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Supreme Court 29 August 2000

R v Laws

[2000] NSWSC 880

Also reported as 50 NSWLR 96
Public order & justice offences
CATCHWORDS CRIMINAL LAW MEANING OF THE WORD "SOLICIT" S68A JURY ACT 1977 QUESTION OF LAW OR FACT NATURAL AND ORDINARY MEANING

Citation: R v Laws [2000] NSWSC 880
Court: Supreme Court of New South Wales
Date: 29 August 2000
Judge(s): Wood CJ at CL

Background

The accused faced a charge under s 68A of the Jury Act 1977 (NSW), which prohibits a person from soliciting information from a juror or former juror for the purpose of obtaining information about jury deliberations. At the close of the Crown case, defence counsel raised a question about how the word "solicit" in that provision should be understood and, critically, whether the trial judge or the jury should determine its meaning.

The Crown contended that "solicit" carried its ordinary dictionary meaning: to ask for, or make a request for, information. The defence argued for a narrower reading, submitting that the word required some element of pressure, persuasion, or importuning before conduct could fall within the provision. On that narrower reading, a simple or innocuous request would not be captured.

The matter arose before the close of evidence, without a formal no-case submission, but the parties agreed that resolving it would affect how the defence case proceeded and how the trial would ultimately be left to the jury.

  • Whether the meaning of "solicit" in s 68A of the Jury Act 1977 is a question of fact for the jury, or a question of statutory construction to be determined by the trial judge as a matter of law.
  • Whether "solicit" in this context carries only its natural and ordinary meaning (to ask or request), or a special, confined meaning requiring some degree of pressure, persuasion, or importuning.
  • Whether the legislative history, including second reading speeches and a Law Reform report, supported reading a more limited meaning into the provision.

Decision

Wood CJ at CL held that the word "solicit" presented a question of law, not a question of fact for the jury. Because the defence contended that the word bore a meaning more confined than its standard dictionary definitions, it was appropriate to determine, as a matter of law, whether any such special or unusual meaning applied. The principle from Brutus v Cozens (1973) AC 854, relied upon by the defence, was distinguished on this basis: that principle applies where an ordinary word is used in its ordinary sense, not where a party contends for a restricted or unusual construction.

On the substance, the court held that "solicit" means to ask, or to make a request for, information. It does not require harassment, pressure, or importuning. Those stronger concepts are captured by the separate word "harass" in the same provision. The co-existence of "solicit" and "harass" as distinct prohibitions in s 68A(1) indicated that Parliament intended each word to carry independent content, and that "solicit" was not to be read as requiring the kind of forceful or persistent conduct associated with "harass".

The court was also persuaded by the exception in s 68A(3), which permits soliciting in the context of an authorised jury research project. Researchers conducting such work would be unlikely to use pressure or persuasion to obtain information, yet the exception presupposed that their inquiries would otherwise constitute soliciting. This further confirmed that a simple request was sufficient.

The court declined to use the second reading speeches or Law Reform report to introduce a gloss on the plain language of the provision. The language of s 68A was described as clear and unambiguous, directed at reinforcing the sanctity of the jury process. The trial was to proceed on the basis that "solicit" meant to ask or request, without any additional requirement of pressure or persuasion.

Orders Made

• The trial should proceed upon the basis outlined in the judgment.

Key Takeaways

  • Under s 68A of the Jury Act 1977 (NSW), the word "solicit" means to ask or make a request for information; it does not require any element of pressure, harassment, or importuning.
  • Where a party contends that a statutory word bears a meaning more confined than its ordinary dictionary definitions, the question of construction becomes a matter of law for the trial judge, rather than a question of fact for the jury.
  • The principle in Brutus v Cozens (that the meaning of an ordinary word is a question of fact) does not apply where one party argues for a special or restricted meaning departing from standard usage.
  • The presence of "harass" as a distinct limb of s 68A(1) was treated as a significant structural indicator: if "solicit" already required pressure or importuning, the word "harass" would be rendered superfluous.
  • The research exception in s 68A(3) reinforced the broad reading of "solicit," since authorised jury researchers would not typically use pressure to obtain responses, yet their inquiries would otherwise fall within the prohibition.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 68A
- Jury Amendment Act 1997 (NSW)
- Crimes Act 1900 (NSW), s 26
- Interpretation Act 1987 (NSW), s 33

Cases:
- Brutus v Cozens (1973) AC 854 (distinguished)
- Sweeney v Astle (1923) NZLR 1198 (applied)
- Azzopardi, NSWCCA, 1 October 1998 (applied)
- R v Murat Ay, NSWCCA, 30 October 1998 (applied)
- R v H (1993) NZLR 129 (distinguished)
- Forgione (1969) SASR 248 (considered)
- Herring, NSWCCA, 24 November 1998 (considered)
- Rinaldi (1993) 68 A Crim R 284 (considered)
- Orcher (1999) 48 NSWLR 273 (noted)
- Regina v Young (1999) 46 NSWLR 681 (noted)