), in particular, would be the provision that the appellant contends has been allegedly breached. If I can take you to that now - I do not know if your Honours want me to read that paragraph to you but it is section 123(1) and (2) at page 6 of the annexure which is attached to the appellant’s submissions. So if you go to the appellant’s primary submissions there is an annexure at the back and it is at page 6.

FRENCH CJ:   Yes, we have it.

MR SHANAHAN:   Thank you, your Honour.  It is said that when your Honours look at that note the appellant would say you look at it through the eyes of a layperson, somebody who is not legally trained, somebody who in the ordinary course has been called to serve upon a jury, and it may be somebody who is relatively unsophisticated in terms of their understanding of criminal and other legal matters and that if one reads that note through that prism it is said that that first sentence is unambiguous.

Obviously, there are some who contend otherwise, but that is the appellant’s case.  It is said that there is clearly an allegation that a juror has been physically coerced by another to change their vote.

CRENNAN J:   I think Lord Rodger in R v Mirza [2004] 1 AC 1118 makes the point that one piece of evidence uncontradicted and without a hearing from anybody can be quite mysterious and elusive and its complexion can change completely if one starts to conduct a normal forensic process in relation to it.

MR SHANAHAN:   Yes, your Honour.  I am glad you took me to Lord Rodger in Mirza because Lord Rodger in Mirza considers what fairness requires in a jury trial and that is a primary plank of the appellant’s case here.  Lord Rodger says that ordinarily fairness in a jury trial is safeguarded by two things and he describes them, I think, as familiar elements of a jury trial.  One is the judge’s direction, which could not affect this case because the note was discovered after the verdicts were delivered or pronounced, and the second that there is a rebuttable presumption of unanimity which emerges from the public pronouncement of the verdicts.

I am just about to take your Honours to the facts to try and point out that the – well, the appellant contends that there was obvious evidence of dissent in this case, so that you cannot rely on the second, you cannot rely on the first and therefore you must be in a position where we need to look at how the rule operates.

CRENNAN J:   There seems to be a distinction in relation to that notion of rebuttable presumption between rebutting it by going to evidence of what occurred in open court and rebutting it by exposing jury deliberations, the former being, it appears, accepted; the latter not.

MR SHANAHAN:   Indeed, your Honour, but in this case we do not need to consider that because what occurred and what the appellant relies upon as evidence of dissent occurred in open court and was recorded by the trial judge in the trial transcript, and I am about to take you to those references, so that we do not need to ‑ ‑ ‑

CRENNAN J:   That is the noise on exit and so on, is it or – all right, very well, if you take me to that.

MR SHANAHAN:   Three matters, your Honour, that occurred.  If I can take you to the trial transcript which appears at appeal book page 22, at the bottom of the page starting at line 40, there are three matters, your Honours.  One is that the trial judge records that:

You may have noticed that the foreperson was a little slow to say, “Yes, that’s the verdict of you all”.

The appellant would say that is quite remarkable because in the hurly‑burly of jury trials there is often some pause in that process, so here it was obviously out of the ordinary.  His Honour then goes on to say that there “was an unusually noisy departure”, and again in the hurly‑burly of a jury trial it is often noisy, so for the trial judge to remark upon it, it must have been something out of the ordinary.  His Honour says:

I was a bit curious as to what was going on.

So obviously he had been put on inquiry as to what was going on amongst the jurors.  His Honour then continues:

One of the jurors, it was probably obvious to you who it was, was somewhat upset afterwards and although he didn’t hand it to the court a note in an envelope was left on the jury table.

So whilst in this case there is no suggestion that we can identify the author, it appears from the trial transcript that the identity of the author of the note was obvious to the trial judge or at least the trial judge believed it was obvious to him who that person was.  They are the three matters that the appellant says ‑ ‑ ‑

CRENNAN J:   It is not uncommon, is it, to observe that a juror on a jury panel may have demeanour that is somewhat upset at the time of the announcement of the verdict?

MR SHANAHAN:   Absolutely.

CRENNAN J:   Are you suggesting that those three matters are evidence of a juror indicating dissent in open court to the verdict?

MR SHANAHAN:   What is being said is that the public pronouncement of a verdict is a rebuttable presumption of unanimity amongst jurors and here we have evidence to suggest that that presumption may or should be rebutted, evidence that suggests there should be an inquiry to determine the extent of, or the reason for, the obvious dissent, at least from one juror because of the contents of the notes.  If all your Honour had were these events at the end of a trial, without the note, then arguably it would not give rise to a concern because there would be no complaint.

It may well be in some cases that people feel that they have been overborne in argument, and I do not want to take that too far, but there may be people who are dissatisfied with their jury experience.  I am sure that is true.  But in this case we have a more serious case because we have the contents of the note which the appellant contends is clear and the evidence that that juror, who the trial judge assumed was the author of the note, was upset at the end of the proceedings.

FRENCH CJ:   Can I just understand the premises upon which you are proceeding?  Looking to your ground of appeal, the premise seems to be that the note alleged the juror’s vote had been procured by the physical coercion of a fellow juror.

MR SHANAHAN:   It is alleged, yes.

FRENCH CJ:   Yes, and then at page 77, I think, which is at paragraphs 34 and 35, the Chief Justice’s judgment to which I referred you earlier said:

the evidence of the note and its discovery is so replete with uncertainty and ambiguity that any conclusions of fact drawn from it must necessarily be speculative –

There are two pathways, I suppose, which your argument might take.  One is to say that is wrong, another is to say accepting that there should have been an inquiry.  Is it the latter pathway?

MR SHANAHAN:   It is the latter part, your Honour, because it must be the case, as has been demonstrated by our exchanges to date, that there are questions to be answered, and that is why there should be an inquiry.

FRENCH CJ:   Right.  So you are not challenging their conclusions of fact about the note?

MR SHANAHAN:   The appellant is suggesting that the note is clearer than the Court of Appeal seemed to think it was, because there appears to be a focus on the words “physical coercion” that suggests an almost quasi‑legal meaning in the Court of Appeal where the appellant says that can be seen as just a recording by a juror of a matter of fact.  But your Honour is right that the primary premise that the appellant relies upon is that, having found the note, having had the evidence that I have just taken your Honours to of what occurred when the jury was discharged, that that puts the court on inquiry, and that inquiry would have resolved any ambiguity or uncertainty.

KIEFEL J:   Do you say the Court of Appeal did not address that question about whether an inquiry should be had?

MR SHANAHAN:   No, the appellant is not saying that they did not address the question.  I think the way to follow it would be something like this.  The test for an inquiry which is set out by his Honour the Chief Justice at paragraph 16 on page 72 of the appeal book talks about:

If a court considers that there has been a material irregularity –

which his Honour then describes in terms of –

that is, that possible extrinsic influences have affected jury deliberations –

Clearly, the Court of Appeal did not approach this matter ‑ ‑ ‑

KIEFEL J:   That would not be the only basis for an inquiry, would it?

MR SHANAHAN:   No.

KIEFEL J:   What is the source of the power to order an inquiry?  It is not statutory, is it?

MR SHANAHAN:   No.  It was accepted below it is not challenged that there is a power.  R v Young is cited ‑ ‑ ‑

KIEFEL J:   No, in the cases referred to in the submissions, it appears to be assumed.

MR SHANAHAN:   Assumed, that is so.

KIEFEL J:   How do you say it arises?

MR SHANAHAN:   Duty of fairness, your Honour, in the sense that a trial judge has an overriding obligation of fairness to ensure the fairness of a jury trial, Dietrich v The Queen, and that if there is a suggestion that the trial was not fair, that that has to be inquired into.  I would like to develop that just a little bit if I may.

FRENCH CJ:   It must be in aid of the statutory functions in determining whether there has been a miscarriage of justice, for the purposes of the exercise of the appellate function, when you are at the Court of Criminal Appeal level.

MR SHANAHAN:   Yes.  At first instance, with the trial judge, in R v Mirza in England and Wales, they do not have an exception to the rule, and that was a case that dealt with partiality rather than criminal conduct.  I think that that means that you have to look at some of the expressions in that case through that prism.  But the important thing to say about it, I think, is this, that the central role of the trial judge in Australian criminal law as the guarantee of the fairness of the jury trial is not really picked up in Mirza.  Fairness is referred to by two judges; by Lord Rodger, who I have taken the Court to already, and also to Lord Hope.

There is certainly a concern with fairness, but it is not developed to the degree the appellant would contend that it has been in Australia, and that the obligation to inquire must emerge from a guarantee of the fairness of a jury trial in circumstances such as this, which are very rare, very unusual, have never come up before a court before.  So the premises that the appellant is contending for here are not going to throw open wide the doors of the jury room to a whole host of inquiries.

This is a very particular case and, in fact, the point that is being put, whilst simple, the facts are not particularly complicated, the law I do not think is in dispute, it is simply a question of how one considers the operation of the rule and how one deals with allegations of criminal conduct amongst jurors and that is what we ‑ ‑ ‑

KIEFEL J:   How would you describe the inquiry that you say should have been ordered by the Court of Appeal?

MR SHANAHAN:   That is an interesting question because the mechanism for an inquiry such as that is not settled, in the appellant’s respectful submission, but we do have some key indicators of how it should be conducted.  Generally speaking, although it is not consistent across all of the cases, there is an initial inquiry by the sheriff’s office under the control of the trial judge, and this takes me back to the central proposition that the authority that should manage such an inquiry must be the trial judge in the first instance, albeit that the trial judge has the officers of the sheriff’s office to effectively do the bidding of the court.

FRENCH CJ:   Do you say it falls into the category of an implied incidental power, or an inherent power?

MR SHANAHAN:   I think an inherent power would be close, your Honour, yes.

CRENNAN J:   In relation to the trial judge do you make a distinction pre‑verdict/post‑verdict?

MR SHANAHAN:   Yes, we do, in this sense:  that pre‑verdict you have the mechanism identified by Lord Rodger of directions to ensure fairness, so that one can get over problems perhaps by a good direction.  So you have the web question, if you like, prior to a verdict.  But once you go beyond a verdict, then you are in that difficult terrain where the trial judge’s role is coming to an end in the sense that the verdicts have been pronounced, but there remains this concern that if something has occurred during the course of the trial the trial judge may need to inquire into it.

What the appellant says about that in the context of our legislative provisions in Western Australia, which also appear in annexure A to the appellant’s submissions, is that there is a provision as an authorised disclosure of protected information which includes jury deliberations to a court, to prosecutors and police, but also that there can be a fair and accurate report of an investigation by police and prosecutors in relation to allegations of criminal conduct by jurors. 

It is imagined that that provision at section 56B(2)(f) is intended to provide a mechanism whereby a trial judge, having made preliminary inquiries and then perhaps having instructed the sheriff’s officer to go out and take records of interviews from jurors, if that is necessary - the appellant says that would only be in the rarest of circumstances and that is reflected in the authorities - that the sheriff’s office may do a number of things and they are set out in the outline of propositions that has been filed by the appellant and your Honours will find those at paragraph 21 on page 3. 

Essentially what is being said is this.  If you have a robust trial judge, and this is no disrespect to the trial judge in this case, what the trial judge may have done in this case is actually found out who juror A is by perhaps calling juror – having the sheriff’s officer bring juror A to court – identified who the other juror was referred to in the note, asked juror A, the author of the note, “What is the physical coercion complained of?”, does the juror maintain – continue to maintain or assert the allegations in the note? 

If the answer to that was no – and I think so far we have taken five minutes – if the answer to that was no, then the trial judge can make a note on the file, make a report under 56B(2)(f) and that report would be available to an appellate court in the event that an accused person sought to appeal from the convictions recorded as a result of that jury’s verdict.

KIEFEL J: More generally, an appeal court can also ask for a report in relation to any case under section 40 of the Criminal Appeals Act, can it not?

MR SHANAHAN:   Yes, your Honour.

KIEFEL J:   I mean, that is not commonly done but it is not unknown for reports to be made at the direction of an appellate court in a criminal matter.

MR SHANAHAN:   No.  In this case what happened was that the accused, having been made aware of the note, in circumstances where it appears, again with great respect to the counsel and the judge, no one was aware of the jurisdiction in the trial judge to make inquiry, post‑verdict, and made an interlocutory application below in the appeal seeking an inquiry.  That matter was adjourned to the hearing of the appeal and then an inquiry was not ordered for the matters that are set out in the reasons below.

KIEFEL J:   Was it, though, a matter of the exercise of power by the trial judge or if the inquiry is incidental to and in furtherance of the question of miscarriage of justice a matter for the appellate court to order.

MR SHANAHAN:   Your Honour, I think the answer to that is that the best inquiry is the quickest inquiry, a contemporaneous inquiry, whilst you have all of the jurors at the easy access of a sheriff’s officer, so what the appellant would say is that there are aspects of both that may be bought to bear in relation to a problem such as this.

KIEFEL J:   But you are viewing section 56B as a freestanding provision which empowers the trial judge without reference to the appellate process that arises post entry of verdict.

MR SHANAHAN:   To make a report and record it on the court file.

KIEFEL J:   Yes.

MR SHANAHAN:   The transmittal of that report to a Court of Appeal would only be proper, in the appellant’s contention, if there was an appeal on foot so that then the District Court of Western Australia would be obliged to provide the record to the Court of Appeal and that would include a report, and I also note that 56B(2)(a) makes disclosure to courts an authorised exception to the criminalisation of disclosing protected information which would also be a basis for disclosing that information to the Court of Appeal.

FRENCH CJ:   But the point of an inquiry and a report in this context would be for quite a different purpose than the appellate function ‑ that is to do with a possible prosecution for an offence under the Juries Act, is it not?

MR SHANAHAN:   It would be twofold, your Honour.  It must be for that.

FRENCH CJ:   That is the statutory framework in which it sits.

MR SHANAHAN:   It must be for that, at least, but the appellant would contend that it is for more than that, that this is an occasion where either reliance on paragraph (a) or (f) would effect the same outcome, that a Court of Appeal could have access to such a report.

FRENCH CJ:   That is a separate question.  If they have access to such a report it is in aid of their own statutory function which involves determining whether or not there has been a miscarriage of justice.

MR SHANAHAN:   Yes.

CRENNAN J:   Is there an issue after a verdict announced in open court and discharge of a jury that the trial judge is functus officio in relation to the jury part of the trial?

MR SHANAHAN:   Yes, that is an issue, your Honour, obviously.  It is a question of where does one draw that line.

FRENCH CJ:  The trial judge so regarded himself in this case, did he not?

MR SHANAHAN:   Yes, he did, but your Honour, can I just take you to that passage in the transcript because I think it speaks for itself.  Again, if we come back to page 22 of the appeal book and if I can ask your Honours just to go over to page 23.  Do your Honours see from about line 33 the reference to the trial judge, “Well, the problem is now – I mean”?  That is the portion that I am taking you to.  And, if you follow that through you will see that his Honour points out that it can only be an “appeal point” and makes reference to Shrivastava, I believe is what that reference should be, which is a previous decision of the Court of Appeal in Western Australia.

FRENCH CJ:   Justice Buss’s?

MR SHANAHAN:   Indeed.  Yes.

GAGELER J:   At about line 45 on the previous page, his Honour refers to a verdict of conviction.  Is there any distinction drawn between a guilty verdict and the entry of conviction in Western Australia?

MR SHANAHAN:   Your Honour, generally what happens is that after the verdict has been pronounced, the trial judge would ask counsel whether there is any reason why a conviction should not be entered and then a conviction is entered.  So there is a temporal gap.

GAGELER J:   What happened here?

MR SHANAHAN:   Well, here the conviction was entered and they turned up the next day for part of the process of sentencing.  There was no doubt that the effect of the verdicts was a conviction of guilt on two charges.

KEANE J:   Chief Justice Martin at page 69, paragraph 2 at about line 40 says:

Verdicts of guilty on each count were recorded by the trial judge, the jury was discharged –

MR SHANAHAN:   Yes.

KEANE J:   So it looks as if there was a formal entry of the verdict.

MR SHANAHAN:   Yes, that is not disputed, your Honour.

FRENCH CJ:   There would have been an entry of conviction following that.

MR SHANAHAN:   Yes, and it would have been on the day before they discovered the note because the note is found at some stage between the discharge of the jury and the following day.  And, your Honours, if I can take you to page 20 of the appeal book, your Honour will see that exchange between the clerk of arraigns and the trial judge regarding whether there was any reason why verdicts of conviction should not be recorded.  That is at page 20, line 40.

KEANE J:   Mr Shanahan, is it really fairness that is at the basis of the power or is it the power to ensure the integrity of the court’s processes?

MR SHANAHAN:   I think it is both, your Honour.

KEANE J:   I mean, for example, if it had been the other way and your client had been acquitted as a result of, one assumes, some jurors ganging up on another, there would be the power, would there not, in the trial judge to do something about it, even if it was not associated with an appeal.

MR SHANAHAN:   Yes.  This issue could be pursued whether it was the accused person or the prosecution because it goes to the heart of the jury trial itself, the process itself.  Now, it is not just fairness.  Obviously, there are issues around the administration of justice, the reputation of jury trials in this country.  Perhaps one good example of why an inquiry of the type that is being contended for should have been conducted is the observation in the outline of propositions that in this country we now have trials by judge alone in criminal matters as well as jury trials.

Now, if a judge sitting alone in a criminal matter had their verdict coerced in some way through pressure on their family or ‑ I do not want to speculate about how that might happen but let us say that did happen, criminal conduct was used to coerce a verdict from the judge sitting alone, that would clearly be something that would vitiate the trial process.  If we are not to have inquiries of the type contended for here, is it the case that we are starting to distinguish between modes of criminal trial in this country and is that a problem.  I think that is the question.

KIEFEL J:   I think there has always been the distinction.

MR SHANAHAN:   Yes.  Well, they are different.

KIEFEL J:   I do not think we are starting.

MR SHANAHAN:   Yes, they are different, but this is a fundamental part of the architecture.

KIEFEL J:   One of the difficulties in this area is that identified by Justice Crennan earlier that some degree of coercion is normal in human discourse and that probably becomes more so in the context of the jury room.

MR SHANAHAN:   There are a couple of things, your Honour, that I think should be said about that.  One is that in robust discussion it rarely involves any type of physical coercion.  Physical coercion is a very specific allegation and I think that is very important in this case.  It must be the case that in jury rooms around the country you have robust discussions and people sometimes feel that they have been importuned or in some way influenced or perhaps even overborne, but on how many occasions does that amount to a written complaint to a trial judge in a letter addressed to them in a formal way at the end of a trial?  With great respect, I think that happens – well, I do not know it to have happened in any case before ours, but I believe there may be other cases in the future which have similar characteristics.

FRENCH CJ:   We are concerned here, are we not, with what the Court of Appeal ought to have done?

MR SHANAHAN:   Yes.

FRENCH CJ:   Because the relief that you are seeking, if an inquiry remains practicable, as you put it ‑ ‑ ‑

MR SHANAHAN:   Can I say, your Honour, we only seek those orders on the basis that an inquiry is practicable ‑ ‑ ‑

FRENCH CJ:   Yes, I know that.

MR SHANAHAN:   ‑ ‑ ‑ because we cannot say that it is not.

FRENCH CJ:   I understand that.  I am looking at paragraphs 7, 8, 9 and 10 of your notice of appeal.

MR SHANAHAN:   Yes, I think there was a declaration at 5 as well.

FRENCH CJ:   Yes, so we are looking at the function of the Court of Appeal.

MR SHANAHAN:   Yes.

FRENCH CJ:   That must be related to its statutory function of determining whether or not there has been a miscarriage of justice.

MR SHANAHAN:   Yes.

FRENCH CJ:   That is the framework within which we are operating.

MR SHANAHAN:   Absolutely, your Honour.

FRENCH CJ:   It is not really about what the trial judge should be doing.

MR SHANAHAN:   Not now, no.

FRENCH CJ:   Not now.

MR SHANAHAN:   No, exactly, but the point that I have been trying to make is that there is a timeline here and that in the ordinary circumstance one would expect the trial judge to do something contemporaneous to put the Court of Appeal in the best place possible to deal with these sorts of matters, but clearly in this case that has not happened.

FRENCH CJ:   That horse has bolted.

MR SHANAHAN:   Yes, and obviously any remittal to the Court of Appeal would be in aid of that jurisdiction and I think there are some real issues about the mechanism of such an inquiry and certainly the way in which information might be obtained because both the appellant and the respondent have written to the sheriff’s office seeking administrative information, not protected information.  In other words, we have not sought an account of what they hold in relation to this particular jury trial.  We have asked questions about their capacity to conduct an inquiry like this now, and we have received no response to that, so the Court should know that.

FRENCH CJ:   If an inquiry is not practicable, you seek to have the verdicts quashed on the basis that?

MR SHANAHAN:   On the basis that if an inquiry is no longer practicable that is through no fault of the appellant.  The allegations in the juror’s note, the appellant contends, allege a substantial miscarriage of justice.

FRENCH CJ:   All right, so that is what I am wanting to get to.  You say there is enough there – let us assume no inquiry is practicable – that there is enough on what was before the Court of Appeal to ground a finding that there was a substantial miscarriage of justice.

MR SHANAHAN:   No, your Honour, it only has to be a possible extraneous influence.  That was the test that was applied below at paragraph 16.

FRENCH CJ:   But it has got to fit in to the statutory test.

MR SHANAHAN:   Yes, but what we are saying is that the possibility of an extraneous influence of the type described by his Honour the Chief Justice below is a substantial miscarriage if an inquiry is no longer practicable.  Your Honours have taken me through my outline.  There is one matter, I think, that is important, and that was the analogy with legal professional privilege.  It seems appropriate to suggest an analogy between common law rules which have similar types of functions, i.e. to either maintain privilege or to protect as confidential particular types of communications.

Once the appellant started looking at those authorities after the special leave application, it seemed clear that – particularly the passage by his Honour Justice North in Clements, Dunne & Bell Pty Ltd which is number 11 on the appellant’s list, between pages 521 and 522 from paragraph 29 was somewhat apposite.  That passage is set out in the appellant’s submissions at paragraph 81 at the bottom of page 13.

FRENCH CJ:   Well, that is an argument by analogy to support the characterisation of the communication as extrinsic to deliberations for the purpose of admissibility.

MR SHANAHAN:   Yes, that is the first point, your Honour.  The second is, and I think this is important, that if your Honours read the last portion, it is said that:

Second, the communications are not limited to those in pursuit of a crime or fraud, but extend to communications in pursuit of an illegal or improper object –

It is interesting to contemplate that whilst the appellant does not have to establish it for the purposes of this appeal, because here we are clearly dealing with criminal conduct, whether conduct amongst jurors for an illegal purpose – or with an illegal object, more particularly – would also fall outside the rule.  I just note that in passing it seemed likely that one would treat conduct with an illegal object in much the same way as one would treat criminal conduct.  I do not take that any further.

The best way, the appellant says, to test the contentions upon which this appeal is brought is to look at the rationale for the rule.  I will not trouble your Honours long with this because I realise that we do not need perhaps a lot, but there is a summary of the rationale for the rule which is set out in Medici, which is number 8 on the appellant’s list, between pages 591 and 592.  The reason I take your Honours to that is because there is a useful summary of the rationale for the rule on those pages.  The rationale which is set out in Medici combines two previous decisions ‑ ‑ ‑

FRENCH CJ: This is (1995) 79 A Crim R 582. You should cite it for the transcript.

MR SHANAHAN:   I am sorry, your Honour.

FRENCH CJ:   Yes.

MR SHANAHAN:   It combines two previous decisions.  The first is Matthews & Ford, which is number 9 on the respondent’s list – I do not want to take your Honours to that at this stage – and Ellis v Deheer, which is number 17 on the appellant’s list.  The four matters identified in Medici, two of them are taken from Matthews & Ford and the last two from Ellis v Deheer, and they are put this way.  The first is the preservation:

of a free (but confidential) interchange of views and opinions among the jurors –

It would be contrary to that purpose if jurors were able to physically coerce the vote of another in circumstances where evidence of that conduct was inadmissible as a result of the rule.  It would be perverse, with great respect.

KEANE J:   Well, it would not be a free vote.

MR SHANAHAN:   No, nor would the opinions necessarily be freely offered.  I think one of the important things, and I want to lay the groundwork here before we get to the end of the appeal, is this.  If there is an inquiry, and it is an inquiry conducted by the Court of Appeal on remittal from this Court, then the question might be in order to be a proper inquiry, is it necessary to interview all 12 jurors?  What would happen if you could only find six or eight jurors?  What would the practical consequences be?

What the appellant says about that is that if one juror has been physically coerced by an agent on the jury, then without interviewing all of the jurors it is not possible to see or to determine whether there has been another attempt to coerce other votes, or other votes have been coerced, if the person who has been coerced has been coerced without complaint.

So I am imagining a situation where you have an active agent in the jury, one juror, for argument’s sake, who is determined to coerce a particular verdict.  They approach say three jurors, one of whom is our juror who writes the note and complains, you might say a brave juror.  The other two jurors are made of less stern stuff and simply do not want to be involved in any of that, or alternatively see juror A being coerced – physically coerced – and do not want to be the subject of attention so they go along with the majority vote.  In other words, what the appellant is suggesting is that the extent of the taint within the jury has to be measured in some way on an inquiry.

Now, clearly, you can only inquire to the extent that it is possible and in Adams, which is a case in the UK which we have referred to and I think your Honours have a copy of it which was filed during the week, certainly the inquiry was not all 12, was conducted some significant time after the trial – I think some 13 years after the trial.  It was conducted by a statutory authority in the UK and, really, the practice around these inquiries, as I say, has been mixed.

But in R v Adams [2007] 1 Cr App R 34 – it is an additional authority - your Honours will see – I will not take you to any specific passages – that the Criminal Cases Review Commission interviewed 11 surviving members of the jury and recorded their answers, directed that further questions be asked of four named jurors, invited the parties to agree which of the jurors would be available to give evidence at the hearing of the appeal, issued witness summons for the four jurors to attend the hearing and heard evidence from each in the absence of the others.

So they are some of the powers that have been deployed in such an inquiry.  It seems consistent with your Honour the Chief Justice’s earlier question whether it is an inherent power that a Court of Appeal exercising its statutory jurisdiction in respect of an appeal would have the power to summons jurors for the purpose of investigating an alleged substantial miscarriage of justice.  The question might be the process by which such jurors would be examined.  Who would obtain a record of interview?  In many of the cases that has been the sheriff’s office.  In some it has been the prosecution at trial, the trial prosecution. 

FRENCH CJ:   Can I just come back for a moment to the rationale for the inadmissibility of matters of deliberation and really it is a question I think Justice Kiefel put to you earlier about the dynamics of human interactions in this sort of decision‑making process.  This note could have said a variety of things.  It could have said, “I was bullied into changing my vote”, “I was harassed into changing my vote”, “I was coerced into changing my vote”, “I was intimidated into changing my vote”, all of which could be responses to normal robust interactions by somebody who felt overborne.  But none of those assertions would of themselves render that kind of – or engender an inquiry because that would get you into the dynamics of the deliberation, would it not?

MR SHANAHAN:   Intimidation?

FRENCH CJ:   Well, intimidation is a response.  It does not tell you much about what has been done, does it?

MR SHANAHAN:   No, your Honour, intimidation though is one of the things that is criminalised at 123 of the Code, so that might require further inquiry just to establish that ‑ ‑ ‑

FRENCH CJ:   That might be a threat of some kind.

MR SHANAHAN:   Yes, your Honour, and ‑ ‑ ‑

FRENCH CJ:   Surely it is not a criminal offence to have perhaps threatening body language.

MR SHANAHAN:   No, no, no, we need to be careful.  The appellant is not suggesting that the jury process needs to be pulled apart and that we need a microscopic investigation of the way in which ordinary people engage each other in trying to reach decisions within the jury room.

FRENCH CJ:   This is a concern of the Court of Appeal, is it not?

MR SHANAHAN:   Yes.

FRENCH CJ:   That what you had may not have been hard and sharp enough to warrant an inquiry.

MR SHANAHAN:   Well, there was no inquiry as to whether or not the person complained to the sheriff’s office during the course of the trial.  There were some basic questions that could have been asked, as we have tried to set out in our outline of propositions, that would have resolved this matter if it was to be resolved on the spot quickly.  So, for example, if it was a type of coercion of the type your Honour I think is describing, then the trial judge could have found that out quickly and we would not be here.  The fact is that physical coercion can also be coercion of the worst type and that is why there is an offence which precludes it.

So we are left in a position where there is an allegation of possible extraneous influences.  That is the test that was applied below – possible extraneous influences.  Now, if you have somebody saying they were bullied, that does not get you there.  It is not criminal conduct.  Intimidation might, depending on what it is, but that might require further questions to be asked and answered, and that is why the appellant contends that a robust trial process would envisage the trial judge making some preliminary inquiry as to exactly what the nature of the allegation was because then we would not be troubling your Honours.

Coming back to the rationale, I think I dealt with the first of those, which is a free exchange.  The second is that the rule relies upon a public pronouncement of the jury’s verdict without dissent.  I think I have dealt with that in this case by taking your Honours to the facts upon which the appellant relies and to point out that it is a rebuttable presumption and here there is evidence to suggest dissent.  The third is the need to ensure finality in litigation.  Now, obviously the need to ensure finality in litigation is a public good.  I think I can say that despite being a lawyer.  But it has to be balanced with the requirements of fairness and those requirements are prime in this country in relation to criminal proceedings.

CRENNAN J:   It might be a less strong rationale in these days where there are appellate processes anyway compared with Lord Mansfield’s time.

MR SHANAHAN:   Indeed, but in this case the appellate process is rendered redundant where there is no inquiry and your Honour will see that.  That is redolent in the reasons given below.  Had the Chief Justice had more data about the nature of the allegation and how it fitted into the trial process, again, I do not think we would be here.  It could have been resolved by receiving a report from the trial judge which would have answered a lot of the questions that were posed and remained unanswered, and it would have brought finality to the litigation because it would have ended in a Court of Appeal in Western Australia; again, we would not be here.

GAGELER J:   Common law justifications have to be reassessed, do they not, in the light of Part IXA of the Juries Act and the Criminal Appeals Act?

MR SHANAHAN:   Yes.  I think his Honour Chief Justice Gleeson in Minarowska at the bottom of page 86 talks about how the two work together and certainly his Honour Justice Buss in Shrivastava considered in outline how the two work together, although his Honour in that case did not specifically deal with section 56B(2)(b) to (f), which are the provisions that I am taking your Honours to now.  What is said about that is that the two must work together.  His Honour Chief Justice Gleeson said that the common law works supported to some extent by the legislation.

The evil – evil may be too strong a word – the problem that the appellant suggests might arise if this Court does not recognise the criminal conduct is extraneous to the rule or is an exception to the rule is that the legislative provisions that have been introduced may grow, so that the role of police and prosecutors in engaging some of these matters may grow either to the exclusion of the trial judge’s authority in the immediate aftermath of a trial, which the appellant says would be unfortunate; may grow to the extent of obtaining information from the sheriff’s office regarding protected information, which again may have consequences for the role of the trial judge which have not been anticipated.

Also, the problem would be that that would mean that the development of the law would be on a State and Territory basis rather than nationally and you would lose the coherence of the common law rule, potentially, if the comparatively homogeneous development of the criminal jury trial in Australia started to fracture and then this Court’s authority in terms of how the common law rule is to be understood and applied would become – well, it would not be where it is at the moment and that is why the appellant suggests that this is a good time to consider this matter.

GAGELER J:   We are dealing with a common law rule of evidence.

MR SHANAHAN:   Yes.

GAGELER J:   The common law does not apply to evidence in every State.

MR SHANAHAN:   That is so, but here ‑ I think, it has been recognised in Western Australia as a common law rule which would preclude the reception of evidence of jury deliberations properly so‑called and I think that that is the case in every State and Territory in Australia.  I do not know of any authority that suggests otherwise but the institutional and architectural issues that I have just referred to your Honour certainly suggest that now is a time to reconsider the rule.

I would add to that the observation I made earlier about the different modes of criminal trial that are emerging as well.  They certainly were not around in Lord Mansfield’s day and they require some attention in the sense of how does one look at this rule as having a coherent application across the board, how does it fit into other common law rules and how is it going to deal with the slightly different legislative landscapes in the different jurisdictions.

I think I got to 3, which was finality.  The fourth of the rationale is it is said that it should not be open to disaffected or disappointed litigants to importune jurors in the aftermath of giving a verdict which is clearly in the public interest and that is why what the appellant contends for is an inquiry controlled by the Court, controlled, as I have explained, in the first instance – not in this case but in the first instance – by a trial judge through sheriff’s officers and ultimately if that contemporaneous inquiry does not occur and there is an appeal by the Court of Appeal in aid of a statutory jurisdiction in respect of a substantial miscarriage of justice.

We avoid any contravention of that rationale of the rule by ensuring that the courts remain in control of the process of inquiry and it is not left to disaffected litigants such as in Rinaldi where the forelady of a jury ran into the defence counsel, apparently circumstantially, in the Downing Street Centre and counsel sent the forelady off to his instructing solicitors to take an affidavit which the Court of Appeal thought was improper, given section 68A of the relevant Juries Act.

FRENCH CJ:   Just going back to what Justice Gageler was putting.  The relevant evidence legislation in Western Australia is the 1906 Act?

MR SHANAHAN:   Yes.

FRENCH CJ:   And that, I think in section 5, says that it is:

in addition to and not in derogation of any powers, rights, or rules of evidence existing at common law –

MR SHANAHAN:   I am obliged to your Honour.  I think I have taken your Honours as far as I wish through the juries legislation.  Your Honours will find the comparative provisions in the different States are set out at paragraph 51 of the appellant’s submissions.  If the appellant succeeds on issue 1 which is that criminal conduct by one juror against another juror so as to affect the verdict falls outside and is extraneous to the rule then the appellant says issues 2 and 3 fall away in this appeal because 2 and 3 deal with, is there an exception and if there is not an exception should there be an exception.  Well, obviously, if we are outside the rule then the question of exceptions does not arise.

I am happy to deal with those matters and in terms of whether or not there is an exception, I think there are a couple of things that might be said briefly.  There has obviously been a debate about whether there is an exception.  His Honour Chief Justice Gleeson in Minarowska contemplates an exception.  Perhaps the closest we get in the authorities to recognition of an exception is in R v Myles which is a Queensland decision. 

In R v Myles the existence of an exception was considered by President Fitzgerald at page 205 and by Justice Pincus at page 208.  If I could deal with President Fitzgerald first at 205, lines 15 to 20.  If your Honours will just bear with me for a second - R v Myles is No 10 on the appellant’s list.

FRENCH CJ: It is [1997] 1 Qd R 199.

MR SHANAHAN:   Yes, thank you.

CRENNAN J:   Page 205?

MR SHANAHAN:   If your Honours have page 205, there are two passages there that I think are useful.  The first is between lines 15 and 25 and the second between lines 30 and 35.  Your Honours will see that President Fitzgerald rejected the proposition that the recognition of an exception would force the jury room wide open.  I think he also identifies exceptional circumstances as being the basis for the inquiry.

FRENCH CJ:   Well, the question of what is an exception may reduce to the question of what is deliberation.

MR SHANAHAN:   Yes, and in this case, your Honour, if it does, the appellant would not contend otherwise because criminal conduct could not possibly - well, with great respect, the appellant would say that it could not possibly be part of jury deliberations, properly so called, and were that not to be the case, then one could argue that might bring the jury as an institution into disrepute if commentators and others thought that as a result the rule was being used to protect such criminal conduct or to render it as not amendable to prosecution.  It would also render, if you like, your Honour, the power of police and prosecutors to investigate such crimes redundant if, having investigated them and having found the evidence, they could not admit it in a prosecution.

CRENNAN J:   You would only have to say suspected criminal conduct, would you not, for your purposes?

MR SHANAHAN:   Yes.  Possible, possible extraneous influences, which I think is correct, your Honour.  It is the same proposition.  Can I also take your Honours to page 208 to the reasons of his Honour Justice Pincus, who also acknowledges an exception between lines 5 and 15, at the top of page 208.

KIEFEL J:   His Honour says at about line 8 it is inconceivable that threats of physical retaliation would not be inquired into.

MR SHANAHAN:   I must say I read that passage with some anticipation, your Honour.  But of course, R v Myles may not be the law as this Court recognises it, but certainly there is support for the existence of an exception to the rule in that case.

FRENCH CJ:   Well, as I implied before, the question whether it is an exception depends upon how broadly you define the concept of deliberation.

MR SHANAHAN:   Indeed, your Honour, and to recognise criminal conduct as extraneous rather than as an exception would appear to be a more consistent and coherent approach to the operation of the rule based on the analogy with legal professional privilege, amongst other things.

KIEFEL J:   Taking up what the Chief Justice has said, in Adams’ Case, to which you earlier referred, at paragraphs 161 to 162 on page 457, on one view the evidence that was given about what had occurred in the jury room was not part of the deliberations.  They were statements about knowledge of the accused.  That might be an example of what the Chief Justice was referring to.

MR SHANAHAN:   Indeed, and that is why it is the appellant’s primary contention.  That is why issue 1 is our primary contention that criminal conduct of that type should be seen as extraneous to the rule, not an exception.  Issue 3 is if we are wrong about 1, and if we are wrong about 2, then there should be an exception, and of course the reasons why the appellant contends there should be an exception are reflected in the argument that has already been advanced, but perhaps if I can just pick out a few short observations. 

The first is the primary role of fairness in a criminal jury trial in Australia the applicant contends has reached a more developed form after Dietrich than it has in the United Kingdom, and that is evident from a consideration of the opinions offered by their Lordships in Mirza.  If fairness is the touchstone of a criminal jury trial, then it requires an exception in circumstances where fairness requires it.

FRENCH CJ:   I wonder whether, coming back to something Justice Keane put to you, it is really about fairness or about function.

MR SHANAHAN:   Yes, both.

FRENCH CJ:   They are doing what they are supposed to do.

MR SHANAHAN:   Yes.  The appellant would say both.  The appellant says that such an exception might be recognised for the same reasons that I advanced in relation to the problems associated with the separate development of the law in a State and territorial basis across the country ‑ ‑ ‑

KIEFEL J:   On one view, if the jury has not been able to deliberate according to their respective oaths, the whole criminal trial process which the court is supposed to ensure has miscarried.

MR SHANAHAN:   There has been no trial, yes, your Honour.  I now cannot recall exactly where the reference is, but I think in one of the cases, there is actually a passage to that effect, that you cannot have a trial if the trial is not conducted in the appropriate way.  Whether that is seen through the prism of fairness or through the prism of the proper administration of justice or the function of a jury, it is the same result.

Your Honours, that takes me to issue 4, which is the mechanism of inquiry.  I think we have traversed that ground quite considerably.  Essentially, what is put is that the trial judge might make some preliminary inquiry to see if the matter cannot be nipped in the bud by asking some straightforward questions at the start, and examples of those questions are set out in the outline of propositions.  If that does not resolve the question, then there can be an inquiry conducted by the court, the trial judge in the first instance, if a contemporaneous inquiry is ordered and that can be conducted through the sheriff’s office.

The sheriff’s office can then make a report to the trial judge and the trial judge can then take further action if required.  If for whatever reasons that contemporaneous inquiry does not take place, then the Court of Appeal could conduct a similar inquiry on the same basis and, in fact, I think in Victoria in the Juries Act there is specific provision for a Court of Appeal to do precisely that.  That perhaps makes the point I was making earlier about the legislature filling the void in the event that there is no development in the common law rule.

I have already pointed out to your Honours the relief that the appellant seeks – it is the declaration coupled with the remittal – and perhaps I could just finish with the words of Lord Atkin in Ras Behari Lal v King Emperor [1933] All ER Rep 723 which is number 17 of the appellant’s list, when he observes at 726:

Finality is a good thing, but justice is a better.

They are the appellant’s submissions, your Honours.

FRENCH CJ:   Thank you, Mr Shanahan.  Yes, Mr McGrath.

MR McGRATH:   May it please the Court, the respondent accepts that criminal conduct contrary to section 123 of the Criminal Code, being conduct between jurors, may amount to an event that is extrinsic to jury deliberations and, therefore, outside the exclusionary rule, and therefore evidence in relation to that would be in admissible form.  In our written outline of submissions, we referred to this in terms of evidence of violence, physical violence between jurors.  The characterisation of such an event is extrinsic to deliberations would, therefore, if this Court accepts that, renders it unnecessary to consider whether they are exceptions to the rule or residual discretion.

If it is extrinsic there is an event.  It is necessary then for the Court of Appeal to have determined first whether the event constituted an irregularity that gave rise to a miscarriage of justice and that is a prism in respect to which the juror’s note should have been examined.  The second issue, as my learned friend has said, is whether or not there was cogent evidence that grounded a reasonable suspicion of an irregularity or misconduct that required an inquiry.

Put that way, the gravamen of the appeal therefore substantially turns on a characterisation of the juror’s note, whether properly understood and characterised, does provide this credible evidence of alleged criminal conduct by a juror to a fellow juror and the section to which my learned friend has referred is section 123 of the Criminal Code. It is clear that the court below did not consider section 123 of the Criminal Code, nor did they consider the note in the prism of possible criminal conduct.

That is understandable, because that was not an issue put by the appellant in the court below, nor a matter raised by the respondent State.  Rather, the Chief Justice considered the note and looked at it in terms of improper conduct or influence, drawing a distinction which your Honour the Chief Justice this morning has recognised between robust discussion, conduct, statements between jurors which are perceived as intimidatory which would not be criminal in nature.  The submission I make that, in any event, if the contention of the appellant had been raised in the court below, it would not have grounded an allegation of criminal conduct for the reasons given by the Chief Justice that the note was not credible evidence.

KIEFEL J:   How can one be confident about that when the word physical appears in the note?  It is not just coercion, it is physical coercion.  The question really turns on that, does it not, whether or not a court seeing a note from a juror alleging physical coercion should inquire into it?

MR McGRATH:   The appeal does turn on the question of the construction of the note, your Honour, and ‑ ‑ ‑

KIEFEL J:   Is that the way to approach the question whether there should be an inquiry?  I mean, does one construe the note and determine whether there is some bar, are we assuming some kind of bar here of proof that has to be reached or is there ‑ as you say, do we approach it by saying, does it put the court on notice where it might have a reasonable suspicion about something improper having occurred and that warrants an inquiry?

MR McGRATH:   With respect, it is the latter.  My learned friend, in his submissions, puts it that the respondent’s reliance on the ambiguity is speculative and circular, and that by saying it is speculative may reach a court saying that an inquiry is necessary.  We say that is an incorrect way to approach it.  If that approach is accepted, it would result in any note, notwithstanding the varying degrees of ambiguity and uncertainty in the words, requiring resolution by inquiry.

His Honour, the Chief Justice, this morning referred to words such as “intimidated”, “I could not do my duty”, “I was scared”.  The question would be arising, whether or not those words would necessitate an inquiry, so the test ‑ ‑ ‑

KEANE J:   Well, that is really saying that the trial judge has to come to a view and act accordingly.  In this case, the trial judge was sufficiently concerned about the note to bring it to the attention of counsel and it is pretty clear that the trial judge had a view as to who the juror was, so the difficulties about identifying that juror and making an inquiry of him, do not seem to be all that insurmountable or all that difficult.

The problem is that the trial judge did not resolve the question that arose and that he thought was a matter of sufficient concern to raise it because he thought there was nothing he could do about it.  As he said, it is all too late, the verdict has been entered, so he did not seek to resolve the question that had arisen.  But, yes, there may be matters of fact and degree that a trial judge will have to consider but here the provenance of the note, what it meant, whether it really meant there had been physical coercion, whether that was actually true, was something which was not resolved because the trial judge was of the view that he had no power to do it, or to do anything about it.

MR McGRATH:   Yes.

KEANE J:   I mean, it is a concern, is it not, that where there is reason, and I say reason, not just speculation, but reason for concern as to whether the trial process has miscarried, that this notion that once the verdict is entered, nothing can be done.

MR McGRATH:   Your Honour, there is obviously, as your Honour has recognised, the demarcation between what the trial judge should have done and what the court below should have done and it is primarily – my submission is directed to as to whether the Court of Appeal by failing to grant the inquiry fell into error.  In respect to the learned trial judge, in fairness, the trial was completed at the end of day two.  The jury was discharged.  The transcript shows that the trial judge asked the sheriff’s officer to take the jurors from the courthouse because it was close to 7.00 pm and a conviction and the judgment was entered.

It was only the next morning the note had been raised.  The question could be asked what is it and what powers would the judge operate or use at that point to compel jurors to be returned to be examined.  Undoubtedly, if this had occurred whilst the jurors were still within the courthouse or during the trial process, if this note had been raised at the end of the first day the judge should have made an inquiry and the inquiry would have been for the first juror to be questioned and other jurors, if necessary.

FRENCH CJ:   I am sorry, what is the premise of that?  Does that rest on the premise that that note should have elicited an inquiry because it is something that is extrinsic to deliberation?  Does that involve a concession on your part?

MR McGRATH:   If the note, if it is understood by your Honours to be cogent evidence of a reasonable suspicion then it clearly raises the spectre of criminal conduct as extrinsic to deliberations.  If that is accepted and the learned trial judge receives that note, and it would be as your Honour Justice Keane – questions would be asked.  It is just that in reply I asked whether or not this judge could have done anything at this stage but really it falls as to whether or not the Court of Appeal should have acted and undertook the inquiry.

GAGELER J:   So you accept that the threshold for inquiry is the raising of a reasonable suspicion?

MR McGRATH:   Yes, it would be cogent to have a reasonable suspicion.

CRENNAN J:   Of an irregularity in the jury’s processes?

MR McGRATH:   Yes.  My learned friend took your Honours to the passage of the Chief Justice where he used the word “possible” but it is cogent evidence of a reasonable suspicion to raise it.  It would be difficult to place a higher bar than that and one borrows from a reasonable suspicion when other investigations or an apprehension occurs.  So we just return to the note.  His Honour the Chief Justice considered the note in his reasons and that is at paragraphs 34 through to 37 at appeal book pages 77 and 78.

GAGELER J:   Did his Honour apply the test that you have articulated?

MR McGRATH:   His Honour applied the word “possible”, page 72, line 40:

considers that there has been a material irregularity – that is, possible extrinsic influences have affected jury deliberations – the court may of its own volition make inquiries into that situation ‑ ‑ ‑

KIEFEL J:   How close does his Honour the Chief Justice come to that question?  In the last sentence at paragraph 37 after referring to the study into juror intimidation and the distinction between a robust interchange of views and improper intimidation, says:

The note discovered in this case also begs that important question.

MR McGRATH:   Yes.

KIEFEL J:   Where does that leave the matter?

MR McGRATH:   The question is begged and his Honour ‑ ‑ ‑

FRENCH CJ:   Is that another way of saying it could be one thing, it could be the other?

MR McGRATH:   Yes, it is, your Honour.

KIEFEL J:   Looking at paragraph 39, his Honour seems to approach the matter on the basis that the note itself has to be of a particular weight.  It has to be able:

to sustain a conclusion of fact . . . that the processes of the jury were so irregular as to give rise to a miscarriage of justice –

Is that the correct approach to whether an inquiry should be had?  It does not seem to accord with the concession that you made earlier.

MR McGRATH:   No, it would not be.  It would be, with respect, whether or not there is a reasonable suspicion that an irregularity ‑ ‑ ‑

KIEFEL J:   His Honour seems to be putting the bar much higher than that.

MR McGRATH:   He does in that respect, and at appeal book page 78, line 50, there is a further reference where his Honour then refers to the exclusionary rule.  If I could take your Honours to appeal book page 80, line 40, his Honour also considers the exception and his Honour returns to it at paragraph 48:

In my view, the note provides an entirely insecure foundation for the authorisation of what would necessarily be wide‑ranging and intrusive inquiries –

and it is the reasoning of the Chief Justice which the respondent relies upon as to why the note is considered not to provide the sufficient foundation for the inquiry and it is to those submissions I will return, your Honours.  Your Honour raised about physical coercion.  I agree it is an unusual choice or combination of words, but the words may describe a range of circumstances.  If one looks at the last of the – the note, “physically” we accept obviously pertains to the body, “coercion” may be to restrain by force, law or authority.  There are different interpretations one could give which compete.

It could be that what is being claimed here is a juror was dealing with a physically imposing person who uses his presence in a manner which is perceived as intimidating.  Voices may be raised, and a person may feel a sense of coercion.  His Honour the Chief Justice in respect to the first line of the note said it was a statement of conclusion rather than an act, that it was a sensation or a feeling of a sense of coercion.

The other aspects of the note which have to be taken into account are we do not know at the time when it was written.  It is virtually certain, though, the note would have been written prior to the verdict.  Therefore, it is not known whether the juror still held the view suggested by the note, whatever it may mean, when the verdict was delivered.  The second aspect is the second sentence of the note is incomplete.  The proper wording of the note is reproduced in the first page of his Honour the Chief Justice’s reasons for decision.  There is no full stop.  It is incomplete.  The unsigned and incomplete sentence does support the inferences that the Chief Justice said the juror may well have thought better of his proposition prior to the verdicts being delivered.

Another aspect, as his Honour said, is the manner in which the note was produced or discovered.  It was found in the jury room rather than handed to the sheriff’s officer, and this may cast doubt on the proposition the author ultimately intended the note to make its way to the trial judge. 

The significance should also be attached to the unanimous verdict taken in open court, and that should be given its full weight.  In Re Matthews and Ford [1973] VR 199 at 210, their Honours said one aspect of the rule and the manifestation of the underlying policy rationale is that when the verdict is announced by the foreman in the presence of the members of the jury with an affirmation of the question, and that is a verdict of…..and no members protest, there is a presumption that all jurors assented to the verdict.

Of course, it is a rebuttable presumption, and what my learned friend took your Honours to is accepted as to what the learned trial judge did say the next morning.  However, at the taking of the verdict on the previous evening, which appears at appeal book page 20, if I could take your Honours there - this is the evening before the taking of the verdict, where the unanimous nature of the verdict is accepted.  There was no cause and it is not recorded of either counsel or the judge to raise that there was any discord among the jurors. 

If, as it is said, the three matters to which my learned friend refers, being the discord was of such moment, one could ask why it was not a moment of comment on the evening before, or rather was it then perceived as a normal occurrence that is a frequent occurrence – certainly in Western Australia, given the emotional nature of jurors, the jurors do express disquiet.

CRENNAN J:   Given all the circumstances, is it possible to say though ‑ I mean, I understand your point about the note being in a way left to be conveyed to the judge in secret as distinct from open court for argument’s sake and no overt dissent on the announcement of a unanimous verdict.  But given all of that, is the note enough to raise a reasonable suspicion that the juror may not have been faithful to the juror’s oath or affirmation and if that is the way it is looked at does not an inquiry have to do no more than ask the juror whether the juror was faithful to the oath or affirmation?  Why would it be necessary even to go beyond that?  That would not be inquiring into the deliberations, would it?

MR McGRATH:   The difficulty with that though, your Honour, if I may say with respect, the affirmation is taken at the time of verdict and full weight must be given to that.  That jurors feel overawed or feel highly uncomfortable or change their mind later is not a matter that should be reasonably the subject of inquiry because of exclusionary rule.  In this instance, in my submission, with respect, is that if it is characterised or it opens up the – on reasonable suspicion of a criminal conduct then there should be, the exclusionary rule would operate to say that that should not ground an inquiry because of public affirmation.

KIEFEL J:   But this conduct is alleged to have occurred prior to the verdict being taken.  It is not a case of a juror having had second thoughts afterwards and, I mean, it is hard to conceive of an inquiry being based upon, as you have just said, someone having second thoughts or having feelings of disquiet about the verdict which they have agreed in.  But this conduct is alleged to have occurred in the process of deliberation.

MR McGRATH:   Yes, and as to the criminal nature, I have addressed that, but the second thought in that regard is that given that the note is virtually said it was written prior to the taking of the verdict that the juror, well, must have thought differently and affirmed the verdict.

KIEFEL J:   We assume that deliberation continue right up until the time the verdict is taken. 

MR McGRATH:   Yes.  So it is as his Honour the Chief Justice refers, it is replete with uncertainty both in content of the note and the circumstances in which the note was produced and it must be considered in light of the affirmation of the taking of the verdict.  To return as to whether if some ambiguity, some claim is raised underlying an assessment of that must be that the rationales for the exclusionary rule and it cannot be that any claim of ambiguity, however speculative, can ground an inquiry post‑verdict.

FRENCH CJ:   There are two things.  There is the scope of the rule and there is the question of what is sufficient to ground an inquiry.  They are distinct questions, are they not?

MR McGRATH:   They are, yes.

FRENCH CJ:   So if somebody were physically threatened with a view to having them reach a particular verdict would you accept that that falls outside the scope of jury deliberations for the purposes of the exclusionary rule?

MR McGRATH: If there was a physical act of violence or threatening, your Honour, yes. That was for the reason that adopting the orthodox dichotomy of extrinsic/intrinsic, an act, as we have said, of physical violence or threatening, which grounds an allegation contrary to section 123 could not be characterised as within.

FRENCH CJ: Even without section 123, I would have thought, the question of characterisation whether something is part of the deliberations or outside the framework of deliberations for the purposes of the exclusionary rule stands as a matter of characterisation. It does not depend necessarily on criminality, does it?
MR McGRATH:   The further one moves from the allegation of criminality the more problematic ‑ ‑ ‑

FRENCH CJ:   Well, that may be for underlying reasons.

MR McGRATH:   Yes, it certainly is.

FRENCH CJ:   You are moving into the territory of robust exchange and so forth that I spoke about earlier with Mr Shanahan. 

MR McGRATH:   That is where it becomes extremely difficult because of the secrecy of the jury rooms and, as his Honour the Chief Justice refers at paragraph 37 of his reasons, where he refers to various studies of juries and the one by Professor Fordham that the feeling of pressure and intimidation is not uncommon among jurors and the raising of voices, the use of physical presence most regrettable would not be uncommon and the real difficulty is if, your Honour the Chief Justice, if you are in that territory it – to use the expression – it raises rather a Pandora box of how far one looks at the manner and conduct of the jury deliberations. 

That is why my statement in light of criminal conduct permits me to say that that would – there was sufficient evidence to ground that inquiry because it would be outside, as your Honour says, the deliberations of the jury.  One part about – could I make this point – about the event, whatever it is described, it is not known obviously where the event occurred, which location, whether in the jury room, whether during the break, during the first day of the trial or after, but the location is not decisive as in respect to intrinsic or extrinsic.

In my submissions we refer at paragraphs 55 to 63 the reference to criminal conduct during deliberations and the respondent has been able to identify any authority considering the exclusionary rule in criminal conduct between jurors and as I have said they are accepted.  The two hypothetical examples that I refer is from R v Myles [1997] 1 Qld R 199 where his Honour Justice Pincus and President Fitzgerald referred to two various cases.  Whilst it was in respect to whether or not there should be an exception to the rule, it would be - in my submission those two examples given would be examples of outside the deliberation process.  It was of interest that I note Justice Pincus refers to there was a credible allegation in the test that he applied grounding an inquiry.

GAGELER J:   First, to the conduct and then to the effect of the conduct on the particular juror, would it not?  The ultimate question is has there been a miscarriage of justice?

MR McGRATH:   What would need to be examined – it may be referred to as the materiality of the event – and an assessment of the materiality may be assessed to be misconduct or an irregularity of such a nature that it is a miscarriage of justice.  Ordinarily, the inquiries would not venture in as to the effect that that irregularity or misconduct had on the actual deliberations.  For example, there is an example in Skaf or Minarowska where the use of internet searches or extrinsic material, the very act of that material ventured in the jury room is a misconduct of such a nature that there was a miscarriage and the convictions were quashed. 

There was no assessment as to the effect the irregularity had on the deliberations save if it was contended and the State relied upon a proviso to say that in light of all the evidence properly assessed, the intrusion of that particular material did ultimately not cause a miscarriage.  It is important not to look at the…..the effect it had on their – it would be a very difficult inquiry in respect of this matter because the words “physically” and “coercion” – if one is examining the juror, the inquirer would have to be careful as to say what was meant, was there touching, and the serious questions to which my learned friend ‑ ‑ ‑

CRENNAN J:   It would be the conduct plus whether or not the juror was able to act in accordance with their oath.

MR McGRATH:   Yes.  That question, to that extent, yes, it could be.

CRENNAN J:   Are you suggesting with your references to materiality that the inquirer would have to make an assessment about whether the juror was overreacting to certain conduct or would it be sufficient that the juror is able to say on the inquiry – perhaps, giving sworn evidence – “I was unable to be faithful to my oath having regard to the conduct”?

MR McGRATH:   That evidence could be received.  However, it would have to be asked why the juror forms that belief and when and what was the cause of that belief, your Honour.

CRENNAN J:   Well, I am envisaging that the two aspects of the inquiry, as Justice Gageler put it to you, would be the conduct and evidence about how the process went wrong which, in this case, on this set of circumstances, is what is suggested is that the juror might have been unable to be faithful to the oath.

MR McGRATH:   Yes, yes.  If there was, as it is put at its highest, a physical touching, an assault, that in itself would be, one would say, sufficient of a misconduct or irregularity.

The difficulty is, in answer to your Honour Justice Crennan, what is being described by that.  If we approach this on the basis that physical coercion is a physical touching or a physical assault and your Honours find that that inference that is asked to be drawn is open as an inquiry it becomes rather difficult if it is not physical, it is rather the robust discussion and emphasising it.

One could have similar inquiries after the end of most jurors.  It is an extraordinary way, as your Honours would obviously know, to conduct a determination of the guilt or otherwise of a person, the random selection of 12 persons, background, inexperience and most important, they have never worked together, boardrooms, directors, corporate executives, maybe judiciary do not operate in such a manner.

CRENNAN J:   It is not hard to accept that a subjective fear of registering your dissent to a verdict in open court possibly would not be enough.

MR McGRATH:   Yes, but equally so that within the jury room that persons feel overwhelmed, unwilling to speak and feel uncomfortable afterwards would not be uncommon and it is not an uncommon phenomenon, with respect, in corporate executives or boards that persons of varying strengths or various weaknesses acquiesce.  Perhaps I will not take it any further but I did agree with what your Honour Justice Crennan said about the nature of the inquiry and I could turn now to the inquiry.  There is probably not a great more deal I could make in submissions concerning the note, given his Honour Chief Justice Martin did outline why he found it was replete with uncertainty and could not ‑ ‑ ‑

FRENCH CJ:   Can I just clarify that that finding really is the basis of a decision.  What he said in relation to the exception to the exclusionary rule and whether there is a discretion are all in a sense obiter.  If one looks at 48 he talks about “an entirely insecure foundation”.  He is talking about the note and his characterisation of it, is he not?

MR McGRATH:   Yes, he is.  I agree with your Honour.  The fundamental underlying reason of his Honour the Chief Justice is that the finding of the note is replete with uncertainty and the structure of the note ‑ ‑ ‑

FRENCH CJ:   The note does not point you in a particular direction which could be characterised as conduct extrinsic to deliberation and so forth.

MR McGRATH:   Yes, that is correct and when his Honour deals with does the exclusionary rule have an exception he returns once again to the fact the note is, both the finding and the wording of note, is replete and uncertainty.

KEANE J:   Except that he sort of ties it back to the exclusionary rule in the last two sentences of paragraph 48:

Such a course would fly squarely in the face of the accepted public policy reasons for the exclusionary rule, and should not be countenanced.  This is why the application for orders authorising the conduct of inquiries into the deliberations of the jury must be rejected.

It seems that the exclusionary rule is sort of in there or at least the policy behind the exclusionary rule is something which his Honour has borne in mind or which has led his Honour to conclude that the note is not a sufficient basis for ordering an inquiry given that the reasons for the exclusionary rule are engaged.

MR McGRATH:   Your Honour, and in that respect, his Honour Chief Justice is not in error.  The rationale behind the rule and the policy reasons, the competing policy reasons, does inform in respect to as to whether or not there is a requisite level of evidence to suggest an inquiry and whether or not it is merely speculative or not.  So the rationale must be borne in mind and that is how I understand, how I read his Honour, the Chief Justice’s reasons, but I agree with what your Honour Justice Keane said, that he does return to that, but undoubtedly, the principal reason is the nature of the note.

GAGELER J:   You see exactly the same thought in paragraph 38 of his Honour’s judgment, leading to the conclusion in 39.  It is perhaps even more strongly expressed there, particularly the last sentence of paragraph 38.

MR McGRATH:   Yes, his Honour, yes, at appeal book page 78, paragraph 38, line 50 refers to some improper influence:

To the extent that the note suggests that he or she may have done so by reason of some improper -

Underlying that again “To the extent” is incorporating the strength of the note or the evidence and, as I commenced, it was never put in the court below that this conduct could be understood as a criminal conduct contrary to section 123 but, in any event, given what his Honour the Chief Justice says in those paragraphs the same determination would have been made but it is clear the words “To the extent” is what Justice Keane says, that the note underlines it.

If I turn then to assist the Court about the question of the inquiry, if your Honours find that the court below did err by not conducting an inquiry, then the question arises about the appropriate orders and the practicalities of the consequent inquiry.  The practicality inquiry - to the extent to which my learned friend in his submissions says that they are matters within the knowledge of the State that is not so.  Equally, the sheriff’s officer has not been able to provide any information as to what evidence is kept in respect to the jurors to the respondent.

Section 156 of the Supreme Court Act 1935 (WA) provides a sheriff is the officer of the Supreme Court and the sheriff officer will act upon any direction of the lawful order of the court. It is the respondent’s submission that there is no basis to conclude that an inquiry is no longer practical and rather there is reason to conclude the public officer such as the sheriff has retained records of the type necessary to facilitate ‑ ‑ ‑

FRENCH CJ:   Well, that would be really a matter for the Court of Appeal to determine, would it not?

MR McGRATH:   Yes, it is.  I raise that as whether if it is, as it was in my – in the appellant’s submissions that if an inquiry is no longer possible, and in my submission it clearly is possible, and the timeframe in which it would be conducted stands within an appropriate timeframe ‑ ‑ ‑

FRENCH CJ:   But if the appellant succeeded on the primary submissions and the matter were remitted to the Court of Appeal to consider according to law, one of the considerations that they might have is, is an inquiry possible?  If not, then what should be done?

MR McGRATH:   Yes, that would be the way my learned friend puts it, I agree. There was a discourse this morning regarding what powers or how the inquiry would be held. It would be conducted obviously within the prism of the ground of miscarriage of justice. Under section 40 of the Criminal Appeals Act 2004 (WA), the court has wide‑ranging powers to:

order the production of any record or thing –

whether it was an exhibit or not at trial – I see that section 40 is before your Honours. Section 40(1)(e) –

admit any other evidence –

compelled witnesses, and section 40(1)(l) –

exercise any power that the Supreme Court may exercise in a civil case –

In the respondent’s submission, the inquiry properly understood would be the Court of Appeal receiving further evidence and ‑ ‑ ‑

KIEFEL J:   And perhaps a report from the trial judge about the conduct of the trial, given the trial judge’s remarks about observations of the jury during the process of the trial.

MR McGRATH:   That would greatly assist, what your Honour has said, coupled with a confirmation as to the exact time and the circumstances the note was actually produced to the sheriff’s officer would be of assistance, and why, if the judge’s observation that he was aware of which juror it is, so the report greatly assists.  The Court of Appeal would conduct the inquiry in the manner in which it deemed appropriate.  Affidavits may be obtained – it would appear, as my learned friend says, either by way of the sheriff’s officer using the assistance of the State Solicitor’s office, which is the approach in the New South Wales cases. 

There are other examples of where the respondent State undertook to provide the affidavits which would not be, in my submission, the most appropriate course. Deponents could then be examined if necessary. The sheriff’s officer also retains all powers that exist at common law pursuant to section 165 of the Supreme Court Act, but in any event, being an officer he would face the directions and orders of the court. 

Examples of our inquiries would be conducted; R v Emmett (1998) 14 NSWLR 327. Affidavits from two jurors and the sheriff officer’s deponents were called and examined. The allegation there was that the sheriff officer himself during the trial had entered the jury room and expressed views; Rinaldi v The Queen (1993) 30 NSWLR 605 regarding the impermissible entry of material into the jury room. The Court of Appeal permitted the Crown to commence inquiries, and there, it was not necessary to engage in a wide‑ranging inquiry, simply the proof that the material had impermissibly entered the jury room was found to be an irregularity that required quashing of the conviction for the miscarriage.

We do in our submissions though make the point that it is a matter for the Court of Appeal.  The question is designed to elicit the truth of what occurred – should avoid touching upon the actual deliberations of the jury, as in other aspects of their reasoning, but should be centred on the focus on the particular note.

In respect to the lapse of time, this does not render any inquiry obsolete.  I note in R v Skaf (2004) 60 NSWLR 86 on 11 July 2002 the jury returned verdicts of guilty. On 24 February 2004 the registrar of the Court of Appeal received correspondence from the Public Defender who had been informed by the solicitor of unconnected possible jury misconduct. So this was raised some 18 months later and a report was obtained from the sheriff’s officer on 23 March 2004. The quashing occurred on 6 May 2004,

some two years later.  So the sheriff’s officer undertook, commissioned and completed the inquiry some 21 months after the incident. 

I raise that to reiterate there should be no doubt attending to the practicality and reliability of the inquiry, but once again I do accept that is a matter for the court below.  If it please the Court, they are the submissions for the respondent.

FRENCH CJ:   Thank you, Mr McGrath.  Yes, Mr Shanahan.

MR SHANAHAN:   Your Honours, there is an important point that needs to be made in relation to the decision below, in particular paragraph 48 that your Honour the Chief Justice took my friend to, and paragraph 38.  I would like to start at paragraph 38 if I may.  Your Honours will see that his Honour the Chief Justice at 38 on page 78 of the appeal book was dealing with the appellant’s proposition and indicated that for the appellant to succeed the court would have to accept:

the note is extrinsic evidence falling outside of the exclusionary rule.

Now, that is particularly significant because the test for an inquiry - your Honour the Chief Justice identified the two primary issues in this appeal.  The second one is the test for an inquiry.  The test for an inquiry, which is unchallenged and which was specifically accepted by my friend, is the test that appears at paragraph 16 on page 72 of the appeal book.  That test is:

If a court considers that there has been a material irregularity – that is, that possible extrinsic –

extrinsic –

influences have affected jury deliberations –

Now, what happens at paragraph 38 on page 78 of the appeal book is that his Honour the Chief Justice in the last sentence to which my friend took the court specifically finds that the note is intrinsic to the rule.  So, on no basis could this note satisfy the test for an inquiry according to his Honour the Chief Justice.  The test for an inquiry is satisfied once one realises that the conduct that we are dealing with in this case is extraneous to the rule, therefore it fits within the rubric of the test that appears at 16 and that is why the note is a proper basis for an inquiry. 

The comments in the findings regarding the ambiguity of the note, in the appellant’s very respectful submission, are obiter because effectively they are not matters that come into play.  Once you have decided the juror’s note is intrinsic to the rule that is the end of an inquiry based on the test at 16.  My friend took the Court to paragraph 37, which is the one immediately above 38, and it is the first sentence that I think is significant, your Honours, and that is the conclusion that:

Further, the first sentence of the note is expressed in terms of a conclusion, rather than a recitation of fact.

Well, with great respect to his Honour, the note as the appellant put in primary submissions, should be seen through the prism of the eyes of an ordinary juror.  One way of reading the note is that it is an account of fact, that it does relate what the jury experienced in the course of serving on the jury.

Once the manner in which the case was decided below is identified in that way then when one goes to 48 one can see that his Honour the Chief Justice is oscillating, if you like, between the fact that he sees the note as intrinsic and also his comments regarding what he perceives to be its ambiguity or uncertainty.  Once one identifies the conduct in the note as being criminal, possible extraneous influences, then an inquiry resolves all of the questions that have been put, all of them. 

If an allegation of physical coercion by one juror toward another to coerce their vote is not enough to secure an inquiry, what is?  When would the test for an inquiry ever be satisfied?  In this case, what would the juror have to do?  Does the juror have to, as his Honour the Chief Justice appears to suggest, establish – this is at paragraph 39 I am taking your Honours to on page 78 at the bottom, does the note have to:

sustain a conclusion of fact to the effect that the processes of the jury were so irregular ‑ ‑ ‑

FRENCH CJ:   A reverse floodgates argument?

MR SHANAHAN:   Yes, your Honour, it is too high and it is not consistent with the test at 16 and once one has recognised the true quality of the conduct then the application of the test becomes clear, the need for an inquiry emerges and all of the questions that have been put in relation to the note resolved.  The note was addressed to the trial judge and left on a jury table.  What more does a juror have to do?  A juror is not necessarily somebody versed in the processes of courts.

Justice Gageler I think put some of the questions that might be dealt with in an inquiry and the appellant would agree that an inquiry must ask what was the conduct, what was the effect of the conduct, the conduct would have to be considered in its context, but has to be seen objectively in

terms of its impact on the process of reaching a verdict, and ultimately the question must be whether the juror’s function failed, whether that is put in terms of the juror’s oath or otherwise.  Your Honours, they are the submissions of the appellant.

FRENCH CJ:   Thank you, Mr Shanahan.  The Court will reserve its decision.  The Court adjourns until 9.45 am on Tuesday, 3 December for pronouncement of orders.

AT 11.49 AM THE MATTER WAS ADJOURNED