Noticeboard
| DOI | 10.1350/ijep.8.2.135.36516 |
| Published date | 01 March 2004 |
| Date | 01 March 2004 |
| Subject Matter | Noticeboard |
Notices should be sent to Rosemary Pattenden, School of Law, University of East
Anglia, Norwich NR4 7TJ, UK. E-mail: R.Pattenden@uea.ac.uk
Fact-finding constrained by pleadings—Australia
In Suvaal v Cessnock City Council [2003] HCA 41 (6 August 2003), the High Court of
Australia ruled that in a civil negligence action it was not competent for a trial
judge to make a determination of facts which was not directly supported by either
the pleadings or any evidence which emerged at trial. The plaintiff, who had
suffered paraplegia following a fall from his bicycle, had claimed that he had
lost control of his cycle after being ‘brushed’ by a car and had then crashed as a
result of potholes at the side of the road. The respondent council were responsible
for the state of the road. The trial judge, having rejected the plaintiff’s claim
about the car, decided the case on the basis that the plaintiff had changed
direction as the result of a momentary loss of concentration (which the plaintiff
had denied). The majority of the High Court found the trial judge to be in error.
‘A trier of fact, confronted with divergent cases being advanced by the parties,
may decline to accept either case and may proceed to make findings not exactly
representing what either party said. But that does not justify the creation of an
entirely new case with which the losing party had no testimonial or other
evidentiary opportunity to deal’ (per Gleeson CJ and Heydon J with whom Callinan
J concurred). In a strong minority judgment, McHugh and Kirby JJ argued that
the claims against the car driver had their own separate legal and factual
foundations. After rejecting the causative agency of the alleged motor vehicle,
the trial judge was bound to resolve the separate claim against the council. The
appellant was ‘not imprisoned by his claim’. The judge was not limited by what
either party had said and was entitled to draw her own inferences and reach her
own conclusions. Appellate judges should approach their task with proper
modesty. It was a serious error for an appeal court to substitute its own factual
conclusions for those of a trial judge.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
(2004) 8 E&P 135–146
135
NOTICEBOARD
Internet research by jurors—Australia
Widespread access to, and familiarity with, the Internet has created a new risk in
jury trials: that inquisitive jurors will conduct prejudicial Internet searches. In R
v K [2003] NSWCCA 406 the accused was convicted of murdering his first wife.
After the trial was over his counsel visited the same hotel as virtually all the
jurors and in the course of conversation counsel discovered that a number of
jurors knew through their own Internet researches that K had been accused of
murdering his second wife. No evidence had been adduced before the jury during
the trial that K had previously been charged, tried and acquitted of the murder
of this woman. The jurors had also learnt that the current trial was a retrial, but
this was information of which they were already properly aware. Affidavits were
obtained by the sheriff, the court official responsible for supervising the jury,
from nine of the 12 jurors.
The first issue for the Court of Criminal Appeal was whether evidence of the
hotel discussion and the affidavits were properly admissible having regard to the
common law rule that jurors are incompetent to impugn a verdict to which they
were a party (Nanan v The State [1986] AC 860) and s. 68A of the Jury Act 1977 (NSW)
which states:
(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 …
The questioning of the jurors for the purpose of procuring the affidavits did not fall
within any of the exceptions for which provision is made in the remainder of s. 68A.
Wood CJ (with whom Grove and Dunford JJ concurred) split the evidence into
two categories: that relating to the Internet searches by individual jurors and
then communicated to the remaining jurors; and that relating to the use made of
the information by jurors, individually or collectively ([2003] NSWCCA 406 at 13).
There was precedent that no evidence may be received about the jury’s deliberations
but evidence of an extrinsic matter, such as the presence of documents in the
jury room that should not have been there, is admissible. By analogy the Court of
Criminal Appeal would admit affidavit evidence of the fact of the Internet searches
and the nature of the information gathered but not of the effect which it may or
may not have had on the jury’s deliberations. (In fact, either expressly or implicitly,
all jurors had stated in their affidavits that they had not used the results of the
136
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
NOTICEBOARD
Internet research in coming to their verdict.) By implication, evidence of the hotel
conversation was inadmissible.
The admissible evidence established that a procedural irregularity had occurred.
The Court of Criminal Appeal had to decide whether it was satisfied that this
had not affected the verdict. The illicitly acquired information ‘was potentially
prejudicial, in so far as it risked inviting an application of tendency and/or
coincidence reasoning, or risked raising bad character in circumstances in which
that kind of evidence would not have been admissible, and in which no occasion
had arisen for the kind of jury instructions which would have been required’
(ibid. at 54, and see also at 76). Moreover, in conducting the Internet searches, the
jurors had disobeyed a preliminary direction from the judge not to go beyond
the evidence presented at the trial. In these circumstances the court could not be
satisfied that the irregularity did not affect the verdict.
The following suggestions for reform are made:
•
s. 68A should be amended to encompass not only the jury’s ‘deliberations’,
but all activities undertaken in the discharge of their duties—English lawyers
should note the similarities between s. 68A(1), (2) and the Contempt of Court
Act 1981 (UK), s. 8(1);
•
the sheriff should be given express power, at...
To continue reading
Request your trial