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Beyond anecdotal reports and occasional breaches of the rules of silence, no-one knows how juries reached their collective view, which matters were given appropriate consideration, and which ones were dealt with less satisfactorily. Courts are content not to know, for the practical reason that what they might discover - biases, irrationality, confusion and so on - may constitute serious problems for the administration of justice. Thus there is an understandable concern that knowledge of what actually happens in the jury room may do more harm than good.[1]
It is elementary that a properly functioning criminal justice system is fundamental in any free and democratic society. To that end, most jurisdictions around the world rely on juries: twelve peers of an accused who are meant to ensure that justice is done. Yet, in recent decades, juries have come under ever increasing scrutiny, and suggestions abound that the system has outlived any social worth that it may once have had. One element of the jury system that has served as an example of its inefficiency is the concept of 'jury secrecy': the idea that the deliberations of a jury ought to be utterly sacrosanct. In jurisdictions such as the United Kingdom, jury secrecy is enforced so strictly as to completely arrest any attempt at conducting legitimate research into the workings of the collective mind of the jury. This paper contests the orthodox limits of the doctrine of jury secrecy, focusing primarily on disclosure and publication by the media. It is concluded that many circumstances exist in which such disclosure and publication of deliberations are not only permissible, but crucial to the administration of justice.
Part Two examines the jury secrecy debate, the relationship between jury secrecy and contempt of court, and the present implications for the media and former juror. It concludes that a compromise between absolute secrecy and absolute freedom of disclosure ought to be pursued. Part Three looks at overseas legislation and New Zealand case law in search of a workable compromise for a proposed statutory provision in New Zealand. A suggested basis for such a provision is presented in Part Four.
The law of criminal contempt prohibits abroad range of conduct. This conduct ranges from various misbehaviours in the court-room, with some of the more colourful cases reporting egg throwing as constituting contempt,[2] to interfering with the process of a fair trial while the matter is subjudice, meaning 'under judicial consideration'. Due to its potential span, 'contempt' is inherently a difficult creature to define. However, it is often said that all kinds of contempt:
share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted[3]
Disrespect for the court is not a necessary ingredient of contempt and it will be enough if in reality, the administration of justice is undermined, regardless of the intention of the perpetrator.[4] Contempt forms part of New Zealand's criminal law and is capable of resulting in fines and terms of imprisonment. Its iniquity in this country is that it is the only crime not governed entirely by statute.[5]
Criminal contempt has been invoked to regulate and restrict the activities of the media in a number of ways. One of the most important forms of contempt relating to the media is scandalising the court by abusing, unduly criticising or alleging bias or impropriety by the judiciary. Contemptuousness in this sense relates primarily to prejudicing the standing of the justice system as a whole. Secondly, contempt will arise where the media prejudices a fair trial that is sub judice. The contempt here relates primarily to the matter under consideration, although wider justice may also be affected in the long term. Contempt may also take the form of approaching, interviewing or publishing the accounts of past jurors after a trial has concluded and a verdict reached. This latter form of contempt is the exclusive focus of this paper.
Several varieties of 'jury secrecy' contempt are possible; a juror may approach the media or the media may approach the juror. The media may obtain the juror's accounts of the deliberations second-hand, or the media may not be involved whatsoever, such as where the juror makes disclosures to acquaintances. Those who argue that to disclose juror's deliberations amounts to contempt do so on the basis that such revelation 'interferes with the administration of justice as a continuing process'.[6] Thus, it is possible for contempt to be found regardless of whether a particular trial has been obstructed. Indeed, unless an appeal ensues, the trial shall be concluded in these situations.
'Contempt' may not be an entirely suitable categorisation of conduct which breaches jury secrecy. At common law, the so-called rule of jury secrecy is no more than a convention or 'rule of conduct'.[7] Jurors are not required to take an oath of secrecy, and accordingly, it has steadily been accepted that 'a juror who betrays the confidences of the jury room does not...commit contempt of court or any other punishable offence'.[8] Indeed, the very absence of such a common law prohibition in England led directly to the passing of s 8 of the Contempt of Court Act 1981.[9] Notwithstanding that no absolute prohibition exists at common law, the courts have repetitively, and in strong terms, expressed their distaste for the practice.[10] Furthermore, anything more than a mere disclosure may be contemptuous, and so it may be important that disclosure is not accompanied by additional objectionable conduct or other special circumstances. For example, in R v Dyson,[11] the court thought that its inherent power to protect the jury system allowed a finding of contempt where gross breaches of jury secrecy were manifest, especially in circumstances where the judge had specifically directed the jurors not to disclose details of their deliberations after the trial concluded.[12]
A perusal of the legislation of common law jurisdictions does not assist the question of whether a breach of jury secrecy should amount to contempt. Indeed, whilst the United Kingdom provision[13] clearly categorises it as a contempt, it is curious to note that the neither the Canadian[14] nor the Australian equivalents[15] mention the word 'contempt' at all. If the publication of jury deliberations cannot be described as 'contemptuous' in that the practice tends to flout justice in the way described above, then it follows that contempt might not be a suitable device for dealing with breaches. Instead, a format reflective of the Australian provisions, which simply create a statutory obligation of jury secrecy, may be more appropriate in New Zealand. A determination whether disclosure and/or publication of jury deliberations may sensibly be regarded as 'contemptuous' conduct is assisted by weighing the policy factors below. A strong argument can be developed that a rule of jury secrecy in its pure form may in fact be detrimental to the preservation of the justice system. If this is accepted, then to classify a breach as contempt seems illogical.
The arguments for and against having a rule of secrecy to protect jury deliberations are complex for several reasons. First, the arguments (especially those favouring secrecy of deliberations) are always phrased in terms of absolute secrecy and absolute disclosure. Accordingly, the arguments raised can appear to point to a straightforward conclusion until concessions are made that better accommodate the other point of view.[16]
Secondly, any analysis of the debate is made difficult by the lack of statistical and scientific information detailing what presently occurs during deliberations. The evidence is primarily academic, extrapolated from sociological research and related to the justice system without any empirical evidence. Ironically, the very reason for the lack of such information is often the secrecy rule itself; in England, the primary complaint in relation to s 8 is that it precludes research about jury processes being undertaken. Certainly, one of the strongest arguments favouring publication is that it would enable the viability of the jury system to be more conclusively explored.[17] Thirdly, the arguments for and against jury secrecy are interrelated to such a degree that considering them each in isolation is impossible. As a result, some of the arguments raised below appear in multiple sections of the debate.
One of the principal arguments put forward by advocates of secrecy is that to allow jurors to disclose details of deliberations would be to inhibit frank discussion within the jury room. It is alleged that 'freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world'.[18] That is, individual jurors, fearful that their potentially unpopular views may become subject to public scrutiny and scorn, will be less inclined to participate actively in the deliberation process: 'sensitive jurors will not engage in... dialogue without some assurance that it will never reach a larger audience'.[19] Certainly, to allow disclosure of deliberations would immensely widen the potential audience of a juror; his opinion, typically open to attack from eleven other jurors, could instead by subjected to the scrutiny of millions.
However, a counter-argument (which has seemingly received insufficient attention to date) is that the 'candour argument' assumes that a system which maintains jury secrecy therefore ensures freedom of thought and participation - an assumption that is arguably unsustainable. Under the present system, many a sensitive juror with an unpopular stance is capable of, and likely often does, suppress his/her opinion so as to prevent judgment from other jurors. Surely it is a natural tendency amongst humans to protect one's opinion from the assaults of eleven virtual strangers. It follows that the environment within which deliberation occurs does not necessarily promote free and frank discussion regardless of whether secrecy is maintained.[20] Thus, it is more realistic to argue in terms of disclosure worsening an existing problem, rather than creating a new one. Cassidy makes this argument extremely well; he observes that it is uncertain, under the current system as a whole, or in any specific trial, how much coercion and pressure is applied to individual jurors during deliberation. He argues that:
If the ordinary committee or small meeting dynamics common to... public and commercial life are any indication of the functional reality in a typical jury room, then there is a good chance that one or more dominant personalities will emerge and play a more or less dominant role in the jury's deliberations.[21]
Thus, he argues that the reality of a 'collective decision' by twelve jurors may often be illusory, especially in the absence of external monitoring and oversight of the process. Furthermore, ajuror is able, through non-participation, to abdicate his decision-making responsibilities due to boredom or a desire to go home promptly. Recent research in New Zealand indicates that dominating behaviour does occur injury-rooms and that 'dominant jurors often affected the eventual verdict, because they were the ones who put their point across most forcefully'.[22] It follows, argues Cassidy, that the verdict would more likely represent the stance of twelve if each juror, initially in the absence of the others, was required to complete a written opinion.[23] In the event that several such opportunities failed to produce unanimity of verdict, then the jurors could complete the process through face-to-face deliberations. This proposal may not be as radical as it appears; indeed, 'most individuals have more experience interpreting events and meaning for themselves in relative isolation than through... group decision-making'.[24] Nevertheless, by Cassidy's own admission, this proposal fails to take into account that an element of the rationale behind the concept of group deliberation is that 'a certain amount of give and take and adjustment of views within the scope of the jurors' oath'[25] is anticipated. That is, 'a view that is honestly held can equally be honestly changed after free discussion and persuasion from others',[26] an opportunity that may not exist if the practice of individual reflection was initiated. Furthermore, there would be a risk that jurors who lacked the capacity to fully comprehend any factual complexities would be unable to resort to the explanations and advice of fellow jurors. Perhaps a compromise could involve a mixture of group and individual decision-making -an initial group meeting followed by the casting of votes.
An inevitable by-product of allowing disclosure of deliberations is said to be that potential jurors will be dissuaded from participating in the system, and instead be induced to avoid jury service. Indeed, in the 'immediate aftermath'[27] of the publicity given to statements made by jurors in Murphy,[28] a high profile Australian case, 'applications by prospective jurors to be excused trebled' .[29] The New South Wales Law Reform Commission later felt compelled to 'safely conclude that, to many jurors, the fear of others publicly discussing what might be said and done would be a disincentive to jury service'.[30] It is clear that safeguards would need to be imposed in order to prevent future jurors from feeling fearful of being identified and ostracised. However, it may be queried in the Murphy scenario whether the public held onto this dissuasion once the hype had passed -plausibly, once the matter had lost a degree of the public's attention and was forgotten by individuals, those called for jury service would be less inclined to be apprehensive. Furthermore, Murphy was an extreme example of publication of deliberations; the disclosures, made on a popular Sydney radio station, not only came immediately after the trial and pending appeal, but were also unusually emotive and inconsistent as between jurors' accounts.[31] If a statutory provision were introduced into New Zealand, it would not need to afford the press the same degree of freedom.
Those who support secrecy argue that, whilst it is the domain of the media to scrutinise and facilitate the transparency of public (and arguably some private) affairs, to allow the media to expose details of jury deliberations in such a fashion extends its legitimate role too far. The fear is that if the media is allowed to behave in this way, it inevitably becomes a 'court of public opinion'[32] that may manipulate the judicial process by placing pressure on jurors to conform to its widely publicised view. This concern forms part of the rationale for the sub judice rule as well - there has been concern that jurors in a particular trial will feel pressured to decide a certain way based on media reports. Conceivably, if the media were allowed to criticise a particular trial after it had finished, future jurors may well bear the negative hype in mind and decide the subsequent matters according to media opinion.
Related to the claim of inhibition of free and frank discussion between jurors is the idea that if jury secrecy ceased to be imposed, the opportunity and 'important function'[34] of the jury to act as rectifiers of the law would not survive. The New South Wales Law Reform Commission has alleged that the jury has an unofficial role to play watch-dog over the criminal justice system by effectively ignoring certain evidence when the legal outcome is repugnant to their sense of morality. In so doing, the undesirable shortcomings that can manifest themselves in individual cases may be avoided 'in accordance with the perception of common people'.[35] The Commission argued that such a function would cease if deliberations were able to be made public because jurors would lack the autonomy to find this equity. Admittedly, if deliberations were regularly made public, it is quite conceivable that a juror's tampering with the strict legality of a situation would be more readily uncovered.
Nonetheless, whether this practice is in fact desirable seems not to have been considered by the Commission. The implication is that society will benefit from 'allowing' or at least not discouraging twelve unelected, unanswerable laypeople to decide that a law is arbitrary and should be suspended.[36] Whilst in some cases, justice may indeed be served, it seems rash to conclude that the practice is unexceptionally worthy of protection.
This argument represents the classic and virtually undisputed validation of jury secrecy. It is argued that if jurors can be compelled to keep their deliberations secret, once a verdict is delivered, (subject to any appeal rights that the accused may have) the matter is concluded. In contrast to a judge only trial, juries have never been expected to give reasons for their decisions: the jury 'is mute and unknown except for its verdict'.[37] Thus, whilst the media and public can, to a degree, legally speculate as to the legitimacy of the deliberation process,[38] jury secrecy necessarily dictates that such speculation can almost never[39] be proven. This prevents the endless rehashing over the legality of specific comments of individual jurors and forces the public, to a large degree, to accept that the process was legal, legitimately decided and rational.
Supporters of secrecy maintain that 'once the deliberations of a jury become public, the verdict is no stronger than the reasoning upon which it is based'. [40] It is easy to see that finality is compromised where jurors are entitled, immediately after the verdict, to express their doubts as to the evidence, as to the reasoning of other jurors, and as to the verdict itself. So too, where a juror reveals a lack of understanding (by himself or another) as to the law or facts involved, or alludes to the compromises and changes of attitude during deliberations, finality may be seen to be prejudicial.[41]
For both the defendant and the juror, the trial can be an extremely taxing experience. Finality ensures that all parties concerned can put the experience behind them. Once a verdict is handed down, the defendant is left with a conclusive determination which is supposedly representative of a process of fair judgment by his peers. The jurors, who have been involuntarily enlisted into the system, are able to return to their interrupted lives with as few repercussions as possible.[43] The argument is that, where deliberations are publishable, a juror may face unjustifiable consequences as a result of his having performed a public duty. Initially, jurors may be pestered and harassed by journalists who are attempting to solicit their next scoop. Thereafter, where disclosures reveal the trial concerned, or worse, the identity of individual jurors, there is a danger that jurors will be pressured by family, friends and/or members of the public to defend the points of view they expressed during deliberations. Publication may even have the effect of compelling the defamed juror to publicly defend his position if he disagrees with the publications.[44] This, it is argued, may be seen as an unreasonable intrusion into a person's right to solitude and anonymity. There is also a danger that an aggrieved defendant or his family, or even an extremist member of the public may make threats of violence towards the juror and, by the identity of a juror being made public, be assisted in carrying these threats out. However, as indicated below, such concerns may adequately be dealt with by placing restrictions on publications and in particular, protecting the identity of past jurors.
Clearly, achieving finality in a trial is of great importance. However, the prevailing counter-rationale to the finality argument is to question whether finality of verdicts, and the resulting public confidence in the jury system, is socially justifiable or even desirable where it is achieved at the expense of a truly collective and properly decided verdict. Is it the actual determination of a fair trial which is important, or does the appearance that finality has been achieved, in order that public confidence and acceptance is maintained, reign supreme? As observed by McHugh, jury secrecy 'allows those in authority to dismiss a particular miscarriage as a quirk when it may in fact be the inevitable result of the system'.[45] Viewed in this way, the achievement of finality would logically give way to opening the system to scrutiny in order to assess its continued viability.
Notwithstanding this argument, in Re Matthews and Ford,[46] paramountcy was tentatively given to jury secrecy. The Court said it might be that 'the interests of the community in ensuring freedom of debate in the jury room and finality of verdicts outweighs the interest of the litigant in the individual case'.[47] Undoubtedly, a defendant would have difficulty appreciating the merit in this argument. Isolated flaws in our judicial system are often justified and tolerated on a 'greater good' basis. However, the rarity of these incidents provides no condolence for a convict whose sentence of life imprisonment is due to the jury's vagaries.[48] Not only are the media prohibited from informing the public of suspicions that jury impropriety has produced a miscarriage of justice, but also evidence of jury impropriety cannot be adduced to support an appeal.[49]
Obviously, features such as finality, freedom of deliberation and public confidence are necessary to ensure that the justice system works at its best. However, surely the overriding consideration, and indeed the very reason for having a justice system at all is the quest for justice itself. A justice system which achieves finality and public confidence and ensures confidential and free debate amongst jurors will nevertheless be worthless if it does not provide a fair forum for resolving disputes and trying criminal defendants. Thus, at the absolute least, there needs to be exceptions to jury secrecy so that where there is a 'really substantial reason'[50] to suspect that justice is being thwarted, mechanisms for allowing disclosure exist.
Closely connected to the 'finality argument' is that of public confidence. Supporters of secrecy argue that the jury system relies completely on the silent nature of deliberations for the public's continued faith in the legitimacy of the system. It is submitted that 'exposure of jurors' deliberations inevitably undermines public confidence in trial by jury and could eventually lead to the destruction of the jury system'.[51] The main reason proffered for such an outcome is that the giving of details would reveal compromises entered into and differences of opinion between jurors. Once such compromises are divulged, it is argued that they 'could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdicts'.[52] Implicit in this argument is the suggestion that the public will be more accommodating of a verdict for which reasons are not given than a verdict which shows differences in reasoning.[53]
The argument that it is the unanimity[54] of verdict which feeds public confidence, rather than the process by which it was achieved, has been popular with the courts.[55] However, beyond hesitant claims that to provide 'more intimate knowledge'[56] than the mere verdict would destroy an appearance of unanimous agreement, minimal evidence avails itself to support the suggestion that openness of deliberations would bring the system to its demise. It has been suggested that, as well as the losing the appearance of unanimity (and the consequent support of the public), the process by which unanimity is reached will also be undermined. The argument is that unanimity 'depends upon a free and confidential exchange of views'[57] and that if jurors' concessions are disclosed to the public, then they will hesitate to reach unanimous verdicts. However, it may equally be argued that, in the absence of opposing proof, 'the pressure to conform and not "stand out" as a dissentient might be a more powerful influence.’. [58] Without the benefit of empirical research, it is unclear what motivates the jurors to unanimity.
Another objection to the public confidence argument is that if the public tends to draw accurate conclusions from the disclosures, and those conclusions show up inadequacies in the system, then it is surely beneficial for such inadequacies to be made public. Thus, the 'public confidence' argument is only viable if it can be presumed that breaching secrecy will have the inevitable effect of leading the public to draw false and/or exaggerated conclusions as to the efficacy of the jury system. It seems presumptuous to suggest that, on the whole, the public at large is incapable of drawing logical and accurate conclusions from the publication of jury deliberations. Certainly, there will be disagreement between individual members and groups of the community as to the correctness of jurors' opinions, particularly where the verdict demands an emotional response. Nevertheless, to propose that reasonable members of the public will inevitably and consistently conclude that the system is not worthy of their confidence simply because they disagree with some of the reasoning behind a verdict may be an overly rash conclusion. Furthermore, the public can be aided in its logical assessment of jury deliberations if some restraints are placed on what is published and how it is to be published. Obviously, harm would be done if the media was given free rein to publish sensationalist, one-sided, tabloid type accounts of jury deliberations tempered only with the newsworthiness of the story in mind. Whilst making a distinction between legitimate and contemptuous reporting would be difficult on occasions, there appears to be no reason to conclude that it would be impossible; the courts are regularly confronted with similarly fine distinctions in other areas of law, such as in many defamation cases. Proponents of secrecy also allege that the detailed publication of deliberations would serve to portray an exaggerated depiction of the 'inevitable shortcomings'[59] of the system:
In the long run, the public may lose confidence in the system and, without appreciating that other ways of reaching verdicts will be inevitably flawed also, may bring sufficient pressure to bear on governments to abolish the system wholly or substantially.[60]
To a degree, this is undoubtedly true - no system is capable of upholding perfection; any option will be flawed unavoidably to an extent. However, it may be doubted whether all of the defects which show up after scrutinising the system could be rightfully classified as 'inevitable'. There have been numerous utterances that 'it would be quite surprising if juries [in fact] perform as well as they should'.[61] Besides, it may be that the public pressures the government for reform rather than outright abolition of the system; if such reform resulted in a more effective system, then this must surely be seen as a step forward. It seems elementary that the jury system should not be deceptively legitimised by allowing it to rest upon false foundations of public support. If the public rightly perceives problems with the system at large when the workings of it are exposed, then the public should be entitled to pressure the government for reform as a basic democratic right. In other words, 'If those who think that the trappings of trial by jury are a cloak for an elaborate farce are right, it would be better if verdicts were reached by a less expensive and a less time consuming procedure' .[62] Public confidence will be diluted 'only if the system deserves to be undermined'.[63]
As a further rebuttal to the 'public confidence' argument, it may be questioned whether it can be said that the public has any substantial degree of confidence in the jury system anyway. One survey conducted in the 1980s showed that two out of five citizens lacked faith in the jury system.[64] Instead of allowing the media to exploit the jury's silence as a weakness, it may be better to end speculation as to the possible reasons for a verdict by affording the deliberative process a degree of transparency.[65]
There are a host of reasons why allowing unrestricted publication and disclosure of jury deliberations could lead to inaccuracy of reporting and indeed, in the long term, to a consequent undermining of the justice system. Firstly, the juror who speaks out may be mistaken, prone to exaggeration, motivated by some ulterior purpose, or may only tell part of the story. A disclosure may thereby:
... convey the impression that a verdict is incorrect and should be overturned [but] closer investigation will often reveal that the matters alleged do not constitute a true account of what occurred in the jury-room or that an apparently serious allegation is not after all of great significance.[66]
There is no guarantee, in seeking statements from a juror, that that person has any objective grasp on the situation whatsoever. Accordingly, to entitle the media to publish the thoughts of a random juror without sufficient safeguards is inherently unsafe. More dangerous still is where that juror approaches the media with a story to tell. In such a situation, the likelihood of some other motive, such as the negotiating of payment for the story or revenging another juror for something said or done, is manifestly increased. Furthermore, there is an obvious risk of inaccuracy through repetition of one juror's statement by another.[67]
Aside from dangers arising from the juror, the media is an organ whose primary purposes are to provide information to the public and to sell their story as widely as possible in order to make the largest profit possible. The practice of writing scandalous tabloid accounts which have been contorted to increase newsworthiness is undeniable.[68] Celebrities constantly complain that they are misrepresented by the media in an attempt to increase circulation and there is no obvious reason why jury deliberations would be treated differently without appropriate sanctions. Arguably, misrepresentation of jury deliberations poses greater dangers than invading celebrity privacy because the reputation of the judicial system is in jeopardy, as is a level of legitimate public confidence.
Once publication of deliberations is allowed, it would be difficult in the extreme to ensure that inaccuracy and bias did not occur. Whilst blatant fabrication would be easy to detect, it would be complex to prohibit a' slant' being put on a journalist's account because such an exercise would be enormously subjective. Notwithstanding that such problems would arise, it is arguable that the courts face the same kind of difficulties with defamation actions. The problem of inaccuracy is seemingly one argument that disfavours disclosure and that it needs to be considered as a factor to be balanced against the benefits.
In America, the disconcerting trend of jurors 'selling' details of trial process to the press in return for payment and/or writing their own articles and best-sellers has gained popularity. Many states have considered or adopted statutes restraining this practice, but in a nation whose overriding fundamental right is free speech and freedom of the press,[69] such legislation is not easily introduced. Dubbed 'juror journalism,' the practice is potentially more perilous than at first it appears. Arguably, it is inherently undesirable for jurors to profit from their service to the public.[70] However, a greater danger is that a juror may be tempted, inadvertently or even intentionally, to pervert the course of justice by 'tak[ing] actions during deliberations to produce a more dramatic verdict rather than responding to the evidence presented'.[71] Admittedly, such a risk is theoretical and there have been no mistrials declared on this ground.[72] Notwithstanding this, it seems incontestable that allowing jurors an opportunity to receive payment for their version of jury deliberations would be completely contrary to public policy and a frustration in the administration of the jury system. Accordingly, subsection (4) of the draft provision below makes it an offence without exception to accept or offer payment for deliberative details.
If the protection of jury secrecy is removed and the publication of deliberative details is allowed, jurors are obviously more accountable to the public, of whom they are representatives. Should this occur, it may be argued that jurors would be more likely to employ legitimate processes and decide matters on more rational bases. As McHugh points out:
... although the public cannot elect or dictate to jurors, it is at least entitled to have the jury know that the public is watching its performance.[73]
Public confidence would thereby be nurtured by the visible legitimacy of the jury-room process. A counter argument is that jurors may feel compelled to decide the matter according to what they perceive as being the public opinion. Provided that the public has an opportunity to be fully informed as to the complexities of the case, it may be argued that this is constructive. However, the likelihood is that, as occurs with many publicised events, the public may only be fed some of the facts involved (or an inaccurate account) and thus, for the jury to decide according to public opinion may in fact be contrary to justice.
A point of contention is whether, if a statutory provision were to affirm the rights of jurors and the media to publish accounts of jury deliberations, a 'spate of jury-room revelations'[74] would follow. Considerable difference of opinion exists here. On the one hand, it has been suggested that only rarely will jurors feel compelled to come forward with revelations of what occurred during deliberations.[75] However, much of this literature was written prior to the enactment of Australian legislation - its enactment may suggest that the problem was on the increase. The other view is that a considerable floodgates risk attaches to the allowing of publication. The Court in Radio New Zealand[76] expressed concern and presented limited evidence to demonstrate that the practice was increasing.[77] Such a view was also expressed in Boston v WS Bags haw & Sons.[78] Again, a lack of substantive proof either way has resulted in conflicting forecasts on the matter and necessitates that the 'floodgates' issue is another uncertain factor in the debate.
To date it has been assumed that the period in which jurors' deliberations would be published is after the completion of the trial; that is, at a time when the trial is no longer sub judice. However, a defendant will normally have the right to appeal against sentence or conviction and will often take that opportunity. Furthermore, a successful appeal may result in the defendant being retried. In either case, if jurors are allowed to publish deliberation details immediately after an initial trial (that is, pending an appeal or retrial), that latter hearing may be prejudiced. The sub judice rule prohibits the media from publishing 'material that creates a real risk of prejudice to a fair trial'[79] during that period. However, if the risk of prejudice is very slight, a penalty will not be imposed - the risk must be more than a remote possibility.[80] The commencement and cessation of the sub judice period has been the subject of debate and confusion, but it seems to be readily accepted that a matter will continue to be sub judice until it is clear that no appeal will ensue - normally because the opportunity to appeal has passed.[81] Cases such as R v Duffy[82] show that contempt can arise at this time. Surprisingly, in the context of post-trial publication of deliberations, there has been little recognition of the sub judice problem.[83]
The potential for gross unfairness seems as marked as any other kind of pre-appeal comment[84] by the media.
Prejudice is most likely to arise in the case of a retrial where the new jurors could feel pressured by media coverage to conform or depart from the previous jurors' sentiments or verdict. Whether an appeal is open to the same amount of media intrusion is somewhat more dubious because appeals are conducted by judges as opposed to new jurors. It has been convincingly suggested that judges are less susceptible to the kind of media pressure and influence that arises from scandalising the deliberations of the initial jury.[85]
Whilst the issue of appeals and retrials is of relevance in the context of post trial deliberative revelations, it is suggested that the issue is best dealt with as falling within the sub judice domain. Due to the many complexities of the sub judice rule itself, it is beyond the scope of this paper to analyse the issues that arise and suggest a suitable provision (if any) to regulate this kind of situation. However, it is hoped that any future reform of the sub judice rule will considerthe issue of jury deliberations.
An obvious attack on the secrecy of jury deliberations is the right of the media and individuals to free speech. Section 14 of the New Zealand Bill of Rights Act states that 'Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form'. In opposition, s 25 guarantees certain rights to an accused, which are sometimes in opposition to free speech. Under s 5, any abrogation of the rights and freedoms must constitute only such reasonable limitation as can be demonstrably justified in a free and democratic society. The question then, is whether, and to what degree, the rights contained in ss 25 and 14 may be abrogated in line with the requirements of s 5.
In contrast to the United States,[86] common law jurisdictions have recognised that free speech is not absolute and have curtailed it to the extent necessary to give effect to other fundamental freedoms. Notwithstanding free speech, publications that are, for example, sexist, racist or indecent are commonly suppressed. In other words, it has been accepted that some forms of expression are unacceptable, and consequently not protected by instruments such as the New Zealand Bill of Rights Act.[87] Indeed it has even been argued that to give the media free press 'robs jurors of an important part of the right of free speech — the right not to speak publicly' .[88]
Freedom of speech in the context of jury deliberations was considered at some length in Radio New Zealand. The Court held that free speech needed to be balanced against the need for an 'impartial and effective justice system'[89] and 'the need, forthe sake of the community, to preserve the jury system from erosion'.[90] Each value was said to be of 'equal concern'.[91] A number of conflicting freedoms within the Bill of Rights Act were identified. Firstly, an accused is entitled to a fair trial by an 'independent and impartial court' under s 25 (a). Obviously, a jury shall not be independent or impartial if it is constrained by the threat of media propaganda should the opinions expressed in the jury-room fail to comply with the standpoint of the media. The right of the accused to be presumed innocent until proven guilty under s 25(b) may also be prejudiced if the media is able to publish accounts of jurors' deliberations after the defendant has been found not guilty. Furthermore, the fairness of an appeal, the right to which is contained in s 25(h), may also be prejudiced by the publication of deliberations. Where free speech conflicts with privacy, a contextual approach is normally adopted[92] whereby, instead of assessing the importance of the competing freedoms at a distance, the particular dispute is analysed on its facts so as not to result in a meaningless competition. Viewed in this way, no particular freedom will always prevail, but in a particular setting, one will usually be identifiable as being more important than the other. Indeed, this was the approach in Radio New Zealand-the Court seemed to consider it relevant that on that particular occasion, nothing other than the public's titillation was achieved. In other words, free speech was not used to advance any public good or to expose any fundamental truths; it was simply being flouted as a means of publishing unnecessary gossip. Accordingly, the defendant's rights under s 25 were more important. It is submitted that this approach of balancing the interests on the facts is correct and in line with the requirements ofs5.
An analysis of the secrecy debates culminates in several observations. The first is that, over the course of many cases, there has tended to be a degree of blind judicial acceptance of the orthodox reasons proffered for secrecy. Once some of these wearied arguments are challenged, it becomes apparent that they do not stack up. Secondly, there are some reasons that seem to absolutely favour the maintenance of secrecy. On the other hand, there are also some equally compelling reasons for providing for some exceptions. Part Two attempts to perform a balancing exercise in order to determine whether a suitable formulation, which accounts for both sides, might be developed. Finally, it is now possible to observe that whilst some disclosures would be injurious of the administration of justice, so as to make them logically definable as 'contempt', many other disclosures may well have the effect of promoting justice. It follows that the draft provision below is best framed in unrestrictive terms and without labelling the conduct prohibited as contempt.
Although there has been a tendency to 'borrow' expressions and concepts from one another, the enactments of Canada, England, Victoria and New South Wales are, in many senses, dissimilar indeed. It is not proposed to discuss each in much depth, but rather to point out their main features at this stage and incorporate a fuller discussion of some of those features below where a New Zealand solution is sought.
Arguably the most controversial, and certainly the most widely discussed provision is s 8 of the Contempt of Court Act 1981. Many of its features have already been alluded to. Essentially, with practically no exceptions,[93] the provision makes it a contempt of court to obtain, disclose or solicit any details of jury deliberations. It is fair to say that this provision has not been popular, and most commentators have written with reform in mind. The main problem with s 8 is that it is very tightly worded, which has led to inflexibility in its interpretation by the courts. In turn, this has produced detrimental results and proven that drafters are unable to provide for every factual matrix. Much tension also stems from the inability of authorities to investigate miscarriages of justice arising from juror misconduct[94] and the intentional failure to provide for legitimate research to be carried out.
In stark contrast to England's provision, ss 68A and 68B of the Jury Act 1977 have resulted in an extremely liberal provision which allows jurors to disclose all deliberative details once the trial has concluded.[95] The effect of the legislation is to prohibit only three kinds of conduct: (1) disclosure by the juror 'during the trial'; (2) disclosure by the juror at any time for a reward or payment; and (3) the solicitation or harassment of a juror by third parties such as the media. Thus, the provision seems to provide that if a juror approaches the media after the trial and neither seeks nor gains a reward, the media is entitled to publish whatever information the juror discloses about the deliberations. Having regard to the 'inaccuracy' argument above, and the sensationalist tendencies of the media, it may be seriously doubted whether this result is sufficiently protective of the administration of justice. Indeed, an additional requirement that focused on the effect of the publication would be prudent.[96]
The case of R v Laws[97] does not make interpretation of this legislation straightforward.[98] Mr Laws approached a former juror from a high-profile trial who alleged, inter alia, that she had been bullied by the other jurors into a verdict of not guilty and that she continued to entertain grave doubts about the correctness of that verdict. Mr Laws broadcast these details. Given that the disclosures were made by the juror after the trial and that she was seemingly not paid or rewarded for her disclosures, Mr Laws' subsequent conviction must have been based on his admitted 'soliciting' the juror for information. The grounds for his conviction are at no point set out in the judgment, and at times, the Court seems to base his conviction on the fact of publication, rather than on the approach.[99] In any event, the case casts doubt on whether, had it been the juror who had approached Mr Laws in otherwise identical circumstances, a conviction would still have followed.
Sections 77 and 78 of the Juries Act 2000 represent the most detailed of all the provisions. Section 77 sensibly prohibits the publication of the names of jurors. Section 78 is similar to the United Kingdom provision in that it prohibits the publishing, obtaining or soliciting of certain kinds of jury deliberations. In addition, there is a specific provision preventing jurors from disclosing such information if they have reason to believe that it will be published. However, in contrast to s 8, there are exceptions to the prohibitions. Such disclosures may be made for the purposes of investigations, counselling, or research. Furthermore, neither publications nor disclosures are prohibited where they are not capable of revealing the identity of a juror or the trial, which represents a very liberal exception. On the whole, the sections are sensibly structured. However, the desirability of modelling the provision on the tight words of s 8 is questionable, as is the idea that publication of deliberative details is unrestricted provided anonymity is maintained. The above discussion demonstrates that the reasons for jury secrecy are wider than privacy. Again, the provision fails to focus at all on the effect of the disclosure, which the author submits is another downfall.
Clause 649 of the Canadian Criminal Code governs the issue of jury secrecy in Canada, and is again quite different from provisions in other jurisdictions. The Canadian provision in essence makes it an offence for a juror, or anybody providing support services to a juror, to disclose any information relating to deliberations. There are two exceptions to this prohibition: such information may be disclosed for the purposes of an investigation into an alleged offence in relation to a juror, or in order to give evidence in subsequent proceedings. The section does not mention the possibility of publication by the media, so seemingly, if the media published information that it had been provided with by a juror in breach of the provision, the media would not have committed any offence under this Clause. Other problems with the Canadian clause include the inability to conduct legitimate research and the inability to expose or adduce evidence of juror misconduct so as to cure miscarriages of justice.
The judgment of the High Court in Solicitor General v Radio New Zealand Ltd[100] represents the most extensive New Zealand analysis of this topic to date. The defendant, David Tamihere, had been convicted by a jury of a double murder some time before. Upon the discovery of a victim's body, the radio station approached, questioned and broadcast the responses of jurors who had decided the trial as to whether they continued to have faith in their verdict. In a relatively lengthy judgment, the Court considered whether the conduct of the radio broadcaster in first approaching the jurors and eliciting information from them, and secondly broadcasting their responses, could amount to contempt. Under both heads, the Court held that contempt was proved.
The process adopted by the Court is worthy of consideration as a potential alternative to a statutory provision. After setting out the separate heads relied on by the plaintiff, the Court spent some time analysing the rationale behind jury secrecy and thought that 'the safekeeping of an impartial and effective system of justice' was the overriding issue. Following Papadopoulos, the Court opined that the jury system relied on the maintenance of three factors: the privacy of jurors, candour in deliberations and finality of verdicts.
The 'climate of the times'[101] was also accorded importance - the Court lamented that in times past, it had been unnecessary to resort to the law of contempt because 'the exhortatory effect of judicial disapproval'[102] had deterred publications of this nature. However, a different ethos was said to prevail in the media nowadays, and the Court thought it necessary to declare this kind of conduct unlawful in light of the increasing number of breaches. This tends to evidence and support the need for some kind of law-making intervention, whether by the process of judge-made law or by Parliament. If the problem is increasing, it would be prudent for New Zealand to have greater certainty in this area of the law. Furthermore, there seems to be no reason against a statutory provision.[103] Legislation would have the effect of making the law more accessible and of sending a clear indication of Parliament's stance on the matter.
The Court adopted the test propounded in the earlier case of Solicitor General v Radio Avon Ltd,[104] namely the need, from the perspective of the Court,[105] for 'areal risk as distinct from a remote possibility that the broadcast items would undermine public confidence in the administration of justice'.[106]
The Court thought that all the circumstances of the publication would be material to this enquiry[107] including the statements themselves, the time of publication, the size of the audience and the impact and duration of their influence.[108] Such factors certainly need to be addressed in any test adopted for jury deliberations - it would be impossible to deal with publications other than on their own facts.
The test is similar to that applied to sub judice cases.[109] However, whilst the latter test has already been subjected to judicial consideration, until recently prosecutions for criminal contempt were uncommon, so interpretative difficulties remain. Essentially, the phrase 'real risk' means that minor breaches of jury secrecy which are unlikely to prejudice justice will go unpunished.[110] However, because the bounds of the phrase have not often been tested, what comprises an acceptable publication remains uncertain. Nevertheless, if such uncertainty ensures that journalists think twice before publishing a story, then it may normally be socially beneficial.
The major advantage of the Radio New Zealand test is its flexibility. By referring to the effect of the publication on the administration of justice rather than its nature, it tends to avoid the need to impose any complex restrictions on the form of the document published.[111] Instead, it is left to the publisher to decide whether, and in what form, the disclosure will conform to the law. Provided sufficient sanctions are imposed, it is likely that journalists will employ adequate caution. Furthermore, this flexibility prevents many of the anomalies and arbitrary results that tend to arise from tightly worded provisions such as s 8.[112] To place a blanket prohibition on disclosure with no regard to the effect of that disclosure is to equate a juror who discloses details to several close friends with a juror who methodically approaches a series of national media bodies and incites them all to publish details. Therefore, the basis of the draft provision below is the 'effect' based test adopted in Radio New Zealand.
As noted in the Radio New Zealand judgment, mens rea in the law of contempt has been described as 'something of a minefield'.[113] The question, in relation to jury secrecy, is whether there ought to be a requirement that the defendant intended to prejudice the administration of justice. Or, alternatively, is it enough for the defendant to knowingly carry out the conduct or be responsible for it?
The Court in Radio New Zealand held that the earlier decision of Radio Avon[114] was determinative of the mens rea issue. The Court opined that the administration of the justice system as a whole was at least equally important as upholding justice in a particular case. It was held that intent is not required in relation to prejudicing a particular trial, and accordingly, would not be required for this kind of contempt. The Court concluded that:
the mens rea element is satisfied by proof that the defendant knowingly carried out the act or was responsible for the conduct in question. Proof of an intention to interfere with the due administration of justice may assist the conclusion that the publication had the required tendency, and its presence or absence would also be relevant to penalty; but the absence of such an intention will not necessarily lead to a conclusion that no contempt has been committed.[115]
The Court noted that this accorded with Australian law;[116] indeed, since the Radio New Zealand decision, the case of Laws found that an offence had been committed notwithstanding a lack of intent. Wood J also confirmed that the presence of knowledge and defiance would have been a factor in favour of a full-time custodial sentence.[117]
The question of mens rea has posed greater difficulties in jurisdictions such as England where, regardless of the severity of the effect of the breach, an offence will have been committed.[118] Uncertainty continues to exist, although the main line of authority[119] seems to require proof that the conduct was 'specifically designed to impede or prejudice the due administration of justice'.[120] Such intent can be 'inferred from all the circumstances, including the foreseeability of the consequences of the conduct'.[121] Arguably, this has the effect of availing a defence to a convicted person who seeks to establish his innocence by approaching a juror to discuss the deliberative process. The intent of such a person is to prove his innocence, not to prejudice the course of justice.
It is submitted that Radio New Zealand's requirement of either knowledge or responsibility by the defendant is a sensible solution to the mens rea issue. Requiring the prosecution to prove intent to prejudice the administration of justice would be onerous. It would be simple for the defendant to argue that he had been motivated by entirely different considerations. Furthermore, requiring proof of intent would have the effect of complicating and consequently slowing down the progress of a trial. This would be especially problematic where the defendant is a publishing company that, not being a natural person, lacks any mental capacity. By referring only to 'knowledge' and 'responsibility' (the latter incorporating an idea akin to vicarious liability), corporate bodies are more readily subjected to the law. Furthermore, it is appropriate that, having chosen to walk a fine line in relation to jury secrecy by disclosing deliberative details, the responsibility of ensuring that the law is adhered to is placed on the defendant.
In the opinion of the author, the judgment has several overriding failures:
1. It fails to mention, let alone consider in depth, the more prevailing arguments in favour of some disclosure. Indeed, the Court somewhat too optimistically asserts that 'nothing in the law of contempt inhibits... discussion of jury verdicts including the probing of possible miscarriages of justice. It is simply that disclosure of the reasoning processes of individual jurors does nothing to assist'.[122] With respect, this seems to be incorrect - many of the cases mentioned have demonstrated that an individual juror's thoughts may be very relevant to uncovering miscarriages of justice, and that the law of contempt will often prevent these shortcomings from being addressed.[123]
2. The result is the creation of a blanket rule of secrecy in relation to all disclosures that prejudice the administration of justice. For the most part, the focus on 'effect' rather than 'form' is the fortitude of the test. However, it seems that 'form' must be factored into the test to the extent necessary to recognise that some kinds of disclosure[124] require absolute immunity from a secrecy provision. Conversely, some kinds of disclosure ought to be absolutely prohibited, regardless of whether they tend to prejudice the administration of justice.[125] Several kinds of disclosure that ought to be dealt with outside the ambit of the main test are discussed below.
3. In seeking to give unconditional support to the secrecy argument, the judgment also fails to define the ambit of the types of disclosure it seeks to protect. Exactly what kind of statement is intended to be the subject of the test is not made clear. In particular, it is unclear whether the test applies only to the actual deliberations or whether wider comments about the system are also restricted. If only the deliberations are caught, what degree of detail may permissibly be disclosed? Furthermore, what is the effect of deliberations that tend to promote the administration of justice? Should there be any distinction made between the media and the juror as disclosers? An attempt to define these kinds of limits is made below.
One important issue left unresolved by the Radio New Zealand judgment is whether the ambit of the test should be confined to the deliberations of the jury or whether it can apply to wider conduct. The Court simply did not discuss the ambit of intended control. However, other jurisdictions have established that the common law rule of secrecy relates only to 'deliberations', whilst 'matters extrinsic to deliberations' may be disclosed and given as evidence.[126] In relation to that rule, several problems arise. First, the Radio New Zealand judgment is based entirely upon the reasoning that the three factors of privacy, candour and finality (and consequently the administration of justice in general) would be undermined if disclosure of jury deliberations were to be allowed. The problem is that, to the extent that this reasoning is true in relation to deliberations, it is equally as true in relation to many comments not concerning deliberations. An example could be where a juror announces that he has since doubted the correctness of his decision.[127] That type of comment could conceivably be just as damaging to the administration of justice as a statement that details the deliberations of other jurors. Thus, if Radio New Zealand is interpreted as applying only to deliberations then, notwithstanding the test, the very result that it seeks to avoid may nevertheless be produced.
However, whether the draft provision should prevent the disclosure of extra-deliberative statements that tend to prejudice the administration of justice is questionable. Probably the main objection to a wider provision is that to exercise control beyond the deliberations themselves is arguably to restrict free speech and free press unduly. As above, although it is important that our jury system not come under unmerited criticism, at some point, free speech must predominate in a democratic society. Other branches of our justice system come under heavy media scrutiny and provided that they do not breach the law, such discussion has been tolerated. Another objection is that in the case of deliberations, the discloser is likely to be expressing the views of another juror, whereas if he comments about non-deliberative matters, he is simply expressing his own opinion which he should arguably be entitled to do. Furthermore, other areas of the law will govern some disclosures.[128]
If it is accepted that the rule applies only to deliberations, a second problem is manifest. What is meant by the phrase 'deliberations'? It is not clear where the distinction between 'deliberations' and 'matters extrinsic to deliberations' lies. In this context, the courts have tended towards very general statements; for example that the secrecy rule 'is not confined to the jury room but extends to anything that may truly be described as deliberations'[129] or that the 'confidentiality rule extends further than events during a jury's retirement to consider its verdict, or in the jury box itself’.[130]
Although in many factual settings the distinction will be obvious, that will not always be the case. For example, in Bates, the Court received evidence that jurors had made independent enquiries of a chemist outside of court which indicated that this was not considered to be part of the deliberations and thereby giving 'deliberations' a narrow meaning.[131] However, in cases such as Portillo, it has been held that the 'concept of deliberations is not to be narrowly construed'.[132] Furthermore, it is unclear whether, at common law, the amount of detail disclosed about the deliberations is material.
No doubt seeking to circumvent both of these problems, Victoria and England have sought to define the kinds of disclosures that are subject to legislation by prohibiting disclosure of 'any particulars of statements made, opinions expressed, arguments advanced or votes cast in the course of their deliberations' from being disclosed, obtained or solicited. Accordingly, any kind of disclosure falling outside these categories will not be governed by the provision. However, it is still not clear what is meant by the 'course of their deliberations'. Furthermore, these tightly worded provisions have tended to produce unexpected results in some cases. For example, in McCluskey,[133] the Court was entitled to enquire into the conduct of a juror who had used a mobile phone to conduct a routine business matter during deliberations. This conduct fell outside any of the categories specified in s 8.[134] Whilst McCluskey probably represents a sensible outcome, Young demonstrates that undesirable outcomes are also possible.
It seems necessary for New Zealand's provision to define deliberations so as to clarify the ambit of the provision. However, it also seems desirable that any such definition be phrased as widely as possible so as to avoid the types of peculiarities above. Accordingly, subsection (7) of the draft provision defines 'deliberations' as being information that influences a juror as to the matter concerned between the time that the trial commences and the time the verdict is given. In doing so, the section has the effect of contradicting part of the Radio New Zealand judgment; under subsection (5) of the draft provision, it would not have been an offence for the media to approach the jurors to ask whether they had doubts about their verdict because the information sought was not part of the deliberations.
It is recognised that this solution is not perfect and that amendments may need to be made if problems arise. However, for the reasons above, it seems that the draft provision should only control deliberations. Having made that decision, 'deliberations' must be defined, and, due to the difficulties cited, is a difficult task without an unproblematic answer.
Given that the rationale behind jury secrecy is the preservation of the administration of justice, it may be argued that deliberative disclosures which tend to promote public confidence in the justice system ought to be capable of publication.[135] The Radio New Zealand judgment is silent on this point, but because public confidence in the administration of justice would not be undermined, seemingly such a comment could be published under that formulation. Clearly, if 'good' comments were disclosable, then the privacy of the juror would be being made secondary to the promotion of the administration of justice. Further, it may be contended that if the media were entitled to filter out and publish 'good' comments, then the public may form an indefensibly rose-coloured estimation of the true state of the jury system.
The solution to the problem seems to be as follows: the Radio New Zealand test should be modified so as to require the conduct concerned to have unduly undermined public confidence; that is, any legitimate problems should be able to be exposed and the system made answerable. As above, public confidence must derive from legitimate sources. The judgment may be interpreted as hinting at such an exception to secrecy. The Court may have considered it material that the matters disclosed in that case were confined to satisfying the 'titillation of the listening public'[136] rather than 'rais[ing] any legitimate matter of public concern, or otherwise advanc[ing] the public good or the cause of justice'.[137] In this way, the media may publish 'good' comments as well as comments which, whilst tending to cast the administration of justice in an unfavourable light, are nevertheless warranted. Comments which prejudice the administration of justice and are not justifiable in the public interest would be prohibited.
The clearest way to draft this idea is to incorporate a public interest defence - that is, to make it a complete defence to a charge of contempt where the defendant demonstrates that the disclosure was made in the public interest. Primacy is thereby accorded to free speech in situations where the disclosure is one of legitimate public concern whereas other freedoms will predominate where the importance of free speech is not established on the facts. A public interest defence also solves the problem of exposing shortcomings within the justice system and highlighting individual miscarriages of justice, whilst at the same time preserving secrecy of deliberations in cases where disclosure cannot be justified on such grounds.
Although the line between what is, and what is not, of legitimate public concern may occasionally be difficult to draw, the distinction should normally be obvious - identifying scandalous and gossipy journalism is a frequent judicial task in areas such as defamation and privacy actions. Neither is the idea of a 'public interest' defence new to the courts; a similar defence is available in breach of confidence and privacy actions where the courts have described the line as falling between what is 'interesting to the public' and 'of interest to the public'.[138] Thus, the problem identified above of the media lying or placing a 'newsworthy slant' on a story is also solved as such a disclosure will unduly prejudice justice and afford no defence.
Another area of uncertainty in the Radio New Zealand judgment is whether a distinction ought to be made between a disclosure by a juror and a subsequent publication by the media. Section 8 refers only to 'disclosing' information, which incorporates subsequent publication by a third party like the media, as well as initial disclosure by ajuror.[139] However, the courts in all jurisdictions have focused primarily on the media as a perpetrator -jurors who initially made the disclosures have not been pursued.[140] Whilst it can be argued that without the media, ajuror would have had difficulty gaining the same degree of exposure, similarly, the media would have found it difficult[141] to be in contempt without a disclosure from ajuror. If the Radio New Zealand test is used, there is arguably no need to make a distinction; the effect of the publication will determine whether it creates a 'real risk' to public confidence, and whether it is therefore punishable. That is, it is the ambit of the publication, the size of its actual audience, and the extent of its detrimental effect on the administration of justice which is important- not the identity of the discloser. Such an approach is sensible -it is flexible, unprejudiced and even-handed. It recognises that the media may publish without offending the administration of justice, and equally that an individual juror or third party may make a disclosure that does.[142] Accordingly, it is suggested that the Radio New Zealand approach is taken and no unnecessary distinction is made. Furthermore, it would seem that references to 'publication' and 'republication' may also be omitted; whether such a disclosure is punishable shall depend entirely upon its effect.
Whether the rules of secrecy ought to be bent to allow for some degree of publication by the juror and media is only part of the debate. A separate question, but one that is debated on substantially similar grounds, is whether jurors should be entitled to give detailed evidence of the deliberative process in a later trial. Historically, a few narrow and closely guarded exceptions to the rule of secrecy have existed - for example, evidence that ajuror failed to see or hear the announcement of the verdict[143] or that ajuror did not understand the English language.[144] However, except in those very limited circumstances, the rule is that jurors are not entitled to give this kind of evidence, even where the proceedings concerned are an appeal from the jury's verdict.[145]
The degree of unfairness that can result from such inflexibility is evident from cases such as Nanan v The State.[146] There, the Privy Council upheld a refusal to consider the evidence of a former jury foreman to the effect that, when asked if the jury had reached a unanimous verdict, he replied affirmatively in the mistaken belief that 'unanimous' meant 'majority'. The jury had in fact been divided eight to four in favour of a conviction. The refusal to hear the evidence was upheld by the Privy Council notwithstanding that the defendant had been sentenced to death for murder under Trinidad and Tobago's law.
Is there a valid reason why juries are not only unable to be compelled to give such evidence, but are not even able to choose to do so, whereas a judge must? In other words, 'why is it unacceptable for a district judge trying a minor civil case not to give reasons in support of his judgment but acceptable [for a jury] whose verdict can send a person to prison for life?'[147] And further, why are the reasons given by a trial judge subject to review by an appellate court, whereas a jury's reasons are sacrosanct?[148] The reasons most often proffered are identical to those put forward in favour of restraining the media from publishing deliberative details. Yet, when a judge makes a thoroughly bad decision and his written, publicly available decision is disseminated, may public confidence not be shaken and finality prejudiced? A judge too may become the subject of threats and scorn. A judge's privacy will not be protected. It seems strange that the same series of reasons offered in support of jury secrecy are either ignored or do not stack up when applied to the deliberations of a judge.
To a degree, a juror's silence can be justified on the basis that he is called compulsorily to do a public service. On the contrary, a judge enters his profession having positively accepted his responsibilities. However, much of the potential for uninvited stigma attaching to a juror disappears if his reasons are given anonymously so that his identity is protected.[149] Furthermore, in situations where the juror volunteers himself as a witness to misconduct in the jury-room, this argument is irrelevant. Fortunately, in contrast to cases such as Nanan, recent New Zealand cases have alluded to a wider approach in terms of accepting evidence from jurors. In R v Campbell[150] the trial judge discharged a juror after hearing evidence from the foreman of deliberate avoidance by the juror of his duty to participate. In R v Bates,[151] the Court received evidence that
jurors had made independent enquiries at a chemist outside of court as to the availability and price of ephedrine.[152] More profoundly, in TuiavR,[153] the Court of Appeal held that evidence of a juror detailing the deliberations that had occurred could be put before the Court 'where there is a sufficiently compelling reason to depart from the normal rule of confidentiality' .[154] The Court thought that it was 'ultimately a question of balancing competing public interests; the public interest in protecting the confidentiality of jury deliberations as against the public interest in seeking to do justice in the individual case'.[155] Although the subsequent case of R v Beer[156] shows that the traditional rule will not be departed from lightly, judgments such as Tuia nonetheless represent a welcome liberalisation to this area of the law. Accordingly, subsection (2) (b) of the draft provision expressly allows for disclosures of misconduct to be made during court proceedings. Furthermore, it states that the restrictions imposed in relation to non-evidential disclosures do not apply to evidential disclosures.[157]
Most overseas legislation has been phrased so as to allow the police and other crime investigation bodies to investigate allegations of offending and misconduct on the part of jurors and/or the media.[158] The New Zealand Law Commission favours making such disclosures permissible, albeit 'with the permission of the trial judge'.[159] Enabling the police to investigate transgressions in relation to jury secrecy would tend to promote the administration of justice and act as a deterrent to those wishing to break the law. Accordingly, subsection (2) (a) of the draft provision creates an exception in relation to police investigations.
It seems virtually incontestable[160] that any provision relating to the secrecy or otherwise of jury deliberations must allow for the right to conduct legitimate research into the workings of the jury system. The secrecy debate demonstrates with clarity that not enough is known about the jury deliberation process, what influences it and to what degree, and whether it is effective in discharging its function legitimately. Probably the most pronounced failure of the United Kingdom legislation is that it fails to allow research to be conducted with the result that the deliberation process is completely shielded from an examination of its true worthiness. There is simply no way of telling whether verdicts (either generally or in a specific case) are the result of a fair process, or conversely, an arbitrary one.
The case of Young provides an example of what may go on undetected behind jury-room doors in the United Kingdom. The defendant was convicted of a double murder. After the trial had finished, it emerged that one evening, at the hotel at which the jury had been accommodated, several members of the jury had set up a ouija board. A message ensued that 'Stephen Young done it'. The English Court of Appeal was able to hear evidence of this scandal because to do so was not technically contemptuous - the séance, being an after-hours activity, was not part of the actual deliberative process, as required by s 8. Accordingly, the Court had the jurisdiction to hear the evidence, quash the conviction and order a retrial. However, had the séance (or any other arbitrary method) been employed during deliberations, the Court would have been precluded from its enquiries.
Such a result, whilst an intended one,[161] would surely be undesirable. Surprisingly though, the Canadian legislation similarly fails to make provision for research to be carried out.[162] Conversely, the New South Wales and Victorian legislation expressly allows for research to be carried out 'into matters relating to juries or jury service'[163] where it has been authorised by the Attorney-General. Fortunately, New Zealand seems to share Australia's sentiments. The Law Commission has recently been allowed to conduct some research into the deliberations process, and the Court in Radio New Zealand expressed its support for ongoing research into the system, albeit with the permission of the court and the jury.[164] The draft provision also makes unambiguous provision for research to be carried out in subsection (2)(c).
Another area in which jury secrecy should not be absolute is where a past juror seeks professional help in the form of counselling, psychological treatment and such like. Research conducted in New Zealand has indicated that 'the experience of being a juror can be a very powerful one [that can cause the juror] a considerable amount of stress and emotional upheaval.’. [165] Accordingly, professional assistance may be a vital part of a juror's putting the experience of the trial behind him or her and such assistance will 'inevitably involve some disclosure'.[166] Since counselling would be on a confidential basis, there is no risk to the administration of justice.[167] Whilst a slightly greater risk would attach to disclosures to personal confidantes, this form of debriefing is probably also an inevitable and desirable outcome of jury service. It is noteworthy that Victoria's legislation specifically provides for professional counselling as an acceptable forum for disclosure.[168] Subsection (2)(d) of the draft provision specifically allows disclosures to be made for the purposes of professional counselling. Jurors who debrief to friends or family will not be prosecuted under subsection (1) unless the effect of the disclosure is sufficiently widespread to be unacceptable.
Just as there are some forms of disclosure that ought universally to be publishable, there are some which, due to their inherently undesirability, need to be the subject of outright prohibition. As above, implicit in the finality argument is the importance of protecting the privacy of jurors. Jurors, who have been compelled to perform a public service, should be able to do so in the knowledge that their identity will be protected and their privacy maintained. It is widely accepted by those who support the publication of deliberations that the identity of jurors should be kept anonymous.[169] Indeed, little is achieved by disclosing an identity and at the same time, much is at stake. Subsection (3) of the draft provision makes it a separate offence, regardless of the effect that the publication has on the administration of justice, to disclose a juror's identity.
A related issue is whether there should be a prohibition on unveiling the matter under jury consideration. Probably the main reason against disclosing the name of the trial is that to do so would further erode the anonymity and privacy of jurors.[170] On the other hand, to prevent disclosure of the matter concerned would make the exposure of miscarriages in particular cases very difficult. Furthermore, where the disclosure is in the nature of giving evidence of a miscarriage of justice during an appeal or retrial of a defendant, the court will necessarily need to be informed of the matter concerned in order to rectify the verdict. Provided that the identities of jurors are steadfastly protected, the chances of their privacy being intruded upon are diminished, albeit that the chances are not altogether extinguished. Although the draft provision does not make it an offence to disclose the name of the trial, its publication would need to be executed with care in order to avoid breaching subsection (3).
In New South Wales, the approach of past jurors by the media is dealt with separately from disclosures. This is a rational approach which recognises that a single attempt by the media to obtain information from an unwilling juror does not prejudice the administration of justice in the same way as a large-scale publication of deliberative information. What is primarily objectionable about solicitation is that the privacy and anonymity of the juror comes under attack. If the practice were to become widespread, it is conceivable thatpotential jurors would seek to avoid service.[171] Furthermore, under s 9(6) of the Juries Act 1981, jury lists are confidential to the Registrar.[172] Thus, even where a publication conforms with the Radio New Zealandtest and creates no risk of prejudice to the administration of justice, nevertheless it should still be a breach of the law where the information was initially obtained using surreptitious methods.
It is noteworthy that media law already provides some mechanisms for dealing with paparazzi-style harassment and other persecuting methods of journalism. These mechanisms include a developing tort of invasion of privacy which may eventually evolve to incorporate this kind of conduct, and a developing tort of harassment. Furthermore, the Broadcasting Standards Authority has developed a set of 'privacy principles', the third of which prevents broadcasters from intentionally interfering with an individual's interest in solitude or seclusion.[173] Notwithstanding these existing instruments, it is submitted that the special status of jurors points to the inclusion of a specific rule in New Zealand's provision. What form the provision should take is problematic. Seemingly, to prevent the media from approaching jurors in all circumstances, is too restrictive. There is a real risk that jurors who approach the media are more likely to have a firmly held and biased view of the circumstances. Furthermore, the media is an important investigative body whose purpose is partially to expose society's undesirable traits. Therefore, where the media discovers a miscarriage of justice but is not approached by jurors, journalists should be able to approach jurors subject to certain constraints. On the other hand, where a juror makes it clear that he wishes to remain uninvolved, the law should protect that desire. One possible solution would be for jurors to complete a questionnaire after the trial has finished, indicating whether they would be prepared to be contacted by the media in the future. Another possibility would be to take the task of approaching jurors away from journalists and allow a specially appointed person or body to do so upon proof that the story has merit.
The less than ideal solution in the meantime seems to be that the media be prohibited from approaching jurors, and this has been drafted into subsection (5) of the provision below. This is in accordance with the anonymity granted by s 9(3). However, reference to the word 'obtain' has been omitted from the draft provision because in England, where it is an offence to 'obtain' deliberative information, uncertainty has arisen. It is argued that 'obtain' could be interpreted as requiring no mens rea.[174] If that is the case, then a journalist who receives a 'leaked' report has 'obtained' it so as to be in breach of s 8. However, in that situation, the journalist has come into possession of the material quite innocently and it is therefore arguably undesirable to impose sanctions where no further conduct has followed. It is proposed that this j ournalist should not be guilty of an offence. Accordingly, in subsection (5) of the draft provision, the concepts of 'soliciting' and 'harassing' are used instead. Both words impliedly require an intention on the part of the actor, and as such, an offence cannot be committed unless the media so chooses. However, if the media subsequently publishes that leaked report and the publication contravenes subsection (1), then an offence shall have been committed.
It is proposed that the Juries Act 1981 (NZ) be amended to include the following provision:
(1) It shall be an offence to disclose any information on the deliberations of a jury where there is a real risk, as distinct from a remote possibility that the information disclosed would undermine the administration of justice.[175]
(2) Nothing in this section applies to any disclosure made by a juror about the deliberations of a jury where the disclosure is made for the purposes of:
(a) assisting an investigation by the police or any other person authorised by the Attorney-General of an alleged offence or misconduct during deliberations in relation to a jury or juror; or
(b) giving evidence in criminal proceedings in relation to such an offence, whether those proceedings relate:
(i) to the trial of the juror who is allegedly guilty of an offence or misconduct of the kind described in (a) of this section; or
(ii) to the trial during which it is alleged that such an offence or misconduct was committed; or
(c) contributing to a research project into matters relating to juries or jury service in accordance with an authority granted by the Attorney-General; or
(d) treatment by a registered medical practitioner or a registered psychologist in relation to issues arising out of the person's service as a juror;
and no offence shall have been committed where a disclosure is made in such circumstances.
(3) Regardless of whether an offence is committed under subsection (1) of this section, it shall be an offence to disclose the identity of a juror or jurors or to disclose any deliberative information in such a way as to make a juror or jurors readily identifiable.
(4) Regardless of whether an offence is committed under subsection (1) of this section, it shall be an offence to offer or receive a fee, gain or reward for information on the deliberations of a jury.
(5) Regardless of whether an offence is committed under subsection (1) of this section, it shall be an offence to solicit information from, or to harass a juror or former juror for the purpose of acquiring any information on the deliberations of a jury.
(6) It shall be a defence to a contravention of subsection (1) but it shall not be a defence to a contravention of subsections (3) or (4) or (5) if the disclosure was a matter of legitimate public concern.
(7) In this section, 'deliberations' means any information that would tend to influence ajuror or jurors' opinion about the guilt or innocence of the defendant and that was communicated to the juror or jurors between the time that the trial began and the time that the verdict was delivered.
It is submitted that this draft provision, which is a hybrid of overseas and New Zealand thought, provides a basis from which a solution to the debate surrounding deliberative disclosures may be found. Some problems remain; in particular, the meaning of deliberations and whether extra-deliberative statements ought to be suppressed as well. Subsection (1) governs typical disclosures and publications and adopts a modified Radio New Zealand test which is concerned with the effect of publication on the administration of justice. The other rules have been included to address 'special' kinds of disclosures, and hopefully have the effect of legalising the best that both secrecy and disclosure have to offer. It is hoped that the result is that, on the one hand, jurors are afforded sufficient protection to be able to perform their duty diligently, and on the other, the jury system will be required to stand legitimately and perceptibly before society so that its true worth can be properly assessed.
[*] The author is a solicitor practising in Christchurch. This paper was written as part of the undergraduate Honours programme.
[1] Brendan Cassidy, "Some thoughts on Removing the 'Gag' on Jury Deliberations" [2000] Alternative Law Journal 2, 3.
[2] J F Burrows, 'Contempt of Court', J F Burrows and U Cheer, Media Law in New Zealand (4th ed, 1999) 272.
[3] AG v Leveller Magazine Ltd [1979] AC 440, 449 (Diplock LJ).
[4] John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351, 372. Notwithstanding this, in relation to jury secrecy, a much debated issue is whether mens rea of some description should be required for an offence to have been committed.
[5] Burrows and Cheer, above n 2, 270.
[6] The Honourable Mr Justice McHugh, 'Jurors' Deliberations, Jury Secrecy, Public Policy and the Law of Contempt', in M Findlay and P Duff, The Jury Under Attack (1988) 59.
[7] E Campbell, 'Jury Secrecy and Contempt of Court' [1985] MonashULawRw 8; (1985) 11 Monash University Law Review 169, 170. Referring to Ellis v Deheer [1922] KB 113, 118.
[8] Ibid. This view is supported by cases such as Re Donovan's Application [1957] VicRp 47; [1957] VR 333 and the important case of AG v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1.
[9] The provision was enacted as a response to the New Statesman case where the Court reluctantly held that no contempt was committed merely because a juror had disclosed details of deliberations.
[10] For example, Re Matthews and Ford [1973] VicRp 18; [1973] VR 199, 212-3; Ellis v Deheer [1922] 2 KB 113, 118.
[11] [1972] 1 OR 744 , 753 (Haines J).
[12] This was the view espoused by the Ontario Supreme Court in R v Dyson [1972] OR 744, 753 (Haines J).
[13] Contempt of Court Act 1981 s 8.
[14] Canadian Criminal Code s 649.
[15] There are two such provisions in Australia: ss 68A and 68B of the Jury Act 1977 (NSW) and s 78 of the Juries Act 2000 (Victoria).
[16] An obvious example is the argument that disclosure would lead to the harassment, loss of privacy and public scorning of individual jurors. This must be conceded if the media is entitled to publish an unlimited amount of information. However, if the identities of jurors were off-limits, the argument loses much of its force.
[17] Recently, the New Zealand Law Commission was allowed to conduct research into the deliberations of juries. See New Zealand Law Commission, Juries in Criminal Trials, Part Two: Volume 2: A Summary of the Research Findings, Preliminary Paper 37 (1999). Whilst that research did shed some light on the state of the system, much more needs to be carried out in order to ensure a full understanding.
[18] Clark v United States (1933) 289 U.S.1 34 (Cardozo J).
[19] [Anon] 'Public Disclosures of Jury Deliberations' (1983) 96 Harvard Law Review 886, 890.
[20] B Cassidy, above, n 1, 4.
[21] Ibid 4.
[22] New Zealand Law Commission, above n 17, 47.
[23] Cassidy recognises that this would not be without problems of coercion either - a juror's response may easily be led by the form of any questions asked. However, if the questionnaire were court-approved after being prepared by both the prosecution and defence, then such a risk could be minimised. Cassidy, above n 1, 1.
[24] Cassidy, above n 1, 5.
[25] R v Papadopoulos [1979] 1 NZLR 621, 623 (Cooke P), quoting the trial Judge.
[26] Ibid.
[27] Law Reform Commission of Australia, Contempt, Report 35, (1987) 208.
[28] Some examples of such disclosures are M Trembath, 'Jury 'Foreman' Speaks Out', The Sun (Australia), 11 July 1985, 2; ' "Sorry" woman writes to Murphy', Melbourne Sun, (Australia), 19 July 1985; J Penberthy, 'Inside the Murphy Jury', The National Times, (Australia), 26 July-1 August 1985, 1, 3-4, 26-27; J Payne, 'Jurors' lives touched by the trauma of a decision', The Sun Herald, (Australia), 28 July 1985.
[29] Law Reform Commission of Australia, above n 27, 208.
[30] New South Wales Law Reform Commission, Criminal Procedure — The Jury in a Criminal Trial, Report 48 (1986) para 11.23.
[31] New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Discussion Paper 12 (1985) para 8.12.
[32] Cassidy, above n 1, 4.
[33] This term is used by the Law Reform Commission of Australia, above n 27, 207.
[34] Ibid.
[35] Ibid.
[36] McHugh, above n 6, 70.
[37] Cassidy, above n 1, 2.
[38] Cassidy notes that the media will often elicit comments from politicians, victims, families, academics and criminologists: ibid 2.
[39] Exceptionally, appeals brought on such grounds as the correctness of the rulings on evidence or the trial judge's directions to the jury may rely on the correctness and propriety of the conduct of the jury in discharging their function. To this limited degree, the need for finality may be said to be qualified. Law Reform Commission of Australia, above n 27, 206.
[40] McHugh, above n 6, 66.
[41] Law Reform Commission of Australia, above n 27, 206.
[42] This issue is also dealt with below where a compromise between secrecy and publication is sought.
[43] New Zealand Law Commission, Juries in Criminal Trials, Report 69 (2001) 171.
[44] This purportedly occurred in relation to the Justice Lionel Murphy trial where the Federal Attorney General reportedly felt that jurors had been provoked into answering the publications by the media. New South Wales Law Reform Commission, Criminal Procedure — The Jury in a Criminal Trial, Report 48, above n 31, para 8.12.
[45] McHugh, above n 6, 66.
[46] [1973] VicRp 18; [1973] VR 199.
[47] Ibid 211.
[48] J R Spencer, 'Séances and the Secrecy of the Jury Room' [1995] Cambridge Law Journal 519, 521. See also C J Miller, Contempt of Court (3rd ed, 2000).
[49] The prohibition on receiving evidence from past jurors as to jury impropriety is considered below in greater depth.
[50] [Anon] 'Current Topics: Speaking to Jurors' (1972) 46(8) Australian Law Journal 369, 370.
[51] R v Laws [2000] NSWSC 885 citing the Honourable Terry Sheahan MLA in the Legislative Assembly.
[52] R v Armstrong [1922] 2 KB 555, 568 (Hewart LCJ).
[53] Cassidy, above n 1, 6.
[54] Obviously some jurisdictions allow majority verdicts (such as most Australian states), but the argument is still said to be of importance. See McHugh, above n 6, 63.
[55] See, for example, R v Armstrong [1922] 2 KB 555.
[56] McHugh, above n 6, 62, citing Glanville Williams in The Proof of Guilt.
[57] Ibid 63. This argument has been accepted in Clark v US [1933] USSC 52; 289 US 1; Re Matthews and Ford [1973] VicRp 18; [1973] VR 199.
[58] Cassidy, above n 1, 6.
[59] Law Reform Commission of Australia, above n 27, 206.
[60] Ibid.
[61] 1 McHugh, above n 6, 70.
[62] Ibid.
[63] Ibid.
[64] These were the results of a poll published in the Melbourne Age. J Philips, 'Jury Room Disclosures Erode the System' 59 Law Institute Journal 1330, 1330.
[65] Cassidy, above n 1, 4.
[66] Law Reform Commission of Australia, above n 27, 207.
[67] Ibid 208.
[68] Thus, even where the account of jurors is accurate and balanced, it is open to the media to create inaccuracy.
[69] Cases such as Florida Star v BJF [1989] USSC 123; 105 L Ed 2d 443 (1985) show that free speech predominates over other fundamental rights and freedoms - in that case, the right to privacy was found to be subservient to the right to publish details, including the name, of a rape victim.
[70] This is because ideally, the motivation to sit as a juror should ultimately reflect a desire to promote justice in ones community. Whilst this is overly optimistic, the potential to make money surely should not enter into the mind of a potential juror.
[71] M Strauss, 'Juror Journalism' (1994) 12 Yale Law & Policy Review 389, 397.
[72] Ibid.
[73] McHugh, above n 6, 65.
[74] Law Reform Commission of Australia, above n 27, 210.
[75] Ibid.
[76] Solicitor General v Radio New Zealand Limited [1994] 1 NZLR 48.
[77] Ibid 56.
[78] [1966] 1 WLR 1135, 1137 (Harman LJ). Harman LJ, in relation to allowing jurors to give evidence of the deliberative process in later proceedings, said: 'It would be destructive to all jury trials... There would be no end to it. You would always find one juryman who said "that is not what I meant" and you would have to start the whole thing anew'.
[79] Burrows and Cheer, above n 2, 283.
[80] Solicitor General v TV3 Network Services Ltd and Television New Zealand Ltd [1991] M520/96 (Unreported, High Court of Christchurch, 8 April 1997).
[81] Burrows and Cheer, above n 2, 282.
[82] [1960] 2 QB 188. There, the defendant was sentenced at trial to five years imprisonment for causing grievous bodily harm to another. The next day, a newspaper published an article that the defendant alleged was partially untrue and prejudicial to his upcoming appeal. Although the court eventually held that this particular article was not a contempt, they specifically held that if the article had prejudiced the chance of a fair appeal, then contempt would have been found.
[83] In Radio New Zealand, it was noted that applications for leave to appeal were pending at the time of the broadcasts, though this was not relied on as a separate ground.
[84] Such as a rundown of the appellants previous convictions or predisposition towards crimes of a particular nature. 85 Burrows and Cheer, above n 2, 301.
[86] In America, free speech reigns supreme, with the effect that the media is effectively entitled to run rampant over values such as privacy. Jury deliberations may be bought, sold and scandalously published.
[87] This was expressly recognised in Radio New Zealand [1994] 1 NZLR 48, 59 where the Court also cited cases such as Irwin Toy Ltd v Quebec (Attorney General) (1989) 58 DLR (4th) 577 and Retail, Wholesale & Department Union v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174, where the same proposition was recognised.
[88] 'Jury Room Is No Place For TV': The Hartford Courant: http://www.ctnow.com/news/opinion/op_ed/hc-will01 06.artjan06,0,7401166.story?coll=hc-headlines-opedat at January 6, 2003.
[89] [1994] 1 NZLR 48, 58.
[90] Ibid.
[91] Ibid.
[92] Hocking, Freedom of the Press: A Framework of Principle, A Report from the Commission on Freedom of the Press (1972) 72-3. E Paton Smith, 'Human Interests: Privacy and Free Speech in the Balance' (1995) 16 New Zealand Universities Law Review 225, 228.
[93] The main exception is that evidence of deliberations may be presented in subsequent proceedings for an offence alleged to have been committed in relation to the jury in the initial proceedings. Thus, it is possible to adduce evidence to support a prosecution for contempt of court, but not to make right any injustice produced by such an offence.
[94] A narrow escape occurred in the case of R v Young [1995] 2 Cr App R 379, discussed below. 95 Jury Act 1977 (NSW) s 68B.
[96] This is discussed in more depth below where the Radio New Zealand test is analysed.
[97] [2000] NSWSC 885 (New South Wales Supreme Court).
[98] That case appears to have been the first, and possibly continues to be the only case to interpret the New South Wales provision. [2000] NSWSC 885, para 34.
[99] For example, the court states that, although jurors are able to make post trial disclosures of their own volition, such a disclosure 'does not... give rise to any waiver of the prohibition, nor does it permit others to approach either them, or the remaining members of the jury...' [2000] NSWSC 885, 889, para 29. This undefined 'prohibition', which the Court contrasts with an approach of a juror, seems capable of being interpreted as retaining a prohibition on any publication of deliberative details.
[100] [1994] 1 NZLR 48.
[101] Ibid 56.
[102] Ibid.
[103] The New Zealand Law Commission supports the introduction of legislation in relation to this matter. New Zealand Law Commission, Juries in Criminal Trials, Report 69, above n 43, 174.
[105] The Court declined to assess the conduct from the perspective of the reasonable person because this would require the court to hypothetically invest that person with the qualifications to understand the complexities of jury trials and the system within which they are conducted. The easier course, requiring judicial satisfaction that 'the principles' are infringed was said to be preferable.
[106] [1994] 1 NZLR 48, 56.
[107] The Court cited Attorney General v New Statesman and Nation Publishing Co Ltd [1981] QB 1.
[108] The Court cited Hinch v Attorney General [1987] VicRp 62; [1987] VR 721.
[109] The test, when a matter is sub judice, is whether 'as a matter of practical reality, there is a real risk, as distinct from a remote possibility, of interference with a fair trial': Solicitor General v TV3 Network Services Ltd and Television New Zealand Ltd, [1997] M520/96 (Unreported, High Court of Christchurch, 8 April 1997).
[110] Burrows and Cheer, above n 2, 283.
[111] For example, Cassidy recommended that the document containing a juror's deliberations be contained in a focused, carefully prepared form which required written answers to questions set by the court: Cassidy, above n 1, 6.
[112] Many commentators have lamented that s 8 has often produced undesirable and unexpected results. The most oft-cited example is the case of R v Young [1995] 2 Cr App R 379.
[113] Attorney General v Newspaper Publishing Plc [1987] 3 All ER 276, 303 (Lord Donaldson MR).
[114] Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 255 (CA).
[115] [1994] 1 NZLR 48, 55-6.
[116] The Court cited Hinch v Attorney General [1987] HCA 56; (1987) 164 CLR 15.
[117] [2000] NSWSC 885, 893 (Wood J).
[118] However, s 8(3) states that no proceedings shall be instituted under that section without the consent of the Attorney General or on the motion of a court having the jurisdiction to deal with it. Accordingly, minor breaches are not likely to result in a conviction.
[119] The other line of thought, as is noted by A Arlidge, D Eady, and A T H Smith, Arlidge, Eady and Smith on Contempt (1999) 733-4 is that s 8 creates a strict liability offence. This argument was alluded to, though not expressly accepted, by the Court in Attorney General v Associated Newspapers [1994] UKHL 1; [1994] 2 AC 238, 251A-B.
[120] Attorney General v Judd [1995] COD 15 where the judgment of Bingham J in Attorney General v Sport Newspapers Ltd [1991] 1 WLR 1194, 1208F-H was adopted.
[121] Attorney General v Newspaper Publishing Plc [1987] 3 All ER 276. 'Nor need it be the sole intention of the contemnor. And intent is to be distinguished from motive or desire' [1987] 3 All ER 276, 304 (Browne-Wilkinson VC).
[122] [1994] 1 NZLR 48, 58 (Eichelbaum CJ and Greig J).
[123] See the discussion below about jury deliberations being disclosed as evidence. As an example of the problem, see Nanan v The State (1986) AC 860.
[124] For example, the use of deliberative details as evidence.
[125] For example, the publication of the identity of a juror.
[126] For example, see Re Portillo [1997] 2 VR 723 and R v Medici (1995) 79 A. Crim R. 582. In New Zealand, see R v Bates [1985] 1 NZLR 386.
[127] Burrows and Cheer, above n 2, 315.
[128] For example, if a juror makes a defamatory announcement about another juror, the law of defamation may be invoked to deal with the situation.
[129] Re Portillo [1997] 2 VR 723, 726 (Callaway JA).
[130] R v Beer [1999] NZCA 46; (1999) 16 CRNZ 390, 394 (Robertson J).
[131] Also, in Young, the Court thought that the use of the ouija board in the hotel room was not part of the deliberative process.
[132] Re Portillo [1997] 2 VR 723, 729 (Callaway JA).
[134] For the same reason, it would be lawful for a juror to state generally that he had since entertained grave doubts about the verdict (The Times, 3 June 1993, 4 referring to the Carl Bridgewater murder trial), or to describe in detail the deliberative process and decision making: C Eldin, 'A Juror's Tale' (1988) 138 New Law Journal 37. These examples were given in Miller, above n 48, 623.
[135] An example would be where a juror discloses that he was impressed with the steadfastness and professionalism displayed by another juror during deliberations, perhaps referring to a specific example.
[136] [1994] 1 NZLR 48, 58.
[137] Ibid.
[138] Attorney General for UK v Wellington Newspapers [1988] 1 NZLR 166, 178.
[139] Attorney General v Associated Newspapers Ltd [1994] UKHL 1; [1994] 2 AC 238, 248 (House of Lords).
[140] The author did not find any judgment where the issue was whether ajuror or third party was in contempt by having disclosed information to the media.
[141] Most of the overseas legislation makes it an offence to solicit information and/or harass jurors for information so theoretically, it is possible for the media to commit an offence without any disclosure from a juror. However, the main concern identified in the cases is the situation where the juror does respond and the response is published.
[142] If a juror, on his own accord, erected a large billboard or took out a full page advertisement detailing jury-room deliberations, his conduct would be equally as contemptuous as a similar activity by the media.
[143] Ellis v Deheer [1922] 2 KB 113.
[144] Ras Behari Lal v King-Emperor (1933) 50 TLR 1 (Privy Council).
[145] This rule has been recently affirmed in the New Zealand case of R v Tawhiti [1994] 2 NZLR 696 where R v Papadopoulos [1979] 1 NZLR 621 and the Radio New Zealand case were both applied.
[147] J Gibbons, 'Explaining the Verdict' (1997) 147 New Law Journal 1454, 1459.
[148] Ibid 2.
[149] Anonymity is easily achievable where the question is one of media publication. However, in relation to the giving of evidence, existing laws relating to name suppression, written statements and/or cross examination would need to be traversed and may be problematic. Such investigation was beyond the scope of this paper.
[150] CA239/89 (Unreported, Court of Appeal, 4 September 1989). 151 [1984] NZCA 110; [1985] 1 NZLR 326 (CA).
[152] This case is interesting from the perspective that the enquiries made were outside the course of deliberations. This shows willingness by the courts to watch over a wider range of juror activities than merely deliberations. There, the Court held that a miscarriage of justice had occurred and accordingly quashed the conviction and ordered a retrial pursuant to s 385 of the Crimes Act 1961.
[154] Ibid 682 (Tipping J). In that case, a file relating to the appellant's psychological state had inadvertently been left in the possession of the jury during their deliberations. The jury had gone on to convict the appellant of murdering his wife, having rejected his plea of insanity. The appellant appealed against conviction under s 385(1) of the Crimes Act 1961 on the basis that there had been a miscarriage of justice. Whilst the court declined to allow the jurors to swear affidavits relating to what they took into account in reaching their verdict, the conviction was quashed and a retrial ordered.
[155] (1994) 11 CRNZ 678, 681-2 (Tipping J).
[156] [1999] NZCA 46; (1999) 16 CRNZ 390, 396 (Robertson J). In Beer, the Court declined to allow the writings on a whiteboard in the jury room to be admitted. The Court thought that the probability of impropriety was weak and that the material did not point to a miscarriage of justice. The writings were 'more colourful than compelling'.
[157] It resembles the Victorian provision, s 78(3)(a)(i) of the Juries Act 2000, which simply provides that nothing in the section prevents a past or present juror from disclosing to a judge or court any information about the deliberations of a jury
[158] In Victoria, legislation allows jurors to disclose to various bodies details of deliberations, and those bodies are able to investigate a complaint about the deliberations. Similarly in New South Wales, the same kinds of bodies are able to obtain information from jurors for the purposes of a prosecution or investigation of a contempt of court or other offence relating to the jury or jurors. England and Canada also make provision for the investigation of these kinds of offences.
[159] New Zealand Law Commission, Juries in Criminal Trials, Report 69, above n 43, 172.
[160] There have been the odd doubts expressed about the likely usefulness of such research - for example, Spencer argues that 'There is no such thing as "the jury". A jury is a collection of twelve individual people... with nothing in common but the fact that they were the ones who could not get away'. Thus, any given jury will be unique, and therefore, he argues that the results of any research are likely to be so general as to be of little use: Spencer, above n 48, 521.
[161] The Bill preceding the enactment of s 8 made provision for some research to be carried out (questions put anonymously to jurors by social scientists). However, the measure was toughened up by the House of Lords who decided that they 'liked social science research as little as they liked investigative journalism': ibid.
[162] The Law Reform Commission of Canada has proposed that the Canadian clause be amended to allow for research to be carried out. Law Reform Commission of Canada, The Jury, Report 16 (1982) recommendation 37.1.
[163] Jury Act 1977 (NSW) s 68A(3) and Juries Act 2000 (Vic) s 78(9).
[164] [1994] 1 NZLR 48, 58.
[165] New Zealand Law Commission, Juries in Criminal Trials, Report 69, above n 43, 172.
[166] Ibid 172.
[167] Miller, above n 48, 626.
[168] Juries Act 2000 (Vic) s 78(5).
[169] For example, Cassidy, above n 1, 4, is an avid supporter of disclosure, but says that the 'maintenance of jury anonymity would seem to be fundamental to the reforms contemplated here'.
[170] It is likely that close friends and family would know which trial the jurors are involved in, and therefore any subsequent publication about the deliberations of that trial could have the effect of exposing the juror's identity.
[171] On the other hand, factors such as finality, 'juror journalism', and participation in the jury room are not relevant when considering the desirability of solicitation by the media.
[172] This was noted in Radio New Zealand where the Court presumed that the contact details of those jurors had been obtained in breach of that confidentiality.
[173] These principles are available on the Broadcasting Standards Authority: Te Mana Whanonga Kaipaho website: www.bsa.govt.nz. The Authority has the jurisdiction to hand down a variety of sanctions including fines.
[174] Lowe & Sufrin conclude that the word 'obtain' only applies to 'actively obtaining information' rather than to passively receiving it. However, until this is accepted by the Courts, the word could be interpreted as requiring no mens rea: N Lowe and B Sufrin, The Law of Contempt (3rd ed, 1996).
[175] This test is basically the same as the Radio New Zealand test. However, instead of referring to the undermining of public confidence in the administration of justice, it refers merely to the undermining of the administration of justice generally. In so doing, public confidence continues to be incorporated, whilst the rest of the rationale behind the rule of jury secrecy, such as finality and privacy, is also accorded due importance.
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