Contents

Chapter 4
Juror contempt

Introduction

4.1Trial by jury is a fundamental and important part of the New Zealand criminal justice system.287 Persons charged with serious criminal offences must be tried by jury.288 Persons charged with any offence for which, on conviction, they may be sentenced to two years’ imprisonment or more are entitled to elect trial by jury.289
4.2Trial by jury is now less significant in civil law, but is still used in claims for defamation, malicious prosecution, false imprisonment or other similar claims.290 In this chapter we address the law of contempt of court as it applies to juries in criminal cases.
4.3The starting point is to recognise the importance of the jury system in the criminal law context. In the judgment of the Full Court of the High Court in Solicitor-General v Radio New Zealand Ltd Eichelbaum CJ and Grieg J agreed with the submission of the then Solicitor-General that:291

… the jury system is fundamental to the administration of the criminal law in New Zealand. It has as its basis the quality of a collective decision made by a group of ordinary New Zealanders in accordance with their unanimous opinion on whether or not a prosecution brought on behalf of the community has been proved beyond reasonable doubt. The concept is vulnerable to attack and if it is to be maintained as the lynchpin of the criminal justice system the Courts must be vigilant to protect it.

4.4As the right to trial by jury is affirmed by the New Zealand Bill of Rights Act 1990 (NZBORA),292 we proceed on the basis that the concept is to be maintained as the lynchpin of the criminal justice system and that the following features of the jury system are crucial.
4.5First, the jury must be impartial and free from any outside constraint.293
4.6Second, jurors are required to comply with their oath or affirmation that they will try the case before them to the best of their ability and give their verdict “according to the evidence”.294 The requirement to give their verdict “according to the evidence” means that jurors must base their verdict solely on the evidence admitted at the trial. This requirement reflects the elementary proposition that for a trial to be fair both the defence and the prosecution must know all the evidence the jury is going to consider in reaching its verdict and have the opportunity to test it.295
4.7Third, in reaching their verdict jurors must not take into account extraneous material that is not in evidence. In particular, they should not carry out their own research or inquiries or take into account information from the media, the internet or other sources.296 Breaches of this requirement may constitute an irregularity sufficient to cause the verdict to be set aside, a conviction quashed and a retrial ordered.297 Jurors responsible for the breach may also be committed for contempt of court.298
4.8Fourth, jurors must reach their verdict following free, frank, private and confidential discussions.299 As the English Court of Criminal Appeal has put it recently:300

Every member of the jury is entitled in the course of jury deliberations to express his or her views with the utmost frankness and clarity … there are no degrees or limitations of the views which may be expressed … everything that has been said in the course of these discussions must remain confidential to the members of the jury.

The Court added that confidentiality encouraged the frank exchange of views and meant that no juror was inhibited from expressing an unpopular view.301
4.9Fifth, subject to appeals and lawful challenges, jury verdicts must be treated as final.302
4.10Finally, the obligation of confidentiality and the need for finality mean that, save in exceptional circumstances, jurors must not discuss or disclose jury deliberations.303 Indeed, save in cases involving exceptional circumstances, the evidence of jurors about their deliberations is inadmissible in court proceedings.304 Other parties are also not entitled to seek such discussion or disclosure. Jurors and other parties who do so may be in contempt of court.305
287Laws of New Zealand Juries (online ed) at [1].
288Criminal Procedure Act 2011, s 74: category 4 offences require trial by jury, subject to limited exceptions under ss 102 and 103.
289New Zealand Bill of Rights Act 1990, s 24(e); Criminal Procedure Act 2011, ss 50 and 74.
290Laws of New Zealand Juries (online ed) at [1].
291Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC) at 51. Since 2009, majority verdicts have also been permitted: Juries Act 1981, ss 29C and 29D.
292Section 24(e).
293 Solicitor-General v Radio New Zealand, above n 291, at 60.
294Jury Rules 1990, r 22 and sch 1, form 2.
295R (CA679/2015) v R [2016] NZCA 444 at [51].
296Mussa v R [2010] NZCA 123 at [36]; R v Thompson [2010] EWCA Crim 1623, [2011] 1 WLR 200 (Crim App) at [5]; and Attorney-General v Fraill [2011] EWHC 1629 (Admin), [2011] EWCA Crim 1570 at [27]–[30].
297Laws of New Zealand Juries (online ed) at [54].
298Laws of New Zealand Contempt of Court (online ed) at [47].
299Solicitor-General v Radio New Zealand Ltd, above n 291, at 54 and 60; and Smith v R [2017] NZCA 93 at [26].
300 Attorney-General v Fraill, above n 296, at [33].
301At [33].
302Solicitor-General v Radio New Zealand Ltd, above n 291, at 54.
303Solicitor-General v Radio New Zealand Ltd, above n 291, at 53–54.
304Evidence Act 2006, s 76(1) and (3).
305Solicitor-General v Radio New Zealand Ltd, above n 291, at 53–54; Attorney-General v Fraill, above n 296, at [34].