A conversation between a juryman and one of the parties or his representa- tives is not of itself a ground for a new trial unless there is reasonable ground for believing that the course of justice has been, or was likely to be, sub- stantially affected.

10 CLR 44

During the hearing of a trial before a jury counsel for the plaintiff informed the Court, in the presence of the jury, that he had been told by counsel for the defendants that a conversation had taken place between one of the jury. men and a clerk of the defendants' solicitor. At the instance of the Judge the clerk was sworn, and deposed to a certain conversation having taken place between him and a particular juryman. The defendants' counsel thereupon applied for a discharge of the jury. Before dealing with the application the Judge then told the juryman he might make a statement if he desired, and the juryman, not upon oath, admitted that a conversation had taken place, but denied the substantial portion of it. The Judge then ordered the trial to proceed. He afterwards gave his reasons, stating that he did not believe the

Held, on the evidence (Isaacs J. dissenting), that the Judge had not acted upon unsworn evidence, the statement of the juryman being only in the nature of a plea of not guilty.

Held, further (Isaxes J. dissenting), that even if the Judge had admitted the unsworn statement as evidence, the defendants, not having at the time objected, had waived the objection, and could not rely upon the admission of that evidence as a ground for a new trial.

An order of a Court may be withdrawn before it is drawn up or acted Sec. 4 of the Juries Act 1895 (Vict.), provides that the party who asks for jury shall pay the jury fees to the sheriff each day before the Court sits, that if he does not the other party may pay them, and that if the other party does not pay them, the jury is to be discharged, and the trial is to proceed before the Judge. The defendants having withdrawn from the case, did not on a subse- quent day pay the jury fees. Counsel for the plaintiff expressed the willing- ness of the plaintiff to pay the fees if the Judge should think it fairest to do so, but the Judge, being under the erroneous belief that the result of non- payment of the fees would be that the trial would come to an end, expressed no opinion as to the payment of the fees by the plaintiff, and plaintiff's counsel said that the plaintiff would not pay them. Thereupon the Judge announced to the jury that they were discharged and…

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.

Continue reading Swinburne v David Syme & Co

Details

AGLC: Swinburne v David Syme & Co [1909] HCA 92
Case: [1909] HCA 92
Decision Date: 15 March 1909

CaseChat Overview and Summary

This case involved an appeal from the Supreme Court of Victoria concerning an action for libel brought by George Swinburne against David Syme & Co. The plaintiff, a Minister of the Crown, alleged that an article published in the defendants' newspaper falsely accused him of malversation of office, dishonesty in wasting public money, and habitual mendacity. The defendants pleaded fair comment and truth. The trial, conducted before a jury, resulted in a verdict for the plaintiff for £3,250. The defendants sought a new trial on several grounds, including alleged misconduct of a juryman, the improper discharge and subsequent recall of the jury, and excessive damages.

The legal issues before the High Court of Australia were whether the trial judge erred in his handling of an alleged conversation between a juryman and a clerk of the defendants' solicitor, whether the jury was effectively discharged and improperly recalled, and whether the damages awarded were excessive. Specifically, the court had to determine if the conversation, even if it occurred, was of a nature that substantially affected the course of justice, and if the judge's decision to proceed with the trial after hearing from both the clerk and the juryman was legally sound. Furthermore, the court considered the implications of the jury's discharge and subsequent continuation under section 4 of the Juries Act 1895 (Vict.), and whether the jury's verdict of £3,250 was so disproportionate to the circumstances as to warrant interference.

The Court reasoned that a conversation between a juryman and a party's representative does not automatically warrant a new trial unless there is a reasonable belief that the course of justice has been, or was likely to be, substantially affected. In this instance, the judge, after hearing sworn evidence from the clerk and an unsworn statement from the juryman, concluded that the alleged misconduct did not warrant discharging the jury. The court found that the judge had not acted upon unsworn evidence, as the juryman's statement was akin to a denial, and that even if it were considered, the defendants had waived any objection by not raising it at the time. Regarding the jury's discharge, the court held that the judge's initial announcement of discharge was made under a misapprehension of the law and was effectively withdrawn before it was acted upon, meaning the jury had not been effectually discharged and the trial could properly proceed. The court also found that the damages were not excessive, considering the plaintiff's public position and the serious nature of the libel.

The appeal was dismissed. The Full Court of Victoria's refusal to grant a new trial was affirmed, and the judgment entered for the plaintiff for £3,250 was upheld.

Orders