Smith v The State of Western Australia
[2013] WASCA 7
•17 JANUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 7
CORAM: MARTIN CJ
McLURE P
MAZZA JA
HEARD: 13 NOVEMBER 2012
DELIVERED : 17 JANUARY 2013
FILE NO/S: CACR 122 of 2012
BETWEEN: MARK SHARNE SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :CURTHOYS DCJ
File No :IND 1246 of 2011
Catchwords:
Criminal law - Appeal against conviction - Whether juror's note alleging coercion amounted to an irregularity that resulted in a miscarriage of justice - Admissibility of the juror's note - Whether juror's note fell within the exclusionary rule - Whether there is an exception to the exclusionary rule in the form of a residual discretion - Juror's note is inadmissible applying exclusionary rule
Legislation:
Nil
Result:
The application dated 17 July 2012 and the appeal be dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A L Troy
Respondent: Mr J McGrath SC
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Biggs v Director of Public Prosecutions (1997) 17 WAR 534
Ellis v Deheer [1922] 2 KB 113
Harvey v Hewitt (1840) 8 Dowl 598
Jackson v Williamson (1788) 100 ER 153; (1788) 2 TR 281
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Nanan v The State [1986] AC 860
R v Brandon (1969) 53 Cr App R 466
R v Emmett (1988) 14 NSWLR 327
R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431
R v Marsland (Unreported, NSWCCA, 17 July 1991)
R v Minarowska (1995) 83 A Crim R 78
R v Mirza [2004] UKHL 2; [2004] 1 AC 1118
R v Papadopoulos [1979] 1 NZLR 621
R v Rinaldi (1993) 30 NSWLR 605
R v Rudkowsky (Unreported, NSWCCA, 15 December 1992)
R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86
R v Taka [1992] 2 NZLR 129
R v Thompson (1962) 1 All ER 65
R v Woodfall (1770) 98 ER 398; (1770) 5 BURR 2661
R v Woolcott Forbes (1944) 44 SR (NSW) 333
R v Young [1995] 1 QB 324
Ras Behari Lal v The King‑Emperor [1933] All ER Rep 723; (1933) 50 TLR 1
Re Matthews [1973] VR 199
Shrivastava v The State of Western Australia [No 2] [2011] WASCA 8
Tuia v The Queen [1994] 3 NZLR 553
Vaise v Delaval (1785) 99 ER 944; (1785) 1 TR 11
MARTIN CJ:
Summary
The appellant, Mr Mark Smith, appeals against his conviction on two counts of indecently dealing with a girl under the age of 13 years. His appeal relies entirely upon the discovery of a note apparently written by one of the jurors in the jury room following the delivery of the jury's verdict. In order to succeed in the appeal, it is necessary for Mr Smith to establish either that the note, of itself, establishes such an irregularity in the trial process as to require the verdicts of the jury to be set aside, or that there is an exception to the rule which prevents the receipt of evidence with respect to jury deliberations and that the terms of the note are such as to bring this case within the scope of that exception. For the reasons which follow, Mr Smith has failed to establish either proposition and his appeal should be dismissed.
The trial
Mr Smith was tried by a judge and jury in the District Court on an indictment which alleged two counts of indecent dealing with a girl under the age of 13 years. The trial commenced on 16 January 2012. The jury retired to consider its verdict at 3.20 pm on the following day, 17 January 2012. No questions or requests for further clarification were received from the jury which returned at 6.53 pm to deliver its verdicts. Verdicts of guilty on each count were pronounced by the foreman of the jury in the presence and hearing of all members of the jury. In accordance with the usual practice, after pronouncement of the verdict on each count, the jury was asked whether the verdict was the verdict of them all, to which the foreman replied in the affirmative. Verdicts of guilty on each count were recorded by the trial judge, the jury was discharged, and the matter was adjourned for sentencing on 2 March 2012.
When the hearing resumed the following day to deal with a bail related matter, the trial judge advised counsel that a note in an envelope had been discovered on the jury table in the jury room. The note was addressed to the judge and was in the following terms:
I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel (ts 187)
There was no indication on the note as to the identity of its author, either by name or by juror number. However, the trial judge expressed the view that one of the jurors was somewhat upset after delivery of the verdict and that it was probably obvious to counsel which juror that was. He also observed that the departure of the jury following the verdict was 'unusually noisy', and that the foreperson was a little slow to affirm that the verdict was the verdict of all members of the jury.
The trial judge expressed the view that as the verdicts had been entered, there was nothing he could do as a result of the discovery of the note, and the matter was adjourned until the sentence hearing on 2 March 2012.
The appeal
The only ground of appeal is as follows:
The trial of the appellant miscarried as a result of at least one juror being coerced, by another juror or jurors, into joining in the guilty verdicts.
The orders sought include an order that enquiries be conducted of the juror in question to clarify the meaning of the note and that the note and any further material obtained from those inquiries be admitted into evidence.
The appellant also filed an application for orders that a copy of the juror's note and envelope be provided to the parties and to the Court of Appeal on a provisional basis with the admissibility of the note to be determined at the hearing of the appeal, that the Sheriff make inquiries of and take an affidavit or statement from the juror who wrote the note, if known, and for that evidence to be provided to the Court of Appeal. There were other orders sought in the alternative along similar lines as to inquiries being made by the Sheriff's office and for the release of certain information about the juror. On 24 August 2012 Mazza JA ordered the application be referred to the hearing of the appeal. This application is relevant to the second and third propositions put to the court on behalf of the appellant, which will be explained below.
The exclusionary rule
The common law rule which prevents evidence being given of jury deliberations has become known as 'the exclusionary rule'. Although the precise origins of the rule are unclear, references to it can be found in the latter part of the 18th century - see R v Woodfall (1770) 98 ER 398; (1770) 5 BURR 2661 (Lord Mansfield); Vaise v Delaval (1785) 99 ER 944; (1785) 1 TR 11; Jackson v Williamson (1788) 100 ER 153; (1788) 2 TR 281.
Boniface attributes the origins of the rule to the belief of ancient jurists to the effect that jurors were led to the proper verdict by the presence of God, so that attempts to investigate jury deliberations would question the judgment of God - Boniface D, 'Juror misconduct, secret jury business and the exclusionary rule' (2008) 32 Criminal Law Journal 18, 24. It is clear that the rule exists to protect the secrecy and confidentiality of the deliberations of the jury. The rule was expressed by Atkin LJ in Ellis v Deheer [1922] 2 KB 113, in the following terms:
[T]he court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be (121).
More recently the rationale behind the rule has been expressed as the need to protect the finality of decisions and to protect jurors from coercion or pressure in the jury room.
The ambit of the exclusionary rule remains somewhat unclear. In Vaise, affidavits were tendered from jurors to the effect that the jury had resolved their differences of opinion by the toss of a coin. Chief Justice Mansfield observed:
The court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor [sic]; but in every such case the court must derive their knowledge from some other source; such as from some person having seen the transaction through a window, or by some such other means (944).
The rule expressed in these terms would appear to turn upon the source of the evidence, rather than the nature of the asserted irregularity. That view of the rule was reinforced by the decision in Harvey v Hewitt (1840) 8 Dowl 598, where evidence was adduced from the bailiff and others who were in the room adjoining the jury room to the effect that the jury had determined the verdict in the case by drawing lots.
Coleridge J said:
No doubt … we cannot take the affidavit of a juryman stating his own misconduct, or that of his brother jurymen … The affidavits here produced, however, are not made by the jurors themselves … but they are the affidavits of persons who witnessed the transaction itself, of agreeing to draw lots, and drawing lots (599).
In other cases it has been suggested that the ambit of the exclusionary rule may be determined by the physical location in which the alleged irregularity occurred. For example in R v Young [1995] 1 QB 324, evidence was tendered and admitted to the effect that while sequestered overnight, four members of the jury consulted a Ouija board and purported to have obtained guidance from the spirit of one of the deceased victims as to the guilt of the accused. Lord Taylor of Gosforth CJ observed:
We concluded having heard all the arguments that we were entitled to inquire into what happened at the hotel but not as to what happened thereafter in the jury room (332).
Defining the ambit of the exclusionary rule by reference to the identity of the witness providing evidence of an irregularity, or by reference to the precise location upon which the irregularity occurred has the character of arbitrariness. More recent cases in Australia have focused upon the substantive nature of the irregularity, and in particular whether it could be said to be extrinsic to the deliberations of the jury, rather than upon the source of the evidence or the location of the events in question. In Re Matthews [1973] VR 199, the Full Court of the Supreme Court of Victoria observed that while physical location may provide a convenient rule of thumb, the ambit of the exclusionary rule did not rest upon geography 'but rather on the social policy sought to be served by the particular rule of exclusion' (209). As explained by Pullin JA in Shrivastava v The State of Western Australia [No 2] [2011] WASCA 8:
The common law rule makes inadmissible evidence about deliberation between jurors; but evidence establishing that prejudicial events extrinsic to the process of deliberation occurred is admissible and is not affected by the common law rule. … Evidence about such extrinsic events does not involve any examination about what was discussed in the jury's deliberations [38].
There is a further reason that the distinction is important. If a court considers that there has been a material irregularity - that is, that possible extrinsic influences have affected jury deliberations - the court may of its own volition make inquiries into that situation (R v Young; R v Minarowska (1995) 83 A Crim R 78, 86). Such investigations might even be an obligation of the court, as suggested by Lee J in R v Emmett (1988) 14 NSWLR 327, where a Sheriff's officer wrongly intruded into a jury's deliberations:
For the court not to inquire into the matter would be for the court to condone the exposure of the jury to influence in arriving at its verdict by the very persons entrusted to ensure that the jury shall conduct its deliberations only with all jurors present, in secrecy, in private and free from opinions or pressure from anyone whether connected with the trial or not (335).
In some cases, the distinction between evidence which is extrinsic to the process of jury deliberation and that which is intrinsic is relatively clear. For example in R v Thompson (1962) 1 All ER 65, evidence that the foreperson of the jury advised other jurors of the prior convictions of the accused was held inadmissible, whereas in R v Brandon (1969) 53 Cr App R 466, evidence of the jury being told of the prior convictions of the accused by a bailiff was held to be admissible.
Other examples of evidence extrinsic to jury deliberation which has been found to be admissible by courts include the evidence of investigations of jurors who visited the scene of the crime to check lighting and distances (see R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 [266] ‑ [276]) and where evidence was received to the effect that documents prejudicial to the accused and which had not been admitted into evidence were inadvertently provided to the jury at the time of their deliberations (see R v Rinaldi (1993) 30 NSWLR 605 and R v Rudkowsky (Unreported, NSWCCA, 15 December 1992)).
Extrinsic evidence may also go to the capacity of jurors and to any misconduct of the jury. For example, evidence can be led to the effect that a juror was drunk or refused to participate in deliberations (examples provided in R v Skaf [214]; Tuia v The Queen [1994] 3 NZLR 553, 555 ‑ 556), or that a juror did not have a sufficient understanding the English language (Ras Behari Lal v The King‑Emperor [1933] All ER Rep 723, 725; (1933) 50 TLR 1, 2) or that a juror had been offered a bribe (R v Woolcott Forbes(1944) 44 SR (NSW) 333).
The line between evidence which goes to the deliberations of the jury, and evidence which goes to matters extrinsic to those deliberations is not always easily drawn. As Gleeson CJ observed in R v Minarowska:
The distinction between evidence relating to a jury's deliberations, and evidence of an irregularity in their conduct or procedures, or in the conduct of the trial in a manner capable of affecting the jury, although it may be blurred in some cases, is of considerable antiquity. However, the dividing line between proof of a jury's deliberations and proof of an irregularity in the proceedings may, as the present case illustrates, be difficult to draw (85).
In that case, it was held that evidence of jury access to an article in a magazine purchased by a juror containing a discussion of the proposal to abolish unsworn statements was within the ambit of the exclusionary rule and inadmissible. The difficulty of defining the precise boundary of the exclusionary rule to which Gleeson CJ adverted is well illustrated by the subsequent decision in R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431, where it was held that evidence to the effect that a number of jurors had acquired knowledge with respect to the accused from internet searches was admissible, by analogy to the cases involving jurors making their own investigations.
It has been suggested that the real basis for the different outcomes in R v Minarowska as compared to R v K is the degree of prejudice occasioned by the extrinsic material to which the jury had access (see Boniface (2008), 31). However, that proposition is difficult to reconcile with the emphatic rejection of any suggestion that the degree of prejudice defines the ambit of the exclusionary rule by Gleeson CJ in R v Minarowska:
Because the underlying policy aims to preserve the secrecy of jury deliberations, and to maintain the integrity and finality of a formally expressed verdict, the distinction between what may and what may not be proved, and what may and may not be challenged, is not drawn by reference to the degree of seriousness or potential injustice of what might have occurred. It is primarily drawn by reference to the outer limits of the veil of secrecy which is drawn over the jurors [sic] deliberations (87).
Perhaps the most graphic illustration of the refusal to take account of the degree of prejudice when determining the ambit of the exclusionary rule is provided by Nanan v The State [1986] AC 860. In that case, in the course of the trial judge's directions to the jury, he did not refer to the necessity of a unanimous verdict. Following their deliberations, the clerk of court asked the foreman of the jury whether he and the other members of the jury had agreed on a unanimous verdict, to which the foreman replied in the affirmative. The clerk then asked the foreman whether the accused was guilty or not guilty, to which the foreman replied that the accused was guilty. There was no protest from any of the other jurors who were all present. The accused was then sentenced to death.
Affidavits were tendered in evidence from the foreman and three other jurors to the effect that they were not aware that the verdict had to be unanimous, and that in fact eight members of the jury favoured one verdict and four members of the jury favoured another. The Privy Council ruled that the evidence was inadmissible, and dismissed the appeal.
The decision in Nanan was applied in this State in Biggs v Director of Public Prosecutions (1997) 17 WAR 534. In that case the jury were directed that any verdict which they returned had to be unanimous, and upon their return to the courtroom after their deliberations, they were asked by the clerk of arraigns whether they were agreed upon their verdicts, to which the forewoman answered in the affirmative. The clerk of arraigns then asked by reference to each of the seven counts on the indictment whether the accused was guilty or not guilty. In relation to the first six counts the forewoman replied, 'Not guilty', and in relation to the seventh she replied, 'Guilty'. On each occasion after the verdict had been pronounced by the forewoman, in accordance with usual practice, the clerk of arraigns inquired whether that was the unanimous verdict of all the jury, to which the forewoman answered in the affirmative. No objection was registered by any member of the jury present in respect of any of the answers given by the forewoman.
Verdicts of acquittal were entered by the trial judge in relation to the first six counts, and a verdict of conviction entered in relation to the seventh count. The jury were discharged. The accused was then sentenced on the count of which he had been convicted.
However, shortly after the court adjourned, the trial judge reconvened the court and advised counsel for the parties that she had been advised by the sheriff's officer that he had been told by a number of jurors that they did not understand that the jury had to be unanimous in relation to verdicts of not guilty. Her Honour then recalled the jurors (who had not been permitted to leave the building), empanelled them and asked in relation to each of the first six counts whether the verdict was unanimous. When a negative answer was received in respect of each count, the trial judge inquired in respect of each count whether there were ten or more jurors who were in agreement as to the verdict and was advised that there were not. The trial judge then recalled the judgment of acquittal which had been entered, and directed a retrial in relation to the first six counts. The accused commenced proceedings seeking declaratory relief to the effect that he was entitled to a directed verdict of acquittal on his plea of autrefois acquit in relation to the charges pending against him.
The Full Court of this court determined that the accused was entitled to the declaratory relief he sought on the basis that a misapprehension by a jury of the relevant legal principles underlying the pronouncement of their verdict did not provide any basis for conducting an inquiry into the nature of their deliberations, thereby reaffirming the exclusionary rule.
The rationale for the exclusionary rule
A number of public policy considerations have been advanced in support of the exclusionary rule, including the promotion of free and frank discussion among jurors, protecting the privacy of jurors including protecting them from harassment and victimisation, the encouragement of full and candid participation by jurors in deliberations, ensuring the finality of the verdict of the jury, and the maintenance of public confidence in the jury system (see Shrivastava [63] (Buss JA)). Some of the rationales for the rule are stronger than others. For example, it is difficult to contend that finality is preferable to justice in a context in which provision is made for appeals from the verdicts of juries on a variety of grounds, including the ground that the verdict is unsafe and unsatisfactory (M v The Queen [1994] HCA 63; (1994) 181 CLR 487). Similarly, it is open to debate whether the decision of the Privy Council in Nanan enhanced or diminished public confidence in the integrity of the justice system. However, whatever the strengths or weaknesses of the differing rationales advanced in support of the exclusionary rule, it is clear that the rule is so well established that any significant modification to the rule should be undertaken by the legislature or the ultimate appellate court and not by an intermediate Court of Appeal such as this.
The appellant's arguments
The appellant advanced three propositions. First, it was submitted that the note, on its face, provides sufficient evidence of an irregularity in the conduct of the jury as to give rise to a miscarriage of justice, in the sense of R v K. Second, in the alternative, it is submitted that if the note is construed as falling within the ambit of the exclusionary rule, there is an exception to that rule where the interests of justice require evidence which would otherwise fall within the scope of the rule to be admitted. Third, it is submitted that if the second proposition is accepted, directions should be made for the conduct of inquiries with respect to the course of the jury's deliberations (appeal ts 21 ‑ 22).
Is the note evidence of an irregularity falling outside the exclusionary rule?
R v K concerned the admissibility of affidavit evidence that was tendered to the effect that jurors had conducted their own internet searches. That affidavit evidence contained evidence that related to the internet searches and evidence which related to the use which was made of that information by the jurors in coming to their verdict [13]. The approach of Wood CJ at CL (Grove J and Dunford J agreeing) was firstly to consider the nature of the evidence under the exclusionary rule, and then to consider whether appellate intervention was necessary on the basis that this irregularity amounted to a miscarriage of justice. The court held that the parts of the affidavits that related to the fact of the internet searches were admissible as extrinsic evidence, and the parts of the affidavits that related to the jury's deliberations were not admissible under the exclusionary rule [54] ‑ [55]. In light of the evidence that could be received, the court went on to consider whether the court should intervene by quashing the conviction and ordering a retrial [56].
The court adopted the test formulated in R v Marsland (Unreported, NSWCCA, 17 July 1991) and applied in R v Rudkowsky. Those cases both concerned situations where inadmissible evidence had inadvertently come before the jury, which was found to be an irregularity. The test, as formulated by Gleeson CJ, is whether the court 'can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred' (R v Marsland (14)). Applying the test, the court in R v K found that the irregularity gave rise to a miscarriage of justice [78], allowing the appeal and ordering a retrial.
The appellant asks this court to make the same finding, the irregularity asserted being that one juror was physically coerced into changing his mind to be aligned with the other juror's vote (appeal ts 21).
This proposition is problematic in several respects. First, 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.
It is not known who wrote the note, although it might reasonably be inferred that it was written by one of the twelve jurors. It is not known when the note was written - that is, whether it was written before or after the verdict was delivered, although it seems more likely that the note would have been written at some time prior to delivery of the verdict given the usual practice of jurors being discharged following delivery of the verdict, so that it is generally unnecessary for them to return to the jury room.
If it is more likely than not that the note was written prior to delivery of the verdict, it is not known whether the juror remained of the view suggested by the note at the time the verdict was delivered. The fact that the second sentence of the note is incomplete, and that the juror failed to identify himself or herself, leaves open the possibility that the juror may have thought better of their position prior to delivery of the verdict.
Further, the first sentence of the note is expressed in terms of a conclusion, rather than a recitation of fact. In the context of jury deliberations, it may be that the author of the note was referring to a form of pressure or intimidation. That would not be surprising, as research into jury deliberations has established that a significant number of jurors, when questioned after their experience, reported that they felt intimidated or pressured during the course of their deliberations. In one study, 73.8% of those who reported those feelings (being 79.2% of jurors surveyed) reported that the pressure came from other jurors and that a number of those reported changing their vote as a consequence of the intimidation and pressure which they felt - Fordham J, Department of the Attorney General, Juror Intimidation? An investigation into the prevalence and nature of juror intimidation in Western Australia, 7 April 2010, 62. This study did not grapple with the difficult issue of distinguishing between the robust interchange of views which must be accepted as forming an appropriate part of jury deliberations, and improper intimidation resulting in a juror or jurors acquiescing in a verdict with which they did not agree, contrary to their oath. The note discovered in this case also begs that important question.
Second, the appellant's proposition relies on the court accepting that the note is extrinsic evidence falling outside of the exclusionary rule. However, to the extent that the note is capable of sustaining any conclusion to the effect that the deliberations of a juror were subjected to improper interference, the note falls squarely within the exclusionary rule. In this context it is significant that the verdicts of the jury were pronounced to be unanimous by the foreperson in the presence and hearing of all members of the jury. It can be inferred that the juror who was the author of the note in fact concurred with the other members of the jury in their verdict both prior to the jury reassembling in court and at the time the verdict was announced. To the extent that the note suggests that he or she may have done so by reason of some improper influence exerted by another juror, it would involve receiving evidence with respect to the deliberations of the jury and, in particular, the reasons why a juror voted in a particular way, contrary to the exclusionary rule.
For these various reasons, it is impossible for the note to sustain a conclusion of fact to the effect that the processes of the jury were so irregular as to give rise to a miscarriage of justice and the appellant's first submission must be rejected.
Is there an exception to the exclusionary rule?
Next, the appellant contends, in the alternative, that if the note is intrinsic evidence and therefore comes within the exclusionary rule, an exception to the exclusionary rule should be recognised so that, in an exceptional case, evidence that would otherwise be inadmissible under the rule can nevertheless be admitted.
The submission draws upon the dissenting judgment of Lord Steyn in R v Mirza [2004] UKHL 2; [2004] 1 AC 1118, and to the reference in a number of decisions in New Zealand to the possibility that there may be an exception to the rule - see R v Papadopoulos [1979] 1 NZLR 621, 626 ‑ 627; R v Taka [1992] 2 NZLR 129 and Tuia v The Queen (556). Reliance is also placed upon the reference made to the New Zealand cases by Gleeson CJ in R vMinarowska (87).
Dealing with these strands to the argument in turn, it is first to be noted that Lord Steyn was in dissent in R v Mirza and that all other members of the House of Lords denied the existence of any exception to the exclusionary rule. Turning to the line of cases in New Zealand, in R v Papadopoulos, which is said to be the most persuasive in this line of authority, the court did no more than note a submission made by counsel which it was unnecessary to determine. In the subsequent decision of R v Taka, R v Papadopoulos is cited in support of a proposition that the rule of confidentiality of jury deliberations 'may be subject to an exception' (131), and in Tuia v The Queen this was taken one step further where it was said that 'there can be circumstances raising a sufficiently compelling reason to depart from the general rule' (556). This review of the cases suggests that the proposition that there is an exception to the exclusionary rule may have developed incrementally from an insecure foundation. In any event, it is clear that there is no case in New Zealand which has been found to come within the so-called exception.
In R v Minarowska, Gleeson CJ referred to the New Zealand line of cases without deciding whether there was any residuary discretion to allow evidence to be admitted contrary to the exclusionary rule (88).
The decision of the Privy Council in Nanan, and the observations of Gleeson CJ in R v Minarowska to the effect that the ambit of the exclusionary rule is not defined by reference to the degree of prejudice suffered by an accused are, in my view, fundamentally inconsistent with the proposition that there is an exception to the exclusionary rule applicable in cases where the rule would cause severe injustice.
In Shrivastava, McLure P expressed the view that the clear weight of current authority in Australia was to the effect that there is no residuary discretion to allow evidence of jury deliberations even where there were sufficiently compelling reasons to do so [5]. Buss JA left that question open [71], [98], and Pullin JA expressed no view upon the subject. I respectfully agree with McLure P and conclude that there is no persuasive authority in this country capable of justifying the conclusion that the exclusionary rule admits of some undefined discretionary exception. I would therefore reject the appellant's second submission.
Could this case come within such an exception, if it exists?
Out of respect for the argument that was advanced, I will express my view on the third proposition advanced by the appellant, notwithstanding my conclusion that there is no exception to the exclusionary rule.
Assuming, contrary to my view, that there is an exception to the exclusionary rule, in my view this case would not fall within it. The nature of the exception contemplated by Lord Steyn in R vMirza is illustrated by the examples which his Lordship gave at the commencement of the judgment. They concerned a revelation that members of the jury were associated with a neo‑Nazi group and had urged a conviction of the accused because he was a black immigrant, or a case in which the jury ultimately arrived at a verdict of guilty by spinning a coin. This is not a case of the character suggested by these examples.
The observations I have already made with respect to the speculative nature of any inferences of fact drawn from the note and the circumstances of its discovery are relevant to this issue. In my view, the note provides an entirely insecure foundation for the authorisation of what would necessarily be wide‑ranging and intrusive inquiries into the deliberations of the jury, which would involve the interrogation of all twelve members of the jury well after delivery of their verdict and perhaps their cross‑examination. 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.
Conclusion
For these reasons the application for orders authorising the conduct of inquiries and the appeal should be dismissed.
McLURE P: I agree with the Chief Justice that the appeal should be dismissed, generally for the reasons he gives. I wish to make three short points.
The appellant's first proposition must be premised on the unexpressed assumption that the note in issue is outside the exclusionary rule because it is evidence of events extrinsic to the process of jury deliberation. It is not, for the reasons given by the Chief Justice.
It is only if the relevant events are outside the exclusionary rule (and the evidence in relation thereto is in admissible form) that the next issue arises, namely whether the events constitute an irregularity that gives rise to a miscarriage of justice. The appellant's first proposition fails at the first hurdle.
Further, I am not persuaded that a rationale of the exclusionary rule is the need to protect jurors from coercion or pressure in the jury room. If that is a reference to coercion or pressure from other jurors in the course of deliberations, it would narrow the current scope of the rule. As to the public policy considerations underpinning the exclusionary rule, see Shrivastava v The State of Western Australia [No 2] [2011] WASCA 8 [63].
MAZZA JA: I agree with Martin CJ.
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