How to Preserve the Integrity of Jury Trials in a Mass Media Age
How to Preserve the Integrity of Jury Trials in a Mass Media Age
Supreme and Federal Courts Judges' Conference - January 2005
Virginia Bell
The House of Lords recently considered two appeals in criminal cases in which it was sought to challenge the verdict on the ground that one or more jurors were partial and had failed to try the case on the evidence. In one case it was suggested that members of the jury had been actuated by racial prejudice and in the other that members of the jury were unwilling to take the time to arrive at a true verdict[1]. Their Lordships identified the features of jury trial that serve to ensure its integrity. These include (i) the random selection of jurors, (ii) the rules of evidence, (iii) the trial judge's directions to the jury (including that they put out of their mind considerations of prejudice and determine their verdict solely on the evidence) and (iv) the trial judge's broad powers to deal with matters that may cause prejudice - by direction and, if need be, by discharge of the jury.[2]
It is acknowledged that publicity concerning the accused or the offence may prejudice a fair trial. The law of sub judice contempt seeks to protect the fair trial when criminal proceedings are pending. We act on the assumption that publicity generated at the time of the offence fades in the public memory over a relatively short period and is not likely to prejudice the trial of an accused that takes place at least some months later. In the event of prejudicial publicity close to the trial the trial judge's powers include staying the proceedings or adjourning the trial.
Articles published in the press at the time of the offence may be accessed months or years later on the Internet. Spigelman CJ in John Fairfax Publications v District Court of NSW observed that the trial judge's ability to order a stay or adjournment of proceedings to ensure a fair trial has been substantially attenuated by "the immediate accessibility of information on the Internet with an efficiency that overrides the practical obscurity of the past"[3]. His Honour also noted the tension that exists between the principles of open justice and those of fair trial in the context of the publication of reports of committal proceedings[4].
In recent years research has been carried out in New Zealand and New South Wales on aspects of the way in which juries in criminal trials carry out their duties. In 1997 the Law Commission of New Zealand collaborated with the Victoria University of Wellington in undertaking a research project on jury decision-making. The results of the research were published in November 1999[5] (the New Zealand study). In New South Wales the University of New South Wales and the Law and Justice Foundation commissioned an empirical study of the effect of prejudicial publicity on juries in criminal trials[6] (the New South Wales Study). The results of both studies, in so far as they deal with the influence of prejudicial publicity on jurors, are consistent and support the assumption that jurors are unlikely to recall, and thus be prejudiced by, the detail of pre-trial publicity[7]. The New South Wales study suggests that lawyers' concerns about the potential for the reports of committal and other interlocutory proceedings to prejudice the later trial may be exaggerated[8].
Perhaps unsurprisingly the studies suggest that members of the public become sensitised to publicity about a case when they are empanelled to try it.
The New Zealand study found that overall jury decision-making was characterised by a very high level of conscientiousness in following the judge's instructions and in endeavouring to understand the law and to apply it to the facts fairly [9]. Nonetheless both studies found that it was not uncommon for jurors to seek out publicity about the trial and to conduct their own investigations[10]. These findings suggest the need for somewhat more detailed instructions at the commencement of the trial directed not only to the requirement that the case be decided solely on the evidence led at trial but also to the reasons why that is so. In New South Wales as the result of two recent cases, that are discussed below, a model direction has been formulated by the Court of Criminal Appeal.
The potential for the Internet to threaten the integrity of jury trials was raised acutely by the promotion of CrimeNet in May 2000[11]. The CrimeNet site now requires that a person searching its criminal records database open an account. This is done by the supply of credit card details. The subscriber must agree "not to search for details of any person whilst I am a juror in a trial of that person, in a jurisdiction that prohibits such information."[12]
In R v Long[13] the appellant contended that his trial had miscarried because highly prejudicial articles published in the immediate aftermath of the Childers Backpacker Hostel fire, strongly suggesting his guilt and depicting him as an arsonist with a record for offences of violence, were posted on the Internet. This material was only available to subscribers on payment of a fee. There was no evidence that any juror had in fact obtained access to it. In these circumstances the Court concluded that there had been no miscarriage.
In R v K [14] the appellant was convicted of the murder of his first wife. He had earlier been charged and acquitted of the murder of his second wife. Both wives were from the Philippines. There was information on the Internet concerning the fact that K had been charged with the murder of his second wife, including highly prejudicial material on a website maintained by a group called the Solidarity Philippines Australia Network. In K the Court received evidence that a number of jurors had conducted searches on the Internet and had come to learn that K had been charged with the murder of his second wife. His appeal was allowed and a new trial was ordered.
The trial judges in Long and K raised with counsel the question of whether the jury should be instructed not to make investigations about the case on the Internet. In each case counsel submitted that the preferable course was not to direct the jury in terms that drew attention to the possibility that material about the trial might be available on the Internet. The underlying assumption (that without prompting no juror would think to conduct an Internet search relating to the case) seems to me to be dubious in light of the widespread access to the Internet and the ease of conducting searches on it. As Wood CJ at CL observed in K[15]:
"It may well become the case, as a matter of habit arising out of the way that ordinary affairs are conducted, that the inevitable reaction of any person who is summonsed as a juror, will be to undertake an online search in relation to the case, to ascertain what it may involve."
The New South Wales study, which examined forty-one trials conducted between mid- 1997 and mid-2000, reported that in three cases jurors admitted to having carried out Internet searches relating to the case. They had obtained information in each instance of which the parties were unaware.
While there is reason for confidence that jurors are able to identify and put to one side inaccurate or biased reporting of the trial[16], we work on the assumption that the publication of information such as that the accused has prior convictions is likely to prejudice jurors in their decision-making[17]. The research suggests that assumption to be a reasonable one[18].
The ready availability of information, including archived press reports, on the Internet poses a problem for the fair trial of an accused in cases that have attracted publicity. This is in addition to a more general problem: the Internet is a powerful resource for jurors who wish to research the legal issues raised by the case or investigate some aspect of the evidence. The New Zealand study found that in five of the forty-eight cases studied, despite the judge's instructions, jurors had conducted their own inquiries[19]. While the risk has always existed that jurors may carry out research, at libraries or otherwise, the access that the Internet affords to information across a range of specialist fields makes this risk more likely to eventuate.
The solution adopted in Queensland and New South Wales has been to make it an offence for jurors to conduct investigations including by means of the Internet. The Queensland provision was introduced in July 2002 in the aftermath of the concerns generated by CrimeNet.
Section 69A of the Jury Act 1995 (Qld) provides:
"69A Inquiries by juror about accused prohibited
(1) A person who has been sworn as a juror in a criminal trial must not inquire about the defendant in the trial until the jury of which the person is a member has given its verdict, or the person has been discharged by the judge.
Maximum penalty - 2 years imprisonment.
(2) Subsection (1) does not prevent a juror making an inquiry being made of the court to the extent necessary for the proper performance of a juror's functions.
(3) In this section - "inquire" includes -
(a) search an electronic database for information, for example, by using the Internet; and
(b) cause someone else to inquire.
In K Wood CJ at CL proposed that the NSW Act be amended to introduce an offence comparable to s 69A but in wider terms to embrace not only inquiries concerning the background of the accused but also any other matter relevant to the trial, including the history of the offence, its investigation and the proceedings themselves[20].
Shortly after K the New South Wales Court of Criminal Appeal dealt with another appeal involving juror misconduct: R v Skaf[21]. In that case during the course of their retirement two members of the jury visited the park at which the offence was alleged to have occurred and carried out tests on visibility. Identification was the central issue in the trial. The appeal was allowed and a new trial ordered.
As the result of the decisions in K and Skaf (and in light of the discharge of a jury after a 24 day trial in the District Court because jurors had accessed the Internet in disregard of the judge's explicit direction not to do so) the Parliament introduced amendments to the Jury Act 1977 (NSW) making it an offence for jurors to conduct their own investigations with respect to the trial. The provision is in these terms:
68C Inquiries by juror about trial matters prohibited
(1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.
(2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings.
(3) This section does not prohibit a juror:
(a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or
(b) from making an inquiry authorised by the court.
(4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.
(5) For the purpose of this section, making an inquiry includes the following:
(a) asking a question of any person,
(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet),
(c) viewing or inspecting any place or object,
(d) conducting an experiment,
(e) causing someone else to make an inquiry.
In Mirza Lord Hope observed that[22]:
"...The system would be strengthened if jurors were told before the trial begins that they are under a duty to inform the court at once of any irregularity which occurs while they are deliberating".
As the result of the judgment in Mirza a Practice Direction was formulated instructing jurors that it is their duty to bring to the attention of the court "any behaviour among the jurors or by others affecting the jurors, that causes concern"[23]. The Court in Skaf considered that there was a risk that the generality of this direction might lead to inappropriate matters being brought to attention (such as the forceful expression of views by some members of the jury)[24]. The Court proposed a more detailed form of direction. This has since been included in the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales. A copy of it is annexed to this paper together with a copy of the English Practice Direction.
The English direction warns against the judge being seen to threaten the jurors with contempt of court. In Skaf the Court favoured the view that if an offence, modelled on s 69A of the Qld Act but expanded to include private inquiries, views and experiments, were to be introduced into the NSW Act the judge should in the course of his or her opening directions warn the jury of that fact[25]. The amendments to the NSW Act creating the offence only came into operation on 15 December 2004. The model direction will, no doubt, be adapted to draw attention to the provisions of the section.
While there may be no certain mechanism to ensure that jurors obey the judge's instruction not to conduct investigations on the Internet or otherwise, the provisions of s 68C and directions along the lines of those proposed are likely to substantially reduce the risk of such conduct. The research suggests that jurors are impressed with the solemnity of their task and endeavour to abide by the judge's directions. It is reasonable to assume that most jurors would not engage in conduct which they have been told constitutes an offence. To the extent that any do, the expanded directions proposed make it unlikely that they would share any information thus obtained with their fellow jurors.
In line with the observations of the Court in Skaf, the model direction endeavours to explain to the jury why it is that they are not permitted to make their own inquiries. This seems to me to be an important matter to emphasise. It may not occur to essentially fair-minded, conscientious jurors, who are instructed that they have the sole responsibility for deciding the facts, that the conduct of their own inquiries works unfairness. The foreman of the jury carried out the informal view in Skaf. In his affidavit he said, "I only went to the park to clarify something for my own mind. I felt I had a duty to the court to be right."[26] The New Zealand study reported that, in addition to the five cases in which the jury had obtained additional information on factual issues, jurors commonly sought out additional information on the law. In the course of their interviews with the researchers the jurors gave no indication in any of these cases that they thought their investigations improper[27]. The researchers reported that[28]:
"By and large, juries simply did not seem to appreciate the importance, or did not understand the logic, of restricting themselves to the information presented by the parties and the judge".
In the cases in which jurors reported accessing the Internet referred to in the New South Wales study neither counsel nor the trial judge was aware of the material. However, it appears that in both Long and K the parties were aware that prejudicial material about the case was posted on the Internet. In neither case was the Internet service provider asked to remove the material pending the completion of the trial.
The publication of material that has a real and definite tendency to prejudice a trial is a contempt[29]. To the extent that articles with that tendency are available to the public on a newspaper or broadcaster's website the publisher may be liable to conviction for contempt [30].
The difficulty arises with material published on the Internet by individuals and interest groups who may be difficult to trace or, in widely publicised cases, by the publication of prejudicial material on the Internet by persons outside the jurisdiction.
The New South Wales Law Reform Commission (the Commission) considered the liability of Internet service providers (ISP's) and Internet content hosts (ICH's) in its report Contempt by Publication[31]. In this connection it noted that identifying responsibility for Internet publications can be complex and uncertain and that the liability of ISP's and ICH's for carrying or hosting material that breaches the sub judice principle had not at the date of publication been considered by any Australian court[32].
The Broadcasting Services Act 1992 (Cth) provides in cl 91 of Schedule 5 that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it would subject an ICH or ISP to civil or criminal liability for hosting or carrying content where it was not aware of its nature. Schedule 5 was introduced into the Broadcasting Services Act by the Broadcasting Services Amendment (Online Services) Act 1999 which was designed to provide a framework for the regulation of offensive content on the Internet. It establishes a complaints based regime with respect to offensive content requiring ICH's and ISP's to remove the content in cases in which they receive a notification from the Australian Broadcasting Authority. In this context it was recognised that ISP's and ICH's cannot be expected to be aware of all material accessed through their service nor can they be expected to be responsible for offensive material unless it is brought to their attention[33].
A practical first step is for the Crown in any pending case to carry out searches on the Internet and, in the event that prejudicial material is identified, to request any Australian based website to remove it until the trial is completed[34]. The publication of prejudicial material relating to the pending trial of a prominent business identity was removed from the website Crikey.com.au at the request of the Supreme Court's Public Information Officer[35].
Courts are now conscious of the risk that judgments published on their websites, AustLII and other legal databases may prejudice forthcoming trials[36]. In New South Wales the Supreme Court no longer publishes interlocutory judgments in criminal cases on the Internet. In some cases judgments of the Court of Criminal Appeal are withheld from publication on the Internet pending the completion of the trial or re-trial.
There have been a number of cases in which appellants have sought to overturn their conviction on the basis that prejudicial information about their case was available on the Internet at the time of trial: Cogley; Long; Crowther-Wilkinson. In none of these was there evidence that any juror had in fact accessed the offending material. The trials were not found to have miscarried.
In K there was evidence that at least three members of the jury had independently conducted Internet searches and as the result become aware that the appellant had been charged with the murder of his second wife. The admissibility of the evidence of the jurors raised a difficult preliminary question.
The integrity of trial by jury has been fostered by the rule that precludes the court from receiving evidence of the deliberations of the jury[37]. The rule is subject to the exception that evidence of an irregularity that is extrinsic to the deliberative process may be admitted. Thus courts have received evidence that prejudicial material not in evidence was sent into the jury room; that a sheriff's officer had participated in the jury's deliberations and expressed the opinion that the accused were guilty; that a jury bailiff had suggested to the jury that the accused had previous convictions; that a juror was drunk or unable to speak English or refused to participate in the deliberations. The cases in this respect are collected in the judgment of Gleeson CJ in Minarowska[38]. His Honour observed in that case that the dividing line between proof of a jury's deliberations and proof of an irregularity in their conduct or procedures may, on occasions, be difficult to draw.
The rationale for the secrecy rule includes that jurors should be free to express their views frankly without fear of being held up to ridicule or hatred, and that they should not be exposed to harassment after verdict by those with an interest in overturning it. The rule serves to protect the jury that acquits an unpopular accused as much as the jury that convicts an accused.
The evidence in K was that after the return of the verdict a number of members of the jury visited a nearby hotel. The appellant's counsel and solicitor happened to also be at that hotel. The lawyers spoke with the jurors and in the course of this discussion it emerged that some jurors were aware of the earlier proceedings brought against K. The matter was drawn to the attention of the Office of the Sheriff who conducted an investigation. The appellant's solicitors did not play any role in obtaining evidence from the jurors. Wood CJ at CL, with whose judgment Grove and Dunford JJ agreed, considered the admissibility of the evidence in K to be very much in the area of uncertainty to which Gleeson CJ had referred in Minarowska[39]. In favour of admission was the circumstance that the material had been volunteered by the jurors, it was presented to the court by way of direct evidence obtained by the Office of the Sheriff. The evidence of the fact of the Internet searches and the nature of the information gathered was received by analogy with the cases in which documents not in evidence were found to have been sent into the jury room. The Court did not receive the evidence of any discussion between the jurors concerning the material nor of the effect if any of the material on their deliberations[40]. The Court found that the fact of the Internet searches and the nature of the material that those searches revealed constituted an irregularity in the conduct of the trial. Having regard to the nature of the material the Court was not able to be satisfied that the same verdict would have been returned had the irregularity not occurred and for this reason the appeal was allowed and a new trial ordered.
In Minarowska there was evidence that some members of the jury were puzzled by the fact that neither of the two accused who had given dock statements had been cross-examined. One member of the jury brought a magazine into the jury room that contained an article which was critical of the use of dock statements and discussed the proposal for their abolition. The evidence did not establish whether the juror produced the magazine to her fellow jurors to read or whether she relayed its contents to them. Gleeson CJ observed that there would be no question of the admission of the evidence had the juror not brought the article into the jury room but merely referred to its contents in the course of deliberations. His Honour considered that the ground of appeal in this case involved an impermissible attempt to lead evidence of a kind that the courts have for reasons of sound public policy rejected[41].
The secrecy rule was recently confirmed by the House of Lords in Mirza. The appellant was a Pakistani man who had lived in England since 1988. During the trial the jury asked questions concerning his use of an interpreter. The jury returned a majority verdict convicting the appellant. Thereafter a juror wrote a letter asserting that her fellow jurors had been motivated by racial prejudice and, contrary to the judge's directions, had drawn an inference adverse to the appellant from the fact of his use of the interpreter. The grounds of appeal raised a question of whether s 8 of the Contempt of Court Act 1981 (which makes it an offence to disclose statements made by members of a jury in the course of the jury's deliberations) when read in the light of s 3 of the Human Rights Act 1998 and article 6 of the European Convention on Human Rights (which confers a right to trial before an impartial tribunal) would prohibit the admission into evidence of a statement from a juror which, if admitted, would provide prima facie evidence of partiality in breach of article 6. In the event, the Court was unanimously of the view that s 8 of the Contempt of Court Act did not operate to confine its jurisdiction to receive evidence about statements made in the jury room. The appeal was decided by adherence to the common law rule of secrecy.
Lord Steyn dissented, observing[42]:
"The effect of the ruling of the majority will in the long run damage the jury system. Leaving aside the jury, we have reached a position where it is recognised that all actors in the criminal justice system, and notably the judge, prosecuting counsel, defence counsel, police, expert witnesses, as well as lay witnesses, can be the cause of miscarriages of justice . But the consequence of the ruling of the majority is that a major actor, the jury, is immune from such scrutiny on the basis that such immunity is a price worth paying. This restrictive view will gnaw at public confidence in juries. It is likely in the long run to increase the pressure for reducing the scope of trial by jury. A system which forfeits its moral authority is not likely to survive intact. The question will be whether such a system provides a better quality of justice than trial by professionals."
Lord Hobhouse noted that mistakes may occur in any human system and suggested that the remedy should be seen to lie in the mechanism of appeal, which among other things provides for an objective review of the sufficiency of the evidence to prove guilt[43]. His Lordship observed that the issue raised in Mirza had acquired significance only since the introduction of majority verdicts[44]. The juror who wrote the letter was a dissentient. Somewhat argumentatively she had written that, "I was the only juror with any insight into the defendant's culture". His Lordship observed that jury deliberations may be stormy. He placed considerable weight, as did the other members of the majority, on the need to protect jurors by adherence to the secrecy rule. In his Lordship's opinion, given the provision for majority verdicts, the removal of the rule would undermine the integrity of jury trial[45].
The secrecy rule was not in question in K or Skaf but rather the limits of the imprecise exceptions to it. Wood CJ at CL sounded a note of concern at the prospect of lawyers after verdict seeking to flush out evidence of some irregularity. The practice of lawyers, police and jurors fraternising after a trial was one that he suggested did little to enhance the image of the justice system[46]. The recent amendments to the Jury Act 1977 (NSW) include an expanded offence of soliciting information from or harassing a juror or former juror to obtain information about not only the deliberations of the jury but also how a juror or the jury formed any opinion or conclusion in relation to an issue arising in a trial[47].
One way of endeavouring to ensure that prejudicial publicity does not influence jury decision-making, as the authors of the New South Wales study observe, is to assist jurors to focus on the issues in the trial[48]. The New Zealand and New South Wales studies both identified common issues raised by jurors which affect their ability to do this. Justice Young of the High Court of New Zealand has proposed modifications to the way in which we direct juries in light of the findings of the New Zealand study[49]. These include the content of directions including the direction on the standard of proof; the timing of the giving of directions and the desirability of greater use of written directions and other written aids. It is also worth reflecting on the fact that it appears common for juries to spend a deal of time trying to recollect what the evidence is (and for there to be side issues about the accuracy of jurors' notes)[50]. Perhaps it is time for the jury to be supplied with the transcript as a matter of course.
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Model direction opening remarks to Jury - Criminal Trials Bench Book, Judicial Commission of New South Wales
(In a case where there has been prior media publicity in relation to the accused)
This particular trial commences against a background of considerable publicity. You will all, no doubt, have heard references to the trial or the background giving rise to the trial on television or radio or read references to it in the newspapers.
It is of fundamental importance that you put any such publicity right out of your minds. You must, to be true to your oath or affirmation, decide this case solely by reference to the evidence presented in open court and, of course, the directions of law which I shall give you at the conclusion of the evidence. If you were to do otherwise you would not be true to the oath you took or the affirmation which you made.
You must also put out of your mind completely any reference you may have heard or read in any context whatsoever in relation to the accused. So it is not only publicity concerning this trial that you must put out of your mind.
Importantly, you must not, during the course of the trial, use any material or research tool, such as the Internet, or otherwise, to access legal databases, earlier decisions of this or other courts, and/or any other material of any kind relating to any matter arising in the trial.
The reason you must not undertake any such inquiries is that you must be true to your oath or affirmation. To be true to your oath or affirmation you must decide this case solely by reference to the evidence presented in open court and, of course, the directions of law which I shall give you at the conclusion of the evidence.
You are not permitted to have computers with you in the jury room, and you are requested not to take mobile phones into the jury room. If you have brought a mobile phone with you, you are requested to leave it with the Sheriff's officer. If it is necessary, as a matter of urgency, for any of you to have access to your phone during the course of the trial, then arrangements can be made with the Sheriff's officer.
It is of vital importance that you do not discuss the case with anyone other than with other jurors in the privacy of the jury room. In fact, it is an offence (under s 68B(1) of the Jury Act 1977 (NSW)) for a juror to wilfully disclose, during the course of the trial, information on the deliberations of the jury to any person.
You should, even at the expense of appearing to be rude, avoid speaking to any person in the precincts of the court. This is because you may inadvertently speak to a person waiting to give evidence in the trial; a legal representative of one of the parties; or some person otherwise associated with the conduct of the trial. If this were to occur, it may mean that you would not be able to continue as a juror in this trial. It could even mean that it would be necessary for me to discharge the whole jury. This would, of course, be a most undesirable outcome.
You should not, either individually or as a group, make any private visit to the scene of the alleged offence, or attempt any private experiment concerning any aspect of the case. The reason is that to do so would change your role from that of impartial jurors to investigators, and lead you to take into account material that was not properly placed before you as evidence, of which those representing the Crown and the accused would be unaware and unable to test. Such material might require expertise in order to ensure that the inspection or experiment was properly conducted.
The only circumstances in which views or experiments are permitted, and are available by way of evidence, are those which occur in the presence of all jurors, the legal representatives of the parties, and myself. Those circumstances involve safeguards being taken to replicate the conditions, which were in existence at the time of the relevant events, and if there are any relevant differences in the alleged crime scene or in the circumstances of the experiment, they can be pointed out to you in the course of the evidence.
The restriction concerning jurors making their own inquiries about any aspect of the case, inspecting the site, or carrying out experiments, extends not only to individual jurors but also requires that none of you causes or requests anyone else to do any of those things.
In the event of it becoming apparent to any of you, in the course of the trial, that another of your number has made any independent inquiry in relation to any aspect of the case, then it should be brought immediately to my attention. This includes making an inquiry about the accused or the background of the offence, or making a private inspection or conducting a private experiment; or causing anyone else to do any of those things; or discussing the case with anyone other than remaining members of the jury.
In the event of it becoming apparent to any of you in the course of the trial, that any matter which is not in evidence has found its way into the jury room, then that should similarly be brought to my attention.
The reason it is necessary for any such matter to be brought to my immediate attention, is that, unless it is known before the end of the trial, it may not be possible to put matters right. In which case an injustice may possibly have occurred, requiring me to discharge the jury and direct a retrial.
If you have any query about the evidence or the procedure during the trial, you should direct such a query to me, and to me alone. The Sheriff's officers, who will attend to your general needs, are not there to answer questions about the trial itself. Should you have any questions about the evidence or the procedure, please make a note and give it to the Sheriff's officer. The note will be forwarded to me and, after I have discussed the matter with counsel, I shall deal with the matter."
England and Wales: Practice Direction (Crown Court: Guidance to Jurors)
Trial judges should ensure that the jury is alerted to the need to bring any concerns about fellow jurors to the attention of the judge at the time, and not to wait until the case is concluded. At the same time, it is undesirable to encourage inappropriate criticism of fellow jurors, or to threaten jurors with contempt of court.
Judges should therefore take the opportunity, when warning the jury of the importance of not discussing the case with anyone outside the jury, to add a further warning. It is for the trial judge to tailor the further warning to the case, and to the phraseology used in the usual warning. The effect of the further warning should be that it is the duty of jurors to bring to the judge's attention, promptly, any behaviour among the jurors or by others affecting the jurors, that causes concern. The point should be made that, unless that is done while the case is continuing, it may be impossible to put matters right.
The judge should consider, particularly in a longer trial, whether a reminder on the lines of the further warning is appropriate prior to the retirement of the jury.
1R v Mirza [2004] UKHL 2; 2 WLR 201
2 ibid per Lord Slynn at 220, [50]; Lord Hope at 222, [60]; Lord Hobhouse at 246, [140]; Lord Rodger at 251,[154]
3 John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324 at [64]
4 at [17] - [20]
5 Law Commission, Preliminary Paper 37, Volume 2, Juries in Criminal Trials - Part Two, November 1999
6 Chesterman, Chan and Hampton, Managing Prejudicial Publicity, Law and Justice Foundation of New South Wales, February 2001
7 New Zealand Study at [7.51] and New South Wales study at [168] - [179]
8 New South Wales study [173], [182]
9 at [7.11]
10 New Zealand study at [7.54] - [7.57], New South Wales study at [214]
11 R v McLachlan [2000] VSC 215; R v Cogley [2000] VSCA 231
12 www.crimenet.com.au
13 R v Long [2003] QCA 77; 138 A Crim R 103 at 112-113
14 R v K [2003] NSWCCA 406; 59 NSWLR 431
15 at 449, [81] - [82]
16 New Zealand study [7.54] - [7.57]; New South Wales study [239]
17 Hinch v the Attorney General (Vic) (1987) 164 CLR 15 per Mason CJ at 28
18 New South Wales study at [254]
19 New Zealand study [7.41] - [7.45]
20 at 449-450, [87] - [88]
21 R v Skaf [2004] NSWCCA 37; 60 NSWLR 86
22 at 241, [126]
23 Crown Court: Guidance to Jurors [2004] 1 WLR 665
24 at 106, [286]
25 at 106; [285]
26 Skaf at 92, [204]
27 New Zealand study [7.44]
28 ibid [7.45]
29 Hinch at per Wilson J at 34
30 Dow Jones & Company Inc v Gutnik [2002] HCA 56 per Callinan J at [201]
31 New South Wales Law reform Commission, Contempt by Publication, Report 100, June 2003
32 at [2.62], [2.65]
33 Richard Alston, The Government's Regulatory Framework for Internet Content, (2000) 23(1) University of New South Wales Law Journal 192
34 R v Burrell [2004] NSWCCA 185 at [39]
35 John Fairfax v District Court at [11]
36 R v Weiss [2002] VSC 153; R v Crowther-Wilkinson [2004] NSWCCA 249
37 Vaise v Delaval [1785] 1 TR 11; 99 ER 944; Ellis v Deheer [1922] 2 KB 113
R v Minarowska (1995) 83 A Crim R 78
38 at 85
39 at 444, [53]
40 at 444, [54]
41 at 88
42 at 212, [22]
43 at 243, [133]
44 at 243, [134]
45 at 247, [143]
46 at 450, [93]
47 s 68(1) Jury Act 1977 (NSW)
48 New South Wales study at [531] - [532]
49 William Young, Summing-up to Juries in Criminal cases - What Jury Research says about Current Rules and Practice [2003] Crim L R 665
50 New Zealand study [3.5] - [3.6]; New South Wales study [464] - [471]
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