Judge's Private Discussion with Jury Foreman
| DOI | http://doi.org/10.1177/002201839906300540 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Judicial Committee of the Privy Council |
Judicial Committee
of
the
Privy Council
Judge's Private Discussion
with
Jury
Foreman
Ramstead
v
The
Queen
(1999) 2 WLR 698
Acardiothoracic surgeon was indicted in New Zealand in respect of the
deaths of
three
patients during surgery performed by him. After deliber-
ating for 24 hours over three days, the jury sent the judge
two
notes. The
first stated the verdicts which they proposed to return, namely,
not
guilty on two counts of manslaughter,
but
guilty
on
the
other. The
second was that the jury wished to add a rider
that
'in
all cases, due care,
skill
and
knowledge were breached,
but
we were unable to establish
those failures as an essential cause'. The judge did
not
consult counsel,
but
invited
the
foreman to see him in his chambers. After asking the
foreman
whether
the
three proposed verdicts were unanimous
and
receiving an affirmative answer, he requested
the
foreman to read
out
in
open court the rider, after he had
announced
the three verdicts. The
foreman asked to see the
jury
about that request
and
returned to say
that
they were unwilling to do so, since it was for the judge
'to
do with
the
note as he
thought
fit'. After the
jury
had, in open court, delivered
the verdicts as foreshadowed (and had pronounced
them
to be
unanimous), they were discharged
and
the judge
then
sat in chambers,
where
for
the
first time he disclosed to counsel the existence
and
contents of the second note, adding
that
he
had
not
as yet formally
recorded aconviction, as
the
rider was inconsistent with aconviction. At
an
adjourned hearing in open court, for legal argument, he remained of
opinion (after argument) that, whereas it was possible to regard the
rider as applying the statement as to causation to all three charges, it was
better to regard it as consistent with all three verdicts. That
meant
that it
applied to breaches of duty in two cases,
but
not
necessarily in
the
third.
The three verdicts were therefore acceptable as they stood. The Court of
Appeal in New Zealand dismissed
the
appeal on the ground
that
this is
what
the
rider meant,
and
that it was capable of meaning nothing else.
The Court of Appeal accepted that the procedure followed by the judge
was
an
irregularity,
but
held that it had caused the defendant no
prejudice, so that it could be ignored.
Lord Steyn observed that
'the
applicable law was
not
in dispute'. The
cardinal principle is that the jury
must
not
have
any
secret communica-
tion
with
'anyone-not
even with the court: see R v
McCluskey
(1993) 98
Cr App R 216. Any communication with the judge must be in
open
court
in the presence of the whole jury
and
all parties
and
their
representatives. In Rv
Gorman
that
whenever
the judge receives a note from
the
jury
he should deal
with
it
in
open
court, revealing to counsel the whole of its contents save only
such material as they ought
not
to have divulged (for instance voting
470
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