Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Petroulias v The Hon Justice McClellan [2013] NSWCA 434 Hearing dates: 2 August 2013 Decision date: 18 December 2013 Before: Bathurst CJ at [1]; Beazley P at [2]; Basten JA at [6] Decision: (1) Dismiss the summons in the Court of Appeal. (2) To the extent that there was an application for reconsideration to the Court of Criminal Appeal, dismiss the application. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - alleged improper conduct by jurors - application to Sheriff to investigate - refusal by Supreme Court to approve request for investigation - whether judicial or administrative function - whether judge required to give reasons CONSTITUTIONAL LAW - conviction for federal offence - alleged misconduct of jurors - whether Sheriff can investigate under State law - whether power within scope of jurisdiction conferred by Constitution, s 80 - whether provisions of Jury Act 1977 (NSW) inconsistent with federal law CRIMINAL LAW - federal offence - control of jurors - post-trial request to NSW Sheriff to investigate improper conduct of jurors - undetermined appeal extant - whether approval/refusal of investigation ancillary to exercise of judicial function - whether exercise of appellate federal jurisdiction STATUTORY INTERPRETATION - whether statute creating offence in relation to soliciting information from juror displaces general law prohibition - power of Sheriff to investigate jury irregularities - Jury Act 1977 (NSW), s 68A and 73A - whether evidence of irregularities admissible on appeal Legislation Cited: Constitution, ss 77(iii), 80 Criminal Appeal Act 1912 (NSW), ss 3, 5, 12, 22 Judiciary Act 1903 (Cth), ss 39, 68, 79, 80 Jury Act 1977 (NSW), ss 55DA, 68, 68A, 68B, 68C, 73A Supreme Court Act 1970 (NSW), ss 17, 48, 69, 101 Cases Cited: Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588 Ellis v Deheer [1922] 2 KB 113 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Lodhi v Attorney General of New South Wales [2013] NSWCA 433 Minarowski and Koziol (1995) 83 A Crim R 78 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275 R v Adams (Andrew) [2007] 1 Cr App R 34 (EWCA Crim Div) R v K [2003] NSWCCA 406; 59 NSWLR 431 R v Kaddour [20014] NSWCCA 361; 61 NSWLR 378 R v Skaf [2004] NSWCCA 37; 60 NSWLR 86 Regina v Mirza [2004] 1 AC 1118 Smith v State of Western Australia [2013] WASCA 7 Tuia v R [1994] 3 NZLR 553 Texts Cited: Hansard, Legislative Assembly, 27 October 2004 at 12096 Category: Principal judgment Parties: Nikytas Nicholas Petroulias (Applicant) The Hon Justice Peter David McClellan (First Respondent) Attorney General for the State of New South Wales (Second Respondent) Representation: Counsel: Mr G R James QC/Mr W Chan (Applicant) Ms N A Adams SC/Ms J E Davidson (Respondents) Solicitors: Self-represented (Applicant) I V Knight (Respondents) File Number(s): CA 2012/344218 Application for Review Court / Tribunal: Supreme Court Before: McClellan CJ at CL Date of Decision: 13 October 2010 Judgment 1BATHURST CJ: I agree with Basten JA. 2BEAZLEY P: I have had the opportunity of reading in draft the judgment of Basten JA. I agree with the conclusion of his Honour at [57] and his reasons for reaching that conclusion. I also agree that the application before the Court should be dismissed. 3I wish, however, to make the following short observations. Basten JA, at [15]-[30], has expressed a preference for the view that McClellan CJ at CL, in refusing the applicant's request for an investigation under the Jury Act 1977, s 73A was undertaking a judicial function. In this regard, his Honour has indicated, at [26], that the power exercised by his Honour arguably fell within the powers conferred by the Criminal Appeal Act 1912, s 12. Section 12 makes provision for the supplemental powers that may be exercised by the Court of Criminal Appeal. Section 22(1) provides that the powers conferred by s 12 may be exercised by a judge sitting alone. 4The powers conferred by s 12 include: the power to order the production of any document, exhibit, or other thing connected with the proceedings: para (a); and the power to order persons who would have been compellable witnesses at the trial to attend and be examined: para (b). However, the exercise of such powers is different from the function of the judge under s 73A, as is apparent from the terms subs (1), which provides: "73A Investigation by sheriff of jury irregularities (1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation." 5In my opinion, the function of a judge under by the Jury Act, s 73A does not readily fall within the supplemental powers of the Court of Criminal Appeal contained in s 12. If I am correct in this, the consent or direction given by a judge under s 73A does not bear the hallmarks of a judicial function. However, as the proper outcome in this case does not necessarily require that the nature of the decision be classified as either judicial (or incidental to the judicial function) or administrative, I do not express a final view on that question. 6BASTEN JA: In December 2007 the applicant, Nikytas Nicholas Petroulias, was found guilty of two offences under the Crimes Act 1914 (Cth). The trial was conducted in the Supreme Court, before Johnson J and a jury. Because the offences arose under a law of the Commonwealth, the Court was exercising federal jurisdiction. 7On 20 June 2008 the applicant was sentenced by Johnson J to an overall term of imprisonment of three years and two months commencing on 20 June 2008 and expiring on 19 August 2011. A non-parole period of two years was fixed, which expired on 19 June 2010. 8Although the sentences have now been served, the applicant's application for leave to appeal to the Court of Criminal Appeal has yet to be heard. (This Court is not apprised of the reasons for that extraordinary delay.) Application for investigation of conduct of jurors 9On 24 March 2009 the applicant's solicitors received a letter from the Commonwealth Director of Public Prosecutions attaching a copy of an internet blog which appears to have commenced at the time of the applicant's conviction and continued until 28 August 2008. In printed form, it extends over some 30 pages. It contains material which, in part, purports to reflect a discussion of the merits of the convictions, some of the views purporting to be from persons on the jury. (Part of the material related to the sentencing proceedings and part to an entirely different case.) 10Some 17 months after receiving that letter, on 19 August 2010, the solicitor for the applicant wrote to the Sheriff requesting him to investigate whether there had been improper conduct by members of the jury, pursuant to s 73A of the Jury Act 1977 (NSW). The Sheriff is empowered to take such a step, but only with the consent of or at the request of the Supreme Court (or District Court). On 5 October 2010 the Sheriff wrote to the Registrar of the Supreme Court, asking if the Court wished the Sheriff to investigate. On 13 October 2010 the Registrar replied in the following terms: "The Chief Judge at Common Law has considered the matters raised in your letter and the related documents provided. He determined not to request an investigation in this matter." 11On 16 November 2010 the applicant wrote to both the Registrar of the Court of Criminal Appeal and to the associate to McClellan CJ at CL seeking confirmation of the decision and asking whether there would be "reasons for the decision". On 24 November the Registrar replied confirming the decision not to request an investigation and stating that the Chief Judge had not given reasons. 12On 9 February 2011 the applicant commenced proceedings in the Common Law Division, naming the Chief Judge as the defendant, and seeking an order quashing his decision not to consent to an inquiry, seeking a declaration that there was reason to suspect that the verdict may have been affected by improper conduct by the jury and, finally, an order that the Sheriff conduct such an investigation. (It is not necessary to inquire whether the defendant was properly named: no doubt to name the institution, the Supreme Court, would have highlighted the jurisdictional difficulties faced by the applicant.) 13Although, in analogous circumstances, an application to review what was taken to be an administrative decision by the head of a jurisdiction, was brought by way of judicial review before a single judge of the Court, at least in this Court, such a process is inapt: cf Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588. (No doubt reflecting older understandings of the availability of judicial review, s 48 of the Supreme Court Act 1970 (NSW) does not provide for proceedings relating to a decision of a judge of the Court, but the structure of the Court makes it apt for the proceedings to be heard in the Court of Appeal.) The proceedings were ultimately removed to this Court. They were listed for hearing with another matter raising similar issues, judgment in which is to be handed down contemporaneously with this judgment: Lodhi v Attorney General of New South Wales [2013] NSWCA 433. 14The two cases involve a number of common issues. There are, however, two respects in which the cases are materially different. First, Mr Lodhi had exhausted his rights of appeal. He was dependent upon an exercise of executive discretion, or a further non-judicial inquiry, in order to maintain proceedings which could affect his convictions and sentences. The applicant still has an appeal on foot, unresolved, in the Court of Criminal Appeal. Secondly, Mr Lodhi's concern related to the eligibility of a member of the jury who may have suffered from a disabling mental condition. An investigation into that matter required no reference to the deliberations of the jury, nor to the possible consequences of the disability, if shown to have substance, on the actual deliberations. By contrast, the investigation sought by the applicant is primarily directed to the conduct of the jury during the trial and in the course of deliberations. These factors raise issues which did not need to be addressed (and were not addressed) in the matter of Lodhi. Nature of decision under s 73A 15The submissions of the parties proceeded on the basis that it was necessary to characterise the power being exercised by McClellan CJ at CL as either judicial or administrative. If it were judicial, it was assumed that it was either part of or "incidental to" the criminal proceedings which involved an exercise of federal jurisdiction. In that event, the law to be applied was federal law, which included State laws relevantly picked up for the purpose by s 68 of the Judiciary Act 1903 (Cth). The question then was whether those laws included s 73A of the Jury Act. In the event that there was an exercise of federal jurisdiction and it included the consideration of powers conferred by s 73A of the Jury Act, the next question was whether this Court could, in the exercise of judicial review pursuant to s 69 of the Supreme Court Act, consider the correctness of the decision of a judge of the Court not to request an investigation. 16If the power conferred by the Jury Act were merely administrative, and McClellan CJ at CL was exercising such a power, but not in his judicial capacity, different questions arose. The provisions of the Judiciary Act did not render s 73A applicable with respect to the exercise by the jury of its functions under federal law. (A non-judicial power will not engage the legislative power of the Commonwealth under s 77(iii) of the Constitution to invest a State court with "federal jurisdiction", which is the provenance of ss 39(2), 68, 79 and 80 of the Judiciary Act.) Thus, absent any federal law picking up s 73A, the next question is whether such a provision of State law could operate of its own force with respect to a determination made in the exercise of federal judicial power. 17The engagement of the Sheriff to conduct investigations into allegations of jury misconduct was not a function which commenced with the enactment of s 73A, in 2004. That is illustrated by the judgment in R v Kaddour [2004] NSWCCA 361; 61 NSWLR 378. In that case the applicant sought to identify a juror as a person who knew him and held adverse views regarding his character and reputation: at [2] (Spigelman CJ). Certain inquiries were made by the Sheriff, who supplied information to a single judge in the Common Law Division (Dunford J). Dunford J refused the applicant's request that the material obtained by the Sheriff be disclosed to the applicant, a course which Dunford J held was precluded by s 68 of the Jury Act. (There was no discussion as to whether Dunford J was sitting as a judge of the Court of Criminal Appeal when he made the order.) The report describes the proceedings as an appeal from a decision of Dunford J. Spigelman CJ held that s 68(4) of the Jury Act "limited as it is to contempt and an offence relating to a jury, does not encompass the full range of circumstances in which the identity of the juror can give rise to the need for disclosure in order to prevent a miscarriage of justice": at [22]. 18The source of the Sheriff's power of inquiry and report was not discussed, but it may be an implied power necessary for the proper administration of criminal justice through trial by jury. Thus it may be inherent in the concept of a jury trial provided for in federal jurisdiction by s 80 of the Constitution. If the power is not at least incidental to the exercise of federal jurisdiction there is no evident basis (none was identified by counsel) to apply a State law to affect a conviction made in federal jurisdiction. A State law cannot alter, impair or detract from the operation of the law of the Commonwealth supporting the conviction: Constitution, s 109. On the other hand, the power exercised by the Sheriff only impairs the privacy of jurors; any effect given to the consequent report will occur in the exercise of judicial power. Similarly, any direction (or consent) given to the Sheriff will not affect the prior exercise of federal jurisdiction. 19Secondly, while this Court might have judicial review jurisdiction, under s 69 of the Supreme Court Act, to police the constitutional limits of the State Supreme Court, and to set aside any decision made by a judge in excess of power - compare Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 - if s 73A were an available source of power as State law, the question is whether, under s 69, this Court can review a decision of a judge of the Court made in the exercise of an administrative function. (A similar question was referred to, but not resolved, in relation to an application for executive clemency, in Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275 at [47].) 20In Momcilovic v The Queen [2011] HCA 34; 245 CLR 1, the High Court considered the nature and validity of a power conferred on the Supreme Court of Victoria by the Charter of Human Rights and Responsibilities Act 2006 (Vic) to make a declaration of inconsistency with respect to a statutory provision and its compatibility with identified human rights and freedoms. The Court divided as to the proper characterisation of such a power and as to its validity. French CJ (with whom Bell J agreed) concluded that the function was neither a part of the judicial function nor was it incidental to the exercise of judicial power: at [89] and [91]. Nevertheless, that conclusion was found not to be fatal to its validity because of incompatibility with the institutional integrity of the State court: at [92]. As it did not involve an exercise of judicial power, the Chief Justice held that the provision was not picked up by s 79 of the Judiciary Act: at [100]. He continued at [101]: "Accepting the validity of s 36, there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction in this case, could not proceed to exercise the distinct non-judicial power, conferred upon it by s 36, to make a declaration of inconsistent interpretation" 21Gummow J (with whom Hayne J agreed) held that the power did not involve an exercise of the judicial function, nor was it incidental to the exercise of strictly judicial powers: at [184] and [187]. Gummow J considered that it was incompatible with the exercise of judicial power by the State Supreme Court and was, therefore, invalid: at [188]. Heydon J agreed, though for somewhat different reasons, that s 36 was invalid. 22Crennan and Kiefel JJ concluded that, whilst the power was not strictly judicial, it was to be exercised as an incident of judicial power: at [592]. They further considered whether it might yet involve a function "so incompatible with the exercise of the judicial power of the Commonwealth that the integrity of the judiciary may thereby be diminished": at [595], paraphrasing the judgments of Toohey, Gaudron and McHugh JJ in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51. They rejected that argument. 23No question of incompatibility was raised in the present case. Nor was the reasoning in Momcilovic directly applicable: the question of whether the function was incidental to an exercise of judicial power was to be assessed, not by reference to the conduct of the trial, but by reference to the extant and unresolved appeal. 24In a letter of 16 November 2010 to the Registrar, Court of Criminal Appeal, the applicant stated: "As you will be aware, I am preventing [sic] from finalising the submissions and obtaining a date for the appeal because a fundamental aspect to it is the evidence that arises of jury misconduct from the 'jury blog'. I attach a fax letter to the Associate of McClelland J [sic] seeking necessary information for pursuing the next step in obtaining such information. I cannot further the completion of the submissions until this fundamental issue is exhausted. The delay this is unfortunately, disadvantageous to me alone." 25It may be inferred from this material that the applicant intended to place the outcome of any investigation undertaken by the Sheriff before the Court of Criminal Appeal in support of his application for leave to appeal under s 5 of the Criminal Appeal Act 1912 (NSW). The nature of the request was therefore analogous to a request to issue a subpoena or notice to produce in the course of proceedings. Accordingly, the applicant submitted, the refusal by the Chief Judge was an interlocutory decision in those proceedings. That was said to have two consequences: first, the Chief Judge should have given reasons for his refusal, when requested to do so. Secondly, the applicant had a right of appeal, albeit by leave, to the Court of Appeal. That was because, although the refusal was incidental to the exercise of appellate jurisdiction in a criminal matter, it was a decision of a judge of the Court in a Division, for the purposes of s 101 of the Supreme Court Act, and was not excluded from the operation of the Act as a criminal proceeding referred to in s 17 of the Act and in the Third Schedule. 26The first step in relation to the asserted right of appeal to this Court is doubtful: if an interlocutory step were being undertaken in relation to a criminal appeal, it would seem that the judge was exercising a jurisdiction incidental to that appeal and was not making an order of "the Court in a Division" for the purposes of s 101(1)(a). Further, because the reference in Schedule 3, paragraph (d), to "proceedings in the Court under the Criminal Appeal Act of 1912" is apt to include interlocutory decisions in the course of such proceedings, the Court of Appeal would not be the appropriate forum to hear an appeal from such decision. Although there is no express power in the Criminal Appeal Act allowing that Court to review interlocutory decisions, it is arguable that the power to request the Sheriff to conduct an inquiry falls within the powers conferred by s 12(d) of the Criminal Appeal Act and can be exercised by a judge sitting alone: s 22(1). (Thus s 12(d) empowers the Court "where any question arising on the appeal involves ... any scientific or local investigation, which cannot ... be conveniently conducted by the court [to] refer the question for inquiry and report to a commissioner appointed by the court...".) Section 22(2) provides that "[i]f the judge refuses an application on the part of the appellant to exercise any such power in the appellant's favour, the appellant is entitled to have the application determined by the court", namely the Court of Criminal Appeal, constituted by three judges, pursuant to the Criminal Appeal Act, s 3(1). 27Assuming that the refusal to order an investigation, under s 73A was made by the Chief Judge as a judge of the Court of Criminal Appeal, that decision was subject to reconsideration by the Court of Criminal Appeal: Criminal Appeal Act, s 22(2). Against the possibility that this Court might be required to exercise such jurisdiction, the members of the Court were appointed to constitute a Court of Criminal Appeal for the purposes of the hearing, as noted by the Chief Justice (Tcpt, 02/08/13, p 2(10)). 28Assuming that the power to order (and refuse to order) an investigation was incidental to an extant appeal, there is no reason to suppose that the power to make such an order was not picked up and applied in federal jurisdiction by s 68(2) of the Judiciary Act. The same principle would apply to the exercise of jurisdiction by this Court, which was otherwise exercising federal jurisdiction in any event, because of an argument by the applicant that the inquiry was necessary in order to satisfy the requirements of s 80 of the Constitution. 29If McClellan CJ at CL were indeed exercising judicial power, albeit in respect of an interlocutory application, he should have given reasons for his decision, once it was clear that the applicant was seeking reasons. However, it does not follow that his decision should be set aside if it were held to be correct in any event. 30Although the process before this Court was not as clearly identified as in Lodhi, the appropriate course to be taken in these circumstances is for this Court to exercise its powers as the Supreme Court, for the purposes of s 73A of the Jury Act, or as the Court of Criminal Appeal, if indeed the interlocutory order were one made in the exercise of that jurisdiction. On either view, it is necessary to consider the merit of the application, as has been done in Lodhi. Nature of application 31It is convenient to start with a brief reference to the general law principles which apply to the conduct of jurors during the course of a criminal trial. They were helpfully summarised by Gleeson CJ (James and Ireland JJ agreeing) in Minarowski and Koziol (1995) 83 A Crim R 78. That case, which like the present, lasted for several weeks, resulted in the appellants being convicted of possession of not less than the trafficable quantity of heroin. As explained by the Chief Justice, the grounds of appeal had "nothing to do with the respective merits of the Crown and defence cases": at 79. Rather, three incidents were relied upon as demonstrating a miscarriage, two of which came to the attention of the Court during the course of the trial. The first two incidents involved casual conduct between a juror and a person associated with the prosecution: the contact was found to be harmless. 32The third came to attention only after the trial was completed, when police, a solicitor instructing the prosecutor and the prosecutor himself were party to a conversation with three jurors in which they were told that a juror, wanting to understand better the nature of an unsworn statement and why the accused were not cross-examined on it, had obtained and taken into the jury room a magazine article which explained such matters, and was critical of the use then made of unsworn statements. Of this incident Gleeson CJ stated at 84: "Leaving to one side the hearsay nature of the evidence upon which the appellants rely, which is not a point taken by the Crown, the appellants are confronted by a difficulty arising out of the principles which govern the approach taken by appellate courts towards attempts to prove matters relating to the deliberations of a jury. It is settled law that after a jury's verdict has been formally delivered a juror may not seek to impugn the verdict. ... As the above passages show, the considerations of the need to preserve the findings of verdicts and the need to protect the secrecy of jurors' deliberations (which involves the encouragement of frank discussion between jurors, and protects them from intimidation and harassment during and after the trial) are distinct but interrelated, and the refusal to allow a juror to impugn a verdict after it has been delivered is only one aspect of a wider principle .... The principle, based upon considerations of public policy, that a court will not receive from a juror evidence of what was discussed between jurors in the course of their deliberations, cannot be circumvented by tendering evidence of a hearsay measure, being evidence of what a juror has said about a juror's deliberations to a third party." 33The Chief Justice continued at 85: "A distinction has been drawn between evidence, first-hand or hearsay, as to the deliberations of a jury and evidence, sometimes described as relating to 'extrinsic matters', which proves a material irregularity in the proceedings. Thus, for example, it is permissible to lead evidence to show that inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury (Rinaldi (1993) 30 NSWLR 605 ...), or that a sheriff's officer wrongly intruded into the jury's deliberations and expressed a view that the accused were guilty (Emmett (1988) 14 NSWLR 327 ...), or that a jury bailiff suggested to a jury that an accused had previous convictions (Brandon (1969) 53 Cr App R 466), or that a juror was drunk, or could not speak English, or refused to participate in deliberations (Tuia [1994] 3 NZLR 553)." 34Gleeson CJ noted that "the dividing line between proof of a jury's deliberations and proof of an irregularity in the proceedings may, as the present case illustrates, be difficult to draw". 35It is convenient to refer to Tuia v R [1994] 3 NZLR 553. The judgment of the New Zealand Court of Appeal (constituted by McKay and Tipping JJ and Sir Gordon Bisson), delivered by Tipping J, explained the issue in the following terms: "The appellant killed his wife. He was tried for her murder and found guilty. The jury did not accept his plea of insanity. One of the medical witnesses, Dr French, brought with him to court the appellant's medical records in the form of two linked files totalling over 100 pages. The file ... contained a comprehensive day-by-day record of the appellant's diagnosis, progress and treatment during his time in hospital after the killing. It also contained notes of what the appellant had said to various people. The file was not produced as an exhibit for obvious reasons. It was, however, left behind in court by Dr French in case any subsequent medical witnesses wished to refer to it. When the jury retired to consider their verdict the file went by mistake with the exhibits into the jury room. It was available to the jury throughout their deliberations .... The fact that the file had been in the jury room did not come to light until a day or so after the verdict had been delivered. The matter was mentioned by a juror to her neighbour. The point was then brought to the attention of the court. The information presently available does not enable this Court to decide whether the file or any part of it was in fact read by any juror." 36The Court upheld the appeal and declined to apply the proviso, on the basis that the inadmissible material "could" have influenced the verdict. The Court considered whether there was an exception to the rule that courts not receive evidence from jurors purporting to disclose what had taken place during their deliberations, if there were a sufficiently compelling reason to do so. The question arose because the prosecutor had sought a direction from the Court authorising the jurors to be asked whether the file was in fact examined. Whilst acknowledging that such a step might be taken in an exceptional case, the Court did not consider such an investigation should be undertaken in that case. 37Section 73A is a statutory resolution of the problem and was introduced after Minarowski was determined. It was in fact introduced as part of a package of amendments, which included s 68B (prohibiting jurors from disclosing to any person during the trial information about their deliberations) and s 68C (prohibiting a juror from making inquiries which might elicit extrinsic material in relation to the case). The Second Reading Speech for the Jury Amendment Act 2004 (NSW) said the proposed legislation was a response to two major Supreme Court criminal trials in which convictions had been overturned because the verdicts of the juries had been tainted by misconduct, referring to R v K [2003] NSWCCA 406; 59 NSWLR 431 and R v Skaf [2004] NSWCCA 37; 60 NSWLR 86. As the Minister explained (Hansard, Legislative Assembly, 27 October 2004 at 12096): "There are three main legislative provisions to these amendments. Firstly, the Bill creates a new offence of jurors conducting their own inquiries. Secondly, the Bill expands the scope of the current offences of soliciting information from a juror and jurors disclosing information. Thirdly, and importantly, the Bill empowers the office of the sheriff to investigate jury irregularities and report back to the Court." 38The Act also included a new s 55DA, which allowed a judge to examine a juror on oath to determine whether the juror had engaged in conduct prohibited by s 68C. 39In R v K, Wood CJ at CL (with whom Grove and Dunford JJ agreed) stated: "54 Upon balance, I have reached the conclusion that evidence concerning the fact of the internet searches and the nature of the information which had been gathered by the three jurors who had made the search, should be received, by analogy with the cases where evidence has been received to the effect that documents, which were not in evidence in the trial, had found their way to the jury room. ... 55 I do not, however, consider, consistently with the authorities mentioned, that the Court should have regard to any discussion between jurors concerning that material, or to any evidence concerning the effect which it may or may not have had on their deliberations. To extend the inquiry that far would appear to me to offend against the long established rule, which has the support of the very important public policy considerations mentioned." 40In Skaf, the improper conduct involved two jurors visiting a park to clarify the state of the lighting after dark, which was relevant to an issue in the trial. The Court (constituted by Mason P, Wood CJ at CL and Sully J) accepted evidence of the conduct of the jurors but excluded any reference to the possible impact of the extraneous material upon the jurors' deliberative processes: at [233]. These principles were reviewed by the Court of Appeal of Western Australia in a recent decision of Smith v State of Western Australia [2013] WASCA 7 (Martin CJ, McLure P and Mazza JA agreeing), a case involving an incomplete and ambiguous note left in the jury room after the appellant was convicted. The Court did not allow the note to be tendered on the appeal to establish a miscarriage of justice; it also declined to authorise an inquiry, because that would intrude into the deliberations of the jury: at [48]. (The High Court is presently reserved on an appeal against this judgment.) 41Of importance in the present case is the change made to the law, not merely by the introduction of s 73A, but of that provision in tandem with s 68B (s 68C, relating to inquiries made by a juror is not relevant for present purposes). It is convenient to set out the terms of both these provisions. The operative provision in the second case is s 73A, which relevantly provides: 73A Investigation by sheriff of jury irregularities (1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation. (2) Section 68A(1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation. (3) Section 68B(1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation. (4) Section 139(2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official). (5) The sheriff may, despite sections 29 and 68, include a juror's name or other matter that identifies a juror in a report to the court under this section. 42As may be seen, sub-ss (2) and (3) exclude the prohibition in ss 68A(1) and 68B(1) with respect to soliciting information from a juror and a juror disclosing information, in each case by reference to the role of the Sheriff. It is convenient to set out these provisions in full: 68A Soliciting information from or harassing jurors or former jurors (1) A person must not solicit information from, or harass, a juror or former juror for the purpose of obtaining information about: (a) the deliberations of a jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest. Maximum penalty on indictment: imprisonment for 7 years. (2) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. 68B Disclosure of information by jurors etc (1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about: (a) the deliberations of the jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest. Maximum penalty: 20 penalty units. (2) A person (including a juror or former juror) must not, for a fee, gain or reward, disclose or offer to disclose to any person information about: (a) the deliberations of a jury, or (b) how a juror, or a jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest. Maximum penalty: 50 penalty units. (3) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. (4) Subsection (1) does not prohibit a juror from disclosing information to another member of the jury during a trial or coronial inquest. 43The prohibition in s 68B(1) operates only with respect to disclosure "during the trial". An inquiry authorised by s 73A may occur during a trial, but that is not this case. By contrast, s 68B(2), which covers any person, provides that a "former juror" is prohibited from disclosing the identified information "for a fee, gain or reward": it would not operate with respect to an inquiry by the Sheriff in any event. 44Section 68A was introduced in 1987, thus predating s 73A. So far as the present matter is concerned, the effect of s 73A(2) is to lift the prohibition on the Sheriff soliciting information from a former juror with respect to the deliberations of the jury. That raises two questions of immediate concern. First, was s 68A intended to codify or replace the general law prohibition, or was it intended to supplement the general law by imposing a severe penalty for contravention? Secondly, if the Sheriff has an unrestrained power to inquire into the deliberations of a jury, for the purpose of reporting to the court, does it follow that the court may (or should) take account of evidence as to the deliberations of the jury in determining an appeal in respect of which it is said that the jury has misconducted itself? 45The statutory amendments do not in their terms suggest (nor is there any support for such a proposition in the Second Reading Speech to which the Court was taken) that the general law prohibition on revealing jury deliberations was to be cast aside when the court thought it appropriate to investigate improper conduct on the part of a juror or jurors: such a result should not be adopted absent a necessary implication. In Ellis v Deheer [1922] 2 KB 113, Bankes LJ stated (with the express agreement of Atkin LJ) at 117-118 that: "...The court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself. It has for many years been a well accepted rule that when once a verdict has been given it ought not be open to an individual juryman to challenge it, or attempt to support it if challenged. I have spoken of this as a rule of law but it has also been generally accepted by the public as a rule of conduct, that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential." 46As further explained by Atkin LJ at 121: "The reason why that evidence is not admitted is twofold. On the one hand it is in order to secure the finality of decisions arrived at by the jury, and on the other to protect the jurymen themselves and prevent their being exposed to pressure to explain the reasons which actuated them in arriving at their verdict. To my mind it is a principle which it is of the highest importance in the interests of justice to maintain, and an infringement of the rule appears to me a very serious interference with the administration of justice". 47The issues raised in these statements have been extensively re-examined in the House of Lords in Regina v Mirza [2004] 1 AC 1118, partly influenced by Strasbourg jurisprudence - see, eg, at [57]. Practice in the UK has undoubtedly changed since these statements were made. Inquiries are now made of individual jurors: see, eg, R v Adams (Andrew) [2007] 1 Cr App R 34 (EWCA Crim Div) 48One might add that the policy of attaining frank and open communications between jurors is diminished, if not destroyed, not only by the court admitting evidence of those discussions (which should not happen, unless to reveal an offence or by way of similar exception), but also by public discussion by the jurors speaking either to journalists or by blogs on the internet. One juror's self-indulgent publication, without the knowledge or prior consent of each other juror, is a gross violation of this principle. It is apparently an area where civic duty, self-restraint and good sense can no longer be relied upon. However, the ill-discipline of jurors does not mean that the courts should abandon their own principle of refusing to admit evidence of what took place in the jury room by way of deliberation. 49There is no necessary implication that the enactment of s 68A was intended to diminish the jealous protection accorded by the general law to jury deliberations: indeed, the clear implication is to the contrary. The correctness of the Chief Judge's decision to refuse to request an investigation should be approached by reference to the continuing operation of the fundamental principle protecting jury deliberations from investigation by the court. The applicant's request 50The applicant sought to make much of the allegations in the internet material, as if the comments were uniformly worthy of consideration. That was self-evidently not the case. As the persons involved noted, there were only three former jurors commenting. Some of the commentary was abusive and personally derogatory; much was speculative and tendentious. It is highly unlikely that the substance, let alone the language, would find its way into an affidavit. If it did, it would be rejected. The applicant stated in his letter of 10 January 2011 to the Chief Judge's associate that there were some 11 elements of misconduct, divided into five categories. These were: "(1) a large number of jurors doodling and not paying attention to the evidence and apparently even though in favour of the adverse verdict admitted to the inattention by a core group of jurors; (2) falling asleep; (3) being distracted by overbearing home pressures; (4) being under the influence of psychotropic medication; (5) the jury was fractured such that internal in-fighting distracted from impartial consideration of the evidence ...: 51To the extent that conduct such as "doodling" was treated as a basis for the inference that a juror was not paying attention, it does not deserve further consideration. Further, the possibility that jurors should somehow be investigated for the degree of attention paid over the course of a trial lasting several weeks which occurred more than six years ago is in the realm of fantasy. It is not consistent with the conventional approach to jury conduct. 52The second complaint of falling asleep referred to the following passage in the blog: "I remember one time in the closing addresses by the judge, the [juror] was arched over with eyes closed asleep. Meanwhile Petroulias and his counsel are looking in my direction with astonishment. It took me a few seconds to realise that this [juror] was asleep. I just firmly tapped [the juror's] leg three times to wake [the juror]." 53If this incident occurred, and was noticed by counsel for the applicant, it was a matter to which the judge's attention should have been drawn at the time. It is not a matter warranting investigation now. 54The reference to a juror being distracted by "overbearing home pressures" depended upon a comment in these terms: "In regards to the sudden change in [the juror's position] and concern expressed by 'Kum Ba Yah' at the flip flop, you must remember [the juror] was too emotionally drained from [the juror's] troublesome home life to go toe to toe with the lynch mob. (btw thanks for putting me onto Bioshock - classic, a great 1st person shooter & also onto Mass Effect." There is nothing to be investigated in this speculative allegation. 55The claim that one juror was "under the influence of psychotropic medication" was supported by the following material: "By the way ... muso at one point told me that hyena had been on some medication. ... That's why [hyena] was kinda out of it. Not that [hyena] had a clue what the case was about to begin with. A monkey living on a rock would have been a more qualified juror. ... [another blogger] 'Unfortunately seems that only three of us (former jurors) are part of this Blog, I wish Hyena was tuned as well so that [hyena] would get some feedback as to [hyena's] behaviour. Definitely doing a cocktail of prescription, non-prescription non - 'over the counter' drugs .... The monkey living on a rock doing a better job as a juror is an insult - to our distant simian cousin, more like a lump of lichen living on a rock!" This material would not warrant investigation. 56The extensive reference to the manner in which the deliberations were undertaken invites an investigation of the psychological relationships between the jurors, who were no doubt of very different backgrounds from each other, and thrown together for an extended period in order to undertake a public service which may not have been entirely welcome. To conduct an investigation into such matters would merely invite the destruction of the jury system. Conclusions 57The proposed investigation was without merit. No error has been demonstrated in the decision made by McClellan CJ at CL. If, due to the lack of reasons, it were necessary to reconsider his decision, no other decision should be made. 58The summons in the Court of Appeal should be dismissed. Because, on the better view of the matter, the case should have been brought by way of an interlocutory appeal in the Court of Criminal Appeal, it is not appropriate to order costs. To the extent that there was an application for leave to for reconsideration in the Court of Criminal Appeal, it should also be dismissed, by the Court being constituted as the Court of Criminal Appeal. ********** 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. Decision last updated: 18 December 2013