TRIAL BY JURY.

Auckland Star, Volume LXVIII, Issue 128, 1 June 1937, Page 5

TRIAL BY JURY.

"SITUATIONS" ARISE. DIFFICULT CASES IN N.S.W. THREAT OVER TELEPHONE. (From Our Own Correspondent.) SYDNEY, May 20. Within the past week two questions have come up on the conduct of trials which have given the presiding judge serious cause for reflection. One was a case in which an attempt was made to influence a juryman by intimidation. One, Leslie Clarke, had petitioned for divorce from his wife on the ground of her alleged adultery with Percy Whitehead. While the case was still before the Court, one of the jurymen was called to the telephone in the evening at his own home. A man's voice inquired if the man speaking was acting on the jury that day. Receiving an affirmative reply the voice went on "If you want to remain healthy, lay off Whitehead." The juror natually told the foreman of this strange movement, and the foreman quite properly reported it next day to the presiding judge. Mr. Justice Boyce naturally took a very serious view of the matter, and was evidently inclined to follow the traditional course when a juror has been tampered with by ordering a fresh trial. Reluctance of Juror. The position was at first complicated by the reluctance of the juror, who had been threatened, to continue sitting on| the case. But after some discussion with counsel, the juror announced that he was not apprehensive about any probable consequences to himself, and that lie was prepared to sit. His Honor then had to decide the matter from his own point of view, and counsel for the parties concerned naturally had something to say on the question. The two Clarkes and Wliite.Wid were put into the witness box

separately, and they all took oath that they had nothing to do with the threatening message. Mr. Evatt, who appeared for Whitehead, was very anxious that the ease should not be allowed to go on with the threatened juror still sitting, but M.\ Justice Boyee was by no means inclined to settle the matter in this offhand fashion. His Honor pointed out that if a precedent were thus established anyone in a jury action could ring up a juror and so compel the discharge of the jury and the ordering of a new trial. But this case had been going 011 for a week; none of the parties is wealthy, and it would be both inconvenient and unjust to order a new trial. On the other hand, as the threat seemed to emanate from some friend of Whitehead, his counsel felt that the incident, might have damaged his case or turned the sympathies of the jury against him. Would Not Dismiss Jury. Under these circumstances Mr. Justice Boyce decided to consider the matter for a few days, and he gave hie decision on Monday. His Honor then announced that he would not dismiss the jury. He was "prepared to assure, the jury that, on the evidence, neither Clarke nor Mrs. Clarke, nor Whitehead had anything to do with the threatening telephone message. One difficulty had been got over by the willingness of the threatened juror to go on sitting. But what evidently weighed most with the judge was the fear of establishing a precedent. He pointed out that "in criminal casee when, under the statutory provision or at the discretion of a judge, a jury was allowed to go home, a prisoner or his friends might be able to prevent the ease from ever being heard at all by ringing up members of the jury." On the whole he had come to the conclusion that in this case at least there wa« no necessity for 4i fie harging the jury and ordering a new trial. Threat of Being Locked Up. Another question concerning the procedure in jury cases came up at the State Full Court last week when an appeal in a civil case was under discussion. The jury in this action retired at 3.4(5 p.m. and came back into Court at (i p.m. with the information that they were not unanimous. At 10 p.m.—more

than six hours after they had retired for the first time—they announced that it seemed impossible for them to agree. It was then explained to the jury that they'would have to be locked up for another six hours—which might mean the whole night—if they could not give a decisive verdict. The jury were then divided equally; but at 10.20 they came back and the foreman announced a majority verdict for plain till'. The foreman, however, added that he was requested by his colleague* to assure the Court that "the idea of going to Darlinghurst for the night had not influenced them in reaching a verdict." Mr. Justice Halse Rogers, who was presiding over the Full Court, naturally felt compelled to comment on this somewhat ingenuous message. He went on to argue that this sort of thing is always liable to happen when the threat of "locking up" is brought to bear upon the jury, and that in many cases injustice must result. His Honor's colleagues, Mr. Justice Maxwell and Mr. Justice Owen, concurred in these views and in conclusion Mr. Justice Halse Rogers went so far as to suggest that "the attention of the Legislature should be directed to the possible consequences if the provisions of the Jury Act remain on the statute book in their "present form."