High Court rules juror note about coercion is admissible

The High Court has delivered judgment in Smith v State of Western Australia, which addresses the circumstances in which evidence of the conduct of jury deliberations is admissible in a challenge to a conviction. 

The appellant had been convicted on two counts of indecent dealing with a girl under the age of 13 years.  Following the return of the verdicts, an envelope was found in the jury room addressed to the trial judge.  The envelope contained a note that said:  “I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote.  This has made my ability to perform my duty as a juror on this panel [sic].”  The trial judge was of the opinion that, because the verdict had already been entered, he could not do anything about the note.  However, the trial judge remarked that there were a number of unusual factors surrounding the delivery of the verdict, including that one male juror seemed somewhat upset.

The appellant appealed to the Court of Appeal on the ground that his trial had miscarried due to a juror being physically coerced into changing his verdict to guilty.  The Court of Appeal unanimously dismissed the appeal, holding that the note was inadmissible and that no order should be made directing the Sheriff to make inquiries concerning the allegations raised in the note.

The appellant then appealed to the High Court, which unanimously held that the note was admissible.  The Court affirmed the general exclusionary rule that once a trial has been determined by an acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict.  However, the consistently with the rationale for the exclusionary rule, the rule was not absolute. 

The Court noted that if public confidence in the system of criminal justice is to be deserved, criminal misconduct calculated to prevent free and frank deliberation by a jury must not be kept secret lest it become endemic. In such cases, the application by the courts of the exclusionary rule to preserve finality would be contrary to the first duty of the courts to preserve the integrity of the system of criminal justice which they administer.  The conduct described in the note tended to cast a shadow over the administration of justice in this case in a way that lawful but irresponsible behaviour by a juror, careless of his or her oath, does not. The risk that a juror may not be true to his or her oath because of his or her personal eccentricities is a risk which is inherent in a system of trial by jury, whereas the risk of the intimidation of jurors by unlawful threats of violence from other jurors is not. 

Accordingly, the appeal was allowed and the appellant’s appeal and application for in inquiry into the conduct of the jury was remitted to the Court of Appeal for re-determination.