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Court of Criminal Appeal 16 September 2005

R v Potier

[2005] NSWCCA 336

Public order & justice offences

Citation: R v Potier [2005] NSWCCA 336
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2005
Judge(s): Basten JA, Simpson J, Buddin J

Background

The appellant had been convicted in October 2001 on two counts of soliciting an undercover operative to murder his estranged de facto wife and her male companion. His appeal against conviction had been listed for hearing on 30 September 2005, following earlier delays and an intervening sentence appeal in 2004.

Before the conviction appeal was heard, the appellant filed a procedural application seeking orders requiring two named persons to attend and give evidence at the appeal hearing. One was a juror from his trial, described as a professional journalist who had written a book about his jury experience. The other was the Director of Public Prosecutions.

The application was heard as a preliminary matter. It was common ground for the purposes of the application that the book had been written by a member of the jury, though the Court noted it was not making any formal finding to that effect.

  • Whether the Court had power to compel a former juror to give evidence at the appeal hearing about the jury's deliberations
  • Whether the long-established common law rule excluding juror evidence of deliberations applied to bar the proposed examination
  • Whether the juror's authorship of the book constituted a sufficient basis to require the juror's attendance
  • Whether there was any proper basis to require the Director of Public Prosecutions to give evidence

Decision

The Court refused the application on both grounds. On the juror question, the Court applied the well-established exclusionary rule, drawn from Lord Mansfield's judgment in 1785 and confirmed in numerous Australian and English authorities, that courts will not receive evidence from former jurors about their deliberations. This rule encompasses not only discussions in the jury room but also individual jurors' thought processes as they bear on the verdict.

The appellant's submissions identified material he said the book contained about how the jury weighed certain evidence. However, the Court noted that even if such material existed, the appellant could rely on the book itself in his submissions without requiring the juror to give further oral evidence. The matters he sought to explore were squarely within the scope of the deliberations rule and therefore inadmissible.

Basten JA added that the inference the appellant sought to draw, namely that the juror had a financial motive to convict in order to publish a commercially valuable account, did not follow logically. There was no sound basis to infer the juror had any motive to reach any particular verdict simply because he later wrote about his experience. Accordingly, no proper basis existed to compel the juror's attendance.

Because the application against the juror failed, the application against the Director of Public Prosecutions also fell away. The Court noted the only remaining suggestion regarding the Director was that he might have spoken with the juror-author before the verdict, but there was no factual foundation for that inference. The Court also indicated that any question about the juror's conduct in publishing the book was a matter for the Sheriff under the Jury Act, rather than for the Court on this application.

Orders Made

  • Application refused.

Key Takeaways

  • The long-standing common law exclusionary rule prevents courts from receiving evidence from former jurors about their deliberations, including their individual thought processes bearing on the verdict, regardless of whether those deliberations have been described in a published book.
  • Where material in a published source is said to support a ground of appeal, an appellant may rely on that material directly without requiring its author to attend and give oral evidence.
  • No logical connection exists, without more, between a juror's decision to write about jury service and any motive to reach a particular verdict, and such an inference alone is insufficient to justify compelling a juror's attendance.
  • The Court of Criminal Appeal confirmed that allegations of improper conduct by a juror in publishing material about a trial are a matter to be dealt with by the Sheriff under the Jury Act, not by the appellate court in the course of an appeal hearing.
  • Refusing the application against the DPP, the Court noted that speculation about possible contact between the DPP and the juror-author, without any factual foundation, could not support an order for the DPP's examination.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 68B

Cases:
- R v Skaf (2004) 60 NSWLR 86
- R v Rinaldi (1993) 30 NSWLR 605
- R v K (2003) 59 NSWLR 431
- R v Minarowska (1995) 83 A Crim R 78
- R v Booth (1982) 8 A Crim R 4
- R v Potier [2004] NSWCCA 136
- The Queen v Glennon (1992) 173 CLR 592
- Webb v The Queen (1993-4) 181 CLR 41