News: What happened after Smith v WA [2014] HCA 3?

In Smith v WA [2014] HCA 3, the High Court unanimously ordered the Western Australian Court of Appeal to reconsider an appeal by a man who sought to have his conviction for indecent dealing with a child set aside because of a note found in the jury room after the verdict that stated ‘I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel’. The High Court held:

The shadow of injustice cast on the verdict by the note cannot be dismissed on the basis that the note itself and the paucity of evidence of its provenance are insufficient to create a suspicion that, as a matter of fact, the author of the note was overborne in the performance of his duties as a juror.

The Court observed that the identity of the author could be readily discerned, the note’s true meaning could be readily resolved by asking the author, that a wide-ranging and intrusive inquiry would not ‘necessarily’ follow and that the practicality of any inquiry, given the time since the early 2012 trial, is a matter for the Court of Appeal. Nearly two-and-a-half years later, a judgment published today by the WA court reveals how these predictions played out and how the appeal stands (for now.)

As detailed by Martin CJ in Smith v WA [No 2] [2016] WASCA 136, the inquiry process resulting from the High Court judgment has been lengthy and difficult. Initially, the Sheriff’s lawyer was unable to locate the person believed to have written the note (identified because he was seen to kick the jury box after the verdict was delivered.) In December of 2014, over the defendant’s objection, the Court of Appeal directed the Sheriff to seek police assistance. The WA Police then managed to locate the note’s author, who initially refused to co-operate. Again over the objections of the defendant, the Court then granted leave to compel him to attend court and be examined. In May 2015, the juror swore an affidavit in unambiguous terms that he had indeed been coerced into entering a guilty verdict by another juror. This prompted the Court of Appeal to order that affidavits be taken from all the jurors. By November 2015, the court had affidavits from all jurors except the one alleged to have perpetrated the assault. Ultimately, that juror testified first and was cross-examined by all parties, followed by a similar process (relying initially on their affidavits) for the complaining juror (who sobbed in the witness box), the remaining jurors, and the Sheriff’s officer (who said that the foreman had given him the note, which he handed to the judge.) Before and after this two-day hearing, the parties argued, and the Court resolved, numerous legal questions about police powers, the admissibility of the note, the burden and standard of proof and the application of Western Australian criminal law to jury deliberations.

Astonishingly, it turns out that the note was actually written by the jury’s foreman. He testified that he was (and told the jury he was) both a victim of sexual abuse and a psychologist with experience in interviews with children alleging sexual abuse, which he said allowed him to tell that the child alleging abuse in this case was lying. He insisted on the jury watching (and pausing to discuss )the complainant’s recorded interview, eventually prompting the others to start fidgeting. The situation became charged when, according to the foreman, a juror who thought the defendant was guilty to accused the foreman of protecting a fellow paedophile (on the theory that victims of abuse may become perpetrators.) Later, when the foreman was in the single toilet used by male jurors, the same juror allegedly forced him against a wall and told him to vote guilty or he ‘would have the shit kicked out of’ him. These allegations were all emphatically denied by the alleged assailant and relevant details were largely or wholly uncorroborated by the remaining jurors (although one juror noticed a change in the foreman after a group went to the toilet and wondered what had happened, observing that another male juror had been ‘aggressive’ to him.) The Court of Appeal unanimously concluded that none of the foreman’s allegations were true and instead that ‘although there were robust and, at times, heated exchanges between jurors during the course of deliberations, at no time was any unlawful or improper coercion, threat or intimidation applied to any juror.’ In a separate concurrence, Mazza JA added:

The shadow of injustice has been dispelled. The integrity of the verdict has been put beyond question. There has been no miscarriage of justice.

That conclusion may yet be tested if the defendant applies for special leave to appeal this latest decision to the High Court.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

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