To His Honour, The jury is still not in total agreeance.

– First formal vote was [redacted] for [redacted] against (Guilty)
– Second formal vote was [redacted] for [redacted] against

Thank you.

It was 4:30pm on a summer Monday afternoon in early 2014. Leslie Smith’s jury had been deliberating since 11am the previous Friday, with a generous break over the weekend. Asked if an 11:1 verdict would solve the impasse, the jury foreman said ‘[y]ou could probably give us about half an hour and we can [indistinct].’ It took them just eighteen minutes to return a majority verdict, so they were on their way home by 5pm.

In Smith v R [2015] HCA 27, the High Court considered whether the trial judge should have publicly divulged the full contents of the jury’s note before he allowed them to reach the verdict that started Smith’s five year sentence and ended a twenty-five year journey by the woman who said he had raped her.

A secret struggle

She said that she was calling from a public phone box and sounded distressed. She told [her boyfriend] that she had had to get out of [Leslie Smith]’s apartment. He could hear the sound of a motorbike in the background. Ms B told him that she would meet him in town.

It was 11:30pm on an autumn night in 1989 when his sixteen year old girlfriend called. He didn’t see her until the next morning. Afterwards, at Townsville’s casino, where he and Smith worked, Smith wanted to ‘explain’, but he said that there was no need. His girlfriend had told him not to be angry at Smith or to blame him. She was ‘fine’. Six months passed before she told him that Smith had dragged her onto his motorbike that night and raped her at his flat. He didn’t believe her. Nor did anyone else she told that year. It was another 18 years before she went to the police, aged 34.

Until recently, a case like this would never have come to trial. It wasn’t just the delay, which an earlier judge ruled caused no unfairness to Smith. Rather, it was the thousand cuts of murky evidence – the two people who contradicted the teen’s claim that she didn’t know that Smith would be there that night, her earlier ‘light-hearted’ call to her boyfriend when she said that Smith was going to ‘ravish’ her, her changed descriptions of the street she hid in, a school friend who couldn’t recall being told about the rape, Ms B’s incorrect claim that she later worked alongside her rapist, her ‘neuro-linguistic’ programming to access traumatic memories, her inquiries to the police about victim’s compensation. But the police in South Australia (where Ms B was living in 2007) took her account seriously. They interviewed Smith, who lied that he had no interest in her and that nothing had ever happened between them. At his trial, he stipulated that the pair had sexual intercourse that night.

Nowadays, it’s jurors who must struggle with such close cases. Smith’s first two trials miscarried. His third jury sought the judge’s help (as many Australian juries do) on the test of ‘beyond reasonable doubt’. Alas, except in Victoria, Australian juries still can’t be told what those words mean. Their next note, a few hours later, said: ‘This jury cannot reach a consensus of opinion. Please advise.’ Judge Michael Shanahan read them a direction set out in a 1993 High Court decision:

Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

The direction didn’t work (or perhaps it did?) The jury’s next note reported their continued lack of ‘agreeance’.

By then, the jury had clocked eight hours in the jury room, a significant milestone. Queensland’s law permitting majority jury verdicts, introduced 17 years after Joh Bjelke-Petersen’s perjury trial collapsed when the jury foreman stuck to his view that the ex-premier was innocent, stipulates a minimum deliberation of eight hours before this option was available. Judge Shanahan noted the timing and told counsel:

I don’t know how locked they are into their positions, but that’s something I can do, I suppose; simply tell them that it’s 11:1 and ask them to reconsider the matter.

Neither counsel objected. But the judge did not show them the jury’s latest note. He would only say that the jury had disclosed their voting pattern, but not what it was (or the fact that at least their first vote was in favour of guilt).

On appeal, Smith’s counsel argued that the judge should have followed a recent series of Victorian decisions that ruled that trial judges must tell counsel everything the jury divulges, prior to deciding how to respond. In Queensland’s Court of Appeal, Holmes JA (now the state’s Chief Justice) held that those decisions should only be followed in Queensland if the jury disclosed that 11 of them (enough to count as a majority vote) were agreed. She dismissed Smith’s appeal, because ‘it is plain from what was discussed between the judge and counsel that they were not 11/1, and, more significantly, that his Honour did not know what the result of asking for a majority verdict would be’.

A secret note

When the jury … retired to consider its verdict, four jurors are understood to have wanted guilty verdicts, four acquittal and four were undecided. The next stage is understood to have been five for conviction, and seven undecided or favouring acquittal. During more than six hours the numbers became 11 for conviction and one against, and when that juror was persuaded to join the 12, the foreman said: ‘Let’s get out and announce it.’

It was 8:37pm on a Friday evening in spring 1982 and Lindy and Michael Chamberlain were moments away from learning that they had been convicted in the murder of their baby Azaria. Their jury’s voting patterns, revealed in The Sydney Morning Herald two days later, are now a valuable insight into how a miscarriage of justice can unfold.

At the time, though, the revelation prompted a call to preserve the secrecy of jury deliberations. In Smith’s High Court appeal, Gordon J commenced her judgment by lauding the contemporary rules protecting the sanctity of the jury room:

The purpose of the confidentiality of jury votes or voting patterns is twofold. First, it maintains confidence in the jury system. It enables jurors to approach their task through frank and open discussion knowing that what is said in the jury room remains in that room. It permits the exchange of views which contributes to the development, over time, of the individual and collective views of the jurors. That process is fluid, not static.
…
The second purpose of the confidentiality of jury votes or voting patterns, directly related to the first purpose, is that it protects the finality of the verdict. The process by which the jury reached its verdict is not relevant. It is the final verdict of the jury, or the inability of the jury to reach a verdict, that is relevant.

This meant, she held, that a judge mulling whether to permit a majority verdict should not ask jurors for their interim votes and should simply ignore any revelations about them.

Of course, the parties would regard the jury’s interim votes as very relevant to their mid-trial tactical choices. For example, it is likely that, if Smith’s counsel had known of the votes disclosed in the note (and especially the favoured verdict), then he would not have stood silent when Shanahan DCJ opted for a majority verdict. But that is clearly no reason to breach the confidentiality of the jury room; quite the opposite. Rather, as Victoria’s Court of Appeal had ruled, the only reason to tell counsel is to ensure that, in the event that the jury discloses their votes to the judge, the parties to the case know exactly what the judge knows:

It is, we consider, inconsistent with the principle of procedural fairness, for a judge to be apprised of the information concerning the state of deliberation of the jury – such as the precise numbers which constitute a majority and a minority – without the judge conveying that information to counsel, where argument of counsel and the decision of the trial judge may be influenced by such information.

However, the High Court held that such disclosure was unnecessary when it came to interim votes:

Even if disclosure of interim votes or interim voting patterns of a jury prior to verdict indicated that, at some point in its deliberations, the jury was split 11:1, that fact (and its disclosure) would not be relevant to and would not have the capacity to influence any decision the judge has to make about the future conduct of the trial. Without much further and more detailed information about the state of the jury’s deliberations (which it is impermissible to seek), the note tells the judge no more than that, at some point in its deliberations, the jury was not in unanimous agreement. It says nothing about the question of whether further deliberation might lead to a verdict that can be taken.

Accordingly, the Court ruled, the recent Victorian decisions ‘should not be followed’.

In short, interim jury votes are no-one’s business but the jury’s. But did Shanahan DCJ see things that way? Justice Gordon drew on the trial judge’s own words to the jury to infer that he ignored what the jury revealed to him:

The trial judge told the jury that he had not disclosed the precise contents of the note containing that information, ‘because really your voting is a matter for yourself.’ From this statement it should be inferred that the trial judge rightly disregarded the information that the jury had given as to its votes or voting patterns prior to verdict. There was no denial of procedural fairness.

But I can’t help but wonder what was in the jury’s note and I dare say that Smith has too (in much less comfortable circumstances). Justice Holmes, having read the transcript, was confident in her inference that the jury did not reveal an 11:1 deadlock. But what if the two votes were both 10:2 in favour of a guilty verdict? Could Shanahan DCJ have really put out of his mind the possibility that, left to sleep on the issue for a further night, the eleventh juror might not firm in his or her view that there was too much doubt in this case to send Smith to jail for a rape from 25 years earlier? And that the likely outcome of a third mistrial would be that those rape charges would be left forever unresolved? Could Shanahan DCJ have wholly ignored the chance that leaving the option of a majority verdict at 4:30pm on a Monday afternoon could be enough to shift one of those two outsiders from ‘reasonable doubt’ to ‘beyond reasonable doubt’? We cannot know (and nor can Shanahan DCJ) and that is precisely the problem.

A secret tradition

FRENCH CJ. I agree with Gordon J.
KIEFEL J. I agree with Gordon J.
BELL J. I agree with Gordon J.
GAGELER J. I agree with Gordon J.

It was 10:20am on a winter Wednesday morning a few months ago. Smith v The Queen was the third judgment announced that morning by the High Court, but the first ever to involve Gordon J, the Court’s newest appointment. The High Court here performed a ritual that has been followed off and on for decades and has become an invariable feature of the French court.

Justice Gordon’s first High Court judgment (and, most likely, her first ever criminal appeal) was surely a memorable occasion for her. The problem is that it was an even more memorable event for Leslie Smith and Ms B. I’ve previously argued that this High Court tradition is an inappropriate one to impose on the Courts’ litigants, because ‘it potentially creates the impression that the Court’s judges perform their role differently in cases where the tradition is followed.’ Consider, for instance, the Court’s choice to accord Gordon J this singular honour in this particular matter, rather than the constitutional challenge to a state ban on political donations by property developers, which was the first High Court matter she actually sat on. Does this choice imply that the Court considered this constitutional challenge to be too important for such a tradition (and, hence, that Smith’s criminal appeal was less important?) Or was it because the judges knew they were divided in the constitutional matter on both law and outcome, and wanted to ensure that Gordon J’s first judgment was unanimous?

Given that this is likely the last time this tradition will be followed until French CJ’s retirement in 2017, I’ll indulge in some more far-fetched speculation to illustrate the problem further. When Smith was granted special leave to appeal, I noticed that Nettle J asked some questions that arguably revealed sympathies towards the pro-disclosure stance that had been taken by his former colleagues on the Victorian Court of Appeal. However, Nettle J wasn’t present on the bench for Smith’s actual appeal. Is it possible that Nettle J opted out of this case in order to avoid disrupting the Court’s tradition? Another avenue for speculation is how this particular judgment came to be written. As the Court itself recently observed of a previous unanimous High Court judgment, ‘Lange is a judgment of the whole Court. Its terms may be expected to reflect some compromise reached.’ This raises the question: is Gordon J’s judgment in Smith also a judgment ‘of the whole Court’ whose ‘terms may be expected to reflect some compromise’? If so (or if not), how can we tell? Did Gordon J write the judgment without input from any other judge? Did the other judges have an opportunity to express disagreement? What if one of the other four judges developed doubts of his or her own once they read Gordon J’s reasons? Might they be tempted to put those doubts aside in the name of tradition? My view is that it is far more likely that Australia’s top judges were absolutely scrupulous in forming their own independent views in this case, as in all of them. But I (and even they) cannot know for sure on this particular occasion, and that is precisely the problem.

The questions of law and justice raised in Smith’s appeal were undoubtedly very difficult. Personally, I think there is much to be said for the Victorian view that prioritises procedural fairness over jury secrecy, but I can well understand the alternative view Gordon J favoured. But, when it comes to the High Court’s recent method of honouring new judges, I struggle to see any case for following a tradition that affects how the court reaches (or publishes) its decisions in particular cases. On French CJ’s retirement, I hope that his successor opts to end this practice, leaving Leslie Smith as the last High Court litigant to be so singled out.