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Wong v Registrar of the Auckland High Court HC Auckland CIV 2007-404-005292 [2007] NZHC 1555; [2008] 1 NZLR 849 (21 December 2007)

Last Updated: 18 January 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2007-404-005292}

UNDER the New Zealand Bill of Rights Act 1990

BETWEEN ALEX KWONG WONG (AKA GANG HUANG)

Applicant

AND THE REGISTRAR OF THE AUCKLAND HIGH COURT

First Respondent

AND THE ATTORNEY-GENERAL Second Respondent

Hearing: 8 November 2007

Appearances: F C Deliu for the Applicant

No appearance for the First Respondent

S E McKenzie for the Second Respondent

Judgment: 21 December 2007

_{JUDGMENT OF DUFFY J}

This judgment was delivered by Justice Duffy on 21 December 2007 at 2:00 pm, pursuant to r 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date:

Solicitors:

Equity Law, PO Box 8333, Symonds Street, Grafton, Auckland, for the Applicant

_{Crown law, PO Box 2858, Wellington 6140, for the First and Second Respondents}

WONG (AKA HUANG) V REGISTRAR AUCKLAND HIGH COURT AND ANOR HC AK CIV 2007-404-

005292 21 December 2007

[1] The applicant is presently serving a sentence of 17 years’ imprisonment having been found guilty of money laundering and drug related offences after a jury trial in the Auckland High Court. The jury panel that convicted him was comprised of only 10 members. The applicant is concerned that circumstances that led to the discharge of one juror caused the remaining 10 members of the jury to form a biased perception against him. He wants to ascertain if there is any truth to this concern. One way of achieving that end is to question the excused juror about what she relayed to the other 10 jurors as well as to question the 10 jurors to see if they were influenced by the excused juror’s communication to them.

[2] To carry out this exercise requires the applicant to know the identities of the jurors concerned and to trace their whereabouts. Such an exercise flies in the face of accepted and long established principles regarding the inviolable privacy protections jurors in this country have always enjoyed. Nonetheless, the applicant has applied to this Court for access to the list of jurors who sat on his trial. He says he wants the information not only for the purposes of an appeal against his convictions that he is bringing to the Supreme Court, but also for use in any subsequent proceedings he may bring to challenge his conviction.

[3] The application is brought by way of originating application. The first respondent, who is the Registrar of this Court, has filed a notice abiding the decision of this Court. The second respondent, the Attorney General, opposes the originating application. There is nothing objectionable about the chosen process the applicant has used. In Mafart & Prieur v Television New Zealand [2006] NZSC 33; [2006] 3 NZLR 18 the Supreme Court found that an application to search court records is a civil proceeding even when it is made in respect of the records of a criminal case.

[4] The questions I have to answer are:

Does the applicant have a right of access to the information he seeks;

If he has no such right, do I have the discretion to allow him access to this information; and

If so, should I exercise the discretion in his favour.

Background

[5] The applicant was one of a number of accused in a joint trial. During the course of the trial two jurors were discharged: the first due to examination commitments; and the second, juror X, following an incident in which she was spat at and verbally abused on her way to this Court one morning. The man who accosted her was the defendant in an unrelated trial in this Court. The incident caused juror X distress. She told other members of the jury about the incident, explaining that she was upset for personal reasons relating to her history of abuse.

[6] The incident was brought to the attention of the trial Judge. She interviewed juror X, in the company of trial counsel. Juror X informed the trial Judge of a concern that her distress might mean she was inclined, out of fear, to find the accused not guilty. The trial Judge decided to discharge juror X.

[7] The defence counsel sought to have the whole jury discharged on the basis they may have all been contaminated with the feeling of intimidation juror X had mentioned. The trial Judge was not satisfied that there was any such risk of prejudice to the accused or any reasonable apprehension of prejudice. The remaining jurors were given a direction that the incident was unrelated to the present trial and that they should dismiss it from their minds and consider the evidence impartially in accordance with their oaths. The trial Judge noted that she had no concerns about the jury’s conduct, attendance or demeanour. The applicant was the only accused who was convicted on some of the charges he faced; the others were acquitted on all charges.

[8] Following his conviction, the applicant filed an appeal against conviction in the Court of Appeal. A substantial number of grounds of appeal were identified and either abandoned or argued before the Court of Appeal; the issue of jury bias, following juror X’s distressing experience was not one of them.

[9] The appeal was dismissed on 6 July 2007. The applicant then sought leave to appeal to the Supreme Court. One of the grounds of appeal was that the event that led to juror X’s discharge had tainted the jury, resulting in a miscarriage of justice. The applicant asserts that having heard about juror X’s encounter, the remainder of the jury became biased against him (because he was seen as the ringleader of the criminal conduct leading to the trial). As a consequence, when determining the applicant’s guilt the jurors were swayed to find him guilty on some of the charges, presumably as some kind of “show of support” for juror X.

[10] The originating application was filed prior to the applicant’s application for leave to appeal to the Supreme Court. Since the filing of the originating application, the Supreme Court has considered the application for leave to appeal ([2007] NZSC

78). The Supreme Court granted the application on the question of whether there were exceptional circumstances relating to the trial in terms of s 374(4A) of the Crimes Act 1961 justifying the decision that the trial should proceed with only 10 jurors. It declined to hear submissions on whether the discharge of juror X affected the verdicts:

[2] We are satisfied that there is no realistic prospect that the events which gave rise to the discharge of the eleventh juror, being unrelated to the trial, could have affected the verdicts, some of which were in favour of the defendants, including the applicant. The guilty verdicts do not appear unreasonable nor inconsistent with the acquittals.

Despite the Supreme Court’s refusal of leave to appeal on the ground of jury bias, the applicant wishes to pursue his request to this Court for the identities of the jurors.

Access to Court records

[11] In general, access to this Court’s records of a criminal case is to be determined under the Criminal Proceedings (Search of Court Records) Rules 1974 (SR1974/58). When these rules apply they modify and regulate the Court’s inherent jurisdiction to control access to its records: Mafart & Prieur at [16] (per Elias CJ giving judgment for herself, Blanchard and McGrath JJ). Where these rules do not apply “the inherent jurisdiction can be invoked by a judge to regulate or adjust the

procedure of the Court to give effect to the interests of justice”: Mafart & Prieur at

[17].

[12] Rule 2 governs access to criminal court records. It contains 12 sub-rules, each of which deal with various aspects of accessing criminal court records. Rule 2(2) gives parties a right of access to court records relating to criminal proceedings in which they were involved. However, where there is more than one accused, r 2(3) makes access dependent on leave of the Court.

[13] The Crown contended that because the applicant stood trial with a number of other accused that he had no right of access to court records under these rules and I should refuse to grant him leave. I doubt that r 2(3) provides a basis for refusing leave to access the information the applicant seeks. It seems to me that the purpose of r 2(3) is to protect the privacy of co-accused. The only reason for giving an accused person a right to access court records for his or her trial but to make the access of accused in joint trials dependent on leave is because with a joint trial there may be information that is private and confidential in relation to one accused. If his or her co-accused has a right of access to that information through the general right given in r 2(2) it will breach that privacy and confidentiality. However, if the access to information in joint trials is made subject to leave, the Court can protect the privacy and confidentiality of one of the accused whenever an issue of that type arises. This difference between r 2(2) and r 2(3) was recognised in Mafart & Prieur at [26]:

The parties have favoured access, subject to particular direction by a judge and subject to protection of the interests of co-offenders in criminal proceedings through judicial supervision.

Tipping J also noted at [45]:

Parties to the underlying proceedings generally have access to the file as of right, except where there is more than one accused.

[14] If the use of the discretion in r 2(3) were the basis for refusing access to juror information where would that leave such requests when made by an accused in a single accused trial.

[15] In Mafart & Prieur at [39] Elias CJ described the rights of third parties to seek leave of the court to obtain information under r 2 as being “independent civil rights to apply for such information, the importance of which is affirmed by s 14 of the New Zealand Bill of Rights Act [1990].” Recent statements on access to criminal records have recognised “freedom of information concepts” and a growing recognition of availability of information to meet the “legitimate public interest in how the law has operated.”: Rogers v Television New Zealand Ltd [2007] NZSC 91 at [75]. The applicant contends that his ability to ensure he has had a fair and impartial trial in terms of s 25(a) of the New Zealand Bill of Rights Act turns on his ability to enquire about whether the jurors who sat on his trial were prejudiced against him by the unpleasant experience that led to the discharge of juror X. He claims, therefore, to have his own legitimate interest in how the law has operated in his trial.

[16] Unless there is a specific requirement for treating information identifying the jurors selected to sit on a trial differently from other information on the criminal court records relating to that trial, such information will need to be approached in the same way as other information forming part of the criminal file of that trial.

[17] Of particular relevance here is r 2(11). It makes the access provisions of r 2 subject to any other Act, regulations or rules containing express provisions of any kind in relation to the search of court records. Before looking further at access under r 2, therefore, I need to consider whether there are other enactments that expressly relate to accessing information about juries.

[18] The starting point must be the Juries Act 1981. This Act, and the rules made under it, expressly provide for the management of jury list; including the preparation of, access to and confidentiality of jury lists. The Chief Registrar of Electors is responsible for preparing jury lists: s 9(1). Once prepared, the lists are sent to the Chief Executive of the Ministry of Justice: s 10. The jury list remains current until it is replaced by a new list provided by the Chief Registrar of Electors: s 11.

[19] Section 12 governs access to and the confidentiality of the prepared jury lists. The section is prescriptive in tone. It reads:

12 Access to, and confidentiality of, jury lists

(1) The chief executive must give the Registrar of the Court to which a particular jury list relates a copy of, or access to, the jury list in a form that enables the Registrar to carry out his or her functions relating to the selection of juries.

(2) The Registrar of a Court to which a particular jury list relates must ensure that the jury list is kept confidential to—

(a) the Registrar; and

(b) the Registrar's staff.

(3) The chief executive must ensure that jury lists forwarded to him or her under section 10 are kept confidential to—

(a) the chief executive; and

(b) staff of the Ministry of Justice who are authorised by the chief executive to have access to the lists.

(4) A jury list may be disclosed by an order of the Court or a Judge for the purpose of any proceedings relating to the validity of the jury list or a jury panel or to the eligibility of any juror.

[20] Section 12 makes it clear that the jury list is to remain confidential and it may only be disclosed by an order of the Court or a Judge in accordance with s 12(4).

[21] The only occasion provided for in the Act when persons other than those specified in s 12 can gain access to information about potential jurors is that which arises under s 14. This section allows parties (and their representatives) to a proceeding to be heard by a judge and jury, to have, inspect and copy the names of the persons on the jury panel. This right of access can only be exercised at a time not earlier than five days before the commencement of the week for which the jurors on a panel are summoned to attend for jury service. In addition, s 14 permits the court to grant leave to other persons, within the same timeframe, to inspect and copy the jury panel list.

[22] There is nothing in either the Juries Act or the Jury Rules 1990 which expressly mandates the return of information provided under s 14. A practice, of which I am aware, has developed in the Auckland High Court to ensure the return of this information. A notation is made on the jury panel list provided under s 14 which states that the list is not to be photocopied and it is to be returned to the criminal

registry after the jury has been selected. I do not know if this practice has been adopted in any other criminal registries of this Court. Nor do I know if the return of the information is policed by the criminal registry.

[23] One unsatisfactory feature of this case is the absence of evidence from the first respondent to describe how information about historic jury panels and the jurors who have sat on trials is managed. This means the application for information is being dealt with in somewhat of a vacuum. I do not know for example if the information the applicant seeks is still in existence. I am having to rule in principle on the question of access to this information.

[24] Can information that is protected from disclosure in its original state (when on a s 12 jury list) somehow become available for disclosure once it is transferred to other records essential for managing the jury process? Such records would include the jury panel list under s 14 and subsequent to that the list of persons who ultimately make up a particular jury. When reaching a conclusion on this question it needs to be remembered that juror information in the latter categories of records is subject to a limited disclosure under s 14.

[25] The applicant sought to distinguish between the information on the jury list compiled for s 12 purposes and the list of the jury panel from which jurors for a particular trial are selected. He submitted that s 12 should be read as only applying to what I will describe as the primary jury list that is prepared pursuant to s 12.

[26] The Crown on the other hand submitted that the confidentiality s 12 imposes on the primary jury list remains with the information as it passes through the various jury selection processes. It relied on comments to that effect in Solicitor-General v Radio New Zealand [1993] NZHC 423; [1994] 1 NZLR 48 at 51 and 57. The question of the scope of the confidentiality imposed by s 9, (which was then the equivalent of s 12), was not in issue in that case. The Full Court of the High Court was considering if journalists’ approaches to the former jurors of the Tamihere trial, after the discovery of the body of one of the victims, constituted contempt. The Full Court commented in passing at

51 that the ability of the journalists to access the identities of the jurors breached the confidentiality of this information:

... it is pertinent to note that s 9(6) of the Juries Act 1981 provides that except by leave of Court granted for the purposes of any proceedings relating to the validity of the jury list or panel or the eligibility of any juror, the list shall be confidential to the Registrar and his staff. In the present case clearly there was a breach of that confidentiality but how it occurred is unknown. The reporter asked questions on the lines of what the juror thought now the body had been found, and whether the juror still considered Tamihere to be guilty.

[27] The scope of s 12 turns on its meaning. This is to be ascertained from the Act’s text and in the light of its purpose. To ascertain the Act’s purpose requires construing the Act as a whole.

[28] The Act provides the process from beginning to end for the selection of persons who sit on juries. Section 12 expressly makes the primary list of persons eligible for jury service confidential. The persons who served on the jury of the applicant’s trial will be persons whose names were on a jury list prepared under s 12. Had their names not been on the s 12 list they could not have served on the jury. Their names were also on the jury panel list provided to the applicant under s 14. Any information about them that was given out under s 14 will have come originally from the information prepared under s 12. Once they were chosen from the panel to sit on the applicant’s trial I expect some record within the court was made of their names, contact addresses and other pertinent details. The criminal registry would need to keep a record of the persons who sit on juries as such persons are entitled to payment of fees and expenses. It follows that the persons who served on the jury in the applicant’s criminal trial did so only as a result of being on the confidential jury list prepared under s 12.

[29] The combined effect of s 12 and s 14 is, in general, to protect the confidentiality of jury information. Section 12 provides comprehensive protection of the information on the jury list. Section 14 provides a limited right of access to the jury panel information, which is derived from the jury list protected by s 12. There are no other provisions in the Act which affect the confidentiality of juror information.

[30] The s 14 list of the jury panel, as well as any subsequent record of the persons selected from that panel to sit on the applicant’s jury trial, are but sub-categories of

the jury list information prepared under s 12. Any information about jurors that was given out under s 14 will have come originally from the information prepared under s 12. I see no reason why juror information, in the later stages of the process of arriving at a jury, should lose the character and protection it enjoys at the commencement of the process. On this view, once the conditions in s 14 that permit limited access to information about jurors no longer exist there is no reason why any information about the identities of jurors should not enjoy the protection of s 12.

[31] The one factor that requires further consideration is the absence in s 14, or elsewhere in the Act or Jury Rules, of any directive to return s 14 information after a jury for a particular trial has been empanelled. This could indicate that Parliament intended the protection in s 12 to resume its effect once the conditions, which made s 14 operative, had passed. Alternatively, this could be a deliberate omission, which indicates that Parliament intended juror information in the s 14 category to remain available to parties to jury trials and other persons to whom the Court has granted leave. Other alternatives are that the omission is an oversight on the part of Parliament or that Parliament relied on the common law protection under the law of contempt to protect the identities of former jurors.

[32] The access to juror information given in s 14 is limited to the period within five days of the commencement of the week for which jurors on a panel are summoned to attend for jury service. Parties to a proceeding have a clear entitlement to information about the jury panel during that time frame. Prior to and after the expiry of the specified time frame, the information is clearly not available on request. But s 14 makes no express provision for how information released under s 14 is to be treated after the expiry of the specified time frame.

[33] It is hard to see why Parliament would intend that information recorded at the first stage of the jury process be kept confidential, but not at a subsequent stage. But for the omission to provide expressly for juror information disclosed under s 14 to be returned, the overall impression of the Act’s provisions is that juror information is to be kept confidential and not disclosed unless in accordance with the Act.

[34] The absence of express control on s 14 information once it has been released may be explicable on the ground s 12 was considered to offer sufficient protection, or because Parliament has left the protection of juror confidentiality post-trial to the common law to control. Once the circumstances that engage s 14’s operation have passed there is no reason why s 12 cannot protect juror confidentiality. The presence of that provision is sufficient to provide authority for criminal registry staff to require the return of the information released under s 14. The law of contempt in New Zealand precludes canvassing jurors about matters intrinsic to their deliberations on the verdict and enquiring of them their opinion when new information is found that may impact on their verdict, as in Solicitor-General v Radio New Zealand. Parliament may also have thought the common law provided sufficient protection for jurors after a trial had ended. Since there is little experience in New Zealand of canvassing juries after delivery of their verdict Parliament may have seen no need to make express provision for the return of jury information released under s 14.

[35] An interpretation of the Juries Act which sees the protection in s 12 apply to all juror information is in keeping with the purpose and policy of the Act. It is hard to see why Parliament would intend that information recorded at one stage of the process be kept confidential, but not at other stages. I think, therefore, that the proper interpretation of s 12 is that all juror information is protected by it except for when Parliament has expressly provided otherwise.

[36] The limited access available under s 14 is understandable because it is important for parties in a trial to be able to identify if there are potential jurors who should be challenged. Parliament has recognised the importance of access here by expressly providing for it. The access to juror information the applicant seeks can only arise through Parliament’s omission to require the return of the s 14 information. The omission is not a strong enough indication of a contrary intent in relation to protecting this information. In my view, if Parliament had intended to allow s 14 information to be available after a trial, it would have made express provision for that event.

[37] The interpretation of the Act that I have reached is consistent with comments made in Solicitor-General v Radio New Zealand, which treated information on the identities of jurors who comprised the selected jury panel in the Tamihere murder trial, as coming within the meaning of the jury list in the earlier form of s 12.

[38] Once the information about the jurors on the applicant’s trial is seen as enjoying the protection of s 12 it then becomes a matter of assessing the disclosure of the information in terms of that section. In terms of the three issues I need to determine it is clear that s 12 gives no right of access to the information. This answers the first question.

Discretion to allow access

[39] The second question is whether or not I have the discretion to permit the applicant access to the juror information he seeks. Section 12(4) provides a Judge with discretion to permit disclosure of jury list information in certain specified circumstances. I, therefore, need to consider whether the present application for information falls into any of those circumstances.

[40] The relevant circumstances are where the disclosure is sought for the purpose of proceedings relating to the validity of the jury list, or a jury panel, or to the eligibility of any juror. No issue arises in this case in terms of validity of the jury list or jury panel. The question is whether I can regard the present application as being brought for the purpose of proceedings relating to the eligibility of any juror.

[41] First, apart from this application, the only other extant proceedings are the applicant’s appeal to the Supreme Court. However, the scope of that appeal is already circumscribed by the decision giving leave to appeal. That decision precludes any argument being raised about the jury being biased as a result of the experience that led to juror X’s discharge. I do not think, therefore, that the application can be seen as having been made for the purpose of the appeal to the Supreme Court.

[42] My reading of s 12(4) is that it requires there to be a proceeding in addition to the one in which the application for information is made. The other proceeding must raise questions about the validity of the jury list, jury panel or a juror’s eligibility. There are no such proceedings and so on this ground alone the applicant does not qualify for disclosure of jury information under s 12 (4).

[43] In addition, the type of validity and eligibility referred to in s 12(4) may not encompass bias on the part of jurors who are eligible to serve on a jury. Section 7 of the Juries Act contains a number of factors that if present disqualify certain identified persons from serving on a jury. It is to these factors that I think s 12(4) refers.

[44] The applicant submitted that if s 12 applied to the jury panel that sat on his trial then ineligibility under s 12(4) can include bias on the part of a juror. Even if the applicant were correct here this would not enable him to overcome the problem that there are no proceedings extant which engage the question of the jurors’ eligibility to have served on his jury. It follows that the answer to both questions two and three is that I do not have the discretionary authority to permit the applicant access to the information he seeks as his request fails to meet the requirements of s 12(4). But, even if I did have such authority, the conditions in which s 12(4) permits it to be exercised are not present.

[45] The applicant referred me to ss 24, 25 and 27 of the New Zealand Bill of Rights Act 1990, particularly the right in s 25(a) to a fair and public hearing by an independent and impartial court. He submits that his right to a fair trial under s 25 and his right to a fair hearing under s 27 cannot be assured if he is unable to ascertain whether the jury in his trial were biased against him as a result of juror X’s experience. For reasons that will become apparent later in this judgment the interpretation I have adopted in relation to s 12 and its protection of juror confidentiality is consistent with the New Zealand Bill of Rights Act. Indeed the conclusion I reach on this point is that maintenance of juror confidentiality aids the guarantee of the rights in ss 24, 25 and 27. There is no reason, therefore, for me to apply the approach in Hansen v R [2007] NZSC 7; [2007] 3 NZLR 1 (SC) of considering if my

interpretation of the Juries Act is affected by s 5 or s 6 of the New Zealand Bill of

Rights Act.

[46] I now deal with the applicant’s submissions on the affect of ss 24, 25 and 27 of the New Zealand Bill of Rights Act on his application for juror information. To support this submission the applicant referred me to a judgment of the Superior Court of Connecticut: Struski v Big Y Foods Inc, No CV9701371085, 2000

WL 1429478, at *1, 2 (Conn. Super. Ct. Sept 11, 2000) in which after the conclusion of a civil jury trial the Court granted access to the names, addresses and telephone numbers of jurors. This was done for the purpose of permitting counsel to find out if the trial verdict was affected by juror misconduct.

[47] The judgment in Struski shows that, as in New Zealand, tight control is exerted over the type of evidence an appellate court will receive when issues of juror misconduct are raised. Connecticut courts distinguish between evidence that is intrinsic to the deliberations of jurors and evidence extrinsic to their deliberations. Evidence from jurors will only be admitted when it is extrinsic to their deliberations. The view in Connecticut appears to be that ensuring there has been no juror misconduct is part of a legal practitioner’s professional obligations to his or her client.

[48] The case law on the extent to which access to former jurors is permissible has usually developed in the context of a convicted accused, who has appealed his or her conviction, has obtained information from a former juror in the trial and seeks to use this information in the appeal as evidence to impugn the jury’s verdict. The question is then one of the use to which the information can be put. It appears to be well settled in all common law jurisdictions that information intrinsic to a jury’s deliberations will not be admitted into evidence by an appellate court. See: R v Papadopoulos [1979] 1 NZLR 621 (CA); R v Bates [1984] NZCA 110; [1985] 1 NZLR 326 (CA); R v Norton-Bennett [1990] NZCA 36; [1990] 1 NZLR 559 (CA); R v Coombs [1985] NZLR 318 (CA); R v Ropotini (2004) 21 CRNZ 340 (CA); R v Mizra [2004] UKHL 2; [2004] 1 AC 1118 (HL); R v Pan; R v Sawyer [2001] 2 SCR 344 (SC); Tanner v United States [1987] USSC 133; (1987) 483 US 107; and of course Struski.

[49] It is now settled law in New Zealand that to approach former jurors and enquire about their deliberations or their later views on their verdict is a contempt of Court: see Solicitor General v Radio New Zealand.

[50] When it comes to the admission of evidence on appeal, New Zealand law also distinguishes between evidence of matters extrinsic to a jury’s deliberations and those that are intrinsic to them. In R v Papadopoulos at 627 the Court of Appeal recognised that the rule of exclusion of evidence of jurors did not exclude evidence of matters extrinsic to a jury’s deliberations even when the evidence was given by a former juror. In New Zealand the common law rules on when an appellate court will receive evidence relating to a jury’s deliberations are now codified in s 76 of the Evidence Act 2006. There is nothing in that provision to suggest that the approach developed under the common law is altered.

[51] The difference in approach between the Courts in Connecticut and in New Zealand appears to be the willingness of the former to permit jurors to be approached and questioned for the purpose of discovering if there are matters extrinsic to their deliberations that should be placed before an appellate Court. In New Zealand such an approach might constitute contempt, whereas in Connecticut it clearly does not.

[52] Since New Zealand law permits evidence of matters extrinsic to a jury’s deliberation, the applicant now invites this Court to go the next step and permit enquiries to be made of jurors to see if there is a matter extrinsic to their deliberation in his trial that affected the verdict. Here the applicant wants information from the Court to identify the jurors in his trial so that they can be asked if their knowledge of the spitting episode juror X experienced prejudiced them against the applicant. However, I think that any enquiry about potential prejudice must impinge on matters that are intrinsic to the jury’s deliberation. The problem for the applicant is that the type of enquiry he wants to embark upon is one that not even the Connecticut Courts would permit.

[53] If the applicant asks a former juror of his trial “were you prejudiced against me because of what happened to juror X”, whether the answer is yes or no, it will

reveal something of that juror’s partiality or impartiality which in turn will reveal how that juror reached his or her verdict. In R v Mizra, the House of Lords in a criminal appeal refused to admit evidence from a juror that other members of the jury were prejudiced against the accused on racial grounds and in consequence had not deliberated impartially on the ground this was a matter intrinsic to the jury’s deliberation. The appellant had argued that a refusal to admit this evidence would breach his right to a fair trial under article 6(1) of the European Convention as scheduled to the Human Rights Act 1998 (UK).

[54] Mizra contains a thorough review of the principles regarding the rationale for excluding evidence of that type. The House of Lords recognised at [113] the great importance of the jury process which Lord Hope of Craighead described as:

... the process of collective decision making, during which the jurors are free from outside interference and after which they are protected from ridicule, criticism and harassment, that gives it its strength.

[55] The proper functioning of the jury system was recognised to need full and frank debate which brought with it the commensurate need to protect jurors from censure, reprisals and harassment. At [114] Lord Hope cited Arbour J in the Supreme Court of Canada decision of R v Pan in which she said at [50]:

The first reasoning supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused or one charged with a particularly repulsive crime. In my view this rationale is sound and does not require empirical confirmation.

[56] In R v Pan the appellant, like the applicant in this case, contended that his inability to access information from jurors, because of the common law rule protecting the secrecy of their verdict, infringed his rights under the Canadian Charter of Rights and Freedoms to a fair trial. Arbour J accepted at [80] that in some cases having access to information from jurors about their verdict would provide a greater assurance of fairness to an accused. But the Judge also recognised that modification of the common law rule protecting secrecy would not always benefit accused persons. At [80] and [81] Arbour J set out the detrimental consequences of

abandoning the secrecy rule. These included discouraging individual jurors from arguing for an unpopular verdict, by making jurors fearful of possible negative public exposure; and the idea that evidence of juror misconduct in the jury room could caste doubt on and therefore undermine the validity of acquittals. Arbour J’s consideration of the potential ramifications of abandonment of the secrecy rule caused her to conclude at [83] that:

In my view, erosions of the guarantees of jury secrecy beyond the existing boundaries would also result in the eventual erosion of the integrity of the jury as decision-maker in criminal cases. The constitutional entrenchment of the right to trial by jury under s. 11(f) of the Charter means that jury trials will continue to be an important component of our criminal justice system. The secrecy of the deliberation process, both during and after the conclusion of the trial, is a vital and necessary component of the jury system. Given that the right to a trial by jury is guaranteed by that Charter, it is not open to us to adopt an approach that would threaten the jury’s ability to carry out its role fairly and diligently. The principles of fundamental justice require that the integrity of the jury be preserved, and in my opinion, it is best preserved by the common law rule as interpreted above.

[57] In Mizra Lord Hope was very influenced by Arbour J’s reasoning in R v Pan. He described it (at [115]) as going to the “heart of the matter”. He too decided that the retention of the secrecy rule was in the overall interests of justice and that any erosion of the rule would endanger the proper functioning of the jury process. He then at [114] referred to a passage from Pan:

... the proper functioning of the jury system depends on the willingness of jurors to discharge their duties honestly and honourably, which depends in turn on a system that ensures the safety of jurors – their sense of security as well as their privacy.

And went on to say: [115-116]:

The appeals raise questions about a rule which makes it impossible, after a guilty verdict has been returned, to investigate allegations that the jurors were biased or that they ignored directions by the trial judge. But the rigour of the secrecy rule operates, and is designed to operate in exactly the same way if the verdict is one of not guilty ... the rule protects jurors who acquit the unpopular, such as members of minority groups, or who acquit those accused of crimes that the public regards as repulsive such as the abuse of children who were in their care. It protects them too against pressure that might otherwise be brought to bear, in less enlightened times by the executive.

This is an important safeguard against biased verdicts. One cannot have a rule that operates in one way where the jury acquits but operates differently

where they can convict. Full and frank discussion in the course of which prejudices may indeed be aired but then rejected when it comes to the moment of decision taking would be inhibited if everything that might give rise to allegations of prejudice after the verdict is delivered were to be opened up to scrutiny. Attempts to soften the rule to serve the interests of those who claim that they were unfairly convicted should be resisted in the general public interest, if jurors are to continue to perform their vital function of safeguarding the liberty of every individual.

[58] The result in Mizra was that a majority of the House of Lords concluded that the common law rule that protects the secrecy of jurors’ deliberations is essential for fair and impartial trials and did not, therefore, contravene article 6(1) of the European Convention or the Human Rights Act 1998 (UK).

[59] In both England and Canada, courts of the highest level have considered whether the common law secrecy of jury deliberations rule breaches the right to a fair trial. In both jurisdictions the courts have concluded that the retention of the secrecy rule is fundamental to preserving the right to a fair trial. This has been found to be so even though the rule has been recognised to preclude an accused from enquiring of his jury if it was impartial or not.

[60] In the present case the applicant has invoked ss 24, 25 and 27 of the Bill of Rights Act to support the view that without access to the information he seeks, he cannot have a fair trial. His argument is that unless he can explore whether or not his jury was impartial, his right to a fair trial is infringed. This type of argument was rejected in Mizra and in Pan.

[61] In Solicitor General v Radio New Zealand the Full Court found that the secrecy of jury deliberations was essential to the due administration of justice which was why the defendant’s actions in breaching that secrecy were found to amount to contempt. When it came to balancing the right to freedom of expression guaranteed in s 14 of the New Zealand Bill or Rights Act against the rights guaranteed in ss 24 and 25 of that Act, the Full Court said at 60:

The right to a fair and impartial trial ... is at least as fundamental and as important as the right to freedom of speech. At the heart of the criminal trial is the jury’s impartiality and its freedom from any constraint from outside. The finality of the verdict, the preservation of frankness in deliberation and the privacy of jurors are all important in the due administration of justice, as we have already emphasised.

We think that on balance the right to freedom of expression is qualified by the necessity to preserve and protect those fundamental elements in the jury system. Freedom of expression does not authorise or permit the conduct of the defendant in this case. The right does not encompass the contempt alleged and found.

Later at 64 the Full Court said:

... there is no doubt that the objective of the law of contempt, generally and specifically in this case, is of sufficient importance to warrant the limit of the freedom of expression. Both as expressed in s 25 of the Act in declaring minimum standards of criminal procedure, and at ordinary common law, the protection of the due administration of justice, the impartiality and the freedom of deliberation of a jury, the finality of its verdict and preservation of the juror’s anonymity are certainly important, substantial and pressing concerns of a free and democratic society. They are at least as fundamental as the freedom of expression.

[62] R v Beer [1999] NZCA 46; (1999) 16 CRNZ 390 (CA); R v Norton-Bennett and R v Taka (1992) 2 NZLR 129 (CA) are a series of judgments in New Zealand on the admissibility of evidence of jury misconduct. Each judgment emphasises the importance of protecting the secrecy of jury deliberations. This importance has also been recognised by Parliament in s 76 of the Evidence Act.

[63] In both England and New Zealand the courts have acknowledged that, in principle, there will be rare cases when evidence of matters intrinsic to a jury’s deliberations may be accepted. In New Zealand Parliament has provided for such rare cases in s 76 of the Evidence Act. However, this exception is contemplated for the extreme cases when an appellate court is confronted with evidence that reveals there was no real deliberation on the part of the jury. Examples given in Mizra at [123] are: reaching a verdict in the jury room by tossing a coin or consulting an ouija board. The other occasion where an inquiry into the deliberations of jurors has been contemplated is where extrinsic acts on the part of jurors (outside research or knowledge on matters relevant to the verdict) have flowed into the jury room deliberations. In R v Taka the jury conducted their own experiments on the detectability of the heat of a car engine to establish time since the car was driven. In R v Norton-Bennett a juror discussed the case with her son and he referred her to a book titled “The Mr Asia File” which dealt with drug trafficking. In R v Beer one of the jurors was a retired Police Officer who attempted to obtain from the prosecuting counsel a copy of the Crimes Act 1961 and a passage from Adams on Criminal Law.

The willingness to entertain a possible exception to the general rule excluding evidence of matters intrinsic to a jury’s deliberations seems to flow from a concern to allow in principle for the extreme occasion, which does not yet appear to have arisen. See discussion in Mizra at [123]; Tuia v R [1994] 3 NZLR 553 at 556 (CA) and R v Beer at [28].

[64] There is a striking consensus in all the judgments on the importance of the secrecy of jury deliberations to the maintenance of due administration of justice and a fair and impartial trial. The judgments also demonstrate a firm resolve on the part of the courts not to depart from the general rule precluding examination of matters intrinsic to a jury’s deliberations.

[65] The rights the applicant invokes as a reason for permitting access to his jurors are the very reason why such access should be denied. They provide no foundation on which the applicant can rest his request for juror information. Consequently there is no tension between the protection the Juries Act gives to the confidentiality of jurors identities and ss 24, 25 and 27 of the New Zealand Bill of Rights Act. The confidentiality provision of the Juries Act aids the guarantee of the rights in ss 24, 25 and 27.

[66] The findings I have reached do not affect the common law rule that evidence of matters extrinsic to a jury’s deliberations is admissible. Nor will they affect how s 76 of the Evidence Act is applied on future occasions when an appellate court is asked to receive evidence of matters extrinsic to a jury’s deliberations. In the present case the evidence that all the jurors learnt of juror X’s unfortunate experience is extrinsic evidence which could properly be given in Court. But the effect on the minds of the jurors of juror X’s experience is a matter intrinsic to their deliberation which would not be admissible in Court.

[67] In R v Pan Arbour J gave examples of evidence of extrinsic matters including: evidence of someone who has tried to bribe a juror in the course of a trial: R v Putnam (1991) 93 Cr App R 281 (CA); evidence that a jury bailiff may have made remarks to a jury revealing the fact that the accused had previous convictions: R v Brandon (1969) 53 Cr App R 466 (CA); evidence that a juror had used a

cellphone to call someone at his place of business from the jury room: R v McCluskey (1993) 98 Cr App R 216 (CA); and evidence from a juror showing that a prosecutor had entered the jury room in the absence of the jury and erased words from the blackboard: R v Mercier (1973) 12 CCC (2d) 377. In Mercier the Quebec Court of Appeal allowed evidence of this fact, but did not allow evidence concerning the effect the act had upon the jury.

[68] A problem, which does not have to be faced here, is how an accused can learn of extrinsic matters that reveal jury misconduct. In the present case the incident giving rise to concern about the jury’s impartiality was known to everyone during the trial. The case law shows that jurors will come forward and reveal evidence of misconduct that is extrinsic to a jury’s deliberations. When they do not it is hard to see how jury misconduct outside the jury room will become known.

[69] Under r 2(4) of the Criminal Proceedings (Search of Court Records) Rules a judge can direct that no document on the court’s criminal files is to be inspected without leave. There is no evidence to suggest any such direction was made in relation to the list of jurors who sat on the applicant’s trial. If I had not concluded that such information is protected by s 12 of the Juries Act I would have been prepared to direct under r 2(4) that any document that identified a juror who sat on the applicant’s trial was not to be made available to him without leave and then denied him leave to access that information. Such an approach is available to me under the Rules. The importance of protecting jurors’ privacy and the secrecy of their deliberations is made so clear in Solicitor-General v Radio New Zealand, Mizra, Pan and the other judgments referred to herein that, when it comes to the exercise of the discretions in r 2(4), that any general principle favouring open access to criminal records would need to yield to the greater benefit of protecting jurors’ privacy and the confidentiality of their identities. For completeness I note that neither the Official Information Act 1982 nor the Privacy Act 1993 apply to court records. The provisions of those statutes that protect the privacy of natural persons cannot be relied on to protect the juror information sought here.

[70] The applicant has made clear in his submissions his acceptance that the process by which he might approach his former jurors should be subject to direction

from the Court. He submitted that a well chosen process could mitigate the perceived harmful effects of approaching former jurors. He referred to the process that the Court of Appeal has described for making enquiries of jurors: see: R v Taka at 131; R v Absolum CA118/03 26 November 2003 at [10] and R v Ropotini at [19]. However, this process is only engaged once an appellate court has been persuaded that such an enquiry is appropriate. The process is carried out through the exercise of the court’s power in s 389(d) of the Crimes Act 1961 to appoint an independent assessor: see R v Ropotini at [18]. That power is not available to me in the present case. This is an originating application in the Court’s civil jurisdiction and the provisions of the Crimes Act are not engaged.

[71] Nor do I do think that the process adopted in criminal appeals is appropriate when it comes to requests for information under the Criminal Proceedings (Search of Court Records) Rules. This is because such requests are not subject to the type of scrutiny given to criminal appeals involving requests to enquire into a jury’s conduct. Indeed the present case is a good example of why the process would not work. The Supreme Court has refused leave to appeal on the point of whether the jury prejudiced by what happened to juror X. This means the applicant’s case has failed to reach the threshold for when an appellate court will adopt the process under s 389(d) of the Crimes Act of having enquiries made of former jurors. I do not think that the potentially damaging consequences of making enquiries of juries in the context of a request for information under the Criminal Proceedings (Search of Court Records) Rules can be obviated by the process used to approach a jury.

[72] The application for access to the criminal file on the applicant’s trial for the purpose of identifying the jurors who sat on his trial so they can be approached to explore the question of bias, due to the circumstances surrounding the discharge of juror X, is denied.

[73] The parties have leave to file memoranda as to costs.

Duffy J