Citation: Regina v Kalid Kaddour [2004] NSWCCA 361
Court: NSW Court of Criminal Appeal
Date: 12 October 2004
Judge(s): Spigelman CJ; Buddin J; Smart AJ
Background
The appellant was appealing his conviction on several charges. One ground of appeal concerned a juror whom the appellant alleged knew him personally and held adverse knowledge of his character and reputation. This raised the question of whether the juror's identity could be disclosed to allow the ground to be properly argued.
At first instance, Dunford J had ordered that the Sheriff's report on the possible juror identity, and the name identified in supporting affidavits, be placed in sealed envelopes. His Honour refused to allow the appellant or the Crown to access those envelopes. He concluded that section 68 of the Jury Act 1977 left him with no power or discretion to permit such disclosure, and that even if he did have discretion, he would not exercise it.
The matter came before the Court of Criminal Appeal on an interlocutory application for access to the sealed material.
Legal Issues
- Whether the word "person" in section 68(1) of the Jury Act 1977 extends to a court, such that courts are prohibited from disclosing juror identity information
- Whether the circumstances listed in section 68(4) in which the Sheriff may disclose juror identity information constitute an exhaustive list of all permitted disclosures
- Whether a court may order disclosure of juror identity where it is necessary to determine if a significant miscarriage of justice has occurred
Decision
Spigelman CJ (with Buddin J and Smart AJ agreeing) held that Dunford J had erred in concluding that the court lacked any discretion to permit disclosure under section 68.
On the first issue, the Court held that the word "person" in section 68(1) does not extend to a court. Spigelman CJ identified a strong and consistent line of authority across multiple High Court and other decisions establishing that, as a matter of ordinary statutory language, "person" does not ordinarily encompass a court. The structure of section 68 reinforced this conclusion: subsection (4) expressly lists the bodies to whom the Sheriff may disclose information, and some of those bodies are plainly not "persons" in the ordinary sense. This internal drafting supported the view that the prohibition in subsection (1) was never intended to bind a court.
On the second issue, the Court held that section 68(4) does not constitute an exhaustive list of all circumstances in which juror identity may be disclosed. That subsection is limited to contempt and offences relating to a jury. It does not cover the full range of circumstances, including potential miscarriages of justice arising from a juror's relationship with or knowledge of an accused, where disclosure may be necessary. Parliament would not have intended the provision to prevent a court from taking steps to ensure justice.
The Court ordered that the sealed envelopes be opened for inspection by the Court and that the material then be made available to the legal representatives of both parties.
Orders Made
- Access granted to the sealed envelope or envelopes
- The envelopes to be opened and inspected by the Court
- Material made available to the legal representatives of the parties only
Key Takeaways
- The word "person" in section 68(1) of the Jury Act 1977 does not encompass a court, meaning the prohibition on disclosing juror identity information in that subsection does not bind courts
- Section 68(4), which lists circumstances in which the Sheriff may disclose juror identity, is not an exhaustive statement of all circumstances permitting disclosure; it is confined to investigations or prosecutions for contempt or jury-related offences
- Courts should be slow to construe legislation in a way that prevents them from taking steps necessary to guard against miscarriages of justice arising from juror identity or a juror's knowledge of an accused
- Where juror identity arises in a context where a significant miscarriage of justice may have occurred, a court retains the power to order that sealed material be disclosed to the parties' legal representatives
- In dismissing Dunford J's approach, the Court of Criminal Appeal confirmed that the statutory scheme does not strip courts of all discretion to act where the interests of justice so require
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), sections 38(7), 68, 68A
Cases:
- Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
- Cowan v Stanhill Estates Pty Ltd [1966] VR 604
- Hilton v Wells (1985) 157 CLR 57
- Kizon v Palmer (1997) 72 FCR 409
- Miller v Miller (1978) 141 CLR 269
- Parkes Management Limited v Perpetual Trustee Co Ltd (1979) 1 NSWLR 274
- Minarowski & Koziol v R (1995) 83 A Crim R 78