I. INTRODUCTION

11.1 This chapter concerns the disclosure by jurors and the publication by others of the deliberations of a jury after it has been discharged, either having delivered a verdict, having been unable to agree or not having had the opportunity to consider a verdict. The disclosure and publication of information revealing the identity of a juror fall into a separate category which we deal with in Chapter 5. The issues discussed in this chapter became highly topical In 1985 due to reports in the media of statements from people claiming to have been jurors in widely publicised trials. These reports contained details of the deliberations of the jury, sometimes in terms which cast doubt on the ultimate verdict.¹ There has since been extensive and intensive public, professional and academic debate over the merits of prohibiting jurors from making such disclosures or the media from reporting them.² The introduction of legislation in Victoria specifically addressing this subject has provoked further public comment.³

A. The Conventional Rule Regarding Disclosure

11.2 There is a convention that jurors should not divulge what occurs during their deliberations in the jury room.⁴ In England there is a notice in the following terms in jury rooms:

To members of the jury. Her Majesty’s judges remind you of the solemn obligation upon you not to reveal, in any circumstances, to any person, either during the trial or after it is over, anything relating to it which has occurred in this room while you have been considering your verdict.⁵

Since this convention, or “rule of conduct”,⁶ is not a rule of law, a juror who breaches it is not liable to any legal sanction. The courts have, however, repeatedly criticised jurors who have spoken out.⁷ Any convention inhibiting jurors from divulging details of their deliberations, and the media from republishing them, appears to be of little current force in Australia. On the contrary, it is apparent from recent experience that the media will generally publish disclosures from the jury room made in relation to trials which attract public interest. It is unclear, however, whether representatives of the media think It proper to seek out former jurors for their views or whether they will only publish those views if offered to them by jurors themselves.⁸

B. Jurors’ Disclosures as Contempt of Court

11.3 It is sometimes suggested that, in certain circumstances, disclosure by a juror might amount to a contempt of court,⁹ particularly where the judge has given the jury a specific instruction not to discuss the case with outsiders.¹⁰ Nevertheless. we are not aware of any case in which a juror has been prosecuted for contempt of court for revealing information about the deliberations of the jury. The precise boundaries of the law of contempt are uncertain. Contempts of court take a variety of forms but share the common characteristic that they all involve an Interference with the due administration of justice.¹¹ The view has been expressed that disclosures by a juror of the jury’s deliberations may or may not be a criminal contempt of court depending on the circumstances. In the New Statesman Case the English Court of Appeal said:

...any activity of the kind under consideration in this case which - to use the language of the Attorney-General’s statement tends or will tend to imperil the finality of jury verdicts or to affect adversely the attitude of future jurors and the quality of their deliberations is capable of being a contempt. But that is not to say that there would be of necessity a contempt because someone had disclosed the secrets of the jury room.¹²

11.4 Since there is no Australian decision directly on the point,¹³ there can be no certainty as to the approach which would be taken by the Austtalian courts to disclosures by jurors. In the most recent case to deal with the issue in Australia, R v Gallagher, the Supreme Court of Victoria did not expressly classify disclosure of jury room secrets as a contempt. The Full Court said:

Any attempt to ascertain [jurors’] views about the trial or anything connected with it is thoroughly mischievous. So is any attempt by a juror to volunteer such views for publication.¹⁴

The Court went on to say:

Those who participate in the interviewing of persons said to have been jurors in a particular trial or who report the results of any such Interviewing encourage and compound the mischief.¹⁵

11.5 The Australian Law Reform Commission in its Discussion Paper on the law of media contempt,¹⁶ has also noted the uncertainty of the law in this area and suggested that one of the goals of reform should be “at the very least”¹⁷ to make the position clear. The Commonwealth Director of Public Prosecutions has said that reform in this area is needed to render the law tolerably satisfactory, which it manifestly Is not at present”.¹⁸ Whilst the uncertainty of the law appears to be generally acknowledged, a recent judgment of the New South Wales Court of Appeal¹⁹ has clarified one aspect. The Court reaffirmed that the ordinary principles of criminal liability apply to the law of criminal contempt. The intention of the person who made the disclosure and the intention of the person who published it, are therefore relevant matters to be taken Into account. The Court recognised the need to forsake the use of the law of criminal contempt in inappropriate circumstances.

[W]here the disclosure is made either fortuitously or in the public interest, it is apparent that the “extraordinary procedures and the serious punishments which are typically involved in the application of the law of contempt” will not be invoked.²⁰

In recent instances of former jurors making public statements about their deliberations, such statements have often followed public criticism of their verdicts. Any examination of the law of contempt of court in its application to jurors’ disclosures would also need to examine carefully the question whether public criticism of jury verdicts should, in any circumstances, be regarded as contempt.

C. Jurors’ Disclosures as Evidence

11.6 It appears to be reasonably settled law that an appellate court will not receive evidence as to irregularities taking place in the jury room where such evidence is advanced as a basis for disturbing the jury’s verdict.²¹ This has become known as Lord Mansfield’s rule. Certain forms of misconduct during the deliberative process, such as communication with outsiders, consideration of prejudicial material not admitted into evidence, or the reaching of a decision by tossing a coin are obviously improper. If that type of misconduct by a jury is proven by evidence other than from the former jurors, it will often lead to the quashing of the conviction.²² But evidence of such matters will not be received from the former jurors themselves,²³ unless it relates to the conduct of the juror outside the jury room²⁴ or is given by jurors to contradict allegations of misconduct made against them.²⁵ The true rationale for this exclusionary rule is somewhat unclear, but it is said to be generally based on grounds of public policy.²⁶ The justification advanced by the courts for the rule is that:

. . . the interest of the community in ensuring freedom of debate in the jury room and finality of verdicts outweighs [the interests of the community and of litigants] in seeing that the accepted rules and formalities of a fair trial are maintained and enforced.²⁷

11.7 Notwithstanding the decisive reaffirmation of Lord Mansfield’s rule prohibiting appellate courts from receiving the evidence of jurors in cases such as Re Mathews and Ford and Gallagher, the validity of the rule has continued to be questioned. The editor of the Australian Law Journal queried the merits of the general exclusionary rule some years ago.²⁸ More recently, in a leading article on the subject, Professor Enid Campbell has suggested that the current law “merits attention by our law reform commissions”²⁹ Her suggestion has been supported by Mr Justice McHugh of the New South Wales Court of Appeal.³⁰

11.8 This Report is not the proper place to examine whether there should be any change to this exclusionary rule or the effect which it has upon the appellate level of the criminal justice process. This will be done later in the course of the Criminal Procedure reference when we deal with the subject of appeals in criminal matters. For the purposes of this Report we proceed on the basis that the exclusionary rule continues to exist. It should be recorded, however, that we see considerable merit in the proposal that the application of the rule should be distinguished as to subjective and objective events.³¹

II. THE CURRENT LAW REGARDING DISCLOSURES BY JURORS

A. The Law in New South Wales

11.9 In New South Wales the Jury Act 1977 expressly prohibits the publication during a trial of information which may be used to identify a person as a juror.³² We have made recommendations above (para 5.13) which expand the ambit of the relevant provision to include any disclosure Identifying a juror made during a trial and public disclosure made after the trial without the consent of the juror in question. It would probably be a contempt of court for a juror to make a deliberate disclosure breaching the secrecy of the jury room during the course of a trial. This is because jurors are invariably told by the judge during the trial that they should not discuss the case with anyone but their fellow jurors and only then in the privacy of the jury room. This direction does not customarily prohibit, nor even advise against, discussion of the case with others once it has been completed.³³ Apart from this reasonably clear rule, the law in New South Wales as to jury disclosure is uncertain and, we believe, unsatisfactory.

B. The Law in the United Kingdom

11.10 In 1968 the United Kingdom Criminal Law Revision Committee recommended that, although the convention of keeping jury room deliberations confidential should continue to be observed, legislation to protect the secrecy of the jury room was not desirable.³⁴ In June 1979 Jeremy Thorpe, a prominent political figure, was tried with three others on a charge of conspiracy to murder a former male model who claimed to have had a homosexual relationship with him. The trial lasted six weeks. After deliberating for 52 hours, the jury acquitted each of the four accused men.³⁵ About one month later, the New Statesman magazine published an account of the jury’s deliberations in the case based on information given to journalists by one of the jurors.³⁶ The information had been volunteered by the juror who felt that some aspects of the trial should be made public. The Attorney-General applied to the Divisional Court for an order that the publishers of the magazine were in contempt of court on the ground that the article interfered with the due administration of justice because it tended to imperil the finality of jury verdicts and thereby to diminish public confidence in the general correctness and propriety of such verdicts and to affect adversely the attitude of future jurors and the quality of their deliberations. The court held that mere disclosure of the secrets of the jury room was not necessarily a contempt although It was capable of being a contempt.³⁷ Whether a disclosure was in fact a contempt had to be judged in the light of the circumstances in which the publication took place. The court regarded it as relevant in this case that the decision to publish was made with the best intentions (following legal advice) and that the trial was over. No special circumstances warranting the condemnation of the publication as contempt of court had been made out.³⁸

11.11 In the New Statesman Case, the court observed that the Attorney General was fully justified in invoking the law of contempt

. . . in view of the apparently diminishing respect for the convention of observance of jury secrecy and the risk of escalation in the frequency and degree of the disclosures.³⁹

Following this decision, the government moved quickly to introduce legislation to preserve the confidentiality of jury deliberations under threat of gaol sentences of up to two years’ duration.⁴⁰ This legislation provides that it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations. However, it is not a contempt for a juror to disclose such particulars in the course of the trial itself for the purpose of enabling the jury to arrive at their verdict, or in any subsequent proceedings for an offence alleged to have been committed in relation to the jury. The legislation is alarmingly broad in Its terms and has been criticised as a Draconian provision.⁴¹ The form In which the legislation is expressed would even allow the prosecution of a juror for discussing the jury’s deliberations with his or her spouse. It also prevents research into the workings of the jury system. This feature of the legislation has already had its shortcomings revealed. It apparently frustrated the work of the Fraud Trials Committee chaired by Lord Roskill.⁴²

C. The Law in Canada

11.12 The Canadian Criminal Code provides that it is an offence for a juror to disclose any information relating to the “proceedings” of the jury when it is absent from the courtroom.⁴³ It is said that the enactment of this provision was prompted by the publication in the press of an article based on interviews with jurors who had been discharged after they had failed to agree upon a verdict.⁴⁴ There is only a limited exception to the general rule. This exception permits disclosure for the purpose of investigating an alleged offence by a juror. The Canadian Law Reform Commission has proposed that the strictness of this provision be relaxed so that, among other things, effective research into the operation of the jury system may be carried out.⁴⁵

D. The Law in the United States

11.13 The rule of law established by Lord Mansfield’s judgment in Vaise v Delaval⁴⁶ was distinguished by the Iowa Supreme Court when it considered this issue in 1866.⁴⁷ In that case the court determined that the evidence of jurors may be admitted where the evidence is tendered to prove a matter “which does not essentially inhere in the verdict itself’’⁴⁸ According to this rule, evidence of undue influence by jurors on their fellows, mistaken interpretations of evidence and the process of reasoning would not be admitted. But evidence of improper influences by people outside the jury or of observable impropriety within the jury would be admitted. The distinction, for the purposes of the rule of evidence, between external and internal influences in the jury’s deliberative process was later endorsed by the United States Supreme Court.⁴⁹ It has since been incorporated in the federal rules of evidence.⁵⁰ It can be seen that the traditional rule which preserves the secrecy of jury deliberations has been applied less strictly in the United States. The same liberal approach is evident in the United States law and practice regarding jury disclosures generally.

11.14 We refer below (para 11.28) to a number of examples In the United States where former jurors have made public disclosures of the jury’s deliberations.⁵¹ These examples show that there is no restriction in the United States on the right of a juror to divulge the secrets of the jury room. There are certain restrictions placed on the right of the media to obtain information from jurors but these are limited by reason of the First Amendment to the United States Constitution. A law or rule of court denying the media the right to interview jurors Is unconstitutional.⁵² Interviewing of jurors after the verdict is a common practice. At least 26 federal districts have made rules of court which give the court the right to supervise juror interviews.⁵³ In order to avoid threats to the administration of justice, judges are entitled to restrict the time and place of juror interviews. They cannot, however, forbid them.

E. The Law in Victoria

11.15 In the same way that particular cases In England and Canada inspired legislation regarding jury disclosures, the Victorian Government reacted to the Gallagher case by enacting new rules designed to prevent disclosures by jurors after a trial has finished. In that case the jury had been asked to consider its verdict on an indictment charging a prominent member of the community with 43 offences. The trial had lasted some months. After eight days deliberation the accused person was convicted of 23 offences and acquitted of the other 20. A national newspaper published a story based on disclosures said to have been made by one member of the jury.⁵⁴ In it she claimed to have been forced to reach a verdict with which she did not agree. The Victorian Parliament moved quickly to implement legislation to restrict such disclosures in future.⁵⁵

11.16 Three specific offences were created. Section 69A(1) of the Juries Act 1967 (Vic) now makes it an offence for a person to “publish to the public any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of a jury”⁵⁶ Section 69A(2) makes it an offence for a person to solicit or obtain such information. Section 69A(3) prohibits a former member of a jury from disclosing such information if that person has reason to believe that “it is likely to be or will be published to the public” It is expressly provided that the publication of any information about the deliberations of a jury which does not identify a juror or the relevant legal proceedings is not prohibited.⁵⁷

III. JURY SECRECY: THE ARGUMENTS FOR AND AGAINST

A. Arguments in Favour of Jury Secrecy

11.17 Mr Justice McHugh of the New South Wales Court of Appeal summarised the relevant arguments in a comprehensive paper recently delivered to a seminar attended by lawyers and journalists. He cited the following as being the grounds for preserving the traditional rule of jury secrecy first put forward by Lord Mansfield.

• Without the exclusionary rule there would be serious inroads into the freedom of speech of jurors in the jury room and their candid discussion of the issues would be discouraged.
• Secrecy facilitates decision making because it protects jurors from outside influences.
• The exposure of jurors’ deliberations would undermine public confidence in the system and bring about the end of trial by jury.
• Unless jurors are shielded from unwanted scrutiny, people will be reluctant to serve on juries.
• The secrecy rule is necessary to ensure the finality of the verdict, whether that be a verdict of guilty or not guilty.
• The secrecy rule protects the community satisfaction which flows from a unanimous verdict. Jurors would hesitate to reach unanimity if their compromises may be publicly exposed.
• Secrecy enables juries to bring in verdicts without fear of community reaction against an unpopular verdict. Where the reasons for a decision are not known, unpopular verdicts cannot be effectively challenged.
• Disclosure by jurors may be unreliable and lead to a misunderstanding of the verdict. Human recollection of what was said or discussed in situations of drama, conflict or emotion is always suspect.
• Secrecy protects the privacy of the individual jurors and prevents their harassment.
• The secrecy rule protects jurors from pressure to explain the reasons for their verdict.
• The secrecy rule prevents vendettas against jurors and their families by accused people and their relatives and associates.
• The rule preserving secrecy reduces the strain on jurors whose work may be subjected to intense public scrutiny In cases involving important issues or public figures.

B. Arguments Against the Secrecy Rule

11.18 In the same paper Mr Justice McHugh set out some of the arguments in favour of lifting the veil of secrecy. Three of these arguments should be emphasised. Firstly, disclosure may allow the general public, legal researchers or law reform agencies to see how the jury really functions. This will give greater understanding of the way in which the system of criminal justice works and, more importantly, reveal its strengths and weaknesses. For example, the survey which we conducted by inviting jurors who had actually participated in trials to complete a questionnaire have enabled us to draw a number of conclusions about the effectiveness of the jury system in New South Wales. These have allowed us to identify certain areas appropriate for reform and to formulate our recommendations accordingly.

11.19 Secondly, it may be through such means that specific injustices are brought to light. Whilst evidence from this source may be inadmissible in an appellate court asked to overturn a conviction, it may be relevant to the question of executive clemency with regard to sentence or to a governmental decision whether or not to initiate an inquiry.⁵⁸ In the same way, disclosures of this kind may generate such public pressure as to induce otherwise reluctant governments to take steps to reconsider verdicts.⁵⁹

11.20 Thirdly, a juror who speaks out about his or her experiences (whether to report on a favourable personal experience or to bring to light a perceived injustice) is simply exercising his or her right to freedom of speech. The existence of such a right of itself requires no justification, although it may be liable to eclipse In the face of other values or principles if they are of sufficient weight and cogency to prevail.

11.21 Other arguments in favour of permitting jurors’ disclosures cited by Mr Justice McHugh were:

• Disclosure will make juries more accountable by making the jury system subject to reasonable scrutiny. The public is entitled to have the jury know that the public is watching its performance.
• Disclosure of the workings of the jury system may reveal inadequacies about that system which can lead to worthwhile reforms.
• The publication of a juror’s experience through disclosure may have a valuable educative effect on the general public.

11.22 We recognise that the arguments for and against disclosure must be weighed in the balance. The juror who speaks out will almost certainly disclose information which, whether accurate or not, may be embarrassing to other jurors who spoke or acted in a manner which excited the criticism of the vocal juror. In this sense the exercise by one juror of the right to speak will involve the infringement of the right to privacy of another juror. One can infer from the silence of the majority of jurors, at least at the public level, that they wish to keep details of this experience private. Insofar as the jurors who speak out are likely to reflect criticism of the attitude if not the verdict of the jury as a collective body, the likelihood of this intrusion being hurtful is increased.

11.23 In the immediate aftermath of the publicity given to statements made about the jury in the Murphy trial and statements made by the jurors themselves, applications by prospective jurors to be excused trebled.⁶⁰ We can safely conclude that, to many jurors. the fear of others publicly discussing what might be said and done would be a disincentive to jury service. More significantly, it could be a disincentive to speak with frankness and candour in the jury room. This factor is important but must not be exaggerated, because the very threat of publicity may itself be an incentive to act responsibly.

IV. SPECIFIC RECOMMENDATIONS

A. Soliciting Information and Harassment of Jurors

Recommendation 91: The Jury Act 1977 should be amended to provide that it is an offence to solicit or harass a juror or former juror for the purpose of obtaining for publication Information regarding statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of a jury.

11.24 The recent Victorian legislation has identified soliciting of Information from jurors as being a particular activity which should be prohibited.⁶¹ This practice has been frowned upon by the courts.⁶² We consider that the legitimate interests of the public in obtaining information about the conduct of criminal cases and the workings of the criminal justice system generally should not prevail over the right to privacy and freedom from harassment which should be enjoyed by individual jurors. Once a juror has completed his or her task in a trial, the juror should be able to resume a normal life free from further interference. We do not regard this recommendation as being a restriction on the freedom of the press to publish information which it considers is in the public interest. There is nothing in this rule which prohibits publication of material which is given to the press by a juror on a voluntary basis. A juror who is anxious to make public an issue which he or she in conscience regards as important, would not be prevented from doing so.

B. Research on the Jury System

Recommendation 92: Any amendments to the Jury Act 1977 which have the effect of placing any restriction upon former jurors disclosing information should expressly reserve to the Attorney General the power to authorise the conduct of research projects involving the questioning of former jurors about their jury room experiences.

11.25 Several commentators have noted that legislative restrictions on jury disclosures prevent legitimate researchers discovering the way In which juries operate. The English legislation, as has been noted, is in such broad terms as to prevent scientific research. The Fraud Trials Committee, under the chairmanship of Lord Roskill, published Its final report in January 1986.⁶³ making several references to the fact that the work of the Committee was hampered by the provisions of the Contempt of Court Act 1981.⁶⁴ The Committee had been anxious to discover whether juries had the ability to understand fraud cases involving complex issues and technical evidence.

The ideal method of attempting to address the issue would be to question jurors on actual cases. However, research of this kind is effectively ruled out by the Contempt of Court Act 1981. Even though the restrictions in that Act designed to preserve the confidentiality of juries’ deliberations are arguably not so all-embracing as to rule out all communications with jurors on certain aspects of their task, the Committee did not wish to countenance any research in this field which would be against the spirit of the law. It was necessary therefore to consider other, less than ideal, options.⁶⁵

11.26 In Canada the Law Reform Commission has suggested that similar provisions in the Canadian Criminal Code ⁶⁶ be amended so as to allow juries to disclose information for the purpose of furthering scientific research about juries.⁶⁷ Professor Glanville Williams has expressed the hope that if it were found necessary to make disclosures of jury deliberations a criminal offence, then disclosures for the purpose of legitimate research should be exempt.⁶⁸

C. The Sale of Jury Secrets

Recommendation 93: The Jury Act 1977 should be amended to provide that it is an offence for a person who is serving or has served on a jury to seek or obtain a financial advantage by disclosing information regarding the jury’s deliberations in a manner which identifies the particular trial.

11.27 This proposal is designed to overcome some of the dangerous and undignified practices which are apparently allowed to flourish in the United States. A few examples will illustrate the kind of conduct we are seeking to prevent.⁶⁹

• Claus von Bulow was tried in Rhode Island on a charge of attempting to murder his wife by administering an overdose of drugs to her. He was convicted at his first trial but appealed and was retried. The retrial received nationwide media coverage. Some television networks used jurors from the first trial to give commentaries on the decisions of the court in the second trial.
• A large manufacturer of tobacco products has been sued on a number of occasions by the families of people who claim to have contracted lung cancer by smoking cigarettes. Only one of these actions has so far been heard by a jury but it is expected that many will follow. Some of the jurors in the first trial have been hired as consultants for subsequent cases.
• In December 1985 litigation which followed a take over agreement between two large oil companies concluded when a Texas jury awarded one of the companies over $A15 billion In damages. The case has naturally caused widespread interest, particularly within the business community. Jurors have been appearing on television and radio programs to discuss the case and one has plans underway to write a book entitled “The $10 Billion Jury”.
• In the trial of the well known car maker, JohnDe Lorean, on drug charges, one of the jurors appeared on a morning television program during the trial to discuss the progress made In the trial so far. As it happened, nothing was said which amounted to grounds for discharging the jury and declaring a mistrial. The same juror has apparently appeared on the same program since to publicize the book he is writing about the case.

11.28 We are unaware of any case of a juror in New South Wales or elsewhere in Australia having been paid to disclose information regarding the jury’s deliberations although we would not be surprised if this had occurred. There have been examples of former jurors discussing cases in which they participated. These have usually involved uncontroversial issues or statements of conscience by the individuals involved. We consider that the kind of conduct which is apparently tolerated in the United States is, apart from being undignified, highly dangerous and likely to bring the system of trial by jury into disrepute. It is also likely to have a seriously damaging effect on both the quality and the integrity of the decision making processes of juries. We note, moreover, that it has been suggested that a juror who sells jury secrets, as opposed to one who merely discloses them, may be guilty of a criminal contempt at common law.⁷⁰

11.29 When ever jurors are offered payment for material which has traditionally been regarded as confidential information, there is a risk that they will tailor the information to suit the perceived interests of the purchaser. If, for example, there is media interest in a particular trial, a juror may deliberately sensationalise the information provided in order to make a better and thus more lucrative story. Offering money to a juror in advance for Information to be provided after the trial is very likely to affect adversely the quality of that juror’s participation in the trial and the deliberations.

D. Jury Disclosures During Trial

Recommendation 94: The Jury Act 1977 should be amended to provide that it is an offence for a person who is a member of a jury in a criminal trial to disclose during the trial any information regarding the deliberations of the jury unless that disclosure is made for the purpose of reporting to the judge an irregularity affecting that particular jury or in answer to a question asked by the judge.

11.30 Indiscussionsonthesubjectofjurydisclosure,thequestionofdisclosures made during the trial is largely ignored. This can be explained by the fact that it has been presumed that disclosures of this kind would amount to contempt of court. This presumption is probably correct, particularly In the light of the conventional practice of judges in New South Wales to direct juries at the end of each day and before their ultimate discharge that they should not discuss the case with any person who is not a member of the jury. A disclosure is clearly a breach of that order and for that reason is probably a contempt of court. Having said that, it should also be said that we know of no case in which a juror has been charged with contempt of court in these circumstances. The current law was stated with firm conviction by the Director of Public Prosecutions, Mr I Temby QC.

During the course of a trial the jury generally, and individual jurors, must be considered sacrosanct. It would be a grave abuse for any person-whether from the prosecution, the defence, a witness, or a journalist - to do anything while a trial is pending which could have any effect upon the jury verdict. For present purposes appearances matter almost as much as actuality does, and any journalist who had any dealings, direct or indirect, with a juror between arraignment and discharge of the jury could expect to be met with severe consequences. To say this is to state the obvious.⁷¹

Mr Temby went on to note that conduct of this kind could involve the commission of the offences of embracery, attempting to pervert the course of justice or contempt of court.⁷² The Commission considers that, notwithstanding the range of offences which appears to be available to meet this type of conduct at present, it should be made clear that it is expressly prohibited. Whilst we share Mr Temby’s view as to the current law, we consider that there is a benefit to be obtained in the present climate by removing any doubts there may be about the law in this area.

E. Jurors’ Disclosures in Other Contexts

Recommendation 95: Apart from the changes to the law proposed in Recommendations 91, 92, 93 and 94, there should be no immediate action taken relating to the disclosure by Jurors of information about their deliberations.

11.31 One issue which our recommendations on Jurors’ disclosures have not addressed is that of post-trial voluntary disclosures by Jurors where there is no question of financial advantage. Should these types of disclosures be prohibited, either totally or in certain circumstances? In the short time available to the Commission for consideration of this aspect of the jury system, the members of the Commission have discussed the matters summarised In this chapter at considerable length. However, we have decided not to come to a conclusion on this final question at this stage of the Criminal Procedure reference. This question has really only become a real issue in the past few months. It was so recent at the time our Discussion Paper was published that it was not canvassed at any length there. Accordingly, we have not had the benefit of full community consultation on the question. The complexity of the matter and the public policy issues which it involves lead us to conclude that we would benefit from the opportunity to consult further on this issue. We hope that the analysis contained in this chapter will itself prompt further dispassionate discussion.

11.32 We are satisfied that the values and interests identified as arguments in favour of more strictly controlling Jurors’ disclosures are significant. Some of us, as presently advised, believe that they outweigh those values cited in support of the status quo. We are, however, unanimous in our opinion that there should not be an urgent and ill-considered response to this subject. Law reform agencies have been criticised in the past for not giving full consideration to each other’s views and for overlapping of endeavours. The Australian Law Reform Commission has been giving the issues discussed in this chapter its detailed attention for almost 3 years as an aspect of its reference on contempt. We think it appropriate that this Commission should await the publication of that Commission’s report before expressing our own views on these subjects. Our future recommendations will also be informed by the experience in Victoria with its recently enacted legislation.

1. The Chamberlain, Gallagher, Maher and Murphy trials have all received publicity of this kind in New South Wales. In addition, in Western Australia the case of Michael comes into the same category.

2. A R Blackshield “After the Trial: The Free Speech Verdict” 59 Law Institute Journal (Vic) 1187; Mr Justice J H Phillips “Jury Room Disclosures Erode The System” 59 Law Institute Journal (Vic) 1330; “Journalists and Jurors: Contempt of Court” seminar conducted by the Media Law Association of Australia, Sydney, 12 February 1986; J G Starke gC “The Confidentiality and Sanctity of Jury-Room Deliberations” (1986) 60 Australian Law Journal 56.

3. Juries (Amendment) Act 1985 (Vic).

4. E Campbell “Jury Secrecy and Impeachment of Jury Verdicts” (1985) 9 Criminal Law Journal 132 and 187.

5. Halsbury’s Laws of England (4th ed) Vol 26 para 647.

6. Ellis v Deheer [1922] 2 KB 113 at 118.

7. Re Mathews and Ford [1973] VR 199 at 213; R v Armstrong [1922] 2 KB 555 at 569; Burnside v R [1963] Tas SR 174 at 175; R v Gallagher (unreported) Supreme Court of Victoria, Full Court, 7 October 1985.

8. In “Journalists and Jurors: A View from the Gallery” a paper delivered to a seminar conducted by the Media Law Association of Australia, Sydney, 12 February 1986, Mr Dan O’Sullivan, Editor-in-Chief, West Australian Newspapers Ltd., expressed the view that harassment of Jurors should “certainly [be] an offence” but that there should be a defence of public interest.

9. For example Ellis v Deheer [1922] 2 KB 113; Attorney-Generat v New Statesman and Nation Publishing Company Ltd [1981] 1 QB 1 at 11; United Kingdom Departmental Committee on Jury Service Report (Cmnd 2627 1965) para 355; R v Dyson [1972] OR 744 at 751, 753; Re Donovan’s Application [1957] VR 333 at 337.

10. Re Donovan’s Application [1957] VR 333 at 336, 337; Ellis v Deheer [1922] 1 KB 113 at 118.

11. Attorney General v Leveller Magazine (1979) AC 440 at 449 per Lord Diplock.

12. Attorney General v New Statesman and Nation Publishing Co Ltd [1981] 1 QB 1 at 10.

13. Mr Justice M H McHugh “Jurors’ Deliberations, Jury Secrecy, Public Policy and the Law of Contempt”, paper delivered to a seminar conducted by the Media Law Association of Australia, Sydney, 12 February 1986.

14. R v Gallagher (unreported) Supreme Court of Victoria, Full Court, 7 October 1985.

15. Ibid.

16. Draft 10 February 1986 to be published in March 1986.

17. Id p49.

18. I Temby QC “Journalists and Jurors: Contempt of Court”, paper delivered to a seminar conducted by the Media Law Association of Australia, Sydney, 12 February 1986.

19. Registrar of the Court of Appeal v Willesee and Others (unreported) Supreme Court of New South Wales, Court of Appeal, 20 December 1985.

20. Id at 32 per Hope JA.

21. The rule has its origin in the judgment of Lord Mansfield in Vaise v Delaval [1785] 1 TR 11.

22. For example R v Neal [1949] 2 KB 590 at 594.

23. Shoukatallie v The Queen [1962] AC 81; Re Mathews and Ford [1973] VR 199: R v Gallagher (unreported) Supreme Court of Victoria, Full Court, 7 October 1985.

24. Perdriau v Moore (1888) 9 LR (NSW) 143.

25. See cases noted in Campbell “Jury Secrecy and Impeachment of Jury Verdicts” (1985) 9 Criminal Law Journal 132 p 148 n96.

26. Phillips, note 2 p1330.

27. Re Mathews and Ford [1973] VR 199 at 211.

28. (1972) 46 Australian Law Journal 369.

29. Note 4 p201.

30. Note 13 p19.

31. Canadian Law Reform Commission The Jury in Criminal Trials (WP27, 1980) pp149-150.

32. Jury Act 1977 s68.

33. It has only very recently become the practice of some judges to advise Jurors against revealing any part of the jury’s deliberations after they have been discharged. Mr Justice McHugh, note 13, note 38 to his paper.

34. Criminal Law Revision Committee Tenth Report Secrecy of the Jury Room (1968 Cmnd 3750).

35. A Waugh The Last Word (1980) pp236-237.

36. P Chippindale and D Leigh New Statesman 27 July 1979.

37. Attorney General v New Statesman [1981] 1 QB 1.

38. Campbell, note 4 p135.

39. Attorney-General v New Statesman [1981] 1 QB 1 at 7.

40. Contempt of Court Act 1981 (UK) s8.

41. Temby, note 18. See also Campbell, note 4 p136; McHugh, note 13.

42. Fraud Trials Committee Report (HMSO, 1986) para 8.10.

43. Criminal Code 1970 (Canada) s576.2.

44. Campbell, note 4 p136.

45. Law Reform Commission of Canada, The Jury (Report 16, 1982) recommendation 37.1.

46. (1785) 1 TR 11.

47. Wright v Illinios and Mississippi Telegraph Co 20 Iowa 195 (1866).

48. 20 Iowa 195 at 210, noted in Campbell, note 4 p187.

49. Mattox v United States 146 US 140 (1892).

50. Federal Rules of Evidence, Rule 660(b) provides:

Upon any inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or as to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

52. Note 13; In Re the Express and News Corporation and Clift (1982) (5th Ctrc) 695 F2d 807 at 808, 809.

53. “Post Trial Juror Interviews by the Press: The Fifth Circuits Approach” 62 Washington University Law Quarterly 783 p786.

54. G Brooks “A Gallagher Juror’s Story” National Times 9 August 1985.

55. Juries (Amendment) Act 1985, assented to on 10 December 1985.

56. The words are the same as those used in the Contempt of Court Act 1981 (UK).

57. Juries Act 1967 (Vic) s69A(4).

58. Crimes Act 1900 s475; Criminal Appeal Act 1912 s26.

59. Royal Commission Report Concerning the Conviction of Edward Charles Splatt (South Australia, 1984).

60. Personal communications with judges and representatives of the Office of the Sheriff.

61. Juries Act 1967 (Vic) s69A(2).

62. Prothonotary v Jackson [1976] 2 NSWLR 457.

63. Fraud Trials Committee Report (HMSO, 1986).

64. Appendix A para 7 pp201-202; see also para 8.10 p135 and a separate publication of the Fraud Trials Committee “Improving the Presentation of Information to Juries in Fraud Trials: A Report of Four Research Studies”. In the Foreword Lord Roskill notes the restrictions placed upon the work of the Committee by the Contempt of Court Act.

65. Appendix A para 7 pp201-202.

66. Criminal Code 1970 (Canada) s576.2.

67. Law Reform Commission of Canada The Jury in a Criminal Trial (WP 27, 1980) p42.

68. The Proof of Guilt (3rd ed 1963) p270.

69. All examples are taken from J Perrett note 51.

70. McHugh, note 13 p9.

71. Temby, note 18.

72. Ibid.