REGINA v Kalid KADDOUR [2004] NSWCCA 361 | Case summary

Tuesday 12 October 2004 REGINA v Kalid KADDOUR Judgment 1 SPIGELMAN CJ: The Court has before it an interlocutory application for access to certain material that has been sealed in an envelope by order of Justice Dunford on 29th July 2004. 2 The Appellant appeals against his conviction on certain charges. One of the grounds he seeks to agitate on appeal concerns the identity of a juror whom he wishes to allege was a person who knew the Appellant and also knew of adverse information regarding the Appellant's character and reputation. 3 Critical to the pursuit of this particular ground of appeal is, of course, the identity of the juror. Evidence has been placed on affidavit before the Court, although those affidavits have not at this stage been read. The Court is aware there is evidence identifying a certain person to be a juror and evidence of a general character of the relationship between that juror, if he or she was a juror, and the Appellant. 4 Justice Dunford was dealing with an application similar to the one now before the Court, made on behalf of the Appellant, to disclose the contents of a report by the Sheriff's Office relating to the possible identity of the juror. His Honour rejected the application. In the course of doing so his Honour relied upon the provisions of s68 of the Jury Act 1977 and concluded that that section prevented the Court disclosing the information on the application. 5 Section 68 provides: "(1) A person shall not, except in accordance with this Act, wilfully publish any material, broadcast any matter or otherwise disclose any information which is likely to lead to the identification of a juror or former juror in a particular trial or inquest. Penalty: In the case of a corporation, $250,000; in any other case, 2 years imprisonment or 50 penalty units (or both). (2) Subsection (1) does not apply to the identification of a former juror with the consent of the former juror. (3) A reference in this section to the identification of a juror or former juror includes a reference to the disclosure of the address of the juror or former juror. (4) Subsection (1) does not apply to the disclosure of information by the sheriff to any of the following bodies or persons for the purposes of an investigation or prosecution of a contempt of court or an offence relating to a juror or a jury: (a) a court, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption, (d) the Police Integrity Commission, (e) the Australian Crime Commission, (f) the Director of Public Prosecutions, (g) the Police Service, (h) the Australian Federal Police. (5) Subsection (1) does not apply to the disclosure of information by the sheriff to a person in accordance with an authority granted by the Attorney General for the conduct of a research project into matters relating to juries or jurors. (6) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions." 6 Justice Dunford referred to the investigation by the Sheriff and added: "[5] The Sheriff has now furnished a reply but I decline to order that either the Crown or the appellant's counsel have access to the communication from the Sheriff. I emphasise however, that this should not be understood as indicating either that the nominated person was a member of the jury or was not a member of the jury at the appellant's trial. My reason for doing so is that I consider I have no power or discretion to permit such disclosure having regard to the provisions of s 68 of the Jury Act 1977. [6] Even if I did have the power, I consider that in the proper exercise of any discretion I should not exercise it. My reasons are that the terms of s 68 make it clear that there should be no disclosure of the identity of a juror except in the very limited circumstances therein specified, and indicate a legislative intention that such disclosure should not take place unless absolutely necessary. Whether the fact that a person known to the appellant was on the jury could constitute a valid ground for setting aside the jury's verdict, particularly in the circumstances of this case, is a matter that should be determined by a full bench of the Court of Criminal Appeal, and not by a single judge sitting on a directions hearing. [7] In this regard I assume that the provisions of s 38(7) of the Jury Act were complied with and that before the selection of the jury the judge directed the Crown Prosecutor to identify the accused and the principal witnesses to be called for the prosecution, and that the judge called on the jurors on the panel, to apply to be excused if they considered they were not able to give impartial consideration to the accused's case. If the nominated person was on the jury panel he either did not recognise the appellant or if he did, he apparently considered that he was able to give impartial consideration to the accused's case." 7 His Honour refused the application and made certain directions. His Honour also made directions as follows with respect to the information: "[13] I direct that the name of the possible juror identified by the deponents of relevant affidavits, be contained in a sealed envelope, and written submissions refer to such person as XYZ. The envelope containing the name, when sealed, is not to be opened except by direction of the Court. [14] I further order that the response from the Sheriff, dated 18 June 2004, be placed in a sealed envelope and not to be opened except by order of the Court." 8 In my opinion his Honour erred in reaching the conclusion that the Court had no discretion to permit disclosure by reason of s68 of the Jury Act. 9 I would direct, in accordance with his Honour's order, that the two envelopes, or if both documents are in a single envelope, the single envelope, be opened to be inspected by the Court and then made available to the legal representatives of the parties only at this stage. 10 The Court has been assisted by submissions in this respect by Mr Byrne SC on behalf of the Appellant and Mr Cogswell SC on behalf of the Crown. 11 Mr Cogswell made certain submissions in order to assist the Court and adopted a devil's advocate role, directing the Court's attention to certain aspects of the statutory scheme. 12 In my opinion the word "person" in s68(1) does not extend to a Court. There is a strong line of authority which indicates that, as a matter of ordinary language, the word "person" would not ordinarily encompass a court. (See, e.g. Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6; Miller v Miller (1978) 141 CLR 269 at 277; Hilton v Wells (1985) 157 CLR 57 at 87.) 13 The issue of whether the word "person" includes a court has often arisen in the case of statutory provision prohibiting or regulating disclosure of information by or to "a person". The answer in all cases that I have identified is: No it does not. (See Canadian Pacific supra; Cowan v Stanhill Estates Pty Ltd (1966) VR 604 at 606-629; Miller v Miller supra; Parkes Management Limited v Perpetual Trustee Co Ltd (1979) 1 NSWLR 274 at 277; Hilton v Wells supra at 67, 87; Kizon v Palmer (1977) 72 FCR 409 at 430-431. 14 Plainly, the matter must turn on the particular statute. I am reinforced in my conclusion by the terms of s68(4) itself which I have set out above. The provision is directed at permitting the sheriff to make disclosure, for certain limited purposes, to a range of organisations, some of which posts are occupied by a single individual. The permission is expressed in terms of "the following bodies or persons". Here, in s68 itself, is an indication that the word "person" is used in a narrower sense than a concept extending to include the court, otherwise the use of the word "bodies" as well as the word "persons" in subs (4) would not have been necessary. 15 I do not mean to suggest by these remarks that each of the organisations referred to in the respective sub paragraphs of subs (4) could not be bound, themselves, by subs (1). Nor would I wish to make any observations as to the broader construction of the word "person". One issue that often arises in such a context is whether a body corporate constitutes a person. Subsection 68(1) puts that matter beyond doubt by providing for a separate penalty in the case of a corporate offender. 16 Section 68(4) permits the disclosure of information. It operates as an exclusion from the prohibition in subs (1). There are, however, two additional exclusions. An individual juror can consent to disclose his or her identity pursuant to s68(2). Further, the Attorney may permit the disclosure of such information for the purpose of jury research under s68(5). These particular exceptions do not suggest that any one of them is intended to be exhaustive in any sense. 17 Subsection (4) appears to me to be precautionary. It is designed to ensure that no issue will arise with respect to disclosure by the Sheriff to the particular bodies and persons identified in the subsection. 18 A similar issue arose in the Parks Management case to which I have referred. That case involved s13 of the Securities Industry Act 1975. Subsection (2) of that section contained a similar permission, which was also construed so as not to be an exhaustive list of exceptions to the prohibition in subs (1) of s13, for the reasons identified by Needham J at p277. Although each statute must be construed in accordance with its own terms I reach a similar conclusion to his Honour with respect to s68 of the Act. 19 Perhaps the principal reason for doing so is that s68(4) is limited to a specific range of matters involving the administration of justice. It extends, "to the investigation or prosecution of contempt of a court or an offence relating to a juror or jury". The range of circumstances that can arise in a jury trial which give rise to a possible miscarriage of justice is wide. The width of this range suggests to me that, in the context of s68(1), Parliament would not have intended to prohibit a Court from making information available which may lead to a course of inquiry that can disclose a significant miscarriage of justice. 20 The matter was considered, for example, in Minarowska & Kozio v R (1995) 83 A Crim R 78 where Gleeson CJ said, at 85: "A distinction has been drawn between evidence, first-hand or hearsay, as to the deliberations of a jury, and evidence, sometimes described as relating to 'extrinsic matters', which proves a material irregularity in the proceedings. Thus, for example, it is permissible to lead evidence to show that inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury ( Rinaldi (1993) 390 NSWLR 5605; 68 A Crim R 284), or that a sheriff's officer wrongly intruded into the jury's deliberations and expressed a view that the accused were guilty ( Emmett (1988) 14 NSWLR 327; 33 A Crim R 340), or that a jury bailiff suggested to a jury that an accused had previous convictions ( Brandon (1969) 53 Cr App R 466), or that a juror was drunk, or could not speak English, or refused to participate in deliberations ( Tuia [1994] 3 NZLR 553). The distinction between evidence relating to a jury's deliberations, and evidence of an irregularity in their conduct or procedures, or in the conduct of the trial in a manner capable of affecting the jury, although it may be blurred in some cases, is of considerable antiquity. However the dividing line between proof of a jury's deliberations and proof of an irregularity in the proceedings may, as the present case illustrates, be difficult to draw". 21 These observations were made in the context of disclosure of jury deliberations, a matter covered by the provision of s68A of the Jury Act. Nevertheless they appear to me to have an analogy for purposes of s68. Where, as in the present case, the identity of a juror arises in a context where a miscarriage of justice may have occurred, Parliament would not have intended subs (4) to constitute an exhaustive list of the circumstances in which disclosure, at least by a court, of the identity of the juror would be permitted. 22 Subsection (4), limited as it is to contempt and an offence relating to a jury, does not encompass the full range of circumstances in which the identity of the juror can give rise to the need for disclosure in order to prevent a miscarriage of justice. 23 The Court should be slow to construe legislation so that it prevents the Court from taking what steps it should take to ensure that miscarriages of justice do not arise by reason of the identity of a juror and, perhaps, knowledge by a juror about a particular accused. 24 For those reasons in my opinion the Court should direct that the envelope be opened and, after inspecting the envelope or envelopes, to make them available to the legal representatives of the parties. 25 BUDDIN J: I agree with the Chief Justice. 26 SMART AJ: I also agree. **********

REGINA v Kalid KADDOUR

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