Contents

Chapter 4
Juror contempt

Accessing information

4.11Jurors do sometimes actively seek out information. Examples from cases illustrate that jurors have sometimes undertaken their own investigations or searched for information about the defendant or others involved in the case. Jurors have in the past visited the scene of the crime306 and conducted experiments to determine how long a car engine takes to cool down307 or how much heroin could be secreted in shoes.308 Jurors have also asked chemists questions about the availability and price of ephedrine.309 More recently in one reported case, print-outs containing definitions of “burden of proof” and “beyond a reasonable doubt” were found in the jury room. The material was from the United States and so did not accurately reflect New Zealand law.310 None of these cases, however, involved prosecutions of the jurors for contempt of court.
4.12As noted in chapter 1, the internet and developments in technology have dramatically changed the way people obtain, use and share information. One consequence for the justice system is that it has become much more difficult to shield jurors from exposure to extraneous information during a trial. It is also much easier for jurors to undertake their own research or share information about the trial outside of the courtroom.311 Jurors no longer need to visit a scene. They can do so virtually through Google Earth without leaving their homes or with their phone on the bus. Jurors no longer need to go to chemists to find out the price of drugs, they can google the information. The “modern juror has at his or her fingertips a vast array of updated and archival information available via the Internet”.312
4.13As the English Court of Criminal Appeal has pointed out:313

Information provided by the internet (or any other modern method of communication) is not evidence. Even assuming the accuracy and completeness of this information (which, in reality, would be an unwise assumption) its use by a juror exposes him [or her] to the risk of being influenced, even unconsciously, by whatever emerges from the internet. This offends our long held belief that justice requires that both sides in a criminal trial should know and be able to address or answer any material (particularly material which appears adverse to them) which may influence the verdict.

4.14Recent examples in the United Kingdom of the misuse of the internet by jurors include:

4.15In New Zealand the challenges posed for jurors by the internet are already addressed through the information given to them when they are called for jury service, the questions asked when they are empanelled and the directions given to them by the trial judge.

4.16A juror who searches for information or undertakes other investigative work is likely to be in contempt at common law since the juror’s actions may compromise the defendant’s right to a fair trial and interfere with the due administration of justice. The issue whether a juror would be in contempt for undertaking his or her own investigations has not yet been tested, although there have been cases where jurors have received and considered outside information,318 and a recent case where a conviction was set aside on appeal because extrinsic material found in the jury room was held to be capable of affecting the jury’s verdict.319
4.17Where jurors undertake research after the trial judge has directed them not to undertake their own inquiries, the conduct would contravene a judicial direction. It would then be likely to be caught by the statutory contempt of court provision, which applies if any person wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings.320 In these circumstances it is not the research, but the fact the juror wilfully and without lawful excuse disobeyed an order or direction of the judge that gives rise to the contempt.321

Issues Paper proposals

4.18The Commission acknowledged in its Issues Paper that it is unrealistic to assume that jurors, who otherwise use the internet every day, will not be tempted to check for information relating to aspects of the case they are hearing. The Commission recognised that in this day and age, jurors need greater instruction and education. The Commission therefore suggested several proactive measures to minimise the risk that jurors would see or look for external material. The proposals put forward were:

(a) a new statutory offence covering jurors who undertake their own research to replace the common law;

(b) more explicit information in the material given to those called for jury service about the risks and consequences of jurors undertaking their own research;

(c) enhanced inquiry when empanelling jurors to clarify whether jurors have been exposed to pre-trial publicity of a kind that might influence them in arriving at a verdict;

(d) amendments to the form of the oath/affirmation in the Rules322 taken by jurors to include undertakings to base their verdict only on the evidence presented in court and not to conduct their own research;

(e) more consistent and comprehensive judicial directions that deal with the risks and consequences of jurors undertaking their own research; and

(f) giving jurors clearer and more consistent directions about their ability to ask questions of the judge during the trial.

4.19The Commission consulted on these proposals and we set out the feedback we received in the context of our conclusions and recommendations below.

Specific offence for juror researchTop

4.20In the Issues Paper the Commission proposed a new offence to dissuade jurors from undertaking their own research. This offence would replace common law contempt. The Commission proposed the threshold for the offence should be set so only jurors who intentionally searched for information knowing or believing it will relate to the case would be caught. Whether those jurors shared any information they found with other members of the jury could be a relevant factor in sentencing.

4.21Most submitters supported a statutory offence for jurors who deliberately conducted their own research despite clear instruction not to do so. This was primarily because of the consistency and clarity that a statutory offence would provide.

4.22Other common law jurisdictions have already responded to the googling juror problem in this way. In three states in Australia it is an offence for jurors to conduct their own investigations.323 Likewise it is an offence in the United Kingdom for jurors to undertake research and an offence for jurors to share research with other jurors.324

4.23The New Zealand Law Society (NZLS) suggested that we should consider whether it should be a complete defence, or at least recognised in mitigation of sentence, if a juror who has succumbed to the temptation of doing research then seeks discharge from the jury at the first available opportunity.

4.24Having considered these submissions, we recommend creating a statutory offence where a member of a jury intentionally investigates or researches information about the case. This would clarify the current position, sending a clear message to jurors that research is simply not permitted. This new offence is critical to reform in this area because it will serve as a clear deterrent to jurors and thus set a standard to underpin our other proposed reforms. Judges would tell jurors clearly at various points during the trial they should not undertake their own research and would explain to them the reasons for the prohibition and the consequences of breaching it.

4.25The threshold for the offence (which is in clause 19 of the Bill) is that a juror intentionally searches for information and does so when he or she knows or ought reasonably to know that it may be relevant to the case before them. No juror should be able to use the fact that he or she sought a discharge from the jury as a defence. A discharge may still lead to a jury trial being abandoned (with the adverse cost implications that flow from this) because the jury number falls below the minimum threshold.325 Whether the juror seeks discharge at the first opportunity and also whether the juror shared any information he or she found with other members of the jury should be factors to be taken into account when penalty is being determined.
4.26We recommend a maximum penalty of a term of imprisonment not exceeding three months or a fine not exceeding $10,000. The discussion around how we have set penalty levels is in chapter 7.326

Jury service educational materialTop

4.27Jurors receive written information and other instructions from the Ministry of Justice before they are empanelled. The information potential jurors receive when summoned states that jurors must not make their own inquiries about the case.327 This is then further explained:

Don’t google the people or places in the case or visit the place the crime happened by yourself, unless the court arranges the visit.

4.28The booklet also advises jurors to avoid news reports and media comments about the trial.328 The jury panel watches a video presentation prior to empanelling telling them they must not make their own inquiries, such as researching information about the defendant or going to visit the crime scene independently.

4.29In the Issues Paper the Commission proposed providing more explicit information about the risks of juror research in the material given to those called for jury service and to the panel from which the jury is selected.

4.30Submitters agreed that potential jurors should be given information explaining why it is important that jurors not investigate or undertake their own research and the risks if they do. One submitter suggested to us that examples might also assist; for example, research could include asking questions about the trial on social media.

4.31Since completing the Issues Paper and consultation in 2014, the Ministry of Justice has updated the jury service educational material on its website. It has also updated the material sent to jurors with their summonses. The material still does not, however, provide information on the reasons for the instructions or the risks for jurors if they conduct their own research. Jurors should be told about the need to ensure the defendant and the prosecution have a fair trial and the inadmissible nature of the material they discover. If our recommended new offence is enacted, that information should also be included in this material to show the consequences of any breach.

4.32We recommend the Ministry of Justice update the juror service educational information to ensure it provides adequate and clear guidance on the problems and risks if jurors undertake their own research. Jurors should be told the reasons why doing their own research poses a risk to a fair trial. The material they find may be inaccurate or inadmissible. It will not have been put to the defendant or tested in court. Jurors must be told that undertaking their own research:

4.33We have discussed this recommendation with officials at the Ministry of Justice and they support reviewing the guidance the Ministry currently provides to jurors.

More interactive approach to empanelling jurorsTop

4.34In high-profile cases at least, there is a reasonable likelihood that some jurors will come to their task with some previous knowledge of the case gleaned from exposure to material through the media. The jury selection process addresses pre-trial exposure to external information. This gives jurors an opportunity to disqualify themselves where they have prior knowledge of the case that may influence them. The trial judge will normally invite any person on the jury panel to seek to be excused if the person feels unable to discharge their obligation to try the case only on the evidence presented to them in the trial. Jurors are normally asked to approach the judge if they know anyone connected with the case or feel unable to decide the case impartially.

4.35In the Issues Paper the Commission proposed an enhanced inquiry when empanelling jurors expressly to address pre-trial exposure. The Commission did not propose the type of process involving cross-examination of jurors used in the United States and Canada, but a more routine shift expressly to address pre-trial exposure.

4.36The Commission noted this had already begun to occur in high-profile cases. In one of the Urewera raids cases, Iti v R, there had been a substantial amount of publicity and public interest because the case might have been New Zealand’s first prosecution under the Terrorism Suppression Act 2002. The Court of Appeal described the jury empanelling process that had occurred in that case:329

Before the jury was empanelled, we understand they were told of the subject matter of the trial and directed to advise the Judge if as a result of what they had read or heard or opinions they had formed, they doubted their ability to try the case fairly on the evidence. We accept that not all potential jurors may have recognised what may well be unconscious prejudice. However, significant numbers did. We were told that about 60 persons sought to be, and were, excused. Even after the panel was selected and retired, we understand that at least one more came forward and withdrew.

4.37The Commission suggested it could be standard practice in cases that have attracted public attention for the judge to tell jurors the subject of the trial and direct them to tell the judge whether, because of what they have read or heard about the case, they may not be able to try the case fairly on the evidence presented in court.

4.38During our consultation, several submitters agreed that in high profile cases where there has been pre-trial publicity potential jurors should answer specific questions about their knowledge of the case. The Auckland District Law Society Incorporated (ADLS) felt that jurors should be separately questioned about:

4.39The Wellington Community Justice Project went further, suggesting a mandatory questionnaire asking for specific information to determine a juror’s level of exposure to pre-trial media coverage and subjective bias. It was concerned judges might be inconsistent in their approach to questioning jurors because:

… jurors may be genuinely unaware of the level of pre-trial media exposure to which they have been subjected and any prior opinions and/or views that they may hold on the case or defendant.

It was suggested that a questionnaire would be a more accurate indicator of a juror’s ability to try a case fairly, and would maintain consistency during juror selection.

4.40We recommend it be standard practice in cases that have attracted public attention for the judge to clarify whether potential jurors have already been exposed to information about the case to a degree that means they may not be able to try the case fairly on the evidence presented in court. If it becomes standard practice for judges to question jurors about pre-trial exposure, we do not think a mandatory questionnaire is required. The judiciary should consider developing appropriate questioning practices.

Juror oath or affirmation Top

4.41After being empanelled, jurors must take an oath or affirmation. Jurors are asked:330

Members of the jury: Do each of you swear by Almighty God (or solemnly, sincerely and truly declare and affirm) that you will try the case before you to the best of your ability and give your verdict according to the evidence?

4.42By swearing to give their verdict “according to the evidence”, jurors are in law accepting that their verdict must be based solely on the evidence admitted at the trial. While this may not always be understood by jurors, it is also implicit in the oath or affirmation that jurors will not obtain or use extraneous material privately at any stage before or during the trial to reach their verdict. Where a juror reaches a verdict not in accordance with his or her conscientious assessment of the evidence called at trial, he or she will breach his or her oath or affirmation.331

4.43In the Issues Paper the Commission asked whether the juror oath and affirmation should be amended to include a more explicit agreement to base the verdict only on the evidence presented in court and not to undertake their own research.

4.44We received only a few submissions on this issue, but all supported this amendment. ADLS went further, suggesting that a written undertaking not to undertake their own investigations or research should also be given by each juror. The Law Commission for England and Wales recommended this in 2013.332

4.45We recommend amending the wording of the oath and affirmation so jurors explicitly agree to base their verdict solely on the evidence presented in court and not to undertake their own research. This would ensure jurors specifically turn their minds to the fact that they may not undertake their own research. If a juror then undertakes his or her own research, it would be easier to hold him or her in contempt (or establish liability for the statutory offence that we have recommended). We think an express acknowledgement by oath or affirmation sufficiently puts the juror on notice and a further written declaration to this effect is not required.

More comprehensive and consistent judicial directionsTop

4.46Courts routinely direct juries that they must decide the case on the evidence presented to them in court and not to discuss the case outside the courtroom or seek information on the case. Judges receive good practice examples from which they develop their own approach to instructing jurors. Guidance to judges on such matters refers to advising jurors they are not to:

4.47The form the instructions may take falls to the discretion of the trial judge. The approach adopted is therefore not necessarily consistent.

4.48Some submitters said that directions given to jurors should convey not just the fact of prohibition, but also explain fully the reasons jurors must not do this. Specifically, the directions should clearly explain the need for a fair trial and that a juror who undertakes his or her own research puts the trial at risk of being abandoned.

4.49Some submitters went further and said the effects of an abandoned trial, namely that it is time consuming and costly, should also be explained. As noted in chapter 2 at [2.7], the average cost of a District Court trial in New Zealand is $26,144, and the overall cost of a trial in the High Court is likely to be higher.333 An abandoned trial also affects complainants and other witnesses who will have to give evidence and endure the stress and inconvenience of a trial all over again.

4.50Submitters agreed that courts should reinforce these messages throughout the trial because a juror has a lot of new information to assimilate at the outset. One submitter suggested the temptation to research information may grow as the trial progresses, and jurors may feel more justified in conducting research towards the end of the trial as pressure mounts to reach a verdict.

4.51Jurors will be less likely to engage in undertaking their own research if they understand the implications of such action:334

“Googling” has become one of the simplest and most natural ways of filling any information void. The reasons why such behaviour cannot be permitted might be obvious to lawyers, but unless the potential for damage to the criminal justice process is explained by way of background to jurors, they cannot reasonably be expected to follow a judicial direction whose significance is neither apparent nor, at least in the early days of the internet, explained by the judge at the outset of the trial.

4.52We therefore recommend that jurors should be reminded during the trial that undertaking their own research is contempt (or an offence if our recommended statutory offence is adopted) and punishable by fine or imprisonment. Jurors should receive these directions when they take their oath or affirmation and should be reminded of them throughout the trial. We recommend more comprehensive and consistent directions that provide jurors with a clear explanation of why their decision must be based only on the evidence presented in court and the risks if they undertake their own research. This recommendation, together with our other recommendations, if implemented, should reduce the prospect of jurors being discharged, trials abandoned and prosecutions for the new offence. These outcomes would also avoid significant costs for the state and the parties involved, including the jurors.

More consistency of approach when informing jurors about their ability to ask questionsTop

4.53Although it is relatively uncommon for jurors to do so, they may ask questions during the trial.335 The current process is formal: jurors must write questions down and pass them to the court attendant who will then pass them on to the trial judge.

4.54We understand the guidance that judges conducting jury trials use covers how judges should inform and direct juries around how they may ask questions. The form of any direction given, however, falls to the discretion of the trial judge so the approach adopted is not necessarily consistent. In the Issues Paper the Commission proposed providing jurors with more consistent and clearer instructions about their ability to ask questions. This was because if jurors are more actively engaged in the court they may be less susceptible to conducting their own inquiries.

4.55Very few submitters commented on this proposal, but our discussions with judges have been informative. Some judges are understandably reluctant to encourage questions because of the potential for jurors to disrupt proceedings with irrelevant or inadmissible questions thereby lengthening trials. Jurors asking questions can also be seen as contrary to the adversarial process. A defendant is entitled to the presumption of innocence until proven guilty and it is for the prosecution to make its case. It is not for the jury to fill in any gaps that the prosecution may have failed to address.

4.56On the other hand, if jurors are not able to have their questions answered in court they may take matters into their own hands. We were told, for example, of one case where jurors wanted to ask a question, but the judge refused permission so one of the jury then went online looking for an answer.

4.57We accept that the use of questions by jurors must be controlled and only used where necessary and appropriate. We are satisfied the current practice for trial judges advising jurors on their ability to ask questions is appropriate. We would, however, encourage trial judges to consider whether it might be desirable to give juries comprehensive directions regarding asking questions in order to dissuade jurors from conducting their own inquiries. Raising questions with the judge is preferable.

306R v Gillespie CA 227/88, 7 February 1989 (conviction quashed on the basis that inquiries may have influenced the verdict).
307R v Taka [1992] 2 NZLR 129 (CA) (appeal against conviction dismissed, although the Court observed that such experiments were not permitted and could vitiate a verdict if there was reasonably well-grounded suspicion that verdict had been influenced).
308R v Sangraksa CA 503/96, 3 July 1997 (appeal dismissed, although the Court reaffirmed the observations made in R v Taka, above n 307).
309R v Bates [1985] 1 NZLR 326 (CA) (a new trial was ordered on the basis of juror misconduct giving rise to a miscarriage of justice).
310R v Harris CA 121/06, 27 September 2006 (appeal dismissed, the trial judge having adequately addressed the jury regarding the erroneous material in summing up).
311Jane Johnston and others Jurors and Social Media: A report prepared for the Victoria Department of Justice (2013) at [3.1]. See also R (CA679/2015) v R, above n 295, at [13] and [62]–[63].
312D Harvey, “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” (2014) NZ L Rev 203 at 206.
313Attorney-General v Fraill, above n 296, at [30].
314Attorney-General v Fraill, above n 296.
315Attorney-General v Dallas [2012] EWHC 158 (Admin), [2012] 1 WLR 991. The jury had not been told about the allegation of rape, although in relation to the same incident the jury was told that the defendant was convicted of assault.
316Attorney-General v Davey [2013] EWHC 2317 (Admin), [2014] 1 Cr App R 1.
317Solicitor-General v Smith 9 June 2016, Divisional Court Attorney General’s Office (UK) “Two jurors found guilty of contempt of court” (press release, 9 June 2016).
318For example see Naiker v R [2016] NZSC 118.
319In R (CA679/2015) v R, above n 295.
320Senior Courts Act 2016, s 165; District Court Act 2016, s 212.
321A recent case in the United Kingdom arguably implies that such conduct is both in breach of a direction, and of itself common law contempt, because it is conduct that specifically interferes with the administration of justice: Attorney-General v Davey, above n 316, at [2]–[4]. See also Attorney-General v Dallas, above n 315; and Dallas v United Kingdom (2016) 63 EHRR 13 (ECHR).
322Jury Amendment Rules 2000, sch 1, form 2.
323Under s 68C of the Juries Act 1977 (NSW) it is an offence for jurors to conduct their own investigations. Section 69A of the Juries Act 1995 (Qld) prohibits jurors from making inquiries and s 78A of the Juries Act 2000 (Vic) prohibits the making of inquiries. All of these provisions are considered broad enough to cover jurors undertaking research. In New South Wales, recent legislation has also prohibited the use of personal digital assistants during and after proceedings in court: see Court Security Act 2005 (NSW) amended by the Courts and Other Legislation Further Amendment Act 2013 (NSW). This new provision would seem to prohibit jurors using social media during trial.
324In 2015, the United Kingdom enacted a recommendation of the Law Commission for England and Wales that research by jurors be made a statutory criminal offence in the Criminal Justice and Courts Act 2015 (UK). Section 71 amends the Juries Act 1974 (UK) to insert new sections 20A-20B: Law Commission of England and Wales, Contempt of Court (1): Jurors Misconduct and Internet Publications (LC340, 2013) at [3.78].
325Juries Act 1981, s 22(1A). The court may proceed with fewer than 10 jurors only if all parties consent to doing so and the court, having regard to the interests of justice, considers that it should do so.
326See chapter 7 at [7.59]‒[7.66].
327Ministry of Justice Jury Service: Information about jury service and being a juror (Ministry of Justice, Wellington, 2016) at 6.
328At 7.
329Iti v R [2012] NZCA 492 at [55].
330Jury Rules 1990, sch 1, form 2.
331Attorney-General v Fraill, above n 296, at [27].
332Law Commission of England and Wales, Contempt of Court (1): Juror Misconduct and Internet Publications (LC340, 2013) at [5.27]–[5.31]. Specifically the Commission recommended amending the wording of the juror oath to include a promise to base the verdict on the evidence presented in court and not to seek or disclose information on the case. It also recommended that jurors be asked to sign a written declaration on their first day of jury service, acknowledging they have been warned not to research. Note these recommendations have not been implemented.
333See chapter 2 at [2.7]. Also recently in the United Kingdom a trial had to be abandoned after a juror deliberately researched information about a defendant on his mobile phone and then disclosed the results to other members of the jury. The abandoned trial resulted in the waste of approximately £80,000 of costs to the Court Service and Court Prosecution Service: Attorney General’s Office (UK) “Two jurors found guilty of contempt of court” (press release, 9 June 2016).
334ATH Smith “Repositioning the law of contempt: the Criminal Justice and Courts Act 2015” (2015) 11 Crim LR 845 at 846.
335Evidence Act 2006, s 101.