Smith v The State of Western Australia [No 2]

[2016] WASCA 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2016] WASCA 136

CORAM:   MARTIN CJ

McLURE P
MAZZA JA

HEARD:   2 & 3 NOVEMBER 2015; ON THE PAPERS: 

25 NOVEMBER 2015, 14 & 21 DECEMBER 2015

DELIVERED          :   29 JULY 2016

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 - Where appellant convicted upon verdict of jury - Where note suggesting juror physically coerced into changing verdict handed to Sheriff after jury discharged - Whether juror’s note alleging coercion amounted to an irregularity that resulted in a miscarriage of justice - Where High Court ordered that exclusionary rule not applicable and Court of Appeal to determine whether inquiry into deliberations of jury practicable

Criminal law - Inquiry into jury deliberations - Test for establishing whether inquiry is justified - Burden on appellant to adduce evidence capable of belief which gives rise to a reasonable ground for suspicion that there may have been an irregularity in jury deliberations which could constitute a miscarriage of justice - Court satisfied inquiry was warranted

Criminal law - Whether inquiry into jury deliberations impracticable - Where difficulties in locating jurors - Whether Sheriff had power to engage police assistance - Provision of information to police with respect to identity of jurors not in contravention of Juries Act 1957 (WA) - Court satisfied that inquiry not impracticable

Criminal law - Inquiry into jury deliberations - Conduct of inquiry - Inquiry inquisitorial in character - Question to be addressed by inquiry directed towards institutional integrity of justice system not guilt or innocence of accused - Investigation of contentious facts conducted by Sheriff not parties - Determinations of fact made on balance of probabilities

Criminal law - Inquiry into jury deliberations - Court satisfied juror not subjected to any improper or unlawful duress or coercion - Shadow of injustice dispelled - No irregularity in trial process - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 40
Juries Act 1957 (WA)
Supreme Court Act 1935 (WA), s 156(1)

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr C P Shanahan SC & Mr A L Troy

Respondent:     Mr J McGrath SC & Mr L M Fox

Interested Party            :     Ms C Thatcher

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

Interested Party            :     Sheriff's Office

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443

Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134

Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733

Minarowska v The Queen (1995) 83 A Crim R 78

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66

R v Emmett (1988) 14 NSWLR 327

R v Mirza [2004] 1 AC 1118

R v Myles (1997) 1 Qd R 199

R v Skaf (2004) 60 NSWLR 86

R v Young [1995] QB 324

Re Portillo (1997) 2 VR 723

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

Smith v The State of Western Australia [2013] WASCA 7

Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473

Tuia v The Queen (1994) 3 NZLR 553

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

MARTIN CJ: 

Summary

1. Mr Mark Smith appeals against his conviction after trial by jury on two counts of indecently dealing with a girl under the age of 13 years.  His appeal relies entirely upon the assertion that a juror was coerced into joining in the verdicts of guilty on each count by the unlawful and improper actions of another juror.

2. The High Court set aside the earlier decision of this court dismissing Mr Smith's appeal[1] and remitted the appeal and Mr Smith's application for an inquiry into the events which preceded the delivery of the verdict of the jury to this court, to be heard and determined in accordance with the reasons of the High Court.[2]  In its reasons, the High Court held that this court should consider and determine whether it was practicable to conduct an inquiry into the events which preceded the delivery of the verdicts of the jury.

   [1] Smith v The State of Western Australia [2013] WASCA 7.

   [2] Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473 (Smith).

3. After some difficulties with respect to the location of prospective witnesses were overcome, this court determined that it was practicable to conduct an inquiry into the events which preceded the delivery of the verdicts of the jury, and such an inquiry was conducted in accordance with the reasons of the High Court.  Oral testimony was given by all jurors and by the Sheriff's officer who was responsible for the supervision of the jury.  Affidavits from a solicitor who assisted the court to gather information relevant to the inquiry were also received in evidence.

4. The evidence establishes that the author of the note which caused the High Court to direct that an inquiry should be held, if practicable, was the foreman of the jury.  His evidence was to the effect that he only agreed to join in the verdicts of guilty on each count because he was assaulted and threatened by another juror.  The evidence identified that other juror, who emphatically denied the foreman's allegations.

5. For the reasons which follow, I do not accept the foreman's evidence to the effect that he was unlawfully and improperly coerced into joining in the verdicts of guilty.  On the evidence adduced during the inquiry, I find that the foreman agreed to join in those verdicts of his own volition, and although there was robust discussion during the course of the jury's deliberations, the foreman was not subjected to any improper or unlawful duress or coercion.

6. It follows from these findings that there was no irregularity in the trial process and this appeal must be dismissed.

Procedure followed since the High Court decision

1. The decision of the High Court was published in February 2014.  In March 2014, the appeal was listed before the court[3] for directions with respect to the procedure to be followed.  After hearing argument, the court determined that the preferable course would be to first ascertain what information was available to the Sheriff with respect to the identity and address of the juror who wrote the note found in the jury room and the other members of the jury.  The parties were invited to provide a minute giving effect to that course, and orders were made in accordance with a minute provided by the parties in April 2014.  The Sheriff provided the information requested by the court, after which the parties conferred with respect to the procedure which should be followed to facilitate an inquiry utilising the information within the possession of the Sheriff.  Following that conferral, and the provision of minutes of proposed directions and submissions by the parties, the matter came back before the court for further directions in September 2014.  On that occasion the Sheriff appeared through counsel.

   [3] Comprised of the same Coram that had previously dealt with the appeal.

2. After hearing argument, the court directed that the Sheriff file an affidavit dealing with the circumstances in which the Sheriff's office believed that it was able to identify the juror who wrote the note, and deposing to the circumstances through which the note became known to the Sheriff's officer supervising the jurors.  The court further directed that the Sheriff appoint a lawyer for the purpose of assisting in the preparation and filing of affidavit and other evidence, and directed that such lawyer contact the juror who the Sheriff believed wrote the note and endeavour to obtain an affidavit from that juror setting out the circumstances which caused the juror to write the note.  The court further directed that if the lawyer appointed by the Sheriff was unable to obtain such an affidavit, an affidavit explaining the reasons for that failure was to be filed.  The matter was adjourned for further directions, on the basis that the parties would exchange minutes of proposed orders and written submissions after the affidavits directed by the court had been filed and served.

3. In due course an affidavit was filed by a lawyer engaged by the Sheriff.  In that affidavit the lawyer referred to the various steps which had been taken by the Sheriff to contact the juror who the Sheriff believed wrote the note, and referred to the Sheriff's belief that he had exhausted all means available to him that would enable him to contact that juror.  In that context, the matter came back before the court for further directions in October 2014.

4. At that hearing, counsel for Mr Smith submitted that the evidence established that further inquiry was not practicable, and that, in those circumstances, the appeal should be allowed on the basis of inferences of irregularity drawn from the terms of the note found in the jury room.  The respondent on the other hand submitted that further inquiries should be made with respect to the location of the author of the note, and that the Sheriff should engage the assistance of police to conduct those inquiries.  The respondent also submitted that inquiries should be made of the other jurors.  Counsel for the appellant took issue with respect to the court's power to make such directions, and the court directed that written submissions be exchanged with respect to that issue.

The power to engage police assistance

1. After considering those submissions, in December 2014 the court directed that the Sheriff request police officers to assist in ascertaining the whereabouts of the juror believed to be the author of the note.  The court further directed that any such police officers must not be officers that had any involvement in the investigation of the offences of which the appellant was convicted.  Further directions were made with respect to the preparation of an affidavit from that juror by the Sheriff's lawyer in the event that the juror's whereabouts were identified by police.  The court indicated that reasons for those directions would be given as part of the reasons for its final determination of the appeal.  My reasons for joining in the making of those orders now follow.

2. The respondent submitted that in the absence of any prohibition contained in the Juries Act 1957 (WA) (the Act) or elsewhere, the Sheriff did not require a legislative mandate in order to request the assistance of police to locate the foreman of the jury. The respondent further submitted that in any event, s 17 of the Act specifically empowered the Sheriff to obtain the assistance of police. That section provides:

   Police officers shall render such assistance in the compilation of the jury lists and jurors' books and shall undertake such inquiries, and shall supply such information, as the sheriff, or the Electoral Commissioner or any jury officer, or summoning officer, requires, whether for the purpose of ascertaining the names of persons not eligible or qualified to serve as jurors, or for any other purpose of the administration of this Act.

3. The respondent further submitted that the prohibitions against disclosure of protected information contained in pt IXA of the Act did not prevent the Sheriff from seeking the assistance of the police.  The respondent further submitted that there was an inference arising from the note to the effect that a criminal offence had been committed, which was in itself sufficient justification for the engagement of police.  The respondent further submitted that the coercive powers of the court to compel the attendance of the foreman at a hearing of the court could provide an alternative basis for the engagement of WA Police.

4. The appellant submitted that the provisions of pt IXA of the Act prohibited the Sheriff from engaging the assistance of WA Police.  In that part, the expression 'protected information' includes:

   [I]nformation that identifies, or is likely to identify, a person as, or as having been, a juror in particular proceedings.[4]

   [4] Juries Act 1957 (WA), s 56A(1).

5. The appellant submitted that the disclosure of information with respect to the identity of the juror believed to be the author of the note to WA Police would contravene the prohibitions upon the disclosure of such information contained within pt IXA of the Act.

6. I do not accept that submission.  The prohibitions contained in pt IXA of the Act prohibit disclosures of protected information which either constitute publication, or which create the likelihood that the protected information will be published.[5]  The word 'publish' is defined for the purposes of that Part to mean the communication or dissemination of protected information in such a way or to such an extent that it is available to, or likely to come to the notice of, the public or a section of the public.[6]  The provision of information to WA Police with respect to the identity of the juror believed to be the author of the note would not constitute 'publication', or be likely to lead to 'publication' of protected information, and is not therefore prohibited by pt IXA of the Act.  Further and in any event, s 56B(2)(e) of the Act specifically exempts the provision of information to a police officer for the purpose of an investigation concerning an alleged offence relating to jury deliberations from the prohibition contained within that section.  As the High Court expressed the view that the note found in the jury room gave rise to a reasonable suspicion that an offence may have been committed,[7] in my view the prohibition contained in s 56B does not apply to the provision of protected information to police which would enable them to investigate whether such an offence was committed.

   [5] Juries Act 1957 (WA), s 56B(1).

   [6] Juries Act 1957 (WA), s 56A(1).

   [7] Smith [59], [61].

7. On behalf of the appellant it was further submitted that s 17 of the Act did not authorise the engagement of police.  In support of that submission it was contended that, because the Act specifically provided for the investigation of offences with respect to jury deliberations by police, s 17 could not be construed as authorising police to assist the Sheriff to conduct an investigation into such matters which were not expressly consigned to the police for investigation by the Act.

8. I do not accept that submission.  The order made by the court authorised the Sheriff to seek the assistance of police to identify the current whereabouts of the juror believed to be the author of the note.  Once those whereabouts were ascertained, the other directions made by the court required a lawyer appointed by the Sheriff to endeavour to obtain information from that juror.  The actions taken by the Sheriff pursuant to those directions were in connection with the administration of the Act and were therefore expressly authorised by s 17 of the Act.  The provision of an express power to provide information to police in order that the police might conduct an investigation into the question of whether or not an offence connected with jury deliberations has been committed does not reasonably support an implication that the legislature intended that to be the only circumstance in which the Sheriff could engage police assistance.[8]

   [8] The principle of construction embodied in the Latin maxim 'expressio unius est exclusio alterius' (an express reference to one matter indicates that other matters are excluded) is not a strong indicator of legislative intent:  Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88, 94.

9. I accept the submissions made on behalf of the respondent with respect to the lack of any requirement for a specific legislative mandate for the Sheriff to enlist the assistance of WA Police and the alternative sources of power available to authorise the course taken by the court. In addition, this court has been directed by the High Court to hear and determine the appeal in accordance with its reasons, which include the conclusion that an inquiry might be conducted by the Sheriff under the supervision of the Court of Appeal in the exercise of its appellate jurisdiction, having regard to s 156(1) of the Supreme Court Act 1935 (WA).[9]  As the High Court noted, that section relevantly provides that the Sheriff is charged:

   [W]ith the … execution of all … commands of the Court which are directed to him, and shall make such return of the same as the Court together with the manner of the execution thereof as he is thereby required[.]

   Clearly implicit in the High Court's observation is the proposition that this court has the power to direct the Sheriff to take all steps necessarily and properly undertaken to facilitate an inquiry of the kind contemplated by the High Court.  That aspect of the decision of the High Court provides, in itself, quite sufficient authority for the directions made by the court.

   [9] Smith [62].

The power to compel the attendance of witnesses

1. After those directions were made, WA Police located the whereabouts of the juror believed to be the author of the note.  However, in February 2015 an affidavit was provided to the court by the Sheriff's lawyer to the general effect that the juror did not wish to co‑operate in the provision of information or to provide an affidavit.  Directions were made for the exchange of written submissions as to the course which should be followed in those circumstances, and the matter came back before the court for further directions in April 2015.

2. At that hearing the respondent submitted that leave should be granted to issue a subpoena to compel the juror to attend the court for the purpose of giving evidence with respect to matters relevant to the appeal. The appellant opposed that course and submitted that the court lacked the power to issue a subpoena to compel the attendance of the juror because such a power was not conferred by s 40 of the Criminal Appeals Act 2004 (WA), which authorised this court to order the attendance and examination of a witness who would have been compellable at the trial in the lower court.

3. The court directed that leave be granted to issue a subpoena compelling the attendance of the juror before the court at a date in June 2015 for the purpose of giving evidence.  The court announced that it would provide its reasons for that decision as part of the reasons for its final determination of the appeal.  My reasons for joining in that order now follow.

4. I do not accept the appellant's submission that authority to issue the subpoena is not to be found within s 40 of the Criminal Appeals Act for several reasons. First, if the trial judge had become aware of the events which are alleged to have taken place in the course of the jury's deliberations, in my view it would have been competent for him to conduct an inquiry into those events and, for that purpose, to take evidence on oath, as part of the trial. Accordingly, the relevant juror would have been compellable during the trial in the lower court and for that reason can be compelled to give evidence to the Court of Appeal pursuant to s 40 of the Criminal Appeals Act. Further and in any event, s 40(1)(1) of that Act confers upon this court the capacity to 'exercise any power that the Supreme Court may exercise in a civil case', which would include the power to compel the attendance of a relevant witness by the issue of a subpoena. But in any event, and perhaps most significantly of all, as I have already noted the High Court expressly concluded that this court had power to conduct an inquiry into the matters connected with the note found in the jury room. Implicit in that conclusion is the proposition that the court has, and can, exercise all the powers necessary to conduct such an inquiry, including the power to compel the attendance and examination of relevant witnesses.

A broader inquiry is directed

1. In any event, after the relevant juror was served with a subpoena requiring his attendance before the court he changed his position with respect to the provision of information to the lawyer engaged by the Sheriff, and on 26 May 2015 he swore an affidavit in which he deposed to the events which caused him to write the note found in the jury room.  That affidavit was provided to the parties prior to the date upon which the subpoena to the relevant juror was returnable before the court.  When the juror attended court in June 2015 in answer to the subpoena issued to him, the respondent submitted that the taking of his evidence should be adjourned until a broader inquiry had been conducted and information obtained from all other prospectively relevant witnesses, including the other jurors and the supervising Sheriff's officer.  The court accepted that submission and the hearing was adjourned until 2 November 2015 to enable those inquiries to be conducted and for information to be provided to the parties for their use in preparation for the resumed hearing.  Directions were made requiring inquiries to be conducted by the lawyer engaged by the Sheriff, and providing for the filing and service of affidavits from prospective witnesses.

2. Some such affidavits were filed in the ensuing months, and the matter was listed for further directions in September 2015.  At that hearing, directions were made with respect to the provision of further affidavits; the service of redacted versions of the affidavits upon the parties; and the procedure to be followed at the hearing.

The hearing

1. The hearing commenced on 2 November 2015.  By that time affidavits from all jurors except one had been filed and served.  The juror who did not provide an affidavit was juror 217.  The evidence made clear that he is the juror in respect of whom allegations were made by the author of the note found in the jury room.

2. The parties agreed upon the course which would be followed at the hearing, and the court endorsed the procedure which they proposed.  Pursuant to that procedure, juror 217 was called to give evidence first, and his evidence‑in‑chief was led by counsel for the Sheriff.  That juror was then cross‑examined by counsel for the appellant, and then by counsel for the respondent.  Under the agreed procedure, the next witness called was the author of the note found in the jury room.  His evidence‑in‑chief took the form of his affidavit, tendered in evidence by counsel for the Sheriff, after which that juror was cross‑examined first by counsel for the respondent, and then by counsel for the appellant.  Under the agreed procedure, the remaining jurors were then called.  Their evidence‑in‑chief in the form of their affidavits was adduced by counsel for the Sheriff, after which they were cross‑examined first by counsel for the appellant, and then by counsel for the respondent.  It was also agreed that the same course would be followed in relation to the evidence of Mr Walker, the Sheriff's officer who supervised the jury during the trial.  The parties also agreed that following the completion of the evidence a timetable would be set for the exchange of written submissions, to be considered by the court without the need for a further hearing.  Such a timetable was set by the court following the completion of the evidence on 3 November 2015.  All relevant submissions were provided by 21 December 2015.

The burden and standard of proof

1. Since the decision of the High Court, the parties have consistently maintained conflicting positions in relation to the burden and standard of proof.  The appellant asserts that the effect of the High Court's decision is that the respondent carries the burden of proving that the integrity of the jury's verdict was beyond question, given the 'shadow of injustice' cast over the verdict by the note found in the jury room.  The appellant further submits that although the standard of proof is on the balance of probabilities, that which must be proven is the elimination of suspicion with respect to the integrity of the verdict, or cast in terms of the test enunciated in Webb v The Queen,[10] that the facts do not give rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the jury has not discharged its task impartially.

   [10] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 53 (Mason CJ & McHugh J).

2. On the other hand, the respondent submits that the appellant carries the burden of proving facts which establish that a miscarriage of justice has occurred, and that those facts must be established on the balance of probabilities.  In this context the respondent draws a distinction between proof of the facts being, in this case, the events that occurred between the time the jury retired to consider its verdict and the time the verdict was announced; and the inferences drawn from those facts - namely, the inference as to whether the facts give rise to a reasonable apprehension that the jury has not discharged its task impartially.  The respondent further submits that, in the circumstances of this case, the focus of attention must be upon the identification of the events which occurred prior to delivery of the jury's verdict.  That is because the respondent accepts that if the foreman's evidence to the effect that he was physically coerced into changing his verdict is accepted, it necessarily follows that there has been a miscarriage of justice.  The respondent submits that the appellant carries the burden of proving, on the balance of probabilities, that the events described by the foreman occurred.

3. On the view which I take of the evidence adduced in this case, the resolution of these questions has no impact upon the outcome of the appeal.  That is because, for the reasons which follow, I am satisfied on the balance of probabilities that the events alleged by the foreman and which are said to constitute unlawful and improper coercion did not occur.  On the evidence as a whole, I am satisfied on the balance of probabilities that while there was a robust exchange of views between jurors in relation to the verdicts properly given, that exchange did not exceed the bounds of legitimate interchange available to jurors in the course of their deliberations so as to constitute an irregularity.  On that view of the facts, the appeal must necessarily be dismissed because facts have been established, to the standard both parties agree is applicable (the balance of probabilities), which exclude any reasonable apprehension or suspicion that the jury has not discharged its task impartially.

4. Nevertheless, against the contingency that a different view of the facts is taken, and having regard to the relative novelty of these issues, and out of deference to the arguments presented by the parties, I will express my views in relation to the issues raised.

5. In considering issues with respect to the standard and burden of proof in cases such as this, it is necessary to distinguish between a number of discrete issues, including:

   (a)the burden of adducing evidence sufficient to justify curial inquiry into the regularity of the jury's verdict;

   (b)the role of the court conducting an inquiry after evidence has been adduced which creates a reasonable apprehension or suspicion that the jury may not have discharged its task impartially;

   (c)the standard of proof in relation to contentious factual issues addressed in the course of such an inquiry;

   (d)the test to be applied to the facts found by the court following inquiry.

6. I will address each of these issues in turn.

The burden of adducing evidence sufficient to justify inquiry

1. Appeals are creatures of statute.  In Western Australia, appeals in criminal cases are governed by the Criminal Appeals Act. Section 23(1)(a) of that Act provides that an offender convicted of an offence on indictment may appeal to the Court of Appeal against the conviction. Relevantly to this case, s 30(3)(c) of the Criminal Appeals Act provides that the Court of Appeal must allow the appeal if in its opinion there was a miscarriage of justice. Although s 39(1) of that Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court, s 39(3) expressly provides that the subsection does not affect the power of an appeal court to admit evidence pursuant to s 40 of that Act, which gives an appeal court a range of powers, including powers with respect to the admission of evidence that was not before the lower court.

2. The Criminal Appeals Act does not define the expression 'miscarriage of justice', nor does it contain express provisions relating to the burden and standard of proof in an appeal.  In the absence of any statutory prescription of those matters, it is reasonable to infer that the legislature intended that the statute should be augmented by the common law of Australia with respect to such issues.  In my respectful view, this is implicit in the decision of the High Court in this case, in which principles drawn from the common law were applied in relation to such matters as the rule excluding, in some circumstances, evidence of jury deliberations, as well as to the assessment of matters which constitute a miscarriage of justice.

3. It is significant to note that in this case, Mr Smith's appeal against conviction was accompanied by an application that the Court of Appeal should conduct an inquiry into the question of whether there was an irregularity in respect of the jury's deliberations which gave rise to a miscarriage of justice.  Both matters were remitted to this court by the High Court.  As a matter of logic, consideration of the application for an inquiry necessarily precedes consideration of the appeal against conviction.  That is why I have cast the first question which must be addressed in terms of the burden of adducing evidence sufficient to justify an inquiry by the court into the regularity of the jury's verdict.

4. Three matters are of particular significance to the assessment of that question.  First:[11]

   [T]he question with which this case is concerned does not stand on the same plane as an issue raised by the parties for decision at trial; it is a question which, though it may affect the way in which the controversy between the parties should be resolved, is a question as to the integrity of the trial process.  The institutional integrity of the system of justice is at stake in a way that is not the case where the issue is solely one between the parties.

   [11] Smith [52].

5. Second, the combination of the exclusionary rule relating to the evidence of jury deliberations[12] and the provisions of the Act with respect to the maintenance of the confidentiality of information relating to jury deliberations and the identity of jurors imposes a considerable practical obstacle in the path of any appellant seeking to establish that a miscarriage of justice occurred by reason of an irregularity in the deliberations of the jury.

   [12] As explained by the High Court in this case.

6. These considerations appear to have prompted the High Court's observation that:[13]

   If there is evidence capable of belief which gives rise to reasonable ground for suspicion that one juror has exercised unlawful intimidation over another, then, on the face of things, there has been a serious breach of the presuppositions of the trial.  That breach casts a shadow of injustice over the verdict.

   [13] Smith [54].

7. The same reasoning appears to underpin the High Court's conclusion that:[14]

   If the note was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror has not discharged his task because of unlawful coercion, the appeal should have been allowed unless other evidence put the integrity of the verdict beyond question.  If the shadow of injustice over the verdict could not be dispelled, the proper course for the Court of Appeal would have been to allow the appeal, quash the conviction and order a new trial.

   [14] Smith [55].

8. Third, the exclusionary rule and the provisions of the Act with respect to confidentiality reflect and embody the public policy which protects the confidentiality of jury deliberations and the identity of jurors.  However, it is clear from the decision of the High Court in Smith that those policy considerations are subordinate to the need to ensure that there has not been a miscarriage of justice in cases in which evidence has been adduced which is 'capable of belief' and which 'gives rise to reasonable ground for suspicion'.

9. The decision of the High Court is consistent with the established presumption that the burden of establishing a miscarriage of justice rests upon an appellant.  However, in the particular circumstances of this case, the decision also establishes that an appellant may discharge that burden by adducing evidence which satisfies each of the requirements enunciated by the High Court - that is, evidence that is capable of belief and which gives rise to reasonable grounds for suspicion that unlawful intimidation of a juror has occurred.  If that evidentiary burden is discharged, because of the shadow of injustice cast over the verdict, the appeal must then be allowed unless the integrity of the verdict is put beyond question by other evidence.  Because of the practical obstacles in the path of adducing evidence with respect to jury deliberations, generally that other evidence will only be adduced through the conduct of an inquiry under the supervision of the court.

10. The nature of the issue to be addressed at this point in the process - namely, whether there is credible evidence giving rise to reasonable grounds for suspicion, and the context of confidentiality in which that issue is addressed, affects the nature of the evidence which might be adduced in support of an application for an inquiry by the court.  So, in this case, although the note is hearsay as regards the substantive facts which occurred in the course of jury deliberations,[15] the court is not required to make definitive findings with respect to those facts for the purpose of deciding whether an inquiry should be conducted.[16]  Rather, the question to be addressed by the court at this stage of the process is whether there are reasonable grounds for suspicion that a miscarriage of justice may have occurred, and the note is logically probative of that issue.[17]

    [15] Although no party objected to the admissibility of the note on this ground.

    [16] Smith [51].

    [17] As well as probative of the state of mind of the author of the note, and of the reason for that state of mind:  Smith [58].

11. For these reasons, in a case such as this, in order to sustain an application for a curial inquiry, an appellant carries the burden of adducing evidence capable of belief which gives rise to a reasonable ground for suspicion that there may have been an irregularity in the course of the deliberations of the jury which could constitute a miscarriage of justice. Once the point of curial inquiry is reached, because 'the institutional integrity of the system of justice is at stake',[18] and because only the court has the power to override the confidentiality provisions necessary to enable the inquiry to proceed, it is no longer appropriate to speak in terms of the burden of proof resting upon one or other party.

    [18] Smith [52].

The role of the court conducting an inquiry

The character of the inquiry

1. It follows from the observations I have just made that the character of an inquiry conducted by a court in a case such as this is primarily inquisitorial, rather than adversarial.  That conclusion is reinforced by two considerations.  First, the question to be addressed by the inquiry is not the question of the guilt or innocence of the accused, but rather is a question directed to the institutional integrity of the system of justice.[19]  Second, because of the statutory prohibitions upon disclosure of information relating to the identities of the jurors and their deliberations, it is both necessary and appropriate for the court to supervise both the manner in which any contentious factual issues are investigated, and the inquiry at which evidence with respect to those contentious facts is adduced.

   [19] Smith [52].

2. Consistently with this view, and with the observations of the High Court,[20] the investigation of the contentious facts in this case was conducted by the Sheriff, with the assistance of legal advisers and police, under the supervision of this court and in accordance with its directions.  The evidence‑in‑chief adduced at the hearing of the inquiry was all led by the Sheriff, although, of course, the parties were given the opportunity to cross‑examine any witnesses they required to be called.

The exclusionary rule

[20] Smith [62].

1. At least in a case such as this, where the High Court found that there was credible evidence giving rise to reasonable grounds for suspicion that unlawful pressure or influence had been applied to a juror in relation to his or her verdict, the exclusionary rule does not apply to any inquiry conducted by the court in relation to those matters.[21]

The evidentiary value of the juror's note

[21] Smith [45], [48].

1. As I have noted, the juror who was the author of the note which caused the inquiry to be conducted gave direct evidence (in the form of a written affidavit upon which he was cross‑examined) with respect to the circumstances which caused him to write that note.  At least in those circumstances, the note should be regarded as hearsay with respect to the acts and events which might be inferred from its terms.  The best evidence of those acts and events is the direct evidence received from each of the jurors.

2. On the assumption that the note had been written by the juror before the verdict was taken, the High Court expressed the view that the note was probative of the state of mind of the juror who wrote it, and of the reason for that state of mind.[22]  In fact, the evidence of the author of the note was that he wrote it 'as soon as we walked back into the jury room after delivering the verdict'.[23]  Although the note was written after the verdict, in my view it was sufficiently proximate in time to the delivery of the verdict to be probative of the state of mind of the author and of the reasons for that state of mind at material times prior to verdict and at the time the verdict was delivered.[24]  Further, for reasons which I will develop, the time at which the note was written, and the circumstances in which it came to the attention of the Sheriff's officer are relevant to the assessment of the evidence given by its author.

The focus of the inquiry

[22] Smith [58].

[23] Foreman's affidavit [38].

[24] Consistently with the authorities upon which the High Court relied - Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733, 751 ‑ 752; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [121] ‑ [122].

1. The High Court held that the exclusionary rule does not apply to exclude evidence relevant to an assertion that unlawful pressure or influence was applied to a juror in relation to his or her verdict.  However, the reasons of public policy which underpin the exclusionary rule remain relevant to the ambit and focus of the curial inquiry, which must be limited to evidence relevant to the question of whether unlawful pressure or influence was in fact applied to the juror in question.  An allegation of that character does not provide an occasion for a wide-ranging inquiry into the deliberations of the jury.

2. Further, the observations of the High Court are consistent with the maintenance of a distinction between evidence which is relevant to an assertion that a juror was improperly and unlawfully coerced into his or her verdict, and evidence relating to the risks which are inherent in any system of trial by jury, and which do not give rise to a miscarriage of justice if and when those risks eventuate.[25]  Those risks include the risk that a juror may not be true to his or her oath because of his or her personal eccentricities;[26] the risk of robust and vigorous debate, in the course of which intemperate or inflammatory language may be used from time to time; the risk of illogical reasoning; and the risk that jurors may not discharge their responsibilities with appropriate diligence, including the risk that one or more jurors may not actively participate in deliberations but will base their verdict upon the verdicts indicated by other jurors.  It follows that evidence going only to matters of this kind is irrelevant to the inquiry.

The evidence of the jurors

[25] Smith [46].

[26] R v Mirza [2004] 1 AC 1118 [151] ‑ [152].

1. It follows from the observations I have already made that the evidence of the jurors other than the author of the note is only relevant to the extent that it bears upon the question of whether improper or unlawful pressure was applied to the author of the note in relation to his verdict.  As there is no suggestion in the evidence that any other juror was subjected to improper or unlawful pressure, the actual views held by those jurors with respect to the guilt or innocence of the accused are irrelevant to the inquiry, although the views which they expressed in the course of deliberations may be relevant to the assessment of the sequence of events involving the author of the note.  However, because the focus of the inquiry is upon the issue of whether improper or unlawful pressure was applied to the author of the note with respect to his verdict, his subjective view of the guilt or innocence of the accused during the course of deliberations is relevant to that inquiry and is properly received in evidence.

The standard of proof

1. As I have already noted, the focus of curial inquiry in a case such as this is not upon the guilt or innocence of the accused, but rather upon the question of whether there has been a departure from the fundamental assumptions which underpin the system of trial by jury, whether by reason of an irregularity or the lack of jury impartiality, or a combination of the two.[27]  It follows that the standard of proof which must be met in order to establish the guilt of a person accused of crime has no application to an inquiry such as this, in which determinations of fact must be made on the balance of probabilities.  Determinations are to be made by reference to that standard, taking appropriate account of the seriousness of the allegation made, the inherent unlikelihood of an occurrence of the kind alleged, and the gravity of the consequences flowing from a particular finding.[28]  As I have noted, no party to these proceedings submitted otherwise.

   [27] See Webb v The Queen (53) (Mason CJ & McHugh J), (59) (Brennan J); Smith [54].

   [28] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66.

The test to be applied to the facts found

1. It will be apparent from the way in which I have formulated the issues to be addressed by the court that I accept the respondent's submission that a distinction must be drawn between determinations made after an inquiry with respect to the facts which occurred and which are said to have given rise to an irregularity; and the test which is to be applied when determining whether any irregularity established on the basis of the facts found has given rise to a miscarriage of justice.  The High Court has reiterated that the test to be applied to the determination of the latter question is whether the irregularity which the court has found to have occurred:[29]

   [G]ives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.

   [29] Webb v The Queen (53) (Mason CJ & McHugh J), cited at Smith [54].

2. In this case, the application of that test is not controversial because its outcome will depend critically upon the facts found by the court in accordance with the principles I have set out.  So, if the court finds that the author of the note was, as he asserts, subjected to improper or unlawful pressure with respect to his verdict, there can be no doubt that the test would be satisfied, and the verdict of the jury would be set aside.  On the other hand, if the court is satisfied that the facts asserted by the author of the note did not occur, then there has been no irregularity or departure from the assumptions which underpin the system of trial by jury, nor any event capable of giving rise to a reasonable apprehension or suspicion that the juror or jury has not discharged its task impartially, and the appeal must be dismissed.

3. There may be cases in which, after all avenues of inquiry have been exhausted, the court is unable to determine whether or not the events which are said to have given rise to an irregularity in fact occurred to the requisite degree of satisfaction.  In such a case, the views expressed by the High Court would suggest that if an inquiry has not dispelled the shadow of injustice cast over the verdict by credible evidence giving rise to a reasonable apprehension or suspicion that the juror or jury has not discharged its task impartially, the proper course would be to allow the appeal, quash the conviction and order a new trial.[30]  However, for the reasons which follow, in my view this is not such a case.

   [30] Smith [55].

The evidence

Juror 217

1. Juror 217 was the juror in respect of whom allegations were made by the author of the note.  He was the only juror not to provide evidence‑in‑chief in the form of an affidavit.  As I have noted, by agreement between the parties and with the approval of the court, he was the first witness to give evidence at the inquiry.

2. It was clear from his evidence‑in‑chief that juror 217 had a very limited recollection of the trial, which had taken place a little under four years before he gave evidence at the inquiry.  He could not recall the name of the accused until he saw it on the appeal court list.  He could not recall whether there was one charge or more than one charge against the accused.  He could not recall where he was sitting in the jury box, or that there was anything unusual about the lawyers involved in the case (when in fact the prosecutor was blind).  He initially could not recall when the foreman of the jury was selected, although he then proffered the view that it was at the time at which the jury had agreed upon its verdict (which is not correct).  He could not recall if the jury room had any windows, or the number of doors it had, or what toilet facilities were available to jurors.

3. However, juror 217 could recall that there was a male member of the jury who was 'very much opposed to the defendant being found guilty and he expressed his views quite forcefully'.[31]  He thought that person had described himself as a psychologist.  Juror 217 did not think there was anything unusual about the tone of discussion between the jurors, and did not think that discussions had ever become heated.

   [31] ts 127.

4. He did not think there was a time at which he left the jury room during jury deliberations.  Nor did he believe there was any time when he and the person who was opposed to the defendant being found guilty were ever together away from the other jurors.[32]  He emphatically denied any physical contact with that person, and in particular denied that he forced that person against the wall, or threatened that unless that person changed his verdict from guilty to not guilty, he would have the 'shit kicked out of him'.[33]

   [32] ts 128.

   [33] ts 128.

5. Juror 217 believed that the jury arrived at an agreed verdict between 6.00 pm and 7.00 pm, when the person who was opposed to conviction 'decided to change his vote right at the last minute'.[34]  He did not believe there was anything unusual about the circumstances in which that person changed his view.  He reiterated that he thought that it was the time at which they advised the Sheriff's officer that they had arrived at a verdict that the jury selected the foreman who was to announce that verdict.  One thing that struck him about the delivery of the verdict was that the person who had been opposed to conviction before changing his mind kicked the door of the jury room after the verdict had been announced.

   [34] ts 129.

6. In cross‑examination by counsel for the appellant, juror 217 could not recall whether the person who was opposed to conviction had nominated himself as foreman.  He accepted the proposition put to him that the jury retired at 3.20 pm in the afternoon and delivered its verdict at 6.53 pm, which generally fitted with his recollection.[35]

   [35] ts 131 ‑ 132.

7. Juror 217 agreed that it was likely that he would have gone to the toilet at some point during the jury's deliberations but had no recollection of it.

8. Juror 217 could not recall the foreman telling the jury that he had training and experience in specialist child interviews where sexual abuse had been alleged, although he reiterated his earlier evidence to the effect that he thought the juror in question had said that he worked in psychology and that he thought the girl (complainant) was telling a lie.[36]

   [36] ts 134.

9. On a number of occasions, juror 217 responded to cross‑examination with hostility.

10. Juror 217 could not recall the juror who was opposed to conviction stopping and starting the video recording of the complainant's evidence and discussing that evidence with other members of the jury.  Nor could he recall the point within the process of jury deliberation at which he expressed the view that the accused was guilty.  He could not remember the juror who was opposed to conviction saying that the case was not a simple one, or that the jury should give careful attention to the language that was used when the complainant was questioned.[37]  Although juror 217 agreed that his views and the views of that other juror were different as to the verdict, he rejected the proposition that they clashed during the course of deliberations, and the proposition that their clashes gradually became more heated.[38]  He did, however, accept that he advanced his views in an enthusiastic way, although he rejected the proposition that he spoke more loudly than he would normally speak.  He accepted that it was possible that he may have spoken over other jurors during the course of deliberations, but he could not recall that occurring.

    [37] ts 138.

    [38] ts 139.

11. Juror 217 stated that he did not believe that the juror who was initially opposed to conviction told the jury that he had been the complainant of serious sexual abuse himself.[39]  He emphatically denied that he responded by inquiring of that juror whether he was protecting a paedophile because he was one himself.

    [39] ts 141.

12. Juror 217 accepted that he did not have a clear recollection of the balance of opinion amongst the jurors, but he did not believe that there was only one juror opposed to conviction.  He thought some were unsure and others changed opinion during the course of deliberations.

13. When it was put to juror 217 that he would have noticed if the juror opposed to conviction left the jury room because at that stage he was the only person maintaining a not guilty plea, the witness denied the proposition emphatically and with some hostility.  He responded the same way to the proposition that he left the jury room with the juror who had a contrary opinion for the purpose of convincing him to change his vote.  He again emphatically denied that there was ever a time in which he and that other juror were in the men's toilet, or that there was any physical contact between them.  He was obviously offended by the propositions that were being put to him and expressed that offence in forceful terms.  He described the various propositions that were put to him with respect to his coercion of the other juror as a fabrication which never happened.[40]  He also denied that it was only after those events that the other juror changed his vote to a vote of guilty.

    [40] ts 144.

14. It was apparent during cross‑examination that juror 217 did not recall that the juror initially opposed to conviction was the foreman.[41]

    [41] ts 144 ‑ 145.

15. After the verdict was delivered, juror 217 recalled the other juror being upset and thinks he saw him writing a note.[42]  He emphatically denied that there was any contact between himself and that juror after they left the court.  In particular, he denied that he shook his hand, although in an answer to a subsequent question he appeared to accept that it was possible that he may have shaken that juror's hand, but could not recall whether that occurred or not.

    [42] ts 147.

16. Juror 217 said that he was aware that one of the jurors at the trial had alleged that they had been threatened and pinned to the wall because he was told of the allegations by the lawyer representing the Sheriff, and also because the police had approached him regarding the matter.[43]  He accepted that the lawyer did not tell him the identity of the juror who made the allegation, but he made an assumption as to the identity of the juror who could have made such an allegation.[44]  He assumed that the allegation had been made by the juror who initially considered the accused to be not guilty.

    [43] ts 148.

    [44] ts 149.

17. When it was put to juror 217 that he had declined to speak to the Sheriff's lawyer or to the police because he was worried about what he had done during the course of the jury's deliberations, he emphatically denied that proposition and stated that he was acting upon advice given to him by a friend who was a lawyer.[45]  He further asserted that he did in fact have a conversation with the police.

    [45] ts 151.

18. A portion of an affidavit sworn by the Sheriff's lawyer was then put to juror 217.  He agreed with the assertion contained in that paragraph to the effect that the lawyer did not tell him the identity of the juror who had made the allegation.  He also agreed with the proposition that the lawyer had told him that the allegation was made against him.  He also accepted that he had told the lawyer representing the Sheriff that all the jurors were together during the entirety of their deliberations, although he accepted that there may have been occasions upon which jurors had gone to the toilet and left the group deliberations.  He also accepted that he had told the Sheriff's lawyer that the jury felt intimidated by the juror who he assumed had made the allegation.  He maintained that view during cross‑examination, citing that juror's kicking of the door in support of his view.

19. Juror 217 emphatically denied the proposition that he could only have known which juror was making the allegation against him if in fact he had threatened that juror himself.[46]

    [46] ts 156.

20. Juror 217 did not accept the assertion contained in the affidavit of the Sheriff's legal representative to the effect that he had told her that not a single member of the jury would say that he (juror 217) wanted to be with the juror who had made the allegations.  He asserted that what he had told the lawyer was that no other member of the jury would think that he was capable of doing what was alleged, and she may have misunderstood what he was saying.[47]  He also disagreed with the assertion contained in the affidavit of the Sheriff's lawyer to the effect that she told juror 217 that she intended to provide the court with an affidavit about their conversation.  He asserted that he had told the lawyer that he would not be providing an affidavit himself.

    [47] ts 158.

21. When it was again put to juror 217 that he could only have known which juror it was who had made the allegations against him if in fact he had threatened that juror, he responded with an emphatic denial expressed in hostile terms.[48]

    [48] ts 159.

22. In cross‑examination by counsel for the respondent, juror 217 confirmed that he did in fact speak to a police officer by telephone.

The foreman

1. The evidence‑in‑chief of the foreman took the form of his affirmation of an affidavit he had sworn on 26 May 2015.  He can recall volunteering to serve as foreman of the jury, and having been chosen by other jurors to serve in that capacity.  He can also recall that the prosecutor was blind, and that by the time the jury had delivered its verdict it was dark.  He did not think that there was much of a time gap between delivery of the verdict and leaving the court.

2. The foreman described the lay‑out of the jury room, which he said was 'very claustrophobic'.  He also described the doors leading from the jury room - one into the court and the other into a small anteroom, from which there were doors into the male and female toilets.

3. The foreman used to work for a company that provided training to police with respect to the interview of children in circumstances in which sexual abuse had been alleged.  He was aware of the techniques customarily engaged in such interviews.  He told the other jurors of his experience in this field.

4. After watching the video record of the complainant's evidence, he had concerns with respect to her veracity.  According to the foreman, in his affidavit, when deliberations began there was initially an even split in opinion amongst the jurors.  According to him, the jury watched the child's evidence two or three times and other jurors got sick of him pausing the video to look at it.  He described the other jurors as initially diligent, but 'getting fidgety and moving around' as deliberations went on.

5. According to the foreman, he told the jurors that he had been the victim of serious sexual abuse as a child himself.

6. The foreman asserted that he had a problem with one juror who told him that he should know that the accused was guilty.  After he tried to explain that it was not as simple as that, according to the foreman, this other juror said:

   People who were fiddled with tend to become fiddlers themselves.  Are you protecting a paedophile because you are one yourself?

7. The foreman said that the process thereafter 'got ugly'.  He withdrew from active deliberations, thinking that common sense might prevail.  He sat in the corner and did not say much, rolling his eyes and 'tutting' in response to the discussions taking place around the table in the jury room.  According to the foreman, after he sat in the corner the discussion still went on for a couple of hours which 'felt like an eternity'.

8. Votes were taken progressively.  According to the foreman in his affidavit, after being fairly evenly split initially, gradually there was a shift towards voting guilty.  He was the last juror to maintain a vote of not guilty.

9. According to the foreman, he went to the toilet at some point during the deliberations.  A few seconds after he had walked in to the toilet, a juror walked in behind him.  He does not know the name of the juror, who he said was a male who spoke with an accent from a Mediterranean country.  This was the same juror who had earlier told the foreman that he should know the accused was guilty.

10. According to the foreman, the juror forced him against the wall and told him to change his position from not guilty to guilty, otherwise 'I would have the shit kicked out of me'.  According to the foreman, the other juror said something to the effect of 'I'm not wasting any more time with this bullshit'.

11. The foreman recalled being in fear for his safety, as the other juror had his forearm against his neck, and his other hand on the foreman's shoulder.  According to the foreman, his immediate thought was that he was not going to have his head kicked in over this and he said the words 'fine, whatever'.  In his affidavit, the foreman asserted that the other juror then left, after which the foreman spent a few minutes in the toilet composing himself.

12. According to the foreman, after that incident, he returned to the jury room and sat down on the floor in the corner.  It was then that the juror who had threatened him called for another vote, at which time there were 12 guilty votes.

13. The foreman asserts that he had not in fact changed his mind and would have voted not guilty but for the coercion to which he was subject.

14. The foreman is unable to recall clearly what happened next, as he was in a high state of stress.  He did, however, recall being asked whether the verdict of the jury was unanimous and recalled saying that it was.

15. When the jury returned to the jury room, the foreman was angry and upset about what had happened.  He remembered using his leg to forcibly open the swing door from the jury box, and pushing the doors into the jury room as he walked out of the court and into the jury room.  He was hoping that somebody would 'notice the noise and pick up that something was wrong'.

1. As soon as they walked back into the jury room, the juror wrote the note that he later passed to the Sheriff's officer.

2. The foreman recalls in his affidavit that underground tunnels were used to leave the court building in order to avoid contact with the accused, but according to the foreman the accused was right opposite them on the road when the jurors left the court anyway.

3. In his affidavit the foreman asserts that he recalls 'being downstairs having a cigarette' when the juror who had threatened him shook his hand and said 'no hard feelings'.  According to the foreman, this happened out in the street, although he was endeavouring not to be in a situation in which he would be alone with the juror who had threatened him.

4. In his affidavit, the foreman emphatically asserts that he would not have changed his vote from not guilty to guilty voluntarily, and that he only did so because of the coercion to which he was subjected.

5. During cross‑examination by counsel for the respondent, the foreman confirmed that his election as foreman took place on the first day of the trial.  He stated that after hearing the evidence of the child complainant, he formed the view that the accused was not guilty.  Although he could not recall when he expressed that view to other jurors, he could recall that the majority of them were not in agreement and that they were somewhat intransigent in their views.

6. After the jury retired to commence their deliberations, he was actively involved as foreman.  He accepted that he expressed the view that the accused was not guilty in robust terms.[49]

   [49] ts 168.

7. Although the foreman had stated in his affidavit that the views of the jurors were fairly evenly split when deliberations commenced, in his oral evidence he stated that when the first vote was taken, three-quarters of the jurors were in favour of a guilty verdict and three were in favour of a not guilty verdict.

8. During cross‑examination by counsel for the respondent, the foreman asserted that the statement made by the other juror (inferentially juror 217) with respect to victims of child sex abuse becoming perpetrators was made in the jury room at the jury table in the course of deliberations and in the presence of the majority of the jury.

9. The foreman accepted that a majority of the jury expressed the view that they did not want the video record of the complainant's evidence to be replayed again and again.

10. The foreman confirmed that after the other juror made the comment relating to his experience as a victim of child sex abuse, he withdrew from deliberations by leaving the table, lying on the floor and making audible noises while the other jurors went about their deliberations.  He also accepted that at one stage he left the jury room and lay on the floor in the anteroom.  While he was there, another member of the jury came out to see what was wrong with him.  The foreman accepted that what was wrong was that the rest of the jury were ready to convict, whereas he did not support that verdict.

11. In cross‑examination the foreman was unable to explain how it was that he thought that somehow common sense would prevail if he withdrew from deliberations.  He accepted that he would have withdrawn from deliberations within about 30 minutes of those deliberations commencing,[50] after which time his contribution became 'a lot of eye-rolling and tutting when other people were saying things that [he] believed reflected a mob mentality'.[51]  He accepted that he may have sat in the corner for a couple of hours while the other jurors deliberated.

    [50] ts 171.

    [51] ts 171.

12. In cross‑examination, the foreman stated there was no‑one else with him when he entered the toilet.  He also stated, contrary to his affidavit, that after the incident he left the toilet before the other person, and returned to the jury room.  He was unable to explain why he did not complain to the other members of the jury present in the jury room about what had happened in the toilet.  He also confirmed that he was aware that he could contact the Sheriff's officer if he needed to.

13. To the best of the foreman's recollection, after he returned to the jury room from the toilet he did not say anything further in the course of the jury's deliberations.  In cross‑examination, contrary to his affidavit, the foreman stated that he 'vaguely' remembered that he asked for another vote to be taken and it was at that time that he changed his vote to guilty.  He confirmed that at the time he said:[52]

    I will change my mind because it appears that is what all the rest of you want me to do.

    [52] ts 174.

14. He could not remember somebody saying to him that he did not need to change his vote.

15. When asked in cross‑examination why he did not tell the other members of the jury what had happened in the toilet, the foreman stated that he was 'pretty overwhelmed' and that it was not the most suitable case for him to have been on, given the childhood experiences that he had, and that he saw certain similarities in terms of the coercion that occurred in the toilet which caused him distress.

16. At this point in his evidence, the foreman became emotional and sobbed quietly in the witness box for about five minutes.

17. The foreman denied that he simply changed his verdict when he realised that he would not be able to resist the majority view.[53]

    [53] ts 175.

18. The foreman was asked whether, at the time the jury reassembled in the courtroom for the purpose of delivering their verdict, he considered whether he should tell the judge what had happened.  He replied:[54]

    It's very - very - difficult given the - sort of the very formal and artificial nature or an environment like this to be able to sort of, you know, break ranks and - as it were, and make comment.

    [54] ts 175.

19. The foreman also confirmed that when he was asked if the verdict of the jury was unanimous, he confirmed that it was.  He confirmed the assertion in his affidavit to the effect that he caused noises to be made after the verdict had been delivered in the hope that somebody might ask him what was wrong. 

20. The foreman stated that he wrote the note because he was worried that his actions were going to have lasting and long‑standing consequences for a man he did not believe was guilty of the crime of which he had been accused.[55]  He confirmed that the note was written in the jury room after the verdict had been delivered.  The foreman stated that the note may have been written in the presence of other jurors but it was not written openly and dramatically.

    [55] ts 176.

21. When asked what he thought would happen when he wrote the note, the foreman replied:[56]

    To be honest with you, I wanted out of that jury room.  I wanted out of the situation that I was in, the environment that I was in.  I felt that a huge sort of miscarriage had taken place and I was complicit in that and I was hoping that by - that that was the very, very least that I could do.

    [56] ts 178.

22. When it was put to the foreman in cross‑examination that he and the Sheriff's officer left the court building together, he accepted that proposition.  When asked why he did not then speak to the Sheriff's officer about the assault which he asserts had taken place, he stated that he was ashamed.

23. When asked how he travelled home that evening, the foreman stated that he remembered standing outside the entrance to the court and he recalls a taxi being involved.  According to him, he was outside the court with other jury members.  He confirmed the assertion in his affidavit to the effect that it was at this point that the other juror came up and shook his hand and said 'no hard feelings'.  He could not recall whether the Sheriff's officer was present when this occurred.

24. The foreman confirmed that after completion of the trial he took no action to raise the matters asserted in the note with anyone, and that the next he knew of such matters was when he was contacted by police and then interviewed by a lawyer representing the Sheriff.[57]  When it was put to the foreman that he was content not to complain, he stated:[58]

    Well, you've got to understand that there is a - you know, a great deal of guilt and shame based on what had happened and, you know, the fact that I wasn't able to push aside, sort of, the things that were going on in my head, to be able to sort of make it aware that - you know, that this had actually occurred.

Juror 579

[57] ts 179.

[58] ts 180.

1. The evidence‑in‑chief of juror 579 took the form of his affirmation of an affidavit sworn on 23 July 2015.  In that affidavit he stated that he remembered one of the lawyers involved in the trial was blind.  He also remembered that when the initial vote was taken, the jury was divided with respect to the guilt or innocence of the accused.

2. Juror 579 recalled that at some point during the deliberations the foreman and another person stood up and faced each other and there was a verbal confrontation.  Each was adamant about their position.  He was 'pretty sure there was no physical contact, it was just verbal'.  After that, one of the jurors walked out of the jury room towards the toilets.  He was there for about 15 minutes or so.  He came back in and everybody thought that was the end of the matter.

3. Juror 579 remembers that another vote was taken at which the jury were pretty close to a unanimous guilty verdict.  Some time after that the jury arrived at a unanimous verdict of guilty and the foreman delivered the verdict.  After that they returned to the jury room.  According to juror 579, one of the men in the jury 'sort of stormed out'.  He thought he had a backpack.  He picked the backpack up off the floor and stormed out in front of everyone else.  Juror 579 did not identify that man as the foreman in his affidavit.

4. In cross‑examination by counsel for the appellant, juror 579 stated that he had no recollection of the foreman telling the jurors that he had been the victim of serious sexual abuse.  Nor did he have any recollection of another juror saying to the foreman at some stage:

   People who were fiddled with tend to become fiddlers themselves.  Are you protecting a paedophile because you are one yourself?

   He accepted that it was possible that this may have been said, but if it was, he did not hear it.

5. Juror 579 was unable to recall whether the foreman withdrew from an active role to assume a more passive role during the course of the deliberations.  Nor could he recall the foreman leaving the jury room during the course of deliberations.  Juror 579 only left the room when there was a toilet break.  So far as he could recall, jurors went to the toilet at different times.

6. Juror 579 could recall the juror involved in the confrontation with the foreman leaving the jury room during the course of the deliberations.  However, he did not think he left shortly after anyone else.[59]  He did not recall seeing the foreman write a note at any time.

   [59] ts 192.

7. During cross‑examination by counsel for the respondent, juror 579 described the confrontation as 'a verbal altercation', although he could not recall what was said.

Juror 432

1. The evidence‑in‑chief of juror 432 took the form of his affirmation of an affidavit sworn on 24 September 2015.  In that affidavit, juror 432 set out a number of recollections which he has in relation to the subject matter of the trial.

2. The affidavit affirmed by juror 432 attaches a handwritten statement which he gave to police on 22 July 2015, and affirms the truth of that statement.

3. In that statement, juror 432 states that a foreman was called for at the beginning of the trial and one of the male jurors volunteered straight away.  There were no other volunteers.  Juror 432 was able to accurately describe the foreman. 

4. Juror 432 described the jury's deliberations as 'longish' in his statement to police.  He recalled that the deliberations continued after dinner, and that everyone was getting tired and wanted to go home.

5. In his statement to police, juror 432 referred to personality clashes which occurred during deliberations.  In particular, he remembered the foreman having heated verbal exchanges with other jurors, both male and female.  He also recalled 'the foreman going on about having child psychology experience' and that this experience conveyed to the other jurors that he had more expertise in this area.

6. According to juror 432 in his statement to police, towards the end of deliberations, the foreman 'sort of gave up, everyone else was against him'.  After a while the foreman sat on the floor and said 'do what you want'.

7. In his statement to police, juror 432 also referred to personality clashes between a man and a woman in the course of jury deliberations.  He described the appearance of the participants in that clash.

8. In his statement to police, juror 432 summarised the position in these terms:

   Basically in a nutshell there was a personality clash.  The foreman thought there wasn't enough to find the accused guilty.

9. Juror 432 also recalls one of the jurors saying that he had a child of similar age and felt strongly about the nature of the offence (this seems likely to be a reference to juror 217).

10. Juror 432 recalls that, after deliberations, the foreman handed a note to the Sheriff for the Sheriff to hand to the judge.  After the jury was dismissed, the jurors were ushered outside the building.  It was then quite dark, and the jurors broke up into little groups to catch taxis.

11. In his affidavit, juror 432 described the layout of the jury room.  Also in his affidavit, juror 432 expressed his recollection that the foreman was strongly of the opinion that the case had not been proven beyond reasonable doubt.  He recalled 'strong verbal arguments' between the foreman and at least two jurors, one male and one female.  He also reiterated the observation he made in his statement to police to the effect that in the final stages of deliberation the foreman became disinterested, first sitting on the floor and then totally lying down on his knapsack detaching himself from the proceedings.

12. In cross‑examination by counsel for the appellant, juror 432 stated that he could not recall whether the male juror with whom the foreman had a strong verbal argument spoke with a European accent.  Nor could he recall the foreman repeatedly playing the record of the complainant's evidence and pausing that evidence at various points.[60]  He had no recollection of the foreman telling other jurors that he had been the victim of serious sexual abuse himself.[61]  Nor did he have any recollection of any other juror saying to the foreman that:

    People who were fiddled with tend to become fiddlers themselves.  Are you protecting a paedophile because you are one yourself?[62]

    [60] ts 196.

    [61] ts 196.

    [62] ts 196.

13. According to juror 432, the foreman withdrew from participation in the deliberations of the jury about half an hour before the verdict was delivered.

14. Juror 432 had what he described as a very, very vague recollection that the foreman may have left the jury room to go to the bathroom.  He did not recall the juror with whom the foreman had been arguing leaving the jury room to go to the bathroom.[63]

    [63] ts 197.

15. During cross‑examination by counsel for the respondent, juror 432 stated that the exchange between the foreman and the male juror related to the evidence.  He agreed that it was a heated exchange concerning whether the accused was guilty.  When asked whether he had any recollection of the foreman's position in relation to the last vote taken in the jury room, juror 432 replied:[64]

    Look, by that time the foreman - I saw him completely detach from the case.  He would just, you know - he wasn't interested.  The last half an hour or so he was just laying down on the floor - first sitting down then laying down, totally detached from the proceedings.

Juror 406

[64] ts 198.

1. The evidence‑in‑chief of juror 406 took the form of his affirmation of an affidavit sworn on 21 August 2015.  In that affidavit he set out some of his recollections from the trial, including his recollection of the fact that the prosecutor was blind.  He described the process by which the foreman was selected and gave an inaccurate description as to the physical appearance of the foreman.  In his affidavit he was able to describe some of the layout of the jury room, but was not able to state whether there were toilets in the jury deliberation room, or whether there was a television in that room.  Nor could he remember whether any of the jurors ever went to the bathroom in the course of deliberations.

2. According to juror 406, in the first ballot most jurors were in favour of a guilty verdict, but somewhere between two and four people initially favoured a not guilty verdict.  After that ballot, the jurors again discussed the evidence led at trial.  Following those discussions, another vote was taken.  This process was repeated a few times, with the result that the number of people who voted not guilty reduced with each vote.

3. According to juror 406 in his affidavit, the foreman was one of the most vocal jurors, although the foreman did not say whether he thought the accused was guilty or not guilty.

4. In his affidavit, juror 406 states that there were raised voices at times 'but people never got abusive with each other or jumped out of their chair or anything like that'.  He recalled that one of the male jurors was quite vocal in saying that the accused was guilty, and gave a description of that juror which matches juror 217.

5. According to juror 406, at the very end of the jury's deliberations things got heated.  He recalled that the jury kept discussing the evidence, and then the foreman got angry and loudly said something like 'fine' and hit a button to alert the judge that they had come to a verdict.

6. According to juror 406 in his affidavit, after the verdict had been delivered, the foreman stormed out of the courtroom back through the doors to the jury deliberation room.  According to juror 406, the foreman left before the jury was dismissed by the judge.  The rest of the jury waited until they were dismissed by the judge.  The jurors were then taken to the foyer downstairs and escorted out of the court.

7. During cross‑examination by counsel for the appellant, juror 406 could not recall whether the jury looked at the recorded evidence of the complainant more than once.  Nor could he recall the foreman pausing the video record of the complainant's evidence in order to discuss aspects of it.[65]

   [65] ts 201.

8. Juror 406 had no recollection of the foreman telling other jurors that he had been the victim of serious sexual abuse himself.  Nor did he recall any other juror saying to the foreman that:

   People who were fiddled with tend to become fiddlers themselves.  Are you protecting a paedophile because you're one yourself?

   Nor could he recall whether the foreman withdrew from active participation in deliberations at any point.  Nor could he recall whether the foreman ever left the jury room.

Juror 189

1. The evidence‑in‑chief of juror 189 took the form of his affirmation of an affidavit sworn 22 July 2015.  In that affidavit he set out a number of recollections from the trial, including his recollection that the prosecutor was blind.  He was also able to accurately recall the layout of the jury room and the male and female toilets leading off an area which he described as a corridor adjacent to the jury deliberation room.

2. Juror 189 remembered that one of the jurors volunteered to serve as foreman, and accurately described him.  He also recalled the foreman saying several times that he had worked as a child psychologist and had extensive experience in situations like the trial, and that the other jurors should listen to what he had to say.

3. According to juror 189 in his affidavit, in the initial ballot seven jurors favoured a guilty verdict and five jurors favoured not guilty.  In his affidavit he recalled that deliberations took place from 2.00 pm until 7.00 pm, although in fact jury deliberations did not commence until after 3.00 pm.  He recalled that during the course of deliberations there was extensive discussion of the evidence, as a result of which four of the five jury members changed their vote from not guilty to guilty.  By this stage the foreman was the only person who thought the accused was not guilty.  He recalls that 'the foreman was very adamant about his non‑guilty vote and the discussion became quite heated'.  He recalled that 'the foreman would make a comment, then the Spanish juror would rebut and vice versa'.  The reference to the Spanish juror is clearly a reference to juror 217.

The foreman's evidence

1. The foreman's evidence‑in‑chief is as follows.  He volunteered to be the foreman.  He had worked for a company that provided training to police on the subject of interviewing children who had made sexual abuse claims.  What follows concerns events after the jury had retired to consider its verdict. 

2. The foreman told the other jurors of his training and experience.  The jury watched the complainant's evidence two or three times and the foreman paused the video from time to time.  He had concerns about the complainant's veracity and was trying to explain to the other jurors the basis for his opinion.

3. The foreman told the jurors that he was also the victim of some serious sex abuse as a child (the sexual abuse statement).  He continued:

   There was one juror that I had a problem with. He made the statement to me that I should know that the accused was guilty. I tried to explain that it wasn't as simple as that. Then he said - and I remember this clearly - 'People who were fiddled with tend to become fiddlers themselves. Are you protecting a paedophile because you are one yourself?' That's when it got ugly [22].

4. The foreman confirmed in cross‑examination that this statement (the paedophile statement) was made in the presence of the other jurors.  The foreman then withdrew from the process, going from very active in the deliberations to very passive.  He sat in a corner of the jury room rolling his eyes and tutting when people were saying things that suggested to him a mob mentality.  After he sat in the corner, the discussions went on for a couple of hours.  Votes were taken from time to time and in due course he was the last person voting not guilty.

5. The foreman's description of what then happened (the toilet incident) is as follows:

   I went to the toilet at some point. A few seconds after I walked in a juror walked in behind me … The juror was male. He spoke with an accent. I think he was from a Mediterranean country … It was the same juror who stated to me earlier that I should know the accused was guilty [26].

   The juror forced me against the wall and told me to change my position from not guilty to guilty; otherwise I would have the shit kicked out of me.  He said something to the effect of:  'I'm not wasting anymore time with this bullshit'.

   … 

   I remember that I was in fear for my safety.  I was pushed against the wall, and was unable to move past.  The juror had his forearm against my neck, and his other hand on my shoulder.  My immediate thought at that time was that I wasn't going to have my head kicked in over this.  I think I said the words 'fine, whatever'.  He walked out after that, and I spent a few minutes in the toilet composing myself.  Then after I left the toilet I went back into the jury room and sat down in the corner on the floor.  After that the juror who threatened me made the announcement that it was probably time that we had another vote.  And so we did.  The result of the vote was that there were 12 guilty votes.  I had not in fact changed my mind.  I would have voted not guilty and my opinion had not changed.  I was coerced into changing my vote because I thought it was going to get ugly [26] ‑ [33].

6. After the vote was taken, the foreman was in a high state of stress.  Although he wanted to announce that the decision was not unanimous, he did not.  After the verdict was given, he was angry and upset and used his leg to forcibly open the swing door from the jury box and pushed the door into the jury room.  He explained:  'I was hoping that someone would notice the noise and pick up that something was wrong'.  He wrote the note as soon as he walked back into the jury room.  When he was writing the note the other jurors were either in the toilet or talking amongst themselves.  He did not go to the toilet at that point.  He thinks he passed the note to the jury officer.

7. The foreman remembered going out of the court building into the street and having a cigarette.  The juror who threatened him was also in the street.  That juror shook his hand and said 'no hard feelings' (the street encounter).  The foreman said his decision to change his vote from not guilty to guilty was not voluntary.

8. Further detail was provided in cross‑examination.  The foreman formed his view that the appellant was not guilty after the video‑recorded evidence of the child complainant was played at trial.  He expressed his opinion very robustly, as did juror 217 and other jurors.  He was robust and vocal in his view that the appellant was not guilty but withdrew after the paedophile statement.  Immediately prior to this, the foreman had been in the process of rewinding and watching the video of the child complainant and members of the jury expressed the view that they did not want that to be done.

9. The foreman accepted that he withdrew from deliberations by leaving the table and lying on the floor and making audible noises while the other jurors were going about their role (ts 170).  He also withdrew from deliberations by leaving the room at one stage and lying in the anteroom (ts 171).  What was wrong from the foreman's perspective was that the jury were unanimous apart from him, a matter which caused him great concern.  He withdrew from deliberations shortly after the initial vote which occurred around 30 minutes into the deliberations (ts 171).

10. As to the incident in the toilet he was asked:

    Do you recall, when you went to the toilet, whether there was anyone else with you when you went in?‑‑‑Not when I walked in I don't think (ts 172).

11. The foreman did not complain to other members of the jury or the jury supervisor about what had happened in the toilet.  His explanation for failing to raise the matter with anyone was: 

    At this point, I was pretty overwhelmed, and given the fact that I was having ‑ this was probably not the most suitable case for me to be on and given the sort of childhood experiences that I had and there was certain similarities in terms of the nature of coercion that occurred in the toilets that was causing me immense amounts of distress (ts 174).

12. He accepted that just before the final vote he said words to the effect that he would change his mind because it appeared that all the rest wanted him to do so and that he pressed the buzzer for the jury supervisor to be told that the jury had reached its verdict.  The foreman accepted that 'given my sort of fervent and sort of resolute decision before and the fact there was a sort of sudden change' he assumed somebody would have commented to the effect was he sure he wanted to change his mind (ts 174).

13. He wrote the note 'because I was really, really worried that the - that my actions were going to have lasting and long-standing consequences for some chap I didn't believe was guilty of the crime that he was accused of' (ts 176).  Later he said he felt that a huge sort of miscarriage had taken place and he was complicit in it (ts 178).

14. The foreman accepted the correctness of the jury supervisor's statement that he took the foreman out of the District Court building on his own.  He explained that he did not tell the jury supervisor at this point about the toilet incident because of 'shame' (ts 178).

15. The first time the foreman told anyone in authority of what had occurred in the toilet was when he was 'tracked down by the police officer' prior to being interviewed by the Sheriff's solicitor (ts 179).

The other evidence and findings

1. I propose to confine my discussion of the other evidence to the contentious aspects of the foreman's evidence.  The jury deliberations were memorable because of the highly unusual behaviour of the foreman, corroborated by the other jurors, associated with the fact and manifestations of his withdrawal from deliberations.  His behaviour was described by one juror, without hyperbole, as bizarre (ts 232).  The evidence also established that before the foreman withdrew from deliberations, he and juror 217 had had robust confrontations arising from their opposing views relating to the guilt of the appellant.

2. All other jurors (that is, excluding the foreman) had no recollection of the foreman making the sexual abuse statement.  Their evidence on that subject was unhesitating and unequivocal.

3. All other jurors had no recollection of any juror making the paedophile statement.  Their evidence on that subject was unhesitating and unequivocal.  Juror 217 denied making the paedophile statement.

4. The unanimity of the other jurors is compelling.  I am positively satisfied that:  (1) the foreman did not make the sexual abuse statement; (2) juror 217 did not, and nor did any other juror, make the paedophile statement; (3) the foreman withdrew from deliberations because, having professed special skill and experience on the central issue in the trial (the credibility of the young complainant), his advocacy was demonstrably unsuccessful.

5. I am also satisfied that the street encounter with juror 217 did not take place.  It is inconsistent with the evidence of the jury supervisor, which is to the following effect.

6. Access to the jury room from the court in which the trial was being conducted was obtained by passing through a door near the jury box that led down a short hallway to a second door that provided entry to the jury room.  After delivery of the verdict, the door adjoining the jury room was wedged ajar.  The foreman was the first to exit the door from the court and enter the hallway leading the jury room.  As the foreman reached the door to the jury room, he kicked it violently, causing it to fly open.  He entered the room and knocked over two chairs.  He then immediately went through the door leading from the jury room to the toilet.  By the time the rest of the jurors entered the jury room, the foreman had already entered the toilet.  The foreman remained in the toilet with the door locked for a few minutes.  The jury supervisor knocked on the toilet door but there was no answer.  The jury supervisor then escorted the rest of the jury to the jury assembly area on a different floor and returned to the jury room.  The foreman was sitting in the jury room when he arrived and gave the jury officer a letter addressed to the judge.  The jury supervisor then escorted the foreman to the jury assembly area.  On arriving, the foreman walked straight past the rest of the jury and went to the far end of the room where he stood with his nose right against the wall.  The foreman remained in that position for about 10 minutes while the jury supervisor organised a cabcharge and telephoned a taxi.  The jury supervisor then took the foreman downstairs to let him out of the building.  The jury supervisor said he would wait with the foreman until the taxi arrived but the foreman ran off as soon as the jury officer opened the door to the street.  The jury officer watched the foreman run off long enough to see that he was not coming back.  The jury supervisor then returned to the jury assembly area and about 15 or 20 minutes later escorted the rest of the jury members out of the building. 

7. The jury officer also gave evidence relating to the toilets in the anteroom adjoining the jury room.  They are not, as might be expected in a public building of this nature, a room with a number of toilets and other associated facilities.  Rather, the men's toilet was a single toilet in a small room intended to accommodate one person at a time with a lock on the door intended to signal whether the toilet was vacant or engaged.  This information only came to light after juror 217 and the foreman had given evidence.

8. Having regard to the foreman's evidence, much attention was given in cross‑examination of the witnesses to whether juror 217 left the jury room through the door to the anteroom at or around the same time as the foreman had done.  As the jury were deliberating in January 2012, more than three years earlier, this was not a particularly productive area of exploration.  Of the jurors who could remember, all but one said juror 217 did not leave the jury room.  Juror 537 thought that both the foreman and juror 217 had left the jury room in a group and that juror 217 came back from the anteroom with others.  That evidence is highly improbable having regard to the limited toilet facilities available to the jury.

9. The foreman's evidence relating to the toilet incident is really only consistent with there being a multiple rather than single use toilet facility.

10. Further, the foreman had multiple opportunities to disclose the toilet incident both before his unexpected and abrupt change of position on his verdict and before delivering the verdict of the jury.  I find, consistently with the weight of the evidence, that on informing the other jurors of his unexpected change of verdict, some jurors said to the foreman words to the effect 'why the change' (ts 265) and 'look, don't just say its guilty.  You need to be sure'.  If the toilet incident had happened, and the foreman was (as his conduct demonstrated) concerned at what he perceived as the injustice of a guilty verdict, the compelling inference is that he would have informed the other members of the jury or the jury supervisor or the judge before the jury verdict.  He did not do so.

11. Moreover, the foreman's evidence of the toilet incident is linked with his evidence (which I have rejected) concerning the sexual abuse statement, the paedophile statement and the street encounter with juror 217.  I also reject the foreman's evidence relating to the toilet incident.  I am satisfied that the foreman made the unfounded allegation in an attempt to undermine the conviction which he was convinced constituted a miscarriage of justice. 

12. In reaching this conclusion I have put to one side the evidence of juror 217.  However, the appellant relied on that evidence as, in effect, an implied admission of guilt.  For the reasons that follow, I do not accept that to be so.

Juror 217

1. Although juror 217 knew that police were considering criminal charges based on the foreman's allegations, he was not legally represented at the inquiry hearing and did not decline to answer any questions.  Moreover, his cross‑examination by counsel for the appellant ventured (without objection) into propositions that were inconsistent with the right to silence. 

2. I accept that juror 217 was at times aggressive and argumentative in his response to questions from the appellant's counsel.  That was understandable as he was clearly very angry about what was happening, as is captured in the following response:

   I was part of [something] that I never chose to be part of and here we are two years later being recalled to answer to false allegations and malicious allegations.  You put yourself in my place, Counsellor.  I think you will be very, very offended to what's happening at this moment in time (ts 142).

3. Juror 217 characterised himself as the victim.  His evidence was that after he had been served by police with a subpoena, he spoke with a lawyer friend who advised him not to make a statement (no doubt based on the right to silence).  Notwithstanding that advice, juror 217 telephoned the Sheriff's lawyer, Carolyn Thatcher and had a discussion with her.  Ms Thatcher told juror 217 that the police were talking to the jurors and considering criminal charges.  The contents of the discussion are summarised by Ms Thatcher in an affidavit sworn on 8 September 2015 (exhibit 2).  Her affidavit relevantly states:

   Juror 217 said he chose not to speak to the police because he felt he had nothing to say.  He said he felt he was doing a community service, and then it was abhorrent to get a call from the police.  He said he was happy to speak to me and tell the truth and asked what the matter was about.

   I said to juror 217 that one of the jurors said that he had been threatened and pinned to the wall.  He asked whether it was alleged to be him that did this and I said it was.  Juror 217 said he was with everyone the entire time.

   … In relation to the other juror, juror 217 said he thought the jury felt intimidated by him (the other juror).  He said the person who made the allegation was lying, he had never met him before and that not a single member of the jury will say he (juror 217) wanted to be with this other juror.

   … 

We talked about times [to meet] and he then said he had been doing his duty as a citizen on the jury and wished he'd never been there.  He said he wanted the matter sorted, to get to the truth.  He said the allegation was false and abhorrent and an evil accusation.  He then said that if making an affidavit won't make it go away, he will just come to court … Juror 217 asked me to speak to as many jurors as I could.

1. Ms Thatcher confirmed that juror 217 told her that he had been advised by a lawyer friend not to make a statement.

2. Juror 217 agreed in cross‑examination that Ms Thatcher did not tell him the identity of the juror who had made the allegation (ts 154).  He explained that he assumed it was the person who kicked the door, elaborating as follows:

   My assumptions were that it would have been - the only person that appeared crazy enough to make allegations like that or fabricate allegations in order to throw someone else under the bus would have been that person and I still stand by that (ts 157).

3. He said that he could not remember anyone else of the jurors or what they looked like but the man he was talking about really did stand out (ts 159).

4. On any view, the foreman behaved in a way that was entirely memorable.  Moreover, it was accepted by all jurors that the foreman and juror 217 had had robust confrontations arising from their different but firm opinions as to the guilt of the appellant.  I do not regard juror 217's assumption that he was the subject of the allegations as an implied admission of guilt.  Although not necessary for the purposes of this appeal, I accept the evidence of juror 217.

Conclusion

1. I reject the foreman's evidence relating to the toilet incident. Juror 217 did not engage in conduct that was in breach of s 123 of the Code or commit any other offence. There was no improper influence on the foreman in relation to his verdict. If the foreman had maintained his lone dissent, there would have been a majority verdict of guilty under s 114 of the Criminal Procedure Act 2004 (WA). There are no grounds for setting aside the verdict of the jury.

2. The appeal must be dismissed.

3. MAZZA JA:  I agree with Martin CJ, for the reasons he gives, that this appeal against conviction must be dismissed.  I wish to add the following. 

1. In Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473, the High Court held that this court 'erred in proceeding on the footing that it was prevented by the exclusionary rule from considering whether a miscarriage of justice had occurred at trial' [51]. The High Court remitted to this court the appellant's appeal against conviction to be heard and determined in accordance with its reasons. In those reasons, their Honours stated that an inquiry might be conducted by the Sheriff under the supervision of this court which may dispel the shadow of injustice cast on the verdict by the note.

2. This court conducted such an inquiry.  The scope of the inquiry may have been wider than the appellant wished, but, in the end, what was done was what was necessary to ensure that the matter was fully and fairly examined.  This is not to say that, in every case where this court is required to undertake an inquiry, it will be necessary to replicate what occurred in this case. 

3. The inquiry has revealed that the evidence of the foreman must be rejected. There was no contravention of s 123 of the Criminal Code and, in particular, no physical coercion or unlawful intimidation of him by juror 217 or any other juror.  The shadow of injustice has been dispelled.  The integrity of the verdict has been put beyond question.  There has been no miscarriage of justice.