Reported Decision : 116 A Crim R 70 New South Wales Supreme Court CITATION : R v Laws [2000] NSWSC 885 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70025/00 HEARING DATE(S) : 5/9/00 JUDGMENT DATE : 5 September 2000 PARTIES : Regina Richard John Sinclair Laws JUDGMENT OF : Wood CJatCL at 1 LOWER COURT Supreme Court JURISDICTION : LOWER COURT 00/11/0086 FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : COUNSEL : M. Tedeschi QC W. Terracini SC with W. Muddle SOLICITORS : DPP Hunt & Hunt DECISION : Sentenced to imprisonment for fifteen months, the execution of which is to be suspended for that period, upon condition of entering into a bond to be of good behaviour for a like period of fifteen months. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION WOOD CJ at CL TUESDAY 5 SEPTEMBER 2000 70025/00 - REGINA V RICHARD JOHN SINCLAIR LAWS SENTENCE 1 HIS HONOUR: Mr. Laws has been convicted, following a trial by jury, of the offence of soliciting information from a former juror for the purpose of obtaining information on the deliberations of the jury of which she had been a member. The maximum penalty for the offence is imprisonment for seven years (S68A Jury Act 1977). 2 The offence occurred in the following circumstances. The former juror, who was given the pseudonym Mrs Hansen, served as a juror on the trial of Seldon Robinson and Andrew Ly between 14 July and 5 August 1998. On 5 August 1998, after deliberating for three days, the jury returned a verdict of not guilty in relation to the charge of murder of Angelo Cusumano that had been preferred against them. 3 Mrs. Hansen was deeply upset by the verdict, since it was one in which she did not believe and in which she had joined only because she felt that she had been brow beaten to the point where she could not hold out any longer. That night, after returning home, she telephoned the widow of Mr. Cusamano to explain that she had beseeched the jury not to return any verdict, upon the basis that they were unable to agree. She expressed her regret for the outcome and indicated that, in her view, justice had not been done. 4 The fact of this telephone conversation became known to elements of the media, and it was reported in a front page story dealing with the trial, in the Daily Telegraph of 6 August. An editorial, which called for an inquiry, appeared in the same newspaper. By that time there had already been a good deal of concern expressed in relation to the acquittal of the two young men, who had been involved in an armed robbery in company with a third man, in the course of which Mr Cusamano had been shot by that third man. Such was the controversy and concern attaching, that Alan Jones spoke to Mrs. Cusumano during his breakfast programme on Radio Station 2UE. There was a brief mention in this interview, which was entirely permissible at law, of the conversation between her and Mrs. Hansen. The interview mainly concentrated on the shooting and acquittal, and the devastating and tragic consequences for the family of the deceased. 5 Mr. Laws said that he was aware of this controversy which he regarded as the "major news story of the day". He had listened to the Cusumano interview while preparing his own program, and he had skimmed the Daily Telegraph. Coincidentally, a friend of Mr and Mrs Laws, who was also listening to the breakfast programme, realised that the former juror was Mrs. Hansen. She knew that Mrs. Hansen was also a friend of Mr and Mrs Laws. In the course of a telephone conversation with Mrs Laws that followed, she passed that fact on. Mrs Laws then telephoned Mr Laws to advise him of it. He was in the studio at the time either on air, or engaged in recording some commercials. He asked his Personal Assistant, Jodie Borgo, to phone Mrs. Hansen to see if she would speak to him on air. This phone call was placed and when the request was made, Mrs. Hansen agreed to it, provided that it was made clear that the programme had called her and that she had not been the moving party. 6 Within a short time the interview commenced, going to air live. It was introduced in the following manner: "Earlier we were talking about the trial that has caused a stir all over Australia, a Sydney murder trial that's caused enormous repercussions after a woman juror contacted the widow of the slain man in the question [sic]. And she told the widow by telephone that I, quote "justice was not done today." I have found that dissenting juror and she's on the line." 7 After an exchange of greetings, Mr Laws asked: "Tell me exactly how this whole thing transpired. How long did you spend deciding on what should be the outcome of the trial". 8 Thereafter, in response to a number of questions from Mr Laws the story of the jury deliberations unfolded, including disclosures that: (i) Mrs. Hansen and one other juror had not been in any doubt as to the guilt of the persons on trial; (ii) one juror had come in on the Monday morning and announced that he had made up his mind and "that was that"; (iii) she had begged the remainder of the jury not to bring in a verdict of not guilty and instead asked them to return an "undecided verdict"; (iv) they had refused to do so saying that the case had not been proven; (v) other members of the jury had swung their chairs away and had given gasps of irritation when she had been pressing her arguments; (vi) because the other juror of like mind to herself had not found it easy to talk, it had been left to her to argue their point of view; (vii) the remaining members of the jury had said that it would not be fair to anybody, and absolutely unacceptable, if they were unable to reach a unanimous verdict; (viii) they had said that if informed that they were unable to agree, the judge would have sent them back in, for weeks and weeks, and that (ix) she had eventually given in because she did not have the strength to hold out any longer, even though she had felt that justice had not been done. 9 In the course of the interview that elicited these responses, which clearly did provide information in relation to the deliberations of the jury, as that "expression" is defined in S68A, Mr. Laws asked a number of questions that could only have been understood as directed to what had happened in the jury room. For example, at one point, he asked "You must have ultimately changed your mind and gone with them?" At another point he asked "Do you really feel that you were browbeaten into making a decision that went against your conscience?" 10 In the course of this interview, an obviously distressed juror was allowed, and encouraged, to unburden her soul by revealing comprehensive details of the arguments advanced, the statements made, and the opinions expressed in the jury room. That has a particular significance because of certain evidence given by Mr Laws during the trial, which the jury obviously and correctly rejected. 11 It was his case that he believed that because the trial was at an end, and because the juror had already spoken out, admittedly to Mrs Cusumano, and mistakenly on his part to the Daily Telegraph, that he was free to approach her and to speak about the case. 12 This evidence was not challenged, and I must therefor accept that he genuinely held that belief. Ignorance of the law, however, provides no excuse. Mr. Laws admitted, in the course of the sentencing proceedings, that among the materials prepared by Radio Station 2UE for its staff that had been produced in the course of the contempt proceedings later mentioned, was information that would have alerted him to the breach, had he been aware of it. He said that he was not, however, aware of the warning which it contained. 13 Ignorance in relation to such a fundamental matter does not reflect well upon his professionalism. By reason of his position of influence and the potential size of his audience he should have been aware of the constraints upon the reporting of, or commentary in respect of criminal trials, including the requirements of the Jury Act. 14 What I do not accept, and what the jury also did not accept, was the explanation that Mr Laws advanced, to the effect that he was not "in the slightest interested in what went on in the jury room". Rather, he said, he was interested "simply in how she (Mrs Hansen) was feeling about the situation", and in what had "happened in her mind" after the deliberations were concluded, which had caused her to be as distressed as she was. Further, he suggested that he had asked questions of her because he had felt that this "would help her placate herself", and that he had considered himself to be talking to "her on a personal level". 15 In giving these somewhat extraordinary answers I have reached the conclusion that Mr Laws was dissembling, as did the jury. It beggars belief to suggest that his purpose in speaking to Mrs Hansen was one that was simply designed to help her, as a friend, to overcome her distress, when he did so on air in front of his large radio audience. Equally, it beggars belief to suggest that he was not interested in what had gone on in the jury room, but was concerned only with the events afterwards that had caused her such distress, or with her current state of mind. 16 The context in which the interview occurred, and the role which he saw for his program, which he described as a mix of entertainment, information and discussion on current affairs, puts the lie to that, as does the structure which the interview took and the very questions asked. 17 The topic was, on his own account, a major news story and one in which there was "considerable public interest". The controversy in relation to the fact of acquittal had been ventilated in the Daily Telegraph and in the Alan Jones programme, and the fact that one juror, at that stage unidentified, had been unhappy with the decision, and had phoned Mrs. Cusumano to convey her regrets, had emerged. 18 Into Mr Laws lap then fell the name of that juror, and the news that she was a longstanding friend. For a broadcaster, journalist or entertainer, into whichever category Mr Laws would prefer to place himself, this was manna from heaven, but only if it could be used. It potentially opened up the doors to the jury room and to the way in which the jury had assessed the evidence and had reached a verdict that was controversial. Mr. Laws elected to go ahead, without seeking advice from anyone, even though it was immediately available and even though he had time to reflect. 19 The context in which the interview occurred of itself throws obvious doubt upon the credibility of the evidence that he gave as to his purpose in making the request. However, if doubt remains, then it is removed unequivocally by the manner in which the interview proceeded. Beyond any shadow of doubt Mr. Laws' interest was in the way in which the jury had reached their verdict, and in particular how it was that Mrs Hansen had been browbeaten into agreeing with, and in allowing the return of a verdict in which she did not believe. 20 Had the explanation advanced by Mr Laws been truthful, then it might have been expected that he would have stopped Mrs Hansen discussing the events in the jury room, as he had done when she began to speak of the sentence that might be imposed upon the third man. Also it might have been expected that he would have asked questions in relation to her discussions with Mrs Cusumano. Neither occurred. 21 Had his concern been with Mrs Hansen's welfare, as a friend, then he might have been expected to have phoned her during a news break, or at the end of the programme at midday, or had his wife do that. Neither occurred. 22 Mr Laws is not to be additionally punished for going to trial, or for dissembling in relation to this aspect of the trial, which was a matter of some importance since it had a potential relevance, so far as the element of mens rea was concerned. His evidence does, however, say something as to whether he even now fully appreciates the criminality of his conduct, or is as contrite or remorseful as his expression of regret, if mistaken as to the law, would indicate. 23 The offence of which Mr Laws has been convicted was inserted into the Jury Act in 1987, although initially in somewhat more restrictive terms so far as the intention to obtain information had to be for "inclusion in any material to be published or in any matter to be broadcast". That amendment followed not long after the Murphy trial, the only other occasion on which Mr Laws had attempted to interview a juror or jurors. The broadcasting limitation was removed by amendment in 1997, at which time the maximum penalty for the offence, on indictment, was increased to imprisonment for 7 years. That amendment came into effect on 1 July 1998, barely a month before the offence of which Mr Laws has been convicted. 24 The increase in penalty marks the seriousness with which the Legislature regards intrusion into the sanctity of the jury room. Section 68A takes its place alongside a number of other provisions designed to preserve the anonymity of jurors, the disclosure of their deliberations and the security of their employment while serving as jurors. 25 The system of trial by jury is of long antiquity and it is a bulwark of the common law system of criminal justice. The impenetrability of the veil of secrecy that attends to the deliberative process is also of long standing. Something of a distinction has, however, been drawn between inquiry into events extrinsic to jury deliberations that may give rise to an irregularity in a trial, such as the discovery that inadmissible and prejudicial material had found its way to the jury room, and inquiry into the deliberations themselves. 26 While allowing inquiry into extrinsic events, the Courts have steadfastly refused to entertain inquiries or appeals, based upon supposed irregularities in the deliberations: Ellis v Deheer [1922] 2 KB 113 AT 121; Emmett and Masland [1988] 14 NSWLR 327; Rinaldi and Kessy [1993] 30 NSWLR 605; Minarowska and Koziol [1995] 83 ACrimR 78; Slater NSWCCA 20 July 1994; and Herring NSWCCA 24 November 1998. As the Privy Council pointed out in Lalchan Naman v The State (1986) AC 860 at 870 - 871, this principle can be traced back at least as far as the decision of the Court of Queens Bench in Wooler (1817) 6 M & S 366; 105 ER 1280, and it has been confirmed on many occasions. The principle then stated and consistently reaffirmed since, came to be known as Lord Mansfield's rule and it has been justified on grounds of public policy, to ensure freedom of debate among jurors and finality of verdicts. 27 When introducing the amendment contained within S68A, in its earlier form, the Honourable Terry Sheahan MLA (as he then was) observed, in the Legislative Assembly: "….The common law gives inadequate guidance as to the circumstances in which disclosure or publication of jury room deliberations is permissible. In fact, the duty to keep jury deliberations secret is a convention or rule of conduct rather than a rule of law. However, the courts have consistently and strongly encouraged and guarded the secrecy of jury room deliberations by making it extremely difficult for evidence of those deliberations to be used as a basis for appeal. They have done so to protect two fundamental principles. The first of these is the need to ensure the finality of the jury's verdict, and the second is to protect jurors from harassment and pressure to explain reasons for their verdict, or to alter their view. If those principles are not protected, then jury deliberations would become the constant subject of public investigation, to the detriment of freedom of debate and discussion in the jury room, and thus to the jury system itself. Without the protection of secrecy, people would be discouraged from serving on juries or, if empanelled, from reaching a proper verdict. Secrecy enables juries to deliver unpopular verdicts uninhibited by fear of community reaction. Exposure of jurors' deliberations inevitably undermines public confidence in trial by jury and could eventually lead to the destruction of the jury system." 28 Prior to the enactment of a similar prohibition to that created by S68A of the Jury Act the Supreme Court of Victoria in Gallagher Supreme Court of VIC Full Court 7 October 1985, categorised any attempt to ascertain jurors' views about a trial as "thoroughly mischievous". In the Prothonotary v Jackson [1976] 2 NSWLR 457 the Court of Appeal in this State similarly made it clear that such an attempt should be frowned upon, and would justify a reprimand of the solicitor defendant in that case for his conduct in making inquiry of several jurors, concerning their assessment of the trial on which they had been serving before they had been discharged. 29 Former jurors do remain individually free to disclose details concerning jury deliberations after their verdict has been given (but not before then, by reason of S68B) provided that they do so of their own volition, and without any request or solicitation from another. Such an unsolicited disclosure on their part does not, however, give rise to any waiver of the prohibition, nor does it permit others to approach either them, or the remaining members of the jury panel, for their views. The prohibition remains for the benefit of the entire class of serving, former or prospective jurors in order to preserve their anonymity, and to discourage exposure to inquiry of the kind that is likely to result in public criticism or ridicule for the opinions that they may have advanced. 30 The nature of jury duty requires this to be so, since jurors are brought together by compulsion to perform a public duty which can sometimes be difficult and require courage, particularly when their decision is likely to be unpopular with some members of the community, or risks being politically inconvenient. The pressures upon a jury can be substantial and the qualities demanded of its members will not be promoted or safeguarded if inquiries are later permitted which will reveal how divergent views and opinions were melded into a final unanimous verdict; Papadopoulos (1979) 1 NZLR 621. 31 An understanding of the principles behind the legislation removes, forever, the suggestion that an infringement of the Section is a matter of little moment. On the contrary, the provision exists to protect a significant aspect of the jury system, and as the Court of Criminal Appeal cautioned in Rinaldi and Herring, those who question jurors about matters which have occurred within the jury room, whether they be lawyers, police, court officials, journalists or other members of the public, run the risk of prosecution. 32 Possible competing interests of freedom of speech and of disclosure in the public interest, were considered and rejected when the legislation was enacted, the only exception allowed having been that which permits inquiry, authorised by the Attorney General ,for the purpose of research into the jury system. The fact of public controversy, or of public interest in the verdict and its aftermath, cannot be seen, in those circumstances, as having reduced the objective criminality of Mr Laws. 33 Although I must accept, upon the evidence before me, that Mr Laws fell into a breach of the law as a result of ignorance, it was nevertheless a serious, and unprofessional breach. The effect was to place before a significant radio audience the innermost details of the deliberations of the jury in the Cusumano trial. Those disclosures were apt to attract the very vice which the provision was designed to meet, namely public stricture and criticism of those jurors who had returned an unpopular verdict, as well as criticism of Mrs Hansen herself for not having stood firm and acting according to her conscience and belief. 34 Had there been evidence to suggest that Mr Laws acted knowingly and defiantly in breach of the section, then I would have had no hesitation in imposing a sentence that involved a significant period of full time custody. As I am not persuaded to that view, and as this is the first prosecution of its kind, the sentencing exercise is attended by some difficulty. 35 Mr Laws, now aged 65 years, is a person who is very much an establishment figure within the radio and television industry, of which he has been a member for a period approaching 50 years. He attracts an enormous audience, and as such he has a responsibility to do what he does correctly. On the other hand, when he stands for sentence in a matter such as this he is entitled to the benefit of his reputation and of his history of success built up over almost a half century of work. 36 He has one prior conviction for contempt of Court, when he was fined $50,000, in 1998, for an on-air observation made on 22 February 1996, critical of an accused facing trial: Attorney-General for the State of NSW v Radio 2UE Sydney Pty Ltd and John Laws NSWCCA 11 March 1998. Otherwise his record is free of criminal convictions. 37 The problem which confronted the Court of Appeal in selecting a suitable penalty, when dealing with the earlier contempt, is duplicated for me. It is obvious that Mr Laws is well able financially to pay a substantial fine, yet I do not consider that a fine, even up to the maximum available for the offence of $110,000 (S15(2) Crimes (Sentencing Procedure) Act 1999), would of itself provide sufficient by way of personal or general deterrence or by way of punishment for this offence. 38 The Crown has submitted that, having regard to the maximum penalty prescribed by the legislature, and the need for general deterrence, it is not appropriate to deal with the matter by way of a fine or bond, or even by way of a suspended sentence. Rather, it submits that a sentence should be imposed that provides for a term of imprisonment, although it recognises that it may well be appropriate for such a sentence to be served other than by way of full time custody. One possible option that exists in this regard is that of periodic detention. Another option is that of home detention. A third option that does not, however, have any custodial component, is that of community service. 39 Mr. Terracini SC submits that the matter should be dealt with by way of a fourth option, namely a bond to be of good behaviour, if need be for the maximum five year period that is available. 40 An assessment has been provided by the Probation and Parole Service certifying the availability of positions for periodic detention and for community service, and of Mr. Laws' suitability for those two options. As I do not consider the case appropriate for home detention, the Service has not been asked to provide a report in relation to it. 41 The option of community service I regard as inappropriate for the present case. Mr Laws already serves the community both as a benefactor and otherwise. What other service he might provide, at his age and in his position, whether it would provide any real deterrent, and whether it would be attended to by such a degree of media intrusion as to disrupt the programme for himself and for others, remain sufficiently dubious for that option to be set aside. In coming to this conclusion, I also take into account the fact that the maximum number of hours of community service that can be ordered is 500 hours (S90 Crimes (Sentencing Procedure) Act 1999), and the further fact that although conditions can be imposed, it is not possible to impose a condition requiring a payment of money (S90(1)). 42 Having regard to the objective seriousness of the offence, and taking into account the subjective circumstances noted, and the need for a sentence that will provide both for personal and general deterrence, I am of the view that a bond to be of good behaviour by itself is insufficient, and that a sentence providing potentially for Mr Laws to serve a sentence of imprisonment is required. 43 I next address the question that arises as to the manner in which it should be served. I am not persuaded that a sentence of full time custody is appropriate. It has been accepted that both periodic detention and home detention are less rigorous and demanding options, although each can impact significantly upon the liberty and ordinary affairs of life of an offender. Their comparative leniency was noted, in so far as periodic detention is concerned in Niga NSWCCA 13 April 1994 and Hallacoglu [1992] 29 NSWLR 67 per Hunt CJatCL at 73. The leniency of home detention was noted in Jurisic [1998] 45 NSWLR 209 per Sully J at 246-249, and see also the judgment of Spigelman CJ at 214 to 215; in Pine NSWCCA 4 March 1998, and in Bryne NSWCCA 5 August 1998. 44 After careful consideration, I am not persuaded that either is the appropriate option for this case. By reason of Mr Laws' high profile and his well known stand on issues of law and order, I believe that he would face a significant risk of personal injury or worse if sentenced to periodic detention, a form of imprisonment that does not allow for segregation other than from those inmates who are serving full time sentences. 45 Home detention would risk attracting the derision of the community, and provide a juicy subject for lampoon by cartoonists and columnists, which would threaten respect for the law. Moreover, in Mr Laws' case, it would not provide much by way of punishment or deterrence, since he would no doubt be able to continue his radio and TV work from home, to entertain his guests there, and to maintain the comfortable lifestyle to which he is accustomed. The only significant restraint on his activities would be on his freedom to travel, and to attend social functions away from his home. 46 As I review the matter, the most significant consequence for Mr Laws arising out of this case, lies in the public humiliation of having been placed on trial, and of now having a conviction upon indictment recorded against his name, which may potentially affect his employment and sponsorship contracts, and which may interfere with his capacity to serve as a Company Director. Additionally it may make it more difficult for him to obtain a visa for some countries, or at least involve him in the embarrassment and delay of interview by consular officials. 47 What is required in this case by way of punishment, in addition to the bare fact of conviction, is a sentence that provides an effective element of deterrence for him and for others in his position. That can best be achieved, to my mind, by the imposition of a sentence of imprisonment that is suspended conditionally upon him entering into a bond to be of good behaviour. Had I power to impose an additional requirement that called for the payment of a fine, then I would have included an obligation to that effect in the conditions of the bond. Unfortunately, by reason of S95(c)(ii) of the Crimes (Sentencing Procedure) Act 1999, I am unable to do so. 48 Richard John Sinclair Laws, for the offence of which you have been convicted I accordingly sentence you to imprisonment for fifteen months, the execution of which is to be suspended for that period, upon condition that you enter into a bond to be of good behaviour for a like period of fifteen months. The bond is to include the conditions stipulated in S95 of the Crimes (Sentencing Procedure) Act. For the reasons outlined, I do not impose any additional conditions. 49 You need to understand that if you fail to comply with the conditions of the bond which require you to be of good behaviour for fifteen months from today, to inform the Principal Registrar of this Court of any changes in your residential address, and to appear before the Court if called upon to do so, then this Court will have no alternative other than to revoke the order for suspension unless you are able, when called up, to satisfy it that any failure to comply with the bond was trivial in nature, or that there were good reasons for such failure. If the order is revoked then the Court has power upon call up, and after hearing from you, to determine that the term of imprisonment I have stipulated be served by way of full time custody, periodic detention, or home detention, as the circumstances may then justify. 50 As was made plain in the second reading speech on 30 November 1999, when the option of suspended sentences was reintroduced in this State, and as had earlier been made plain by Muirhead J, in The Queen v William Darcy (1980) 50 FLR 57, their purpose is to convey the seriousness of the offence and the consequences of re-offending to the offender, while also providing him or her with an opportunity to avoid the consequences by displaying good behaviour, and by not repeating the relevant breach of the law or any similar breach of the law. The message conveyed should be clear to you, and to all others in your position, that a term of imprisonment is a real option for any interference with the sanctity of the system for trial by jury. ********** Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.