Juror tantrum ... WA Court of Appeal upholds itself ... High Court in unchartered territory ... Jurors cross-examined ... Claim of coercion seen in a new light ... Examination of jury deliberations by appeal judges ... Foreman claims he was physically threatened ... Meltdown in the jury room ... Sand Groper reports
ON January 17, 2012, Mark Smith was convicted of indecently dealing with a child under 13 and sentenced to one year's imprisonment, after a trial in the District Court of Western Australia.
The case turned on the victim's credibility, which is normally difficult to impeach on appeal. But after the jury was released, a note addressed to the judge came to light. It read:
"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 note did not reveal its author, but the trial judge noted that one of the jurors was somewhat upset after delivery of the verdict and said that it was probably obvious to counsel which juror that was.
The judge also said that the foreman was a little slow to affirm that the verdict was unanimous, but there was nothing he could do because the verdicts had been entered.
On January 17, 2013, the WA Court of Appeal unanimously dismissed an appeal against conviction brought on the ground that the trial miscarried as a result of a juror being coerced into joining in the guilty verdicts.
The Court of Appeal found that the note fell within the exclusionary rule that evidence of the deliberations of the jury is not admissible to impugn the verdict. No miscarriage of justice could be established.
On February 12, 2014, the High Court set aside the Court of Appeal's decision, holding that the juror's note was admissible to impugn the conviction because it was capable of creating a reasonable suspicion that an offence against s.123 of the Criminal Code (WA) had occurred.
The High Court sent the matter back to the Court of Appeal for consideration of the appellant's application for an inquiry into the juror's note.
On July 29, 2016, the Court of Appeal completed its inquiry, affirming its original decision to dismiss the appeal. The inquiry involved the attendance and cross-examination of all 12 jurors and the sheriff's officer who supervised the jury.
The juror who wrote the note was the foreman, and the evidence of the other jurors cast the note in a new light.
Although memories had faded with the passage of time, the jury (including the foreman) generally agreed that the vote had originally been split.
The foreman had voted not guilty from an early stage and referred to his expertise in child psychology. Some jurors recalled tension between the foreman and juror 217 in particular.
Over time, with the forceful encouragement of juror 217, the balance of juror opinion shifted towards guilty. At some point, the foreman withdrew from the deliberations by lying down on the ground, tutting, and rolling his eyes. He eventually agreed with the other eleven jurors, but expressed his reluctance and seemed "defeated" in doing so.
The foreman's account went further. He said that at some point towards the end of the deliberations, juror 217 physically threatened him in the men's bathroom and that was why he changed his vote.
The foreman also described a conversation in which he told other jurors that he was a victim of child sexual abuse. The foreman claimed that juror 217 said "people who were fiddled with tend to become fiddlers themselves" and accused him of being a paedophile. All of this was emphatically denied by juror 217.
When asked why he did not tell anybody about the alleged coercion, the foreman stated that he was "pretty overwhelmed" and should not have been on the jury given his childhood experiences.
At this point in the hearing before the Court of Appeal, the foreman sobbed quietly in the witness box for about five minutes. Carmel McLure, the President of the Court of Appeal, summarised the sheriff officer's account of the foreman's behaviour after the verdict:
"The foreman was the first to exit the door from the court and enter the hallway leading the jury room. As the foreman reached the door to the jury room, he kicked it violently, causing it to fly open. He entered the room and knocked over two chairs. He then immediately went through the door leading from the jury room to the toilet ... The foreman remained in the toilet with the door locked for a few minutes. The jury supervisor knocked on the toilet door but there was no answer. The jury supervisor then escorted the rest of the jury to the jury assembly area on a different floor and returned to the jury room. The foreman was sitting in the jury room when he arrived and gave the jury officer a letter addressed to the judge ... The foreman walked straight past the rest of the jury and went to the far end of the room where he stood with his nose right against the wall. The foreman remained in that position for about 10 minutes while the jury supervisor organised a cabcharge ... The jury supervisor said he would wait with the foreman until the taxi arrived but the foreman ran off as soon as the jury officer opened the door to the street. The jury officer watched the foreman run off long enough to see that he was not coming back."
The Court of Appeal rejected the foreman's allegation that he had been threatened. Chief Justice Wayne Martin found that his account was likely to be a "puerile response to his inability to persuade others to his point of view". The foreman tried to justify his withdrawal from the jury's deliberations by reference to his belief that "common sense might prevail," but:
"[The shift in the balance of opinion towards guilty] must have been apparent to the foreman during the time he was sitting on the floor of the jury room, rolling his eyes and tutting. In that context, there can have been no basis for any reasonable belief that the foreman's disengagement from deliberations might, through some inexplicable means, have encouraged other jurors to his point of view ...
I do not accept either of the explanations proffered by the foreman for his withdrawal from participation in jury deliberations. A number of jurors expressed the view that the foreman's withdrawal from active participation was a childlike response to his failure to persuade others to his point of view - in other words, that he was sulking because he was not getting his way. That is a plausible explanation for the foreman's conduct, which I accept."
Justice McLure was critical of the High Court's reformulation of an evidentiary rule, which had existed for more than two centuries. Her Honour reviewed the history of unsuccessful attempts to undermine the exclusionary rule in the House of Lords and noted the High Court's adventure into "hitherto unchartered territory".
However, the president agreed with the result, noting that a majority verdict would have been available even if the foreman had maintained his lone dissent.
Although Smith's appeal failed, the High Court's decision leaves open the possibility of a further increase in the Court of Appeal's fact-finding workload.
It took over two years for the inquiry to overcome the challenges in identifying, assembling and hearing evidence from each juror. Smith has until August 26, 2016 to seek special leave in the High Court, although he had served his sentence by the time his first appeal was dismissed.