2.Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 17 January 2013.
3.Remit the appellant's appeal and application to the Court of Appeal to be heard and determined in accordance with the reasons of this Court.
On appeal from the Supreme Court of Western Australia
Representation
C P Shanahan SC with A L Troy for the appellant (instructed by Legal Aid WA)
J McGrath SC with L M Fox for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Smith v Western Australia
Criminal law – Evidence – Exclusionary rule – Where appellant convicted upon verdict of jury – Where note suggesting juror physically coerced into changing verdict found in jury room after jury discharged – Whether evidence of unlawful coercion of juror by fellow juror admissible – Whether Sheriff should be ordered to conduct inquiry.
Words and phrases – "exclusionary rule", "free and frank deliberation", "physical coercion".
FRENCH CJ, CRENNAN, KIEFEL, GAGELER AND KEANE JJ. It is a general rule of the administration of criminal justice under the common law that once a trial has been determined by an acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict[1].
[1]Nanan v The State [1986] AC 860 at 872; R v Mirza [2004] 1 AC 1118; Re Matthews and Ford [1973] VR 199 at 209; Minarowska (1995) 83 A Crim R 78 at 84-85; Medici (1995) 79 A Crim R 582 at 591-592; Millward [1999] 1 Cr App R 61 at 65.
The question which arises in this case is whether that rule precludes a court of appeal from receiving and acting upon evidence from a juror that he or she was subject to physical coercion by another juror in relation to his or her verdict.
The proceedings
The appellant was convicted in the District Court of Western Australia (Curthoys DCJ) upon the verdict of a jury of two counts of indecently dealing with a child under the age of 13 years.
The jury's verdict was delivered on 17 January 2012. Verdicts of guilty on each count were announced by the foreman of the jury in the presence and hearing of the other members of the jury. After the verdict on each count was announced, the jury was asked, in accordance with the usual practice, whether the verdict was the verdict of them all,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Smith v Western Australia [2014] HCA 3
Case
[2014] HCA 3
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of Western Australia concerning the admissibility of evidence relating to alleged juror misconduct. The appellant, who had been convicted and sentenced to imprisonment, argued that his trial had miscarried due to a juror being physically coerced into changing their verdict. The Court of Appeal had dismissed this appeal, applying the exclusionary rule regarding evidence of what transpires within jury deliberations.
The central legal issue before the High Court was whether evidence suggesting a juror was physically coerced into changing their verdict was admissible, notwithstanding the general exclusionary rule. This rule, as articulated in *Ellis v Deheer*, generally prevents the admission of evidence from jurors about what occurred in the jury room to protect the finality of verdicts and the integrity of jury deliberations. The High Court was required to consider whether the alleged physical coercion constituted an extrinsic influence that would take the evidence outside the scope of the exclusionary rule, and if so, whether the evidence was sufficiently probative to establish a miscarriage of justice.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal. The Court reasoned that the exclusionary rule, while important for maintaining the finality of jury verdicts and protecting jurors, is not absolute. It acknowledged that evidence of extrinsic influences on jury deliberations may be admissible. The Court found that the Court of Appeal had erred in its application of the exclusionary rule and in its assessment of the probative value of the note suggesting coercion. The matter was remitted to the Court of Appeal to be heard and determined in accordance with the reasons of the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 17 January 2013.
3. Remit the appellant's appeal and application to the Court of Appeal to be heard and determined in accordance with the reasons of this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, CRENNAN, KIEFEL, GAGELER AND KEANE JJ
On 2 March 2012, the appellant was sentenced to a period of imprisonment of 12 months for each of the two counts, to be served concurrently.The decision of the Court of AppealThe appeal The appellant appealed against his conviction on the ground that the "trial miscarried due to a juror being physically coerced into changing his verdict to one of guilty." This ground of appeal engaged s 30(3)(c) of the Criminal Appeals Act 2004 (WA), which requires the Court of Appeal to allow the appeal if, in its opinion, "there was a miscarriage of justice." The Court of Appeal (Martin CJ, McLure P and Mazza JA) unanimously dismissed the appeal. Martin CJ (with whom Mazza JA agreed[3]) began[4] with the formulation of the exclusionary rule by Atkin LJ in Ellis v Deheer[5]:"[T]he Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be."[3]Smith v The State of Western Australia [2013] WASCA 7 at [54].[4][2013] WASCA 7 at [10].[5][1922] 2 KB 113 at 121. Martin CJ observed[6] that "the rationale behind the rule has been expressed as the need to protect the finality of decisions and to protect jurors from coercion or pressure in the jury room." [6][2013] WASCA 7 at [10]. Martin CJ accepted that the exclusionary rule may not apply in relation to evidence disclosing extrinsic influences upon jury deliberations[7], but cautioned that the line between that which is extrinsic and that which is intrinsic is not easily drawn[8]. [7][2013] WASCA 7 at [16].[8][2013] WASCA 7 at [20]. Martin CJ was sceptical of the probative value of the note as evidence of misconduct on the part of a juror. His Honour said that the content of the note and the evidence of its discovery were "so replete with uncertainty and ambiguity that any conclusions of fact drawn from it must necessarily be speculative"[9]; "[i]t is not known who wrote the note … [or] whether it was written before or after the verdict was delivered"[10]. His Honour also raised the possibility that "the author of the note was referring to a form of pressure or intimidation" less serious or sinister than might be thought to be suggested by the note, observing that it is common for jurors to experience inter‑personal pressure in the course of their deliberations, and the possibility that some jurors might be disposed to describe that pressure as coercion[11]. [9][2013] WASCA 7 at [34].[10][2013] WASCA 7 at [35].[11][2013] WASCA 7 at [37]. Martin CJ concluded that "[f]or these various reasons, it is impossible for the note to sustain a conclusion of fact to the effect that the processes of the jury were so irregular as to give rise to a miscarriage of justice"[12]. Martin CJ had earlier said that "to the extent that the note is capable of sustaining any conclusion to the effect that the deliberations of a juror were subjected to improper interference, the note falls squarely within the exclusionary rule."[13] [12][2013] WASCA 7 at [39].[13][2013] WASCA 7 at [38].
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN, KIEFEL, GAGELER AND KEANE JJ