3 HIS HONOUR: At the close of the Crown case Mr Terracini SC, for the accused, has raised a question concerning the manner in which the case is to be left to the jury in relation to the soliciting element of the charge that has been preferred under s68A of the Jury Act. The submission advanced has not been pursued in the context of a no case submission, but its resolution is said to affect the way in which the defence case might proceed.
4 Although it is somewhat irregular for such a matter to be raised absent a no case submission, prior to the close of the evidence, it is convenient for it to be dealt with now since it will need to be resolved before the matter is left to the jury.
5 The short point at issue is whether the meaning to be given to the expression "solicit" in S68A is a question of fact for the jury, or whether it involves a question of statutory construction, and hence a matter of law as to which a direction needs to be given. The Section provides:
"(1) A person shall not solicit information from, or harass, a juror or former juror for the purpose of obtaining information on the deliberations of a jury.
Maximum penalty on indictment: imprisonment for 7 years.
(2) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.
(3) Subsection (1) does not prohibit a person from soliciting information from a juror or former juror in accordance with an authority granted by the Attorney-General for the conduct of a research project into matters relating to juries or jury service."
6 The submission advanced on the part of the defence relies upon the observations of Lord Reid in Brutus v Cozens (1973) AC 854 at 861 as follows:
"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word "insulting" being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to facts which have been proved."
7 It was submitted that if the word "solicit" is used in the present section to have its common meaning, then that meaning is a question of fact for the jury. So that it would be inappropriate for me, as the trial judge, to attempt to give any definition to it by way of a direction of law. However, if it has a special or an unusual meaning, then its construction becomes a matter of law and a direction is needed.
8 The context in which this submission was advanced needs to be understood. The Crown contends that the expression "solicit" information from a juror or former juror relevantly for this case involves, amongst its other meaning, "ask for" or "request" information from such a person. It relies, in particular, upon what was said by Sully J in the context of the offence to solicit to murder (s26 of the Crimes Act (NSW) in Azzopardi NSW CCA 1 October 1998). His Honour, with whom Spigelman CJ and Hidden J agreed, cited with approval, at page 13, what had fallen from Stout CJ in Sweeney v Astle (1923) NZLR 1198 at 1002:
" The word 'solicit' is a common English word, and it means, in a simplified form, 'to ask'. In various English dictionaries this simple meaning is given, but other simple words are also used to explain other meanings it possesses, such as 'to call for', 'to make a request', 'to petition', 'to entreat', 'to persuade', 'to prefer a request'."
9 Azzopardi was itself cited with approval by Smart J, with whom Ireland and Dunford JJ agreed, in R v Murat Ay NSWCCA, 30 October 1998 at page 19, where his Honour expressly noted that the expression "to solicit" in this context meant, amongst other things, "to ask".
10 Mr Terracini contends that although the expression "solicit" may include, amongst its common or dictionary meanings, "ask for" or "request", it also embraces those forms of conduct that involve more than a mere asking or request of a juror for information, but rather calls for a degree of persuasion or influence to be associated with that request. So it was that he submitted that the word should be understood by the jury within the context of s68A as being synonymous with concepts such as earnestly ask, entreat, implore, ask in an aggressive fashion, pester, lobby, vigorously urge, importune, beseech, plead and so on, that is, something a good deal stronger or more forceful or persuasive than a mere "asking" or "request" for information.
11 Herein lies a paradox since, so it seems to me, Mr Terracini wishes to assign to the expression "solicit", where used in the section, a meaning that would exclude some of the meanings attributed to it in common parlance or in standard dictionaries. For example, the meanings which appear in the Shorter Oxford English Dictionary and in the Macquarie Dictionary, which include the meanings which the Crown advances.
12 This submission is pursued in the context of the Jury Act and by reference to a legislative intent said to be disclosed in the second reading speeches when the legislation was introduced in the House.
13 Specifically it was submitted that respect needs to be paid to the freedom of speech of jurors, and to a presumed intention that the legislature would not have wished to penalise simple or routine enquiries of jurors, or former jurors, made by friends or relatives as to what had transpired in the course of their deliberations. To quote the relevant submission, it was put that it is inconceivable that the intention of the legislature was to catch every single person who directed an innocuous request or enquiry to a friend or relative who had been on a jury as to what had happened in relation to their deliberations. Rather, it was put that the perceived intention was to stop genuine harassment and intrusion of jurors, for the purpose of obtaining information in relation to their deliberations.
14 Further, it was submitted that the decision in Azzopardi, and in similar cases, was to be understood in its particular context of a request by an accused to another to commit an act that would be unlawful. In the present case, however, a request of a former juror to speak about the deliberative process of that juror, or of the jury upon which he or she served, would not be a request to that person to do something that, on his or her part, would be unlawful, since once a trial is at an end, a juror is entitled to speak about the matter if he or she chooses; that is, so long as the juror initiates the conversation.
15 As I understand these submissions, if I was to accept that the word "solicit" has this more confined or special meaning, then I should direct the jury accordingly. However, if I was of a view that it had, in its common use or parlance, those meanings advanced by the Crown as well as the additional meanings advanced by the accused, then I should not venture into that aspect at all, leaving it to the jury to work out what was meant.
16 The issue thus raised seems to me to turn upon whether, in the context of the Jury Act, the relevant expression has the special or more confined meaning upon which the defence relies and excludes some of the meanings that, according to dictionary definitions and ordinary parlance, fall within the umbrella of its common meaning. That seems to me to involve a question of law. If, in his address, Mr Terracini invites the jury to place a special or limited meaning upon the term "solicit", dependent upon it being associated with a degree of pressure or entreaty or the like, then unless that point is made good as a matter of law, I consider that I would have to give a direction that in the present context it is not to be so limited or read down.
17 When the point at issue is analysed in this way, I do not consider that there is anything in the line of authority, based upon the observations of Lord Reid in Cozens v Brutus and applied in the several decisions cited by Mr Terracini, namely R v Feely (1973) 1 QB 530, R v Glenister (1982) NSWLR 597, Czarniak v R (1985) 118 FLR 36, Peninsular Care Pty Ltd v Bishop (1991) 108 A Crim R 459 or R v H (1993) 1 NZLR 129, which leads to any other conclusion.
18 By taking the course which I have identified, I would strictly not be attempting to give a definition of the meaning of an ordinary word in the English language, rather, consistent with authority, I would be making it clear, that as a matter of construction, the law, assuming it to be such, does not call for any gloss upon or attribution of a special meaning to the word "solicit" that it does not bear in common parlance.
19 In understanding the decisions cited by Mr Terracini, it is necessary to respect the distinction between determining the meaning of a word used in a statute, and determining whether the words used in that statute, do or do not, as a matter of ordinary usage of the English language, apply to the facts which have been proved. The former can involve a question of law when the issue is whether a particular meaning, wider or narrower than its natural meaning, should be attracted to a word or expression employed in a statute and also when the issue is whether one of several possible meanings is or is not embraced by it. The distinction between questions of fact and of law in this context were succinctly explained by Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 at p7 and by Jordan CJ in Australian Gaslight Company v Valuer General (1940) 57 WN 53.
20 Moreover, it is not to be overlooked that the observations of Lord Reid in Cozens v Brutus were directed towards ordinary words of the English language or, as Lord Morris of Borth-y-Gest put it (at 864), words which are in general use and which present "no difficulty in explanation or understanding."
21 In R v H Hardie Boys J noted at 13, in the context of the expression in a statute, "living with him as a member of his family":
"These are ordinary English words, used in their popular sense and not with any legal or technical connotation. Whether as a matter of ordinary usage they applied to the proved facts was a question for the jury: Cozens v Brutus and it was for the judge on the s347 application to consider whether a reasonable jury, properly directed, could conclude they did apply. Nonetheless, as Lord Denning, MR pointed out in Dyson Holdings Limited v Fox (1976) QB 503, it is important that tribunals of fact should apply the words of a statute in the same way. Thus the Court, in appropriate cases, is entitled to give a definitive ruling. And where the words are general rather than specific, or are susceptible of more than one significant shade of meaning, the Judge in his summing-up will need to direct the jury as to the way in which they should be understood in their particular statutory context."
22 Reference might also be made to the passage in Cross on Evidence, sixth edition, at 276 as follows:
"The proper construction of a statute may require a judge to do more than decide whether words are used in an unusual sense and, if so, what the sense is. The judge may have to choose between a variety of possible meanings, including ordinary meanings of which there are sometimes more than one, and this will result in a direction on the law."
23 The expression "solicit" is not one that is likely to fall from the lips of the average juror in common speech very often or if at all, and as the standard dictionary definitions show, it can embrace a range of synonyms or concepts varying from a simple request to a vigorous urging. In those circumstances it is, in my view, appropriate to determine, as a question of law, whether it has a special meaning in the present context which would exclude some of those meanings, ie whether it bears the meaning advanced by the Crown or is subject to the gloss suggested by the defence.
24 In addition to the cases previously mentioned, in support of the word "solicit" having, amongst its other meanings, that of asking or requesting or attempting to try to obtain something, is the decision in R v Forgione (1969) SASR 248 where the Full Court stated at 251:
" We do not agree with Mr Moran that the word 'solicit' in this section is restricted to the meaning of 'to importune, to entreat or implore'. Importuning, entreating or imploring may of course be 'soliciting', but so may something less dramatic and less vehement. In our view, a request or a proposal to A that he should murder B, would be a soliciting within the meaning of the section, if seriously made ."
25 Forgione was itself applied in R v Williams (1978) SASR 423 and in R v Azzopardi where Sully J held that in the circumstances of that case it would have been sufficient, that is, appropriate for the judge to have told the jury that to solicit somebody to commit a murder meant, relevantly for that case, 'to ask' or 'to request' the other person to do that thing.
26 Further support for the absence of the gloss for which the defence contends can be seen in the dicta of this court in R v Rinaldi (1993) 68 A Crim R 284 at 291 where the Court, constituted by Curruthers, Sully and Abadee JJ said:
"The point should be made, as forcefully as possible, that any member of the legal profession who questions a juror about matters which have occurred within the jury room runs the risk of offending against s68A of the Jury Act, as well as the possibility of breaching proper professional standards.