R v Potier

W Roser (Crown) COUNSEL: Applicant in person

IN THE COURT OF CRIMINAL APPEAL 2001/3101

BASTEN JA SIMPSON J BUDDIN J

FRIDAY 16 SEPTEMBER 2005 R v MALCOLM HUNTLEY POTIER Judgment 1 BUDDIN J: The applicant seeks orders that two named persons be required to attend and give evidence at the hearing of his appeal against conviction which is listed to be heard on 30 September 2005. 2 It will be necessary to briefly sketch some background details in order to put the present application in context. In October 2001 the applicant was convicted of two counts of soliciting an undercover operative to murder his de facto wife, from whom he was separated, and her male companion. It appears that the applicant and his estranged partner were engaged in litigation concerning the custody of their daughter at the time of the commission of the offences which give rise to the present appeal. 3 Following the jury's verdicts the applicant was sentenced to a period of imprisonment. The applicant filed an appeal against conviction and an application for leave to appeal against the severity of the sentences imposed upon him. The Crown appealed against the inadequacy of those sentences. The matter has proceeded in a very leisurely fashion. On no fewer than three occasions the appeals were listed for hearing but vacated at the behest of the applicant. 4 When the matter came before this Court on 25 April 2004 the applicant, who was unrepresented at least in relation to the conviction appeal, was still not in a position to pursue the matter. The Court made orders in relation to the conviction appeal which did not then proceed. The Court did however hear and dispose of the sentence appeals. The applicant's appeal against the severity of the sentences imposed upon him were dismissed but the Crown appeal was allowed and the sentences increased: see R v Potier [2004] NSWCCA 136. 5 As I have said the applicant's appeal against conviction is now listed for hearing later this month. We were informed that the appellant has filed Grounds of Appeal and written submissions in support of his appeal. 6 In advancing one of those Grounds the applicant asserts that one of the jurors at his trial (who is a professional journalist) has written a book in which he details his experiences as a member of the jury. The juror is one of the two witnesses in respect of whom the applicant seeks the orders to which I earlier referred. For abundant caution I will not refer to the juror by name. 7 The book which is asserted by the applicant to have been written about his trial has been formally placed before us. I have read what is described as the Author's Note to the book. In it the author states that the identities of the other jurors have been preserved and the details of the case have been altered and fictionalised in order, I assume, to ensure that the particular trial in question cannot be identified. Moreover the author makes it plain that he is aware that he is prohibited from disclosing anything about the jury's deliberations. It seems to be common ground that the book in its original form was not published and that what was ultimately published has been the subject of some revision (although the extent of that revision may be a matter of some dispute). 8 The current application has been conducted by the parties upon the basis that the book was indeed written by one of the members of the jury who heard the applicant's trial. It is unnecessary in those circumstances for the Court to determine if that is in fact the case. Obviously enough, if it were not the case then the present application would inevitably fail. 9 In order to gain an understanding of what the applicant hopes to achieve in requesting the orders which he seeks, it is useful to refer to the following paragraphs of his written submissions. The applicant asserts: In the book the [the juror] changes very little from the central facts of the case as presented to the Jury. Particularly he considers the evidence as presented and his, and his fellow jurors reactions, to the evidence given to it together with their deliberations. I believe it is clear that [the juror] has breached his obligations as a Juror and has acted against the provisions of the Jury Act 1977 section 68B. It is my submission that [the juror] by his own actions has removed himself from the overall protection of the Jury Act and as such has laid himself open to questioning by me as to how the Jury considered the evidence against me. This is particularly relevant as, by reference to, my Grounds of Appeal Against Conviction filed in this Court certain evidence was allowed to be given to the Jury which was clearly hearsay and inadmissible. The book specifically refers to this evidence as being of significant probative value to the Jury in its deliberations. (pars 4-8) 10 It would of course be inappropriate for me to comment upon the merits of this, or indeed, any other Ground of Appeal. What can be said is that the applicant did not point to any passage in the book in support of his contention that the impugned evidence was regarded by the jury in its deliberations "as being of significant probative value". But even if there was material to that effect, the applicant would be able to rely upon it in support of whatever submissions he may wish to advance without the need for the author to give any further evidence about it. 11 Nevertheless the applicant is in my view confronted with a fundamental problem. 12 In R v Skaf (2004) 60 NSWLR 86 the Court said: Since as long ago as Lord Mansfield's judgment in Vaise v Delaval (1785) 1Term Rep 11; 99 ER 944 courts have refused to receive evidence from former jurors as to their deliberations in the jury room. That was a motion to set aside a verdict, upon an affidavit of two jurors who swore that a coin was tossed to break a deadlock. Lord Mansfield CJ said: "The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or such by some other means." The principle is well established (see, for example, R v Rinaldi (1993) 30 NSWLR 605 at 610-611; R v Mirza [2004] 2 WLR 201; [2004] 1 All ER 925). The exclusionary rule is based on considerations of public policy that should inform decisions as to its scope and application (see generally R v Pan [2001] 2 SCR 344 at 373 [48]-[52]). The exclusionary principle is based on the need to promote full and frank discussion amongst jurors, to ensure the finality of the verdict, to protect jurors from harassment, pressure, censure and reprisals, and (to a degree) to maintain public confidence in juries. Consistent with this rationale, the rule of preclusion encompasses at least evidence about discussion amongst jurors in their deliberations as well as evidence from jurors as to their individual thought processes referable to the verdict in which they participated (cf Ellis v Deheer [1922] 2 KB 113 at 117-118; R v Mirza (at 218 [41]; 942 [41], 226 [76]; 950 [76], 233 [99]; 956 [99]. A very useful summation is offered by Arbour J in R v Pan (at 386 [77]): "In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield's rule is as follows: statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors' minds, emotions or ultimate decision. On the other hand the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict." (pars 210-212) 13 See also R v Minarowska (1995) 83 A Crim R 78 and R v K (2003) 59 NSWLR 431.

14 It is abundantly clear that the matters which the applicant wants to explore go directly to the deliberations of the jury. The authorities establish that that material cannot be touched upon. It follows that these are matters which the applicant is not entitled to explore, and certainly not by direct examination of the juror in the witness box. 15 As I have said, the applicant also contends that the juror has breached s 68B of the Jury Act, which is in the following terms: 68B Disclosure of information by jurors etc (1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about: (a) the deliberations of the jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest. Maximum penalty: 20 penalty units. (2) A person (including a juror or former juror) must not, for a fee, gain or reward, disclose or offer to disclose to any person information about: (a) the deliberations of a jury, or

(b) how a juror, or a jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest.

Maximum penalty: 50 penalty units. (3) 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.

(4) Subsection (1) does not prohibit a juror from disclosing information to another member of the jury during a trial or coronial inquest. 16 It is neither possible nor necessary to determine that issue in the present application, which has come on at short notice. It would in any event require a close examination of the contents of the book. As matters presently stand I do not see how a contravention of s 68B, assuming that there has been one, can avail the applicant in his present application. 17 The applicant raises yet another issue. He maintains that the following questions should be asked of the juror: 1) At what stage did the Juror decide to write the book? 2) What was he to be paid [I note it is an offence under the Jury Act for a Juror to profit from being a Juror]? 3) If the Jury had found the Appellant not guilty then the book could never have been written - there must have been a strong motive in this Juror's mind to find the Appellant guilty.

18 The questions which the applicant poses raise the possibility of bias on the part of the juror. Before considering that issue, I observe that I do not accept the assumption which is implicit in the third of the questions raised. I am quite unable to see how it can be simply assumed that an acquittal would necessarily have meant that the book would not have been written by the juror. But even more fundamentally there is an assumption that the juror has, in effect, acted contrary to his oath and determined upon verdicts of guilty for a quite ulterior purpose. Moreover in so doing it is assumed that he simply ignored the directions given by the trial judge that the jury was to determine the case solely on the basis of the evidence presented to it. 19 The courts in recent years have been anxious to emphasise the importance of placing faith in juries acting in accordance with the directions that they are given. In The Queen v Glennon (1992) 173 CLR 592, Mason CJ and Toohey J said: Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v The Queen , we stated: "But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg v Hubbert : `In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence."'

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. (at 603) 20 In R v Booth (1982) 8 A Crim R 4, a woman visited a prisoner in gaol whilst she was serving on a jury. They had a discussion during the course of which the prisoner informed her that the accused had "done a lot of gaol". Lush J, with whom Young CJ and Gray J agreed, observed that: The authorities show that a court may in some circumstances inquire whether a juror is or was affected by bias. Unless, however, the alleged bias amounts to a determination to reach a desired conclusion, no matter what the evidence, a verdict will not be quashed on this ground. This was established by Syme (1914) 10 Cr App R 284 and reaffirmed in Box [1964] 1 QB 430. These cases were referred to and applied in Re Matthews and Ford [1973] VR 199 at 205 and 209. The evidence of [the juror] does not in fact prove or even suggest bias. At most it suggests a possibility of bias. … In the present case the evidence will not support a case of bias of any degree, still less of the relevantly necessary degree, and the court should not embark upon or permit the applicant to embark upon an examination of the juror in search of such a case. (at 8 -9) 21 It is also to be observed of the present case that the juror in question was but one of a jury of twelve which returned unanimous verdicts of guilty. 22 I am also of the view that even if the juror was to be questioned and concede that he had decided to write the book before verdict and that he did so for profit, then for reasons to which I have already adverted that would not necessarily be of any assistance to the applicant. 23 In the final analysis the applicant is quite unable, in my view, to satisfy the test propounded by Mason CJ and McHugh J in Webb v The Queen (1993-4) 181 CLR 41. Their Honours observed (in another context) that the question to be asked is whether the incident or conduct on the part of the juror or jury: gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially. (at 53) 24 In my view the applicant's assertions are, to use the terminology employed in Glennon, "mere conjecture or speculation". Accordingly, as was said in Booth, the court should not permit the applicant to "embark upon an examination of the juror in search of [a case of bias]" 25 In any event, even if there were found to be a proper foundation for an assertion that the verdicts had been affected by improper conduct on the part of the particular juror or the jury as a whole, then the appropriate procedure would be for the matter to be investigated by the Sheriff's office, in accordance with the practice authorised in R v Rinaldi (1993) 30 NSWLR 605 (see now s 73 A of the Jury Act). 26 The applicant also seeks an order in relation to the Director of Public Prosecutions, Nicholas Cowdery QC. In respect of that matter, the applicant points to the Author's Note in the book written by the former juror which contains a reference to conversations between the author and the Director. The applicant concedes that the conversations almost certainly took place after the verdicts. Nevertheless he maintains that the only inference available is that the Director either "participated in the preparation of the book or approved its contents". There does not appear to me to be any basis for such an assumption. It may be observed that the author also spoke to many other legal practitioners whilst in the process of writing the book. It is also not clear whether the advice, which according to the author was proffered by the Director, even related to the present case. If there is, as I have concluded, no basis for examining the juror, then it seems to me that the same conclusion must also be reached in respect of the Director. 27 The applicant also submits that he is entitled to examine the Director because part of the basis of his appeal is that the Director's "servants and agents have deliberately withheld information or acted in contravention of NSW law in dealing with [his] matters". It is not entirely clear to whom the applicant is referring. However even if the assertion was to be true, that would not provide a basis, on the material which is before this Court, for the making of the order which is sought. 28 For the foregoing reasons, and because neither witness can give evidence which is relevant to the applicant's appeal, I propose that the application be refused. 29 BASTEN JA: I agree. I would add only these comments. Firstly, there was no challenge to the proposition that it was within the power of the Court to require either the juror or the Director or both to attend: Criminal Appeal Act 1912 (NSW), s 12.

30 Secondly, it is not my understanding that there was any proposal put forward that the juror would be questioned in relation to the deliberations of the jury. However, if that is the case, then it also follows that it is not information on the deliberation of a jury which is sought to be relied upon as being disclosed in the book to which reference has been made.

31 In those circumstances there would not be a contravention of s 68B(2) of the Jury Act 1977 (NSW) in publishing the book. Neither the book nor the author of the book have been considered or heard by this Court. The author is not present for the purpose of this application, the book has not been tendered as such and only extracts from the note have been relied upon. I would make it clear that the conclusions reached by the Court do not give rise to any apprehension that an offence has been committed by its publication.

32 The conclusion which the Court comes to in refusing the application to issue an order that the juror attend, is based in my view primarily on the fact that, accepting that the juror had decided to write a book about his experience, the inference that the guilt of the appellant is a precondition to the publication of the book for reward, simply does not logically follow.

33 I see no reason to conclude that the juror would have had any significant motive to find the appellant either guilty or not guilty simply on the basis that he intended to publish some record of his experiences, properly limited, as we must assume for present purposes, by s 68B(2).

34 Accordingly, in my view there is no basis upon which the juror should be examined. It follows, as Justice Buddin has indicated, that there is no basis upon which to examine the Director.

35 The only additional point in relation to his role was that he might have spoken with the author prior to the verdict being delivered. As there is no basis from which to infer that that has taken place, the Court should assume that it did not happen. The applicant did not, I think suggest otherwise.

36 If there is a matter which is to be investigated as to the conduct of the juror in publishing a book, as his Honour has noted, it should be properly dealt with in accordance with the provisions of the Jury Act by the Sheriff. However, on the material before this Court it is not apparent to me that any investigation is required.

37 SIMPSON J: I agree with the order proposed by Justice Buddin and for the reasons given by him. I largely agree with the additional remarks of the Presiding Judge.

38 BASTEN JA: The order is as proposed by Justice Buddin.

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