Chapter 5
Jurors and contempt of court

Disclosure of information by jurors

5.57The deliberations of juries are confidential, and jurors are not supposed to answer questions or give out information to anyone during or after a trial. On occasion, however, the confidentiality of jury deliberations has not been respected, and jurors have given information to others outside the jury room. The advent of the Internet and social media now allows jurors to communicate or publish their views much more easily. There is now the potential for jurors to use social media at any stage during a trial to share information about the trial.198

Current law on disclosure of jury deliberations

Breach of direction – section 365(1)(c)

5.58Where a juror discusses the case in breach of a direction not to do so, the juror may be in contempt of court under section 365(1)(c) of the Criminal Procedure Act. As discussed earlier in the chapter, section 365(1)(c) comes into play whenever a juror deliberately disobeys without lawful excuse an order or direction of the court.199 Jurors are normally told that all members of the jury must be together whenever the case is being discussed and that jurors must not discuss the case with anyone else outside of the jury room. Section 365(1)(c) is therefore relevant, although it seems unlikely that it would continue to apply after the trial is completed and the jury released.

Common law contempt

5.59Disclosure or publication of jury deliberations may amount to contempt of court under common law. With few cases, the scope of this form of contempt remains quite unclear.200
5.60In Solicitor-General v Radio New Zealand Ltd, a journalist approached some of the people who had been jurors in the trial of David Tamihere for the murder of two Swedish tourists for comment when new evidence was discovered some years later. Radio New Zealand broadcasted the comments of one of the jurors who spoke at length to the reporter. Radio New Zealand was found to be guilty of contempt and was fined $30,000.201 The Court considered that:202

While the correctness of the convictions and the impact of the [new evidence] were matters that could properly be discussed, disclosure of jury deliberations or the reactions of individual jurors did not raise any legitimate matter of public concern, or otherwise advance the public good or the cause of justice. They achieved no more than the titillation of the listening public.

5.61Applying Solicitor-General v Radio New Zealand Ltd, it seems that both a journalist who approaches jurors for information and the person who publishes such information are likely to be in contempt. The authors of Media Law in New Zealand say the decision is best interpreted as rendering it quite unsafe either: (i) to approach a juror in an attempt to elicit comment about a decision; or (ii) to publish information about a jury’s deliberations elicited from an interview with a juror.203
5.62The question of whether jurors themselves could be in contempt if they approach the media has not been addressed by the courts in New Zealand.204 The position at common law is probably that a juror who discloses information or communicates with external parties (including the media) after being directed not to do this may be in contempt at common law.

5.63An important issue that has not been addressed is the question of whether it would still be contempt if the disclosure is made in the belief that there has been a miscarriage of justice. It is arguable that, in such circumstances, the disclosure or publication of jury deliberations is in the public interest and is not contempt. In such circumstances, there may be a public interest defence available.

Why jury deliberations are confidential

5.64The Court in Solicitor-General v Radio New Zealand Ltd identified three reasons for the confidentiality of jury deliberations.205
Free and frank discussion

5.65Confidentiality promotes free and frank discussion between jurors. Jurors may feel inhibited if their words could later be aired publicly and subjected to public scrutiny and attack. Jurors should be able to express their views without being afraid that it will subsequently be exposed in public. This is perhaps the strongest reason for protecting against the disclosure of jury deliberations.

Finality of verdicts
5.66Confidentiality also protects the finality of verdicts. Exposing the jury deliberations may wrongly open verdicts up to public challenge. There may also be public disagreement among jurors as to what occurred in the jury room.206 The Court of Appeal has commented that “[t]he prospect of one or more jurors being cross-examined on their affidavits and possibly being the subject of evidence in rebuttal is extremely unattractive [and] would, potentially at least, have a very detrimental effect on the jury system”.207 Likewise, one talking juror may compel other jurors, who may have wished to preserve their traditional silence, into speaking to explain their side or clarify what happened in the jury room.208

5.67A verdict does not get its legitimacy from the reasoning or deliberation process taken by individual jurors. Rather, it is the fact that the verdict is unanimous or supported by a substantial majority of the jurors, irrespective of the different routes by which individual jurors came to agree on that verdict that gives it validity. In exceptional circumstances, the courts may need to look behind and inquire into the decision-making process. Section 76 of the Evidence Act allows a court to accept evidence relating to jury deliberations in exceptional circumstances.

Privacy of jurors
5.68The confidentiality of deliberations protects the privacy of jurors. This is an important consideration. In Solicitor-General v Radio New Zealand Ltd, the Court said:209

[J]urors serve in the impression that their privacy will be respected and their identity remain undisclosed; that they will not be interviewed about their deliberations nor called upon to explain or justify their verdict.

Other measures are also in place that directly protect the identity of jurors.210

How significant are the problems?Top

5.69There have been a few cases in New Zealand where the mainstream media have published or broadcast interviews with jurors, the most significant being Solicitor-General v Radio New Zealand Ltd, which has already been discussed.

5.70There have been a few instances where jurors voluntarily approached the media. For example, following the retrial of David Bain, there were a number of interviews with jurors.211 There have also been a handful of other instances of articles in the media containing juror comment in recent years.212 To date, contempt proceedings have not been taken against jurors for disclosure.

Social media and Internet blogs

5.71The use of social media by jurors and the ability to self-publish blogs on the Internet have been identified internationally as the area where there is the most potential for disclosure by jurors.213
5.72There has been a handful of cases in the United Kingdom. The case of Attorney-General v Fraill involved the use of Facebook in a very objectionable way. The juror contacted a defendant and discussed the case with her before deliberations had been completed.214 Also, a juror in Lancaster was dismissed from the jury after she asked her Facebook friends to help her decide: “I don’t know which way to go, so I’m holding a poll”.215 More recently in Attorney-General v Pardon, a juror in a multi-defendant trial contacted one defendant to apologise for a guilty verdict returned on one of the counts and disclosed information about the jury deliberations.216 A significant number of instances have also been reported in the United States involving jurors sharing information.217

5.73No such egregious instances of the use of social media have been uncovered in New Zealand. However, we should not be unduly complacent, as overseas experience suggests that may be happening to some extent.

Approach in overseas jurisdictionsTop

United Kingdom

5.74Confidentiality of jury deliberations is protected by section 8 of the Contempt of Court Act 1981 (UK). Section 8 provides:

8 Confidentiality of jury’s deliberations.
(1) Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.
(2) This section does not apply to any disclosure of any particulars—
(a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict, or
(b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings,
or to the publication of any particulars so disclosed.
5.75The provision contains two exceptions: (a) deliberations can be disclosed to the court in which the jury is sitting; and (b) evidence of the jury’s deliberations may be used in subsequent proceedings for an offence alleged to have been committed in relation to the jury. The maximum penalty for a breach of section 8 is an unlimited fine and/or imprisonment for up to two years.218
5.76The “strict liability rule” in section 8 has been criticised for a number of reasons.219 There is no exception for a juror who has an honest and possibly well-founded concern that the manner of jury deliberation has resulted in a miscarriage of justice. If the juror expresses those concerns to someone other than the court, such as, for example, a solicitor, the juror will expose him or herself to a criminal penalty. The provision also does not contain an exception for academic research into how juries perform their role.220 Thomas considers that the prohibition has “created confusion about what jury research can and cannot be conducted and has contributed to an information vacuum about juries” in the United Kingdom.221

Australia

5.77A number of states in Australia have created statutory offences for the disclosure of deliberations. The scope of the offence varies between the states.222 However, one common element is that, in each state, it is an offence for a person to solicit information as to statements made by jurors and votes cast in the course of jury deliberations. Each state also makes it an offence for a juror to disclose such information if it is likely to be or will be published to the public. The Australian legislation also contains a number of defences. These vary among states. Some examples are disclosure to a court, to a board or commission, to a prosecuting officer for the purpose of a contempt allegation or with authorisation by a relevant minister for research purposes.

Canada

5.78Canada also addressed the situation in legislation. There is a statutory offence for disclosure of information in the Criminal Code:223
649. Every member of a jury, and every person providing technical, personal, interpretative or other support services to a juror with a physical disability, who, except for the purposes of
(a) an investigation of an alleged offence under subsection 139(2)224 in relation to a juror, or
(b) giving evidence in criminal proceedings in relation to such an offence,
discloses any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court is guilty of an offence punishable on summary conviction.

Proposals for reformTop

5.79We consider that legislation would usefully clarify the law concerning disclosure of jury deliberations. Legislation has the distinct advantage of making the rules clear. Everyone would know in advance exactly what is and is not permitted. This would provide guidance to jurors, media, practitioners and the judiciary.

A statutory offence

5.80A statutory offence could clarify the law in this area. It could clearly provide that it is an offence for anyone, including a person who is or has served on a jury, to disclose or publish details of a jury’s deliberations or for anyone to solicit such information. This approach would be consistent with that taken in the United Kingdom, Canada and Australia.

5.81As discussed earlier, the United Kingdom provision has been criticised for its strict liability rule. In its report last year, the Law Commission for England and Wales recommended reforming section 8 to address this issue.225 The Commission recommended that a specific defence be provided to cover jurors disclosing deliberations to certain officials in the genuine belief that such disclosure is necessary to uncover a miscarriage of justice.226 The Commission also recommended inclusion of an exception for authorised academic research into jury deliberations.227
5.82A Bill is currently before the House of Commons that will, when enacted, give effect to the Commission’s recommendations in terms of a public interest defence.228 The Bill repeals section 8 of the Contempt of Court Act 1981 (UK) in so far as it applies to England and Wales and replaces it with new offence provisions on the Juries Act 1974 (UK). These provisions include exceptions to cover occasions where disclosure may be in the interests of justice because there has been an irregularity such as juror misconduct during deliberations. A juror with real concerns about the fairness of the deliberation process may make a disclosure to a number of specified people during or after the trial. These include the trial judge, a judge of the Court of Appeal, the Registrar of Criminal Appeals, the Crown Prosecution Service and the Criminal Cases Review Commission, as well as the Police and the Attorney-General.229

5.83If New Zealand moves to clarify the law concerning disclosure of jury deliberations and makes the disclosure of deliberations by a juror an offence, we would also need to specify what defences and exceptions would be appropriate. There would certainly need to be an exception or defence covering disclosure in the interests of justice where there has been some irregularity, such as juror misconduct during deliberations, to avoid what is potentially a miscarriage of justice. The two options that might be considered here are either to:

5.84Whether an exception is needed in relation to research is an issue that also needs to be considered in New Zealand. The current Bill in the United Kingdom does not include that particular Law Commission recommendation.

Proactive management options

5.85We consider that the types of proactive management options we discussed in relation to jurors undertaking research could also be taken to reduce the risk that jurors will disclose details of deliberations or disclose information.

5.86Jurors could be given more explicit directions before and during the trial that they must not disclose information or use social media to discuss the case. They could also be clearly directed on the reasons for this. The information provided to those called for jury service and the information given to jurors before the trial should also clearly state the position and the reasons for it. Earlier, we suggested that the direction on how jurors must conduct themselves might be provided in written form. The juror oath could also be amended to include a juror promise not to disclose information about jury deliberations.

Questions

Q9 Do you agree with our suggested approach to pretrial publicity and research by jurors?
Q10 Do you have any comments on the different options for dealing with pretrial publicity and research by jurors? Are there other options we should consider?
Q11 Do you agree that there should be a statutory offence to replace common law contempt as it applies to jurors who, notwithstanding clear unequivocal instruction, intentionally search for extraneous information?
Q12 Do you agree that the law on the disclosure of jury deliberations should be clarified and that it should be a statutory offence for anyone, including a person who is or has served on a jury, to disclose or publish details of a jury’s deliberations or for anyone to solicit such information?
Q13 What exceptions or defences should be available to allow disclosure where it is in the interests of justice because there has been some irregularity during deliberations, such as juror misconduct?
Q14 Should there be an exception to allow for academic research into juries?
Q15 Do you have any comment on the proactive management options as they relate to disclosure of information? Are there any other options we should consider?

198See generally Johnston and others, above n 177, for a useful summary about the general issues raised by social media and juries.
199McAllister v Solicitor-General [2013] NZHC 2217, [2013] 3 NZLR 708 at [30].
200Jennifer Tunna “Contempt of Court: Divulging the Confidences of the Jury Room” (2003) 9 Canta LR 79 at 83.
201Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC).
202At 58.
203John Burrows and Ursula Cheer Media Law in New Zealand (6th ed, LexisNexis, Wellington, 2010) at 580. In an earlier edition, the authors also suggested that it would still be contempt to publish the results of an interview even if the juror had approached the media voluntarily instead of the other way round.
204Tunna, above n 200, at 103.
205Solicitor-General v Radio New Zealand Ltd, above n 201.
206Tunna, above n 200, at 89.
207Tuia v R [1994] 3 NZLR 553 (CA) at 557.
208​Murray Gleeson “The Secrecy of Jury Deliberations” (1995–1996) 1 Newcastle L Rev 1 at 12.
209Solicitor-General v Radio New Zealand Ltd, above n 201, at 55.
210In particular, there are a number of protections for the jury list included in the Juries Act 1981 that have recently been strengthened. See the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Act 2012, which brought the changes into force on
​29 April 2013.
211For example, in an article in The New Zealand Herald, one juror shared her experience of serving on the jury and the trauma she suffered as a result: see David Fisher “Bain juror: we were hounded” Herald on Sunday (online ed, Auckland, 7 June 2009). While the article did not touch on the deliberations of the jurors, it probably disclosed more information than has ever been published previously: Burrows and Cheer, above
n 203, at 581.
212For example, Sarah Harvey “Jurors stand by their disputed cruelty verdict” Stuff.co.nz (online ed, New Zealand, 27 March 2011).
213In recent Australian research, 62 Australian judges, magistrates, court administrators and other stakeholders identified the potential for juries to misuse social media during trials as the most significant challenge that social media poses to the courts: see Johnston and others, above n 177.
214Attorney-General v Fraill, above n 150.
215Urmee Khan “Juror dismissed from a trial after using Facebook to help make a decision” The Telegraph (online ed, United Kingdom,
24 November 2008).
216Attorney-General v Pardon [2012] EWHC 3402 (Admin).
217​A review of the literature and media reveals jurors doing things such as blogging about a trial or tweeting “oh and nobody buy [a building product]. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter”. See John Schwartz “As Jurors Turn to Web, Mistrials Are Popping Up” The New York Times (online ed, New York, 18 March 2009).
218Contempt of Court Act 1981 (UK), s 14.
219See generally Enid Campbell “Jury Secrecy and Contempt of Court” (1985) 11 Mon LR 169.
220Law Commission of England and Wales Contempt of Court: A Consultation Paper (LCCP 209, 2012) at 81–84.
221Thomas, above n 164, at 1.
222Juries Act 1967 (ACT), s 42C; Jury Act 1977 (NSW), ss 68A–68B; Juries Act 2000 (Vic), s 78; Jury Act 1995 (Qld), s 78; Juries Act (NT), s 49A; Juries Act 2003 (Tas), s 58; Juries Act 1957 (WA), pt IXA.
223Criminal Code RSC 1985 c C-46, s 649.
224Subsection 139(2) relates to the offence of obstructing, perverting or defeating the course of justice.
225Law Commission of England and Wales, above n 153, at [1.23] and ch 4.
226At [4.15].
227At [4.27] and [4.49].
228The Commission’s recommended provision is cl 48 of the Criminal Justice and Courts Bill 2013–2014 (192 as amended in Public Bill Committee). It will insert a new s 20A “Offence: research by jurors” into the Juries Act (UK) 1974. If the Bill is enacted in its present form, it will insert new ss 20D–20G into the Juries Act 1974 (UK).
229New ss 20D–20F provide for disclosure to various persons depending on the stage of the trial.