The High Court has unanimously allowed appeal against the decision of the Western Australia Court of Appeal in Smith v Western Australia. A day after a jury found Smith guilty of indecently dealing with a child, an unfinished note written by one of the jurors to the presiding District Court judge was found that alleged the author was physically coerced into joining the jury majority. In addition to the discovery of the note, when the verdict was read out, one juror was reportedly visibly upset, the foreman was a ‘little slow’ in affirming the verdict, and the jury departed in an ‘unusually noisy’ way. The Court of Appeal dismissed Smith’s appeal against the verdict as being a miscarriage of justice due to the operation of the common law rule known as the ‘exclusionary rule’ that prevents evidence of jury deliberations being given into a court.

The High Court noted that the rationale for the exclusionary rule was to preserve the secrecy of jury deliberations and the integrity and finality of the formal verdict, so as to ensure that the jury can freely and frankly deliberate. The rule does not extend, however, to exclude evidence of criminal conduct like unlawful physical coercion which calculated to prevent free and frank deliberation. In this instance, the note was capable of creating a reasonable suspicion that criminal conduct had influenced a juror’s verdict, and the Court of Appeal should not have allowed the conviction to stand. Smith’s appeal has been remitted to the Court of Appeal to be heard and determined in accordance with the High Court’s reasons for judgment.