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New Zealand Law Students' Journal |
Last Updated: 7 April 2024
Piercing Through the Veil of Jury Deliberations: An Analysis of the Jury Secrecy Rule and Proposals for Reform
SARAH SHANAHAN[*]
Abstract—The rule that the deliberations of a jury are secret and must not be used to overturn a jury’s verdict is firmly rooted in nearly 250 years of common law precedent. The courts’ unwavering support of the “jury secrecy rule” has elevated it to sacrosanct status, resulting in a near-absolute ban on inquiring into the details of a jury’s deliberation process. As such, the veil of secrecy over the jury’s deliberations has become impenetrable, allowing instances of serious juror misconduct which undermine a defendant’s right to a fair trial to pass by the Court’s attention unnoticed. Section 76 of the Evidence Act 2006 encapsulates the pedigree and principles behind this jury secrecy rule and governs the admissibility of evidence pertaining to a jury’s deliberation. However, the current operation of s 76 fails to achieve an appropriate balance between important values and interests. These include: the interest in ensuring justice is achieved, the value of having clarity in the law, the public’s interest in accountability, and the defendant’s right to appeal an improper verdict. The secrecy of jury deliberations has remained unchallenged for too long and must be changed. Section 76 must be rewritten to allow the Court to pierce through the veil of secrecy over a jury’s deliberations where genuine and serious instances of juror misconduct are alleged on appeal.
Juries are integral to a well-functioning criminal justice system. They are the factfinders tasked with assessing evidence and ultimately reaching a verdict. Juries are also symbolically important in representing the community’s conscience. Further, juries inhibit states from exercising unfettered power over the criminal justice system and fulfil the age-old notion of being tried by one’s peers.[1] However, jury deliberations are intensely protected with secrecy and shielded from inquiry, which means jurors hold extraordinary power which remains unchecked. The Supreme Court of New Zealand recently stated that: [2]
[22] A distinctive feature of our system of trial by jury is that the jury
must hold its deliberations in secret and must not give
reasons for its verdict.
Trial courts go to great lengths to ensure this veil of secrecy is not
breached.
Perhaps this age-old secrecy has prevailed for too long and
requires revisiting.
The secrecy of jury deliberations is protected by
s 76 of the Evidence Act 2006, which states that “[a] person must not
give
evidence about the deliberations of a
jury”.[3] This provision
encapsulates a nearly 250-year-old common law rule known as the “secrecy
rule”.[4] Sections 76(3) and (4)
of the Evidence Act set out the only exception to this rule, which is that
evidence of a jury’s deliberations
may only be given where the
circumstances are “so exceptional that there is a sufficiently compelling
reason to allow that
evidence to be
given”.[5] To determine whether
that condition is met, the judge must consider the public interest in protecting
the secrecy rule and in ensuring
that justice is
done.[6] It is important to note from
the outset that, in New Zealand, the secrecy rule relates solely to the
admissibility of evidence. In
that sense, it is quite limited. Impeding on the
secrecy of jury deliberations for the purposes of academic research, for
example,
is not prohibited under New Zealand law—unlike the secrecy rule
in England and Wales, where the prohibition on the disclosure
of jury
deliberations is more
extensive.[7]
Although intensely
protected, the secrecy of jury deliberations often means that instances of juror
misconduct are overlooked. This
is because barring investigation into the
jury’s deliberations prevents juror misconduct from being addressed or
remedied on
appeal.[8] While there
must be some allowance for imperfection in our criminal justice system, the
courts are also responsible for protecting
fair trial processes and ensuring
that juror misconduct that undermines these processes is adequately
addressed.[9]
The way the secrecy rule currently operates has the effect of limiting the
court’s power to fulfil this responsibility. If
the law does not allow
such instances to be explored or addressed, then there is a significant flaw in
the law itself that must be
changed.
The secrecy rule in its current
formulation fails to appropriately balance the interests of jurors with
competing interests and sets
too high of a threshold to pierce through. While
the overall integrity of the jury system should remain intact, the secrecy of
jury
deliberations should not remain absolute when genuine concerns about juror
misconduct arise. If left unaddressed, these concerns
may undermine a
defendant’s fundamental right to a fair trial under s 25(a) of the
New Zealand Bill of Rights Act 1990. As
Clifford Holt Ruprecht stated,
“[t]o insist on the near-absolute secrecy of jury deliberations, as courts
and commentators
routinely do, is to ignore the need for balance, favoring
pragmatic secrecy over principled
openness”.[10]
Jury deliberations should generally remain
secret. Removing the veil of secrecy entirely and providing a “general
right of access” to jury deliberations would neglect the value
secrecy provides in contributing to the fair and efficient administration of
justice.[11] However, the law of
jury secrecy must be rewritten to allow an exception where genuine and serious
allegations of juror misconduct
arise post-trial, such as instances of juror
bias or the reliance on extraneous
material.[12] This would strike the
appropriate balance between protecting jurors’ interests and the jury
system’s integrity while
also accounting for the interests of
accountability and the “public’s demand to supervise the
jury’s activity”.[13]
Therefore, rewriting the secrecy rule will improve the criminal justice system
by ensuring that the power held by juries is not abused
to undermine
defendants’ fundamental fair trial rights, thus increasing public
confidence in the system overall.
As a preliminary point, it is necessary to
note that this article critically analyses the secrecy of jury deliberations in
criminal
trials—it does not analyse jury deliberations in a civil trial
context. Accordingly, any subsequent reference to a “trial”
refers
to criminal trials. Further, this article focuses on jury secrecy in the context
of appellate courts in which it is alleged
that a miscarriage of justice by way
of juror misconduct has occurred. A court has far greater power to address juror
misconduct
while a trial is ongoing. However, once the verdict has been given,
the secrecy rule is triggered, rendering it near-impossible for
appellate courts
to inquire into jury deliberations.
Part II explores the history behind the
secrecy rule. Part III unpacks s 76 of the Evidence Act, which encapsulates
the secrecy rule
in New Zealand legislation. Part IV then critically analyses
the principles used to justify the modern application of the secrecy
rule,
before Part V proposes a proper and just secrecy rule according to appropriate
values and interests. Part VI considers when
it might be warranted to pierce
through the veil of jury secrecy. Finally, Part VII proposes a rewritten secrecy
rule which achieves
the appropriate balance between protecting the sanctity of
the jury system and ensuring defendants receive a fair trial. This includes
discussion on why changing the current law on jury secrecy is necessary to
improve the criminal justice system overall.
Few rules in the criminal justice system are so tenaciously protected as the rule that the deliberations of a jury are secret.[14] Many other virtuous privileges integral to the justice system do not share the same level of protection. For example, client legal privilege—accepted as a cornerstone of our criminal justice system—may be lost where the privileged communication between a client and their solicitor is made for a dishonest purpose or to commit an offence.[15] Comparatively, it is near-impossible to overrule the secrecy of jury deliberations. To unpack why that is, it is helpful to first explore the origins of the secrecy rule in common law.
The secrecy rule traces back to 1785 with the
English case of Vaise v
Delaval.[16]
In Vaise, two jurors indicated in an affidavit that the jury had
determined its verdict by tossing a coin. Lord Mansfield, credited as the
secrecy rule’s “architect and
proponent”,[17] rejected the
jurors’ evidence, stating that “[t]he Court cannot receive such an
affidavit from any of the jurymen
themselves”.[18]
John Henry Wigmore describes the rule as the doctrine of nemo
turpitudinem suam allegans auditur: “A witness shall not be
heard to allege his own
turpitude.”[19]
The rationale behind Lord Mansfield’s judgment was to protect the jurors
against self-incrimination, as they would be confessing
to conduct of “a
very high
misdemeanour”.[20]
Instead, evidence of such conduct would have to come from an outside
source.[21] Because of Vaise,
jurors may not divulge what occurred within the jury deliberation room, even
if they know misconduct had occurred and wish to confess
to it.
The secrecy
rule is firmly rooted in seemingly unchallenged historical
precedent.[22] However, Professor
Jill Hunter of the University of New South Wales argues that “precedent
with respect to jury confidentiality
has in fact been a moving feast”
which “does not reveal a single thread of consensus going back to the
mists of common
law time”.[23]
Instead, Hunter states that Lord Mansfield’s judgment in Vaise was
an act of “blatant judicial
intervention”.[24]
Indeed,
before Vaise, “the unquestioned practice had been to receive
jurors’ testimony ... without
scruple”.[25] In support of
this, Wigmore lists numerous cases between 1590 and 1779 in which jurors’
evidence of deliberations was (or could
have been) received. For example, in the
1696 case of Dent v Hundred of Hertford, an affidavit from the foreman
stating that “the plaintiff should never have a verdict whatever witnesses
he produced”
was admissible evidence and overturned the
verdict.[26] Further, before
Vaise, evidence from a juror was in fact preferred over non-juror hearsay
evidence.[27] In Aylett v
Jewel—predating Vaise by six years—the Court held that an
affidavit from a non-juror that alleged the jury had determined its verdict by
lot was insufficient
to quash the verdict because it was not an affidavit from a
juror.[28]
Hunter further argues
that Lord Mansfield’s secrecy rule has been misinterpreted and overblown,
which has elevated it to sacrosanct
status.[29] When interpreted
correctly, Hunter explains that Lord Mansfield’s wording indicates
“that the jury secrecy rule was not
intended to prevent suspect verdicts
from being reviewed”.[30]
Rather, the rule was a means of controlling the jury by preventing fraud
by a disgruntled juror unhappy with the jury’s
verdict.[31]
For example, the
Court in Owen v
Warburton[32]
envisaged the rule preventing situations where “a juror with a partisan
interest in the trial might, through frustration with
fellow jurors’
unwillingness to adopt his preferred verdict, suggest to them that they reach
their verdict by lot”.[33]
Without Lord Mansfield’s rule, that juror would be
“well-placed to quash the verdict by outing the improperly-determined
verdict” by way of an affidavit
if he did not agree with the
decision.[34] Lord Mansfield’s
relatively narrow rule has been significantly broadened beyond its original
scope over time, constituting
near-absolute secrecy in the present day. The
courts’ enduring support for the rule has elevated it to an almost sacred
status;
no court would dare to question or overturn
it.[35] It appears that the rule has
become detached from its original purpose: originally deployed to control
the jury and restrict its power to overturn verdicts, it now protects
corrupt jurors from having their misconduct exposed.
So, it may be the
case that the history of the secrecy rule—one that is so heavily relied
upon in justifying its application
in the modern era—is somewhat flawed.
Of course, the modern criminal justice system has developed significantly since
the time
before Vaise where juror testimony was readily accepted.
Therefore, one must be cautious when making comparisons between the previous
lack of jury
secrecy and the modern jury system. Regardless, Lord
Mansfield’s rule in Vaise—that jurors may not provide
affidavits alleging juror misconduct—has provided the foundation for the
modern secrecy rule.[36] As it
stands, the underlying principles for the rule that evidence of a jury’s
deliberation is inadmissible has moved on from
the rationale given in Vaise,
which will be explored in Part III. Perhaps then, there is less utility in
questioning Lord Mansfield’s intention in making
his judgment at the time.
Nevertheless, it is significant to note that a rule so heavily entrenched in
historical precedent and whose
common law pedigree is routinely cited as
justification for its continued existence may have developed from the words of
someone
who never intended its outcome.
The common law pedigree of the secrecy rule is encapsulated in s 76 of the Evidence Act. The way s 76 currently operates fails to achieve the necessary balance between competing interests and values related to the secrecy of jury deliberations. These interests include safeguarding the defendant’s right to appeal an unsafe verdict; ensuring juries, as powerful decision-makers, are accountable for their decisions; and allowing the court to ensure the proper administration of justice. Section 76 effectively allows serious juror misconduct to go unnoticed by preventing meaningful (if any) investigation into the jury’s deliberations.
Section 76(1) states that
“[a] person must not give evidence about the deliberations of a
jury”.[37] As such, evidence
of the jury’s deliberation is presumed inadmissible. The provision does
not make it an offence to disclose
information about the jury’s
deliberations.[38] Rather, the
provision is an admissibility rule pertaining to one’s ability to give
evidence about a juror or their deliberation
process in any
proceedings.[39]
Section 76(1)
informs the court’s power to order that a juror be
interviewed.[40]
This power lies under s 335(2) of the Criminal Procedure Act 2011, which
enables appellate courts to order the examination of any
witness who would have
been compellable at trial. Furthermore, s 335(2) allows for “the
admission of any formal statements
before the court” where the court
considers it “necessary or expedient in the interests of justice”.
Section 76
does not govern the court’s decision in this capacity but
rather informs the admissibility of any material obtained from the
juror
interview.[41]
When read against s 76(1), it appears that any inquiry into the intrinsic
matters of a jury’s deliberation would not be considered
by a court as
necessary or expedient in the interests of justice unless it crossed the
stringent threshold in s 76(3) and (4). This
is because “[i]t would
obviously not be in the interests of justice to order an inquiry that could only
produce inadmissible
evidence”.[42]
Section
76(1) is triggered after a verdict is
delivered.[43]
Therefore, the timing of raising an allegation about a juror’s conduct can
mean the difference between being able to investigate
the allegation and being
statutorily barred by s 76.[44]
When an issue within the jury room is brought to the trial judge’s
attention while the trial is still ongoing, the court has
greater flexibility to
take remedial action.[45] Under
s 22 of the Juries Act 1981, a trial judge may discharge either an
individual or entire jury if the judge considers the juror
“incapable of
performing, or continuing to perform, the juror’s duty”, or if they
are disqualified from being a
juror.[46] However, once the verdict
has been given, the court’s inquisitorial and remedial powers are severely
limited by the secrecy
rule.[47]
Therefore, the current law of jury secrecy values the court’s ability to
ensure that a defendant is receiving a fair trial, but not that they
had received a fair
trial.[48]
The restriction of
s 76(1) on the court’s remedial abilities is evident by comparing the
cases of R v
N[49]
and Pearson v R.[50]
In R v N, an allegation of juror bias was raised during a
trial in which the defendant was charged with rape. The trial judge received a
note
from the foreman stating that one of the jurors had been sexually abused in
a way similar to the victim in the trial and that the
juror believed the
defendant to be guilty.[51] The
trial judge promptly interviewed the juror to determine “whether or not
there was any possibility that her verdict had
been influenced by what happened
to her”.[52] The question went
to intrinsic matters of the jury’s deliberation because it pertained to
evidence the juror relied on in coming
to her decision; an inquiry of this kind
would have been barred by the secrecy rule once a verdict was
entered.[53]
Conversely, in
Pearson v R, an allegation of juror bias was raised on appeal on the
basis that “[t]he foreman suggested to the other jurors that the accused
was probably already in prison for rape and had probably done it
before”.[54] The Court
declined to interview the allegedly biased juror because inquiring into how the
juror had reached their decision would
have produced intrinsic evidence
inadmissible under the secrecy
rule.[55]
These conflicting
outcomes demonstrate the different tests applied to allegations of juror
misconduct based on the time the allegation
is raised. However, the effect of
s 76 is that only the allegation which is raised earlier can be remedied.
Yet, both cases carry
the same risk of creating a miscarriage of justice and
undermining the defendant’s fair trial rights. Section 76
inappropriately
limits the court’s ability (and indeed responsibility) to
remedy instances of juror misconduct that arise after the trial.
The provision
does not strike the correct balance between ensuring the finality of a verdict
and the defendant’s right to appeal
a verdict which may undermine their
fair trial rights, thereby creating a miscarriage of justice.
Section 76(2) explicitly provides that the
exclusionary rule in subs (1) does not apply to evidence that falls outside the
jury’s
deliberations.[56]
Thus, the secrecy rule distinguishes between matters extrinsic to the
jury’s deliberations, which are not protected, and intrinsic
matters,
which are protected. Inquiries into extrinsic matters do not start at the
presumption of exclusion like intrinsic matters
do. Therefore, extrinsic matters
are not required to reach the exceptionally high threshold in subs
(3).[57] Instead, the test in
determining when to make an inquiry regarding extrinsic matters is
“whether granting an interview would
be ‘in the overall interests of
justice’”.[58]
Alternatively, in the event an interview was to prove the allegations, the test
in determining when to make an inquiry is whether
it could provide a successful
ground of appeal.[59]
Intrinsic
matters include “[s]tatements made, opinions expressed, arguments
advanced, or votes cast by members of a jury in
the course of their
deliberations in any legal
proceedings.”[60]
Effectively, “jurors may not testify about the effect of anything on their
or other jurors’ minds, emotions or ultimate
decision”.[61] Such
information reveals how or why the jury arrived at their verdict, illuminating
the very process the secrecy rule shields from
public view.
Defining
extrinsic matters is more challenging. Section 76(2)(a) provides
that evidence about “the competency or capacity of a juror” is
extrinsic to the jury’s deliberation and thus is not rendered inadmissible
by subs (1).[62] This dovetails with
the notion that “individual jurors should be competent in the sense that
they are mentally and physically
capable of acting as jurors in the
trial”.[63]
This requirement is informed by ss 7 and 8 of the Juries Act, which set out who
is disqualified from being a
juror.[64]
Section 76(2)(b)
provides that evidence relating to the conduct of, or knowledge gained by, a
juror that may disqualify them from
that position is extrinsic to a jury’s
deliberations.[65] Disqualifying
conduct includes improper conduct during the trial, such as being
asleep[66] or
drunk.[67] Disqualifying knowledge
includes “knowledge of inadmissible prejudicial evidence received from a
source outside of trial”,
or any prior knowledge the juror has about the
defendant, a witness, or the case
itself.[68] The listed categories
are not exhaustive and include evidence that jury members failed to see or hear
the announcement of the
verdict,[69]
or that a juror had refused to participate in
deliberations.[70]
The
distinction between extrinsic and intrinsic evidence is often arbitrary, making
the courts uncomfortable with its
outcomes.[71] The most infamous
example is the English case of R v Young, wherein four jurors used a
Ouija board in determining their
verdict.[72]
Much like New Zealand’s position, the English Contempt of Court Act
1981 forbade inquiries into the intrinsic matters of the
jury’s
deliberation.[73] The Court
determined that because the alleged conduct occurred in a hotel room, the
conduct was extrinsic to the jury’s deliberations,
and ordered an inquiry
accordingly.[74] The Court found
that using the Ouija board was a “material irregularity” and could
have prejudiced the appellant by influencing
the jury’s verdict, but
failed to inquire as to whether it in fact prejudiced the
appellant.[75] Nevertheless, the
Court quashed the defendant’s conviction and ordered a
retrial.[76]
Some have
questioned whether the Court would have reached the same result had the Ouija
exercise occurred inside the jury
room.[77] The Hon Peter McClellan,
former judge of the New South Wales Supreme Court, thought there would have been
a different outcome, arguing
that “[t]he supernatural forces would have
been allowed to operate” had the misconduct occurred in the jury
room.[78] Indeed, the R v Young
decision heavily implied that the location of the misconduct was
determinative as to whether the Court could inquire into the
misconduct.[79] The Court considered
whether it could also inquire into what transpired in the jury room following
the misconduct, but ultimately limited its scope to the events of the
hotel room, because inquiring into the deliberations would “force the
door
of the jury room wide
open”.[80] Therefore, it is
likely the misconduct would have been overlooked had it occurred in the jury
room.
R v Young demonstrates the fine line between what a court might
consider ‘extrinsic’ or ‘intrinsic’ to the jury’s
deliberations. Had nothing else changed but the location of the juror misconduct
in R v Young, the misconduct would have had the protection of secrecy.
Accordingly, the case might have been dismissed despite the fact that the
same
misconduct and miscarriage of justice had occurred. What is evident in this case
is the arbitrariness of the courts’ extrinsic–intrinsic
distinction
when an allegation of juror misconduct arises post-trial. Restricting the
court’s ability to inquire into juror
misconduct based on an
inconsequential matter, such as the location in which the misconduct occurs, is
nonsensical; it unjustifiably
limits the court’s inquisitorial powers,
allowing instances of serious juror misconduct to go ignored.
Section 76(3) defines the one exception to the
sacrosanct secrecy rule.[81] This
exception applies where “the judge is satisfied that the particular
circumstances are so exceptional that there is a sufficiently
compelling reason
to allow that evidence to be
given”.[82] In making this
determination, the judge must balance two public interests listed in
s 76(4): “the public interest in protecting
the confidentiality of
jury deliberations generally” and “the public interest in ensuring
that justice is done in those
proceedings”.[83] To inquire
directly into jury deliberations, the information would have to meet this
threshold before it could be admitted into evidence.
No New Zealand case has
ever met the s 76(3)
threshold.[84] Arguably, it is
nearly impossible to reach, largely due to the section’s ambiguous and
broad language.[85] The provision
neither offers guidance on what constitutes circumstances “so
exceptional” to meet this extraordinarily
high and vague threshold, nor
states what a “sufficiently compelling reason” would be to pierce
through the veil of secrecy
over jury deliberations. Such ambiguous
language invites subjective judicial interpretation. When faced with a lineage
of historical precedent which has consistently
upheld the sanctity of the
secrecy rule, the courts have unsurprisingly been hesitant to rule against this
precedent or define the
parameters of s 76(3) without Parliament’s
guidance.[86]
The Court of Appeal
in Neale v R indicated that s 76(3) allowed for a “very narrow
escape hatch” through which exceptional cases might
squeeze.[87]
In Worrell v R, O’Regan P explicitly refused to suggest what
these exceptional cases might
be.[88]
However, he did note that “this is an area of the law where each case must
be carefully considered on its merits”, keeping
in mind the balancing
exercise of s 76(4).[89] The
Court in Neale v R suggested that instances of gross and extraordinary
juror misconduct equivalent to the infamous Ouija board incident in R v
Young would cross this
threshold.[90] As such, for a court
to inquire into intrinsic matters of a jury’s deliberation process, it
appears that the allegation must
be extremely unusual, perhaps unprecedented,
and of high public interest. This is illustrated by the shocking revelation of
jurors
using a Ouija board in R v
Young.[91]
Although
it is not entirely clear what scenarios will reach the s 76(3) threshold,
case law has clarified what forms of juror misconduct
will not reach said
threshold. Allegations of improper pressure by other
jurors,[92]
bullying,[93]
fatigue,[94]
and a failure to understand the
law,[95] have all failed to meet the
s 76(3) threshold. This is largely because the appellate courts commonly
discredit these allegations
as mere expressions of regret after the trial,
particularly if the court believes the juror making the allegation was the
minority
juror who dissented from the rest of the
jury.[96] Cases have also been
dismissed simply because allegations of this kind were not unusual or unique
enough to reach the “exceptional”
standard, as they are commonly
raised on appeal.[97] For example,
the Court of Appeal in Pearson v R noted that it “will not be
unusual for minority jurors to express concerns about the verdict with which
they disagreed and
the process leading to
it”.[98] This suggests that
because complaints of this kind are not unusual or unique, they do not warrant
further inquiry.
However, there is a logical fallacy in the Court’s
reasoning. The Court suggests that the more often a certain type of juror
misconduct is brought on appeal, the less likely it will find such misconduct
“so exceptional” to allow an
inquiry.[99] This is evidently
problematic, because the more often an instance of juror misconduct is raised,
the more a court should be alarmed
by its prevalence. Consequently, questions
arise as to whether defendants are receiving the quality of justice to which
they are
entitled. However, if the frequency of complaints can be used as
evidence to suggest such misconduct fails to reach the threshold,
this
strengthens the rule which inhibits the court’s ability to redress
the complaint. This demonstrates an inadequacy in the court’s duty
to
ensure that justice is served, and that the jury’s processes operate as
they should: by meeting the jury’s oath to
be an impartial collective
decision-making body.[100]
It
is significant that no case has ever met the threshold, as it reinforces the
strength of the rule itself. Although each case is
to be determined on its
facts, courts tend to reference the fact that no case has ever crossed the
threshold as evidence for their
own refusal to cross
it.[101] As Wild J observed in
Smith v R, “[u]nderlining the very high threshold set by
s 76(3) is the fact that there appear to be no New Zealand cases where the
Court
has directed inquiries of the sort applied for
here”.[102]
Essentially,
the secrecy rule is a self-fulfilling prophecy. Because the threshold for its
exception has never been reached, it is
subsequently harder for future cases to
confront this precedent and cross the threshold. As Lord Steyn aptly remarked,
when faced
with a body of cases that refused to inquire into jury deliberations,
the doctrine of stare
decisis[103] compels
courts “to rule that it has no jurisdiction to examine a possible
miscarriage of justice in this corner of the
law”.[104] However,
precedent is not evidence; courts should not rely on previous refusals to order
an inquiry to bolster their own refusal.
While the law should be consistent, it
should not be stagnant. Instead, the law must be applied according to the
circumstances of
each case. If the circumstances indicate that serious juror
misconduct has occurred, the court’s previous refusals to order
an inquiry
into similar misconduct should not prevent an investigation.
Furthermore, if
the extremity of the threshold is such that no cases have ever crossed
it, this should indicate the futility of having an exception to the rule. An
exception to a rule written so broadly and ambiguously
that no case could
feasibly satisfy it is no exception at all. In practice, unless faced with a
situation as unique as jurors using
a Ouija board, the secrecy rule is
essentially absolute.[105] This is
a significant problem considering the power that juries hold in determining a
defendant’s guilt or
innocence.[106] Juries are not
accountable to anyone, and if the secrecy of juror deliberations is absolute,
then arguably, so is a jury’s
power.[107] As Lord Steyn states,
“[a] jury is not above the
law”.[108] However, because
of the high threshold of s 76(3), jurors are not held accountable for
misconduct. Thus, a jury may indeed be above
the law in the sense that their
misconduct is overlooked.
As will be discussed in Part IV, holding the jury
accountable when such misconduct occurs is paramount to the proper
administration
of justice and to promoting confidence in the jury’s
decision-making abilities.[109]
Legislation which prevents the court from remedying miscarriages of justice
resulting from juror misconduct through setting an impossibly
high threshold can
hardly promote public confidence in that law. As Lord Steyn stated, “what
possible public interest can there
be in maintaining a dubious
conviction?”[110]
As explored in Part II, the
rationale behind Lord Mansfield’s secrecy rule was to protect the jurors
against incriminating
themselves by confessing to the misdemeanour of deciding
its verdict from a coin toss.[111]
However, as the rule has developed and expanded over time, courts have relied on
other justifications for the rule. These justifications
include the principles
of preserving the finality of the jury’s verdict, ensuring full and frank
discussions amongst the jury,
and protecting jurors’ right to
privacy.[112]
These principles
protect the interests of jurors, who perform a difficult and often onerous
public service.[113] Further,
these principles are said to “go to the quality of justice received by
defendants” during a trial and are thus
also relevant to a
defendant’s fair trial
rights.[114] Hence, the secrecy
rule can also be seen as protecting the overarching interests of the criminal
justice system by being essential
to the proper administration of
justice.[115]
However, while
the principles underlying the secrecy rule are important, “secrecy should
not be viewed as an absolute
value”.[116] These
principles must be balanced against other essential principles, such as
accountability of powerful decision-makers and a defendant’s
right to
appeal.[117] Accordingly,
scrutinising the principles underlying jury secrecy reveals fundamental flaws
which may undermine their usefulness in
attempting to justify the rule.
The first principle of the secrecy rule is
ensuring the finality of a jury’s verdict. In Rolleston v R, the
Supreme Court stated that “[s]ecrecy protects the finality of the
jury’s verdict by ensuring that post-verdict appeals
do not descend into
blow by blow post-mortems of the collective deliberation
process”.[118] The rule
prevents “endless rehashing” over the legality of the jury’s
verdict and “forces the public ...
to accept that the process was legal,
legitimately decided and
rational”.[119]
In Ellis v Deheer, Lord Atkin explained that one of the reasons
behind the inadmissibility of a juror’s evidence as to jury deliberations
is
“to secure the finality of decisions arrived at by the
jury”.[120]
Lord Atkin noted this principle “is of the highest importance in the
interests of justice to
maintain”.[121] Some have
argued that opening a jury room to inquiry and compromising the finality of a
verdict would “destroy the jury system
itself”.[122]
This
principle is based on two fundamental points. The first point is that the
jury’s function ceases after the verdict is
given.[123]
Consequently, any investigation into a case post-verdict undermines finality by
endeavouring to prolong the jury’s role beyond
the
trial.[124] This reasoning is
valid: achieving finality is of great importance to the overall efficiency of
the justice system.[125] However,
this desire for finality should not outweigh a defendant’s right to
challenge a verdict that may have been influenced
by juror misconduct. A
juror’s function may cease when the verdict is delivered, but the
defendant’s right to appeal
an improper verdict does not. As Hunter
argues, “appeal processes are integral to the maintenance of the integrity
of our criminal
justice
system”.[126] If appellate
review processes are meant to “acknowledge the potential for human error
to create an unfair trial”, it
is curious that juror error is not embraced
within the criminal appeal
structure.[127]
Finality
should be a goal, not an
obligation.[128] As the Law
Commission states, “[t]he need for the finality of verdicts must be
balanced against the need to guard against possible
miscarriages of
justice”.[129]
Where there are genuine concerns that justice has been thwarted, there should be
mechanisms for allowing the disclosure of jury deliberations
to support an
appeal. Admittedly, creating a right to appeal that is too broad could cause the
floodgates to open and cause a significant
administrative burden on the justice
system. However, as discussed, the secrecy rule currently sets too high a
threshold for any appeal to succeed. Where a defendant’s liberty is
at stake, their appeal rights should not so easily be outweighed by the interest
in allowing jurors “to return to their interrupted lives with as few
repercussions as
possible”.[130] As Jennifer
Tunna notes, “surely the overriding consideration, and indeed the very
reason for having a justice system at all
is the quest for justice
itself”.[131]
The
second fundamental point behind this principle is that public confidence in the
legitimacy of the jury system is based upon community
respect for a decision,
not the reasoning behind it.[132]
However, this notion is also flawed. Under this view, a decision with at least
the majority’s support reached by mysterious
means is more desirable than
knowing how a jury came to their
decision.[133] The argument
suggests such knowledge could reveal the compromises and settlements made in the
jury room and tarnish the appearance
of a
unanimous,[134] legitimate and
final agreement.[135] Exposing a
jury’s deliberation is thus said to inevitably undermine public confidence
in juries, leading to the destruction
of the jury system
itself.[136]
However, beyond
speculation, there is minimal evidence that lifting the curtain to a
jury’s deliberation process would bring
about the jury’s
demise.[137] Tunna argues that
this “public confidence” argument only holds if breaching jury
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”.[138] Justifying the
secrecy rule on the presumption that “the public will inevitably and
consistently conclude that the system is
not worthy of their confidence”
because they disagree with a jury’s reasoning is hasty and
unrealistic.[139] There is no
evidence to suggest this would necessarily result from an intrusion into the
secrecy of jury
deliberations.[140]
Having
access to a jury’s deliberation could, in fact, strengthen public
confidence in the system by “increasing the jury’s accountability to
the public”.[141] Public
confidence does not come from mystery; it is difficult to be confident in a
process of which one has no knowledge. Rather,
public confidence derives from
accountability and is “enhanced by greater transparency and scrutiny of
criminal justice
processes”.[142] This is
because “scrutiny and accountability promote good decision making and
acceptance by the parties and the public of the
result”.[143] Judges,
comparatively, are required to give comprehensive reasons for their decisions.
These decisions are then able to be publicly
scrutinised and subject to
appeal.[144] On the other hand,
juries are “essentially accountable to no
one”.[145]
Scrutiny and
accountability result in stronger decisions because a judge is aware they will
be held accountable where their decisions
are not well-reasoned. Lifting the
curtain on the jury’s deliberations may promote public confidence,
not undermine it. Indeed, if jurors were aware they could face consequences for
juror misconduct, they would arguably
be more attentive during the trial,
resulting in a higher quality deliberation
process.[146]
The
courts’ continual refusal to inquire into juror misconduct in favour of
protecting the finality of the verdict has been
criticised as tolerating
miscarriages of justice as the price for “protecting the efficiency of the
jury system”.[147] Lord
Steyn argues that valuing the general efficiency of the jury system over
remedying miscarriages of justice is “utterly
indefensible”.[148] If the
law protects such injustices to ensure efficiency, “one may question
whether the law has not lost its moral
underpinning”.[149]
Furthermore, the notion that the efficiency of the jury system is saved by
ensuring the finality of the jury’s verdict offers
little consolation for
a convicted appellant. As Lord Steyn observed, the response to an accused or an
appellant alleging a serious
irregularity in jury deliberations that
“‘[w]e shall never know’ fits uneasily with modern conceptions
of fairness
and due process in the criminal justice
system”.[150] Effectively,
the secrecy rule serves to uphold the efficiency of the jury system at the cost
of fairness to the defendant.
Ensuring that jury
deliberations remain shielded from public view, either on appeal or in the
media,[151]
arguably “promotes candour in the process of collective
decision-making”.[152] One
fundamental value of the jury is its collective decision-making
abilities.[153] Accordingly,
jurors should feel empowered to participate fully in the deliberative process.
As discussed in the Canadian Supreme
Court case of R v Pan,
“[w]hile searching for unanimity, jurors should be free to explore out
loud all avenues of reasoning without fear of exposure
to public ridicule,
contempt or hatred”.[154]
The argument follows that without the protection of secrecy, jurors would not
fully and honestly participate in
deliberations.[155] This could
impact future trials, as “future jurors may fear judgment and
condemnation” and be deterred from jury service
if it became standard
practice for jurors’ opinions to be
scrutinised.[156]
This
principle was also discussed in relation to the disclosure of jury deliberations
by the media in Solicitor-General v Radio New Zealand
Ltd.[157] The High
Court expressed concern that the jury’s collective-decision making power
would be undermined if the media published
jury deliberations. The Court
identified a risk that disclosure would “limit justice, as cases would not
be decided according
to their merits”, but by jurors following popular
opinion to avoid judgment.[158]
However, the chance that “some timid soul” on a jury will
necessarily give way to their fears of being judged by the
public and thus fail
to participate fully in deliberations is “too remote and shadowy to shape
the course of justice”.[159]
While freedom of debate is an important value that should be fostered, “it
should not trump concerns about the jury’s
competency or
impartiality”. The need to protect against juror misconduct should
override any privilege of
secrecy.[160] Furthermore, a
near-absolute secrecy of jury deliberations is not required to mitigate the risk
of full and frank discussions being
compromised as a result of media publication
of a jury’s deliberations. Practical limits on the media’s power to
publish
such information could protect against public scrutiny of a jury’s
deliberations. Such limits could include prohibiting publication
of a
juror’s identity to ensure anonymity is retained. This would still allow
for internal inquiries of a jury’s deliberation
process for the purpose of
addressing allegations of juror misconduct raised on appeal.
Because part of
a jury’s value lies in its collective decision-making, there is a strong
public interest in encouraging full
and frank discussions amongst a
jury.[161]
However, the fatal flaw in this principle is that the argument assumes that jury
secrecy necessarily ensures freedom of thought and
full participation from
jurors. As Tunna notes, this assumption is “arguably
unsustainable”.[162]
First, it is common practice in other jurisdictions for jurors to be
encouraged by trial judges to report instances of juror misconduct.
For example,
jurors in New South Wales are commonly directed by trial judges to disclose if
extraneous material is found in the jury
room.[163]
It is therefore not the case that jurors’ views are entirely shielded from
scrutiny; they are made aware that they could be
subject to it from their fellow
jurors. As such, the very “environment within which deliberation occurs
does not necessarily
promote free and frank discussion regardless of whether
secrecy is maintained”.[164]
Secondly, discussions are often naturally limited by the desire to avoid
having one’s opinion be judged and attacked by
strangers.[165] Dominant
personalities may also suppress the views of the more introverted individuals in
a group setting.[166] A study by
Young, Cameron and Tinsley in 1999 found that “dominant jurors often
affected the eventual verdict because they
were the ones who put their point
across most
forcefully”.[167]
Domineering behaviour amongst juries is particularly relevant when deliberating
on a Friday, where jurors are pressured by other
jurors to reach a verdict to
avoid returning on Monday.[168] As
such, the assumption that verdicts are reached by full and frank deliberations
may be “illusory”, particularly considering
that courts lack the
ability to monitor the
process.[169] This is a concerning
finding because it highlights that the assumption relied on to justify the
secrecy of jury deliberations may
be
false.[170]
The third principle underlying the secrecy rule is
ensuring the juror’s right to privacy by protecting them from
“pressure
to explain the reasons which actuated them in arriving at their
verdict”.[171]
Jurors
are under the impression they will remain anonymous both during and after the
trial.[172] Intruding on the
secrecy of jury deliberations to investigate allegations of juror misconduct is
considered an unreasonable infringement
on a juror’s privacy because if
deliberations were made public during an appeal, a juror’s privacy may be
invaded by
the media, or they may face harassment by the
public.[173] Therefore, the
secrecy rule is said to protect the privacy of
jurors:[174]
... by ensuring that they are not drawn into subsequent appeals and that they
are not exposed to criticism or worse by members of
the community who may not
agree with the views jurors express about the case in
deliberations.
Upholding the secrecy of jury deliberations under this
principle is flawed. It is difficult to reconcile how an inquiry into a
jury’s
deliberation would necessarily breach a juror’s right to
privacy. The discourse surrounding the limitation on a juror’s
privacy by
encroaching on the secrecy rule often imagines the most extreme of
scenarios—that there is no secrecy of jury deliberations
at all. This is
neither desirable nor realistic considering the courts’ steadfast hold on
jury secrecy and the value that secrecy
provides in contributing to the fair and
efficient administration of
justice.[175]
However, it is
illogical to argue that any limitation on the secrecy rule will
necessarily breach a juror’s right to privacy. There is no reason for a
juror’s identity
to be revealed when inquiring into the deliberation
process, because the juror’s identity is irrelevant to whether juror
misconduct
occurred.[176]
Practical measures could be undertaken to ensure that jurors remain anonymous,
such as conducting inquiries into a jury’s deliberation
in a closed court
system or by an internal process. This would protect the integrity of
deliberations to the greatest possible extent
while still giving credence to the
defendant’s right to appeal an improper verdict.
For example, in the
New South Wales case of R v Skaf, a finding of juror misconduct led to a
miscarriage of justice after it was found that two jurors conducted experiments
at the alleged
crime scene.[177]
The jurors who were interrogated remained anonymous. This indicates that formal
enquiries that investigate matters intrinsic to a
juror’s reasoning as to
their verdict can occur without breaching a juror’s privacy. Thus, the
“scrutiny of jurors’
reasons for their verdict does not, of itself,
breach juror
anonymity”.[178]
Protecting jurors from harassment by the media is a more legitimate
concern.[179] This is particularly
important in high-profile trials and controversial verdicts that attract media
interest and incentivise the
intrusion of a juror’s privacy to obtain a
sellable story.[180] The issue of
a juror’s right to privacy being infringed by the media has occurred in
New Zealand before, perhaps most notably
in Solicitor-General v Radio New
Zealand Ltd (the RNZ
case).[181] An RNZ reporter was
found in contempt of court for contacting ex-jurors from a high-profile murder
trial. The reporter published
comments by a juror who agreed to speak on the
matter and expressed doubts about the jury’s guilty verdict. In
determining
the penalty, the High Court found that RNZ’s harassment of the
jurors and breach of their privacy was a “significant
aggravating
factor”.[182]
However,
justifying the secrecy rule with reference to the privacy of jurors fails to
recognise that some jurors may waive their right
to privacy by disclosing
information about the jury’s deliberation themselves, either by posting on
social media or agreeing
to speak to the media, such as in the RNZ
case.[183] Jurors may even seek
the media themselves. For example, following the high-profile retrial of David
Bain, a juror approached TVNZ
to speak about her experience and made disclosures
about the deliberations. The juror spoke on television, alleging that other
jurors
had conducted research, both online and by visiting the alleged crime
scene, and brought outside material into the
deliberations.[184] No further
action was taken to remedy or investigate these allegations, nor were steps
taken to bring contempt of court charges against
TVNZ.
In the RNZ
case, the High Court noted that the reactions of other jurors contacted
affirmed their belief that “generally jurors serve in the
impression that
their privacy will be respected and their identity remain
undisclosed”.[185] The
privacy of jurors who wish to remain anonymous should indeed be upheld. However,
it necessary to note that one of the jurors
agreed to speak to the
reporter, effectively waiving their right to privacy. Therefore, the sanctity of
jury deliberations cannot be upheld
under the pretence that jurors expect to not
be approached by the media if jurors willingly waive their right to privacy and
approach
the media themselves.
There are numerous values and interests that should be at the forefront of consideration in formulating a “proper and just” jury secrecy rule. These include the interest in ensuring justice is done in a particular case, the value of having clarity in the law, the public’s interest in holding powerful decision-makers accountable, and the defendant’s right to appeal an improper verdict. Striking the correct balance between these competing interests is imperative to the proper administration of justice due to the power juries hold as the factfinders in a trial and the potential consequences their decision can have on an individual’s freedom.
A proper
and just secrecy rule must value the finality of a verdict, but it must not
entail refusing all appeals in which juror misconduct
is alleged. Many have
raised the proverbial “floodgates” argument in response to the
proposition of piercing through
the veil of jury secrecy to uphold the
defendant’s appeal
rights.[186] This argument alleges
that impeding on the secrecy of jury deliberations would set a precedent whereby
every disgruntled defendant
would appeal their verdict on the basis of juror
misconduct.[187] This might bring
the finality of the jury’s verdict into question more regularly and result
in a significant administrative
burden on the criminal justice system with an
influx of appeals.[188]
However, fear of the worst-case scenario should not prevent inquiry into
jury deliberations, particularly when the reward is ensuring
the
defendant’s fundamental fair trial rights by allowing them to question
improper verdicts. It is not the case that any intrusion into jury
secrecy will necessarily result in an unmanageable influx of groundless appeals.
There is scope to loosen the
law’s tight grip on the secrecy of jury
deliberations to allow a degree of intrusion into the deliberation process
without
causing the floodgates to open.
While it would be undesirable to
open the floodgates, it is even less desirable to allow cases where a
defendant’s fair trial
rights have been undermined to fly under the radar.
The threshold test for allowing an inquiry should be lowered. This would allow
for genuine cases that allege serious juror misconduct (and have some form of
evidential basis, such as a juror’s affidavit)
to be inquired into.
However, the standard should not be lowered to the point where baseless appeals
could cause a significant strain
on the courts.
A proper and just secrecy rule must
reflect the value of having clarity in the law. As discussed in Part II, the
current secrecy rule
does not indicate what constitutes an exception to the
rule. This unclarity, combined with the legacy and sacrosanct status of the
secrecy rule itself, has resulted in the courts being hesitant to define the
circumstances that would warrant piercing the veil of
jury
secrecy.[189]
For an appeal
based on juror misconduct to succeed, a proper and just law on jury secrecy must
strive for clarity to guide the court.
The starting presumption should remain
that jury deliberations are secret and
inadmissible.[190] This reflects
the value secrecy provides in giving jurors assurance that their deliberations
will not be made public. However, even
important and valuable rules must have
exceptions.[191] A proper secrecy
rule should have a clear demarcation of circumstances that will be protected by
secrecy and those that will not.
For example, while trivial or inconsequential
juror transgressions should not warrant an inquiry, serious and genuine
allegations
should. Specified exceptions could also provide courts with clarity
and guidance. This could include juror misconduct involving fraud,
corruption,
or coercion, as is the approach in England and
Wales.[192]
The law should
also promote certainty in respect of courts’ decisions. The strictures of
the secrecy rule can result in courts
making important judgments—such as
whether juror misconduct resulted in a miscarriage of justice—based on
inference.
This is because the effect of the secrecy rule is that a court can
only rely on external factors that do not concern the internal
workings of the
jury’s deliberations. Judges can therefore only base judgements on
uncertain inferences as to what might have happened, rather than relying
on evidence from the jury room that shows with certainty what actually
happened.[193] Decisions made
on inference are unclear and therefore uncertain, and do not allow the court to
fully determine whether a miscarriage
of justice had occurred. A proper and just
secrecy rule should result in certain decisions by the courts by providing
clarity as
to what instances of juror misconduct may warrant an inquiry into the
jury’s deliberations.
A proper secrecy rule
must balance the need to uphold a juror’s right to privacy with juror
accountability.[194] Generally,
jurors should expect their deliberations to be kept secret and to have their
right to privacy upheld.[195] This
recognises that jurors are ordinary citizens who have been tasked to perform an
often difficult task; jurors should expect to
return to their daily lives once
they have fulfilled this
duty.[196]
However, there must
also be recognition that juries hold extraordinary, unchecked
power.[197] Juries make decisions
which impact an individual’s autonomy and liberty, yet they are untrained
for their role and are not
accountable for their
mistakes.[198] This lack of
accountability, combined with the jury’s general lack of training for the
role, risks the jurors abusing this
power. For example, the lack of oversight
and protection afforded to jurors during their deliberation process allows
jurors to reach
a verdict by improper means or to rely on extraneous material.
This risk then carries significant consequences for defendants who
stand to lose
their liberty. However, the secrecy rule creates a risk that abuse of this power
will go unnoticed.
There is a strong public interest in holding powerful
decision-makers, such as juries, accountable to prevent abuses of
power.[199] A proper and just jury
secrecy law should permit a juror’s right to privacy to be outweighed in
favour of accountability when
serious misconduct
occurs.[200] This is not to say
that New Zealand should adopt the United Kingdom’s position and imprison
jurors for misconduct.[201] Nor
should jurors be scrutinised for their misconduct in open court. Doing so could
deter future prospective jurors from appearing
for jury service—an
undesirable outcome. A proper jury secrecy law could, however, ensure the
anonymity of jurors who are subject
to appeal by holding investigations
internally, rather than in open court.
When addressing
allegations of juror misconduct on appeal, a proper and just secrecy rule should
focus the court’s attention
on the nature and seriousness of the
misconduct and its impact on the trial. This follows the approach taken by trial
judges, who
have far greater flexibility in their approach to misconduct that
arises while the trial is
ongoing.[202] As such, this should
remove the need to distinguish between extrinsic and intrinsic matters of the
jury’s deliberation, as
set out in s 76(2).
Adopting the approach
taken by trial judges focuses the court’s attention on ensuring the
defendant’s fair trial rights
are protected. As Lord Steyn stated in R
v Mirza, “there is a positive duty on judges, when things have gone
seriously wrong in the criminal justice system, to do everything
possible to put
it right”.[203] A proper
jury secrecy law must allow the court to fulfil this duty by giving the court
greater power to address allegations of juror
misconduct on appeal; focusing on
the nature and seriousness of the misconduct and its impact on the
defendant’s fair trial
rights ensures that is achieved.
The law
should allow the court to pierce through the secrecy of jury deliberations when
a defendant’s fair trial rights are
genuinely at risk due to juror
misconduct. However, the case law demonstrates that s 76 prevents this from
occurring by favouring
the jury’s interests and protecting the jury
system’s sanctity. Even extrinsic matters, which are exempt from secrecy,
cannot be meaningfully or thoroughly investigated due to the overarching
influence of the secrecy rule.
The following examples are specific forms of
juror misconduct which may warrant an exception to the secrecy rule and allow
the court
to inquire into the jury’s deliberations.
Where bias has allegedly impacted the jury’s
verdict, the secrecy rule should permit an investigation that intrudes on the
jury’s
deliberations. This is because juror bias directly conflicts with
the defendant’s right to be tried in front of an impartial
jury.[204]
A defining feature
of juries is the vast range of “experiences, knowledge and
perspectives” that jurors bring to the
table.[205] Inevitably, jurors may
also bring biases which could influence their decision-making process. A
juror’s predispositions about
a defendant’s gender, sexuality, or
ethnicity might influence their
decision,[206] as well as
preconceptions about certain offences or complainants, such as myths surrounding
rape victims.[207] Also, a juror
may be biased because of a personal connection to the case or the
defendant.[208]
Evidence of
juror bias falls under the exception to the secrecy rule in s 76(2) as
constituting extrinsic
matters.[209] As such, evidence of
juror bias is not presumed inadmissible under s 76(1) and could form the
basis for ordering an inquiry into
the allegedly biased
juror.[210]
However, while
bias may not be precluded from inquiry, the application of s 76
nevertheless restricts the court’s power to investigate
juror bias
properly. To avoid triggering the s 76(3) threshold test, courts restrict
their inquiries into juror bias to factors deemed
extrinsic to the jury’s
deliberation.[211] This includes
questioning whether a relationship of bias exists, but not whether the bias
affected the juror’s deliberative
process, given this would constitute an
intrinsic matter. If the court determines that an inquiry into juror bias, even
one limited
to extrinsic matters, would nevertheless produce evidence that is
intrinsic to the jury’s deliberation, the court may refuse
an inquiry
entirely.[212] Therefore,
s 76 restricts the court’s inquisitorial power. Indeed, s 76 limits
the scope of an investigation to one which does
not directly answer whether bias
affected the jury’s verdict, but leaves the court to infer from
extraneous factors whether it could have. As discussed in Part IV, such
an approach does not achieve the clarity and certainty for which a proper law of
jury secrecy should
aim.
Rolleston v R demonstrates the limitation
that s 76 has on the court’s inquisitorial power to remedy juror bias
and highlights the arbitrariness
of the extrinsic–intrinsic
distinction.[213] The appellants
in Rolleston alleged that the jury’s
foreman (S) was biased and thus argued that a
miscarriage of justice had occurred. This was because the appellant’s
brother,
who was often present during the trial, bullied S at high school. The
appellants submitted that this informed a likelihood S would
be prejudiced
against them, undermining their fair trial
rights.[214]
The Supreme Court
ordered an inquiry into S, determining that “[a] closer look was
required”.[215] The Court
held “the inference was reasonably available that S remembered” the
appellant’s brother from school “and
in a prejudicial
light”.[216] However, the
Court carefully limited the inquiry to whether S’s prior knowledge of the
case, witnesses or the defendants, prevented
(or appeared to prevent) them
“from bringing an open mind to jury
deliberations”.[217] As
such, the inquiry focused on ascertaining the nature and extent of the
relationship between the appellants and S (an extrinsic
matter) but did not
touch on how those factors impacted the verdict. Taking this approach carefully
skirts around the secrecy rule,
because questioning whether S’s bias
impacted the jury’s deliberations would directly intrude into intrinsic
matters,
thereby triggering the secrecy
rule.[218]
An appellate
court’s focus should be on the nature and seriousness of the alleged
misconduct when addressing juror misconduct,
not on the
extrinsic–intrinsic distinction. Such an approach achieves a more
appropriate balance between the jury’s interests
and those of the
defendant. The outcome of Rolleston further supports this argument.
The inquiry ordered in Rolleston led to a dead-end; S insisted on his
impartiality and that he did not recognise the appellant’s
brother.[219]
While it is not
necessarily the case that S was biased, limiting the inquiry to one which
only asks S about extrinsic evidence meant the Court failed to inquire
adequately into whether
there was apparent or actual bias. The law should have
allowed the Court to interview (and potentially cross-examine) S on the content
of his deliberations. This would likely have ensured the truthfulness of his
interview statements and revealed whether any bias actually
influenced the
jury’s verdict.
Determining whether bias
exists based on the statement of the allegedly biased juror is illogical; the
juror can simply deny that
any bias exists, and unless there are reasons to
question the juror’s veracity, the appeal will be dismissed. Interviewing
the other jurors on whether S demonstrated any bias against the defendant could
have remedied the issue and provided a satisfactory
answer to whether the
jury’s verdict was ultimately biased. This is not possible under the
current secrecy rule because it
would clearly go towards intrinsic matters which
are barred from
investigation.[220]
This is
problematic because even in cases where an inquiry is ordered, limiting the
scope of the inquiry to solely extrinsic matters
means the law fails to truly
determine whether a miscarriage of justice had occurred. Instances of juror
misconduct that seriously
undermine the defendant’s fair trial rights
remain overlooked and unresolved, even if exempt from the secrecy rule.
Therefore,
s 76 strikes an inappropriate balance between protecting the
secrecy of jury deliberations and upholding a defendant’s right
to an
impartial jury.
A fundamental part of the jury’s role is to
reach a verdict solely on the evidence raised and challenged at
trial.[221] This is because the
principle of open justice demands that a defendant has the opportunity to
challenge evidence which may be used
to convict
them.[222] Therefore, when a jury
comes into possession of material not raised
at trial, the jury may rely on this material as unchallenged evidence to
determine their verdict.[223] This
poses a significant risk to a defendant’s fair trial rights.
Such
outside material could be inadmissible or
irrelevant;[224] it might be
highly prejudicial to the defendant, such as their conviction
history.[225]
Or the material might simply be inaccurate, such as legal definitions from a
different jurisdiction.[226] The
risk of extraneous material appearing in the jury room has been particularly
exacerbated by the advent and prevalence of the
Internet, which has made
conducting independent research into the defendant, the case, or the law easily
accessible to jurors.[227] When
jurors possess extraneous material, a fair jury secrecy law should allow
thorough investigation into the extent to which the
material influenced the
jury’s verdict.
However, not every instance of jurors possessing
extraneous material will warrant an inquiry. As the Supreme Court stated in
Guy v R, “the mere fact that the jury had access to material that
had not been part of the evidence at the trial does not automatically
mean that
the trial was unfair or that there was a miscarriage of
justice”.[228] However,
highly prejudicial extraneous material in the possession of the jury demands
thorough investigation.[229]
For example, in Montaperto v R, a more than 30-year-old conviction
was overturned after concluding that the original jury was biased towards the
defendant.[230] Twenty years
after the trial, one of the jurors confessed to having received information
during the trial that linked the defendant
to another high-profile murder case
at the time. This was particularly egregious considering it was revealed
post-trial that the
defendant was innocent regarding the separate murder.
Therefore, there seems no reason to doubt that the jury reached their verdict
on
highly prejudicial and incorrect information. The Court of Appeal held there was
“a real risk of miscarriage of justice”,
warranting a further
inquiry.[231]
Like in
Rolleston,[232] the
Court was careful to explain that the inquiry sought to ascertain extrinsic
matters, such as whether the jurors had “recalled
receiving information
about the appellant that was not part of the evidence, what the evidence
was”, and “whether a juror
had disclosed information to the jury
that the appellant was a suspect” in the separate murder
case.[233] The Court intentionally
did not ask the jurors to disclose specific details about their deliberations,
thus avoiding the secrecy
rule of s 76(1) and the stringent threshold in
s 76(3).[234]
However,
there is arguably little difference between whether the jury had been told
of the information (an extrinsic matter) and whether they had relied
on the information (an intrinsic matter). Indeed, it could be argued that
one may even imply the other. For example, in cases of prejudicial
extraneous
material being disclosed to the jury, it is difficult to conceive that such
information would not then impact the jury’s
deliberation process, even if
only subconsciously. Either way, the jury’s mind would have been tainted
by extraneous material
that infringes the principle of open justice. As such,
making the distinction is futile. The ability for serious juror misconduct
to be
inquired into and remedied should not rest on such a fine distinction. This is
because such an arbitrary distinction could
have easily resulted in a different
outcome, protecting the gross miscarriage of justice. A different court might
have easily determined
that the inquiry in Montaperto would cross too far
into intrinsic matters and bar themselves from making an inquiry, allowing an
unjust verdict to remain final.
The current law on
jury secrecy prevents appellate courts from fulfilling their duty to address
irregularities in the jury system.
This illustrates a major flaw in the
functionality of the secrecy rule. Even where evidence suggests that juror
misconduct may have
significantly undermined a defendant’s fair trial
rights, the law may prevent this from being established or remedied by the
court. In these circumstances, the law protects verdicts that were reached by
improper or even illegal
means.[235]
A law that
protects miscarriages of justice and unjust verdicts cannot be said to
facilitate the interests of justice. Therefore,
the law governing the secrecy of
jury deliberations must be rewritten to “end its hide-bound status and
become neither a captive
of the past, nor a hostage to the legislature”,
and change to “reflect the fundamental principles of accusatorial
justice”.[236]
A
rewritten secrecy rule must value the finality of a jury’s verdict and
avoid opening the floodgates to an influx of meritless
appeals, whilst also
ensuring that when the safety of a jury’s verdict is genuinely in
question, it may be appealed and subsequently
remedied. Maintaining a
high—but not impossible—standard for when appeals on the grounds of
juror misconduct may succeed
will balance a defendant’s fair trial rights.
Such a standard also mitigates the risk of creating a requirement for piercing
the veil of jury deliberations that is too administratively burdensome on the
courts.
The starting presumption should remain that evidence of a
jury’s deliberation will generally remain secret and inadmissible
on
appeal. However, there must be a clear, defined, and achievable threshold to
override this presumption. For example, the threshold
could specify that
evidence of a jury’s deliberation may be admissible when there is evidence
of a severe and genuine risk
to the safety of the verdict by way of juror
misconduct.
To achieve clarity, the law could then specify what examples of
juror misconduct may reach this threshold, such as juror bias, relying
on
extraneous material in deliberations, or improper pressure from judicial
directions. These examples would not be exhaustive or
conclusive, with each case
ultimately determined by its particular circumstances. However, specific
statutory examples would provide
courts with the guidance currently missing from
s 76. Certainly, every juror brings their own biases and predetermined
notions to
the jury room. Even so, not every instance of juror bias or receipt
of extraneous material will necessarily amount to juror misconduct.
Only when
there is a demonstrably unjust impact on the jury’s deliberations or the
verdict of a trial should the secrecy of
jury deliberations be disturbed.
Juries have a duty to act impartially, to make
their decisions according to the evidence, and to come to their decision after
full,
frank, and collective
deliberations.[237] However, the
law should not merely presume that jurors fulfil this duty, but rather ensure
that they do. Where a juror breaches this
duty such that it amounts to a
miscarriage of justice and undermines a defendant’s fair trial rights, the
law should allow
investigations into the conduct and the intrinsic matters of
the jury’s deliberations to hold them accountable.
The evidence
produced from the investigations must then be made available to the court to
overturn an improper verdict. Thus, a rewritten
law of jury secrecy which allows
the court to inquire into serious instances of juror misconduct will strike the
appropriate balance
between the “pragmatic tolerance of imperfection and
the public’s demand for
accountability”.[238]
Lastly,
the secrecy rule should remove the distinction between intrinsic and extrinsic
matters of the jury’s deliberations.
As the preceding case law
demonstrates, such a distinction significantly restricts the court’s
inquisitorial powers and limits
the scope of any inquiry to external factors
only, obscuring whether a miscarriage of justice had occurred. Instead, the new
secrecy
rule should retain the approach to instances of juror misconduct that
arise while the trial is ongoing, focusing on the nature and
seriousness of the
misconduct, and the impact it has on the
trial.[239] This will mean the law
is appropriately focused on protecting the defendant’s fair trial rights,
which should be treated as
paramount regardless of the time at which issues of
juror misconduct arise.
Upholding the fundamental right to a fair trial in front of
an impartial jury is a “key component of the administration of justice
in
New Zealand”.[240] Juror
misconduct has the potential to severely undermine this right by resulting in a
verdict reached by improper means. If the law
governing the secrecy of jury
deliberations allows a defendant’s fair trial rights to be undermined by
barring investigation
into serious juror misconduct, the law is fundamentally
unjust and must be changed.
The rewritten law on the secrecy of jury
deliberations proposed in this article would significantly improve the criminal
justice system.
It would ensure the defendant’s fair trial rights are
upheld by allowing instances of juror misconduct that threaten this right
to be
investigated and remedied. Improvements would also follow in terms of public
confidence. As discussed, the mystery and impenetrability
of the current jury
system does not incite public confidence in its ability to produce just outcomes
for defendants. Rather, public
confidence in juries and their decisions derives
from accountability, openness and
scrutiny.[241] A law which allows
the courts to check and balance the jury’s decision-making power would
ultimately result in greater public
confidence in the jury’s
decision-making abilities and overall efficacy. This would create a stronger
jury system overall.[242]
The
recommendations set forth in this article are neither new nor extreme. Before
the enactment of the Evidence Act, the Law Commission
made similar
recommendations in its report, Evidence Code and Commentary, published in
1999.[243] This report proposed a
defined exception to the secrecy rule, now enshrined in s 76, which is that
“[a] person cannot give
evidence about the deliberations of a jury
concerning the substance of a proceeding except in so far as that evidence
tends to establish that a juror has acted in breach of the juror’s
duty”.[244] The
Commission stated that the intention of this provision was to “maintain
the secrecy of jury deliberations, but at the same
time [allow] evidence to be
given if a juror breaches his or her duty as a
juror”.[245]
The
Commission further noted that “[t]his section does away with the
distinction made in the common law that depends on whether
the impropriety
occurred within or outside the jury room”, or the
extrinsic–intrinsic distinction which has been
discussed.[246] Furthermore, the
Law Commission has recommended that “legislation on jury secrecy could
clarify what aspects of a jury’s
deliberations are admissible or
disclosable”, noting that “absolute secrecy is
undesirable”.[247]
Evidently, legal reform of jury secrecy in the form proposed in this paper
has been a long time coming, even predating the enactment
of the Evidence Act
and s 76 itself.
For
centuries, the jury deliberation process has been highly regarded as sacrosanct
and integral to the proper functioning of the
criminal justice system. It has
been afforded an unparalleled level of secrecy and protection, tracing back most
famously to Vaise v
Delaval.[248] Section 76 of
the Evidence Act encapsulates the legacy of the jury secrecy rule, which is that
jury deliberations must remain secret
and cannot be admissible in court to
overturn a verdict.[249] The
principles underlying this rule are that: (i) a jury’s verdict must be
final, (ii) full and frank discussions amongst a
jury must be encouraged, and
(iii) jurors’ privacy must be protected.
However, s 76 fails to
achieve the necessary balance of competing values and interests that are
relevant to the jury’s deliberations.
The secrecy rule currently elevates
the jury’s interests over any other competing interests, such as ensuring
justice is achieved
in a particular case, the public’s interest in holding
powerful decision-makers accountable, and the defendant’s interests
in
appealing an improper verdict. A secrecy rule that cannot balance these
interests renders the power juries hold over the trial
process unaccountable,
and thus absolute.
Although intensely shrouded in protection by its pedigree
in common law and its steadfast endorsement from the courts, the secrecy
of jury
deliberations protects improper verdicts by allowing serious instances of juror
misconduct to go overlooked. This undermines
the fundamental right to a fair
trial and public confidence in the criminal system overall.
The law
governing the secrecy of jury deliberations must change. Whilst a jury’s
deliberations should generally remain secret,
there must be an allowance for
allegations of serious juror misconduct to be properly addressed, investigated
and remedied on appeal.
Such misconduct may risk the safety of the jury’s
verdict by creating a miscarriage of justice, undermining the defendant’s
fundamental right to a fair trial. Only when the law allows such misconduct to
be remedied may the balance between the necessary
values and interests truly be
achieved.
[*] LLB(Hons), BA Auck. I would like to thank my supervisor, Associate Professor Scott Optican, for his guidance and support throughout the writing of the dissertation this article is derived from.
[1] Jesse Slankard “Jury Secrecy, Contempt of Court and Appellate Review” (LLM Research Paper, Victoria University of Wellington, 2017) at 4.
[2] Rolleston v R [2020] NZSC 113, [2020] 1 NZLR 772.
[3] Evidence Act 2006, s 76(1).
[4] Rolleston v R, above n 2, at [23].
[5] Section 76(3).
[6] Section 76(4).
[7] See Lewis Ross “The curious case of the jury-shaped hole: A plea for real jury research” (2023) 27 E&P 107.
[8] Slankard, above n 1, at 6.
[9] R v Mirza [2004] UKHL 2, [2004] 1 AC 1118 at [4].
[10] Clifford Holt Ruprecht “Are Verdicts, Too, Like Sausages?: Lifting the Cloak of Jury Secrecy” (1997) 146 U Pa L Rev 217 at 218.
[11] At 219.
[12] Other forms of misconduct may also warrant an inquiry but are outside the scope of this article, such as improper pressure from Papadopoulos directions, jurors using the Internet, or bullying within the jury.
[13] Ruprecht, above n 10, at 218.
[14] Jill Hunter “Jury Deliberations and the Secrecy Rule: The Tail that Wags the Dog?” [2013] SydLawRw 32; (2013) 35 Syd LR 809 at 809.
[15] Evidence Act, ss 54 and 67(1).
[16] Vaise v Delaval [1785] EngR 12; (1785) 1 TR 11, 99 ER 944 (KB).
[17] Hunter, above n 14, at 810.
[18] Vaise v Delaval, above n 16, at 11.
[19] John Henry Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law (3rd ed, Little, Brown & Co, Boston, 1940) as quoted in Alison Markovitz “Jury Secrecy During Deliberations” [2001] YaleLawJl 3; (2001) 110 Yale LJ 1493 at 1501.
[20] Slankard, above n 1, at 5.
[21] Vaise v Delaval, above n 16, at 11.
[22] Hunter, above n 14, at 817.
[23] At 817.
[24] At 819.
[25] Wigmore, above n 19, at 684 as quoted in Hunter, above n 14, at 819.
[26] Dent v Hundred of Hertford (1696) 2 Salk 645 at 645[1795] EngR 1951; , 91 ER 546 (KB) at 546.
[27] Hunter, above n 14, at 819.
[28] Aylett v Jewel [1746] EngR 25; (1779) 2 Black W 1299 at [1746] EngR 25; 1300, 96 ER 761 (KB) at 761.
[29] Hunter, above n 14, at 820.
[30] At 820.
[31] At 820.
[32] Owen v Warburton [1805] EngR 231; (1805) 1 Bos & Pul NR 326, 127 ER 489 (Comm Pleas).
[33] Hunter, above n 14, at 820.
[34] At 820.
[35] At 820.
[36] At 817.
[37] Evidence Act, s 76(1).
[38] Slankard, above n 1, at 7.
[39] Rolleston v R, above n 2, at [21] and [23].
[40] Smith v R [2017] NZCA 93 at [25].
[41] Pearson v R [2011] NZCA 572 at [19].
[42] Rolleston v R, above n 2, at [21].
[43] R v R [2016] NZCA 444 at [58].
[44] At [58].
[45] At [58].
[46] Juries Act 1981, s 22(2).
[47] R v R, above n 43, at [58].
[48] At least in the context of misconduct within the jury room. An appellate court has the ability to ensure that the defendant received a fair trial in other areas where a miscarriage of justice may have occurred, such as responding to a mistake of law made by the trial judge.
[49] R v N (2005) 21 CRNZ 621 (CA).
[51] R v N, above n 49, at [4].
[52] At [4].
[53] Evidence Act, s 76(1).
[54] Pearson v R, above n 41, at [12].
[55] At [19].
[56] Evidence Act, s 76(2).
[57] Section 76(3).
[58] Knight v R [2018] NZCA 71 at [8].
[59] At [8].
[60] R v Pan 2001 SCC 42, [2001] 2 SCR 344 at [60].
[61] At [77].
[62] Evidence Act, s 76(2)(a).
[63] Law Commission Juries in Criminal Trials (NZLC R69, 2001) at [133].
[64] Juries Act, ss 7 and 8. Disqualified persons include the Governor-General, judges, and lawyers, amongst others.
[65] Evidence Act, s 76(2)(b).
[66] R v Chen [2009] NZCA 445, [2010] 2 NZLR 158 at [74]; Hazelwood v R [2018] NZCA 44; and R v Morris [2001] 1 NZLR 1.
[67] Ex parte Morris (1907) 72 JP 5 (KB).
[68] Rolleston v R, above n 2, at [29]. The Court also commented at [29] that “[n]ot all prior knowledge of that kind will necessarily be significant”, and that New Zealand’s size means that jurors will occasionally have a connection with, or knowledge of, parties or witnesses at an unproblematic level.
[69] R v Papadopoulos [1979] 1 NZLR 621 (CA).
[70] Tuia v R [1994] 3 NZLR 553 (CA).
[71] Rolleston v R, above n 2, at [26].
[72] R v Young (Stephen) [1995] QB 324 (CA).
[73] Contempt of Court Act 1981 (UK), s 8(1).
[74] Slankard, above n 1, at 13.
[75] R v Young (Stephen), above n 72, at 334.
[76] At 334.
[77] Peter McClellan “Looking Inside the Jury Room” (paper presented to the Law Society of New South Wales Young Lawyers 2011 Annual Criminal Law Seminar, Sydney, March 2011) at 64.
[78] At 64.
[79] R v Young (Stephen), above n 72.
[80] At 330.
[81] Evidence Act, s 76(3).
[82] Section 76(3).
[83] Section 76(4).
[84] Smith v R, above n 40, at [27].
[85] Evidence Act, s 76(3).
[86] Ruprecht, above n 10, at 219.
[87] Neale v R [2010] NZCA 167 at [12].
[88] Worrell v R [2011] NZCA 63 at [52].
[89] At [52] per O’Regan P; and Evidence Act, s 76(4).
[90] Neale v R, above n 87, at [12].
[91] R v Young (Stephen), above n 72.
[92] R v Tainui [2008] NZCA 119.
[94] Derrick v R [2011] NZCA 163.
[96] See R v Tainui, above n 92; and Neale v R, above n 87.
[97] Pearson v R, above n 41; and Worrell v R, above n 88.
[98] Pearson v R, above n 41, at [17].
[99] Evidence Act, s 76(3).
[100] R v Mirza, above n 9, at [4] per Lord Steyn.
[101] Smith v R, above n 40, at [27]; and W v R [2017] NZCA 536 at [13].
[102] Smith v R, above n 40, at [43].
[103] Defined as “to stand by things decided”.
[104] R v Mirza, above n 9, at [2].
[105] R v Young (Stephen), above n 72.
[106] Ruprecht, above n 10, at 219.
[107] At 218.
[108] R v Mirza, above n 9, at [6].
[109] Markovitz, above n 19, at 1515.
[110] R v Mirza, above n 9, at [16].
[111] Vaise v Delaval, above n 16, at 11.
[112] Rolleston v R, above n 2.
[113] At [43].
[114] At [25].
[115] Slankard, above n 1, at 6.
[116] Markovitz, above n 19, at 1509.
[117] At 1509.
[118] Rolleston v R, above n 2, at [24(b)].
[119] Jennifer Tunna “Contempt of Court: Divulging the Confidences of the Jury Room” [2003] CanterLawRw 3; (2003) 9 Canta LR 79 at 85.
[120] Ellis v Deheer [1922] 2 KB 113 (CA) at 121.
[121] At 121.
[122] Markovitz, above n 19, at 1494.
[123] Sarah Price “Don’t Ask Don’t Tell – The Law Surrounding Media Publications of Jury Deliberations” [2014] NZLawStuJl 3; (2014) 3 NZLSJ 177 at 182.
[124] At 182.
[125] Tunna, above n 119, at 84.
[126] Hunter, above n 14, at 821.
[127] At 821.
[128] At 821.
[129] Law Commission Juries in Criminal Trials: Part Two (NZLC PP37, Vol 1, 1999) at [266].
[130] Tunna, above n 119, at 85.
[131] At 87 (emphasis in original).
[132] Price, above n 123, at 183.
[133] Tunna, above n 119, at 84.
[134] Or in certain cases, a majority jury verdict, since majority verdicts have been accepted in New Zealand since 2009: see Juries Act, s 29C.
[135] Tunna, above n 119, at 84.
[136] At 87.
[137] At 87.
[138] At 88 (emphasis in original).
[139] At 88.
[140] At 88.
[141] Markovitz, above n 19, at 1515.
[142] Hunter, above n 14, at 811.
[143] Slankard, above n 1, at 6.
[144] Murray Gleeson “The Secrecy of Jury Deliberations” [1997] NewcLawRw 1; (1996) 2 Newc LR 1 at 2.
[145] Ruprecht, above n 10, at 218.
[146] Markovitz, above n 19, at 1515.
[147] R v Mirza, above n 9, at [5].
[148] At [19].
[149] At [5].
[150] At [12].
[151] Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC).
[152] Rolleston v R, above n 2, at [24].
[153] Price, above n 123, at 183.
[154] Pan v R, above n 60, at [50].
[155] Rolleston v R, above n 2, at [24].
[156] Price, above n 123, at 185.
[157] Solicitor-General v Radio New Zealand Ltd, above n 151.
[158] Price, above n 123, at 192.
[159] Clark v United States [1933] USSC 52; 289 US 1 (1933) at 16 per Cardozo J, as quoted in Markovitz, above n 19, at 1512.
[160] At 1512.
[161] See Law Commission, above n 63, at [133].
[162] Tunna, above n 119, at 82.
[163] See for example in Montaperto v R [2021] NZCA 170 at [37].
[164] Tunna, above n 119, at 82.
[165] Price, above n 123, at 193.
[166] Tunna, above n 119, at 83.
[167] See Warren Young, Neil Cameron and Yvette Tinsley Jury Trials in New Zealand: A Survey of Jurors (October 1999) at 179.
[168] See for example R v Wilson [2004] NZCA 260; (2004) 21 CRNZ 192 (CA); and Derrick v R, above n 94. Both were dismissed in favour of the secrecy rule.
[169] Tunna, above n 119, at 83.
[170] The question of whether relaxing the secrecy rule would inhibit the frankness of jury deliberations—and to what extent it would do so—is admittedly unknown and requires further study.
[171] Ellis v Deheer, above n 120, at 121.
[172] Price, above n 123, at 184.
[173] At 195.
[174] Rolleston v R, above n 2, at [24].
[175] Ruprecht, above n 10, at 219.
[176] Jason Donnelly “Decisions Without Reasons – Rethinking Jury Secrecy” (LLB(Hons) Dissertation, University of Western Sydney, 2008) at 16.
[177] R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 (NSWCCA).
[178] Hunter, above n 14, at 822.
[179] Markovitz, above n 19, at 1506–1507.
[180] Law Commission, above n 63, at [447].
[181] Solicitor-General v Radio New Zealand Ltd, above n 151.
[182] Price, above n 123, at 196.
[183] Solicitor-General v Radio New Zealand Ltd, above n 151.
[184] Interview with David Bain juror (Janet McIntyre, Sunday, TVNZ, 18 November 2012).
[185] Solicitor-General v Radio New Zealand Ltd, above n 151, at 55.
[186] See for example Donnelly, above n 176, at 24.
[187] See R v Papadopoulos, above n 69, at 626.
[188] At 626.
[189] See Worrell v R, above n 88, at [52].
[190] R v Mirza, above n 9, at [16].
[191] Hunter, above n 14, at 821.
[192] Slankard, above n 1, at 18.
[193] See for example R v D [2007] NZCA 313.
[194] Ruprecht, above n 10, at 217.
[195] Hunter, above n 14, at 824.
[196] Tunna, above n 119, at 83–84.
[197] Donnelly, above n 176, at 44.
[198] Ruprecht, above n 10, at 218–219.
[199] See Ruprecht, above n 10, at 218–219.
[200] At 219.
[201] See Attorney General v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991, in which a juror was sentenced to six months’ imprisonment for researching and telling the jury about the defendant’s criminal history.
[202] For example, under s 22 of the Juries Act, a trial judge may discharge a juror or jury.
[203] R v Mirza, above n 9, at [4].
[204] New Zealand Bill of Rights Act 1990, s 25(a).
[205] Law Commission Juries in Criminal Trials: Part One (NZLC PP32, 1998) at 238.
[206] Juror bias against Māori was the subject of the recent Supreme Court leave decision of Borell v R [2020] NZSC 101. The appellant argued that her fair trial rights were undermined because there were no procedures to counteract the risk of racial bias within the jury. Although the Court acknowledged the issue’s importance, the Court declined Ms Borell’s application for leave.
[207] See generally Elisabeth McDonald Rape Myths as Barriers to Fair Trial Processes: Comparing adult rape trials with those of the Aotearoa Sexual Violence Court Pilot (Canterbury University Press, Christchurch, 2020).
[208] Rolleston v R, above n 2.
[209] Such evidence goes towards the juror’s capacity to be a juror under s 76(2)(a).
[210] However, the test for miscarriages of justice must still be met: see R v Bates [1984] NZCA 110; [1985] 1 NZLR 326 (CA) at 328.
[211] Rolleston v R, above n 2.
[212] Pearson v R, above n 41.
[213] Rolleston v R, above n 2.
[214] At [7].
[215] At [47].
[216] At [47].
[217] At [30].
[218] At [31].
[219] At [49]–[55].
[220] Evidence Act, s 76(1).
[221] Jury Rules 1990, sch 1 form 2.
[222] Dominic Grieve, Attorney General for England and Wales “Trial by Google? Juries, social media and the internet” (speech to University of Kent, 6 February 2013).
[223] It is also a breach of the juror’s oath to rely on extraneous material: see Jury Rules, sch 1 form 2.
[224] Robbie Manhas “Responding to Independent Juror Research in the Internet Age: Positive Rules, Negative Rules, and Outside Mechanisms” (2014) 112 Mich L Rev 809 at 809.
[225] JM v R [2016] NZCA 383.
[227] Law Commission Reforming the Law of Contempt of Court: A Modern Statute (NZLC R140, 2017) at [4.12].
[228] Guy v R [2014] NZSC 165, [2015] 1 NZLR 315 at [83].
[229] Smith v R, above n 40; and JM v R, above n 225.
[230] Montaperto v R, above n 163.
[231] At [43]
[232] Rolleston v R, above n 2.
[233] Montaperto v R, above n 163, at [24].
[234] Evidence Act, ss 76(1) and (3).
[235] Hunter, above n 14, at 813.
[236] At 824.
[237] Law Commission, above n 63, at [133].
[238] Ruprecht, above n 10, at 219.
[239] R v R, above n 43, at [59].
[240] Stephen Dunstan, Judy Paulin and Kelly-anne Atkinson Trial by Peers? The Composition of New Zealand Juries (Department of Justice, 1995) at 3.
[241] Slankard, above n 1, at 6.
[242] See Markovitz, above n 19, at 1515 for reasons why the publication of jury deliberations may strengthen the jury system.
[243] Law Commission Evidence Code and Commentary (NZLC R55, Vol 2, 1999).
[244] At 192 (emphasis added).
[245] At 193.
[246] At 193.
[247] Law Commission, above n 129, at [270].
[248] Vaise v Delaval, above n 16, at 11.
[249] Evidence Act, s 76(1).
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