R v Laws

COUNSEL : M. Tedeschi QC W. Terracini SC with W. Muddle DPP SOLICITORS : Hunt & Hunt

CATCHWORDS : CATCHWORDS - CRIMINAL LAW - meaning of the word "solicit" - s68A Jury Act 1977- question of law or fact - natural and ordinary meaning - special or confined meaning - jury process - protection of sanctity of the jury process ACTS CITED LEGISLATION CITED : Crimes Act 1900 (NSW) s 26 Jury Act 1977 (NSW) s68A Jury Amendment Act 1997 (NSW) DECISION :

JUDGMENT (Re the word 'solicit'. See p60 of transcript)

The issue was whether 'solicit' in the context of the Jury Act has a special or confined meaning which requires a direction of law or a common meaning which should be left to the jury.

1. The expression 'solicit' according to the standard definitions includes a wide range of synonyms. In the light of that circumstance and of the further circumstance that the defence contended that it should be understood in a limited sense involving a degree of pressure or persuasion, it was proper to determine, as a matter of law, whether it had a special or particular meaning in the context of the Jury Act. R v H (1993) NZLR 129; Brutus v Cozens (1973) AC 854 distinguished..

1. The language of the section is clear and unambiguous. The word 'solicit' means to ask or make a request for information, or to attempt to obtain something. It does not require harassment, pressure or importuning. Sweeney v Astle (1923) NZLR 1198; Azzopardi NSWCCA 1 October 1998; Murat Ay NSWCCA 30 October 1998 applied. Forgione (1969) SASR 248; Herring NSWCCA 24 November 1998; Rinaldi (1993) 68 ACrimR 284 considered

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION

JUDGMENT (Re the word 'solicit'. See p60 of transcript.)

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.

The point should also be made, no less forcefully, about persons, apart from members of the legal profession who have been involved in any particular trial. An attempt by anybody, be the person lawyer, police officer, court official, journalist or any other member of the public, to breach the privacy and confidentiality of jury deliberations runs the risk, to say the least, of offending against s68A of the Jury Act." 27 To similar effect are observations in R v Herring NSWCCA 24 November 1998 where the Court, comprised by McInerney, Studdert and Simpson JJ said at page 108: "It is appropriate again to remind members of the legal profession who have been involved in a criminal trial of the undesirability of engaging in discussions with individuals who have served as members of the jury. Such an observation was made in Rinaldi and attention was there drawn to the provisions of s68A of the Jury Act 1977. Those provisions then prohibited any person soliciting information from jurors for the purpose of obtaining information on the deliberations of the jury for the purposes of publication. By recent amendment (Jury Amendment Act 1997 No. 15) which commenced 1 July 1998 the words "for inclusion in any material to be published or any matter to be broadcast" have been deleted. It is an offence to solicit information from jurors for the purpose of obtaining information about the deliberations. Practitioners who engage in discussions with former jurors expose themselves to the risk of contravening the section. Although in this regard it is appropriate to take into account the description of events given by Ms Llardo that the gathering in the hotel took place the day after the verdict was delivered, it remains unwise for the legal representatives of the parties to permit themselves to be in a position where there is a real possibility that they will encounter members of the jury. Where they do so unintentionally or unexpectedly, they should refrain from being drawn into discussion about the trial." 28 I am not persuaded there is any reason to give the word "solicit" a different meaning, in the present context, from that adopted in these decisions, either for the reasons identified by Mr Terracini or otherwise. 29 The objective behind the present legislation, I am satisfied, was the perceived need to protect jury confidentiality and anonymity; to encourage the finality of jury verdicts; to foster confidence in jurors, both serving and potential, that their privacy will be respected, and that they will not be pursued or asked to justify their decisions; to protect their right to freedom of speech, in particular their ability to speak candidly in the jury room; to maintain public confidence in the jury system, and to avoid the risk of exposure of their reasoning to public scrutiny or stricture particularly in high profile cases. 30 The public interest in maintaining jury secrecy and in providing a significant measure of protection to jurors from intrusion into their affairs by outsiders has been extensively and authoritatively discussed in decisions such as Ellis v Deheer (1922) 2 Kings Bench 113, especially per Lord Justice Atkin at 121; the Prothonotary v Jackson (1976) 2 NSWLR 457; Minarowska and Kozial NSW CCA 23 October 1995. It is also discussed in the report of the New South Wales Law Reform Commission "Criminal Process Report The Jury in a Criminal Trial" LRC 48 March 1986, chapter 11. 31 The report of the Law Reform Commission and the Second Reading speeches identify this objective with clarity. Moreover, the presence of the word "harass" in s 68A, disjunctively alongside the word "solicit", tends to indicate that the latter expression was intended to involve something not attended to by the kind of pressure that would amount to harassment. 32 Further, the presence of that word tends to show that it was the alternative which the Attorney-General had in mind when in the course of the Second Reading speech reference was made to the fact that the Bill would prohibit "the harassment of jurors and former jurors for information". 33 I am further encouraged to the conclusion that the expression "solicit" does not involve any measure of pressure or importuning by S 68A(3), which makes soliciting permissible where carried out for a jury research project. Those authorised to conduct such a form of research are unlikely to have resorted to pressure or persuasion to obtain information, yet the existence of the exception contemplates that their inquiries of a jury member would otherwise have amounted to a "soliciting". 34 I am not satisfied that the case is one where it is appropriate, consistently with current rules of statutory construction to use either the Law Reform report or the Second Reading speech to construe the word "solicit" in the way in which Mr Terracini contends. Nor do I see anything in section 33 of the Interpretation Act 1985, or in the rules concerning the interpretation of legislation which may affect the liberty of a subject that would call for such a result, as noted for example in Orcher (1999) 48 NSWLR 273. Additionally, I see nothing in the current rules of statutory interpretation conveniently collected by Spigelman CJ in Regina v Young (1999) 46 NSWLR 681 which would warrant such a result. 35 I am similarly not persuaded that there is anything absurd or extraordinary in the legislation if it is not limited in the fashion suggested. True it may be that unwitting breaches of the law may occur if requests are made of former jurors for information concerning their deliberations. That, however, is not a reason for a gloss to be given to the section having regard to the objective which I perceive to have been behind the section, namely, the reinforcement of the sanctity of the jury process. 36 In my view, the language used in the section is clear and unambiguous. Moreover, a polite or private inquiry of a juror as to what occurred in the jury room may well not stop there if answered. It is in the nature of human discourse and affairs that the content of such an exchange will be disseminated on a wider basis, and eventually end up in the public arena, thereby attracting the vice to which the subject section is directed. 37 The trial should proceed upon the basis I have outlined.

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