I. INTRODUCTION

8.1 A jury’s verdict is supposed to be:

• based on the evidence alone;
• lawful;
• a result of agreement by all twelve jurors;
• determined by deliberation; and
• final.

This Chapter and the following Chapter will consider to what extent each of these requirements is fulfilled in practice and will assess the rules and procedures for deliberating on and rendering a verdict. The deliberation process will be examined first.

II. MATERIALS

8.2 As a general rule jurors may now have with them in the jury room while they are deliberating all exhibits admitted into evidence during the trial.¹ In addition, the jury may look at public documents, even though not exhibits, with the approval of the court.² While some commentators have noted that more care should accompany the jury’s access to exhibits, it has been argued that jury decision-making could be greatly improved if other materials were also to be supplied.³

A. Exhibits

8.3 The Law Reform Commission of Canada has proposed that a discretion should be retained by the presiding judge as to whether and which exhibits should be permitted into the jury room. The judge should allow in exhibits which would not put jurors’ safety at risk or risk damage to the exhibits themselves. Other material “placed on the record” should be permitted if it might, in the judge’s opinion, assist the jury in reaching a verdict.⁴ The judge should continue to have a discretion, however, to refuse to permit the jury to take in exhibits if their value to the jury in reaching a proper verdict outweighed by the danger that the jury might make improper use of the material, be confused or misled by it, or become unduly prejudiced against one of the parties.⁵ Jurors must be warned against using exhibits in experiments and substituting their own results for the evidence given in open court.⁶ The Commission invites submissions as to whether

(i) juries should be denied access to exhibits and, if so, on what grounds; and

(ii) whether multiple copies of certain documentary exhibits should be provided.

B. Transcript of Evidence

8.4 It has also been suggested that jurors would benefit by having a copy of the transcript of evidence in the jury room.⁷ Judges acting alone would not usually make at decision without reference to the transcript or to comprehensive notes, at least in a trial lasting some days. Juries could use a transcript to refresh their memories Currently juries may return to court and request that the judge re-read excerpts from the transcript. It is a common observation that juries who are reminded of the evidence in this way often quickly return a verdict. This may suggest that some debate on a particular point had previously taken place in the jury room which, when resolved, permitted the verdict to be agreed. it could be argued, therefore, that it would be both more efficient and less time-consuming to provide a copy of the transcript tot the beginning of deliberations. Some arguments Ogainst this view must be considered, however.

• There is a danger that the transcript, even if edited by a senior court officer, may contain inaccurate or even inadmissible material.
• The jury may give undue emphasis to part of the transcript while ignoring another, perhaps contradictory, part.
• Jurors might be tempted to spend their time reading from the transcript and neglect to fully discuss the issues.
• The provision of the transcript alters the balance of the trial which is currently in favour of- oral material. Jurors reading selected passages from the transcript may substitute a new perception of the evidence from that obtained in the course of the trial.

In 1980 the Law Reform Commission of Canada tentatively recommended that normally a jury should not be given a transcript of the evidence.⁸ The Criminal Law and Penal Methods Reform Committee of South Australia, on the other hand, recommended that a jury should be entitled, if it so wishes, to take the transcript into the jury room. That Committee considered it to be anomalous that exhibits can be taken into the jury room but not the transcript in which those exhibits are explained and placed in context.⁹ The Commission invites submissions on this subject.

III. JURY QUESTIONS DURING DELIBERATIONS

8.5 Jurors can be helped to a better understanding of the evidence given or the issues raised if they can ask questions of the court during deliberations. A fundamental rule is that questions asked by the jury after they have retired must be dealt with in open court in the presence of both counsel and of the accused.¹⁰ Breach of this rule will usually result in a conviction being quashed.¹¹ Moreover, answers to such questions must generally introduce no further evidence.¹² An exception is where the defence expressly wishes the additional material to be adduced.¹³ Therefore, the jury is generally restricted to asking to be reminded of evidence (from the transcript) or for further instruction on the law. The Commission considers that it should be a universal practice for the jury to be advised of its right both to ask questions of the judge and to have any part of the evidence read from the transcript.

IV. IMPROPRIETIES IN DELIBERATION AND THE SECRECY OF THE JURY ROOM

8.6 There are few conventions or, rules about what is the proper way for a jury to deliberate. For example, there must be honest agreement on the verdict. A decision reached by tossing a coin would be improper,¹⁴ as would “a loose acquiescence by a minority for the sake of conformity and avoiding inconvenience”.¹⁵ The jurors are expected to discuss the case freely.¹⁶ It is anticipated that every juror will participate but there is, of course, no requirement of equal participation from each.¹⁷ . The jurors would be in breach of their oaths if they considered information other than the evidence admitted in court. Again, the jury is not entitled to separate while considering its verdict and must have no communication concerning the case with any outsider.¹⁸ The verdict is for the twelve jurors alone. The courts go to some length to protect the jurors from extraneous influences by directing them at the end of each sitting day and before retiring to consider their verdict, and by requiring a court officer to take responsibility for the jury during the trial.

8.7 Impropriety in the jury’s deliberations can result in a verdict being quashed on appeal or, if discovered in the course of deliberations, in a mistrial being declared and the jury discharged before giving a verdict. For example, it has been held that:

If a juror after the judge has summed up in a criminal trial separates himself from his colleagues and, not being under the control of the Court, converses or is in a position to converse with other persons, it is an irregularity which renders the whole proceedings abortive. It is not necessary or relevant to consider whether the irregularity has in fact prejudiced the prisoner, and the only course open to the Court is to discharge the jury and commence the proceedings afresh.¹⁹

The reasoning is that isolation of the jury during deliberations is one of the essential steps in criminal procedure. To deprive the accused person of this protection amounts to a miscarriage of justice and, it has been held, the court has no option but to quash the conviction.²⁰

8.8 Often, however, there is no remedy for an impropriety during deliberation. The courts have held that the evidence of jurors about deliberations will not be admitted on an appeal. Examples of this exclusionary rule of evidence have been where evidence was sought to be given to prove acts of misconduct by jurors in the jury room, to show that the jury had reached its verdict in disregard of the evidence or on the basis of evidence not received in open court and not admissible, to show that a juror subscribed to the verdict only because he or she believed that the jury would be kept together until a unanimous verdict was reached, or to show that the jurors were under some misunderstanding.²¹ On the other hand, evidence will be taken from jurors about having been offered bribes or having been threatened during an adjournment,²² and non-jurors will be questioned ;as to their, conversations with jurors.²³ The jury room itself, however, is sacrosanct.²⁴

8.9 There are three aspects to the notion of the secrecy of the jury room which must be considered.

• The right of a juror to disclose what occurred in the jury room.
• The right of non-jurors to publish jurors’ disclosures as to what occurred in the jury room.
• The admissibility as evidence in court proceedings of jurors’ disclosures as to what occurred in the jury room.

In Australia, the secrecy of jury deliberations has been held to be at paramount interest. The Full Court of the Supreme Court of Victoria has stated 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.²⁵

Information volunteered by jurors about their deliberations can lead, however, to the appointment of a special judicial inquiry into the reliability, of’ a conviction. Thus, there may by situations in which it is in the public interest that jurors disclose the content of their, deliberations and that those disclosures receive media attention.

A. Jurors’ Obligation of Secrecy

8.10 Once discharged it is unlikely that jurors are bound by any enforceable obligation not to disclose what has taken place in the jury room,²⁶ although it is an accepted rule of conduct that the jury’s discussion should be treated as private and confidential.²⁷ Lord Devlin has suggested that,

The lack of any formal obligation to secrecy is a vestige of the embryonic jury. Since jurors were originally purveyors of what was supposed to be public knowledge, there was nothing for them to be secret about.²⁸

Members of a grand jury, on the other hand, were required to swear an oath of secrecy.²⁹ In 1968 in the United Kingdom the rule of conduct maintaining jury room secrecy was felt to have been so well adhered to that no prohibition on jurors’ disclosures was felt to be called for.³⁰ In Canada, however, it is an offence for a juror to disclose “any information relating to the proceedings of the jury when it is absent from the court room that was not subsequently disclosed in open court’’, except in prosecutions of third persons charged with interfering with the course of justice.³¹

8.11 It could be argued that to prohibit jurors’ disclosures indefinitely is an infringement both of their right of free speech and of their right to resume their anonymity uninhibited by the continuing effects of their period of jury service. it can also be argued that the publication of jurors’ descriptions about their experiences can have an educational effect on the public. Certainly jurors have given press interviews and published articles about their experiences, including the process of deliberation.³² Very recently a “blow-by-blow’’ description of the deliberation in the trial of Mr. Justice Lionel Murphy appeared in The National Times ³³ which journal also published the story of one juror in the trial of Norman Callagher.³⁴ This practice was long ago described by a judge as “most improper, deplorable and dangerous”.³⁵ On the other hand it is difficult to find grounds for prohibiting such disclosures when neither the accused nor, the jury members are identified, that is, cohere the disclosure does not obviously refer to a particular trial but concerns the general subject of jury service.

8.12 The difficulties that arise when publicity is given to jurors disclosures about a trial that is both recent and identified are illustrated by the actions of some of the jurors in the trial of Mr. Justice Murphy.³⁶ Those disclosures were characterised by high emotion, conflicting versions and great public interest. Moreover, they were made very soon after the trial, which itself had been well publicised, and when an appeal was pending. Politicians and academics were among those who publicly criticised the verdict and The Federal Attorney-General, Lionel Bowen, reportedly felt that the jurors had been provoked into answering the attacks.³⁷ The trial judge was presented with an application from counsel for the accused for the jurors to be recalled and questioned about their deliberations. This, however, he declined to do. Counsel argued that, if the jurors’ allegations were found to be true, the verdict would have to be set aside. The judge, however, refused to consider the disclosures published in the media.³⁸ The controversy surrounding these disclosures and those by the Gallagher juror, have prompted authorities in at least two States to consider prohibitions on juror disclosures. In Victoria, legislation prohibiting public statements by jurors is apparently likely to be introduced this year.³⁹ In Western Australia, however, the Attorney General, after an investigation, decided that such legislation was not necessary at present.⁴⁰ The Commission is tentatively of the view that there should be some restriction on disclosure by jurors. The Commission invites submissions; on this issue and as to whether there should be a prohibition on jurors’ disclosures generally, or whether the prohibition should be limited to certain kinds of disclosure.

B. Publication of Jurors’ Disclosures

8.13 Whether or not there is to be any prohibition upon jurors themselves, It may be felt that a prohibition should apply to the media. It has been difficult to date to categorise publications of jurors’ disclosures as contempt of court. If the publication occurs once the trial is finally completed with no possibility of a retrial, the only basis for a contempt charge is that the publication involves an interference with the due administration of justice as a continuing process because it tends:

(a) to imperil the finality of jury verdicts and thereby diminish public confidence in the general correctness and propriety of such verdicts and

(b) to affect adversely the attitude of future jury men and the quality of their deliberations.⁴¹

It has been held to be undesirable for a newspaper to publish accounts of the observations of a juror in relation to a recently concluded trial.⁴² Since 1981 in the United Kingdom, statute has provided that such publications are in contempt of court. 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 in any legal proceedings.⁴³

Publicity given to disclosures made by jurors may give added cause for. concern that fear of being publicly exposed, even anonymously, will have the effect of inhibiting frank discussion and expression of views in the jury room. There is also a danger that people will be unwilling to serve as jurors.⁴⁴ The Commission proposes that the publication of jurors’ disclosures which identify the trial in question should be an offence. It may be that publication in certain circumstances should be permitted, for example, when neither the accused nor any other juror is identified. Again it may be necessary only to prohibit paying or offering to pay a juror, for his or, her “story”. In this way the disclosure is likely to be made and solicited in good faith.

C. Jurors’ Disclosures as Evidence

8.14 Other jurisdictions have recognised that there may be occasions when justice requires that the courts accept jurors’ evidence about their deliberations, To the extent necessary, mechanisms have been developed to permit minimal breach of jury room secrecy without totally undermining the principles of finality of verdicts and jurors’ privacy. In the United States Federal courts, for example, jurors’ evidence “on the question whether extraneous prejudicial information was improperly brought to bear upon any juror” in; admissible in an inquiry into the validity of a verdict.⁴⁵ However,

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 concerning his mental processes in connection therewith ... ⁴⁶

The Law Reform Commission of Canada has proposed that a person convicted by a jury should be able to apply to the Minister of’ Justice for an inquiry into the validity of the verdict. Upon such an inquiry, a juror should be permitted to give evidence of objective events occurring during deliberations but not of subjective mental or emotional processes. If, after such an inquiry, the Minister were satisfied that irregularity or misconduct occurred during the deliberations “which indicates that the verdict did not reflect the judgment of all jurors”, a new trial could be ordered. The Canadian Commission felt that a remedy such as this should be provided to accused people in cases of blatant jury misconduct.⁴⁷ We invite submissions as to whether and, if so, in what circumstances, jurors’ evidence as to the jury’s deliberations should be admissible in appeal proceedings.

V. THE ROLE OF THE FOREMAN

8.15 The role of the foreman will vary depending on the personalities on each jury, as will the nature and level of discussion. The traditional direction given to jurors after they are sworn advises them to elect a foreman at the earliest convenient time . It has been suggested that early election of a foreman is important for two reasons. First, the foreman having been elected before deliberation commences, ‘’the procedures in the deliberating room are likely to be more orderly”. Secondly, as jurors’ queries and requests are best directed through the foreman, it is important that that person be identified from the commencement of the trial.⁴⁸ The Canadian Criminal Code 1970 now requires the judge to direct the jury to elect a president in the early stages of the trial.⁴⁹ On the other hand, the benefit to be derived from deferring the selection of the foreman is that the jurors, knowing each other better, are likely to choose a more suitable representative. The Commission invites submissions as to whether any change to the current practice in this regard is necessary.

VI. LENGTH OF DELIBERATION

8.16 The maximum length of time which a particular jury should be permitted or required to deliberate is at the discretion of the presiding judge. In a complex case involving detailed evidence on a number of charges and lasting some months, the jury must be given adequate time to consider the full ramifications of the whole of the evidence carefully. They might need to be sequestered for several days or even weeks. The length of the deliberation, however, should not be so oppressive as to coerce a verdict. There is a minimum time limit imposed. A jury may not be discharged without giving a verdict (subject to impropriety or unfairness as discussed above) until it has tried to reach agreement for at least six hours. The presiding judge may decide to keep a jury deliberating longer, but may not discharge it before the expiration of that period.⁵⁰

8.17 Deliberation time bias been identified as one of three “major determinants of verdicts”⁵¹ by jury researchers in the United States. For example, juries ultimately unable to agree have been found to spend on average, three times longer in deliberation than juries who deliver a verdict, yet a unanimous verdict requires a longer deliberation time than at majority verdict. Predictably, twelve-member juries take longer to reach a verdict than six-member juries.⁵² Findings of this type suggest that deliberation time is a sensitive factor affecting outcome. The Commission is concerned that no useful purpose can be served by detaining a jury for six hours when it is unable to agree after a lesser but reasonable period in a relatively straightforward case. We consider that, when a judge has stressed the jury’s obligation to consider the evidence and the directions in the summing-up and to discuss the case with open minds attempting to reach a unanimous verdict, the additional measure of keeping the jury together for at least six hours can be counter-productive where it is clear from the early stages of deliberation that agreement will. not be reached. We propose that the minimum deliberation period should be reduced, and we invite submissions as to the proper minimum period which should apply. The presiding judge is in the best position to determine, in his or her discretion, what is the proper maximum length of deliberation, and this determination will usually be made after consultation with the jury and with counsel. Accordingly, we do not consider that any maximum period should be specified by legislation.

VII. TENTATIVE PROPOSALS

8.18 In this Chapter we have described the law relating to jury deliberations. We have considered whether that law operates fairly from the point of view of the accused and effectively from the point of view of the administration of justice. We tentatively propose the following reforms.

1. It should be a universal practice for the jury to be advised of its right both to ask questions of the judge and to have any part of the evidence read from the transcript (paragraph 8.5).

2. The minimum deliberation period before a jury can be discharged without verdict should be reduced from six hours (paragraph 8.17),

8.19 There are other questions which have been raised in this Chapter. The Commission also invites submissions on these:

• whether juries should ever be denied access to certain exhibits and, if so, on what grounds (paragraph 8.3);
• whether multiple copies of’ documentary exhibits should be provided to the jury (paragraph 8.3);
• whether the jury should be provided with a transcript of all or part of the evidence either as a matter of course, at its request, or at the discretion of the presiding judge (paragraph 8.4);
• whether jurors should be prohibited by statute from disclosing their deliberations (paragraph 8.12);
• whether the publication of disclosures by jurors about their, deliberations should be an offence (paragraph 8.13);
• whether the evidence of’ jurors about the jury’s deliberations should be admissible in subsequent legal proceedings and, if so, in what circumstances (paragraph 8.14); and
• whether any change to the current practice whereby the jury is advised to elect a foreman as early as possible is necessary (paragraph 8.15).

1. Hodge v. Williams (1947) 47 SR (NSW) 489; Reg. v Bradshaw (1978) 18 SASR 83.

2. Vicary v Farthing (1595) Cro.Eliz.411; Cole v. De Trafford (No 2) [1918] 2 KB 523.

3. Law Reform Commission of Canada, The Jury in Criminal Trial (Working Paper 27, 1980), at pp.125-126.

4. Law Reform Commission of Canada, The Jury (Report 16, 1982), at p.73.

5. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), at p.132.

6. Kozul v The Queen (1980-1981) 147 C.L.R. 221.

7. Criminal Law and Penal Methods Reform Committee of South Australia, Court Procedure and Evidence (Third Report, 1975), at p.105.

8. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), at pp.132-134; and recommended in The Jury (Report 16, 1982), at pp.76-77.

9. Criminal Law and Penal Methods Reform Committee of South Australia, note 7 above, at p.105.

10. R v Ion (1950) 34 Cr.App.Rep. 152; R. v. Fitzgerald (1889) V.L.R. 40; R v Kachikwu (1961) 52 Cr.App.Rep. 538; R. v. Lenton (1919) 14 Cr.App.Rep. 105; Rabey v R [1979] W.A,R. 84; R. v. Townsend 1 All E.R. 509.

11. R. v. Fitzgerald (1889) 15 V.L.R. 40.

12. R v Davis (1960) 44 Cr.App.Rep. 235; R v Oduro (1983) 76 Cr. App. Rep. 38; R. v Wilson (1957) 41 Cr.App.Rep. 226; R v Lawrence [1968] 1 All E.R. 579.

13. R v Nixon [1968] 2 All E.R. 33 However, new evidence was held to have been wrongly admitted in R v Corless [1972] Crim. L.R. 314 because it was not done at the instance of the defence.

14. Vaise v. Delavel (1785) 99 E.R. 944.

15. Halsbury’s Laws of England (4th Ed., 1975), Vol.II, para.323.

16. A verdict has, however, been accepted when the jury did not leave the jury box and the foreman did not consult his colleagues: R v Young [1964] 1 W.L.R. 717.

17. American research suggests that up to 20%, of jurors will fail to participate altogether: R. Hastie, S.D. Penrod and N. Pennington, “What Goes on in a Jury Deliberation” (1983) 69 American Bar Association Journal 1848, at p.1849.

18. R v Ketteridge [1915] 1 K.B. 467.

19. Ibid.

20. R v Neal [1949] 2 K.B. 590, at p.594, per Lord Goddard C.J.

21. Re Matthews and Ford [1973] V.R 199; Burnside v The Queen [1963] Tas. S.R. 174; Thomson [1962] 1 All E.R. 65; Papadopoulos [19761 N.Z.L.R. 621; and Melik (1915) 11 Cr. App. R. 100 are some of. the cases cited by E. Campbell, “Jury Secrecy and Impeachment of Jury Verdicts - Part 1” (1985) 9 Criminal Law Journal 132, at p.147.

22. Waring [1972] (P.W.N. 20; Woolcott v Forbes (1944) 44 S.R. (N.S.W.) 333.

23. Zampaglione (1981) 6 A. Crim . R. 287.

24. This principle has been reaffirmed by Cantor J. in R. v. Murghy and is currently under consideration by the Supreme Court of Victoria in R v Gallagher.

25. Re Matthews and Ford [1973] V.R. 199, at p.211.

26. E. Campbell, “Jury Secrecy and Impeachment of Jury Verdicts - Part 1” (1985) 9 Criminal Law Journal 132, at pp.133-134; P. Devlin, :Trial by Jury (Stevens and Sons Ltd., 1956), at p.46; A.G. v. New Statesman Q.B. 1.

27. Ellis v. Deheer [1922] 2 K.B. 133, at p. 118 per Bankes L.J.

28. P. Devlin, note 26 above, at p.46.

29. Ibid.

30. Criminal Law Revision Committee, Secrecy of Jury Room (Tenth Report, 1968, Cmnd.3750), at p.4.

31. Criminal Code 1970 (Canada), s.576.2.

32. See, for, example, J. Kaplan, “In Praise of Juries: A Personal Experience” (1979) New York State Bar Journal 384; S. Brill, “Inside the Jury Room at the Washington Post Libel Trial”, November 1982 The American Lawyer 1; “Behind the Door” [1976] New Zealand Law Journal 142; C. Petre, ‘’View from the Jury Room’’, The National Times 4 to 10 May 1984, at p. 15; J. Kent, “What happens deep inside a jury’s mind...” Sydney Morning Herald 8 September 1984, at p.38.

33 . J. Penberthy, “Inside the Murphy Jury”, The National Times 26 July to 1 August 1985, pp.1, 3-4, 26-27.

34. G. Brooks, “A Gallagher Juror’s Story”, The National Times 9-15 August 1985, pp.18-19.

35. R v Armstrong (1922) 16 Cr. App. R. 149, at p. 159 per Lord Hewart C.J.

36. M. Trembath, “Jury ‘Foreman’ Speaks Out” The Sun 11 July 1985, p.2; “‘Sorry’ woman writes to Murphy” Melbourne Sun 19 July 1985; J. Penberthy, “Inside the Murphy Jury”, The National Times 26 July-1 August 1985, pp.1, 3-4, 26-27; J. Payne, “Jurors’ lives touched by the trauma of a decision”, The Sun Herald 28 July 1985.

37. “Murphy jury contempt action halted”, The Examiner 6 August 1985.

38. R. Campbell, “Validity of Murphy verdict questioned”, Canberra Times 19 July 1985.

39. P. Debelle, “State may muzzle jurors”, Melbourne Herald 12 August 1985.

40. “No gag on WA jurors”, West Australian 14 August 1985, p.13.

41. Attorney-General v New Statesman and Nation Publishing Co Ltd. [1981] 1 Q.B. 1, at p.6.

42. Re Matthews and Ford [1973] V.R. 199.

43. Contempt of Court Act 1981 (U.K.), s.8(1).

44. Following the disclosures of the Murphy jurors the rate of applications for excusal reportedly increased dramatically.

45. Federal Rules of Evidence, P.L. 93-595, Rule 606(b).

46. Ibid.

47. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), at pp.149-150.

48. Law Reform Commission of Canada, The Jury (Report 16, 1982), at p.54.

49. Criminal Code 1970 (Canada), s.561(3).

50. Jury Act, 1977, s.56. The same rule apples in Victoria: Juries Act 1967 (Vic.), s.46(1); Queensland Criminal Code 1899 (Qld), s.628 (check); and the A.C.T.: Juries Ordinance 1967 (ACT), s.38. In jurisdictions where majority verdicts are acceptable in criminal cases they may be taken after shorter deliberation: 4 hours in South Australia: Juries Act 1927 (S.A.), s.57; 3 hours in Western Australia: Juries Act 1957 (W.A.), s.41; and 2 hours in Tasmania (except in capital offences where 6 hours are required): Jury Act 1899 (Tas,), s.48(4),(5).

51. R. Hastie, S.D. Penrod and N. Penington, “What Goes on in a Jury Deliberation” (1983) 69 American Bar Association Journal 1848.

52. Id., at pp.1848-1853.