A Notable Issue

Recently the High Court published its judgment in the case of Mark Sharne Smith v The State of Western Australia [2014] HCA 3.  The case relates to the finding of a note in the jury room after a verdict had been reached in a criminal trial. The note suggested that a jury member had been physically coerced into making a decision that they did not agree with.

On the 17th of January 2012, Mark Smith was found guilty and was convicted by the District Court of Western Australia in regards to 2 counts of indecently dealing with a child. When convicting Mark Smith, the jury foreperson indicated to the court that the finding of guilt by the jury was unanimous.

After the jury had been discharged, a note was found inside the jury room addressed to the judge. The jurors did not return to the jury room after making their decision known to the court, suggesting that this note was left before the decision of guilty was communicated to the court. It also could suggest that the author did not want the note to be read and it was left in the jury room and not brought to court or given to the bailiff due to a change of heart.

The note did not identify its author, however it suggested that the author was a juror, and that a fellow juror has physically coerced the author of the note to change their plea.

The trial judge notified counsel that the note had been found, but because the verdict has already been entered, the judge was unable to act upon the note. The trial judge also remarked that when the verdict was delivered, he noticed that one male juror seemed distressed and upset.

The appellant, Mark Smith, appealed the decision of guilty in the Supreme Court of Appeal. Counsel for Mr. Smith argued that the note presented grounds for a finding of a miscarriage of justice. The Court of Appeal unanimously rejected this argument, finding no ground for a determination that a miscarriage of justice had occurred. The Court further found the note inadmissible as evidence and refused an application made by the appellant that the Sheriff should conduct an investigation into the matter.

The Inadmissibility of Jury Deliberation (The Exclusionary Rule)

It is a long established common law principle (which has also been entrenched in statute) that a juror is prohibited from discussing the deliberations in the jury room with persons other than jurors in the case, this principle is known as the exclusionary rule. It also prevents the admissibility of how a jury deliberated as a point of appeal.

There are a few important reasons for this rule, it ensure finality in a decision, ensures that the jury is not subject to outside influence or pressure and encourages jury deliberations to be full and frank.

There does however exist exemptions to the rule, such as the disclosure of information to a court, or the Corruption and Crime Commission.

The High Courts Decision

In its unanimous decision, the High Court found that “The shadow of injustice cast on the verdict by the note cannot be dismissed on the basis that the note itself and the paucity of evidence of its provenance are insufficient to create a suspicion that, as a matter of fact, the author of the note was overborne in the performance of his duties as a juror”.

Furthermore the Court found that an investigation should have been undertaken, as it is “neither necessary nor desirable to speculate on the facts where they are able to be known”. The Court was reluctant to make any final determination on what the note actually meant, as the note provided insufficient evidence as to the nature of coercion that took place.

The High Court proposed that any ambiguity as to the true meaning of the note, and the occurrence described within it, could be resolved relatively easily. The Court noted as an example that the inquiry might reveal that the physical coercion referred to in the note may have only amounted to a robust debate and that whatever pressure described by the juror in the note was inconsequential in the decision of the jury.

The High Court ultimately ordered that the Supreme Court of Appeal should rehear the matter and that an investigation should occur to properly determine whether unlawful coercion took place.