Contents

Chapter 4
Juror contempt

Disclosing information

4.58As already explained in the introduction to this chapter, jury deliberations should be confidential. Jurors should not answer questions or give out information about their deliberations to anyone during or after a trial. The Full Court of the High Court in Solicitor-General v Radio New Zealand Ltd identified three reasons for the confidentiality of jury deliberations.336

4.59First, confidentiality promotes free and frank discussion between jurors, who may otherwise feel inhibited if their views could later be aired publicly and subjected to public scrutiny and attack. The very nature of a jury trial requires juries, who represent a snapshot of society, to express their views confidently to each other during deliberations. Jurors should not be afraid their views will subsequently be exposed in public, or the jury system would not work.

4.60Second, confidentiality protects the finality of verdicts. Exposing jury deliberations may wrongly open verdicts up to public challenge. A verdict does not get its legitimacy from the reasoning or deliberation process taken by individual jurors, but because it is supported by a substantial majority of the jurors, irrespective of the different routes by which individual jurors came to agree on that verdict. The Court of Appeal has commented that:337

The prospect of one or more jurors being cross-examined on their affidavits and possibly being the subject of evidence in rebuttal is extremely unattractive [and] would, potentially at least, have a very detrimental effect on the jury system.

4.61Third, confidentiality of deliberations protects the privacy of jurors. Jurors should be able to serve knowing their privacy will be respected and their identity will not be disclosed. They will not be interviewed about their deliberations or called upon to explain or justify their verdict.

4.62Where a juror discusses any aspects of the trial, including juror deliberations, outside the jury room, he or she may be in contempt. Since the courts in New Zealand have not addressed this issue, the scope of juror contempt in this context is not clear. During the trial, where a juror discusses the case in breach of a direction given by the judge, the juror may be in contempt of court under section 165 of the Senior Courts Act 2016 or section 212 of the District Court Act 2016.338 It seems unlikely that these sections continue to apply after the trial is completed and the jury released.
4.63The position at common law is unclear, but applying the general principles of contempt it is likely that a juror will be in contempt if he or she discloses information or communicates with external parties after being directed not to do so.339
4.64It also seems that both a journalist who approaches a juror to elicit comment about a decision and a person who publishes information about a jury’s deliberations elicited from an interview with a juror are likely to be in contempt.340 In Solicitor-General v Radio New Zealand Ltd,341 a journalist approached some people who had been jurors in the trial of David Tamihere for the murder of two Swedish tourists when new evidence was discovered years later. Radio New Zealand broadcast the comments of one juror who spoke at length to the reporter. Radio New Zealand was found to be in contempt and fined $30,000. Interestingly, the juror was not charged.
4.65Section 76 of the Evidence Act 2006 provides that a person must not give evidence about the deliberations of a jury. This rule does not prevent a person from giving evidence relating to the competency or capacity of a juror, or matters that are believed to disqualify that juror.342 A judge may allow evidence relating to jury deliberations to be given in exceptional circumstances, after weighing the public interest in protecting the confidentiality of jury deliberations generally against the public interest in ensuring that justice is done in those proceedings.343
4.66This issue was considered by the High Court of Australia in Smith v Western Australia.344 Mr Smith was found guilty after a jury trial. The trial judge noted that one of the jurors was visibly upset and that the foreman was slow to confirm that the verdict was that of all jurors. After the jury was discharged, an envelope was found addressed to the judge, with the following anonymous message:345

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].

4.67As the verdict had already been entered, Mr Smith was convicted and sentenced to imprisonment. In Mr Smith’s appeal against conviction, the Court of Appeal of Western Australia held that the exclusionary rule prevented evidence concerning the jury deliberations from being considered.346 The High Court of Australia, however, allowed Mr Smith’s appeal against that decision, holding:347

… free and frank deliberation by jurors would not be encouraged or protected by applying the exclusionary rule to a case where the very conduct which a juror seeks to bring to the attention of the court is unlawful harassment by a fellow juror calculated to prevent the conscientious discharge of the juror’s duty… Indeed, to insist on the application of the exclusionary rule in such a case would tend to defeat, rather than to advance, the purpose of the rule.

4.68In the Issues Paper the Commission highlighted cases in the United Kingdom and United States where jurors used social media inappropriately. In one case, a juror was dismissed from the jury after she asked her Facebook friends to help her decide, with the following post: “I don’t know which way to go, so I’m holding a poll”.348
4.69In New Zealand there have only been a few cases where mainstream media have published or broadcast interviews with jurors, the most significant being Solicitor-General v Radio New Zealand Ltd.349 There have also been a few instances where jurors voluntarily approached the media; for example, following the retrial of David Bain, there were several interviews with jurors.350 To date, however, contempt proceedings have not been taken in New Zealand against jurors for post-verdict disclosures of this nature.
4.70In the United Kingdom, confidentiality of jury deliberations is protected by statute. It is an offence for a person intentionally to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the court of their deliberations in proceedings before a court or to solicit or obtain such information.351 A number of states in Australia also have statutory offences for the disclosure of deliberations.352

4.71Social media platforms such as Facebook and Twitter provide means to effect wide-reaching communications quickly and often with little thought given to the consequences. Given the ease of sharing information, the Commission considered legislation would usefully clarify the law concerning disclosure of jury deliberations in New Zealand. The Commission proposed a statutory offence for anyone, including a person who is, or has served, on a jury, to disclose or publish details of a jury’s deliberations, or for anyone to solicit such information.

Statutory offence?

4.72As with the other proposals relating to jurors, only a few submitters commented on this proposal. Of those who responded, most agreed that a statutory offence should replace the common law in this area, primarily to provide clarity of the current law and ensure free and frank deliberations and the privacy of jurors would not be compromised.

4.73TVNZ, however, questioned whether the current law and the Commission’s proposal to clarify it in statute was too protective of jurors. TVNZ felt the restrictions were historical and, in an age where freedom of information and expression is at the fore, the Commission should consider a more open approach. APN News and Media Ltd agreed it should be an offence for anyone, including a person who is serving or who has served on a jury, to disclose or publish details of a jury’s deliberation, but did not agree there is any need to render attempts to privately solicit information from jurors an offence.

4.74After considering these views we recommend the enactment of a statutory offence for any person, including a person who is serving or has served on a jury, intentionally to disclose, solicit or publish details of a jury’s deliberations. This is consistent with the approach that has been taken in England and Wales.353 Keeping juror deliberations confidential is paramount to the administration of justice and clarifying this offence in statute would make the importance of this clear. If disclosing juror information is an offence, we also think soliciting that information should be an offence. This sets a clearer line than the common law and provides better guidance to the media and others who are likely to publish material relating to a trial.

4.75We think, however, that there should be some exceptions so that disclosure would be permitted in some circumstances.

Exception – disclosure of juror misconduct

4.76In the Issues Paper the Commission proposed an exception for, or defence enabling, disclosure of jury deliberations where the court was concerned that there had been juror misconduct. The Commission suggested either providing for a specific and relatively narrow avenue of complaint to one or more official persons and bodies, as is the approach in the United Kingdom,354 or taking a broader approach and providing for a general public interest defence.

4.77Submitters agreed that where a juror believes there has been juror misconduct the juror should be allowed to disclose information. Submitters were split, however, on whether there should be a relatively narrow avenue of complaint or a broad public interest defence. Under a narrow avenue of complaint, the juror would be protected where the information was disclosed during the trial to the trial judge. After the trial was completed and the juror discharged, the narrow avenue approach would allow the juror to disclose the information to specified persons such as the Police or the Solicitor-General. Disclosure to defence counsel or to the Crown prosecutor might also be appropriate. Under the other option of a public interest defence, the juror would have a defence that there had been something in the jury’s deliberation that might undermine the administration of justice and the integrity of the jury system, which would clearly make it in the public interest to disclose.

4.78We recommend enacting a narrow exception to the non-disclosure of jury deliberations offence. We recommend this option, rather than the alternative of a public interest defence, because it provides an avenue that continues to protect the information and also provides a safe harbour for jurors or others so they can, where it is necessary, make a disclosure.

4.79During the course of the trial, jurors should only disclose information to, and raise concerns about misconduct with, the trial judge. The exception should allow the trial judge to disclose information as necessary for the purposes of dealing with the case, and for the purposes of an investigation by the Police into whether an offence has been committed.

4.80After the proceedings have been completed or the jury has been discharged, any person should be able to make an excepted disclosure on a confidential basis to one or more specifically listed official persons or bodies where the person has reason to believe that an offence may have been committed or that the conduct of a juror may provide grounds for a mistrial or an appeal. The specific persons or bodies would be restricted to the Police, the Solicitor-General, counsel who acted for the Crown, or defence counsel. The exception would then allow those receiving the information to use it for the purposes of any investigation by the Police into whether an offence has been committed or for the purposes of assessing whether there may have been a mistrial or grounds for an appeal. The exception recognises that those receiving disclosures under the exemption may need to share the information between themselves in order to assess, evaluate and act on it.

Exception – research into juries

4.81In the Issues Paper the Commission also asked whether there should be an exception to the statutory offence of non-disclosure of juror deliberations for authorised academic research into juries. Submitters supported this exception, but some qualified that support, saying that strict criteria should be prescribed to ensure research is approved by the relevant court and jurors’ privacy is protected.

4.82The judiciary is supportive of genuine research relating to the courts. A Judicial Research Committee has been established to consider all research requests for judicial involvement in research involving the Supreme Court, Court of Appeal, High Court and District Court (including the Family Court and Youth Court).355 The Committee comprises judges from the Court of Appeal, High Court and District Court. Researchers must apply through the Office of the Chief Justice and generally require the following details:356

4.83Genuine research is important to assist society in understanding juries and to improve the administration of justice. We therefore recommend an exception to the statutory offence of non-disclosure of jury deliberations for authorised academic research into juries. The existing Judicial Research Committee should be responsible for authorising the research.

Exception – disclosure to health practitioner

4.84Although not discussed in the Issues Paper, we also think it would be necessary to have an exception that allows a juror or former juror to disclose deliberations to a health professional (including a registered counsellor) treating him or her. We think this exception is appropriate to ensure that where jurors have been personally affected in some way by the evidence they heard or any aspect of the case they are able to seek appropriate help without committing an offence. We consider that the exception should be confined to counsellors and other health professionals who are governed by a code of ethics and rules of confidentiality registered under the Health Practitioners Competence Assurance Act 2003.

Penalty for offence

4.85We 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 found in chapter 7.357

Other measures to prevent disclosure Top

4.86In the Issues Paper the Commission also asked whether the proactive measures proposed to prevent jurors undertaking research should be taken to reduce the risk jurors will disclose details of deliberations. Specifically the Commission proposed:

(a) Jury service educational information provided to those called for jury service and given to jurors before the trial could clearly state that jurors must not disclose information or use social media to discuss the case, and provide the reasons for the restriction on freedom.

(b) The juror oath could be amended to include a promise not to disclose information about jury deliberations.

(c) Jurors could receive more explicit directions before and during the trial that they must not disclose information or use social media to discuss the case. They could also be given the reasons for this confidentiality.

4.87Submitters made very few substantive comments on this area. Those who commented favoured preventive measures to mitigate juror disclosure.

4.88Jury service information provided to potential jurors when summoned states that jurors must not talk about the trial to anyone who is not on the jury.358 The video presentation made to the jury panel prior to empanelling repeats this statement. There is, however, no further elaboration on this topic. We recommend the juror service educational information should educate potential jurors and jurors of the reasons for the restrictions and the consequences. In addition, because much of the juror publication in recent times has been on blogs and through Facebook discussions, there needs to be an increased focus on educating jurors that this is not acceptable.

4.89As we have already discussed, jurors must take an oath or affirmation before serving as a juror. In the Issues Paper the Commission proposed changing the wording of the oath or affirmation to include a juror promise not to disclose information about jury deliberations. The problem with this proposal is that the oath or affirmation would become overly long. We prefer not to add this to the oath and affirmation, but instead to ensure the judges’ directions and jury service educational material provide sufficient coverage.

4.90The content of judicial directions relating to juror disclosure is currently a matter for the individual trial judge to determine. We understand that guidance to judges refers to advising jurors not to talk to anyone about the trial and not to refer to the case on social media such as Facebook and Twitter. We think directions should put jurors on notice that disclosing information is an offence potentially punishable by fine or imprisonment. Directions should also explain clearly why the restrictions exist, for example, to promote free and frank discussions between jurors. Best practice would be to give these directions at the start of the trial and reinforce them during the trial.

Recommendations

336Solicitor-General v Radio New Zealand Ltd, above n 291, at 53; see also Smith v R, above n 299, at [25]–[28].
337Tuia v R [1994] 3 NZLR 553 (CA) at 557.
338As discussed earlier in this chapter, these sections come into play whenever a juror deliberately disobeys without lawful excuse an order or direction of the court. The contempt arises from the deliberate disobeying of a judicial direction, not from the action of disclosing the jury deliberations.
339Laws of New Zealand Contempt of Court (online ed) at [47].
340Ursula Cheer Burrows and Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington, 2015) at 617. In an earlier edition, the authors also suggested that it would still be contempt to publish the results of an interview even if the juror had approached the media voluntarily instead of the other way round.
341Solicitor-General v Radio New Zealand Ltd, above n 291.
342Evidence Act 2006, s 76(2).
343Evidence Act 2006, s 76(3) and (4). See also: R v Tainui [2008] NZCA 119; Neale v R [2010] NZCA 167; Worrell v R [2011] NZCA 63; and Smith v R, above n 299, at [25]–[28].
344Smith v Western Australia [2014] HCA 3, (2014) 250 CLR 473.
345Smith v Western Australia, above n 344, at [5].
346Smith v The State of Western Australia [2013] WASCA 7, (2013) 226 A Crim R 541.
347Smith v Western Australia, above n 344, at [34]–[35].
348Urmee Khan “Juror dismissed from trial after using Facebook to help make a decision” The Telegraph (online ed, United Kingdom, 24 November 2008).
349Solicitor-General v Radio New Zealand Ltd, above n 291.
350In an article in The New Zealand Herald, a juror shared her experience of serving on the jury and the trauma she suffered as a result: see David Fisher “Bain juror: we were hounded” Herald on Sunday (online ed, Auckland, 7 June 2009). While the article did not touch on the deliberations of the jurors, it probably disclosed more information than has ever been published previously: Cheer, above n 340, at 619.
351Initially, the protection was in the Contempt of Court Act 1981 (UK), but the section was repealed for England and Wales (but not Scotland) by s 74 of the Criminal Justice and Courts Act 2015 and a strict liability rule imposed in section 20D of the Juries Act 1974.
352Juries Act 1967 (ACT), s 42C; Jury Act 1977 (NSW), ss 68A-68B; Juries Act 2000 (Vic), s 78; Jury Act 1995 (Qld), s 70; Juries Act (NT), s 49A; Juries Act 2003 (Tas), s 58; Juries Act 1957 (WA), pt IXA.
353Juries Act 1974 (UK), s 20D. As at publication, this provision is in force but has not been inserted into the publicly available version of the Act on legislation.gov.uk. The text of the provision can be found in the Criminal Justice and Courts Act 2015 (UK), s 74.
354Juries Act 1974 (UK), s 20F.
355Courts of New Zealand “Judicial Research Committee Guidelines: Judicial Participation in Research Projects” <www.courtsofnz.govt.nz> at 1.
356At 1–2.
357See chapter 7 at [7.59]–[7.66].
358Ministry of Justice Jury Service: Information about jury service and being a juror (Ministry of Justice, Wellington, 2015) at 6.